any person that violence will be used to him or his family, or damage be done to his property."

(9) To enact to the effect that an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be the ground of a civil action, unless the agreement or combination is indictable as a conspiracy notwithstanding the terms of the Conspiracy and Protection of Property Act, 1875.

Memorandum by Mr. Sidney Webb.

I have signed the report of the majority of the commission because I agree with all its specific recommendations as far as they go, though not with every phrase in the report itself. These recommendations appear to me well adapted to remedy the particular defects in the law to which they apply; and their enactment in distinct and unmistakable terms would, in my opinion, remedy many of the grievances of which trade unionists complain, and would effect a great improvement.

With regard to suggested limitation of the liability of trade unions for the wrongful acts of their agents, I think that attention should be drawn to the following clause, which was contained in a Government bill submitted to the New South Wales Legislative Council on October 1st, 1903, by the then AttorneyGeneral (Hon. Bernhard Wise), entitled "A Bill to amend the law of Conspiracy and to amend the Industrial Arbitration Act, 1901."

Clause 2. No trade union or industrial union or association of employers shall be liable to any suit or action, nor shall the funds of such union or association be in any way chargeable in respect of any act or word, done, spoken, or written, during or in connection with an industrial dispute, by any agent, if it be proved that such agent acted:

(i) contrary to instructions bona fide given by, or (ii) without the knowledge of the governing body of such union or association; and that the union or association has bona fide and by all reasonable means repudiated the acts or words complained of, at the earliest opportunity and with reasonable publicity.

But I cannot accept the assumption underlying the report that a system of organized struggles between employers and workmen, leading inevitably now and again to strikes and lockouts, though it is, from the standpoint of the community as a

whole, an improvement on individual bargaining, represents the only method, or even a desirable method, by which to settle the conditions of employment. A strike or a lockout — which is not only lawful, but under existing circumstances, as a measure of legitimate defence against economic aggression, may be sometimes even laudable— necessarily involves so much dislocation of industry; so much individual suffering; so much injury to third parties, and so much national loss, that it cannot, in my opinion, be accepted as the normal way of settling an intractable dispute. Moreover, from the standpoint of the community, such a method has the drawback that it affords no security — and even no presumption - that the resultant conditions of employment will be such as not to be gravely injurious to the community as a whole: that they will not involve, for instance, on the one hand, the social degeneration of "sweating," or on the other the loss caused by restriction of output or of apprenticeship. I cannot believe that a civilized community will permanently continue to abandon the adjustment of industrial disputes and incidentally the regulation of the conditions of life of the mass of its people to what is, in reality, the arbitrament of private war.

A more excellent way is, I believe, pointed out in the experimental legislation of the past decade in New Zealand and Australia. We have, in the factory, mines, shops, and sanitary legislation of the United Kingdom, long adopted the principle of securing, by law, the socially necessary minimum, as regards some of the conditions of employment for certain classes of labor. The various industrial conciliation and arbitration laws of New Zealand and Australia carry this principle a step farther, so as to include all the conditions of employment and practically all classes of labor. Such a system appears to offer, to the general satisfaction of employers and employed, both a guarantee against conditions of employment that are demonstrably injurious to the community as a whole, and an effective remedy for industrial

war.

Note on the Mogul Case by the Chairman.

There is no doubt that it has been often said that the Mogul case gave to employers a freedom of attack which was denied to workmen by Quinn v. Leathem.

The facts in the Mogul case, 23 Q. B. D. 614, and 1892, App., Cas., p. 25 are, as given by Mr. Askwith in his evidence, as follows:

The defendants were ship owners, and formed an association for the purpose of securing a monopoly of the carrying trade between Hankow and European ports. In pursuance thereof they offered a rebate of 5 per cent to all shippers who should ship only with them; and their members were to forbid their agents, upon pain of dismissal, to act for the plaintiffs, who were a competing firm of ship owners. In one case certain agents were dismissed. Upon the plaintiffs sending ships to Hankow, the defendants underbid them, and by the consequent reduction of freights, forced the plaintiffs to carry at a loss. Held unanimously, by the House of Lords, that the plaintiffs had no cause of action.

The acts of offering a rebate and underselling do not suggest any difficulty, but at first sight, doubtless, the forcing of the dismissal of the agents bears a strong similarity to the act of the forcing of the dismissal of the servants in Quinn v. Leathem, which act was held as indication of a conspiracy to injure.

This fact of the dismissal of the agents does not seem to have attracted notice at first, for it is not noticed in either the report of the argument or the judgment in the Court of Appeal. So far, therefore, as the oft-quoted judgment of Lord Justice Bowen is concerned the fact must be taken as unassumed.

But in the House of Lords the fact was relied on by counsel in argument, and it is noticed in the judgments.

Lord Watson said:

The withdrawal of agency at first appeared to me to be a matter attended with difficulty, but on consideration I am satisfied that it cannot be regarded as an illegal act. In the first place it was impossible that any honest man could impartially discharge his duty of finding freights to parties who occupied the hostile position of the appellants and respondents; and in the second place the respondents gave the agents the option of continuing to act for one or other of them in circumstances which placed the appellant at no disadvantage.

Lord Morris said:

The fifth means used, viz., the dismissal of the agents, might be questionable according to the circumstances, but in the present case the agents filled an irreconcilable position in being agents for the two rivals, the plaintiffs and the defendants.

From these remarks it is, I think, apparent that the dismissal of the agents in the Mogul case was not looked upon as on the facts an ultroneous attack like the withdrawal of Munce's workmen if he took Leathem's beef. In my judgment this view of the facts was right, but it would not matter if it was not so the point being that on the facts held as proved, and, therefore, assumed in the application of the law, the case is not inconsistent with what the House of Lords afterwards laid down in Quinn v. Leathem.

Mr. Arthur Cohen agreed, for the reason stated in the Chairman's note, as well as for other reasons, that the decision of the House of Lords in the Mogul case was not inconsistent with the decision in Quinn v. Leathem.

Memorandum on the Civil Action of Conspiracy.

If a person is a party to a conspiracy or combination to do acts causing injury to another person, and those acts are in themselves actionable torts, there the injured person can evidently maintain an action quite apart from conspiracy; he can maintain it against anyone who is a party to the conspiracy, and the non-joinder of the other parties to it cannot be pleaded either in bar or in abatement. For instance, if two or more persons conspire to assault, and do assault, another person, the latter can maintain an action for such assault against any one. who committed the assault or who joined in and authorized it, and the allegation of conspiracy in the statement of claim is mere surplusage, except so far as it may affect the amount of damages to be recovered. In those cases, therefore, conspiracy is not the foundation of the action. Herein lies the essential distinction between an action and a criminal prosecution.

In a well known passage from the opinion of the judges delivered by Willes, J., in Mulcahy v. Reg. 1868, L. R., 3 H. L. 317, the character of a criminal conspiracy is described in the following terms:

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect, the

very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object, or for the use of criminal means.

In the case of a civil action the position is entirely different, for such an action cannot be maintained merely because the combination or conspiracy has been formed; it is necessarily a condition precedent to the right of action that the tortious act itself should have been committed and that the actual damage or injury should have accrued.

There may be, however, cases where the combination or conspiracy to injure is itself a misdemeanor, although the acts agreed to be done are neither actionable torts nor criminal offences; for instance, those in which there is a conspiracy to injure such as is not protected by the provisions of the Conspiracy and Protection of Property Act 1875.

In those cases a civil action can be maintained by the injured person. Thus Coleridge, L. C. J., says in the Mogul case at page 549 of 21, Q. B. D.

If the combination is unlawful, then the parties to it commit a misdemeanor, and are offenders against the State; and if, as the result of such unlawful combination and misdemeanor, a private person receives a private injury, that gives such person a right of private action.

Again in the same case in the Court of Appeal,` Fry, L. J., says at page 624 of 23, Q. B. D.:

I cannot doubt that whenever persons enter into an agreement which constitutes at law an indictable conspiracy, and that agreement is carried into execution by the conspirators by means of an unlawful act or acts which produce private injury to some person, that person has a cause of action against the conspirators.

In such cases it may be said that the conspiracy, which is the misdemeanor, is the ground of the civil action. These, however, are the only cases in which it can, in propriety, be said that a civil action can be maintained for conspiracy. There is abundant authority in proof of this proposition. The principal authorities are the judgment of Lord Holt in Saville v. Roberts, I. Lord Raymond, 374, the notes to Skinner v. Gunton, reported