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 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 V 

 
 f 0: 
 
 THE PRESENT AND 
 
 OF 
 
 TRADE UNIONS 
 
 ALFRED HENRY RUEGG, K.C. 
 
 AUTHOR OK "RUEGG'S WORKMEN'S COMPENSATION," "LAW OK EMIT.OVKK 
 AND WORKMAN," ETC. 
 
 HERMAN COHEN, M.A. 
 
 BARRISTER-AT-LAW 
 AUTHOR OF "TRADE UNION LAW," ETC, 
 
 LO N D N 
 
 WILLIAM CLOWES AND SONS. LIMITED 
 7, FLEET STREET, E.C, 
 
 1906
 
 1'KINTED BY 
 
 WILLIAM CLOWES AND SONS, LIMITED, 
 
 LONDON AND BECCLES.
 
 
 THE PRESENT AND FUTURE OF 
 
 TRADE UNIONS 
 
 THERE is likely, for notorious reasons, to be much dis- 
 cussion on this subject in the present Parliament, and 
 probably in this session (1906). Its importance to both 
 cz capital and labour is, of course, paramount. 
 
 In the following pages we hope to set forth succinctly 
 
 >_ (1) the present law, as we understand it ; (2) proposals 
 
 < made for altering the present law, with such comments 
 
 £B as occur to us ; (3) other suggestions, including our own. 
 
 Perhaps we may say that the bulk of what follows was 
 
 2 written before the appearance of the Report of the Royal 
 
 Commission on Trade Disputes and Trade Combinations 
 
 y~< of 1903. We also deal with that. The present position 
 £3 has been reached by legal decisions supported by legal 
 principles, sometimes deemed to be more or less contra- 
 ct dictory, which, we fear, are imperfectly understood by 
 many of those — including legislators — on whom the 
 responsibility of amendment, if there is to be amendment, 
 rests. 
 
 We do not presume to advocate the objects of any 
 party. We desire to indicate, as lawyers, how any | 
 suggestion which may commend itself, may be Legislatively 
 carried out. We assume, of course, that the basis of 
 legislation will be justice, recognising, however, that 
 opinions may honestly differ as to what is just or unjust. 
 It cannot be denied that in the recent political 
 
 4051)25
 
 4 PRESENT AND FUTURE OF TRADE UNIONS 
 
 " campaign " pledges were freely given to reconsider or re- 
 vise or amend the law relating to trade unions, and notably 
 that principle of it dealt with in the " TaffVale Case." 
 
 Before 1871. 
 
 A word as to this period. From the time trade unions 
 came into notice, probably about the latter part of the 
 eighteenth century — whether they were of masters or of 
 men — till 1871, they were regarded by the law of England 
 as illegal associations, because their objects were, it was 
 thought, necessarily " in restraint of trade." Hence the 
 law could take no cognisance of them in any way : they 
 could (it was universally supposed) neither sue nor be sued, 
 their contracts were not enforceable, their agents and 
 servants could (and did) rob them with impunity, for there 
 was no person of whom the law would take account, there 
 was no one to begin a prosecution ; bankers or others 
 entrusted with their property could refuse to restore it. 
 In 1868 and 1869 two Acts were respectively passed to 
 protect the funds of unions from larceny and embezzle- 
 ment : but, with these exceptions, their status of non- 
 legalityl or illegality remained, with some advantages, it 
 is true, but with many disadvantages. 
 
 In 1871 came the Act which is still the chief " charter" 
 of trade unions. 
 
 The Legislation of 1871. 
 
 What was the object of the principal Act (1S71) ? 
 Let us call contemporary evidence. " By the law, as it 
 at present stood," said Mr. Secretary Bruce, in introducing 
 the Bill (Hansard, February 14, 1871 ; 262) "these bodies 
 [unions] could enter into no binding contract with any 
 third person. Their secretary could not recover at law 
 the salary which might be due to him for his services, 
 nor could the union maintain an action against their
 
 PRESENT AND FUTURE OF TRADE UNIONS 5 
 
 bankers for money deposited on their account, while, if 
 they rented premises for the purposes of their society, in 
 case of dispute with their landlord they were without any 
 remedy at law. To remove these disabilities was one 
 of the objects of the Bill." Again {ibid. 266), " the Bill 
 did not propose to legalise what might be called primary 
 contracts, such as agreements not to work or not to 
 employ." The Earl of Morley, who introduced the 3-5 i 1 1 
 into the House of Lords, adopted this classification and 
 these illustrations, adding that secondary contracts were to 
 be enforceable (ibid, May 1, 1871 ; 191 8). Following the 
 Home Secretary in debate, Mr. T. Hughes said, "The 
 Bill had . . . many recommendations ... It made, for 
 instance, no attempt whatever to separate the funds of 
 trade union societies into those subscribed for trade and 
 those subscribed for other purposes. To make such an 
 attempt would, he was convinced, be fatal to any measure, 
 and would not be accepted by the unions. ... It secured 
 entire protection to the funds of trade unions" {ibid., 
 February 14, 187 1 ; 270). 
 
 "The Act of 1871," said, in 1S80, Sir George Jessel, 
 Master of the Rolls, who had taken part in the debates 
 on it, " was passed primarily with a view to preventing 
 the treasurers and secretaries and officers of these societies 
 from robbing them : that was the chief object. . . . 
 Another object was this — there was a great difficulty 
 in suing and getting their property from third persons, 
 and one object of the Act was to enable these societies to 
 sue in respect of their property, and also to enable them 
 to hold property, such as a house or office" (Rigby v. 
 Connol, 14 Ch. D. at 489). 
 
 Now let us turn to the Minority Report of the Royal 
 
 Commissioners on Trade Unions, made by Messrs. Tom 
 
 Hughes and Frederick Harrison in 1869, which, it is stated 
 
 on authority," at the time especially inspired Government 
 
 * Per L. Macnaghten in Taft" Vale Case, p.
 
 6 PRESENT AND FUTURE OF TRADE UNIONS 
 
 legislation. At p. lix. they say, " A very serious question 
 arises here as to whether legislation of a far more com- 
 prehensive character is not needed to place trade unions 
 on a full legal footing ; whether, in fact, a complete statute 
 should not be enacted, analogous to the provisions of the 
 Friendly Societies Acts and the Joint Stock Companies 
 Acts and the like, by means of which uniform rules would 
 be framed for the formation, management, or dissolution 
 of these associations ; and by which they should be 
 enabled to sue and to be sued by their members, to 
 recover from members their contributions or fines, and be 
 made liable to members for the benefits assured. We are 
 inclined to believe that the time has not yet come, if it 
 ever come, for any such statute. The amount of feeling 
 which this question arouses on both sides, the great 
 irritation of those who have suffered by trade unions, 
 and the extreme jealousy on the part of their members 
 of State interference, would, we are convinced, render the 
 attempt to pass such a measure impracticable. . . . Trade 
 unions are essentially clubs, and not trading companies, 
 and we think that the degree of regulation possible in 
 the case of the latter is not possible in the case of the 
 former. All questions of crime apart, the objects at which 
 they aim, the rights which they claim, and the liabilities 
 which they incur, are for the most part, it seems to us, 
 such as courts of law should neither enforce, nor modify, 
 nor annul. They should rest entirely on consent. 
 
 "The general effect of the present proposals would be 
 this. All trade unions, the rules and bye-laws of which 
 contained nothing criminal, and the expenditure of which 
 was in accordance with law, would receive protection for 
 their funds. They would not be able to enforce pay- 
 ments, or be liable to any regulations respecting the 
 management of their affairs. Their rules and their ex- 
 penditure would be open to inspection. . . . Any element 
 of crime or mal-appropriation would deprive them of legal
 
 PRESENT AND FUTURE OF TRADE UNIONS 7 
 
 protection. We do not consider that any system of com- 
 pulsory registration would be either practicable or just" 
 (ibid., p. lx.). 
 
 Accordingly, they formally recommended {inter all 
 " That it is expedient to give full and positive protection 
 to the property and funds of trade unions. 
 
 "That it is expedient to carry out this end by the 
 following process : — 
 
 " 1. Certificate under the Friendly Societies Acts 
 annually renewable, and giving the benefit of such parts 
 of those Acts only as apply to certificated societies — that 
 is to say, the power to appoint trustees, the summary pro- 
 cess for arbitration, and the summary remedies against 
 fraud and embezzlement. . . . 
 
 " 5. Union not to be (otherwise than under the sections 
 of the Acts referred to) capable of suing as a corporate 
 body, or of recovering at law contributions, arrears, or fines 
 against its own members, or of otherwise enforcing at law, 
 or in equity any of its rules, resolutions, or contracts as 
 against any of its members. 
 
 "6. Union not to be (otherwise than as aforesaid 
 capable of being sued as a corporate body, or of being dis- 
 solved, or otherwise wound up by the courts ; and not to be 
 accountable in law or equity to its members, in respect 
 of any rule, agreement, resolution, or act of the society" 
 (ibid., p. lxiii.). 
 
 Finally, Mr. George Howell, sometime M.P., dealing 
 expressly, in 1901, with the "Intention of the Legislature," 
 says, "in this respect I can speak with some authority 
 I had more to do with the negotiations respecting tin- 
 enactment of the Trade Union Acts, 1S71 and [876, during 
 their passage through both Houses of Parliament, than 
 any other living man. ... In my interviews with the 
 then Home Secretary . . . the question of empow> 
 trade unions to sue and be sued was often and often 
 discussed. Some few were in favour of embodying such
 
 S PRESENT AND FUTURE OF TRADE UNIONS 
 
 power in the Trade Union Bill, but the vast prepon- 
 derating opinion was averse to it. Any provision of that 
 nature was intentionally left out ; the Home Secretary 
 being quite as strong on that point as Messrs. Hughes, 
 Mundella, J. Hinde Palmer, Serjeant Simon, and, so far 
 as my memory serves me, the late Lord Coleridge. The 
 representatives of labour and officials of trade unions 
 whose mouthpiece I then was, were strongly averse to 
 any clause being in the Bill which would open the door 
 to litigation. In this the Government concurred " (Pre- 
 face to " Trade Union Law," Cohen and Howell, p. 40 : 
 to the same effect the same writer in " Labour Legisla- 
 tion," etc., p. 186 ; 1902). 
 
 Add to this that throughout the debates on the bill 
 there is hardly a syllable as to litigation with unions by 
 outsiders, i.e. persons unconnected with them (except, 
 perhaps, a regret in one speech that the unions were not 
 made outright suers and suable by the Bill, Hansard, 
 2040, March 14, 1S71). Mr. T. Hughes, a lawyer, said, 
 " It secured entire protection to the funds of trade unions " 
 {ibid., 270, February 14, 1871). In fact, every one believed 
 that at that time, not being corporations, they could not 
 sue or be sued. 
 
 Whatever the Act does or was intended to do, it 
 certainly secures the other objects contemplated by its 
 promoters, as mentioned in the foregoing citations. Let 
 us turn to what it, in fact, says about suing and being 
 sued. 
 
 The scheme of s. 9 is as follows : " The trustees of 
 any trade union registered under this Act, or any other 
 officer of such trade union who may be authorised so to 
 do by the rules thereof, are hereby empowered to bring 
 or defend . . . any action, suit, prosecution, or complaint 
 . . . touching or concerning the property, right or claim 
 to property of the trade union ; and shall and may, in all 
 cases concerning the real or personal property of such
 
 PRESENT AND FUTURE OF TRADE UNIONS 9 
 
 trade union, sue and be sued, plead and be impleaded, in 
 any court of law or equity. . . ." 
 
 (S. S had vested all the property of a union in its 
 trustees, for whose appointment the rules must provide : 
 schedule I.) 
 
 Now, it is obvious that if this section meant that the 
 trustees could be sued on any claim against their union, 
 the Taff Vale case was within it, and there was an end of 
 the matter. But it was never suggested throughout the 
 proceedings, either by the judge of first instance, or by the 
 Court of Appeal, or by the House of Lords, that the case 
 was covered by this section. On the contrary, Farwell, J., 
 said, "Sects. 8 and 9 of the Act of 1S71 expressly provide 
 for actions in respect of property being brought by and 
 against the trustees, and this express intention impliedly ex- 
 cludes such trustees from being sued in tort" (83 L. T. R. 475). 
 (This would also be true of an unregistered union.) And 
 the Court of Appeal said the section would be " a most 
 remarkable section if, as is argued for the plaintiffs and 
 held by the learned judge, the purview of the Act is that 
 a trade union can be sued in its registered name. If 
 this were so, what is the good of this section, expressly 
 enabling the trustees or other officer of the union to sue or 
 be sued in respect of property ? " 
 
 It is clear, at any rate, that whatever s. 9 means, it 
 does not mean that the trustees can sue or be sued 
 generally for everything. What, then, docs it mean ? 
 
 There are two views. 
 
 1. The trustees can sue or be sued in respect of any 
 contract whatever involving its property which the union 
 may make, e.g. if the tradesman who furnishes their offices 
 is not paid, he can sue the trustees, or, if he docs not di> 
 his work properly, they can sue him. 
 
 2. The trustees have nothing to do with the contracts 
 of the union which they themselves do not make. They 
 have to account for the property which actually reaches
 
 io PRESENT AND FUTURE OF TRADE UNIONS 
 
 their hands (cf. s. io), and in respect of such property, and 
 of that only, they may be litigants like any other owner, 
 e.g. if they hold a lease a covenant in which is broken, 
 they may sue or be sued on it. 
 
 The second seems to us the better view, but against it 
 must be noted that, if it is correct, a union could not, 
 under this section, bring an action against a single trustee, 
 or more acting in concert, to obtain possession of the 
 funds. But Parliament may have intended that the union 
 should take this risk as against a trustee. Moreover, 
 there are almost invariably more than one trustee of a 
 union, and there is nothing in this section to prevent one 
 trustee from suing another. Further, s. 12 gives protection 
 against a trustee. 
 
 It is, therefore, incorrect to suggest that s. 9 touches the 
 liability of a union in tort. 
 
 Thus the liability of unions for torts is reached in quite 
 another way than by s. 9, via, in fact, the Taff Vale case. 
 Before dealing with that case, it must be mentioned that 
 the Amendment Act of 1876 did not touch the point 
 under examination, but that three reported cases do. 
 
 In 1892 a business firm brought an action for libel 
 against a trade union and several of its officers, and 
 obtained an interim injunction restraining further publica- 
 tion. The union did not appear at the trial (nor apparently 
 before it). Mr. Justice Kekewich regretted that the case 
 for them had not been argued, and made the injunction 
 perpetual "against the Federation," adding, "whatever 
 that may mean " (Pink v. Tfie Federation of Trades, etc., 
 and others, 6j L. T. 258). 
 
 In 1895 the same judge granted an interlocutory 
 injunction for libel against a trade union and others, and 
 the Court of Appeal refused to interfere. The union 
 seems to have appeared to defend at these hearings, but 
 it did not at the trial. The jury found against all the 
 defendants, with .£500 damages, and Mr. Justice Hawkins
 
 PRESENT AND FUTURE OF TRADE UNIONS ll 
 
 gave judgment for that amount, and made the injunction 
 perpetual (Tro/iope and others v. The London Building 
 Trades Federation and others, 72 L. T. R. 342 ; [I T.L.R. 
 22S, 280; 12 T. L. R. 373). 
 
 Thus, throughout the whole of the proceedings in these 
 two cases the point was never taken that a union was 
 not suable. 
 
 On the other hand, in 1896 an interlocutory injunction 
 was obtained against certain individuals in respect of 
 illegal picketing. It would seem that the union to which 
 they belonged had originally been added as defendants, 
 and that a motion to strike out the name of the union was 
 successful, for at the trial in 1898 Mr. Justice Byrne 
 allowed the society the costs of that motion. Before the 
 trial, too, the trustees of the union had been joined as 
 defendants, and an injunction asked for against them to 
 prevent their using funds in furtherance of certain libels 
 (for which he awarded damages against other defendants) 
 was refused, as he was " of opinion that there is no legal 
 ground to justify such an injunction," and certain costs 
 were disallowed to the plaintiffs in respect of it {Lyons 
 v. Wilkins, 67 L. J. Ch. 3S3 ; 1889, 1 Ch. 255). 
 
 In no case, therefore, was the question of suing and 
 being sued argued before the 'faff Vale case. 
 
 Tiik Taff Vale Case. 
 
 The facts in this case there is no need to set out here ; 
 they may be read in the Times (December 20, 1902 ; 
 February 24, 1903) and in the Law Reports (1901, A. ( '. 
 426; 1901, 1 K. B. 170; jo L. J. K. B. 219, 905; 83 
 L. T. R. 474 ; 85 L. T. R. 147 ; 17 T. L. R. : 49 
 
 W. R. roi, 50 \V. R. 44). The decision of the House of 
 Lords is clearly stated in the hcadnotc to one of these 
 (L. T. R.), thus— 
 
 The effect of the Trade Union Acts, 1S71 and 1876, is,
 
 J 2 PRESENT AND FUTURE OF TRADE UNIONS 
 
 that a registered trade union may be sued in its registered 
 name in respect of wrongful acts done by its agents with 
 its authority. 
 
 Further, Lord Macnaghten lays it down that " a trade 
 union, whether registered or unregistered, may be sued in 
 a representative action if the persons selected as defen- 
 dants be persons who, from their position, may be taken 
 fairly to represent the body." And this is, no doubt, the 
 existing law. 
 
 Examining in detail the reasoning by which this 
 conclusion is reached, we find Mr. Justice Farvvell saying — 
 
 (i.) " Now, although a corporation and an individual or 
 individuals may be the only entity known to the common 
 law who can sue or be sued, it is competent to the Legis- 
 lature to give to an association of individuals which is 
 neither a corporation nor a partnership nor an individual, 
 a capacity for owning property and acting by agents, and 
 such capacity involves the necessary correlative of liability 
 to the extent of such property for the acts and defaults of 
 such agents. . . . The Legislature has legalised it, and it 
 must be dealt with by the courts according to the intention 
 of the Legislature." 
 
 (ii.) " The principle on which corporations have been 
 held liable in respect of wrongs committed by its servants 
 or agents in the course of their service and for the benefit 
 of the employer — qui scutit commodum sentire debet et onus 
 — is as applicable to the case of a trade union as to that 
 of a corporation. . . . The proper rule of construction of 
 statutes such as these is that, in the absence of express 
 contrary intention, the Legislature intends that the creature 
 of the statute shall have the same duties, and that its funds 
 shall be subject to the same liabilities as the general law 
 would impose on a private individual doing the same thing." 
 
 (iii.) The learned judge also thought that s. 15 and s. 16 
 of the 1871 Act, and s. 8 and s. 15 of the 1876 Act, all 
 point to an intention to make a trade union, as such,
 
 PRESENT AND FUTURE OF TRADE UNIONS 13 
 
 responsible; for all except s. 8 expressly impose penalties 
 in certain events on trade unions and their officers : s. 8 
 speaks of a "liability actually incurred by" a union. 
 
 (iv.) Finally, he said, "The acts complained of are the 
 acts of the association. They are acts done by their agents 
 in the course of the management and direction of a strike. 
 The undertaking such management and direction is one of 
 the main objects of the society, and is perfectly lawful ; 
 but the society, in undertaking such management and 
 direction, undertook also the responsibility for the manner 
 in which the strike is carried out." As to " improper acts 
 in the carrying out of the lawful purposes of the society, 
 in such cases the principal, whether an individual or a 
 corporation, or a body like turnpike trustees, is answerable 
 for every such wrong of the servant or agent as is com- 
 mitted in the course of the service and for the master's 
 benefit, though no express command or privity of the 
 master be proved. Granted that the principal has not 
 authorised the particular act, but he has put the agent in 
 his place to do that class of act, and he is answerable for 
 the manner in which the agent has conducted himself in 
 doing the business with which the principal has entrusted 
 him." 
 
 All the noble and learned lords in the House of Lords 
 expressly adopt Mr. Justice Farwell's judgment as a whole, 
 except Lord Lindley, who does so in fact. Lord Halsbury 
 expressly concurs with (i.) above ; Lord Macnaghten 
 expressly approves of (iii.). 
 
 Lord Macnaghten adds this argument : The Minority 
 Report (above, p. 5) agreed that " except so far as com- 
 binations are thereby exempted from criminal prosecution, 
 nothing should affect . . . the liability of every person t<> 
 be sued at law or in equity, etc." (p. xxxi.i, and goes oil : 
 "Now, if the liability of every person in this respect was 
 to be preserved, it would seem to follow that it was in- 
 tended by the strongest advocates of trade unionism that
 
 14 PRESENT AND FUTURE OF TRADE UNIONS 
 
 persons should be liable for concerted as well as for 
 individual action ; and for this purpose it seems to me 
 that it cannot matter in the least whether the persons 
 acting in concert be combined together in a trade union or 
 collected and united under any other form of association." 
 
 Lord Shand expressly adopted (iii.) and (iv.), think- 
 ing that "the power of suing and liability to be sued . . . 
 is clearly and necessarily implied by the provisions of the 
 statutes." 
 
 Lord Brampton amplified (iv.). From the very omis- 
 sion of any provision authorising the suing or being sued 
 of a union (except s. 9), he inferred that the Legis- 
 lature intended it to be known always and in all legal 
 proceedings by its registered name. 
 
 This Lord Lindley repeats, accepting also (ii.), (iii.), 
 and (iv.). In any case, he thought the officers, etc., of a 
 trade union could be sued on behalf of the society ; and 
 that if the trustees were added as parties, an order could be 
 made on them in the same action for damages and costs 
 out of the society's funds. 
 
 The Commissioners' View. 
 
 Here we must mention the recent report of the Royal 
 Commission. They apparently all defend the law, as 
 decided by the Taff Vale case, on grounds not, so far as 
 we know, previously advanced. 
 
 All the judges who took part in that decision seem to 
 have thought that the liability of unions, if it arose at all, 
 resulted from the status conferred on them by the Acts of 
 1 87 1 and 1876. The Commissioners take a different view, 
 and say (p. 3) they " are satisfied that the law laid down 
 by the House of Lords involved no new principle, and 
 was not inconsistent with the legislation of 1S71." In 
 their view the funds of trade unions were always liable 
 for the torts of members, and the difficulties of reaching
 
 PRESENT AXD FUTURE OF TRADE UNIONS 15 
 
 those funds were difficulties of procedure only. "When," 
 they say (p. 4), " an individual is cast in an action of 
 tort, whatever property he possesses is liable to be 
 attached for payment of damages. In the eyes of the 
 law, a trade union before 1S71 was nothing but an aggre- 
 gate of individuals, and there never was a time when, 
 if all the individual members had been brought before 
 the court in an action for tort, and the tort had been 
 proved against them or their agent, the property of the 
 members, including the union funds, which belonged 
 to them, would not have been liable to make good the 
 damage. The union might be an unlawful association, 
 but this would be immaterial. . . . This liability of the 
 funds of a trade union in an action of tort could at any 
 time have been effectively realised in case of a trade union 
 consisting of a very small number of persons." 
 
 They then proceed thus : " If the liability was not 
 enforced, it was not because trade unions were regarded 
 as peculiar institutions outside the law, but owing to 
 difficulties in procedure," which they go on to point out. 
 
 With deep respect for the opinions of the Commis- 
 sioners, we are unable to assent to this view. No doubt 
 the difficulties of procedure referred to were of themselves 
 sufficient to prevent any practical attempt to reach the 
 funds in an action of tort, and no such attempt, it is 
 admitted, is known, but we think the immunity from such 
 actions before 1871 rested on a firmer base than con- 
 siderations of procedure. 
 
 Of course, when an individual is cast in an action of 
 tort, speaking generally, any property he possesses is liable 
 to be taken to satisfy the damages awarded, and in the 
 eyes of the law a trade union before 1871 was nothing 
 but an aggregate of individuals. Even assuming that the 
 funds contributed by members to their union for specified 
 purposes, some legal, some illegal, could be deemed in law 
 still to belong to them, which we greatly doubt, there
 
 1 6 PRESENT AND FUTURE OF TRAD hi UNIONS 
 
 seems to us to be a great difference between attaching 
 (if this was possible) the property of a tort-feasor to 
 answer his own debt and taking the property of a number 
 of persons whose only association was a tie not recognised 
 by law, and some of whom ex Jiypothesl might neither be 
 tort-feasors at all, nor have authorised the commission 
 of any tort. Could not such an action have been defeated 
 by a single member showing that he had expressly for- 
 bidden and repudiated the commission of any such tort, 
 and, perhaps, had published his disavowal ? And would 
 there have been the smallest difficulty in bringing forward 
 such a member ? 
 
 To take the case, put by the Commissioners, of a 
 union consisting of a number of persons so small that 
 they could all be made defendants in tort, the statement 
 that in this way the funds of a union could be reached 
 seems to us equally incorrect. If each member was guilty 
 of tort, whether in combination with others or not, each 
 is individually liable to an action. Judgment would be 
 recovered against each separately, and assuming even that 
 each has a vested claim to an ascertainable share of the 
 common funds, and that such funds could be attached, 
 each would find his own particular proportion taken in 
 respect of the damages against him. This seems to us 
 no more a taking of the union's funds than if money 
 belonging to each defendant and capable of attachment 
 was taken in the hands of any other third party. 
 
 There remains the question whether the union funds 
 could be made liable for the torts of a few of its members 
 on the ground that they were the authorised agents of the 
 whole body. This already assumes something capable in 
 law of conferring authority. But no such thing existed. 
 In the words of the Commissioners, a trade union before 
 1871 "was nothing but an aggregate of individuals." 
 Should the more responsible members of a union authorise 
 other members to commit torts, the}-, of course, became
 
 P RES EXT AND FUTURE OF TRADE UNIONS 17 
 
 tort-feasors equally with the actual perpetrators of mis- 
 deeds, as being accessories before the fact or joint con- 
 spirators. In either case each made himself personally- 
 liable, and property belonging to each, wherever found, was 
 no doubt in theory available to satisfy damages awarded. 
 
 Now, in the absence of express authority, the law could 
 not infer from the terms of association alone an implied 
 authority or agency, which presupposes some legal entity 
 to confer it. This would have been to recognise the union 
 as something distinct from its members, which it was 
 notorious in 1871 that the law did not do. 
 
 We venture to think that if this theory — which, after all, 
 is but a speculation of the Commissioners — is correct, it is 
 remarkable that generations of lawyers never hinted at it. 
 
 Agency. 
 
 The question of agency, however, thus incidentally 
 raised, leads to a very important suggestion that has been 
 made. It has been proposed, to meet the views of unionists 
 with regard to protection of union funds, to deal with the 
 existing law of agency without granting total immunity. 
 Unionists complain, sometimes with reason, that juries are 
 always ready to imply agency for wrongful acts on behalf 
 of the union in persons who, in fact, are not responsible 
 officials, and have had no authority conferred upon them 
 to do what they have done — for over-zealous members who, 
 in time of disturbance, take upon themselves a control 
 which their position in the society does not justify. It 
 seems reasonable that the funds of the whole body should 
 be protected against the spontaneous acts of such persons. 
 But the acts of the genuine agents of the union ought, we 
 think, to bind the union as at present. The men who 
 actually control the policy, the funds, and the operations 
 of the union must be deemed the agents of the union. If 
 the law of agency in this connection could be satisfactorily 
 
 B
 
 iS PRESENT AND FUTURE OF TRADE UNIONS 
 
 defined, unionists would probably not object to its applica- 
 tion to their societies, as to others. Accordingly we suggest 
 that unions should not be held liable for the acts or 
 defaults of any persons, unless those persons have been 
 regularly appointed by them to definite positions of 
 control, i.e. their officials ; provided that the names and 
 addresses and offices of such persons have been duly 
 registered. Thus the ordinary avowed agents of the 
 unions would be their president, treasurer, secretary, and 
 members of the executive committee ; possibly also delegates 
 and shop stewards. The details must necessarily in each 
 case be left to the particular union, as organizations vary ; 
 the essential provision is that the registered agents should 
 be, in fact, the controlling powers of the body. 
 
 Once this policy is honestly carried out, the union 
 would be absolutely free from the unauthorised acts of 
 irresponsible persons, which they now consider a grievance ; 
 while, per contra, no doubt could arise as to their liability 
 for the acts of this limited group of officials. Once ap- 
 pointed, all delegated authority must be derived expressly 
 from these official persons. The union, as such, should 
 have no further right to delegate authority to any one else 
 over their heads ; whatever is to be done is to be done 
 through them. Of course, the general body of members 
 would retain their normal right (under their rules) to 
 change their officials. 
 
 Branch Agents. 
 
 The subject of agency has also been raised by the 
 sixth recommendation of the Commissioners (Sir G. 
 Lushington and Sir W. Lewis dissenting), which is — 
 
 To legislate " to provide means whereby the central 
 authorities of a union may protect themselves against 
 the unauthorised and immediately disavowed acts of 
 branch agents."
 
 PRESEXT AND FUTURE OF TRADE UNIONS I , 
 
 This raises the difficult question of the relation between 
 a union and its branches. Is the branch independent of 
 the union? This must largely depend in each case on the 
 governing rules and regulations — "the articles of associa- 
 tion," as they have been called. Naturally in a local 
 dispute the branch has, and must have, general control of 
 operations, and must, therefore, possess a certain amount 
 of autonomy. If in a given case, the branch has, in fact, 
 acted independently of the union, something is to be said 
 for this recommendation. But even then it is to be noted 
 that, so far as it legalises disavowing certain acts of agents 
 after the events, it is unique in the relief it affords to a 
 union, and totally opposed to the fundamental principle of 
 the law of agency. Our own suggestion above avoids 
 that extreme. 
 
 Broadly, one of the best tests of independence is to 
 whom does the money collected by the branch belong ? 
 Generally it is to the union as a whole, subject to its 
 duty to provide for the current expenses of the branch. 
 This differentiates this relation from that of a university 
 to its colleges, to which a comparison has been made. 
 The branches as "lodges" are certainly for many purposes 
 independent unions, but as they usually have small funds 
 or none, their liability is not of so much practical im- 
 portance as that of the union. Thus in the recent case 
 (Airey v. Weighill, reported in the Times of February II, 
 1905), a foreman — who had been dismissed with proper 
 notice — brought a conspiracy action against the trustees 
 of the union, the officials (president and secretary) and 
 members of the local lodge ; the secretary was sued both 
 in a representative and personal capacity. Only the 
 trustees and the local secretary defended, and the Court 
 of Appeal, reversing the verdict as to them, released them 
 from the payment of damages, holding that neither the 
 union nor the branch was liable. There was " no trace of 
 assent on the part of the union to what was done ;" and
 
 20 PRESENT AND FUTURE OF TRADE UNIONS 
 
 as to the lodge, the cardinal fact the Court apparently 
 relied on was that it had no power under the rules to 
 grant strike pay, and therefore its " approval " of the 
 threat to strike — which the jury found — was not enough 
 (for it could not secure the disaffected the pay without which 
 they could not strike). To make the branch liable there 
 must have been a resolution actually authorising the strike. 
 If the law on the relation of unions to branches may 
 be generalised from this case, it seems satisfactory. Never- 
 theless, we think that any substantive change of the law 
 should only be made as part of a general revision (if any) 
 of the law of agency, as affecting trade unions. Only so 
 could the subject of branches be effectively treated. 
 
 Ultra Vires. 
 
 This case also leads to another suggestion that has 
 been made, viz. that the union should not be liable for 
 any acts of its agents, whether formally appointed or not, 
 which could be proved to be ultra vires of the rules ; i.e. if 
 the agents do anything involving legal liability which they 
 had no authority conferred upon them under the registered 
 rules of the union to do, the union should not be liable. 
 
 This is to approximate the rules of a union to the 
 memorandum of association of a limited liability company, 
 and to treat acts entirely outside the true intent of the 
 rules as being to the same extent ultra vires as would be 
 the acts of directors outside their memorandum. For acts 
 clearly within that document, even though amounting to 
 a tort, the company is often liable ; while for acts widely 
 without it the company may be free, while the directors 
 are personally " hit." But, to say nothing of the fact that 
 unionists have always repudiated the analogy between 
 their societies and limited companies, we do not think that 
 this suggestion would be of much practical use. For this 
 reason, chiefly. The rules of every union must necessarily
 
 PRESENT AND FUTURE OF TRADE UNIONS 21 
 
 provide for the conduct and control of strikes and in- 
 dustrial disputes generally. Therefore it is almost im- 
 possible to conceive of any acts, even torts, done in the 
 ordinary operations in pursuance of this general authority 
 which could be regarded as ultra vires the charter of the 
 association. Nor, we may add, do we know of any case 
 in the past in which the suggested safeguard would have 
 protected the union. 
 
 Alteration of the Law. 
 
 The state of the law being what the House of Lords 
 has decreed, it is proposed to alter it on the ground that — 
 
 (A) The legislature never intended to make unions 
 suable or capable of being sued. 
 
 (B) It is unjust that they should be so. 
 
 With (A) we have dealt above (pp. 4-1 1). It must be 
 added that the three Lords Justices in the Court of Appeal 
 took this view: It was not "by error," they said, that 
 Parliament had omitted to make a union a corporation ; 
 s. 9, by carefully defining who may sue and be sued, is a 
 proof that no general power was contemplated. Both " by 
 reason of the language of the Acts and what is omitted 
 therefrom " they find " the exact contrary." And they 
 insisted that as a corporation or an individual were the 
 only entities known to the law, and that as a union was 
 neither, it could not without an enactment sue or be sued : 
 " it is incorrect to say that such an entity can be sued un- 
 less there be found an express enactment to the contrary." 
 
 (B) Whether the present state of the law is just or 
 unjust is not a question of law. But it may be briefly 
 pointed out that the usual argument is that the injustice 
 arises from the very essentials of a union's existence ; 
 their members are necessarily very numerous, and the 
 unions can only exercise control over a very few — 
 practically, their officials; but yet, during a strike, they
 
 22 PRESENT AND FUTURE OF TRADE UNIONS 
 
 are in danger of being held liable for the unauthorised 
 acts of any member, though, in fact, they have given him 
 no authority at all ; that the law of agency is invariably 
 invoked against them, and they are at the mercy of a jury 
 — generally, a special jury, an unsympathetic body — on the 
 findings of the facts. Conformably to this view the Trade 
 Disputes Bill of 1905 (reintroduced this year by Mr. 
 Hudson) proposed to enact (s. 3) — 
 
 " An action shall not be brought against a trade union 
 or other association aforesaid for the recovery of damage 
 sustained by any person or persons by reason of the action 
 of a member or members of such trade union or other 
 association aforesaid." 
 
 This became in the Standing Committee on Law — 
 " An action shall not be brought ... by reason of any 
 act or conduct of a member or members of such trade 
 union or other association aforesaid, unless the member 
 doing the acts complained of can lawfully be held to be 
 an agent of the trade union, or unless such acts have been 
 adopted or ratified by such union." 
 
 This latter clause expressly preserving the law of agency 
 is far from securing total immunity of trade union funds. 
 
 In the Bill of 1906 (backed by Sir Charles Dilke and 
 Mr. Keir Hardie) this appears thus : — 
 
 3. "An action shall not be brought against a trade union, 
 or against any person or persons representing the members 
 of a trade union in his or their representative capacity." 
 
 This very far-reaching provision would take away even 
 the action against trustees given by s. 9 (above p. 8). 
 
 Total Immunity. 
 
 Taken literally, both these proposals mean that total 
 immunity is to be secured to trade union funds not only 
 during and in respect of a trade dispute, but at all times. 
 Possibly, however, "aforesaid" in the 1905 Bill is an
 
 PRESENT AND FUTURE OF TRADE UNIONS 23 
 
 unskilful reference to s. 1, and we must read in, ''in con- 
 templation of, or during the continuance of, any trade 
 dispute." Moreover, this section releases trade unions as 
 such from the ordinary law of agency, both as to contracts 
 and as to torts, where the agent of the union is a member of 
 it, as almost invariably is the case. The liability of the 
 union for the act of its agents who are not members of it 
 is left by this proposed section as it is. 
 
 Thus, to take an extreme case, if a number of members 
 on strike, either on the formal advice of union officials, or 
 a resolution of the union, do any damage to property — for 
 example, burn down a mill — the union is not to be liable to 
 the owner. The actual offenders — it is, no doubt, intended 
 — would be left in such cases to the criminal law. 
 
 But, it must be noted further, that the section in the 
 1905 Bill does not relieve the actual individual wrong- 
 doers—the officials and members in the case supposed — 
 from their individual civil liability for damages. This is 
 sometimes overlooked, and this kind of remedy is some- 
 times underrated. For such individuals are frequently by 
 no means " men of straw," and, if they are cast in damages, 
 they run the risk of losing all their savings and other 
 worldly possessions with the possible alternative of bank- 
 ruptcy, entailing many serious disqualifications, as, for 
 instance, in the case of a member of Parliament, that of 
 forfeiting his seat. 
 
 Whether this limited amount of civil liability, in lieu of 
 the present liability of the union funds in such a case, will 
 afford sufficient protection to the injured property-owner 
 is a grave problem. 
 
 It only remains to point out that it might be suggested 
 that it should be enacted simply that a trade union shall 
 not be deemed to be a corporation or a legal person for 
 any purpose whatever. This, of course, implies total 
 immunity of its funds for all purposes whatever ; but this 
 is going beyond the effect of the section.
 
 24 present and future of trade unions 
 
 Suggestions falling short of Total Immunity 
 of Funds. 
 
 Some suggestions have been made with a view to meet, 
 in the interest of the unions, the effect of the Taff Vale 
 and other decisions, and these alternatives cannot be con- 
 veniently dealt with until some of those other decisions 
 have been shortly considered. 
 
 Other Decisions: Quinu v. Leathern, Allen v. Flood, etc. 
 I. Motive. 
 
 Besides the Taff Vale case, unionists complain that 
 other recent decisions have rendered their position uncertain 
 and unsatisfactory. 
 
 It is commonly said that the decision of the House of 
 Lords in Allen v. Flood — hailed with such enthusiasm by 
 trade unions — and that in the Mogul Case, have been 
 whittled away by subsequent judgments of the same 
 tribunal, especially in Quinn v. Leathern. 
 
 Allen v. Flood decided that: "An act which does not 
 in itself amount to a legal injury cannot be actionable 
 merely because it is done with a bad motive " (69 Lazo 
 Quarterly Review, 1, by A. V. D.). This was not a declara- 
 tion of the law for the first time. Baron Parke had 
 laid down the same rule half a century before {Stez'ensou 
 v. Neivnham, 13 C. B. 285). 
 
 The question what r acts trade unions may do with the 
 object of protecting and extending their trade, and in- 
 creasing their remuneration/was clearly raised in the Mogul 
 Case — technically and in substance a trade union case 
 — decided in the House of Lords in 1891. According to 
 the report (1892, A. C. 25) : "Owners of ships, in order to 
 secure a carrying trade exclusively for themselves, and at 
 profitable rates, formed an association, and agreed that the
 
 PRESENT AND FUTURE OF TRADE UNIONS 25 
 
 number of ships to be sent by members of the association 
 to the loading port, the division of cargoes, and the freights 
 to be demanded, should be the subject of regulation ; that 
 a rebate of 5 per cent, on the freights should be allowed to all 
 shippers who shipped only with members ; and that agents 
 of members should be prohibited on pain of dismissal from 
 acting in the interest of competing shipowners; any member 
 to be at liberty to withdraw on giving certain notices. 
 
 The plaintiffs, who were shipowners excluded from the 
 association, sent ships to the loading port to endeavour to 
 obtain cargoes. The associated owners thereupon sent 
 more ships to the port, underbid the plaintiffs, and reduced 
 freights so low that the plaintiffs were obliged to carry at 
 unremunerative rates. They also threatened to dismiss 
 certain agents if they loaded the plaintiffs' ships, and 
 circulated a notice that the rebate of 5 per cent, would not 
 be allowed to any person who shipped cargoes on the 
 plaintiffs' vessels. The plaintiffs having brought an action 
 for damages against the associated owners, alleging a con- 
 spiracy to injure the plaintiffs — 
 
 Held [unanimously], "... that since the acts of the 
 defendants were done with the lawful object of protecting 
 and extending their trade and increasing their profits, and 
 since they had not employed any unlawful means, the 
 plaintiffs had no cause of action." 
 
 What, then, are the principles laid clown in these two 
 cases, considered together? 
 They seem to be — 
 
 (a) That in a commercial or industrial dispute, where 
 each party is striving to secure for himself or his side 
 an advantage at the expense of the other, the association 
 together, or the acts done in furtherance of the object 
 aimed at, must (to be actionable) in themselves be a legal 
 wrong or violation of the legal rights of the other part)-, 
 and that the intent, whether good or bad, can make no 
 difference ;
 
 26 PRESENT AND FUTURE OF TRADE UNIONS 
 
 (b) That, it is not unlawful for persons to combine to so 
 manage and arrange their own business as to interfere even 
 seriously with the freedom of will and trade of another 
 person, if the interference is the result of acts done for the 
 purpose of extending or protecting their own trade. 
 
 On such decisions workmen's unions naturally reasoned 
 that competition in labour must stand on the same footing 
 as competition in trade. The Mogul Case, they thought, 
 shows that in a commercial dispute " boycotting " your 
 adversary for the purpose of protecting or improving your 
 own trade position is not an unlawful act, and since Allen 
 v. Flood it is immaterial that a jury may find this was done 
 " maliciously " to injure the adversary or that it has in 
 fact injured him. 
 
 In 1 90 1, however, the House of Lords decided Quinn 
 v. Leathern (1901, A. C. 495 ; 85 L. T. R. 289). The head- 
 note of the latter gives the facts succinctly as follows : — 
 " The respondent (L.) was a butcher carrying on business 
 at Lisburn, . . . and the appellant (O.) was the treasurer 
 of a registered trade union. ... In 1895 a dispute arose 
 between the respondent and the society on the question of 
 the employment by the respondent of men who were not 
 members of the society. The respondent refused to 
 discharge his non-union men at the bidding of the society 
 and the society consequently brought pressure to bear 
 upon customers of the respondent, and in particular upon 
 . . . Munce, . . . who had had large dealings with the 
 respondent for a long time, to induce them to cease to 
 deal with him — in several cases, including Munce's, with 
 success. The}' also induced some of the respondent's 
 servants to leave him. It was proved that the appellant 
 (O.) had taken an active part in the proceedings against 
 the respondent. The respondent brought this action 
 against the appellant and other members and officers of 
 the society to recover damages for the loss sustained by 
 him in consequence of their conduct." He was awarded
 
 P RES EXT AXD FUTURE OF TRADE UNIONS 27 
 
 ,-£250. The House of Lords unanimously upheld this 
 verdict, some of the noble and learned judges having been 
 in the majority who decided Allen v. Flood. 
 
 What did this case really decide ? The verdict, or a 
 part of it, might have been supported on the ground that 
 the facts showed the procurement of a breach of (one) 
 existing contract ; but this was throughout treated as a 
 comparatively insignificant matter, and was scarcely relied 
 upon as justifying the decision, which was much wider. It 
 may be stated, in the terms of the headnote to the other 
 report cited above — 
 
 "A combination of two or more, without justification 
 or excuse, to injure a man in his trade, by inducing his 
 customers or servants to break their contracts with him, or 
 not to deal with him or continue in his employment, is, if 
 it results in damage to him, actionable." 
 
 Now, in considering this case, it must never be 
 forgotten that the inference drawn from the facts by many 
 of the judges was that the predominant motive of the 
 defendants was not primarily to advance the interests of 
 their trade organization, for Leathern and the men who 
 remained with him were willing to " come into line" with 
 the requirements of the union, but was to punish him and 
 them for having for a time held out against them. 
 
 Lord Shand put it thus : " As to the vital distinction 
 between Allen v. Flood and the present case, it may be 
 stated in a single sentence. In Allen v. Flood the purpose 
 of the defendant was by the acts complained of to promote 
 his own trade interest, which it was held he was entitled to 
 do, although injurious to his competitors ; whereas, in the 
 present case, while it is clear there was combinati >n, the 
 purpose of the defendants was 'to injure the plaintiff in 
 his trade as distinguished from the intention of legitimately 
 advancing their own interests.' " 
 
 If the decision in this case only means that, admitting 
 a trade dispute to be a form of warfare, then there arc laws
 
 28 PRESENT AND FUTURE OF TRADE UNIONS 
 
 of war which must be observed, and there is no legal justi- 
 fication for combining to injure an enemy who has in fact 
 surrendered in order to punish him for not having sur- 
 rendered before, the case, we think, has not the importance 
 which is often attributed to it, and does not conflict with 
 the Mogul Case or with Allen v. Flood. 
 
 But if, on the contrary, Quinn v. Leathern decided that, 
 assuming the same acts committed with the primary inten- 
 tion of advancing the trade union interests were legal, but 
 became illegal because done in association and prompted 
 by a bad spirit, we think it is inconsistent with the effect of 
 the combined judgments in the two former cases. As one 
 of us has said elsewhere, " But — and here comes out the 
 essence of the difference between the two cases {Quinn v. 
 Leathern and Allen v. Flood) — the interests of their union 
 were furthered to such a trifling extent in proportion to the 
 damage inflicted on Leathern, and that, perhaps, on Munce, 
 and that proposed to be inflicted on Leathem's non-union 
 men, that it was universally believed by almost (if not quite) 
 every judge who heard the case — and there were no less 
 than fifteen — and apparently by the jury, that their main 
 object, practically their sole object, was to wreak ven- 
 geance on Leathem's men for not joining their union as 
 they thought they ought to do, on Leathern for not 
 assisting them to punish his non-union men by dis- 
 charging them, and on Munce for not assisting them 
 to punish Leathern " (Recent Trade Union Cases, 2nd 
 edit. p. 9, 1903). 
 
 In the Report of the Royal Commission on Trade Dis- 
 putes, etc. (1906), a note is appended (p. 19) by the chair- 
 man, and accepted by Mr. Arthur Cohen, K.C., to the 
 effect that in their opinion the law as laid down in Quinn 
 v. Leatliem is not inconsistent with the judgments in the 
 Mogul Case. After much consideration, we can, with great 
 deference, only agree with this opinion if the former deci- 
 sion was based on the fact that the impugned acts were
 
 PRESENT AND FUTURE OF TRADE UNIONS 29 
 
 not in pursuance of a trade dispute, but after a trade dis- 
 pute had terminated. 
 
 This raises the question of — 
 
 Predominant Motive. 
 
 Despite the prevalent view of the decision in Allen v. 
 Flood (p. 24), juries are constantly invited to consider 
 what was the predominant motive with which the acts 
 complained of in a trade dispute were done. 
 
 Indeed, in his opinion on that case itself, Wills, J., said, 
 " The notion that the same thing may be unlawful or may 
 be lawful, may or may not constitute a cause of action, 
 according as it is or is not done out of spite or ill-will, or 
 from some improper motive, is very well known to our 
 law" (67 L.J. O. B. 144). 
 
 So Mr. Justice Walton, in Giblaris Case (p. 40), 
 said, " Having regard to the decision in the House of 
 Lords in the Mogul Case, I do not think that this " {i.e. 
 unionists conspiring with their officials not to work for 
 a master who employed the plaintiff, and so depriving 
 him of his "job") "would be an actionable wrong if it 
 were done for the purpose of protecting or advancing the 
 interests of the members of the union, as, for instance, for 
 the purpose of securing more work or better wages for 
 themselves, even though a necessary consequence of such 
 action would be to injure the plaintiff. On the other hand, 
 having regard to the decision of the House of Lords in 
 Quinn v. Leathern, I think that it would be an actionable 
 wrong if it was done, not to advance the interests of the 
 union, except, perhaps, in some remote and indirect way, 
 but, directly and primarily, for the purpose of injuring the 
 plaintiff" (18 T. L. R., at p. 501). 
 
 Lord Justice Romcr thought that "the intent on the 
 part of" two individual defendants was to injure the plain- 
 tiff (19 T. L. R., at p. 710).
 
 30 PRESENT AND FUTURE OF TRADE UNIONS 
 
 Again, in Tliomas v. Amalgamated Society of Carpenters 
 and Joiners, if a newspaper report may be trusted {Times, 
 April 28, 1902), where a workman lost employment through 
 the defendant union calling out their men in shops where 
 he was at work, Mr. Justice Wills said, "The real question 
 for the jury was whether the action of the delegates was 
 taken to promote the legitimate interests of the society or 
 vindictively to punish the plaintiff." Thomas got a hundred 
 pounds damages, and a perpetual injunction against the 
 union interfering with him. 
 
 Again, in Read's case, the present Master of the Rolls 
 said, " Nor do I think that in civil actions any more than 
 in criminal it will be possible to eliminate motives from 
 the discussion" (1902, 2 K. B., at 539). And, in fact, juries 
 never do eliminate that factor in deciding on the legal or 
 illegal nature of trade disputes. In the words of L.J. Bowen, 
 " The good sense of the tribunal which had to decide would 
 have to analyse the circumstances, and to discover on 
 which side of the line each case fell" {Mogul Case, 23 
 O. B. D. 6j$ in 1889). But sometimes it is impossible to 
 distinguish on which side of the line the case falls. The 
 truth is that, in industrial warfare, the attempt to gauge 
 accurately the strength of the respective desires to further 
 your own interest and to damage your opponent is gener- 
 ally impracticable and fallacious. Both desires may be 
 present in greatly varying degrees, but both invariably are 
 present. 
 
 In 1891 Lord Coleridge remarked : "Where the object 
 is to benefit one's self, it can seldom, perhaps it can never, 
 be effected without some consequent loss or injury to some 
 one else. In trade, in commerce, even in a profession, 
 what is one man's gain is another's loss ; and where the 
 object is not malicious, the mere fact that the effect is 
 injurious does not make the agreement either illegal or 
 actionable, and therefore it is not indictable" {Curran v. 
 Treleavan, 1898, 2 O. B. 563).
 
 PRESENT AND FUTURE OF TRADE UNIONS 31 
 
 The legal importance of " motive " arises only from its 
 being evidence of a conspiracy to injure, and it is in cases 
 of that sort only — at any rate, since Allen v. Flood — that 
 the question where to draw the "line " has been considered. 
 Such discussion would be in the future for the most part 
 unnecessary if our suggested alteration in the present law 
 of conspiracy be adopted (see p. 39). Apart from 
 conspiracy, the recommendation of the commissioners 
 (except Sir W. Lewis), if adopted, would meet the case, 
 viz. to legislate that an individual shall not be liable for 
 doing any act not in itself an actionable tort, only on the 
 ground that it is an interference with another person's 
 trade, business, or employment — i.e. " boycotting " in any 
 shape would not be illegal, but defamation would, as at 
 present. It must be noted that this suggestion is not 
 confined to trade disputes. As will be seen (p. 35), s. 1 
 in Sir C. Dilke's Bill provides to the same effect in trade 
 disputes only, but in a more objectionable form. 
 
 II. Interference with Contracts. 
 
 (a) Existing Contracts, 
 {b) Contemplated Contracts. 
 
 (a) It must now be regarded as settled law that to 
 procure the breach of a contractual relation is generally a 
 tort, entitling the person injured by the breach to maintain 
 an action against the person whose conduct brought it 
 about. 
 
 The well-known case of Lumley v. Gye (2 E. and B. 
 216) in 1853 has been followed by the House of Lords in 
 the Glamorgan Coal Co. v. The South Wales Miners' 
 Federation (1905, A. C. 239), known as the " Stop- 1 
 case. It is true that the proposition just set forth is 
 followed by some such qualifying words as "without legal 
 excuse," or "unless there be justification for interference/'
 
 -,2 PRESENT AND FUTURE OF TRADE UNIONS 
 
 and so forth ; but the Glamorgan case shows that a bona 
 fide belief on the part of the officials of a trade union that 
 the exact performance of the terms of a contract would be 
 prejudicial to the best interests of both parties is no 
 justification for procuring the breach thereof. For in this 
 case it was found that the trade union and its officials 
 acted honestly, without malice or ill-will toward the em- 
 ployers, and with the sole object of keeping up the price 
 of coal, by which wages were regulated, yet this was 
 held to be no legal justification for interference with the 
 contract between employers and employed. 
 
 Now, whatever opinions may be held on the morality 
 or the law as to inducing persons to break contracts, no one 
 has ever suggested, throughout the whole of what may be 
 called the trade union controversy, that the actual breaker 
 of a contract should not be liable for his breach ; no 
 hint of anything to the contrary has been heard. It must 
 be remembered, then, that the sanctity of actual contract 
 is not in question. And it is amply protected by law. 
 But different considerations come into play as to the 
 immorality or illegality of inducing or procuring a party to 
 a contract to break it. In the first place, it is one of the 
 commonplace facts of life that every human being at 
 some time or other demands or requires guidance and 
 counsel. Men and women, even of mature age, vary much 
 in the qualities of character, and notably in judgment, 
 discernment, knowledge, and foresight. Hence nature 
 and society have provided many classes of advisers and 
 guardians. The propriety or expediency of breaking a 
 contract is but a special case of the infinite occasions on 
 which one person may consult another or be warned by 
 another. Instances at the two extremes are readily con- 
 ceivable. It is sometimes a positive duty for a father to 
 bring the greatest possible pressure he can command upon 
 a daughter to renounce an undesirable marriage engage- 
 ment into which she has solemnly entered, or for a doctor
 
 PRESENT AXD FUTURE OF TRADE UXIOXS 33 
 
 peremptorily to forbid a patient to continue a contract as 
 he values his health or life — in both cases, to the serious 
 detriment, it may be, of the other party to the contract. 
 Or again, a solicitor may advise a client that it will pay him 
 better to throw up a contract. At the other end of the 
 line is the greedy adventurer who, to fill his own pockets, 
 seduces by a bribe a valuable servant from his employer, 
 or procures the divulging of a secret which others had 
 covenanted between themselves to keep. Between these 
 extreme cases there are intermediate innumerable others 
 in which the morality or the law is more doubtful, and 
 among these will be found the normal case in which trade 
 union operations include an inducement to break contracts. 
 No one will deny that the ordinary trade unionist 
 workman is a person who is likely to be often in need of 
 advice in trade matters affecting, generally, his fellows as 
 well as himself, but sometimes himself alone: he may 
 often be in doubt both as to law and as to policy, and 
 that he should pay a weekly or monthly subscription 
 to secure, among other benefits, the opinion of those with 
 more experience than he has, or to get the advantage of 
 the common funds to ensure legal aid, is not surprising. 
 That there must be a correlative duty to afford the assist- 
 ance required in each instance, or to proffer it where 
 there is a general duty to watch over and to protect 
 the interests of a given trade group, especially where 
 that is the very rats on d'etre of the institution, must 
 be obvious. In the memorable Stop-Day case it was 
 never doubted that the wholesale breaches of contract 
 had been genuinely prompted by a desire to put more 
 money into the pockets of both employers and employed, 
 and the bona fides of the counselling union was not im- 
 pugned. Assuming the perfect honesty of all concerned, 
 it is difficult to see why the father and the doctor, or 
 the solicitor, in the illustrations above made — which, by 
 the way, were pressed on the court in this case — should go 
 
 C
 
 34 PRESENT AND FUTURE OF TRADE UNIONS 
 
 scot free while the union in this case was heavily mulcted. 
 It is, indeed, true that the "jilting" daughter and the 
 manager who suddenly throws up his appointment are 
 liable in damages at the suit of the respective persons dis- 
 appointed, and so were the Welsh miners under the 
 Employers and Workmen Act, 1875. If it be urged in 
 the latter case that the offenders were probably "men of 
 straw," it must be remembered that their employers knew 
 this perfectly well when they took them " on," and there is 
 no reason why an employer of labour who contracts with 
 poor men who are members of a union should be in a 
 better legal position than one who employs those who are 
 not, or, generally, than the mass of people who contract 
 with persons who could not pay substantial damages. If 
 it be said that in this and other cases it was the union that 
 instigated the men to break their contracts (though, in 
 the Glamorgan case this is probably not the fact), and so 
 deserves to be "hit," we hope that we have later (p. 40) 
 given some reasons why, in law, no distinction should be 
 made between a union and its members. 
 
 And, generally, the liability of individuals who counsel 
 the breaking of contracts tends to weaken the sense of 
 responsibility of the actual contractor, which, as we have 
 pointed out, ought to remain absolutely unimpaired. 
 
 The Majority Report of the Royal Commission, 
 however, recommends that the law should declare that 
 "to persuade to strike, i.e. to desist from working, apart 
 from procuring breach of contract, is not illegal." 
 
 It is obvious that if total immunity of trade union 
 funds is enacted, it is a matter of indifference to unions 
 whether inducing to break a contract remains illegal or 
 not. Moreover, with or without total immunity, the law 
 of agency could be so altered as practically to exempt union 
 funds from this liability. 
 
 (It may be added that, historically, this legal principle 
 originally applied only to contracts between masters and
 
 PRESENT AND FUTURE OF TRADE UNIONS 3; 
 
 servants, and that so late as Liimley v. Gye, Coleridge, 
 J., argued in a most able judgment that it was still 
 confined to them. If that argument was correct, this form 
 of liability may be traced directly to the kind of legislation 
 of which the Statutes of Labourers (1349, 1 35 1) are the 
 best known examples, by which labourers were regarded 
 as serfs and chattels.) 
 
 It may be also argued that, as the law on this point 
 is now settled to be general, there is no reason for altering 
 it specially in favour of unions. Contracts of labour are 
 generally for a short term, and tend to be for shorter. 
 
 The Bill of this session (1906), brought in by Sir 
 Charles Dilke and Mr. Keir Hardie, provides, s. 1 — • 
 
 " Where an act is done in contemplation or furtherance 
 of a trade dispute, the person doing the act shall not be 
 liable to an action on the ground that by that act he 
 interfered, or intended to interfere, either with the exercise 
 by another person of his right to carry on his business, 
 or with the establishment or continuance of contractual 
 relations between other persons : Provided that nothing 
 in this section shall exempt such person from liability on 
 any other ground." We cannot think that this is skilfully- 
 drawn. We make suggestions on these points (pp. 63, 64). 
 
 (b) Contemplated Contracts. 
 
 Here the legal position is quite different, just as in 
 practice it is a very different matter to induce a man to 
 break a contract in existence from inducing him not to 
 enter into one. The point usually arises in a trade dispute 
 when, a strike having been declared or contemplated, 
 members of unions, frequently pickets, endeavour (1) to 
 induce men still at work or determined to remain at work 
 not to "take on" another job at the expiry of the present 
 one ; (2) to induce men brought to the spot in con- 
 templation of entering into a contract forthwith not to
 
 y6 PRESENT AND FUTURE OF TRADE UNIONS 
 
 enter into such contract ; (3) to induce others besides 
 servants, e.g. customers or persons usually doing business 
 with the employer, not to deal with him ; (4) to induce the 
 workpeople of such customers and traders not to enter into 
 fresh contracts after the expiry of the present contract 
 with their respective employers. 
 
 It may be said at once that the only inducing here 
 considered is that which is lawful : it is conveniently 
 spoken of as " peaceable persuasion." We prefer the ex- 
 pression " by means not criminal." Any other form is 
 sternly repressed by law : see on this, p. 49. 
 
 As to these four categories of persuasion, there seems 
 to be no difference of principle between them. If it be 
 moral and legal to induce any one to espouse your cause, 
 it cannot be the reverse because the person induced has 
 no individual interest in the quarrel. And the law has 
 always (despite a few aberrations in individual judgments) 
 recognised a very broad distinction between inducing to 
 break actual existing contracts and inducing to prevent 
 contracts coming into existence. To quote only the classic 
 passage in Lord Herschell's judgment in Allen v. Flood 
 (1898, A. C. pp. 1 20-1) : "In Temper ton v. Rnssell the 
 further step was taken by the majority of the Court . . . 
 of asserting that it was immaterial that the act induced 
 was not the breach of a contract, but only the not entering 
 into a contract, provided that the motive of desiring to 
 injure the plaintiff, or to benefit the defendant at the 
 expense of the plaintiff, was present. It seems to have 
 been regarded as only a small step from the one decision 
 to the other, and it was said that there seemed to be no 
 good reason why, if an action lay for maliciously inducing 
 a breach of contract, it should not equally lie for mali- 
 ciously inducing a person not to enter into a contract. 
 So far from thinking it a small step from the one decision 
 to the other, I think there is a chasm between them. The 
 reason for a distinction between the two cases appears to
 
 PRESENT AND FUTURE OF TRADE UNIONS 37 
 
 mc to be this : that in the one case the act procured was 
 the violation of a legal right, for which the person doing 
 the act which injured the plaintiff could be sued as well 
 as the person who procured it, whilst in the other case no 
 legal right was violated by the person who did the act 
 from which the plaintiff suffered : he would not be liable 
 to be sued in respect of the act done, whilst the person 
 who induced him to do the act would be liable to an 
 action" — a reductio ad absurdum . 
 
 This is undoubtedly the law, and we are not aware of 
 any case in which any individual alone has been cast in 
 damages for inducing some one not to enter into a con- 
 tract. There are many where verdicts have been obtained 
 against conspirators who have combined to do this, and 
 such inducements have been taken to be evidence of the 
 existence and the spirit of such conspiracy, but this is an 
 incident of the law of conspiracy and not of the ordinary 
 law of contract. As to the law of conspiracy, sec p. 39, 
 and as to the special interference of pickets, see p. 49. 
 
 Believing the law to be as stated by Lord Herschell, it 
 seems superfluous to argue in favour of it. But it may be 
 mentioned that the logical justification for such law is the 
 general right, so freely used in political canvass, of one 
 citizen to endeavour to convince another of the justice of 
 some propaganda he has at heart. Wc need not add that 
 this liberty is one of the chief factors in our national history. 
 
 Our view is in part advocated in recommendation of 
 the Report (p. 34), for " to persuade to strike " is at least 
 inducing workmen not to renew existing contracts with 
 masters. 
 
 If the general principles we have here touched upon 
 are sound, there can be no reason for legislating differ- 
 ently for each of the four categories (pp. 35, 36), though, at 
 first sight, the legal position of a person trading with the 
 employer aimed at is very different from that of a party 
 to the actual quarrel. But so long as peaceful persuasion 
 
 405925
 
 38 PRESENT AND FUTURE OF TRADE UNIONS 
 
 is recognised as the right of every citizen, the individual 
 on whom pressure is brought to bear must be left to his 
 own estimate of his interests, to his own strength of will, 
 and to his own sense of justice, to resist any proposals of 
 which he does not approve. And it may be pointed out 
 that it is certainly more to his advantage to receive 
 authoritative notification of a contemplated strike — i.e. a 
 "sympathetic or secondary" strike, a term invented by 
 the Commissioners — than to learn it for the first time, as 
 he certainly would, from the simultaneous resignations of 
 all his disaffected workmen. It is not necessary to point 
 out that the value of these secondary movements to 
 unionists is to stop supplies to the principal adversary. 
 We have seen that the Commissioners (Sir W. Lewis 
 dissenting) recommend the express legalisation of per- 
 suasion to strike. Their previous recommendation is by 
 an Act to " declare strikes from whatever motive or for 
 whatever purposes (including sympathetic or secondary 
 strikes) apart from crime or breach of contract, legal, and 
 to make the Act of 1875 to extend to sympathetic or 
 secondary strikes." This we understand to mean that 
 secondary strikes are to be legalised, but to be subject to 
 the same restrictions under the Act of 1875, as other 
 strikes, e.g. the limitations as to picketing would apply. 
 
 It ought to be made clear, especially in respect of 
 class 2, that legal persuasion, if any is illegal, includes 
 offers of money, hospitality, etc., to the person persuaded. 
 Not only would such help generally be the barest justice 
 to a workman away from home, and, ex hypethesi, throwing 
 up a job, who would otherwise probably be destitute, but if 
 it is once admitted that the struggle for the adhesion of the 
 imported workpeople is to be left to be fought out between 
 the unions and the masters, i.e. often between master's 
 unions and men's unions, then there seems to be no reason 
 why the power of the purse should be assisted by that of 
 the law on one side or the other ; the workman must
 
 PRESENT AND FUTURE OF TRADE UNIONS 39 
 
 judge to which side it is more worth his while to belong, 
 and must be effectually supported by the law whatever his 
 resolve may be. 
 
 Suggested Amendment. 
 
 At the same time, there would be much less scope 
 for alleged misunderstanding, if every employer who, in 
 view of a strike, imported new workmen into his "shop," 
 was bound by law to disclose to each of them that in 
 fact a strike prevailed or was about to prevail there, 
 under penalty, on failure to do so, of being disabled from 
 taking any proceedings against any such workman for 
 breaking his contract (within two days of the beginning of 
 the service), and of having to pay him damages for loss 
 of time, fare, etc. This is but the correlative of what is 
 proposed below (p. 58) by way of restrictions on pickets. 
 Some such rule would enable the workman, if he chose, to 
 ascertain the merits of the dispute before he accepted 
 employment, and would prevent his alleging later that, 
 had he known the facts, he would never have come (see 
 the cases on picketing, p. 50). However, with the present 
 facilities for communication through the press and the 
 telegraph, it is increasingly difficult for workmen to remain 
 ignorant of industrial disturbances : this, however, applies 
 with much less force to foreign countries. 
 
 III. Conspiracy to Injure. 
 
 In the Tajf Vale Case, and in practically all cases 
 where a union has been mulcted in damages, it has 
 always been "hit" in an action for conspiracy to injure, 
 both the conspiracy and the injury being found as facts. 
 Accordingly, the Trade Disputes Bill proposes to enact as 
 an " Amendment of Law of Conspiracy " as follows (s. 2) : — 
 
 "An agreement or combination by two or more persons 
 to do or procure to be done any act in contemplation and
 
 4 o PRESENT AND FUTURE OF TRADE UNIONS 
 
 furtherance of a trade dispute shall not be ground for an 
 action, if such act when committed by one person would 
 not be ground for an action." 
 
 (This reappears almost verbatim as s. 2 in Sir Charles 
 Dilke's and Mr. Keir-Hardie's Bill, 1906.) 
 
 It will at once be noticed that this section keeps alive 
 the action for conspiracy when there is a conspiracy to do 
 something which would be wrongful on the part of one 
 person. Applying this to a trade dispute — to take again 
 as an illustration the extreme case already supposed — a 
 union official who successfully urged on any member to 
 destroy or injure property would still be liable civilly for 
 conspiracy, and so would any combination of members 
 inter se for any such acts. Assuming that total immu- 
 nity of union funds was the law, it would not affect the 
 union whether it was " a person " within this section or not, 
 but, apparently, this section is not intended to include 
 unions at all. 
 
 But — whether total immunity be conceded or not — 
 even a wider suggestion than this may be made, viz. the 
 total abolition of the action for conspiracy to injure in 
 trade disputes. This would at once get rid of conspiracies 
 (1) between a union and individual members of it, (2) 
 between individual members of a union, (3) between in- 
 dividual members of a union and individual non-members, 
 (4) between unions and other unions, and (5) between 
 unions and individual non-members. 
 
 (1) It would, undoubtedly, be a real -relief to unions to 
 be made invulnerable to actions for conspiracy, and in the 
 case where it is alleged that they have conspired with 
 their own members, they are certainly confronted with a 
 legal fiction. For the law assumes that the union and its 
 members, or some of them, are different entities, whereas 
 in fact, they are not for many purposes. For instance, in 
 Giblaris Case (1896-7) — where a workman who had lost 
 employment through union officials giving notice to
 
 PRESENT AND FUTURE OF TRADE UNIONS 41 
 
 members that if they worked with him they would be 
 called out, brought an action for conspiracy against the 
 union and the two officials and recovered .£100 damages 
 — Lord Justice Vaughan Williams said, " If this had 
 been a case where the union men were refusing to work 
 with a man who had been expelled from the union 
 for disgraceful conduct, and in which the men were un- 
 willing to work with Giblan, it is quite possible that there 
 might have been a good defence ; but this is not such a 
 case. It is a case in which the union and its officers were 
 acting independently of the men " (1903, 2 K. B., at p. 617). 
 Lord Justice Romer mentions this fact (p. 619), but puts 
 the liability of the union on the ground of the two officials 
 being its agent ; Lord Justice Stirling puts it solely on this 
 ground. Ten years earlier (in Temperton v. Russell, 1893, 
 1 Q. B., at p. 731), Lord Justice Lopes had said, " It was 
 contended that the damage to the plaintiff" — who supplied 
 a firm with which a union was at variance, and whose 
 customers had been induced by the defendants to brcak 
 their contracts and not to enter into further contracts with 
 him by threats that if they did their workmen would be 
 called out — " must be considered as having arisen from 
 the spontaneous action of the individual workmen them- 
 selves. I cannot think that that view is maintainable. 
 We know something of the action of trade unions and 
 their officials. So far from the injury to the plaintiff 
 arising from the men acting of their own accord, I think it 
 is clear that, if it had not been for the fear of the trade 
 unions and of the consequences of breaking the compacts 
 which they had entered into as members of the union, 
 there would have been no question of the men withdrawing 
 from their employ." And Lord Lindley says, " A threat 
 to call men out given by a trade union official to an em- 
 ployer of men belonging to the union and willing to work 
 with him is a form of coercion, intimidation, molestation, or 
 annoyance to them and to him very difficult to resist, and,
 
 PRESENE AND FUTURE OF TRADE UNIONS 
 
 to say the least, requiring justification " (Qiunn v. Leat/.em, 
 1 90 1, A. C. 538). 
 
 These passages clearly imply that the law will come 
 between a union and its members ; in other words, it will 
 not identify them, but at the suit of third parties it will 
 enquire whether in effect the union, in any given circum- 
 stances, fairly represents its members' wishes or not, in 
 short, will pronounce upon its internal affairs. It may fairly 
 be argued that it treats no other body on this principle, and 
 that it does for non-members what it expressly prohibits — 
 except in so far as it will grant an injunction (p. 61) — 
 between members, viz. claims control over the internal affairs 
 of a union. For by s. 4 of the 1871 Act it is enacted : — 
 
 " Nothing in this Act shall enable any court to entertain 
 any legal proceeding instituted with the object of directly 
 enforcing, or recovering damages for the breach of, any 
 of the following agreements, namely — 
 
 " 1. Any agreement between members of a trade union 
 as such concerning the conditions on which any members 
 for the time being of such trade union shall or shall 
 not sell their goods, transact business,' employ or be 
 employed." 
 
 Thus the men assumed to be coerced into striking 
 have no remedy against the coercer, the union, but third 
 persons, injured by their action, have. 
 
 Moreover, this doctrine is invoked in defence of the 
 sanctity of contract (for in Temperton v. Russell the defen- 
 dants were expressly held liable on the ground of inducing 
 persons to break contracts). Yet, in the words of L.J. 
 Lopes, the strikers were in " fear of the trade unions and 
 of the consequences of breaking the compacts which they had 
 entered into as members of the union!' Why are these 
 compacts not to be observed ? Why should not those 
 who enter into them be afraid to break them ? It may 
 be said, if they are tired of their compact with the union 
 they can at once resign ; their freedom of action is amply
 
 PRESENT AND FUTURE OF TRADE UNIONS 43 
 
 protected by the law. It is true they may thereby lose 
 their vested interest (or what would be " vested " if the 
 law recognised it, which it does not, as s. 4 shows), but to 
 this they agree when they make the compact originally, *>. 
 when they join the union. As Lord Esher, M.R., says {ibid., 
 p. 724) : " The main condition upon which the members 
 of the union are to be entitled to the benefits of member- 
 ship is, that they will obey the directions given with 
 regard to certain trade matters by the persons authorised 
 by all of the members to give such directions. If they 
 do not they may be deprived of the benefits to which they 
 would otherwise have been entitled, or expelled from the 
 union. Therefore the members of the union have given 
 up their liberty of action in respect of certain matters, 
 in the sense that they have bound themselves by agreement 
 not to exercise it on pain of losing certain benefits," exactly 
 as members of a club or any other association do. Why 
 then, is it to be assumed that the group or person whom 
 the members have collectively chosen to represent them, 
 and to voice, as their phrase is, the feelings, do not correctly 
 reflect and represent their wishes at any given moment, or 
 — if the individual members have not given their attention 
 to the particular matter — why should they not willingly 
 acquiesce in their representatives' plan of action? And if 
 there be a division of opinion, why is not the will of the 
 majority to prevail as usual ? If the individual loses 
 prospective rights by seceding, he suffers only what he 
 must have been prepared for, since he associated himself 
 with his fellows. In short, differentiation between the 
 union and its members strikes straight at the principle 
 that the majority must govern. 
 
 (2) Conspiracy between Individual Members of a Union. 
 — If the action is abolished altogether in trade disputes, 
 this, of course, goes. S. 2 in the 1905 Bill (p. 39) is short 
 of this, but, from its very terms, makes such an action 
 unnecessary, for, under it, unless the individual can be
 
 44 PRESENT AND FUTURE OF TRADE UNIONS 
 
 "hit" singly, he cannot be hit at all. Now, the only 
 ground on which conspiracy has been defended as a cause 
 of action, where the solitary wrong-doer could not be 
 reached, is that numbers in themselves may in practice 
 constitute the offence, or materially change it — that a 
 difference in degree may be so great as to make a differ- 
 ence in kind. This theory was stated with great power by 
 Lord Brampton and Lord Lindley in Qitinn v. Leathern 
 (1901, A. C, at p. 530 and p. 538). " Much consideration," 
 says the former, "of the matter has led me to be convinced 
 that a number of actions and things not in themselves 
 actionable or unlawful if done separately without con- 
 spiracy may, with conspiracy, become dangerous and 
 alarming, just as a grain of gunpowder is harmless, but 
 a pound may be highly destructive, and the administration 
 of one grain of a particular drug may be most beneficial 
 as a medicine, but administered frequently and in larger 
 quantities with a view to harm may be fatal as a poison." 
 
 " It is said," said Lord Lindley, " that conduct which is 
 not actionable on the part of one person cannot be action- 
 able if it is that of several acting in concert. This may be 
 so where many do no more than one is supposed to do. 
 But numbers may annoy and coerce where one may not. 
 Annoyance and coercion by many may be so intolerable 
 as to become actionable, and produce a result which one 
 alone could not produce. I am aware of the difficulties 
 which surround the law of conspiracy both in its criminal 
 and civil aspects ; and older views have been greatly, and, 
 if I may say so, most beneficially modified by the dis- 
 cussions and decisions in America and this country." In 
 an American case " coercion by other means than violence 
 or threats of it, was held unlawful. In this country it is 
 now settled by the decision of this House in the Mogitl 
 Case that no action for a conspiracy lies against persons 
 who act in concert to damage another, and do damage 
 him, but who at the same time merely exercise their own
 
 PRESENT AND FUTURE OF TRADE UNIONS 45 
 
 rights, and who infringe no rights of other people. Allen 
 v. Flood emphasizes the same doctrine." 
 
 Now, it seems clear that these distinguished judges 
 here have in their minds a picture of the union acting with 
 all the force of their numbers — of thousands crushing a 
 handful of dissentients. But this is totally inconsistent 
 with the theory of the union as one, as an entity (p. 40), 
 and with the actual facts of a strike. Sir W. Lewis, by 
 the way, admits that non-unionist workmen are ten times 
 as numerous as unionist (p. 123). When a union acts as 
 an organism, i.e. through its limbs or agents, it does not 
 work by thousands, but by a few, and, in most cases — to 
 use the language of Lord Lindley— the " many do no 
 more than one is supposed to do." Against intimida- 
 tion or molestation of any sort, of any person obnoxious 
 to a union, the law affords ample protection and has 
 been, rightly, most severely administered, as we shall see. 
 Against social boycotting the law, of course, is powerless, 
 and it is difficult to see at what point numbers, as such, 
 begin to oppress. With or without concert the obnoxious 
 person, in times of excited feeling, is certain to be "sent to 
 Coventry," or otherwise visited by the displeasure of his 
 immediate neighbours, and, apart from social intercourse, 
 it is not easy to see what these " many " can do within the 
 law which one could not. Such cases, however, the present 
 law does reach. Whether it is worth while to retain the 
 action of conspiracy for small knots of unionists acting 
 in concert on the ground that they in combination can do 
 more damage to the boycotted person than each can do 
 separately, or than all acting simultaneously without 
 concert can do together, may be questioned. At any rate, 
 the Trade Disputes Bill does not alter the law of con- 
 spiracy where each conspirator can be reached singly ; 
 the usual incidents of concerted boycotting in a trade 
 dispute are the only ones which the present law docs 
 not reach in individuals, though in the state of feeling
 
 46 PRESENT AND FUTURE OF TRADE UNIONS 
 
 commonly engendered in trade disputes exactly the same 
 persons would probably be boycotted by exactly the 
 same persons, with or without concerted action. 
 
 (3) Conspiracy betiveen Individual Members and Non- 
 members. — We arc not aware of any actual case where 
 this kind of confederacy has been alleged. S. 2 of the 
 Bill would, of course, apply to it. In practice, such non- 
 members would almost certainly be members of other 
 unions, acting on an understanding with their union as 
 such. Legislation seems hardly required in this connection. 
 
 (4) and (5) seem, also, to be of no practical importance, 
 except in so far as has been mentioned under (3). Whether 
 one union could conspire with another — if conspiracy 
 remains in trade disputes — depends on the recognition of 
 a union as a legal " person." A union of unions is known, 
 but is itself a union : it is generally called a federation. 
 The law as to the conspiracy of individuals is, we hope, 
 sufficiently dealt with under (2). 
 
 Sir Godfrey Lushington, one of the Commissioners, 
 after an exhaustive review of the whole subject, comes to 
 the same conclusion as we do. He says — 
 
 " On a review of the whole matter, I am of opinion that no 
 ground exists of public policy or justice to private interests, 
 to make it necessary that in trade disputes conspiracy to 
 injure should continue to be a cause of action " (p. 90). 
 
 Sir W. T. Lewis, on the other hand, is satisfied with the 
 present state of the law (p. 131). 
 
 The majority Commissioners make a recommendation 
 intermediate between these views, viz. that it should be 
 enacted : " that an agreement or combination by two or 
 more persons to do, or procure to be done, any act in con- 
 templation or furtherance of a trade dispute, shall not be the 
 ground of a civil action unless the agreement or combina- 
 tion is indictable as a conspiracy, notwithstanding the terms 
 of the Conspiracy and Protection of Property Act, 1875." 
 
 In other words, there is to be no civil liability unless
 
 PRESENT AND FUTURE OF TRADE UNIONS 47 
 
 there is criminal liability. Thus, there would be an 
 invitation to every plaintiff successful in a civil court to 
 proceed to a criminal prosecution. And it would be the 
 province of the judge at the civil trial to rule whether the 
 case set up could found a good indictment. To make civil 
 liability depend on criminality is to encourage double pro- 
 ceedings and to make it very difficult for the judge at the 
 second trial to say the first was wrong. 
 
 Moreover, concurrent civil and criminal punishment is 
 little known to our law, and when it is, the usual order is 
 first the criminal then the civil trial. Jurists, however, 
 have proposed that such concurrent jurisdiction should be 
 extended ; it is normal in France. 
 
 As far back as 1891 Lord Coleridge (with the concur- 
 rence of a strong Court) said : " It is true where the object is 
 injury, if the injury is effected, an action will lie for the mali- 
 cious conspiracy which has effected it ; and, therefore, it may 
 be that such a conspiracy, if it could be proved in fact, would 
 be indictable" {Curran v. Treleaven, 1S91, 2 O. B. 563). 
 
 Criminal Law of Conspiracy. 
 
 At this point we may call attention to a passage in the 
 Commissioners' Report (p. 15) on the criminal law of con- 
 spiracy, though it is not strictly relevant to the question of 
 civil liability, with which we are mainly concerned. 
 
 Part of s. 3 in the Act of 1875 runs: "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 between employers and workmen shall Dot 
 be indictable as a conspiracy if such act committed by one- 
 person would not be punishable as a crime. . . ." 
 
 Now, in Quinn v. Leathern, Lord Lindrey said, " I cannot 
 myself sec that there was in this case any trade dispute 
 between employers and workmen within the meaning of 
 s. 3. I am not at present prepared to say that the officers
 
 4S PRESENT AND FUTURE OF TRADE UNIONS 
 
 of a trade union who create strife by calling out members 
 of the union working for an employer with whom none of 
 them have any dispute can invoke the benefit of this 
 section, even on an indictment for a conspiracy" (1901, A. C. 
 541). And Lord Macnaghtcn affirms the first of these 
 propositions. Further, the headnote to Quinn v. Leathern 
 says, " The words ' trade dispute between employers and 
 workmen' ins. 3 of the (1875) Act do not include a dispute 
 on trade union matters between workmen who are members 
 of a trade union and an employer of non-union workmen 
 who refuses to employ members of a trade union. Semblc, 
 the words are restricted to disputes between an employer 
 and his own workmen." 
 
 The Commissioners think that this interpretation of 
 s. 3 fails to give effect to the intention of Parliament in 
 1875, and apparently seek by recommendations 2 (p. 37) 
 and 4 (p. 31) to alter the effect of this part of the section. 
 With these recommendations we agree, but we see no reason 
 why the words of the section of 1875 should not be amended 
 in accordance with their view. This would be simpler. 
 
 Thus, as to conspiracy, the alternatives are — 
 
 (a) To leave the law of conspiracy as it stands at the 
 present moment. (It is admittedly in a very anomalous 
 state. Lord Lindley's statement (p. 44) could be corro- 
 borated by many judicial dicta. The law, by the way, is 
 almost exclusively applied to trade disputes and cases of 
 political league in Ireland.) 
 
 {{?) To abolish the action of conspiracy in trade disputes. 
 
 (c) To pass s. 2 of the Trade Disputes Bill. 
 
 (d) To adopt the Commissioners' (majority) recom- 
 mendations. 
 
 It must be repeated that, so far as unions are concerned, 
 the total immunity of their funds would make the loss of an 
 action of conspiracy a matter of indifference to them as such. 
 They might still, under s. 2, be legally capable of conspiracy 
 so as to render another party to the conspiracy liable.
 
 PRESENT AND FUTURE OF TRADE UNIONS 49 
 
 IV. Picketing. 
 
 The present law is contained in s. 7 of the Conspiracy 
 and Protection of Property Act, 1875, and runs — 
 
 " Every person who, with a view to compel any other 
 person to abstain from doing or to do any act which such 
 other person has a legal right to do or abstain from doing, 
 wrongfully and without legal authority, 
 
 " 1. Uses violence to or intimidates such other person 
 or his wife or children, or injures his property ; 
 or, 
 " 2. Persistently follows such other person about from 
 
 place to place ; or, 
 "3. Hides any tools, clothes, or other property owned 
 or used by such other person, or deprives him 
 of or hinders him in the use thereof ; or, 
 " 4. Watches or besets the house or other place where 
 such other person resides, or works, or carries 
 on business, or happens to be, or the approach 
 to such house or place ; or, 
 " 5. Follows such other person with two or more other 
 persons, in a disorderly manner, in or through 
 any street or road, 
 shall, on conviction thereof by a court of summary 
 jurisdiction, or on indictment as hereinafter mentioned, be 
 liable either to pay a penalty not exceeding twenty pounds, 
 or to be imprisoned for a term not exceeding three months, 
 with or without hard labour. 
 
 "Attending at or near the house or place where a person 
 resides, or works, or carries on business, or happens to 
 be, or the approach to such house or place, in order merely 
 to obtain or communicate information, shall not be deemed 
 a watching or besetting within the meaning of this section." 
 There has been a great variety of cases on this section, 
 illustrating the diversity of form which picketing in 
 practice takes. A few may be cited. 
 
 D
 
 5o PRESENT AND FUTURE OF TRADE UNIONS 
 
 111 1S87 a boot manufacturer's shop in Leeds was 
 picketed during a strike. Two men, "and no more," 
 paraded opposite the premises in turns of two hours each, 
 by order of the secretary of a union. It was proved that 
 these pickets " were themselves orderly and well behaved, 
 and did not personally interfere with the people going to 
 and from the " premises, " but that owing to their presence 
 a crowd of people, sometimes estimated at as many as from 
 four to five hundred, assembled in a disorderly manner in 
 the street near " the business, " rendering the entrance and 
 exit of workmen to and from such place of business more 
 difficult than under ordinary circumstances, and also render- 
 ing it necessary for the" manufacturer "to call in the aid 
 of the police from a well-grounded fear of personal violence 
 to such workmen from the assembled crowd" (Judge v. 
 Bennett, 52 J. P. 247). 
 
 Proceedings were taken not for the picketing, but on 
 account of a letter which the secretary had written to the 
 manager of the business, to the effect that if the demands 
 of the union were not complied with, the shop would be 
 picketed : " Your men and the society," it said, "think that 
 your action in sacking men because they are seen to speak 
 to me is such that ought not to be tolerated. Therefore 
 we wish to show you that others can have their way as 
 much as you can have yours. If you are agreeable to take 
 back all your hands, the matter is settled as far as we are 
 concerned. If not, then we shall fight it out to the end." 
 It was proved that this "excited fear in the mind" of the 
 lady proprietor, and the magistrates convicted of intimi- 
 dation. On an appeal, Mr. Justice Stephen suggested that 
 the letter ought to have stated that the picketing would be 
 lawful, and held that if the person threatened was "reason- 
 ably afraid," this was illegal intimidation. Mr. Justice 
 A. L. Smith thought that the orderliness of the pickets did 
 not prevent their conduct being an intimidation, and both 
 upheld the conviction. This may seem a harsh case. It
 
 PRESENT AND FUTURE OF TRADE UNIONS 51 
 
 was explained by Mr. Justice Mathcw as seeming " merely 
 to have decided that a threat to do something specifically 
 prohibited by the statute, if it, in fact, intimidates, is 
 intimidation " {Gibson v. Lazvsou, 1891, 2 O. B. D. 550). 
 There is no question as to the legality of informing an 
 employer that his men will be called out in a certain event 
 {Curran v. Treleaven, ibid., and Alie?i v. Flood). 
 
 Probably, however, Judge v. Bennett is overruled by 
 Curran and Treleaven, etc., for a headnote to these cases 
 (55 J- P- 485) states: "Workmen, members of a union, 
 complained of non-union men being employed by the same 
 master. A secretary of the union, on behalf of the union 
 men, gave notice to the employer that unless the non-union 
 men were discharged, the union men would strike on a 
 certain day. No violence or threat of violence, either to 
 person or property, was used. But the non-union men 
 had good reason to believe that they would get no other 
 employment if discharged, and the employer had reason- 
 able ground for expecting that violence would be used, and 
 that great injury from the strike would result to him, and 
 on that ground he dismissed the non-union men. Held, 
 that as there was no threat of violence, there was no in- 
 timidation within the meaning of s. 7, and that the mere 
 fact of the employer reasonably apprehending injury did 
 not make the notice of strike actionable or indictable or 
 criminal." This was the unanimous judgment of five judges, 
 including A. L. Smith, J., who had been a party to Judge v. 
 Bennett. The word "intimidate," said Lord Chief Justice 
 Coleridge, " is of everyday use, and must be construed in 
 each case according to circumstances," and he added that 
 "there was much to be said for the view entertained by 
 Mr. Justice Cave " (who was one of the five), " that intimi- 
 dation in this .Act must still be limited to threats of personal 
 violence." 
 
 Judge v. Bennett, then, is now only instructive of the 
 way magistrates may interpret the existing law of
 
 5 • PRESENT AND FUTURE OF TRADE UXIONS 
 
 picketing. The Commissioners, however, by their eighth 
 proposal, recommend as a substitute for sub-sections i and 
 4 (p. 49) : " acts in such a manner as to cause a reason- 
 able apprehension in the mind of any person that violence 
 will be used to him or his family or damage be done to his 
 property." This seems to us, in effect, to restore the law as 
 declared in Jmlgev. Harnett, and to be distinctly reactionary. 
 In Chamock v. Court (63 J. P. 456 ; 1899, 2 Ch. 38) "it 
 appeared that in January, 1899, a strike commenced at 
 Halifax amongst the journeymen carpenters there. In 
 order to fill the places of the strikers, the masters took 
 steps to import men from Belfast and other places. On 
 January 20, 1899, nine men were sent through an agent of 
 the masters by steamer from Belfast to Fleetwood, and 
 thence by rail to Halifax. On February 21 thirteen other 
 men were similarly sent, each of whom had signed an 
 undertaking to work for twelve months upon certain terms, 
 as a non-union man for the Masters' Union at Halifax. 
 On the arrival of the nine men at Halifax they were met 
 by the president of the men's union, who had some conver- 
 sation with them about the strike, the result being that 
 only two of the nine commenced work at Halifax. The 
 thirteen men sent from Belfast on February 21 were met 
 on the landing-stage at Fleetwood by emissaries of the 
 men's union, named Walker and Wadsworth, who spoke 
 to them about the strike, and informed them that if they 
 would go to other places than Halifax their expenses would 
 be paid and work found for them. Walker and Wads- 
 worth also gave some of the men railway tickets to other 
 places, and money for their night's lodging, such expenses 
 being defrayed out of funds provided for the purpose by 
 the secretary of the men's union. In consequence of this 
 interference of the men's union, only four out of the thirteen 
 workmen accepted work at Halifax." An injunction was 
 granted, at the suit of the masters' union, restraining cer- 
 tain representative members of the men's union from thus
 
 PRESENT AND FUTURE OF TRADE UNIONS 53 
 
 watching and besetting the places of arrival. Mr. Justice 
 Stirling thought that the attendance of Walker and Wads- 
 worth at Fleetwood was "compelling" the masters within 
 this section, and was not only to obtain or give informa- 
 tion. Inducing the men to go elsewhere was not permitted 
 by the section. Moreover, these two men " watched . . . 
 the place ..." where the workmen " happened to be." 
 
 In 1 890 there was a strike at Bolton. The works were 
 picketed by amongst others one Smith. Thomasson, a 
 " blackleg," came out, and was followed by a crowd of 
 three or four hundred people, who shouted " knobsticks " 
 and threw refuse. Smith followed Thomasson closely 
 through several streets, but did not speak to him. He 
 was fined for " persistently following." " It must be for 
 the justices," said Baron Pollock, "to say in any given 
 case whether the conduct of the defendant was in the 
 nature of intimidation. . . . As far as intention can be 
 inferred, we may look at what the people were doing at 
 the same time. All the circumstances show the general 
 object." "It is true," said Mr. Justice Hawkins, "the 
 appellant did not speak to the respondent, but still, his 
 conduct, taken along with the conduct of the crowd, 
 supplied abundant evidence that he was persistently 
 following" {Smith v. TJiomasson, 54 J. P. 596). 
 
 Of quite a different type of case is Lyons v. Wilkins. 
 In 1895 a trade union had ordered a strike against the 
 plaintiffs, partly in order to obtain an increase of wages, 
 and partly in order to put an end to the system of paying 
 some persons by piece-work and some by time. The 
 union picketed the plaintiffs' premises (60 J. P. 325). "The 
 pickets were furnished with cards. These cards were headed" 
 with the name of the union, and had on them, " Dear sir, 
 you are hereby requested to abstain from taking work from 
 Messrs. Lyons . . . pending a dispute. Members are also 
 requested to use their influence to keep non-society men, 
 stitchers and machinists, etc., from applying for work until
 
 54 PRESENT AND FUTURE OF TRADE UNIONS 
 
 the dispute is settled." The pickets accosted persons 
 entering and leaving the plaintiffs' premises, and gave 
 them some of the cards. On one occasion they opened 
 a bag carried by an errand boy who was taking goods to 
 the plaintiffs, and on one or two occasions followed persons 
 into the plaintiffs' works (1896, 1 Ch. 812). It was admitted 
 that the pickets used no violence or intimidation or threats. 
 The picketing lasted some months, during all working 
 hours, and was conducted by relays (1896, 1 Ch. 270). In 
 his judgment, North, J., said: "One of these statements 
 [by a picket] — a workman who had been discharged — 
 was ' Mr. Lyons has kept me stand cutting, and I have 
 been the worm that he has trod on, and now the worm 
 has turned round, and we will ruin the firm if they don't 
 give in to us.' . . . The pickets were employed by the 
 defendants to prevent persons from working for the 
 plaintiffs. . . . What passed in conversation between 
 persons employed as pickets and others is, in my opinion, 
 part of the res gestce, and is admissible in evidence, and 
 the defendants " — the secretary and a member of the 
 executive committee of the union — " cannot be held free 
 from responsibility for the acts of the pickets they em- 
 ployed." The only injunction granted, however, was to 
 prevent the defendants maliciously inducing or conspiring 
 to induce persons not to enter into the employ of the 
 plaintiffs (60 J. P. 325). The Court of Appeal confirmed 
 this decision : " It is easy to see," said Lindley, L.J., " how 
 under colour of attending " at or near a house in order 
 merely to obtain or communicate information " a great 
 deal may be done which is absolutely illegal. It would 
 be wrong to post people about a place of business or a 
 house under pretence of merely obtaining or communi- 
 cating information, if the object and effect were to compel 
 the person so picketed not to do that which he has a 
 perfect right to do, and it is because this proviso is often 
 abused and used for an illegal purpose that such disputes
 
 PRESENT AND FUTURE OF TRADE UNIONS 55 
 
 as these very often arise" (1896, 1 Ch. 825) ; and he held 
 that in this case the picketing had gone too far. Kay, L.J., 
 laid it down distinctly that it was illegal for pickets to try 
 and persuade workmen not to work for an employer (ibid. t 
 830). The Court extended the injunction to the same 
 kind of picketing of the shop of a sub-manufacturer who 
 supplied the plaintiffs. 
 
 Later there was a new development when this case 
 came on for final trial in 1897. The doctrine of" nuisance " 
 was imported. By that time Allen v. Flood had been 
 decided. The injunction against the picketing was made 
 perpetual, but that against inducing workmen not to enter 
 into contracts was not renewed. The Court of Appeal 
 did not disturb this decision ; they were not asked to, in 
 respect of the injunction refused, but Lindley, M.R., and 
 Chitty, L.J., added that "watching and besetting," which 
 was punishable under s. 7, was also a nuisance actionable 
 at common law, " because it was an annoyance of a serious 
 character and of a degree to interfere with the ordinary 
 comforts of life." Lord Lindley repeats this (Quinn v. 
 Leathern, 1901, A. C, at p. 541), " if damage results." L.J. 
 Vaughan Williams thought that the invitation to the men 
 to discontinue working for the master " as soon as they 
 lawfully may " was not outside the category of a com- 
 munication, and did not take it out of the legalising 
 proviso. But persuasion, even if not a nuisance, must not 
 take any other shape than that of communication ; but 
 even in such a shape it might be a nuisance, though he did 
 not think it was in this case. 
 
 Finally, in a case recently reported (Wallis & Co. \. 
 United French Polishers, etc., Times newspaper, November 
 28, 1905), there was a trade dispute between a firm 
 (Wallis's) and some workmen. The latter being dismissed, 
 their union picketed their premises with two or more men, 
 on whose hats were cards with the words " Tickets," and .1 
 statement that the firm's French polishers were "on strike
 
 56 PRESENT AND FUTURE OF TRADE UNIONS 
 
 against a reduction of \d. an hour in their wage." It was 
 admitted that they spoke to no one entering or leaving, 
 and did nothing else than patrol ; but the employers 
 said that what they did was a nuisance and annoyance to 
 them. An injunction was granted against their watching 
 or besetting, except in order to give or receive informa- 
 tion, and the Court of Appeal refused to disturb it. 
 
 In the light of these cases, especially of Walliss 
 case, it would seem that under the present law any form of 
 picketing whatever is illegal, if the employer can only 
 make out that it is a nuisance or an annoyance to him — a 
 view which he will naturally always be prone to take. 
 Peaceful patrolling is evidently not enough to protect the 
 pickets, and the merest word from a picket not strictly 
 of a narrative character, any utterance with a tinge of 
 argument or reproach, may be construed as an infringe- 
 ment of the proviso in s. 7 : even peaceable persuasion is 
 not within the grace of that enactment. It may be right 
 to discourage strikes ; at any rate, it is obvious that, if 
 they are legal, the law ought to be clear as to those 
 incidents without which they cannot be carried on. 
 
 We may now turn to the proposals of the 1905 Bill on 
 this head. S. 1 runs — 
 
 " It shall be lawful for any person or persons acting 
 either on their own behalf or on behalf of a trade union or 
 other association of individuals, registered or unregistered, 
 in contemplation of or during the continuance of any 
 trade dispute, to attend for ;any of the following purposes 
 at or near a house or place where a person resides or 
 works, or carries on his business, or happens to be — 
 
 "(1) for the purpose of peacefully obtaining or com- 
 municating information ; 
 
 " (2) for the purpose of peacefully persuading any 
 person to work or abstain from working." 
 
 In 1905 the Standing Committee on Law, etc., added 
 these words : " Provided that no person shall, after being 
 requested by any person annoyed by his conduct, or by
 
 PRESENT AND FUTURE OF TRADE UNIONS 57 
 
 any constable instructed by such person, to move away, so 
 act as wilfully to obstruct, insult, or annoy such person." 
 This addition seems to us to make picketing impossible. 
 
 This section reappears word for word in the Bill of Sir 
 Charles Dilke and Mr. Keir Hardie this session (1906). 
 
 First of all, it must be noticed that the proposed 
 sections deal only with trade disputes, whereas s. 7 of the 
 Act applies generally, is " not confined to trade disputes " 
 (Chitty, LJ. : 1891, 1 Ch. 272). It is not proposed in the 
 Bills otherwise to affect s. 7 which will thus afford, as it 
 always has been found to afford, ample protection from 
 menaces, violence, and any form of intimidation or nuisance. 
 Peaceful communication is already legal, so that the only 
 concession here sought is what is known as the right of 
 peaceful persuasion, which we prefer to call legal per- 
 suasion. Lord Lindley distinctly says, " person's may 
 be peaceably persuaded, provided the method employed 
 is not a nuisance to other people" (1899, 1 Ch. 268 and 
 269) — apparently he means under the general law, for 
 s. 7 certainly does not authorise even peaceable persuasion 
 by pickets. The same judge thought that, perhaps, in 
 Allen v. Flood there was nothing more than peaceable 
 persuasion (1901, A. C. 538) — whereas of Quinn v. Leathern 
 {ibid.) he says, "What may begin as peaceable persuasion 
 may easily become, and in trade union disputes generally 
 does become, peremptory ordering, with threats open or 
 covert of very unpleasant consequences to those who are 
 not persuaded." 
 
 It must be manifest then, that if the right of peaceable 
 persuasion can be granted with safety to the rights of 
 dissentients, it ought not to be denied to trade unionists 
 any more than it is to any one else in everyday life, and 
 notably in the matter of canvassing in political contro- 
 versies, where, too, feeling often runs high. The law has 
 certainly not erred on the side of leniency in dealing with 
 allegations against pickets, and if peaceable persuasion by 
 them is legalised, there need be no fear that it would not
 
 5S PRESENT AND FUTURE OF TRADE UNIONS 
 
 deal strongly with individuals who overstepped the proper 
 limits of orderly canvass. 
 
 Suggestion. 
 
 As an additional safeguard, we would suggest that (r) 
 the number of pickets should be limited in proportion to 
 the number of hands usually employed in the shop or works 
 (say, three per hundred, with a maximum of twenty) ; and 
 (2) that the names and addresses, certified by the union or 
 a branch, should be registered, with or without the payment 
 of a small fee, by a justice of the peace, on an application 
 to his clerk ; any other picket to be liable to a fine. We 
 believe that this would deepen the union's sense of re- 
 sponsibility in the conduct of a trade dispute, and ensure 
 the appointment of steady and trustworthy members as 
 pickets. There would certainly be fewer breaches of the 
 peace. 
 
 V. Black Lists. 
 
 "Black lists," said Lord Lindley (Quinu v. Leathern, 
 1 901, A. C, at p. 538), "are real instruments of coercion, as 
 every man whose name is on one soon discovers to his 
 cost." In that case damages had been given on account 
 of a list, published by the union, containing the names of 
 tradesmen who had dealings with the "boycotted" plaintiff", 
 and holding him and them up to odium {ibid., p. 518) ; one 
 was induced not to deal with him, whereupon his name 
 was removed. 
 
 Now, it is a curious fact that — so far as we know — 
 " black lists " published by workmen have always been held 
 actionable, whilst actions against masters for black lists or 
 their equivalent have always failed. 
 
 In Trollope's case (p. 11) damages were given the 
 employers for such a list in the form of a poster con- 
 taining the names and addresses of non-union men, and of 
 those who had not come out on strike ; the jury found that 
 the list was not published bona fide to protect the interests
 
 PRESENT AND FUTURE OF TRADE UNIONS 59 
 
 of the union, and that it injured the employers' firm, but 
 not the workmen, who were suing. 
 
 On the other hand, in 1892, Jenkinson, a workman, 
 brought an action against the president of a branch of 
 a union of master tailors which had put him on a black 
 list, "asking the master tailors of Great Britain not to 
 employ any of the men who were locked out from certain 
 tailoring firms in connection with " a recent strike. The 
 list had been circulated by agreement among members of 
 the branch not to employ members of the Amalgamated 
 Society of Journeymen Tailors until they acceded to the 
 masters' terms ; Jenkinson had in consequence been refused 
 work. His action was said to be "a novel form." But, 
 " in the absence of any desire to injure the plaintiff," said 
 Mr. Justice Matthew and Mr. Justice A. L. Smith, " no 
 action would lie." The Mogul Case was in point {Jenkinson 
 v. Meld, 8 T. L. R. 540). 
 
 In 1902 a workman appealed against a masters' union 
 in much the same circumstances as the last case (Bit/cock 
 v. St. Anne's Master Builders' Federation and others, 19 
 T. L. R. 27), except that Bulcock was actually in work at one 
 of the federated employers' : he was paid off and discharged. 
 The strike had taken place in 1900. Three judges held 
 that he could not recover on precisely the same grounds as 
 those in the last case. In this case, indeed, no " black list " 
 was made public, but one was evidently kept and used 
 against the plaintiff. 
 
 VI. Other Recommendations. 
 
 We must now deal with other recommendations of the 
 Commissioners. 
 
 (1) That an Act should declare "Trade Unions legal 
 associations." 
 
 It will be seen (p. 61; that this must be taken in con- 
 nection with recommendation 7. 
 
 If this recommendation means that for all purposes 
 whatever a union is to be a legal person, we have dealt with
 
 60 PRESENT AND FUTURE OF TRADE UNIONS 
 
 one large aspect of it (p. 12) in connection with the Taff 
 Vale case. Such an enactment would, of course, dispose 
 at once of the legislation of 187 1-6, which deliberately 
 proceeded on the theory of not legalising trade unions — 
 and that with the full consent, or rather at the earnest wish, 
 of the unionists (p. 7). There is no reason to suppose that 
 they have changed their attitude, except in so far as the 
 Bill of 1905 indicates their present desires. Perhaps the 
 chief legislative result of the theory of 187 1 was the much 
 discussed s. 4 of the Act, which runs — 
 
 " Nothing in this Act shall enable any court to enter- 
 tain any legal proceeding instituted with the object of 
 directly enforcing, or recovering damages for, the breach 
 of, any of the following agreements, namely — 
 
 " r. Any agreement between members of a trade union 
 as such, concerning the conditions on which any members 
 for the time being of such trade union shall or shall not 
 sell their goods, transact business, employ, or be employed : 
 
 " 2. Any agreement for the payment by any person of 
 any subscription or penalty to a trade union : 
 
 "3. Any agreement for the application of the funds of 
 a trade union : 
 
 " (a.) To provide benefits to members ; or, 
 
 " (J?.) To furnish contributions to any employer or work- 
 man not a member of such trade union, in consideration 
 of such employer or workman acting in conformity with 
 the rules or resolutions of such trade union ; or, 
 
 " (c.) To discharge any fine imposed upon any person 
 by sentence of a court of justice ; or, 
 
 " 4. Any agreement made between one trade union or 
 another ; or, 
 
 " 5. Any bond to secure the performance of any of the 
 above-mentioned agreements. 
 
 " But nothing in this section shall be deemed to con- 
 stitute any of the above-mentioned agreements unlawful." 
 
 Broadly, the effect of this section has been to pre- 
 vent the courts of law taking cognisance of the internal
 
 PRESENT AND FUTURE OF TRADE UNIONS 61 
 
 affairs of the union, thus driving members for the settle- 
 ment of such matters to whatever domestic tribunal they 
 may choose to set up. (Criminal offences against the com- 
 mon property are adequately dealt with by another section.) 
 
 But a series of decisions has made one important 
 exception to this rule, viz. that any member may in a 
 proper case obtain an injunction against the union to 
 prevent any application of its funds contrary to the rules, 
 e.g. for strike pay. In How dens Case (1905, A. C. 286) the 
 House of Lords decided that this section did not prohibit 
 any such injunction being granted. 
 
 It is obvious that actions for injunctions put a 
 dangerous weapon into the hands of any dissentient 
 member, who may be unfriendly to the policy of the 
 union, and who may be — as Howden admitted he was — 
 maintained in his action by the employers aimed at. 
 Such actions may clearly entail expense on the unions 
 which, even if they are successful, they cannot recover 
 (though they themselves sometimes encourage their 
 members to do acts for which these members would, if 
 sued to judgment, be unable to pay damages). 
 
 Now on this point the commissioners make a specific re- 
 commendation (7), which must be taken in connection with 
 their first (p. 59) ; it runs : that an act should be passed — 
 
 " 7. To provide that facultative powers be given to 
 trade unions, either (a) to become incorporated subject 
 to proper conditions, or (/>) to exclude the operation of 
 s. 4 of the Trade Union Act, 1S71, or of some one or 
 more of its sub-sections, so as to allow trade unions to 
 enter into enforceable agreements with other persons and 
 their own members." 
 
 This seems to us merely to indicate a method of 
 carrying out recommendation (1). Neither conclusion is 
 argued by the commissioners, though it may fairly be said 
 that the two opposite views of fundamental policy for unions 
 as discussed, passim in the Report, and specifically on 
 recommendation (7), it is said that it was urged " from no
 
 62 PRESENT AND FUTURE OF TRADE UNIONS 
 
 unfriendly point of view to trade unions that it would 
 be of great advantage that trade unions should be able 
 to enter into binding agreements with associations of 
 employers, and with their own members to enable them 
 to carry out their agreements." 
 
 The unions certainly do not take this view, and it 
 seems to us unreasonable to discuss reactionary legislation 
 at a moment when it is understood that the present 
 Government— as the late Parliament did— is endeavouring 
 to meet the views of unionists, as far as they can com- 
 patibly with their public duty. Many persons may feel 
 unable to go the length of total immunity of the funds, 
 but total legalisation is at the very antipodes of total 
 immunity. It only remains to add that if the action for 
 an injunction is considered a grievance, it could be 
 redressed by striking out the word "directly" in s. 4 
 (p. 6o), a point sometimes alluded to in judicial criticisms. 
 
 VII. Separation of Funds. 
 
 The Commissioners recommend legislation — 
 
 " To provide for the facultative separation of the 
 proper benefit funds of trade unions, such separation, if 
 effected, to carry immunity from these funds being taken 
 in execution." From this Sir Godfrey Lushington and 
 Sir Thomas Lewis, dissent. 
 
 The Bill of 1905 was amended in the Standing Com- 
 mittee by the addition to s. 2 of the words : — 
 
 " Provided always that no funds of a trade union allo- 
 cated solely for benevolent or charitable purposes shall be 
 made liable for damages for acts done in furtherance of trade 
 disputes only." The Bill of 1906 has no similar provision. 
 
 These proposals obviously fall short of total immunity. 
 As the Commissioners only propose to give the unions an 
 option, the suggestion is of little practical importance, for 
 it is certain that no union would avail itself of such a power. 
 The question was thoroughly discussed by the Commission 
 of 1869. The majority report, "We should have thought
 
 PRESENT AND FUTURE OF TRADE UNIONS 63 
 
 it desirable, had it been practicable, that the two kinds of 
 unions — the unions for benefit purposes and the unions for 
 trade purposes — should be kept quite separate " (Repcrt, 
 p. xxv.) ; and they proceed to suggest the separation of the 
 funds for the two distinct objects, but nothing came of the 
 suggestion. Messrs. T. Hughes and F. Harrison, however, 
 give very strong reasons against any such plan (pp. lx.-lxi.), 
 and to this the reader must be referred (see p. 5). 
 
 Conclusion. 
 
 We may now sum up the results of the foregoing dis- 
 cussion in the form of a list of suggestions which, we 
 believe, include the chief that have been put forward 
 by others as well as ourselves. Some of them are obviously 
 alternative. 
 
 1. Total immunity of trade-union funds from (a) actions 
 of tort, (b) all actions. 
 
 The words of s. 3 of the 1905 Bill, and of s. 3 of the 
 1906 Bill, imply immunity from all actions, without, 
 perhaps, intending to do so. 
 
 As to actions of tort, see p. 23. 
 
 2. To declare trade unions legal associations. 
 (Report.) See p. 59. 
 
 3. To abolish the law of conspiracy in trade disputes. 
 See p. 40. 
 
 4. No civil action of conspiracy in trade dispute where 
 no indictment would lie. 
 
 (Report.) See p. 46. 
 
 5. Trade dispute to include secondary or sympathetic 
 strikes, and not to be confined to an employer and his own 
 workmen. 
 
 See p. 38 and p. 48. 
 
 6. To define the law of Agency as applicable to Trade 
 Unions; authority only to be assumed in and derivable from 
 certain specified officials who must be registered. 
 
 See p. 18. 
 
 Alternatively the Union funds not to be liable for any 
 acts or defaults ultra vires the Rules and Regulations. 
 See p. 20. 
 
 7. Inducing or procuring breach of contracts whether
 
 (>\ PRESENT AND FUTURE OF TRADE UNIONS 
 
 in existence or contemplated (by means not criminal), in 
 view of a trade dispute to be legal. 
 Sec pp. 30-39. 
 
 8. (a) To limit the number of pickets in proportion to 
 the number of hands employed on the picketed premises ; 
 only registered pickets to be recognised. 
 
 Sec p. 58. 
 
 (£) Picketing, not to constitute watching or besetting 
 (within s. 7 of the Act of 1875), and not to be actionable 
 or indictable as a nuisance, provided the only objects 
 are : — 
 
 i. obtaining or giving information ; 
 ii. procuring (by means not criminal) any person to 
 cease from or to refuse to take work. 
 See p. 56. 
 
 9. Employers during or in contemplation of a trade 
 dispute engaging workmen, to disclose fact that there is 
 a trade dispute in progress or contemplated ; otherwise 
 such contracts to be voidable within a certain time, and 
 employer to be liable to expenses incurred. 
 
 See p. 39. 
 
 10. Individual or union not to be liable for doing any 
 act not in itself an actionable tort, only on the ground that 
 it is an interference with another person's will, trade, 
 business, or employment. 
 
 (Report, with additions.) See p. 31. 
 
 11. To amend s. 4 of the Act of 1871 so that agree- 
 ments therein mentioned shall not be directly or indirectly 
 enforceable by any Court. 
 
 See p. 62. 
 
 12. Unregistered unions to deposit with Registrar 
 names of persons in whom the union funds are vested. 
 
 See p. 12. 
 
 It is by no means clear how otherwise the funds of such 
 unions could be reached under a judgment. 
 
 In conclusion, we desire to remind the reader that we 
 only recommend such of these suggestions as we have 
 definitely advocated in the preceding pages. 
 
 1'Kl.NTED liV WILLIAM CLOWES AND SONS, LIMITED LONDON AND BECCLES.
 
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