S435 
 
 am
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 Trade Unions 
 
 AND THE LAW. 
 
 BY 
 
 WARWICK H. DRAPER, M.A. 
 
 (of Lincoln's inn, baebistbe-at-law). 
 
 A Paper read in March, 1906, to the Members of the Hampshire House 
 
 Social Club, by Hammersmith Mall, and the Peel Institute, 
 
 on Clerkenwell Qreen. 
 
 LONDON : 
 
 STEVENS AND SONS, LIMITED, 
 
 119 & 120, CHANCERY LANE, 
 
 ICato ^ublisl>ers. 
 
 1906. 
 
 PRICE SIXPENCE.
 
 
 TRADE UNIONS 
 
 AND THE LAW. 
 
 BY 
 
 WARWICK H. DRAPER, M.A., 
 
 OF LINCOLN'S INN, BARRISTER-AT-LA'^. 
 
 A Paper read in March, 1906, to the Members of the Hampshire House 
 
 Social Club, by Ham,mer smith Mall, and the Peel InstitxUe, 
 
 on Clerkenioell Green. 
 
 LONDON: 
 
 STEVENS AND SONS, LIMITED, 
 
 119 & 120, CHANCERY LANE, 
 
 Hafo ^ubltdljctd. 
 
 1906,
 
 NOTE. 
 
 This Paper was written in its entirety in the interval between 
 the issue of the Report of the Royal Commission on Trade 
 Disputes and Trade Combinations and the sharp debates in the 
 House of Commons on the 28th and 30th March on the 
 Government and Labour Party Trade Disputes Bills, which 
 will be found in an Appendix. 
 
 As an effort by way of " peaceful persuasion for the purpose 
 of peacefully obtaining or communicating information," it 
 evoked a keen exchange of diverse opinions among those, both 
 unionists and non-unionists, for whom it was primarily pre- 
 pared. They spontaneously asked that it might be printed, 
 and I venture to have this done as a contribution to the public 
 discussion of the questions involved. 
 
 I write this fore-note on the morning after listening to the 
 former of the debates above referred to, and I feel sure, if I 
 may respectfully say so, that many members may have given 
 pledges on the subject, no doubt honestly, but without ftill 
 consideration of what is involved. 
 
 The Labour Party will insist on seeing the question thrashed 
 out, but they ought to recognize the fact that the important 
 thing is not whether the " Taff Vale" decision altered the 
 supposed law, but whether it does or does not lay down what 
 social justice requires in accordance ^-ith both law and fair 
 play. 
 
 W. H. D. 
 
 12, New Square, Lincoln's Inn, 
 2'^th March, 1906.
 
 H3) 
 (oHS 
 
 G7]D7 
 
 TRADE UNIO^\S AND THE LAW. 
 
 (Marcli, 1906.) 
 
 The increment of Labour Eepresentatives in the British 
 Parliament will, after all, remain the outstanding feature of 
 the General Election of 1906. There is a certain pathos in 
 the lament of the ancient nobleman who wrote to the 
 authoress of some patriotic ballads that he was too distressed 
 by the returns of the polls to read her verse, which he 
 accordingly returned ! The wonder is that the working men 
 of England, in their thousands, should have been so long in 
 giving full play to their franchise. 
 
 But impartial observers who during recent years have 
 watched the ill-reported deliberations of the annual Trade 
 Unions Congress, or have gauged the sagacity (or lack of it) 
 of some of the well-to-do and even aristocratic supporters of 
 the advanced Socialists, or, best experience of all, have come 
 into personal touch at working-men clubs and institutes with 
 men, unionist and non-unionist, to whom the aspirations and 
 needs of " Labour " are a daily reality, do not pretend to be 
 surprised at the new phase in politics. The native conser- 
 vatism of the British temperament may be relied upon to 
 prevent excess or extravagance in reform, but there is no 
 doubt that Trade Unionism, strongly organised and forceful 
 in fitting plans to ideas, will engage the attention of Parlia- 
 ment and the public in anxious debate for many a day to 
 come. That it cannot be otherwise must be admitted by 
 
 A 2 
 
 405945
 
 those wliose minds may be inclined, consciously or uncon- 
 sciously, against the combination of working men, but must 
 foci the cogency of such facts as that at the end of 1904 
 there were no less than 1,866,755 registered trade unionists 
 in the country (6'7 per cent, of whom were women and girls) 
 belonging to 1,148 unions, in spite of a declining membership 
 in the smaller unions ; that contributions per head averaged 
 33s. 5d. in 1904 ; that the income and expenditure had both 
 increased, the former to £2,097,470 and the latter to 
 £2,042,000, while the accumulated funds stood in 1904 
 at £4,616,230, almost at £4 2.s. per member, or more than 
 twice as much as in 1895. It is noteworthy that there has 
 of recent years been a distinct increase in the groups of 
 employes of public authorities and of shop assistants. 
 
 The Board of Trade has sho-^Ti the following proportions 
 of every £1 spent during 1904 on the objects of the 100 
 principal trade unions, viz. : — 
 
 s. d. 
 
 (a) Unemployed benefit . . .64 
 
 (b) Disputes . . . . .13 
 
 (c) Sickness, superannuation, &c. . 8 4 
 
 (d) Working expenses . . .41 
 
 It is not unimportant to note that this amount spent on 
 disputes was less than one-fifth of that spent in 1897, prior 
 to the legal decisions of which the cause of Trade Unionism 
 chiefly complains. 
 
 The unions actually affiliated with the Labour Representa- 
 tion Committee have a combined membership of over 900,000, 
 each member paying a shilling a year towards its funds. 
 This striking party fund, the development of which many 
 working men even would welcome in lieu of general payment 
 of members of Parliament, with its attendant risks, has gone 
 far to send more than 50 Labour candidates to the hustings, 
 and to seeui-e the return of 60 per cent, of them. 
 
 That this state of things shoidd not be otherwise in modem 
 industrial England is probably felt even by those friends of
 
 progress who are sensible enough to moderate their zeal by 
 judgment and to realize that, in almost every problem, there 
 are " two sides to the question." It is at any rate of the 
 utmost importance that a right and open spirit should be 
 inculcated for the discussion of these questions. The hearing 
 of a trade dispute in the Law Coiu'ts, " not unnaturally " as 
 the scoffer is likely to say, discovers much anger and som* 
 unreasonableness ; contemptuous treatment by employers, 
 often the salaried managers of a limited company, is too 
 frequently contrasted with the foolish obstinacy of the men, 
 connived at, if not fostered, by their leaders. Just as, none 
 too soon, many large firms and corporations employing labour 
 are making the friendliest efforts to emulate that interest in 
 the social welfare of their men which " masters " of guilds 
 and smaller industries exhibited in bygone days, so we have 
 travelled far from the need of saying with even Cobden, who 
 felt that Trade Unions were founded upon principles of 
 brutal tyranny and monopoly, " I woidd rather live under a 
 Dey of Algiers than a Trades Committee." Many an engineer 
 or carpenter can still unfortunately explain, in confidence to 
 a sympathetic inquirer, how hardly the pressure of the union 
 often works upon him, as, for instance, in the broken seasons 
 of the London building trade. But, upon the whole, most 
 reasonable people ^vill subscribe to the opinion given in 1896 
 by Lord Justice Lindley, that Trade Unions " are the only 
 means by which workmen can protect themselves from 
 tyranny on the part of those who employ them." It is only 
 fair to add his next sentence : " But the moment that 
 Trade Unions become tyrants in their turn, they are engines 
 for evil ; they have no right to prevent any man from work- 
 ing upon such terms as he chooses." It is surely obvious, 
 when a Judge of Lord Lindley's wisdom in human affairs, 
 aloofness from party politics and equitable frame of mind, 
 can speak of these opponent " tyrannies," that there is room 
 for more reasonableness and common sense, not only in the 
 settlement of trade disputes, but in the determination of the 
 spuit in which crowded modern industry shoidd be con-
 
 f) 
 
 (liictod. Ono could have no better waruiug than the short- 
 siglited dooision of the Trade Unions Congress at Leicester, 
 in lOOJJ, not to give evidence before the Trade Disputes 
 Royal Commission which has now at last issued its valuable 
 Report. The abstention of the men, apart from the oppor- 
 timity given to and taken by Sir W. T. Lewis in his power- 
 ful " minority report," must tend to offend that public 
 opinion on which tlioy tliemselvcs rely for a reformation of 
 the law, none the less because they chose, with poor reason, 
 to believe that the Members of the Commission were of a 
 hostile disposition. The results rather show it to have been 
 a most liberal minded Commission for the late Tory Govern- 
 ment to have appointed. 
 
 It is the issue of this Royal Commission's Report which, 
 in spite of the grumblers who deride such documents and 
 themselves do naught but talk, serves to show tlie magnitude 
 and the imminence of a struggle which the Labour Party 
 will insist upon. Parliament very soon may once again, and 
 under new conditions, be debating a Trade Disputes Bill 
 presented by Mr. Hudson and backed by Mr. Shackleton and 
 other leaders of the Labour Party. ^ Just as so many of the 
 community, as employers or employed, manufacturers or 
 purchasers, were ignorant or affected to be ignorant of the 
 awakening of the Labour Party, so it is remarkable with 
 what confused and timid thinking the essentials of this great 
 question are approached. The " specialization " of society 
 has reached such a pitch that, from many points of view, 
 every group among the professions and trades is a kind of 
 Trade Union. Barristers and doctors in reality rely upon 
 the concept of a " trade combination" just as much as miners 
 and weavers, although their forms and rules may not be, and, 
 as the less favoured working man complains, do not require 
 to be, so closely scrutinized or so jealously regarded. Partly 
 by the sui'vival of customs and partly by reason of the 
 
 ' Since the above was written this Bill has passed its second reading by 
 the enormous majority of 416 to 65 as a result of pledges given to electors.
 
 natural results of competition for life's advantages, the fact 
 is, fortunately or unfortunately for the rest of the community, 
 that a few men become eminent in each trade and, one may 
 also say, a few trades (or " professions ") become eminent 
 among others. But new political conceptions which have 
 arisen since the days of Benthamism recognise that such 
 competition among mankind should at least be so altruistic 
 as to observe the dictates of that justice which regards the 
 rights of others. For example, public opinion is now gene- 
 rally sensible of the fact that the sale of labour is unlike the 
 sale of goods, or of the truth that an individual probably does 
 not know liis own interest or that of his class as well as the 
 trade society or even the whole community of which he is a 
 member. In the particular sphere in which this pamphlet is 
 a contribution to the solution of a burning question, these 
 conceptions gave rise to the Trade Union Acts of 1871 and 
 1876, which practically were based on the famous " minority 
 report" of the late Judge Hughes and of Mr. Frederic 
 Harrison. It is now urged by the Trade Unionists that the 
 spirit and intention of that legislation have been violated by 
 recent decisions of the Courts culminating in the " TafE Vale " 
 judgments of 1901 in the House of Lords, and the Bills 
 which the near future will bring before Parliament, like 
 Mr. Whittaker's Bill of 1905, seek to undo much of the 
 validity of those decisions. 
 
 It is, in the first place, most regrettable that the notion of 
 a deliberate " set " by the Courts against Trade Unions 
 should be fostered. It is in itself a breach of that mutually 
 tolerant spirit in which alone these momentous issues can be 
 decided. Mr. J. Eamsay Macdonald, the able Secretary of 
 the newly-christened Labour Party, ought, as a publicist of 
 growing repute, to know better than to speak of the "absurd 
 decision " of Mr, Justice Farwell, or to say that " the House 
 of Lords supported him in considering that there should be 
 one law for employers and another for combined workmen."^ 
 
 ^ " Independent Review," March, 1906,
 
 8 
 
 Suoli ill-consirlored phrases only alienate the regard of those 
 who wish well to his cause. The regi-et expressed by the 
 Parliamentary Committee of the Trade Union Congress at 
 Leicester in 1901} that "the Law Lords' decision . , . has 
 militated so injuriously against the funds and the position of 
 Trade Unions " is intelligible and correct ; and few should 
 quarrel with the declaration of Mr. W. B. Horridge (Secre- 
 tary of the National Union of Boot and Shoe Operatives), the 
 President for that year, that " he required no more from the 
 other side than that which he was prepared to give. He 
 wanted that they as organised Avorkers should stand on an 
 equality before the law with the emploj'ers of labour." This 
 temperate and irrefutable language contrasts well with the 
 dangerous doctrine expressed on the same occasion by Mr. 
 B. Cooper (Cigar Makers' Mutual Association) that " no 
 inteiTuption of the industrial development of the country 
 could be pleaded as a justification of the policy of restricting 
 the power of trade organisations." The last speaker was 
 better entitled to make his comment that '* the power of 
 attaching Trade Union funds Avas an unjust discrimination 
 between the federations of the employed and those of the 
 emj)loyers, the latter having no necessity for accumidated 
 funds." 
 
 The truth is that the organisation of labour has come with 
 such a rush during the last thirty years in France, Belgium, 
 Germany, and Switzerland, and in our own colonies even 
 more rapidly than in England, that the old antithesis between 
 " self-help " and " self-defence " has assumed new propor- 
 tions. In this lies the explanation of the batch of important 
 cases which the English Courts have been called upon to 
 decide. The common law, as modified by the several statutes 
 already mentioned, had existed for a number of 3'ears before 
 the most serious litigation began, and except for a few inter- 
 mittent cases, ^ it would seem that, consciously or uncon- 
 
 ' See the Appendix to Sir Godfrey Liishington's Eeport at p. 95 of the 
 1906 Report on Trade Disputes, which costs only Is. Id.
 
 9 
 
 sciously, everybody was resting on the Hegelian dictum that 
 " true freedom is only found within legal restrictions." But 
 at last the famous " Mogul " case inaugurated the struggle 
 which has familiarised public opinion with such terms as 
 " combinations in restraint of trade," " watching and beset- 
 ting," and " corporate liability for damages." It is this 
 struggle which has given the Labour Party its great oppor- 
 tunity, but there is no reason why Mr. J. R. Macdonald 
 should seek to suggest that " the attack upon Trade Unionism 
 through the Law Courts " came from its antagonists. The 
 whole affair is but a phase of the struggle between 
 " trustified " Capital and organised Labour, in which the 
 representatives of the latter, like the men in Mark Twain's 
 stor}' who, after thinking that for twenty j^ears they were in 
 prison, one morning walked out of the open door, have 
 awakened and stepped out to demand their alleged rights. 
 
 Before considering the recommendations of the Commis- 
 sioners and the demands of the Labour Party, it will be as 
 well briefly to recapitulate the legal decisions of which the 
 latter complain. The subject is a difficult one. The English 
 language appropriate to it is unfortunately prolific, and it 
 may be confessed that lawyers and Trade Unionists have vied 
 A^ith one another in ingenious attempts to twist the meaning 
 of its phrases. But without entering here into the history 
 of the modern emancipation of Trade Unions,^ an examination 
 of the judgments- and of the elaborate 1906 Report of the 
 Commissioners, seems to justify this summary of the recent 
 
 ' For which see works by Dr. Baemreither, Mr. Sidney Webb and 
 Mr. Geoffrey Drage. 
 
 - Even the most accurate and fullest " reports " of the trials cannot repro- 
 duce much of thfi spirit and many of the circumstances of these controversies. 
 It is, moreover, a pity that the jury system is calculated, in this respect, to 
 produce a panel, especially in the case of " Special juries," hkely to incline 
 more to employer than to employed. As any one working in the English 
 Law Courts knows, the subtle and even unconscious prejudices of class- 
 feeling are more apt to be at work in jurymen than in judges and lawyers, 
 whose whole training is calculated to suppress them .
 
 10 
 
 (ItMiMioiis w Itli rof^urd to the what is called " Trade Union 
 Couspinicy and Liability for iJamagos." 
 
 (A) Unfavourable to Trade Unions. 
 
 (i) A C(;nibiuatioii oi A., 13. uiid C. to damage X. in his 
 trade, and by means of intimidation or coercion (including 
 threats not only of bodily harm but also of serious annoyance 
 and damage) to induce the customers or servants of X. against 
 their will either to break their c(nitracts with him, or not to 
 deal with him, or not to continue in his employment, is, if it 
 results in damage to X., actionable. 
 
 This decision, in effect, declares that there is a legal duty 
 on A., B. and C. to refrain from intimidating or coercing X., 
 his customers or servants, so as to prevent him from carrying 
 on his own business in any la\\ful way he himself chooses. 
 
 (ii) If, without any legal justification, A. induces B. to 
 break a contract with X., who suffers damage in consequence, 
 or if A. by coercion or intimidation, or threats thereof, com- 
 pels B. to cease dealing with or staying in the employment 
 of X., who suffers damage in consequence, A. is liable to 
 an action by X., and this even if B., in ceasing to deal with 
 or serve X., does not break any contract with him. 
 
 (iii) A Trade Union may be sued in tort in its registered 
 name, with the consequence that Trade Union Funds will be 
 liable for any damages that may be awarded.^ 
 
 (B) Favourable to Trade Unions. 
 
 (iv) An act which does not in itself amount to a legal 
 injury, cannot be actionable merely because it is done with a 
 bad motive. 
 
 ' Lords Macnaghten and Lindley, in the " Taff Vale" case, further 
 expressed an unhesitoting opinion that any Trade Union, whether registered 
 or not, can l-c sued in tort by means of a representative action.
 
 11 
 
 (v) Acts done in concert by A. and B. solely for the 
 purpose of protecting and extending their trade and in- 
 creasing their profits, and which do not involve means in 
 themselves unlawful, are not actionable, even though such 
 acts cause damage to X. 
 
 These five propositions, which it is impossible to state 
 accurately in less technical language, appear upon reflection 
 unimpeachable to any mind which honestly examines aU 
 sides of the question. But so far as a problem so complex 
 can be simply stated, most of the members of the new 
 Labom- Party and many of the orthodox Liberals are pledged 
 strenuously to support a Bill, which, in extension of the prin- 
 ciple that Trade Unions are now legal associations, shall give 
 a statutory sanction to the above propositions (iv) and (v), 
 but shall invalidate the " judge-made " propositions (i), (ii) 
 and (iii). 
 
 In the first place it is to be regretted that so much alliision 
 is made, in a growling spirit, to "judge-made law." It will 
 be a bad and, as one believes, a distant day for England when 
 the community is justified in thinking that the judiciary, as 
 in some countries, is swayed by political or class bias. The 
 truth, obvious upon reflection, is that there can scarcely be a 
 single litigious relation between man and man in which the 
 common law or statiite law has not required some judicial 
 interpretation for the determination of the question between 
 them. For example, in whatever way the House of Lords 
 had decided their judgment in the Irish Trade Union case of 
 Quinn v. LeatJicin, their judgment would have amounted to 
 judicial legislation. The ingenuity of circumstances, as it 
 may be called, must always outdo the wit of a draftsman.^ 
 
 And in the second place, the union-leaders do their own 
 intelligence an injustice when they cry that "the Taff Yale 
 decision altered the law as to liability." It did nothing of 
 the kind. It removed an erroneous and hitherto untested 
 
 ' Workers will surely recognise the remarkably liberal interpretation given 
 by the judges, and rightly given, to the "Workmen's Compensation Act. 
 
 ... 9
 
 12 
 
 impression that the unions wero immune from any action at 
 
 law for tlio wrongs they miglit commit. Tlie qncstion was 
 strictly not one of liability hut of i)roco(]ure, a distinction not 
 of legal language but of substantial importance. And it is as 
 well to note tlmt Mr. U. Boll, M.P., whose union paid 
 £23,000 in lieu of himself being sent to prison, frankly stated 
 to the Congress in 1903 that " in the Taff Vale case the rules 
 (of the Union) were defied ; the rules were violated ; and if 
 the executive had adliered to the rules there would have been 
 no Taff Vale judgment ! " It has only to be added tliat 
 Lord Dunedin, Mr. Arthur Cohen, K.C., and Mr. Sidney 
 Webb, whose recent " majority report " leans favourably to 
 Trade Unionism, express themselves as satisfied that tlie law 
 laid down in tlie case involved no new principle and was not 
 inconsistent with the legislation of 1871. 
 
 Mr. Frederic Harrison, happily still with us to recall the 
 great and successful effort made by himself and his colleagues 
 of forty years ago ou behalf of Trade Unions, has just 
 vigorously protested that neither they nor Parliament 
 intended, in 1871 and afterwards, that the unions might be 
 sued and made liable in their collective funds for the m rongful 
 acts of their officers and agents ("The Speaker," 17th and 
 24th March, 1906). One is bound to admit that this view 
 seems to have been shared in by the late Lord Aberdare 
 (Mr. Bruce) when, in introducing the measm-e as Home 
 Secretary, he observed that the statute was not complete like 
 *' the Friendly Societies Act and the Joint Stock Companies 
 Acts and the like, by means of which uniform rules would be 
 framed for the formation, management, and dissolution of 
 these associations." He added that " all questions of crime 
 apart, the objects at which they (the unions) 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. The}- should rest 
 entirely on consent." There is much to be said for this as a 
 proposition of abstract justice, and one has more sympathy 
 with it than with the technical point taken on behalf of tlie
 
 Amalgamated Society of Railway Servants, viz., that such a 
 union is neither an individual nor a corporation nor a part- 
 nership, and that they may therefore take advantage of the 
 impossibility of suing and recovering damages from each of 
 many thousands of workmen. But the point is that the 
 Legislature in 1871, in legalizing Trade Unions, made them 
 legal entities with perpetual succession, able to act by agents 
 liable to penalties as well as their oJBficers, capable of holding- 
 property as their own, and invested with the character of a 
 party to appeals and proceedings. It is surely reasonable to 
 say that such capacity, in the absence of express enactment 
 to the contrary, involves the necessary correlative of liability 
 to the extent of its property for the acts and defaults of its 
 agents. If not, it means that the Legislature has authorized 
 the creation of numerous bodies of men capable of owning 
 great wealth and of acting, by agents, with absolutely no 
 responsibility for the wrongs that they may do to other 
 persons by the use of that wealth and the employment of 
 those agents. " They would be at liberty," as Mr. Justice 
 I^arwell continued, " to disseminate libels broadcast, or to 
 hire men to reproduce the rattening methods that disgraced 
 Sheffield thirty or forty years ago, and their victims would 
 have nothing to look to for damages but the pockets of the 
 individuals, usually men of small means, who acted as theii* 
 agents." It is not, indeed, a question of the rights of 
 members of a combination, but of the wrong done to persons 
 outside the combination. Even Mr. Harrison and his col- 
 leagues in 1867, in paragraph 4 of their report, said that 
 "It should be specially provided that, except so far as 
 combinations are exempted from criminal prosecution, nothing 
 should affect . . . the liability of every person to be sued at 
 law or in equity in respect of any damage which may have 
 been occasioned to any other person through the act or default 
 of the person so sued." Given the liability for individual 
 action, it follows that the combination should be liable for 
 concerted action, whether in the case of employers or 
 employed.
 
 14 
 
 Tho substance of thu matter is that the 'J'nulo Unions are 
 ill reality askiii}^ for an t'xoini)tion from the well-establislied 
 law relating to cons] )i racy and agency which no individuals 
 or association of individuals have ever aa yet seriously sought, 
 much less been allowc^d. It is, of course, true that in some 
 ways capitalist employers have too long had " the whip 
 liand " of their employes, but sympathy with the weaker 
 multitude should not lapse into a reckless encouragement of 
 extravagant demands. The social order of the whole com- 
 munity and the claims of the " employable unemployed " 
 require the scales to be nicely balanced. Even one of the 
 most advanced leaders of Trade Unionism, Mr. B. Tillett, 
 speaking at the Leicester Congress in 1003, is reported to 
 have said that he *' wanted men to recognise that the common 
 laAvs of the country were as good as they could expect them 
 to be, not to whimper and claim more advantage, but to stand 
 by the common laws of the coimtry, and let the individual 
 who infringed them take his risk and not be sheltered behind 
 his union." The same proposition was stated even more 
 tersely by Mr. Haldaue ^ when he said that for Trade Unions 
 to claim exemption from the general rule that a j)rineipal 
 who delegates part of his business must be held responsible 
 for the acts of his delegate, " would be to set up a claim of 
 privilege." 
 
 There is no doubt that a mistaken \'iew of a judicial 
 decision taken by four members of the Royal Commission on 
 Labour of 1894, is responsible for the erroneous notion that 
 Trade Unions, before the " Taff Vale " case, had enjoyed a 
 freedom from any interference by the Courts of law which 
 " was, after prolonged struggle and Parliamentary agitation, 
 conceded in 1871, and finally became law in 1876. Any 
 attempt," they added, "to revoke this hardly- won charter of 
 Trade Union freedom, or in any way to tamper with the 
 
 ' "Contemporary Review," March, 190o. Mr. Haldanc. Mr. Asquith, 
 Mr. Morlcy and Sir Edward Grey did not join in the excited voting for the 
 I^aboTir Party Bill on iVIarch 30th.
 
 15 
 
 voluntary character of their associations, would, in our 
 opinion, provoke the most embittered resistance from the 
 whole body of Trade Unionists, and would, we think, be 
 undesirable from erer// poi))f of rie/cJ' The assumption that 
 the exemption had been obtained by the legislation is quite 
 mistaken, and tlie misleading case {Te»iperfo)i v. BusseN) now 
 stands overruled. It seems impossible, on a calm and level- 
 headed examination of the Trade Union claim, and even in 
 sympathy with its intention, to discover that a grave injustice 
 would not be done to honest employers and a menace offered 
 to society if the concession of this claim were added to the 
 redress recently and very properly obtained by the toilers of 
 the land. The following statement by Lord Dunedin, Mr. 
 Arthur Cohen, K.C., and Mr. Sidney Webb is surely charac- 
 terised by a kind of final wisdom and common-sense 
 justice : — 
 
 "There is no rule of law so elementary, so univei'sal, or so indis- 
 l^ensable as the rule that a wrongdoer should be made to redress his 
 wrong. If Trade Unions were exempt from this liability they would 
 be the only exception, and it would then be right that that exception 
 should be removed. That vast and powerful institutions should be 
 permanently licensed to apply funds they possess to do wrong to 
 others, and by that wrong inflict upon them damage, perhaps to the 
 amount of many thousand pounds, and yet not be liable to make 
 redress out of those funds, would be a state of things opposed to the 
 very idea of law and order and justice. On what grounds can such a 
 claim be sui^ported? Trade Unions, which originally were looked 
 upon as illegal combinations, have made out their claim to enfran- 
 chisement and existence. But having done so they cannot put their 
 claims higher than to say that they are institutions which arc beneficial 
 to the couiuuuiity as a whole. But so are many other institutions — 
 banks, railways, insurance companies, and so on. It may have been 
 right to provide, as has been done, that the Courts shall not have 
 power directly to enforce agreements between Trade Unions and their 
 members in the same manner as they can in the case of shareholders 
 and policy-holders in the institutions above mentioned. But when 
 Trade Unions come in contact by reason of their own actions with 
 outsiders, and ex hypothesi wrong those outsiders, there can bo no 
 more reason that they should be beyond the reach of the law than any 
 other individual, partnersliip or institution. Such a claim has indeed
 
 10 
 
 ill former times been made by tlio Hpiritual us against the civil 
 authority, ami has been consistoiitly disullowcd. What was denied to 
 ri'ligiou ouf^lit not in our judgment U) be conceded to Trade Unionism." 
 
 It must, however, be at once recognised that it would be 
 a serious hardship, to say the least, on members of a union 
 paying into the massed funds ^v^th u view to sick-benefits, 
 pensions, and tlie like, that they should lose all at a blow by 
 reason of damages given for unlawful conspiracy in a dispute 
 of which they might not approve but were powerless to 
 prevent. In any union there are always some younger 
 members with no immediate interest in the " benefits," but 
 impatient of what they hold to be cowardice or over-caution. 
 It is curious that the " pro-union " members of the 1867 
 Commission were opposed to the suggested separation of 
 funds, on the ground that the maintenance of a fund devoted 
 entirely to trade disputes and purposes would increase the 
 temptation to strike. They then stated ^ (and Mr. Frederic 
 Harrison does not seem to have altered his opinion) that : — 
 
 " The truth is, that the trade objects and the benefit 
 objects are indissolubly connected, and neither could exist 
 
 without the other It (the separation of the funds) 
 
 would be an arbitrary interference with the liberty of asso- 
 ciation. If workmen are permitted to raise and expend 
 funds on several objects, it appears vexatious and puerile to 
 insist that these funds should give no mutual support where 
 the several purposes are all part of the original agreement." 
 
 Moreover, Mr. Ludlow, speaking with special competence 
 before the Labour Commission of 1894, as Chief Registrar 
 of Friendly Societit>s and Unions, and as one convinced that 
 trade protection is the primary legitimate function of Trade 
 Unions, observed as follows : — 
 
 " The compulsory separation of funds appears to me to be 
 contrar}' to the essential jiurpose of a Trade Union. People 
 must take that risk when they join them — that inasmuch as 
 
 ' Tiige 60 of the Report of the 1867 Commission.
 
 17 
 
 it exists, as I have stated, for the maintenance and improve- 
 ment of the condition of the worker, they must take the risk 
 of every individual benefit being made subordinate to that. 
 If they did not choose to take that risk, they ought not to 
 join the Trade Union." 
 
 The Majority Eeport of the 1903 Eoyal Commission, how- 
 ever, boldly recommends *' 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." Lord Danedin and Mr. Cohen, K.C., would 
 limit this separation to sick, accident, and superannuation 
 funds ; while Mr. Sidney Webb would add the out-of-work 
 fund, frankly making this benevolent fund available for 
 indirect militant purposes. All three contemplate elaborate 
 schemes of trust, limiting the purposes for which the moneys 
 might be applied. 
 
 It will at once be seen that, except for a certain moral check 
 on the members, this proposal will not operate to protect the 
 "benefits" or "pensions" unless the new statute enacts 
 immunity from execution as proposed. And before the 
 Legislatui'e would pass this, the same considerations of 
 " privilege " again arise as in the general claim for exemp- 
 tion from the law of Conspiracy. Moreover, as Sir Godfrey 
 Lushington forcibly points out in his separate report, " Thrift 
 is a good object ; but thrift conies after payment of just 
 debts, and certainly not least, debts incurred in consequence 
 of wrong-doing to others," and he reminds us that in the 
 case of an individual debtor all insurance policies pass to his 
 trustee in bankruptcy. lie also alludes to practical difficulties, 
 such as the absence of public audit and the non-separation in 
 the accounts of many Trade Unions of payments to members 
 who are out of work from slackness of trade and payments to 
 members who are out of work because of a strike. Sir "W. 
 Thomas Lewis, the representative employer sitting on the 
 Commission, goes so far as to say that " the Trade Unions 
 of workmen have always been opposed to the separation 
 suggested."
 
 is 
 
 It woultl coitalnly seem to Ravour too inurli of partiality to 
 tho cause of Trade Unionism to grant this particular form of 
 " facultative sf'j)aration." The Lost solution of a (lifficult 
 question might Ho in a statutory provision for such a separa- 
 tion of militiinf an<l non-niilitfiiit funds as would make the 
 former priuuiriiy lial»lc and tlif latter sffondarily liable for 
 execution for damages obtained for illegal strikes or picketing. 
 This arrangoniont woidd not constitute! any unwarrantable 
 immunity for the latter, while it would operate as a check 
 upon hasty strikes ; it would, of course, be absurd to suppose 
 that intending strikers could nicely calculate the damages in 
 which they might eventually be mulcted in the event of an 
 adverse result to litigation ; but the very fact of the quasi- 
 separation and the secondary liability might be expected to 
 have a salutary effect upon the mind of each member as well 
 as upon the common sense of the body. Industrial warfare, 
 like intemperate drinking, is not likely to cease for many a 
 long year, and the workers ought not to be robbed of the 
 advances they have made towards the attainment of equality 
 of fighting oppoiiunity with employers. But it is necessary 
 to avoid the creation of new and anomalous privileges and to 
 maintain any reasonable safeguards against injustice on 
 either side. By these means it will become more possible 
 to avoid " the arbitrament of piivate war " or strikes 
 for the settlement of industrial disputes. It ought not to be 
 admitted that in a civilized country no other solution is 
 possible for quarrels which arise on the one hand out of 
 *' sweating,'' and on the other out of damage caused by 
 restriction of output or of apprenticeship. The imagination 
 which is fired by the mere contemplation of these questions, 
 involving such larger social justice and the greater happiness 
 of so many thousand workers and their homes, may pause 
 but it cannot turn away from the attempt to determine 
 them. The one tiling which seems certain is that Trade 
 Unionism endangers its own future by pressing for this 
 privilege of immunity. Employers must have the same 
 fi'eedom from damages, and a nng of capitalists with
 
 19 
 
 unlimited funds out of reach of the law, besides being a 
 danger to the State, would prove an irresistible foe to any 
 union of workmen. 
 
 Among the subsidiary but important points dealt with in 
 the Report of the Trade Disputes Royal Commission is the 
 question of the illegal acts of branch agents. The majority 
 of the Commissioners recommend that means should be pro- 
 vided whereby the central authorities of a Union may protect 
 themselves against the unauthorised and immediately dis- 
 avowed acts of branch agents. Sir Godfrey Lushington and 
 Sir W. T. Lewis both dissent on the general ground that 
 here again there is no reason why Trade Unions should 
 enjoy a special immunity from the general law of agency ; 
 and, indeed, there would seem to be grave objections to 
 granting this privilege. The law of agency happens to be 
 well settled on reasonable and clear lines. The plaintiff 
 would have to prove not merely that a legal wrong had been 
 done to him and that the wrongdoer was an agent of the 
 Trade Union, but that in doing the wrong he acted within 
 the scope of his employment ; if that authority is partly 
 derived from the affiliation to the central union, it would be 
 anomalous to allow that central union to call the tune without 
 having to meet the payment of the piper. Or if it was felt 
 that a hardship would be inflicted on members totally un- 
 interested in a jjecidiarly local dispute, there might be some 
 modification of the liability on very prompt disavowal, pro- 
 vided only that it were made a general alteration of the law, 
 equally applicable to combinations of employers. 
 
 It is impossible here thoroughly to sift the difficult matter 
 of Picketing, in which one comes very close to the dramatic 
 and passionate incidents of unhappy trade warfare. The 
 existing law, embodied in a section of the Conspiracy and 
 Protection of Property Act, 1875, prohibits any person, with 
 a view to compel another to abstain from doing or to do any 
 act which such other person has a legal right to do or abstain 
 from doing, from wrongfully and without legal authority 
 using violence or intimidation to such person or his famih'.
 
 20 
 
 pcrsistoiitly following liiin Jihout nnd liidiiig lii-s tools orotlior 
 jtroporty ; and, iu particular, this method of compulsion is 
 forbiddon in tho shapo of watcliing and bosfitting the house 
 or othor place where sucli person resides or works or carries 
 on business or happens to bo, or the approach to such house 
 or place, with the proviso that attending at or near the house 
 or place or the a])proach thereto, in order merely to obtain or 
 communicate information, is not to be deemed a watching or 
 besetting within the section. In Mr. Wliittaker's Bill of 
 1905 it was proposed to add to this last proviso a statutory 
 freedom for " peacefully persuading any person to work or 
 abstain from working," aud Lord iJuuedin and his colleagues 
 in the Majority Keport now suggest the substitution of a 
 single new test for application to all cases of intimidation by 
 picketing, viz., acting "in such a manner as to cause a 
 reasonable apprehension in the mind of any person that 
 violence will be used to him or his family or damage to be 
 done to his property." But one i.s not quite sure, human 
 nature among bread-winners in excited moments being what 
 it is, and what it is likely to remain for some time to come, 
 that " peaceable persuasion,"" where no limit can be put upon 
 the number of " persuaders," is more than a paper plirase. 
 Even the Commissioners confess that " picketing, however 
 conducted ... is always and of necessity in the nature of 
 an annoyance to the person picketed. As such, it must 
 savour of compulsion, and it cannot be doubted that it is 
 because it is found to compel that Trade Unions systematically 
 resort to it." They themselves admit that the evidence before 
 them, whicli the Trade Unions had made no attempt to con- 
 tradict, was overwhelming to the effect that " watching and 
 besetting for the purpose of peaceably persuading " is really 
 a contradiction in terms. Sir Godfrey Lushington and 8ir 
 W. Thomas Lewis are, from different standpoints, so agreed 
 that picketing /// toto is an abuse calling for ui-gent remedy 
 that they would leave the law where it stands, with the repeal 
 of the proviso as to atteuding merely to obtain or commimicate 
 information.
 
 21 
 
 It is again a problem where sympathy inclines to the pro- 
 posal of the workers who in the face of much harsh and selfish 
 treatment by employers are grasping at means for earning 
 a fairer " living wage," and for winning better opportunities 
 of recreation and leisure. But the social rights to which 
 they are entitled, and many of which they are slowly, too 
 slowly, winning do not include a right to win more by doing 
 a wrong to others. The social contract, as well as all con- 
 siderations of law and equity, forbid it. It is notorious that 
 since the decisions in Lijons v. WillduH and the Taff Vale 
 case, strikes and picketing have been less frequent ; it is 
 equally obvious that "Labour" is in a far stronger position, 
 morally and in practice, in spite of the alleged set-back. If 
 the law is simplified in the manner proposed by the two 
 Minority Reports, employers and workers will know clearly 
 where they stand in this matter ; strife will be less, with a 
 consequent diminution of suspicion and distrust ; and serious 
 public opinion, which at present seems to be favourably 
 impressed with the fresh advent to power of the Labour 
 Party, is likely to increase its growing protest against the 
 malevolent acts of Capital. It need hardly be pointed out 
 that the cessation of strikes will, for the workers, release 
 fimds for " benefits " and " pensions." If a firm and sensible 
 attitude is adopted at this important and psychological 
 moment in the history of trade combinations, the result will 
 assist those ends of thrift, co-operation and peaceful arbitra- 
 tion, to which the years are slowly but surely revohdng. 
 
 As regards the Law of Consj)iracy only Sir W. Thomas 
 Lewis, whose able and frankly partial plea for the employers 
 demands and repays the most careful attention, dissents from 
 the recommendation of the Royal Commissioners, that an 
 agreement by two or more persons to do an act in furtherance 
 of a trade dispute should not be the ground of a civil action 
 unless it be indictable as a conspiracy, notwithstanding the 
 terms of the Conspiracy and Protection of Property Act, 
 1875. It is true that there are some logical difliculties in the 
 way of overruKng by statute the decision of the judges iu
 
 •■)■) 
 
 Qiiiiiii V. Lrdthcm, when it Ims l)0(;ii .sul»mitt(Ml as uljove that 
 th(.' Tiijf Vale decision sliould Htand. But it would seem 
 ocjuitable that protection concodod in 1H75 on the criminal 
 side should now be granted on the civil side. Trade Unions, 
 it must bo always remembered, nceossarily act by means of 
 combination. Only so can they meet the employer upon 
 anything like an equal footing. Given the prohibition 
 against picketing in any sliapo or form, and the protection 
 to the employer of having the opponents' union's funds to 
 look to for damages, it would seem only fair that here at any 
 rate the State should provide that for the honii fide purposes 
 of trade disputes Trade Unions, wliich so necessarily act by 
 means of combination, should be put in a special position, 
 and that the civil side of the question should be dealt with 
 as liberally aud fully as the criminal. 
 
 Whatever may be the particular modification of any new 
 trade disputes legislation, it is much to be hoped that the 
 law as to Arbitration Acts will also be extended. The 
 modern Conciliation Acts, terminating for the present with 
 the Conciliation Act of LS96, restrict governmental inter- 
 ference in trade disputes to mere inquiries into the cii'cum- 
 stances of a particular dispute, or to an arbitration on the 
 application of botJi parties. But if, as common sense re- 
 quires, the State should aim at prevention as well as cure, 
 then public opinion should be instructed to press for com- 
 pulsory arbitration or the regulation of labour by the State. 
 AVheu that stage is reached it will become a question whether 
 the Judges of the Courts, as at present appointed, will care 
 or be able to act as arbitrators. The work would require spe- 
 cial knowledge of trades, which it is impossible that most mere 
 lawyers should possess ; and such arbitrations would oblige 
 the arbitrators to travel outside those strict judicial functions 
 which belong to the English Bench. On the other hand, 
 a Parliamentary Cabinet, as the Executive of the Govern- 
 ment, could not be expected to be impartial, aud would be 
 inhuman if it had no eye to the next General Election ! 
 The solution would probably lie in the appointment of a
 
 2r^ 
 o 
 
 special Court or Council of Trade Commissioners with powers 
 to enforce their awards.^ 
 
 In conclusion, it may be said that the law affecting Labour 
 has necessarily become complicated, as with the growth of 
 the factory system and the desuetude of apprenticeship, 
 leading employers to prolong the hours and to employ youth- 
 ful labour, the evils to be guarded against have increased. 
 Moreover, the monotony of many industries, attributable to 
 the science which has made '' a machine more and more a 
 man, and a man more and more a machine," has created a 
 new need for the State to take measures to secure something 
 of the pleasui-e and savour of life for its toilers, with a 
 greater equality of opportunity for enjoying them. The 
 new conception of the health and efficiency of the body of 
 workers as an important asset of the national life has, as 
 pointed out by Sir John Macdonell in his recently delivered 
 Quain lectures on " Modern Labour Legislation," already 
 produced startling results, more in foreign countries and in 
 the English Colonies than in Great Britain itself. A strict 
 tendency to uniformity marks the different groups of Labour 
 Laws like the Franco-Belgian, the Anglo-American, the 
 Neo-Saxon, and those of Germany, Austria and Hungary. 
 In the last named there is an emphasis on insurance and 
 pensions, associated with the name of Bismarck. In the 
 Neo-Saxon group, in om' Colonies, there is a growing ten- 
 dency for the State to limit wages and intervene in trade 
 disputes ; experimental legislation in New Zealand and Aus- 
 tralia, the success of which, it should be stated, is not generally 
 
 ' Such Commissioners might even be g-iveu jurisdiction in cases concern- 
 ing trade marks and in "passing off" actions, for it is alleged that a closer 
 knowledge of the ways of the commercial world and its markets would lead 
 to more satisfactory decisions. After the above was written the following 
 words appeared in a letter in the "Morning Post " for March 27th, 1906 : — 
 ' ' Probably it will be found that the final solution must bo deferred until 
 opinion is ripe for the creation of industrial tribunals to enforce collective 
 bargaining, and provide a judicial method of determining trade disputes." 
 The same point was also urged by the Hon. B. R. Wise, fonnerly Attorney- 
 General for New South Wales, in a letter to the "Times'* of March 30th, 1906.
 
 jnliuittt'd, liiiH t'n(lfav<Miro<l to iij)i)ly fo llio fields of industritil 
 c'oiuiliation and arbitriition, for all conditions oi omployrneut 
 and practically all classes of labour, the principles long since 
 adopted in thn homo country in factory, mines, shops and 
 sanitary la\Vs as to some conditions and certain chisscs. Th«; 
 chief characteristics of the Anglo-American group are the 
 existence of ])o\vcrful Trade Unions, created hy tlie workers 
 themselves and already endowed Ly law with a distinct legal 
 status, and a stringent system of factory regulations enforced 
 hy vigorous inspection. In France, wliere the State has been 
 very active, a law relating to I'rofessional Syndicates, passed 
 by the late M. Waldeck- Rousseau, is described by Sir John 
 Macdonell as one of the most notable and novel measures yet 
 passed in the interests of labour. He says of it that — 
 
 " It was prepared with the intention of accustoming work- 
 men to unite to concentrate and to solidify their forces, 
 powerless in isolation and likely to be fruitful if grouped. 
 Perhaps the most important article in the law was that which 
 stated that the syndicates might freely combine for the study 
 and the defence of their economic and industrial interests, a 
 provision which invested them with u quasi-public character, 
 which stampeil witli immunity or privilege conduct which 
 otherwise would exjiose the syndicates or tluir officers to legal 
 proceedings. These syndicates might be formed of more 
 than twenty persons practising the same professions, or 
 similar trades or professions, or professions connected there- 
 with. Before being formed they were required to deposit 
 their statutes or articles of associations at the raairie, or, in 
 the case of Paris, at the lu-efecttire. These syndicates had 
 the right to sue in their own name, and tliey might also 
 employ for the purpose of litigation any sums which arose 
 from the subscriptions of the members. The}' were forbidden 
 to hold more than a very limited amount of real property. 
 Demands by violence, threats, &c. to compel persons to enter 
 or leave the syndicates were prohibited. Implied in that 
 law were great changes and large powei-s. So long as a 
 syndicate was acting in the interests of a particular trade
 
 25 
 
 there was no limit to its powers, practically speaking. It 
 might denounce or put on the black list a particular factory 
 or workshop as contravening a particular article or contracts 
 in force as being against the interests of the particular trade. 
 No doubt, to be protected the syndicate must have in view 
 the general interests of the trade. It must not seek from 
 purely personal motives to injure an individual. It might 
 compel its members to accept the syndicate tariff of wages 
 recognized in collective contracts, and it might expel a mem- 
 ber who accepted a lower rate. The Act put groups of work- 
 men, for the purpose of litigation and the law courts, in the 
 same powerful position in which Trade Unions and their funds 
 placed them from an economic point of view." ^ 
 
 It is earnestly to be hoped that in the coming days our 
 own Government will put its great opportunity to a use at 
 once liberal and wise. For reasons, a few of which have been 
 touched upon above. Parliament may hesitate to enact all the 
 suggestions of the Labom- Party or the recommendations of the 
 Majority Report, even though the eminent authors of that 
 
 ' This law is printed in Dalloz (1884), 4th part, at p. 129. At p. 133 
 is given the text of Article 7, which may be translated as follows : — 
 
 " Every member of a professional syndicate can withdraw at any time 
 from the association, notwithstanding any clause to the contrary, but with- 
 out prejudice to the right of the syndicate to call in bis contribution for the 
 current year. 
 
 ' ' Every one who withdraws from a syndicate preserves the right of being 
 a member of the societies for mutual assistance and for old age pensions to 
 the assets of which he has contributed by club subscriptions or payments." 
 
 As explained in a circular by M. Waldeck-Rousseau, thi8"Article assures 
 the liberty of the unionist, and the second clause of it is irreconcileable with 
 the existence of a common chest for the syndicate and for the societies 
 created within them. I am told by a friend who is an eminent practising 
 lawyer in Paris that as these "syndicates" possess corporate capacity, 
 " it would not require a Taff Vale decision to render them liable for their 
 torts." An attempt is now being made to extend their operation to sub- 
 ordinate civil servants (" fonctionnaires dc gestion ") like postmen. It is not 
 proposed to extend it to such "fonctionnaires d'autorite" as policemen, as 
 the syndicates have the right to go out on strike, and it is felt, sensibly 
 enough, that for policemen to have this right might disorganise the whole 
 machinery of government.
 
 26 
 
 Report who agroo in it aro men of such different experience 
 and outlook as the former Secretary for Scotland in the lat« 
 Tory Government, a distinguished Liberal lawyer and the 
 chief historian and economist of the avowed friends of Trade 
 Unionism. It is certain and indeed right that the capitalist 
 views expressed by Sir W. T. Lewis should receive an anxious 
 consideration before the zeal of the Labour Party sways its 
 sympathetic colleagues into friendly but too hasty legislation. 
 It is, after all, essential for even a pfirtial .solution of this 
 intricate problem that it should be approached in a spirit of 
 mutual toleration as well as with a larger regard than the 
 Euglisliman is apt to give to the phases through which 
 Labour Legislation is passing in the countries outside our 
 own. What is acceptable for continental countries like 
 France and Germany is not necessarily appropriate for this 
 island in this matter any more than in the problem of Free 
 Trade and Tariffs. But the communities of the world are 
 now so linked up and the interchange of ideas and standards 
 of life is so quick that a large amount of uniformity in the 
 regulations of industry is as possible as it is desirable. This 
 end is likely to be promoted by recalling at every stage of 
 industrial legislation or litigation, and in a spirit of reason- 
 ableness and equity, the solemn warning of a great English- 
 man who seventy years ago could scarcely have foreseen the 
 early and substantial emancipation of those on whose behalf 
 his appeal was made. 
 
 "This neglect," wrote Dr. Ai-nold in 1838, namely, to 
 provide a proper position in the State for the manufacturing 
 population, " is encouraged by one of the falsest maxims 
 which ever pander to human selfishness under the name of 
 political wisdom. I mean the maxim that civil society ought 
 to leave its members alone, each to look after their several 
 interests, provided they do not employ direct fraud or force 
 against their neighbour. That is, knowing full well that 
 these are not equal in natural powers, and that still less 
 have they ever within historical memory started with equal 
 artificial advantages ; knowing, also, that power of every sort
 
 27 
 
 has a tendency to increase itself, we stand by and let this 
 most unequal race take its own course, forgetting that the 
 very name of society implies that it shall not he a mere race, 
 but that its object is to provide for the common good of all, 
 by restraining the power of the strong and protecting the 
 helplessness of the weak." ^ 
 
 ' Arnold, Miscellaneous Works, pp. 453-4, cited by Professor Dicey in 
 " The Relations between Law and Public Opinion."
 
 APPENDIX, 
 
 A. The Government Bill broiiglit in by the Attorney-General 
 (Sir J. Lawson Walton) on the 28th March, 1906, proposes as 
 follows : — 
 
 1. The following paragraph shall be added as a new para- 
 graph after the first paragraph of section three of the Conspiracy 
 and Protection of Property Act, 1875 : — 
 
 "An act done in pursuance of an agreement or combina- 
 tion by two or more persons shall, if done in contemplation 
 or furtherance of a trade dispute, not be actionable unless 
 the act, if done without any such agreement or combination, 
 would be actionable as a tort." 
 
 2. — (1) It shaU be lawful for one or more persons, acting on 
 their own behalf or on behalf of a trade union in contemplation 
 or furtherance of a trade dispute, to attend, peaceably and in a 
 reasonable manner, at or near a house or place where a person 
 resides or works or carries on business or happens to be, if they 
 so attend merely for the purpose of obtaining or communicating 
 information, or of persuading any person to work or abstain 
 from working. 
 
 (2) Section seven of the Conspiracy and Protection of Pro- 
 perty Act, 1875, is hereby repealed from " attending at or near " 
 to the end of the section. 
 
 3. An act done by a person in contemplation or furtherance 
 of a trade dispute shall not be actionable as a tort on the ground 
 only that it is an interference with the trade, business, or 
 
 i^os- ^ ^ S
 
 30 
 
 employment of somo other porHon, or with the rip:lit of some 
 other persou to dispose of his cnpitnl or his la>)Our as ho wills. 
 
 4.— (1) Where n committee of a trade union constituted as 
 hereinafter mentioned lias lieen appointed to conduct on hehalf 
 of the union a trade dispute, an action whore>>y it is sought to 
 charge the funds of tlio union with damages in respect of any 
 tortious act committed in contemplation or furtherance of the 
 trade dispute, shall not Ho, unless the act was committed by the 
 committee or Ity some person acting under their authority : 
 
 Provided that a person shall not be deemed to have acted 
 under the authority of the committee if the act was an act or one 
 of a class of acts expressly prohibited by a resolution of the 
 committee, or the committee by resolution expressly repudiate 
 the act as soon as it is brought to their knowledge. 
 
 (2) The committee may be a committee appointed either 
 generally to conduct all trade disputes in which the union may 
 be involved, or to conduct any trade disputes of a specified class 
 or in a specified locality, or to conduct any particular trade 
 dispute. 
 
 {Note. — It is noteworthy that in introducing this Bill the 
 Attorney-General declared his opinion that it would leave no 
 opening for a question for a jury, as he could not conceive a 
 case whicli would not be determined as a matter of law. This 
 is at any rate doubtful as to the picketing that is legalised.) 
 
 B. The Laboui- Party Bill read a second time on the 
 30th March, 1906, proposes as follows : — 
 
 "1. 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 con- 
 templation of or during the continuance of an}' 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 peacefuUy obtaining or communi- 
 cating information ; 
 
 " (2) for the purpose of peacefull}' persuading anj' person to 
 work or abstain from working.
 
 '31 
 
 " An agreement or combination by two or more persons 
 to do or procure to be done any act in contemplation or further- 
 ance 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. 
 
 " 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." 
 
 PRINTED BY 0. F. EOWOETH, GREAT NEW STEEET, FETTER LANE, E.O.
 
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