In 1890 Trade Union organisation had already become a lawful institution; its leading members had begun to be made members of Royal Commissions and justices of the peace; they were, now and then, given such Civil Service appointments as Factory Inspectors; and two or three of them had won their way into the House of Commons. But these advances were still exceptional and precarious. The next thirty years were to see the legal position of Trade Unionism, actually in consequence of renewed assaults, very firmly consolidated by statute, and the Trade Union claim to participation in all public enquiries, and to nominate members to all governmental commissions and committees, practically admitted. Trade Union representatives have won an equal entrance to local bodies, from Quarter Sessions and all the elected Councils down to Pension and Food and Profiteering Act Committees; an influential Labour Party has been established in Parliament; and most remarkable of all, the Trade Union itself has been tacitly accepted as a part of the administrative machinery of the State.
It is a characteristic feature of Trade Union history, at the end as at the beginning of the record of the past hundred years, that we have to trace the advance of the Movement through a series of attacks upon Trade Unionism itself. It is in this light that we regard the Royal Commission on Labour set up by the Conservative Government of 1891. Its professed purpose was to enquire into the relations between Capital and Labour, with a view to their improvement. But its composition was significantly weighted against the wage-earners. It is true that, in the large total membership, seven Trade Union officials were included, among them being Mr. Tom Mann; but whilst the great employers who sat on the Commission were supported by legislators, lawyers, and economists of their own class, having substantially their own assumptions and opinions, the Trade Unionist minority was allowed no expert colleagues. From the start the Commission set itself—probably quite without any consciousness of bias—to discredit alike the economic basis of the workmen’s combinations, the methods and devices of Trade Unionism, and the projects of social and economic reform that were then making headway in the Trade Union world. In the end, after two years’ exhaustive enquiry, which cost the nation nearly £50,000, the majority of the Commissioners either found it impossible, or deemed it inexpedient, to report anything in the nature of an indictment against Trade Unionism in theory or practice; and could not bring themselves to recommend any, even the slightest, reversal of what had, up to the very date of the report, been conceded or enacted, whether with regard to the recognition of Trade Unions, the collective regulation of wages, the legal prescription of minimum conditions of employment or the political activities of the workmen’s combinations. The majority of the Commissioners—it is significant that they were joined by three out of the seven Trade Unionists—contented themselves with deprecating, and mildly arguing against, every one of the projects of reform that were then in the air. What is interesting is the fact that the most reactionary section of the Commission nearly persuaded their colleagues of the majority to recommend putting Trade Unions compulsorily into the strait-jacket of legal incorporation, involving them in corporate liability for the acts of their officers or agents, with the object of inducing the Unions to enter—not, as is usual in Collective Bargaining, into treaties defining merely minimum conditions—but into legally binding obligations with the employers, in which the Unions would become liable in damages if any of their members refused to work on the collectively prescribed terms. At the last moment the majority of the Commissioners recoiled from this proposal, which was left to be put forward as a separate report over the names of seven Commissioners. The Labour Minority Report, signed by four[651] out of the seven Trade Unionist Commissioners, whilst protesting strongly against any interference with Trade Union freedom, took the form of a long and detailed plea for a large number of immediately practicable industrial, economic, and social reforms, envisaged as step by step progress towards a complete transformation of the social order. [652]
The Commission had no direct results in legislation or administration; but the Board of Trade set up a Labour Department, appointed a number of Trade Unionists as its officials or correspondents, and started the admirably edited monthly Labour Gazette. The next move came in the form of an assault on the legal position of Trade Unionism, which, in one or other manifestation, held the stage for more than a decade.
For a quarter of a century the peculiar legal status which had been conferred upon a Trade Union by the Acts of 1871-76 was not interfered with by the lawyers. At the close of the nineteenth century, when Trade Unionism had by its very success again become unpopular among the propertied and professional classes, as well as in the business world, a new assault was made upon it.
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.
The Taff Vale Case
All this development of the Law of Conspiracy and the Law of Torts, though it went far to render nugatory the intention of the Legislature in 1871-76 to make lawful a deliberately concerted strike, left unchallenged the position of the Trade Union itself as immune from legal proceedings against its corporate funds, an anomalous position which everybody understood to have been conceded by the Acts of 1871-76. In 1901, after thirty years of unquestioned immunity, the judges decided, to the almost universal surprise of the legal profession as well as of the Trade Union world, that this had not been enacted by Parliament. In 1900 a tumultuous and at first unauthorised strike had broken out among the employees of the Taff Vale Railway Company in South Wales, in the course of which there had been a certain amount of tumultuous picketing, and other acts of an unlawful character. In the teeth of the advice of the Company’s lawyers, Beasley, the General Manager, insisted on the Company suing for damages, not the workmen guilty of the unlawful acts, but the Amalgamated Society of Railway Servants itself; and on fighting the case through to the highest tribunal. After elaborate argument, the Law Lords decided that the Trade Union, though admittedly not a corporate body, could be sued in a corporate capacity for damages alleged to have been caused by the action of its officers, and that an injunction could be issued against it, restraining it and all its officers, not merely from criminal acts, but also from unlawfully, though without the slightest criminality, causing loss to other persons. Moreover, in their elaborate reasons for their judgement, the Law Lords expressed the view that not only an injunction but also a mandamus could be issued against a Trade Union, requiring it to do anything that any person could lawfully call upon it to do; that a registered Trade Union could be sued in its registered name, just as if it were a corporation; that even an unregistered Trade Union could be made collectively liable for damages, and might be sued in the names of its proper officers, the members of its executive committees and its trustees; and that the damages and costs could be recovered from the property of the Trade Union, whether this was in the hands of separate trustees or not. The effect of this momentous judgement, in fact, was, in flagrant disregard of the intention of the Government and of Parliament in 1871-76, to impose upon a Trade Union, whether registered or not, although it was still denied the advantages and privileges of incorporation, complete corporate liability for any injury or damage caused by any person who could be deemed to be acting as the agent of the Union, not merely in respect of any criminal offence which he might have committed, but also in respect of any act, not contravening the criminal law, which the judges might hold to have been actionable. The Amalgamated Society of Railway Servants, which had not authorised the Taff Vale strike nor any wrongful acts that were committed by the strikers, but which, after the strike had occurred, had done its best to conduct it to a successful issue, and had paid Strike Benefit, was compelled to pay £23,000 in damages, and incurred a total expense of £42,000. [656] It has been estimated that, from first to last, the damages and expenses in which the various Trade Unions were cast, owing to this, and the other judgements against Trade Unions and Trade Union officials personally, amounted to not less than £200,000.
The little world of Trade Union officials, already alarmed at the prospect of being individually sued for damages, was thrown into consternation by the Taff Vale judgement, which seemed to destroy, at a blow, the status that had been, with so much effort, acquired in 1871-76. The full extent of the danger was not at first apprehended. Why, it was asked, should not the Trade Union rules, and the instructions of Trade Union Executive Committees, expressly forbid the commission by officials of any wrongful acts? It was only gradually realised that, under the figment of “conspiracy to injure” that the lawyers had elaborated, even the most innocent acts, which an individual could quite lawfully commit, might be held wrongful and actionable if they were committed by or on behalf of an association to the pecuniary injury of any other person; and that there was no assignable limit, as the cases had shown, either to what might be held to be wrongful acts, or to the nature or amount of the damage that the Courts might hold to have been caused by such acts in the ordinary course of any extensive strike. Moreover, under the ordinary law of agency, the most explicit prohibition of unlawful acts in the rules of the association, coupled with the most scrupulous care in the Executive Committee in framing its instructions to its officials, would not prevent the Trade Union from being held liable for any pecuniary injury that might be caused, even in defiance of instructions and in disobedience to the rules, by any of its officers acting within the scope of their employment; or, indeed, by any member, paid or unpaid, whom the Courts might hold to be acting as the agent of the Union. And as every stoppage of work, however lawful, necessarily involved financial loss to the employers, it could be foreseen that even the most carefully conducted strike might be made at least the occasion for costly litigation, and probably the opportunity for getting the Trade Union cast in swingeing damages. The immediate result was very largely to paralyse the Executive Committees and responsible officials of all Trade Unions, and greatly to cripple their action, either in securing improvements in their members’ conditions of employment or in resisting the employers’ demands for reductions. In particular, the general advances for which the railway workers were asking were delayed. The capitalists did not fail to use the opportunity to break down the workmen’s defences. Trade Unionism had to a great extent lost its sting. [657]
Though it took some time for the Trade Union world to realise the peril, the effect on the Movement was profound. Up and down the country every society, great and small, and practically every branch, rallied in defence of its right to exist. The first result was to make the newly-formed Labour Party, which will be hereafter described, and which had hitherto hung fire, into an effective political force. The effect of the Taff Vale judgement was, in 1902-3, to double, and by 1906-7 to treble the number of adhering Trade Unions, and to raise the affiliated membership of the Party to nearly a million. As the Dissolution of Parliament approached, the Trade Unions organised a systematic canvass of all prospective candidates, making it plain that none would receive working-class support unless they pledged themselves to a Bill to undo the Taff Vale judgement and put back Trade Unionism into the legal position that Parliament had conferred upon it in 1871. When the General Election at last took place, in January 1906, the Labour Party (still known as the Labour Representation Committee) put no fewer than fifty independent candidates in the field, of whom, to the astonishment of the politicians, twenty-nine were at the head of the poll. [658]