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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."



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