[656]Taff Vale Railway Company v. Amalgamated Society of Railway Servants (1901), A.C. 426; 70 L.J.K.B. 905; 85 L.T. 147; 17 T.L.R. 698; 65 J.P. 596; 50 W.R. 44; Report of Royal Commission on Trade Disputes, 1906, Cd. 2825; The Law and Trade Unions: A Brief Review of Recent Litigation, specially prepared at the instance of Richard Bell, M.P., 1901; Statement by the Parliamentary Committee on the Taff Vale Case, 1902; History of the British Trades Union Congress, by W. J. Davis, vol. ii. 1916, pp. 201-2; Trade Union Law, by H. Cohen and George Howell, 1901; The Legal Position of Trade Unions, by H. H. Slesser and W. S. Clark, 1912; Industrial Democracy, by S. and B. Webb, Introduction to the 1902 edition, pp. xxiv-xxxvi. It does not appear that, in the strictly legal sense, the Taff Vale judgement was unwarranted. Though the Act of 1871 had been supposed to prevent a Trade Union from being proceeded against, it contained no explicit grant of immunity from being made answerable for any damage that might be wrongfully caused. In fact, both the 1871 Act and that of 1876 expressly provided that the registered Trade Union itself should be liable to be brought into Court for the petty penalties instituted for failure to supply the Registrar with copies of rules and balance-sheets; and also that the trustees of a registered Union should sue and be sued on its behalf. What the Act of 1871 did was to relieve the Trade Union from its character of criminality by reason of its purposes being in restraint of trade, and of its character of illegality from the same cause; and to prohibit legal proceedings directly to enforce certain agreements among its members, or between it and its members, or among different Unions. These were assumed to be all the cases that could arise. It seems to have been taken for granted by the Minority of the Trade Union Commission of 1869, by the Home Office in 1870-71, by the Parliament of 1871-76, and the Royal Commission on Labour in 1893, that an unincorporated body could not be sued for damages in tort any more than for a civil debt. But in the following years, without any reference to Trade Unionism, the Courts successively enlarged their procedure so as to admit of any group of persons having a common interest being made parties to a “representative action” (Duke of Bedford v. Ellis, 1901, A.C. 1, where the tenants of shops in Covent Garden were parties). This enabled even an unregistered Trade Union to be sued (Yorkshire Miners’ Association v. Howden, 1905, A.C. 256). In 1893, and again in 1895, actions against unregistered Trade Union organisations had been maintained in the lower Courts (Trollope and Others v. The London Building Trades Federation and Others, 1895, 72 L.T. 342; 11 T.L.R. 280; W.N. 45; Pink v. The Federation of Trades and Labour Unions, etc., 1893, 67 L.T. 258; 8 T.L.R. 216, 711; 36 S.J. 201). But these had not been noticed by the Trade Union Movement as a whole; and they had not been seriously defended, not fully argued, and not carried to the highest tribunal.
[657]The number of stoppages through disputes known to the Labour Department of the Board of Trade, which between 1891 and 1899 had never been fewer than 700 in a year, did not again reach this figure for a whole decade; and sank in 1903-5—years during which trade was checked, and some reduction of wages took place—to only half the number. Of the 135 claims to the Strike Benefit admitted by the General Federation of Trade Unions in 1903, we read that “no less than 130 have been caused by attempts on the part of employers to encroach upon the recognised conditions prevailing in the particular trades” (Fifth Annual Report of the Federation, 1904, p. 11).
[658]In addition, twelve workmen, mostly miners, were elected under the auspices of the Liberal Party. Nearly all these came over to the Labour Party in 1910 (History of Labour Representation, by A. W. Humphrey, 1912).
[659]Report of Royal Commission on Trade Disputes and Trade Combinations, Cd. 2825.
[660]6 Edward VII. c. 47.
[661]Trade Unionists would be well advised not to presume too far on this apparently absolute immunity from legal proceedings. It must not be imagined that either the ingenuity of the lawyers or the prejudice of the judges has been exhausted. It has already been urged that the immunity of a Trade Union from being sued should be regarded as implicitly limited to acts done in contemplation or furtherance of a trade dispute; but such a limitation has so far been negatived (Vacher v. London Society of Compositors, 29 T.R. 73). It is now suggested that the immunity might one day be held to be limited to acts committed by a Trade Union in the exercise of its specifically Trade Union functions, or for the “statutory objects” of Trade Unions as defined by the Act, and not to acts which the Court might hold to be beyond its legitimate scope, or not specifically connected with what they might in their wisdom consider to be the principal purpose of a Trade Union. (But see Shinwell v. National Sailors’ and Firemen’s Union, 1913, a decision of the Scottish Court of Session, limiting the liability of a Union to reimburse its trustees for damages incurred by them.) Thus, a new Taff Vale case, at a moment when public opinion was exceptionally hostile to Trade Unionism, is by no means impossible. Similarly, Trade Union officials should remember that their privileged position is confined to a trade dispute, which, as specifically defined in the Act, does not include all strikes; and what limits the Courts might set to the phrase is uncertain. Moreover, the Trade Disputes Act does not repeal other statutes; and Trade Union officials have been fined for persuading sailors not to embark, in contravention of the Merchant Shipping Acts. The Trade Disputes Act does not protect officials committing illegalities other than those to which it expressly refers, or under circumstances other than those indicated. See Valentine v. Hyde (1919); Conway v. Wade (1908), A.C. 506; Larkin v. Belfast Harbour Commissioners (1908), 2 Ir.K.B.D. 214; Legal Position of Trade Unions, by H. H. Slesser and W. S. Clark, 1912.
[662]A verbatim report of the proceedings (November 1908) in the Court of Appeal in Osborne v. Amalgamated Society of Railway Servants was published by the defendants (Unity House, Euston Road, London). The House of Lords’ judgement was given on December 21, 1909, when it was widely commented on. The most convenient analysis is that by Professor W. M. Geldart, The Osborne Judgment and After, 1910, and The Present Law of Trade Disputes and Trade Unions, 1914. See “The Osborne Revolution,” by Sidney Webb, in The English Review for January 1911; and My Case, by W. V. Osborne, 1910.
[663]Political Theories of the Middle Ages, by O. Gierke, with introduction by F. W. Maitland, 1900; see also the works of J. N. Figgis.
[664]Firma Burgi, by T. Madox, 1726, pp. 50, 279.
[665]Conflicts of Capital and Labour, by G. Howell, 1st edition, 1878, 2nd edition, 1890, p. 479.