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Warwick Herbert Draper.

Trade unions and the law online

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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.



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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




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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.



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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


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Online LibraryWarwick Herbert DraperTrade unions and the law → online text (page 2 of 3)