THE PLACE OF TRADE UNIONISM IN THE STATE
[1890-1920]
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]
THE TRADE DISPUTES ACT
The first claim of the Labour Party was for the statutory reversal of
the Taff Vale judgement, which every one now admitted to be necessary.
The question was what should be done. There were, substantially,
only two alternatives. One was that, in view of the difficulty of
effectually maintaining it against legal ingenuity, the Trade Unions
should forgo their position of being outside the law, and should
claim, instead, full rights, not only of citizenship, but actually
of being duly authorised constituent parts of the social structure,
lawfully fulfilling a recognised function in industrial organisation.
But for the Trade Union to become, not merely an instrument of defence,
but actually an organ of government in the industrial world, required
a great advance in public opinion. It assumed an explicit recognition
of the legitimate function of the Trade Union, as the basis of a
Vocational Democracy, exercising a definite share in the control and
administration of industry. It involved a complete transformation of
both the criminal and the civil law, so that workmen’s combinations
and strikes, together with peaceful picketing in its legitimate form,
should be unreservedly and explicitly legalised; the law of civil
conspiracy practically abrogated, so that nothing should be unlawful
when done in concert with others which would not be unlawful if done
by an individual alone; and reasonable limits set to liability for
the acts of agents and to the scope for injunctions, so that a Trade
Union Executive would be able both to know the law and to be ensured
against its perversion. The alternative was to make no claim for the
profound advance in Trade Union status that would be involved in such
a policy; to forgo any hope of satisfactory or complete amendment of
the law, and merely to re-enact the exceptional legislation of 1871,
this time specifically insisting that a Trade Union, whether registered
or not, should be put outside the law, and made expressly immune from
legal proceedings for anything, whether lawful or unlawful, done by
its officers or by itself. The outgoing Conservative Government had
appointed in 1903 a small Royal Commission to consider the state of the
law as to Trade Unionism, before which the Trade Unions had refused
to give evidence, because the Commission, which was made up almost
entirely of lawyers, included no Trade Unionist. This Commission, it
is believed, was told privately not to report until after the General
Election, in order that the Conservative Government might not be
embarrassed by the dilemma. Early in 1906 it reported in favour of the
Trade Union accepting full responsibility for its own actions, subject
to considerable, but far from adequate, amendments of the law.[659]
This proposal was definitely rejected by the Labour Party, which
introduced a Bill of its own, merely restoring the position of 1871.
When the Liberal Government brought in a Bill very much on the lines
of the Commission’s Report, there was a dramatic exhibition of the
electoral power that Trade Unionism, once it is roused, can exercise
in its own defence. Member after member rose from different parts of
the House to explain that they had pledged themselves to vote for the
complete immunity which Trade Unions were supposed to have been granted
in 1871. Nothing less than this would suffice; and the most powerful
Government hitherto known was constrained, in spite of the protests
of lawyers and employers, to pass into law the Trade Disputes Act of
1906.[660]
The Trade Disputes Act, which remains (1920) the main charter of Trade
Unionism, explicitly declares, without any qualification or exception,
that no civil action shall be entertained against a Trade Union in
respect of any wrongful act committed by or on behalf of the Union; an
extraordinary and unlimited immunity, however great may be the damage
caused, and however unwarranted the act, which most lawyers, as well
as all employers, regard as nothing less than monstrous.[661] At the
same time the Act, whilst not abrogating or even defining the law
as to civil conspiracy, gives three exceptional privileges to Trade
Union officials by declaring that, _when committed in contemplation
or furtherance of a trade dispute_, (1) an act done in concert shall
not be actionable if it would not have been actionable if done
without concert; (2) attendance solely in order to inform or persuade
peacefully shall be lawful; and (3) an act shall not be actionable
merely by reason of its inducing another person to break a contract
of employment, or of its being an interference with another person’s
business, or with his right to dispose of his capital or his labour as
he chooses. These exceptional statutory privileges for the protection
of Trade Union officials in the exercise of their lawful vocation, and
of “pickets” in the performance of their lawful function--in themselves
a triumph for Trade Unionism--have ever since excited great resentment
in most of those who are not wage-earners. Some friends of the Trade
Unions expressed at the time the doubt whether the policy thus forced
upon Parliament would prove, in the long run, entirely in the interest
of the Movement; and whether it would not have been better to have
chosen the bolder policy of insisting on a complete reform of the law,
to which, when properly reformed, Trade Unions should be subject in the
same way as any other associations. The lawyers, as it proved, were not
long in taking their revenge.
THE OSBORNE JUDGEMENT
This time the legal assault on Trade Unionism took a new form. The
result of the dramatic victory of the Trade Disputes Act, and of
the activity of the Labour members in the House of Commons, was
considerably to increase the influence of the Labour Party in the
country, where preparations were made for contesting any number of
constituencies irrespective of the convenience of the Liberal and
Conservative parties. The railway companies, in particular, found the
presence in Parliament of the secretary of the railwaymen’s principal
Trade Union very inconvenient. Within a couple of years of the passing
of the Trade Disputes Act, on July 22, 1908, one of the members of
the Amalgamated Society of Railway Servants took legal proceedings
to restrain it from spending any of its funds on political objects,
contending that this was beyond the powers of a Trade Union. Such a
contention found no support among eminent lawyers, several of whom
had formally advised that Trade Unions were undoubtedly entitled
to undertake political activities if their rules authorised such
action and a majority of their members desired it. W. V. Osborne, the
dissentient member of the Amalgamated Society of Railway Servants, took
a different view; and, liberally financed from capitalist sources,
carried his case right up to the highest tribunal. As a result, in
December 1909, as in 1825, 1867-71, and 1901-6, every Trade Union in
the land found its position and status once more gravely impugned.
In what became widely known as the Osborne Judgement, the House of
Lords, acting in its judicial capacity as the highest Court of Appeal,
practically tore up what had, since 1871, been universally understood
to be the legal constitution of a Trade Union.[662]
The decision of the judges in the Osborne case throws so much light,
not only on the status of Trade Unionism in English law, but also on
the animus and prejudice which the Trade Disputes Act and the Labour
Party had excited, that we think it worth treating at some length.
Formally this judgement decided only that W. V. Osborne, a member of
the Walthamstow Branch of the Amalgamated Society of Railway Servants,
was entitled to restrain that Trade Union from making a levy on its
members (and from using any of its funds) for the purpose of supporting
the Labour Party, or maintaining Members of Parliament. But in the
course of that decision a majority of the Law Lords, therein following
all three judges of the Court of Appeal, laid it down as law (and
thereby made it law until Parliament should otherwise determine), (_a_)
that although Parliament has always avoided any express incorporation
of Trade Unions, these were all now to be deemed to be corporate
bodies, formed under statute, and not unincorporated groups of
individual persons; (_b_) that it follows, by an undoubted principle
of English law, that a body corporate, created under statute, cannot
lawfully do anything outside the purposes for which the statute has
incorporated it; (_c_) that as the purposes for which Trade Unions are
incorporated have to be found somewhere authoritatively given, the
definition which Parliament incidentally enacted in the Trade Union Act
of 1876 must be taken to enumerate, accurately and exhaustively, all
the purposes which any group of persons falling within that definition
can, as a corporate body, lawfully pursue; and (_d_) that the payment
of the salaries and election expenses of Members of Parliament, and
indeed, any political action whatsoever, not being mentioned as one of
these purposes and not being considered by the judges incidental to
them, could not lawfully be undertaken by any Trade Union, even if it
was formed, from the outset, with this purpose duly expressed in its
original rules, and even if all its members agreed to it, and continued
to desire that their organisation should carry it out.
This momentous judgement destroyed, at a blow, the peculiar legal
status which Frederic Harrison had devised for Trade Unionism in
1868, and which Parliament thought that it had enacted in 1871-76.
The statutes of 1871 and 1876, which had always been supposed to
have enlarged the freedom of Trade Unions, were now held to have
deprived these bodies of powers that they had formerly enjoyed. It
was not, as will be seen, a question of protecting a dissentient
minority. Whether the members were unanimous, or whether they were
nearly evenly divided, did not affect the legal position. Trade Unions
found themselves suddenly forbidden to do anything, even if all their
members desired it, which could not be brought within the terms of a
clause in the Act of 1876, which Parliament (as Lord James of Hereford
emphatically declared) never meant to be taken in that sense. “What
is not within the ambit of that statute,” said Lord Halsbury, “is, I
think, _prohibited_ both to a corporation and a combination.” This was
the new limitation put on Trade Unions. All their educational work was
prohibited; all their participation in municipal administration was
forbidden; all their association for common purposes in Trades Councils
and the Trades Union Congress became illegal. The judges stopped the
most characteristic and, as was supposed, the most constitutional of
the three customary ways that (as we have shown in our _Industrial
Democracy_) Trade Unions pursued of enforcing their Common Rules,
namely, the Method of Legal Enactment; grave doubt was thrown on
the legality of some of the developments of their second way, the
Method of Mutual Insurance; whilst the way that the House of Lords
expressly prescribed was exactly that which used to give rise to so
much controversy, namely, the Method of Collective Bargaining, with its
concomitant of the Strike. So topsy-turvy a view of Trade Unionism, a
view which seems to have arisen from the judges’ ignorance of its two
centuries of history, could not have survived open discussion, and
therefore could hardly have been taken by even the most prejudiced
Parliament.
THE DEVELOPMENT OF ENGLISH LAW
What was the explanation of the view of the Trade Union constitution
that the judges took? The English Courts of Justice, it must be
remembered, have peculiar rules of their own for the construction of
statutes. When the plain man wants to know what a document means, he
seeks every available explanation of the intention of the author.
When the historian inquires the purpose and intention of an Act of
Parliament, he considers all the contemporary evidence as to the
minds of those concerned. The Courts of Law, for good and sufficient
reasons, debar themselves from going behind the face of the document,
and are therefore at the mercy of all the unstudied ineptitudes
of House of Commons phraseology. Along with this rigour as to the
intention of a statute, the English and American judges combine a
capacity for developments of doctrine in the form of legal principles
which is, we believe, unequalled in other judicial systems. Now, the
subject of corporations is one of those in which there had been,
among the past generations of English lawyers, a silent and almost
unselfconscious development of doctrine, of which, in Germany, Gierke
had been the great inspirer, and Maitland in this country the brilliant
exponent.[663] Our English law long rigidly refused to admit that
a corporate entity could arise of itself, without some formal and
legally authoritative act of outside power. How, it was asked, except
by some definite act of creation by a superior, could the _persona
ficta_ come into existence? How, otherwise (as Madox quaintly puts it),
could this mere “society of mortal men” become something “immortal,
invisible, and incorporeal”?[664] As a matter of fact, associations or
social entities of all sorts always did arise, without the intervention
of the lawyers, and nowadays they arise with amazing ease, without any
act of creation by a superior; and when the English lawyers refused
to recognise them as existing, it was they who were irrational, and
the common law itself that was at fault. Nowadays we live in a world
of social entities of all sorts, and of every degree of informality,
corporate entities that to the old-fashioned lawyers are still legally
non-existent as such--clubs and committees of every possible kind;
groups and circles, societies and associations for every conceivable
purpose; unions and combinations and trusts in every trade and
profession; schools and colleges and “University Extension Classes,”
often existing and spending and acting most energetically as entities,
having a common purse and a single will, in practice even perpetual
succession, and (if they desire such a futile luxury) a common seal,
without any sort of formal incorporation. Gradually English lawyers
(whom we need not suspect of reading Gierke, or even, for that matter,
Maitland) were unconsciously imbibing the legally heterodox view that
a corporate entity is anything which acts as such; and so far from
making it impossible for the _persona ficta_ to come into existence
without a formal act of creation, they had been, by little alterations
of procedure and imperceptible changes in legal principles, sometimes
by harmless little dodges and fictions of the Courts themselves,
coming near to the practical result of putting every association which
is, in fact, a social entity, however informal in its constitution,
and however “spontaneous” in its origin, in the same position of a
_persona ficta_, for the purpose of suing and of being sued, as if it
had been created by a formal instrument of incorporation, decorated
by many seals, and procured at vast expense from the post-Reformation
Pope himself; or as if it had been expressly incorporated by the Royal
Charter of a Protestant King or the private statute of a Victorian
Parliament.
Now this development of legal doctrine to fit the circumstances of
modern social life is, when one comes to think of it, only common
sense. If twenty old ladies in the workhouse club together to provide
themselves with a special pot of tea, and agree that one among them
shall be the treasurer of their painfully-hoarded pennies as a common
fund, they do, in fact, create a social entity just as real in its way
as the Governor and Company of the Bank of England. Why should not the
law, if it ever comes to hear of the action of the twenty old ladies
in the workhouse, deal with the situation as it really is, according
to their wishes and intentions, without inquiring by what formal act
of external power a _persona ficta_ has been created; and therefore
without demanding that the old ladies shall first procure a charter of
incorporation from the Pope, from the King, or from Parliament? And
considering that Trade Unions were now in fact social entities, often
having behind them more than a hundred years of “perpetual succession”;
counting sometimes over a hundred thousand members moving by a single
will; and occasionally accumulating in a common purse as much as half
a million of money, the Law Lords might well think it absurd and
irrational of Parliament to have decided in 1871-76, and again in
1906, to regard them as unincorporated groups of persons, having, in a
corporate capacity, no legally enforceable obligations and hardly any
legally enforceable rights. It may have been absurd and irrational, but
what right--so the Trade Unionists asked--had the judges to change the
law?
Whatever may be the justification for the momentous change in the
law which the Six Judges (namely, the three members of the Court
of Appeal, and three out of the five Law Lords, all of whom agreed
in the series of propositions that we have cited) suddenly, without
Parliamentary authority, of their own motion effected, it created an
intolerable situation. There was, in the first place, the application
of the doctrine of _ultra vires_ to corporate entities quite unaware
of its existence. It was all very well, in order to fit the law to the
facts, to throw over the old legal doctrine that the _persona ficta_
of a corporation could only come into existence by some formal act
of incorporation by an external authority. But then it plainly would
not do to retain, as the Six Judges quite calmly retained, the severe
limitations on the action of statutory corporate entities which is
involved in the doctrine of _ultra vires_, and which, as Lord Halsbury
put it, was to _prohibit_ them from doing what they liked. The argument
for that principle is that such a corporate entity owes its existence
entirely to the statutory authority by which it is created; that the
legislature has brought it into being for certain definite purposes;
that for those purposes and no others the exceptional powers of a
corporation have been conferred upon it; that as such it is, in a
sense, the agent whom the community has entrusted with the execution of
these functions, and who cannot therefore (even if all the constituent
members of its body so agree and desire) assume any other purposes or
functions. But any such doctrine of _ultra vires_ can have no rational
application to the corporate entity formed by the twenty old ladies in
the workhouse for their private pot of tea. If we are going, in effect,
to treat as corporate entities all sorts of spontaneously arising
associations, such as an unregistered Trade Union (and some of the
wealthiest and most powerful Trade Unions were still unregistered), or
such as an Employers’ Association (which was hardly ever a registered
body)--corporate entities which were, in fact, lawfully in existence
long before the Act of 1876--we must give up the fiction that the
purposes of these associations have been authoritatively fixed and
defined in advance by Parliament in such a way that the members
themselves, even when they are unanimous and when they are acting
in strict accord with their constitution and rules, cannot add to
or alter the objects or methods of their organisation. What was
logically required, in fact, was not the arbitrary identification
of spontaneously arising associative entities with legally created
corporations, but the formulation of a new conception as to the
functions and legal rights that such spontaneously arising associative
entities--to which the limitations of legally created corporations
could not be simply assumed to apply--should, as a class, be permitted
to exercise.
THE MISCARRIAGE OF JUSTICE
We come now to the second cardinal feature of the decision of the Six
Judges in 1909, in which they showed both prejudice and ignorance.
Having found that the Trade Unions were, in fact, corporate entities,
and that they had been, in various clumsy ways, dealt with by
Parliament very much as if they were legally corporate entities--though
Parliament had advisedly abstained from incorporating them, and had,
indeed, always referred to them as being what in fact they were, namely
already existing and spontaneously arising associations, not created
by its will--the Six Judges took the view that some authoritative
specification of the objects and purposes of a Trade Union had to
be discovered by hook or by crook. It seems to have been by them
inconceivable (though Lord James of Hereford, one of their own number,
who had personally taken part in all the legislation, expressly told
them it was in fact so) that no such specification should exist. They
accordingly found it in an enumeration which Parliament had given in
the Act of 1876 of all the various bodies which were to be entitled
to the privileges conferred by the Act--a definition introduced, so
a well-informed writer mentioned in 1878, for the special advantage
of Trade Unions[665]--principally to enable them to be registered by
the Chief Registrar of Friendly Societies. The Law Lords now held that
this definition must be deemed to be an exhaustive enumeration, not
merely of the kinds of societies to be eligible for registration, but
also of all the objects and purposes that Parliament intended any of
those bodies, whether registered or unregistered, to be free at any
time to pursue. The result was that all Trade Unions and Employers’
Associations, and, indeed, all informal groups of workmen or employers
falling within this definition, suddenly found themselves (to the
complete amazement of every one concerned, including the lawyers)
rigidly confined in their action, even if all their members otherwise
wished and agreed, to matters which were specified in an enumerating
clause of an Act of Parliament of a generation before, which had never
before been supposed to have that meaning, or to have any restrictive
effect at all. We ought to speak with proper respect of the judges,
though sometimes, by their curious ignorance of life outside the Law
Courts, and especially of “what everybody knows,” they try us hard.
But it is necessary to state plainly, with regard to this part of
the Osborne Judgement, that to the present writers, as to the whole
British working class and many other people, including lawyers, it
seemed an astounding aberration, amounting to a grave miscarriage of
justice. Again, let it be noted that Lord James of Hereford, who knew
what Parliament had intended, and what Trade Unions actually were,
expressly dissented from his colleagues on this point, saying that
the enumeration clause in the Act of 1876 was never intended to be “a
clause of limitation or exhaustive definition” of objects and purposes;
and arguing that it did not prevent a Trade Union from having other
purposes, or pursuing other methods, not in themselves unlawful, even
though these were not enumerated in the definition clause and were not
even incidental to the purposes therein enumerated. But what is the
history of this definition clause? As it stands in the Act of 1876 it
runs as follows:
The term “Trade Union” means any combination, whether
temporary or permanent, for regulating the relations between
workmen and masters, or between workmen and workmen, or
between masters and masters, or for imposing restrictive
conditions on the conduct of any trade or business, whether
such combination would or would not, if the principal Act
had not been passed, have been deemed to have been an
unlawful combination by reason of some one or more of its
purposes being in restraint of trade.
Now, to the lay mind, this extremely loose enumeration[666] of kinds
of societies seems plainly intended to bring within its net, and
therefore to admit to the advantages of the Act, a wide range of
existing or possible associations of different kinds. It was to include
all sorts of Employers’ Associations as well as Trade Unions. It was
to include bodies already in existence as well as those to be formed
in the future. It was to include bodies seeking to impose restrictive
conditions “in restraint of trade,” as well as those having no such
unlawful objects. It was to include, therefore, bodies already enjoying
a full measure of lawful existence and legal recognition, as well
as those for the first time fully legalised by the legislation of
1871-76. To the logician it will be clear that we have here a case
of classification by type, not by delimitation. “It is determined,”
says Whewell and J. S. Mill, “not by a boundary line without, but by a
central point within; not by what it strictly excludes, but by what it
eminently includes; by an example, not by a precept.”[667] Accordingly
the clause names specifically one by one the various attributes, any
one of which is to be typical of the class. It sufficed for the purpose
to name only one attribute belonging to each body which it was desired
to include. What its other attributes might be was irrelevant. It
does not occur to the ordinary reader, any more than to the logician,
that the effect of the clause is, not merely to include associations
of different kinds, but also to limit the legal freedom of all those
associations, with all their varied functions, exclusively to the
purposes specified in the definition, which were merely recited in
order to bring a number of heterogeneous bodies into one class. On the
construction put upon this clause by the Six Judges, the Act of 1876
was a measure which deprived Trade Unions and Employers’ Associations,
many of which had been for years lawfully in existence, without any
unlawful objects or methods, of a freedom that they had up to then
enjoyed; it was an Act rigidly confining their operations to a limited
field, and for ever prohibiting them (as Lord Halsbury expressly
declared) from doing anything not included in the list of functions
incidentally then and there given. It is safe to say that, to any
historical student who knows anything of the circumstances of the case,
such a supposition is preposterous. No Trade Union and no Employers’
Association was aware in 1876 that its freedom was being thus
restricted. Thomas Burt, M.P., and Lord James of Hereford (then Sir
Henry James, M.P.), who took part in passing the Act, certainly never
dreamed that they were doing anything of the sort. The Home Office
officials who prepared it, and Lord Cross (then Home Secretary) who
introduced it, quite plainly had not the remotest notion that they were
taking away from Trade Unions (which they were anxious to legalise)
any of the functions which these Unions were in fact exercising, and
which such Trade Unions as were lawful associations were already
_lawfully_ exercising; or that they were prohibiting these Trade Unions
from doing anything not specified in the incidental enumeration of
attributes that was then, merely for the purpose of including various
kinds of associations, statutorily enacted. As a matter of fact, the
definition clause in the Act of 1876 was enacted merely to correct in
one small particular the definition clause in the Act of 1871. That
clause had defined a Trade Union as meaning “such combination ... as
would, if this Act had not passed, been deemed to have been an unlawful
combination by reason of some one or more of the purposes being in
restraint of trade.” This was found in practice inconvenient, because
it had inadvertently excluded from registration and all the benefits
of the Act those Trade Unions and Employers’ Associations which were
already lawful associations, free from any unlawful purpose. A Trade
Union had to prove that it was (but for the Act) an unlawful body
before it could be admitted to the advantages of the Act. It was
also inexpedient, because it actually offered an inducement to Trade
Unions to have purposes or methods “in restraint of trade,” in order
to obtain these advantages. Now, supposing that the Act of 1876 had
not been passed, and that the definition clause had remained in the
terms of that of the Act of 1871, would the Six Judges have equally
construed it as offering a complete and exhaustive enumeration of the
permissible activities of a Trade Union, making it actually illegal
for the future for any association of workmen or employers to deal
with the conditions of employment, _except in ways that would (but for
the 1871 Act) have been unlawful_? And if the definition clause in
the 1871 Act cannot be construed as (to use Lord James of Hereford’s
words) “a clause of limitation or exhaustive definition” of Trade
Union activities, with what consistency can the definition clause of
the 1876 Act (which follows the same wording, and merely extends the
definition so as to take in lawful as well as unlawful societies) be
so construed? Successive Chief Registrars of Friendly Societies, like
every one else, had always understood the definition clause to be an
enabling clause, not a restricting one; and they had accordingly for
a whole generation willingly registered rules presented to them by
Trade Unions, including in their objects and purposes all sorts of
things not enumerated in the definition, and not even incidental to
any of the purposes therein enumerated. It was, in 1909, not at first
realised--certainly the Six Judges did not realise--how extensive and
how varied were the actually existing operations of Trade Unions that
they were rendering illegal. Not political action alone, not municipal
action alone, but any work of general education of their members or
others; the formation of a library; the establishment or management of
“University Extension” or “Workers’ Educational Association” classes;
the subscription to circulating book-boxes; the provision of public
lectures; the establishment of scholarships at Ruskin College, Oxford,
or any other College--all of which things were at the time actually
being done by Trade Unions--were all henceforth to be _ultra vires_
and illegal. The two hundred Trades Councils, local federations of
different Trade Unions for the purpose of dealing with matters of
general interest to workmen, which took no part in the collective
bargaining of any particular Trade Union, were probably thereby
equally made illegal; though they were in 1876 already a quarter of a
century old, and in 1909 numbered nearly a million members. The annual
Trade Union Congress itself, then in its fortieth year, and dealing
almost exclusively with Parliamentary projects, came under the same
ban. The active participation which Trade Unions had here and there
taken in technical education, and their co-operation with the Local
Education Authorities, which had sometimes been found so useful, were
certainly _ultra vires_. One would suppose, strictly speaking, that a
similar illegality was to attach to all the vast “friendly society”
side of Trade Unionism, with its sick and accident and out-of-work
benefits--not one of them being referred to in the definition which
the Six Judges declared to contain an exhaustive enumeration of the
purposes and objects that Parliament intended to permit Trade Unions
to pursue. But here the Six Judges saved themselves--though in a
way logically destructive of their claim that the definition clause
itself was one of “exhaustive” enumeration of permissible Trade Union
purposes--by holding that these friendly benefits, though not mentioned
in the definition clause, were referred to elsewhere in the Act, and
might be regarded as incidental to the purpose of regulating the
conditions of employment. This, indeed, so far as benefits paid to the
workman himself are concerned, was a plausible view. Strike Benefit, in
particular, is plainly incidental to striking, and sick benefit might
conceivably be held to protect the worker from industrial oppression
whilst sick. But the same cannot be said of the most widely spread of
all Trade Union benefits, the provision of funeral money on a member’s
death. In some cases the Trade Unions were actually paying for the
funerals of their deceased members’ widows and orphan children. This
was a mere act of humanity to the deceased member’s widow and orphans;
and it could not, by any stretch of imagination, be supposed to improve
the workers’ bargaining power, or to be in any way incidental to the
regulation or restriction of the conditions of employment. Yet Funeral
Benefit was in 1909 (as it was in 1876) the one among the so-called
“friendly” benefits most universally adopted by Trade Unions. More than
a million Trade Unionists were thus effecting through their societies a
humble life insurance. This extensive life insurance business of Trade
Unions could not be said to be in any way included in the definition
clause of the 1876 Act, even if the sick and unemployment benefits
were. If the judgements in the Osborne Case were correct, the whole of
this life insurance business of Trade Unions (as distinguished from
the sick and unemployment benefits), or at least the whole of that
relating to widows and orphans, must be held to have been inadvertently
prohibited by Parliament in 1871 and 1876, and to have been ever
since _ultra vires_ and illegal. It is impossible for the plain man
to avoid the conclusion, even though the six other authorities take
a contrary view, that Lord James of Hereford was right in declaring
that the definition in the Act of 1876 was not meant by Parliament
to be “a clause of limitation or exhaustive definition” of the
permissible purposes of a Trade Union; and, accordingly, that the Six
Judges had--presumably following quite accurately the narrow technical
rules of their profession--put upon the statute a construction which
Parliament had in no way intended.
What then did Parliament intend to fix and define as the permissible
objects and functions of a Trade Union? The answer of the historical
student is clear and unhesitating. Parliament quite certainly intended,
in 1871 and 1876, to fix and define nothing of the sort; but meant,
whether wisely or not, to leave Trade Unions as they then were--as
such of them, indeed, as had no unlawful purpose or method had long
_legally_ been--namely, as free as any other unincorporated groups of
persons to take whatever action they might choose, subject only to
their own contractual agreements, and to the general law of the land.
From this position we venture, as historians, to say that Parliament
did not, in 1871 or 1876, intentionally depart.
Finally, we have the argument of the Six Judges that, seeing that the
sole lawful purposes of a Trade Union are “regulating the relations
between workmen and masters, or between workmen and workmen, or
between masters and masters,” and “imposing restrictive conditions on
the conduct of any trade or business,” no action of a Parliamentary
or political kind is within the definition, or even incidental to
anything therein. This view, to put it bluntly, showed an ignorance
of Trade Unionism, British industrial history, and the circumstances
not only of 1871-76, but also of 1908-9, which was as remarkable as
it was deplorable. On the face of it, to take first the words of the
statute, the most usual and the most natural way of “regulating” the
relations between people, and the most obvious expedient for “imposing”
restrictive conditions on industry, is an Act of Parliament. It was
to Acts of Parliament, as we have abundantly shown in _Industrial
Democracy_, that the Trade Unions had for a century been looking,
and were in 1871-76, many of them, looking, for a very large part of
the “regulating” of industrial conditions, and of the “restrictive
conditions” that they existed to promote. What the judges apparently
forgot is that conditions of employment include not merely wages,
but also hours of labour, sanitary conditions, precautions against
accident, compensation for injuries, and what not. If the Six Judges
had remembered how, in fact, in Great Britain the great majority
of industrial relations were regulated, and how the great mass of
restrictive conditions were, in fact, imposed on industry; or if they
had had recalled to them the long and persistent struggle of the Trade
Unions to get adopted the Factory Acts, the Mines Regulation Acts,
the Truck Acts, the Shop Hours Acts, and so many more, they could
hardly have argued that such actions as engaging in Parliamentary
business, supporting or opposing Parliamentary candidates, and helping
members of Parliament favourable to “regulating,” and “imposing
restrictive conditions”--actions characteristic of Trade Unions
for generations--were not incidental to these legitimate purposes.
As a matter of fact, the getting and enforcing of legislation is,
historically, as much a part of Trade Union function as maintaining a
strike.[668] One Trade Union at least, which no one ever dreamt to be
illegal, the United Textile Factory Workers’ Association, has existed
exclusively for political action, and had no other functions.[669] This
kind of Trade Union action is even antecedent in date to any corporate
dealing with employers. During the whole two centuries of Trade Union
history, as in _Industrial Democracy_ we have described, the Unions
have had at their disposal, and have simultaneously adopted, three
different methods of imposing and enforcing the Common Rules which
they sought to get adopted in the conditions of employment. From 1700
downwards they have used the Method of Mutual Insurance; from the very
beginning of the eighteenth century down to the present day the records
show them to have been continuously employing the Method of Legal
Enactment; whilst only intermittently during the eighteenth century,
and not openly and avowedly until 1824, could they rely on the Method
of Collective Bargaining. The Miners’ Unions, and the Agricultural
Labourers’ Unions, in particular, had been particularly active in
support of the extension of the franchise between 1863 and 1884. Even
the expenditure of Trade Union funds on Parliamentary candidatures
was practised by Trade Unions at any rate as early as 1868, as soon,
in fact, as the town artisans were enfranchised; and the payment of
Trade Union Members of Parliament was begun as early as 1874, and
had lasted continuously from that date. Yet the Six Judges assumed,
apparently without adequate consideration, and certainly on inaccurate
information, that Parliament in 1876 intended to authorise Trade Unions
to pursue their first and third methods, but intended to prohibit them,
from that time forth, from using the Method of Legal Enactment, just
at the moment when this latter was being most effectively employed. It
is, indeed, almost comic to remember that the Bill which is supposed to
have effected this revolution in the Trade Union position was brought
in by Lord Cross, then Sir R. A. Cross, M.P., fresh from his election
by a constituency in which the Trade Unionists had been, politically,
the dominant factor; that it was debated in a House of Commons in which
the direct influence of the Trade Unions was at the highest point
that it had hitherto reached; that at the General Election of 1874,
from which the members had lately come, the Trade Unions, as we have
described in the present volume, had worked with might and main for
the rejection of candidates opposed to their political claims, and had
had a much larger share than political historians usually recognise
in the Gladstonian defeat; that two Trade Union members were actually
then sitting in the House, one, at least (Thomas Burt), being openly
maintained as a salaried representative of his Union, by a salary
avowedly fixed on a scale to enable him to sit in Parliament;[670] that
the Conservative Government promptly introduced the particular legal
enactments to obtain which the Trade Unions had spent their money,
namely, the Nine Hours Bill, the Employer and Workman Bill, and the
Trade Union Bill; and that the Six Judges ask us to believe that the
latter Bill, which the Trade Union members themselves helped to pass,
was designed and intended to prevent Thomas Burt from drawing a salary
from the Northumberland Miners’ Mutual Confident Society whilst sitting
in the House of Commons; to prohibit the Northumberland Miners’ Mutual
Confident Society, just because it was a Trade Union, from taking any
part in future elections in the Morpeth Division, and to make the
action of this and all other Trade Unions in paying for political work
and Parliamentary candidatures, even with the unanimous consent of
their members, from that time forth illegal.
We have thought it worth while to place on record this analysis of the
legally authoritative part of the Osborne Judgement, which, though
partly modified by a subsequent statute, has not been overruled, and is
still legally authoritative, because it is of historical importance. It
is significant as showing how far the Courts of Justice were, as lately
as 1909, still out of touch, so far as Trade Unionism is concerned,
either with Parliament or with the political economists. The case was,
however, of even greater import. The bias and prejudice, the animus and
partiality--doubtless unconscious to the judges themselves--which were
displayed by those who ought to have been free from such intellectual
influences; the undisguised glee with which this grave miscarriage of
justice was received by the governing class, and the prolonged delay of
a professedly Liberal and Radical Cabinet, and a professedly Liberal
and Radical House of Commons in remedying it, had a great effect on the
minds of the wage-earners, and contributed notably to the increasing
bitterness of feeling against the “governing class,” and against a
State organisation in which such a miscarriage of justice could take
place. We must, indeed, look behind the legal technicalities of the Six
Judges, and consider what was the animus behind their extraordinary
judgement. The “subservience” of Parliament to the Trade Unions
in passing the Trade Disputes Act of 1906 had excited the deepest
resentment of the lawyers. The progress of the Labour Party was causing
a quite exaggerated alarm among members of the governing class. What
lay behind the Osborne Judgement was a determination to exclude the
influence of the workmen’s combinations from the political field. This
is really what the Osborne Judgement prohibited. One irreverent legal
critic, indeed, went so far as to remark that the Law Lords were so
anxious to make it clear that Trade Unions were not to be entitled
to pay for Members of Parliament, that they failed to heed how much
law they were severally demolishing in the process! It is instructive
to examine the arguments adduced by the Law Lords and the judges on
this point, apart from their decision as to Trade Union status. These
opinions could hardly be deemed to be law, as they all differed one
from another, and none of them obtained the support of a majority
of the Law Lords. Such as they are, however, they seem not to have
been connected with Trade Unionism at all, but with the nature of the
House of Commons. One of the Law Lords (Lord James of Hereford) merely
objected to Trade Unions paying a Member of Parliament who was (as was
quite incorrectly assumed) bound by a rule of the paying body requiring
him to vote in a particular way, not on labour questions only, but on
all issues that might come before Parliament. Another Law Lord (Lord
Shaw), with whom Lord Justice Fletcher Moulton seemed to agree, held
that what was illegal was not the payment of Members of Parliament,
but their subjection, by whomsoever paid, to a “pledge-bound” party
organisation (as the Labour Party was alleged to be). Another judge
(Farwell, L.J.) took a different line, and held that it was illegal for
a corporate body to require its own members to subscribe collectively
towards the support of a Member of Parliament with whose views they
might individually not agree. What the historian and the student of
political science will say is that these were matters for legislation,
not for the sudden intervention of the judiciary. The House of Commons
is prompt enough to defend its own honour and its own “privilege”; and
the function of the judges will begin when any of the acts referred
to has been made an illegal practice. In 1909, as now, the practices
complained of, whether or not they were correctly described, and
however objectionable to these particular gentlemen they might be, were
all lawful; and the judges and Law Lords were abusing the privileges of
their office by importing them to prejudice the legal issue.
The Osborne Judgement received the support, not only of the great mass
of property owners and professional men, but also, though tacitly, of
the Liberal and Conservative Parties. A distinct challenge was thereby
thrown down to the Trade Union world. Not only were the activities of
their Unions to be crippled, not only was their freedom to combine for
whatever purposes they chose to be abrogated, they were to be expressly
forbidden to aspire to protect their interests or promote their objects
by Parliamentary representation, or in any way to engage in politics.
It was this challenge to Organised Labour that absorbed the whole
interest of the Trade Union world for the next three or four years.
The experienced Trade Union leaders did not forget that it might
well be a matter for Trade Union consideration how far it is wise
and prudent for a Trade Union to engage in general politics. We have
elsewhere pointed out[671] with some elaboration how dangerous it may
become to the strength and authority of a Trade Union if any large
section of the persons in the trade are driven out of its ranks, or
deterred from joining, because they find their convictions outraged
by part of its action. Nothing could be more unwise for a Trade Union
than to offend its Roman Catholic members by espousing the cause of
secular education.[672] But this is a point which each Trade Union must
decide for itself. It is not a matter in which outsiders can offer
more than counsel. It is clearly not a matter in which the discretion
of the Trade Union, any more than that of an individual employer, can
properly be limited by law. For no Trade Union can nowadays abstain
altogether from political action. Without co-operating with other
Trade Unions in taking Parliamentary action of a very energetic and
very watchful kind, it cannot (as long experience has demonstrated
to practically all Trade Unionists) protect the interests of its
members. Without taking a vigorous part in promoting, enforcing, and
resisting all sorts of legislation affecting education, sanitation,
the Poor Law, the whole range of the Factories, Mines, Railways, and
Merchant Shipping Acts, the Shop Hours, Truck, Industrial Arbitration
and Conciliation, and now even the Trade Boards’ Act, the Trade Union
cannot properly fulfil its function of looking after the regulation of
the conditions of employment. But this is not all. The interests of
its members require the most watchful scrutiny of the administration
of every public department. There is not a day passes but something in
Parliament demands its attention. On this point Trade Union opinion is
unanimous. We have never met any member of a Trade Union--and Osborne
himself is no exception--who has any contrary view. To suggest that
there is anything improper, or against public policy, for a Trade
Union to give an annual retaining fee to a Member of Parliament whom
its members trust, or to take the necessary steps to get that member
elected, in order to ensure that what the Trade Union conceives to
be its own interests shall be protected, was to take up a position
of extraordinary unfairness. When more than a quarter of the whole
House of Commons habitually consists, not merely of individual
employers, but actually of persons drawing salaries or stipends from
capitalist corporations of one kind or another--when, in fact, the
number of companies of shareholders in railways, banks, insurance
companies, breweries, ocean telegraphs, shipbuilding yards, shipping
companies, steamship lines, iron and steel works, coal mines, and
joint stock enterprises of all sorts actually represented in the
House of Commons by their own salaried chairmen, directors, trustees,
managers, secretaries, or solicitors is beyond all computation--the
claim that there is something improper, something inconsistent with
our electoral system, something at variance with the honourable nature
of the House of Commons, for the workmen’s organisations to retain
a few dozen of the Members whom the constituencies (knowing of this
payment) deliberately elect, or to help such Members to provide their
election expenses, is an argument so extraordinary in its unfairness
that it drives the active-minded workman frantic with rage. It is no
answer to say that these representatives of capitalist corporations
are not expressly paid to sit in Parliament. They are at any rate
desired by their employers to sit, and permitted by the law to receive
their salaries notwithstanding that they do sit. This was forbidden
to representatives of Trade Unions. That it should be illegal for the
salaried President or Secretary of the Amalgamated Society of Railway
Servants to sit in Parliament, when it is perfectly legal for the much
more generously salaried Chairman or Director of a Railway Company to
sit there, is an anomaly hard for any candid man to defend; and the
anomaly is all the greater in that the interests of the railway company
come, almost every year, into conflict with those of the community at
large, and the railway chairman is, on these occasions, quite frankly
there to promote his own company’s Bill, and to defend the interests
of the shareholders by whom he is paid. To say that the workmen’s
organisations shall not pay their representatives in the way that
suits working-class conditions, whilst railway shareholders may pay
their representatives in the way that suits capitalist conditions--to
assume a great concern for the wounded conscience of a Liberal or
Conservative Trade Unionist who finds his Union paying its Secretary or
its President to sit as a Radical or Labour Member of Parliament, and
no concern at all for the Socialist or Radical shareholder in a railway
company who finds his company paying its Conservative Chairman M.P.--is
to be guilty of an amazing degree of class bias, if not of hypocrisy.
After all, it is not the Trade Union but the constituency that elects
the Member of Parliament. The Trade Union payment only enables him to
stand. Whatever may be thought of the policy of the Labour Party, or
the particular form of its organisation, if we regard the Trade Union
payment as a retaining fee for looking after what the Trade Union
members as a whole conceive to be their own interest; if the Trade
Union members have the opportunity of choosing, by a majority, which
among competing persons (or, for that matter, which among competing
groups of persons) they will entrust with this Trade Union task; if the
Trade Union assumes no responsibility for and exercises no coercion
upon its Parliamentary representative with regard to issues on which
it has not voted, no Trade Unionist’s political conscience need be
wounded by the fact that, outside the range of the task that the
Trade Union has confided to him, the Union’s Parliamentary agent (who
must have views of one sort or another) expresses opinions in accord
with those of the constituency that elected him, or joins together
with other members of like opinions to form a political party. When,
three-quarters of a century ago, J. A. Roebuck was the salaried agent
in the House of Commons for the Legislative Assembly of Lower Canada,
no one complained that it was against the dignity of Parliament for him
to be thus retained and paid; and so long as he attended faithfully to
Canadian business it was never contended that the tender conscience of
any Canadian Conservative was offended by the ultra-Radical utterances
or extremely independent political alliances of the Member for Bath.
THE TRADE UNION ACT OF 1913
It is an instance of the failure of both the governing class and
the party politicians to appreciate the workman’s standpoint, or to
understand the temper of the Trade Union world, that this crippling
judgement remained for nearly four years unreversed. The Liberal and
Conservative Parties were, during 1910 and 1911, quarrelling about the
Budget and the exact powers to be exercised by the House of Lords;
and two successive General Elections were fought without bringing
the Trade Unions any redress. Meanwhile, up and down the country
discontented or venal Trade Unionists were sought out by solicitors and
others acting for the employers; and were induced to lend their names
to proceedings for injunctions against their own Unions, prohibiting
them from subscribing to the Labour Party, from contributing towards
the election expenses of candidates, from taking action in municipal
elections, from subscribing to educational classes, and from taking
shares in a “Labour” newspaper. It may have seemed a skilful political
dodge, during the elections of 1910, to hamstring in this way the
growing Labour Party; but the resentment caused by such behaviour
makes it doubtful whether action of this kind is, in the long run,
politically advantageous. In the first place, the House of Commons,
in 1911, felt itself compelled, as an alternative to restoring Trade
Union liberties, to concede the payment of £400 a year to all Members
of Parliament. Finally, in 1913, the Cabinet, after a severe internal
struggle, brought itself to introduce a Bill giving power generally
to any Trade Union to include in its constitution any lawful purpose
whatever, so long as its principal objects were those of a Trade
Union as defined in the 1876 Act; and to spend money on any purpose
thus authorised. It was, indeed, provided that before the financing of
certain specified political objects could be undertaken, including the
support of Parliamentary or Municipal candidates or members, or the
publication or distribution of political documents,[673] a ballot of
the members was to be held in a prescribed form, and a simple majority
of those voting secured; the payments were to be made out of a special
political fund, and any member was to be entitled to claim to be exempt
from the special subscription to that political fund. These restrictive
provisions were opposed by the Labour Members in the House of Commons;
but with slight amendment the measure was passed into law as the Trade
Union Act of 1913.[674]
It is not easy to sum up the whole effect of the legal assaults upon
Trade Unionism between 1901 and 1913. Politically, the result was to
exasperate the active-minded workmen, and greatly to promote, though
with some delay, the growth of an independent Labour Party in the
House of Commons. On the other hand, it must not be overlooked that
the temporary crippling of Trade Unionism seemed to be of financial
advantage to that generation of employers. It was, perhaps, not
altogether an accident that the brunt of the attack had to be borne by
the Amalgamated Society of Railway Servants, a Union then struggling
for “recognition” in such a position as to make effective its claims
to better remuneration and shorter hours of labour for the whole body
of railwaymen. It may fairly be reckoned that the railwaymen were, by
means of the two great pieces of litigation to which their Union was
subjected, held at bay for something like a decade, during which the
improvement in their conditions, in spite of a slowly-increasing cost
of living, was (mainly through the evasions of the railway companies
by their silent “regrading” of their staffs) extremely small.[675] A
rise of wages to the extent of only a penny per hour for the whole body
of railwaymen would have cost the railway companies, in the aggregate,
something like five or six million pounds a year. If any such advance
was, by means of the Taff Vale Case and the Osborne Judgement, staved
off for ten years, the gain to the whole body of railway shareholders
of that generation might be put as high as fifty or sixty millions
sterling--a sum worth taking a little trouble about and spending a
little money upon, in items not revealed in the published accounts.
But the crippling effect of the litigation was not confined to the
Amalgamated Society of Railway Servants, which spent, altogether,
nearly £50,000 in law costs in defending the pass for the whole Trade
Union Movement. If, in the temporary set-back to trade in 1903-5,
and in the revival that immediately followed it; or in the recurring
set-back of 1908-9, and the great improvement of the ensuing years, the
whole body of wage-earners in the kingdom lost only a penny per hour
from their wages, or gained less than they might otherwise have done to
the extent of no more than a penny per hour, their financial loss, in
one year alone, would have amounted to something like a hundred million
pounds. And whatever they forwent in this way, they lost not during
one year only, but during at least several years, and many of them
for a whole decade. There is no doubt that the capitalist employers,
thinking only of their profits for the time being, regarded even a
temporary crippling of the Trade Union Movement as well worth all that
it might cost them. The historian, thinking more of the secular effort
upon social institutions, will not find the balance-sheet so easy to
construct. The final result of the successive attempts between 1901 and
1913 to cripple Trade Unionism by legal proceedings was to give it the
firmest possible basis in statute law. The right of workmen to combine
for any purpose not in itself unlawful was definitely established.
The strike, with its “restraint of trade,” and its interference with
profits and business; peaceful picketing even on an extensive scale;
the persuasion of workmen to withdraw from employment even in breach
of contract, and the other frequent incidents of an industrial dispute
were specifically declared to be, not only not criminal, but actually
lawful. The right of Trade Unions to undertake whatever political and
other activities their members might desire was expressly conceded.
Finally, a complete immunity of Trade Unions in their corporate
capacity from being sued or made answerable in damages, for any act
whatsoever, however great might be the damage thereby caused to other
parties, was established by statute in the most absolute form.[676]
The Trade Unions, it must be remembered, had not asked for these
sweeping changes in their position. They had been, in 1900, content
with the legislation of 1871-76. It was the successive assaults made
upon them by the legal proceedings of 1901-13 that eventually drove
the Government and Parliament, rather than formally concede to Trade
Unionism its proper position in the government of industry, and effect
the necessary fundamental amendment of the law, once more to create for
the workmen’s organisations an anomalous status.
THE RISE IN STATUS OF TRADE UNIONISM
So far we have described only the changes in the legal status of the
Trade Unions and the consequent increase in their freedom of action
and in their influence, alike in the industrial and political sphere.
This advance in legal status has been accompanied by a still more
revolutionary transformation of the social and political standing of
the official representatives of the Trade Union world--a transformation
which has been immensely accelerated by the Great War. We may, in fact,
not unfairly say that Trade Unionism has, in 1920, won its recognition
by Parliament and the Government, by law and by custom, as a separate
element in the community, entitled to distinct recognition as part of
the social machinery of the State, its members being thus allowed to
give--like the clergy in Convocation--not only their votes as citizens,
but also their concurrence as an order or estate.
Like all revolutionary changes in the British constitution, the
recognition of the Trade Union Movement as part of the governmental
structure of the nation began in an almost imperceptible way. Though
Trade Union leaders had been, since 1869, appointed occasionally and
sparsely on Royal Commissions and Departmental Committees, it was
possible, as recently as 1903, for a Government to set up a Royal
Commission on Trade Disputes and Trade Combinations without a single
Trade Unionist member. Such a thing has not been repeated. It is
now taken for granted that Trade Unionism must be distinctively and
effectually represented, usually by men or women of its own informal
nomination, on all Royal Commissions and Departmental Committees,
whether or not these inquiries are concerned specifically with “Labour
Questions”--excepting only such as are so exclusively financial or
professional that the representatives of Labour do not seek or desire
representation upon them.
In 1885-86, and again in 1892-95, Liberal Prime Ministers had appointed
leading Trade Unionists (who were, it must be noted, also Liberal
M.P.’s) to subordinate Ministerial positions, where they were permitted
practically no influence.[677] In 1905 Sir Henry Campbell-Bannerman
startled some of his Whig associates by asking Mr. John Burns--who
had presided over the Trades Union Congress as a representative of
the Amalgamated Society of Engineers, but who had sat in Parliament
since 1892 as a Liberal supporter--to join his Cabinet as President
of the Local Government Board. This recognition of Labour in the
inner councils of the Government was quickly followed by an explicit
recognition of the Trade Unions as part of the machinery of State
administration. In 1911, when the vast scheme of National Insurance
was brought forward by Mr. Asquith’s Government, and Parliament
sanctioned the raising and expenditure of more than twenty million
pounds a year for the relief of sickness and unemployment, the Trade
Unions, equally with the universally praised Friendly Societies, were
made the agents for the administration of the sickness, invalidity,
and maternity benefits, and, parallel with the Government’s own local
organisation, and to the exclusion of the Friendly Societies, also
for the administration of the State Unemployment Benefit to their
own members. But it was during the Great War that we watch the most
extensive advance in the status, alike of the official representatives
of the Trade Unions and of the Trade Unions themselves, as organs
of representation and government. It is needless to say that this
recognition was not accorded to the Trade Union world without a _quid
pro quo_ from the Trade Union Movement to the Government. Hence the
part played by the Trade Unions in the national effort, and its effect
on their influence and status, demands explicit notice.
BRITISH TRADE UNIONISM AND THE WAR
Though theoretically internationalist in sympathy, and predominantly
opposed to “militarism” at home as well as abroad, British Trade
Unionism, when war was declared, took a decided line.[678] From
first to last the whole strength of the Movement--in spite of the
pacifist faith of a relatively small minority, which included the
most fervent and eloquent of the Labour members and was supported by
the energetic propaganda of the fraction of the Trade Unionists who
were also members of the Socialist Society known as the I.L.P.--was
thrown on the side of the nation’s effort. From every industry workmen
flocked to the colours, with the utmost encouragement and assistance
from their Trade Unions; until the miners, the railwaymen, and the
engineers, in particular, had to be refused as recruits, exempted
from conscription, and even returned from the army, in order that the
indispensable industrial services might be maintained. The number of
workers in engineering and the manufacture of munitions of war had,
indeed, to be largely increased; and the Government found itself,
within a year, under the necessity of asking the Trade Unions for the
unprecedented sacrifice of the relinquishment, for the duration of the
war, of the entire network of “Trade Union Conditions” which had been
slowly built up by generations of effort for the protection of the
workmen’s Standard of Life. This enormous draft on the patriotism of
the rank and file could only be secured by enlisting the support of
the official representatives of the Trade Union world--by according to
them a unique and unprecedented place as the diplomatic representatives
of the wage-earning class. In the famous Treasury Conference of
February 1915 the capitalist employers were ignored, and the principal
Ministers of the Crown negotiated directly with the authorised
representatives of the whole Trade Union world, not only in respect of
the terms of service of Government employees, but also with regard to
the conditions of employment of all persons, men and women, skilled
and unskilled, unionists and non-unionists, engaged on any work needed
for the conduct of the war--a phrase which was afterwards stretched to
include four-fifths of the entire manual-working class. The Trade Union
Executives agreed, at this Conference or subsequently, to suspend,
for the duration of the war, all their rules and customary practices
restrictive of the output of anything required by the Government for
the conduct of the war; all limitation of employment to apprenticed
men, to Trade Unionists, to men of proved technical skill, to adults
and even to the male sex; all reservation of particular jobs or
particular machines to workers of particular trades; all definition
of a Normal Day, and all objection to overtime, night-work, or Sunday
duty; and even many of the Factory Act prohibitions by which the health
and even the safety of the operatives had been protected. In order that
the utmost possible output of munitions of every kind might be secured,
elaborate schemes of “dilution” were assented to, under which the
various tasks were subdivided and rearranged, a very large amount of
automatic machinery was introduced, and successive drafts of “dilutees”
were brought into the factories and workshops--men and boys from other
occupations, sometimes even non-manual workers, as well as women and
girls--and put to work under the tuition and direction of the minority
of skilled craftsmen at top speed, at time wages differing entirely
from the Trade Union rates, or at piecework prices unsafeguarded by
Collective Bargaining, for hours of labour indefinitely lengthened,
sometimes under conditions such as no Trade Union would have permitted.
It must be recorded to the credit of the Trade Unions that not one
of the societies refused this sacrifice, which was made without any
demand for compensatory increase of pay, merely upon the condition--to
which not only the Ministry, but also the Opposition Leaders and
the House of Commons as a whole, elaborately and repeatedly pledged
themselves--that the abandonment of the “Trade Union Conditions” was
only to be for the duration of the war, and exclusively for the service
of the Government, not to the profit of any private employer; and that
everything that was abrogated was to be reinstated when peace came.
Under stress of the national emergency, the Government made ever
greater demands on the patriotism of the Trade Unions, which accepted
successively, so far as war-work was concerned, a legal abrogation
of the employers’ competition for their members’ services by the
prohibition of advertisement for employees, and of the engagement
of men from other districts--an unprecedented interference with the
“Law of Supply and Demand”--the suspension of the right to strike
for better terms; the submission of all disputes to the decision of
a Government Department of arbitration, the awards of which, with
the abrogation of the right to strike, or even freely to relinquish
employment, became virtually compulsory; the legal enforcement
under penalties of the employer’s workshop rules; and even legally
enforced continuance, not only in munition work, but actually in the
service of a particular employer, under the penal jurisdiction of
the ubiquitous Munitions Tribunals. The Munitions of War Acts, 1915,
1916 and 1917, by which all this industrial coercion was statutorily
imposed, were accepted by overwhelming majorities at successive Trade
Union and Labour Party Conferences. It was a serious aggravation of
this “involuntary servitude” that the rigid enforcement of compulsory
military service--extended successively from single men to fathers of
families, from 18 years of age to 51--had the incidental effect of
enforcing what was virtually “industrial conscription” on those who
were left for the indispensable civilian employment; and the individual
workman realised that the penalty for any failure of implicit obedience
to the foreman might be instant relegation to the trenches. Although
this inevitable result of Compulsory Military Service was foreseen
and deplored,[679] the successive Military Service Acts were--in view
of the nation’s needs--ratified, in effect, by great majorities at
the workmen’s National Congresses. The strongest protests were made,
but as each measure was passed it was accepted without resistance,
and proposals to resist were always rejected by large majorities. It
speaks volumes, both for the patriotism of the Trade Unionists and for
the strength of Trade Union loyalty and Trade Union organisation, that
under such repressive circumstances the Trade Union leaders were able,
on the whole, to prevent their members from hindering production by
industrial revolts. A certain amount of friction was, of course, not to
be avoided. Strikes, though greatly reduced in number, were not wholly
prevented; and the South Wales coal-miners and the engineering workmen
on the Clyde--largely through arbitrary and repressive action by their
respective employers--broke into open rebellion; which led, in the one
industry, to the Government overriding the recalcitrant South Wales
employers and assuming the direction and the financial responsibility
of all the coal mines throughout the kingdom; and, in the other, to
the arbitrary arrest and deportation of the leaders of the unofficial
organisation of revolt styled the “Clyde Workers’ Committee.” The Trade
Union Executives and officials, whilst restraining their members and
deprecating all stoppages of production, were able to put up a good
fight against the unnecessary and unreasonable demands which, with a
view to “after the war” conditions, employers were not unwilling to
use the national emergency to put forward. These Trade Union spokesmen
had to obtain for their members the successive rises in money wages
which the steadily rising cost of living made necessary, and they had
constantly to stand their ground in the innumerable mixed committees
and arbitration proceedings into which the Government was always
inveigling them. On the whole, whilst co-operating in every way in
meeting the national emergency, the Trade Union organisation during
the four and a-quarter years of war remained intact; and Trade Union
membership--allowing for the millions absent with the colours--steadily
increased. Nor did the Trade Union Movement make any serious revolt
when the Government found itself unable to fulfil, with any literal
exactness, the specific pledges which it had given to Organised Labour.
The complications and difficulties of the Government were, in fact, so
great that the pledges were not kept. The first promise to be broken
was that the abrogation of Trade Union Conditions and the removal of
everything restrictive of output should not be allowed to increase the
profits of the employers. The so-called “Munitions Levy” was imposed
in 1916 on “controlled establishments,” in fulfilment of this pledge,
in order to confiscate for the Exchequer the whole of their excess
profit, over and above a permitted addition of 20 per cent and very
liberal allowances for increased capital and extra exertion by the
employers themselves. It will hardly be believed that, in flagrant
disregard of the specific pledge, within a year this Munitions Levy
was abolished; and the firms especially benefiting by the workmen’s
sacrifices were made merely subject, in common with all other trades
where there had been no such abrogation of Trade Union Conditions, to
the 80 per cent Excess Profits Duty, with the result of increasing
the net income left to those employers whose profits had doubled,
and of doing, with regard to all the employers, the very thing that
the Trade Unions had stipulated should not be done, namely, giving
the employers themselves a financial interest in “dilution.”[680] As
the war dragged on, and prices rose, the successive war-bonuses and
additions to wages--especially those of the miners and the bulk of
the women workers--in many cases fell steadily behind the rise in the
cost of living; and in 1917 the War Cabinet was actually guilty of a
formal instruction to the presumedly impartial central arbitration
tribunal that no further increase of wages was to be awarded--an
instruction which, on its public disclosure, had to be apologised for
and virtually withdrawn. Even the pledge as to wages in the solemn
“Treasury Agreement” of 1915, at which the “Trade Union Conditions”
were surrendered, was not fulfilled, at any rate as regards the women
workers; and had to be made the subject of a subsequent serious
investigation by the War Cabinet Committee on Women in Industry, in
which all the “white-washing” of a Government majority failed to
convince the Trade Unionists, any more than it did the only unpaid
member of the Committee, that the Government officials had not
betrayed them.[681] The solemnly promised “Restoration of Trade Union
Conditions” was only imperfectly carried out. What the Government did,
and that only after long delay, was not what it had promised, namely,
actually to see the pre-war conditions and practices reinstated, but
to enact a statute enabling the workmen to proceed in the law courts
against employers who failed to restore them; continuance of any such
restoration to be obligatory only for one year.[682]
The Trade Unionists, in fact, who had at the outset of the war
patriotically refrained from bargaining as to the price of their
aid, were, on the whole, “done” at its close. Though here and there
particular sections had received exceptionally high earnings in the
time of stress, the rates of wages, taking industry as a whole, did
not, as the Government returns prove, rise either so quickly or so high
as the cost of living; so that, whilst many persons suffered great
hardship, the great majority of wage-earners found the product in
commodities of their rates of pay in 1919 less rather than more than
it was in 1913. During the war, indeed, many thousands of households
got in the aggregate more, and both earned and needed more; because
the young and the aged were at work and costing more than when not
at work, whilst overtime and night-work increased the strain and the
requirements of all. When peace came, it was found that the Government,
for all its promises, had made no arrangements whatever to prevent
unemployment; and none to relieve the unemployed beyond an entirely
improvised and dwindling weekly dole, which (so far as civilians were
concerned) was suddenly brought to an end on November 20, 1919, without
any alternative provision being immediately made.