Actions for Damages
The attempt to suppress Trade Unionism by the criminal law was practically abandoned.[653] But officers of Trade Unions found themselves involved in civil actions, in which the employers sued them for damages caused by Trade Union activity which the judges held to be, although not criminal, nevertheless wrongful. What could no longer be punished by imprisonment with hard labour might at any rate be penalised by heavy damages and costs, for which the Trade Unionist’s home could be sold up. The Trade Unions in 1875-80, though, as we have described, warned by their friendly legal advisers, had not realised the importance of insisting that the elastic and indeterminable law of conspiracy should be put on a reasonable footing; and though they were, by 1891, fairly safe from its use to reinforce the criminal law, the lawyers found means, under the figment of “conspiracy to injure,” to bring under the head of torts or actionable wrongs the most ordinary and non-criminal acts of Trade Union officers which would have been, if done by one person only, without conspiracy, no ground for legal proceedings. After-ages will be amazed at the flagrant unfairness with which the conception of a “conspiracy to injure” was applied at the close of the nineteenth century. The greatest possible injury to other people’s income or business, not involving the violation of a recognised legal right, if committed by employers for the augmentation of their profits (even in “restraint of trade,” by means of the deliberate conspiracy of an association), was held not to be actionable.[654] But it was held to be an actionable wrong to the employer for a couple of men to wait in the street, in a town many miles distant, for the purpose of quite quietly and peacefully persuading a workman not to enter into a contract of service. The most pacific “picketing” of an employer’s premises, though admittedly no longer a criminal act, was, if done in concert, held to be an actionable wrong. If a Trade Union Secretary published a perfectly accurate list of firms which were “non-Union,” with the intention of warning Trade Unionists not to take service with them, this gave each of the “blacklisted” firms the right to sue him for damages. It was held to be ground for damages for a Trade Union official merely to request one firm not to supply goods to another; or to ask an employer not to employ any particular person; or even to urge the members of his own Union quite lawfully to come out on strike on the termination of their engagement of service, if the object of the strike was considered by the Court to be to put pressure on the will of some other employer or some other workman. And whilst any solicitation or persuasion to break a contract of service by a Trade Union official was certainly actionable, it became doubtful whether he would not be equally liable if he had carefully abstained from, and had really not intended, any such suggestion, whenever the members of his Society became so influenced by his action, or were thought by the Court to have been so influenced, that they, spontaneously and against his desires, impetuously came out on strike before their notices had expired.[655] It was a further aggravation, of which less advantage was actually taken by employers in this country than by those of the United States, that where the Court was convinced that an actionable wrong was threatened or intended, it was possible very summarily to obtain an injunction against its commission, any breach of which was punishable by imprisonment for contempt of Court. It became, therefore, at least theoretically possible that almost any action by a Trade Union by which an employer felt himself injured might be summarily prohibited by peremptory injunction; and some things were thus prohibited, even in this country.