So far the result of the Commission was purely negative. No hostile legislation was even suggested. On the other hand, it was obvious that no Trade Union would accept “legalisation” on the proposed conditions. But Harrison and Hughes had not restricted themselves to casting out all dangerous proposals from the majority report. Their minority report, which was signed also by the Earl of Lichfield, exposed in terse paragraphs the futility of the suggestions made by the majority, and laid down in general terms the principles upon which all future legislation should proceed. It advocated the removal of all special legislation relating to labour contracts, on the principle, first, that no act should be illegal if committed by a workman unless it was equally illegal if committed by any other person; and secondly, that no act by a combination of men should be regarded as criminal if it would not have been criminal in a single person. To this was appended a detailed statement, drafted by Frederic Harrison, in which the character and objects of Trade Unionism, as revealed in the voluminous evidence taken by the Commission, were explained and defended with consummate skill. What was perhaps of even greater service to the Trade Union world was a precise and detailed exposition of the various amendments required to bring the law into accordance with the general principles referred to. We have here a striking instance of the advantage to a Labour Movement of expert professional advice. The Junta had been demanding the complete legalisation of their Unions in the same manner as ordinary Friendly Societies. They had failed to realise that such a legalisation would have exposed the Amalgamated Society of Engineers to be sued by one of its members who might be excluded for “blacklegging,” or otherwise working contrary to the interests of the trade. The whole efficacy, from a Trade Union point of view, of the amalgamation of trade and friendly benefits would have been destroyed. The bare legalisation would have brought the Trades Unions under the general law, and subjected them to constant and harassing interference by Courts of Justice. They had grown up in despite of the law and the lawyers; which as regards the spirit of the one and the prejudices of the other were, and still are, alien and hostile to the purposes and collective action of the Trades Societies. The danger of any member having power to take legal proceedings, to worry them by litigation and cripple them by legal expenses, or to bring a society within the scope of the insolvency and bankruptcy law, became very apparent. The Junta easily realised, when their advisers explained the position, that mere legalisation would place the most formidable weapon in the hands of unscrupulous employers. To avoid this difficulty Harrison proposed the ingenious plan of bringing the Trade Union under the Friendly Societies Acts, so far as regards the protection of its funds against theft or fraud, whilst retaining to the full the exceptional legal privilege of being incapable of being sued or otherwise proceeded against as a corporate entity. Had a Trade Union official been selected as the sole representative of the Unions on the Commission, such detailed and ingenious amendments of the law would not have been devised and made part of an authoritative official report. The complete charter of Trade Union liberty, which Harrison and his friends had elaborated, became for seven years the political programme of the Trade Unionists. And it is a part of the curious irony of English party politics that whilst the formation of this programme, and the agitation by which it was pressed on successive Parliaments, were both of them exclusively the work of a group of Radicals it was, as we shall see, a Conservative Cabinet which eventually passed it into law. [405]
The effective though informal leadership of the movement which the Junta had assumed during the sittings of the Royal Commission had not gone entirely unquestioned. Those who are interested in the cross-currents of personal intrigues and jealousies which detract from the force of popular movements can read in the pages of the Beehive full accounts of the machinations of George Potter. The Beehive summoned a Trade Union Conference at St. Martin’s Hall in March 1867, which was attended by over one hundred delegates from provincial societies, Trades Councils, and the minor London clubs.[406] The Junta, perhaps rather unwisely, refused to have anything to do with a meeting held under Potter’s auspices. But many of their provincial allies came up without any suspicion of the sectional character of the conference, and found themselves in the anomalous position of countenancing what was really an attempt to seduce the London Trades from their allegiance to the Junta and the London Trades Council. The Conference sat for four days, and made, owing to Potter’s energy, no little stir. A committee was appointed to conduct the Trade Union case before the Commission, and Conolly, the President of the Operative Stonemasons, was deputed to attend the sittings. But although special prominence was given by the Beehive to all the proceedings of this committee, we have failed to discover with what it actually concerned itself. An indiscreet speech by Conolly quickly led to his exclusion from the sittings of the Commission; and the management of the Trade Union case remained in the hands of Applegarth and the Junta.
Apart, however, from jealousy and personal intrigue, there was some genuine opposition to the policy of the Junta. The great mass of Trade Unionists were not yet converted to the necessity of obtaining for their societies a recognised legal status. There were even many experienced officials, especially in the provincial organisations of the older type, who deprecated the action that was being taken by the London leaders, on the express ground that they objected to legalisation. “The less working men have to do with the law in any shape the better,” was the constant note of the old Unionists. This view found abundant expression at the Congresses convened in 1868 by the Manchester Trades Council, and in 1869 by that of Birmingham. But in spite of the absence of the Junta from the Manchester Congress, their friend, John Kane, of the North of England Ironworkers’ Association, succeeded in inducing the delegates to pass a resolution expressing full confidence in the policy and action of the Conference of Amalgamated Trades.[407] And at the Congress of 1869, Odger and Howell, as representatives of the Junta, managed to get adopted a series of resolutions embodying Frederic Harrison’s proposals. [408]
Meanwhile a change had come over the political situation. At the outset of the crisis Frederic Harrison had urged upon the Trade Union world the necessity of turning to the polling booth for redress. “Nothing,” he writes in January, 1867, “will force the governing classes to recognise [the workmen’s] claims and judge them fairly, until they find them wresting into their own hands real political power. Unionists who, till now, have been content with their Unions, and have shrunk from political action, may see the pass to which this abstinence from political movements has brought them.”[409] Within a few months of this advice the Reform Bill of 1867 had enfranchised the working man in the boroughs. The Trade Union leaders were not slow to use the advantage thus given to them. The Junta, under the convenient cloak of the Conference of Amalgamated Trades, issued, in July, 1868, a circular urging upon Trade Unionists the importance of registering their names as electors, and of pressing on every candidate the question in which they were primarily interested. The Trades Councils throughout the country followed suit; and we find the Junta’s electoral tactics adopted even by societies which were traditionally opposed to all political action. The Central Committee of the Stonemasons, for instance, strongly urged their members to vote at the ensuing election only for candidates who would support Trade Union demands. [410]
By the beginning of 1869 Frederic Harrison had drafted a comprehensive Bill, embodying all the legislative proposals of his minority report. This was introduced by Mundella and Hughes, and although its provisions were received with denunciations by the employers,[411] it gained some support among the newly elected members, and was strongly backed up outside the House. The Liberal Government of that day, and nearly all the members of the House of Commons, were still covertly hostile to the very principles of Trade Unionism, and every attempt was made to burke the measure.[412] But the Junta were determined to make felt their new political power. From every part of the country pressure was put upon members of Parliament. A great demonstration of workmen was held at Exeter Hall, at which Mundella and Hughes declared their intention of forcing the House and the Ministry to vote upon the hated measure. Finding evasion no longer possible, the Government abandoned its attitude of hostility and agreed to a formal second reading, upon the understanding that the Cabinet would next year bring in a Bill of its own. A provisional measure giving temporary protection to Trade Union funds was accordingly hurried through Parliament at the end of the session pending the introduction of a complete Bill.[413] The Junta had gained the first victory of their political campaign.
The next session found the Government reluctant to fulfil its promise in the matter. But the Trade Unionists were not disposed to let the question sleep, and after much pressure Henry Bruce (afterwards Lord Aberdare), who was then Home Secretary, produced, in 1871, a Bill which was eagerly scanned by the Trade Union world. The Government proposed to concede all the points on which it had been specially pressed by the Junta. No Trade Union, however wide its objects, was henceforth to be illegal merely because it was “in restraint of trade.” Every Union was to be entitled to be registered, if its rules were not expressly in contravention of the criminal law. And, finally, the registration which gave the Unions complete protection for their funds was so devised as to leave untouched their internal organisation and arrangements, and to prevent their being sued or proceeded against in a court of law.
The employers vehemently attacked the Government for conceding, as they said, practically all the Trade Union demands.[414] But from the men’s point of view this “complete charter legalising Unions” had a serious drawback. The Bill, as was complained, “while repealing the Combination Laws, substituted another penal law against workmen” as such. A lengthy clause provided that any violent threat or molestation for the purpose of coercing either employers or employed should be severely punished. All the terms of the old Combination Laws, “molest,” “obstruct,” “threaten,” “intimidate,” and so forth, were used without any definition or limitation, and picketing, moreover, was expressly included in molestation or obstruction by a comprehensive prohibition of “persistently following” any person, or “watching or besetting” the premises in which he was, or the approach to such premises. The Act of 1859, which had expressly legalised peaceful persuasion to join legal combinations, was repealed.[415] It seemed only too probable that the Government measure would make it a criminal offence for two Trade Unionists to stand quietly in the street opposite the works of an employer against whom they had struck, in order to communicate peacefully the fact of the strike to any workmen who might be ignorant of it.
It does not appear that Bruce’s fiercely resented “Third Clause” was intended to effect any alteration in the law. Its comprehensive prohibition of violence, threats, intimidation, molestation, and obstruction did no more than sum up and codify the various judicial decisions of past years under which the Trade Unionists had suffered. But the law had hitherto been obscure and conflicting; both the statutes and the judicial decisions had proceeded largely from a presumption against the very existence of Trade Unionism which was now passing away; and the workmen and their advisers not unreasonably feared the consequences of an explicit re-enactment of provisions which practically made criminal all the usual methods of trade combination. A recent decision had brought the danger home to the minds of the Trade Union leaders and their legal friends. In July 1867 a great strike had broken out among the London tailors, in which the masters’ shops had been carefully “picketed.”[416] Druitt, Shorrocks, and other officers of the Union were thereupon indicted, not for personal violence or actual molestation, but for the vague crime of conspiracy. The Judge (Baron, afterwards Lord, Bramwell) held that pickets, if acting in combination, were guilty of “molestation” if they gave annoyance only by black looks, or even by their presence in large numbers, without any acts or gestures of violence, and that if two or more persons combined to do anything unpleasant and annoying to another person they were guilty of a common law offence. The Tailors’ officers and committeemen were found guilty merely of organising peaceful picketing, and it became evident that, if the elastic law of conspiracy could thus be brought to bear on Trade Union disputes, practically every incident of strike management might become a crime.[417] Nor did Druitt’s case stand alone. Within the memory of the Junta men had been sent to prison for the simple act of striking, or even for a simple agreement to strike.[418] Indeed, merely giving notice of a projected strike, even in the most courteous and peaceful manner, had frequently been held to be an act of intimidation punishable as a crime.[419] In 1851 the posting up of placards announcing a strike was held to be intimidation of the employers.[420] The Government Bill, far from accepting Frederic Harrison’s proposed repeal of all criminal legislation specially applying to workmen, left these judicial decisions untouched, and, by re-enacting them in a codified form, proposed even to make their operation more uniform and effectual.
There was, accordingly, some ground for the assertion of the Trade Unionists that the Government was withdrawing with one hand what it was giving with the other. It seemed of little use to declare the existence of trade societies to be legal if the criminal law was so stretched as to include the ordinary peaceful methods by which these societies attained their ends. Above all, the Trade Unionists angrily resented the idea that any act should be made criminal if done by them, or in furtherance of their Unions, that was not equally a crime if committed by any other person, or in pursuance of the objects of any other kind of association.
A storm of indignation arose in the Trade Union world. The Junta sat in anxious consultation with their legal advisers, who all counselled the utmost resistance to this most dangerous re-enactment of the law. A delegate meeting of the London trades was summoned to protest against the criminal clauses of Bruce’s Bill. But it was necessary to attack the House of Commons from a wider area than the Metropolis. With this view the Junta determined to follow the example set by the Manchester and Birmingham Trades Councils in 1868 and 1869 by calling together a national Trade Union Congress. [421]