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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


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Online LibraryWarwick Herbert DraperTrade unions and the law → online text (page 1 of 3)