John Macdonell.

The law of master and servant. Part I.--Common law. Part II.-- Statute law online

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Given under my hand and seal at
the tlay of


Form of Commitment where the Warrant of Distress is irithheU.

[Here name ) To the constable of and also to the keeper of the

the County.] ) house of correction at

Whereas of nn tier an award made Ly-

on the day of in tlu' year of our Lord ,

pursuant to an Act passed in the twenty-fourth year of the reign of Her
present Majesty, intituled " An Act " [state the title of this Act], became
liable to pay to the sum of , and also the sum of

for costs, time, and expenses, making together the sum of ,

which he has refused or neglected to pay for the space of two days and
upwards subsecpent to the making of such award : And whereas it
appears to nu- that the recovery of such sum and warrant of distress and
sale of the goods and chattels of the said will be attended with

consequences ruinous or in an especial manner injurious to the defaulter
[and his family, 1/ (Oiy], and I therefore have determined to withhold
such warrant, and to commit the said to prison, pursuant to

the said Act : These are therefore to command you, the said constable of
, to apprehend the said , and convey him to

the house of correction at aforesaid, and to deliver him there

to the keeper of the said house of correction ; and these are also to com-
mand you, the keeper of the said house of correction, to receive him tin-
said into the said house of correction, and there keep him,
without bail or mainprise, for the space of months, .unless
the said sum of so ordered to be paid as aforesaid shall be
sooner satistied, with all reasonable expenses.

Given under my hand and seal at the

day of

35 & 3fi YICT. c. 4(; (1872).

An Act to malce Further Provision for Arbitration between Masters and


"Whereas by the Act of the fifth year of George the Fourth, chapter
ninety -six, intitided " An Act to consolidate and amend the laws relative
to the arbitration of disputes between masters and workmen," herein-
after referred to as the " princii)al Act," provision is made for the arbi-
tration in a mode therein prescribed of certain disputes between masters
and workmen :

And whereas it is expedient to make further provision for arbitration
between mastei's and workmen :



r.e it enacted by the Queen's most oxcelU'nt Majesty, by and Avitli tlie
advice and consent of tlie Lords Spiritual and Temporal, and Commons,
in this ])resent Parliament assembled, and by the authority of the same,
as follows :

1. The followin.q provisions shall have eflV-ct witli reference to a^^ree-
jiients under this Act :

(1.) An aj,'reement under this Act shall either designate some board,
CDuncil, i)ersons or peison as arbitrators or arbitrator, or
define the time and manner of appointment of arbitrators or
of an arbitrator ; and shall designate, by name, or by de-
scri[)tion of office or otherwise, some person to be, or some
person or persons (other than the arbitrators or arbitrator)
to appoint an umpire in case of disagreement between
ai'bitiators :
(2.) A master and a workman shall become mutually bound by an
agreement under this Act (hereinafter referred to as " the
agreement ") upon the master or his agent giving to the
workman and the workman accejiting a i)rinted copy of the
agreement :

Provided that a workman may, within forty-eight hours
after the delivery to him of the agreement, give notice to
the master or his agent that he will not be bound by the
agreement, and thereupon the agreement shall be of no effect
as between such workmen and the master :
(3.) When a master anil workman are bound by the agreement
they shall continue so bound during the continuance of any
contract of employment and service which is in force between
them at the time of making the agreement, or in contempla-
tion of which the agreement is made, and thereafter so long
as they mutually consent from time to time to continue to
employ and serve without having rescinded the agreement.
Moreover, the agreement may provide that any number of
days' notice, not exceeding six, of an intention on the j^art of
the master or workman to cease to employ or be employed
shall be re([uired, and in that case the parties to the agree-
ment shall continue Itound by it respectively until the expira-
tion of the n'(|uired number of days after such notice has
been given by citlicr ol' llir jiarties :
(4.) The agreeini-nt may jirovide that the parties to it shall, during
its continuance, be bound by any rules contained in the
agreement, or to be made liy the arbitrators, arbitrator, or
nmpire as to the rate of wages to be paid, or the hours or
(piantities of work to be jierformed, or the conditions or
regulations under which work is to be done, an<l may specify
penalties to be enforced by the arbitrators, arbitrator, or
umpire for the breach of any such rule :

ACTS relat;\(; to akmitration. 5(K')

(5.) The agreement may also jjiovide that in case any of the follow-
ing matters arise they shall be determined by the arbitrators
or arbitrator, viz. :

a. Any such disagreement or dispute as is meiitioneil in

the second section of the principal Act ; or
//. Any (piestion, case, or matter to which tlie provisions
of the Master and Servant Act, 18(37, apply ;
and thereupon in case any such matter arises between the
parties while they are bound by the a.cjrcement, the arbitrators,
arbitrator, or umpire shall have jurisdiction for the hearing'
and determination thereof, and upon their or his hearing and
determining the same no other proceeding shall be taken
before any other court or person for the same matter ; but if
the disagreement or dispute is not so heard and deter-
mined within twenty-one days from the time when it arose,
the jurisdiction of tlie arbitrators, arbitrator, or umpire shall
cease, unless the parties have, since the arising of the
disagreement or dispute, consented in writing that it shall
be exclusively determined Ijy the arbitrators, arbitrator, or
umpire :

A disagreement or dispute shall be deemed to arise at the
time of the act or omission to which it relates :

(6.) The arbitrators, arbitrator, or umpire may hear and determine
any matter referred to them in such numner as they thiuK
tit, or as may be in-esci'ibed by the agreement :

(7.) The agreement, and also any rules made by the arbitrators,
arbitrator, or imipii'e in pursuance of its provisions, shall in
all proceedings as well before them as in any court be evidence
of the terms of the contract of emploj'ment and service between
the parties bound by the agreement :

(8.) The agreement shall be deemed to l)e an agreement within the
meaning of the thirteenth section of the principal Act for all
the purposes of that Act :

(9.) If the agreement provides for the production or examination
of any books, documents, or accounts, sul)ject or not to any
conditions as to the mode of their ])roduction or examina-
tion, the arbitrators, arbitrator, or umpire may re(juire the
production or examination (subject to any such conditions)
of any such books, documents, or accounts in the possession
or control of any person summoned as a witness, and who is
bound by the agreement, and the provisions of the princi-
pal Act, for compelling the attendance and submission of
witnesses, shall apply for enforcing such production or
2. This Act may l)e cited as " The Arbitration (Masters and Workmen)
Act, 1872."

Q y 2



Combinations or cons])iracies on the part of workmen to
raise their wasres or shorten their hours of labour have not
been always permitted. Statutes prohibiting them were
passed as long ago as the reign of Edward III. (1360, 34
Edward III. c. 9). The 3 Henry VI. c. 1 (1425) forbade
the holding of chapters and congregations of masons. The
2 & 3 Edward VI. c. 15 (154(S), enacted that if artificers or
labourers do " conspire, covenant, or promise together, or
make any oaths, that they shall not make or do their work
but at a certain price or rate, or shall not enterprise or take
upon them to finish that another hath began, or shall do
but a certain work in the day, or shall not work but at
certain hours and times, then every such person so con-
spiring, &c., being convict thereof, shall forfeit ten pounds
to the King's Highness." One of the last of these statutes
was the 39 & 40 Geo. III. c. lOG, by which all agreements
between workmen for obtainincr a rise in waives were declared

Whether a combination to raise wages was also at Com-
mon Law an indictable offence is not clear. As first defined
in the Ordinance of Conspirators, 33 Edward I. (1305), con-
spiracy is, iti the main, a combination for the false and mali-
cious promotion of indictments ; and it is sometimes stated
that this is the proper definition of it (a). It is certain
that the early reports and such works as Hale's Pleas and

(a) Sarilr v. Ilobcrls, 1 Itiiy., |). 377.

TUADE rxioNS. 5*17

East's Pleas of tlie Crown contain references mainly to con-
spiracies of this character, or conspiracies of which the persons
indicted were really accessories to some Aveli-known form of
crime. In accordance with the remarks of Campbell, C. J., in
Hilton V. Ecl-ersleij (6), Mr. Wright, in his able work on the
Law of Conspiracy, has endeavoured to show that at Common
Law a conspiracy to do things which it was lawful for an indi-
vidual to do was, as a rule, not a criminal offence. He has
advanced strong arguments in favour of this view, but in
several cases which are quoted below (c) it was expressly
stated by eminent judges that combinations with a view to
raise w^ages were criminal, and there are not a few reasons for
believing that this is correct.

In the year 1824 a statute was passed (the 5 Geo. IV.
c. 95), repealing the prior Acts relative to combinations of
workmen or of masters, or as to raisins' or lowering the rate
of wages, or altering the hours or quantity of work, or
regulating the manner of carrying on business. Section i
expressly provided : —

"That journeymen, workmen or other persons who sliall enter into
any comljinatiou to obtain an advance, or to fix the rate of wages, or to
lessen or alter the hours or duration of the time of working, or to
decrease the (quantity of work, or to induce another to depart from his
service before the end of the time or term for which he is hired, or to
quit or retiu'n his work before the same shall be finished, or not being
hired, to refuse to enter into work or employment, or to regulate the
mode of carrying on any manufacture, trade or business, or the manage-
ment thereof, shall not therefore be subject or liable to any indictment
or prosecution for conspiracy, or to any other criminal information or
punishment whatever, under the common or tlie statute law."

By the 3rd section corresponding liberty was given to em-
ployers. The 5th section made a reservation in the case of

(?;) See note (/). Cambriehjc (1721), 8 Mod. 10 ;

(c) nexv. Whcathj (1761), 2 F.ur. Kimj v. Norris (1758), 2 Kenyoii,

1125; 1 AV. B. 273; .-im^t. (1755), 300 : 7to v. 2rt7fs (1783), Willcs, 583,

Sayer, 260 ; Amm. (1698), 12 .Mod. 1 Leach, 274 : Ecx v. Mcarbaj (1796),

248. (" It is tit that all confederacies C T. K. 636 ; Hex v. Hanuiwiid (1799),

by those of trade to raise their rates 2 Esp. 719 ; Ikg. v. J'arncll (1881),

shoidd be suppres.sed," Holt, C.J.) ; 13 L'ox, 508.
Kiny v. Join-ncymai Tailors of


any person avIio by violence to the jierson or property, by
threats, or by intimidation, should unlawfully or maliciously
force another to de})art from his hiring or work. Various
associations having made use of the liberty thus granted,
this Act was, in accordance "with the recommendation of a
select committee, repealed, and another, the <j Geo. IV. c.
129, was passed. The 3rd section enacted that : —

" If any person shall by violence to the person or property, or by
threats or intimidation, or by molesting or in. any way obstructing
anothei", force or endeavour to force any journeyman, manufacturer,
■workman or other person hired or employed in any manufacture, trade
or business, to depart from his hiring, employment or -work, or to return
his work before the same shall be finished, or prevent or endeavour to
prevent any journeyman, manufacturer, workman, or other person not
Ijeing hired or employed from hiring himself to, or from accepting work
or emjiloyment from any person or persons ; or if any person shall use or
employ violence to the person or property of another, or threats or
intimidation, or shall molest or in any way obstruct an(jtlicr for the
])urpose of forcing or inducing such person to belong to any club or asso-
ciation, or to contribute to any common fund, or to pay any fine or
penalty, or on account of his not belonging to any particular club or
association, or not having contributed or having refused to contribute,
to any common fund, or to pay any fine or penalty, or on account of
his not having complied or of his refusing to comply with any rules,
orders, resolutions or regulations nuide to obtain an advance or to
reduce the rate of wages, or to lessen or alter the hours of Avorking, or to
decrease or alter the <[uantity of work, or to n-gulate the mode of
canying on any manufacture, trade or business, ov the management
thereof ; or if any ])ers()n shall by violence to the person or property of
another, or by threats or intimidation, or by molesting or in any way
obstructing another, force or endeavour to force any manufacturer or
person carrying on any trade or business, to make any alteration in his
nuKle of legulating, managing, conducting or carrying on such manu-
facture, trade or business, or to limit the number of his apprentices, or
the number or description of his journeymen, workmen or servants ;
every person so offending or aiding, abetting or assisting therein, being
convicted thereof in manner hereinafter mentioned, sliall be, imjirisoned
only, or shall and may be imprisoned and kept to liard labour, for any
time not exceeding three calendar months. Section 4. — Provided always,
that this Act shall not extend to subject any persons to punishment
who shall meet together for the sole purpose of consulting upon and
determining the; rate of wages or prices which the poisons present at
hucli meeting or any of them, shall rcciuiie oi' demand for his or their



work, or the hours or time Inr wliich lie or they shall work in any
miuiulacture, trade or business, or who shall enter into any agreement,
verbal or written, among thi-mselves for the purpose of fixing tlie rate
of wages or prices which the parties entering into such agreement, or
any of them, shall require or demand for las or their -work, or the hours
or time for which he or they will work, in any manufacture, trade or
business ; and that persons so meeting for the purposes aforesaid, (jr
entering into any such agreement as aforesaid, shall not be liable to any
prosecution or penalty for so doing, any law or statute to the contrary

Tliis Act was amended in 1850 by the 22 Vict. c. 34, which
deckired that agreements by workmen or others as to wages
or hours of work, whetlier of the persons present at the
meeting or of other workmen, and peaceable and Reasonable
persuasion by workmen or others to abstain from work in
order to secure such wages or hours, should not be deemed
to be "molestation" or "obstruction" within the meaning
of the Act of 1825.

After the passing of the 6 Geo. IV. c. 129, the state of the
law as to strikes and combinations of workmen was obscure.
The balance of authority was in favour of strikes not being
necessarily illegal in the sense that each person who took
part in them might be indicted. In Rex v. Sehhy (d),
Eolfe, B., ruled that strikes per se were not illegal. " It is
lawful for a dozen people to agree together and say ' We
will not work unless A. B. raise our wages.' " Erie, J.,
ruled to the same effect in Re<j. v. Rowlands (e). But, in
Hilton V. Eckersley (/), decided in 1856, Crompton, J.,
declared that combinations to raise wages were " illegal and
indictable at Common Law." In Wahhy v. Anley, decided in
1861, thej same judge repeated his opinion that at Common
Law all such combinations were illegal, and that the effect
of 6 Geo. IV. c. 129 was to restore that law (/).

{d) (1847), 5 Cox, C. C. 495, n. on the other hand, compare Hex v.

(c) (1851), 17 Q. B. (371 ; 5 Cox, Bykcrdyb: (1832), 1 M. & E. 179.

536 ; Haniien, J., in Farrer v. (/) 6 E. & B. 47.

Close (1869), L. K. 4 Q. B. 602 ; 38 (/) See also as to effect of 6 Geo.

L. J. II. C. 132 ; Cockburn, C.J., in IV. c. 129, Sir William Erie's Mcmo-

Walshyw Anley (1861), sec note ^i) ; ruudum on Trade Unions, p. 58.



Nor was it clear what might lawfully be done by workmen
in order to give effect to a strike. By most judges it was
held to be a threat or coercion for workmen to give notice to
their employer that they would leave unless a Avorkman whom
they disliked was discharged, or unless the employer made a
change in the mode of conducting his business. This is the
effect of Rex v. Bykerdyke (g), Rex v. Diijffield {h), Walnhy v.
Anley (i), O'Ne'd v. Longman (/.•), Hhelhouvae v. Oliver (I),
;^kinner v. Kitch (in). A "threat," within the meaning of
the Act, must be, it was admitted, a threat to do something
illeo-al. In Walshjj v. Anley, the Court so decided, and
also held that a combination with a view to induce a master
to dismiss certain men was a threat, as being an illegal
act. The cases referred to in the notes show that " threat "
was not confined to threats of violence to the person or
property (n).

How far were trade nnions with objects in restraint of

(ri) (1832), 1 M. & K. 179. (Work-
iiieii combined to send a letter to
an employer to the effect that
his men would strike in fourteen
clays unless certain workmen were
discharged ; Patteson, J., ruled that
6 Geo. IV. c. 129 never meant to
empower workmen to meet or com-
liiue for the purpose of dictating to
the master whom he sliould emjiloy.

(h) (1851), 5 Cox, 405, where
Erie, J., denies the right of worknu'U
to " combine together to induce men,
already in the employment of other
masters, to leave their work for the
]>urpose of compelling those masters
to raise their wages." See also Jlrx
V. Hndlt (1851), 5 Cox, 162.

(i) (1861), 3 E. k E. 516; 30
L. J. M. C. 121 ; 9 AY. K. 271 ; 3
L. T. N. S. 666. (Appellant sum-
marily convicted because he and two
other workmen of A. went to him
with a paper signed by appellant
and other workmen of A., saying
that they had resolved at a meeting
to cease working immediately unless
certain workmen were discharged,
and they liad a definite answer by
dinner time.)

(k) (1863), 4 B. & S. 376. (Chair-
man at a meeting of a benefit club
asked workman whether he would
leave certain shop, or stay ami be
despised by the club, have his name
sent round the countr}', and be put
to all sorts of unpleasantness ; a
threat within the statute.)

(/) (1866), 13 L. T. N. S. 630.
(Workmen going in a body to a nuister
and saying, "Unless you discharge
him (a person who had not struck
work) your men .shall not be allowed
to work ; " a threat under s. 3.)

(m) (1867), L. K. 2 Q. B. 393.
(A notice served by secretar}' ol'
liranch lodge of carpenters' union
upon a master builder, stating that
he had been requested by the com-
mittee to give the men in the
builder's employment notice to come
out on strike against him, unless he
became a member of the society ;
ajipcllaut rightly convicted.)

()i) 30 E. J. U. C, ]). 123; Lush,
, iroidv.Jhnrton (1866), 10 Cox,
|). 351 ; and compare remarks of Sir
W. Erie in Memorandum on Trade
Unions, p. 65.



trade aflfected by the legislation just described ? This was
considered by the Court of Queen's Bench in Hilton v.
Ech-rshy (o) in 185C. An agreement under seal was entered
into by eighteen cotton spinners to carry on or suspend
for twelve months their works in conformity with the
resolution of a majority, under a penalty of five hundred
pounds. The Court held the bond to be void, as being in
restraint of trade, and this was affirmed in the Exchequer
Chamber. The remarks of Crompton, J., are worth noting :
" I think," he said, " that combinations like that disclosed in
the pleadings in this case Avere illegal and indictable at
Common Law, as tending directly to impede and interfere
with the free course of trade and manufacture. Combinations
of this nature, whether on the part of the workmen to
increase, or of the masters to lower, wages were equally
illegal. By recent enactments, carefully worded, combina-
tions to raise or lower the rate of wages, and to regulate the
hours of labour, are made no longer punishable. But these
enactments do not make such agreements legal agreements
in the sense that the breach of them can be enforced at law ;
and still less do they apply to make enforceable at law an
agreement, not being a mere stipulation among the parties
themselves, which any one might withdraw from at his
pleasure, but binding and tying themselves up, under a
penalty, to close their works if a majority of a particular
body shall dictate to them so to do. I think this bond void, as
being in restraint of the freedom of trade, and from its mis-
chievous and dangerous tendency, pointed out in the agree-
ment, with respect to strikes and combinations. . . . The
public are not recompensed for the ceasing of one party by the
other parties being able to carry on their trade with increased
facilities." Lord Campbell agreed with Crompton, J., in his
conclusion, and he thought that the bond was invalid, on the
ground that it was against pubhc policy; but he declined
to say that a criminal offence at Common Law had been

(o) 5 E. & B. 682 ; 6 E. & B. 47 ; 199 ; 26 L. T. 314.
24 L. J. Q. B. 353 ; 25 L. J. Q. B.


committed. A similar question arose in 1«S()7 in Horuhy v.
Close (p). A society which liad a considerable number of
rules intended for the maintenance of men on strike was
held not to be a Friendly Society within sections 9 and 44 of
the Friendly Societies Act, 18 eV: 19 Vict. c. 03, which gave
certain remedies to a friendly society established " for any
purpose which is nut illegal." Consequently the justices
had no summary jurisdiction in case of fraud or misappro-
priation of funds by members. The same point came up in
Fdrrer v. Close (q). An information had been laid against
an officer of a Friendly Society under sections 24 and 44,
1<S & 19 Vict. c. iy'S. Cockburn, C. J., and Mellor, J.,
thought that the rules of the society were in effect those of
a trade union ; the objects being in restraint of trade, they
were of opinion that the decision in Hornby v. Close was
applicable. Two members of the Court, Hannen and Hayes,
J. J., differed from this conclusion. Hannen, J., pointed out
that there was no evidence to show that the funds of the
Society were applied to the support of any illegal strike. A
strike " maybe criminal, as if it be part of a combination for
tiie purpose of injuring or molesting either masters or men ;
or it may be simply illegal, as if it be the result of an agreement
dej)riving those engaged in it of their liberty of action, similar
to that by which the employers bound themselves in Hilton v.
Eckersley, or it may be perfectly innocent, if it be the result
of the voluntary combination of the men for the purpose only
of benefiting themselves by raising their wages, or for the
purpose of compelling tlie fulfilment of an engagement
entered into between employers and employed, or any other
hiw ful purpose."

In this state of doubt ns to the e.xact position of trade
unions, a lloyal Commission was appointed to inquire into
their organisation ; and after the Commission had reported,
two Acts, the .34 \: :}.") Vict. c. :U, and ;J4 & :?■') Vict. c. 32

(?>) 36 L. J. M. C. 43; 8 15. i: S. K. 4 Q. B. C02 ; 20 L. T. N. S.
175; 10 Cox, C.C. 393. 802; 17 W. K. 1129; 10 U. & S.

{q ) (1869) 38 L. J. M. ('. 132 ; L. 553.


(the Criminal Law Amendment Act, 1871), were passed.
The second of these was repealed by the 38 t^ 39 Vict. c. 86,
s. 17. The first as amended is still in force.

34 & 35 VICT. c. 31 (]871).
An Act to amend the Law relating to Trade Unions.

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 63 of 77)