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was £2,109,656, the highest of all the years given in the table, and the expenditure was £1,814,727. Then there is a chart and a table showing the fluctuations in the 14 Mar. 1904. amount of funds in hand of the 100 unions and the expenditure. The slowest increase made in any year was in 1997, which was the year of the engineering dispute. Taking the expenditure of the 100 unions under the various headings of "dispute benefit," unemployed and friendly benefits," and working and other expenses of management," it is found that in 1902 11.9 of the total expenditure was spent upon disputes; 66.2 upon unemployed and friendly benefits, and 21.9 upon working and other expenses of management; which shows that a comparatively small amount was expended upon disputes and a very large amount indeed upon unemployed and friendly benefits. I have also a table here showing the amount in each year spent upon those things. During the eleven years from 1892 to 1902, the 100 principal unions have expended £16,900,000, of which amount over £10,300,000 or 61 per cent. has been spent on unemployed and friendly benefits, about £3,200,000, or 19 per cent. of the total has been spent upon dispute benefit, and the remaining 20 per cent. on working and other expenses of management. The lowest percentage of expenditure on dispute benefit was 9.4 in 1899 and the highest 34.5 in 1897-that was the engineering dispute once more. Then there are some charts showing that. There are also some charts summarising the statistics of strikes and lock-outs in the United Kingdom in each of the ten years from 1893 to 1902, which are based on the published Returns of the Labour Department of the Board of Trade. I think I might put them in just as they stand without any comment. They require to be looked at afterwards.

12. Then you put in all those tables ?--Yes (handing in the same. Vide Appendices, pp. 1-4.) I also put in some tables which have been prepared specially for the St. Louis Exposition with charts showing the trade disputes and the number of work people directly affected, classified by their trades, causes, and results, for the ten years from 1894 to 1903; a chart showing the membership of all trade unions in each year from 1893 to 1902, and the mean for the period, classified by trades; and a chart showing an analysis of the expenditure of trade unions on the different things. These are on pages 22, 23, and 24 of this book. There is another on page 21. Those are the four pages (handing in a book. Vide Appendices, pp. 5 and 6.)

13. Now coming to the Taff Vale case, would you just tell us first of all, shortly, what the history of that case was?— The Taff Vale case is reported so far as it came on appeal from Mr. Justice Farwell to the Court of Appeal [1901] 1 K.B., 170, and before the House of Lords [1901] A.C., 426. Shortly, that case declared that a Trades Union can be sued for the wrongful acts of its officers acting within the scope of their authority. The action was brought by the plaintiffs against the Amalgamated Society of Railway Servants, which is a Trade Union registered under the Acts, against Mr. Richard Bell, the general secretary, and against the local secretary at Cardiff, "for an injunction to restrain the defendants from watching, or besetting, or causing to be watched, or beset, the Great Western Railway Station at Cardiff, or the works of the plaintiffs, or any of them, or the approaches thereto, or the places of residence, or any places where they might happen to be, of any workman employed, or proposing to work for, the plaintiffs, for the purpose of persuading or otherwise preventing persons from working for the plaintiffs, or for any purpose except merely to obtain or communicate information and from procuring any persons who had or might enter into any contracts with the plaintiffs to commit a breach of such contracts." It was found that they were liable.

14. But you have only at this moment given us the claim for the injunction ?—That was the action brought.

15. Then there must have been counts for damages, surely, or they could not have tried the case ?-They olaimed for an injunction and other relief, which would include a claim for damage.

16. (Mr. Cohen.) No damages were then assessed? No.

17. (Chairman.) But I suppose the damages came under other relief." There had not to be another

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action started?-No. The claim was for an injunction and other relief, and that includes damages. As the Master of the Rolls (A. L. Smith) at the beginning of his judgment says, This is an action brought by the Taff Vale Railway Company against a Trade Union in its registered name of 'The Amalgamated Society of Railway Servants,' and against Richard Bell and James Holmes, officers of the union, for unlawful picketing, and it claims an injunction and other relief, which would include a claim for damages."

18. (Mr. Cohen.) There were no damages awarded at that stage? Not at the time.

19. (Chairman.) There were eventually ?-Yes. Mr. Justice Farwell held that the unions could be sued, and he did it upon the broad ground that they had certain rights of suing given them by the Acts, and that, therefore, there attached the correlative right of others to sue them. The Court of Appeal, consisting of the Master of the Rolls (A. L. Smith), and Lords Justices Collins and Stirling, reversed that decision of Mr. Justice Farwell, the injunction was dissolved and the appeal allowed. Upon appeal to the House of Lords, the decision of Mr. Justice Farwell was restored, and the short ground upon which that decision was given, in the words of Lord Halsbury, was, "If the Legislature has created a thing which can own property, which can employ servants, and which can inflict injury, it must be taken, I think, to have impliedly given the power to make it suable in a court of law for injuries purposely done by its authority and procurement." That decision came as a new thing to many-to all 1 may say-of the Trade Unions, because an opinion had grown up that the Trade Unions could neither sue nor be sued. There had been one or two cases in which Trade Unions had been before the courts, but no particular attention had been given to the courts dealing with the Trade Unions. I refer to a case in 1892, Pink v. The Federation of Trades Unions (67 L.T. 258), in which an injunction was made perpetual against the Federation, with costs, to restrain the publication of a circular accusing the plaintiffs of boycotting lightermen. But, in point of fact, the defendants, the Federation, although the injunction was made perpetual against them with costs, did not appear; they took no notice of it.

20. It was a case ex parte, in absence ?-Yes.

21. (Mr. Sidney Webb.) And it is not quite clear that that was a Trades Union case; but it does not much matter?-It is called the Federation of Trades Unions; they would come within the definition of a Trade Union in the Act. However, they did not appear, and no notice was taken of it.

22. (Mr. Cohen.) The question was not noticed at all then, whether a Trade Union could be sued ?No, it was not argued.

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23. Or noticed in the judgment I mean ?- No notice of that kind was taken at all. In 1894 there occurred the case of Temperton v. Russell, which afterwards came up on another matter, but on this point of suing is reported in [1893] 1 Q.B., 435. There the writ was ordered to be amended as not being under Order XVI. Rule 9. The head note is this: Order XVI., Rule 9, provides that where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the court or a judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested. The writ of summons in an action stated that the plaintiff sued the defendants, who were respectively the officers of several trade unions, as well as on their own behalf as on behalf of, and representing all the members of each of the societies to which they respectively belonged. The action was for maliciously and wrongfully procuring and coercing persons who had entered into contracts with the plaintiff to break such contracts and to refuse to enter into other contracts with the plaintiff, and for conspiracy to injure the plaintiff. The plaintiff claimed damages and an injunction: Held, affirming the decision of a Divisional Court, that the case was not within Order XVI., Rule 9, and the writ must be amended by striking out the words indicating that the defendants were sued in a representative capacity. Order XVI. Rule 9, applies only to persons who have or claim some proprietary right, which they are asserting or defending in the cause or matter." Lord Justice Lindley said, "The question

really turns on the meaning of the words' having the same interest in one cause or matter.' This expression only extends, we think, to persons who have or claim some beneficial proprietary right which they are asserting or defending in the cause or matter. Who are the persons against whom he seeks redress? They are a number of persons belonging to various trade unions acting more or less in concert; but the persons assumed to be represented by the officers of those trade unions have no such interest as is contemplated by the rule as above explained." That case did not come up upon that point before any Court for a long while; but that the opinion of the public upon it was that a trade union could not be sued appears from the fifth and final report of the Royal Commission on Labour in the year 1894. At page 40 it is said, "It must be observed that although the Act of 1875 excmpts conduct which does not amount to intimidation in the sense which the courts give to intimidation, from penal consequences, it leaves untouched the right, if any, of persons injured by such conduct to bring civil actions to recover damages. It may be true that even where the employer or non-unionist workman may have the civil remedy referred to, that remedy may yet in many cases be practically valueless. Although the discharge of the workman from employment may be due to decisions taken by a trade union, and consequent action by some official on its behalf, the trade union cannot be sued, nor can damages be recovered from its collective funds. In the recent case of Temperton v. Russell and others, the plaintiff, who carried on business as a builder. sued the officers of three trade unions, and of the joint Committee of these trade unions, as well on their own behalf as on behalf of and representing all the members of each of the said societies and joint committee to which they severally belong' for damages, and also for an injunction to restrain the trade unions and joint committee from molesting him in the conduct of his business. It was held by the Lord Chief Justice and Mr. Justice Hawkins that the plaintiff was not entitled to sue the trade union officers, who were defendants in their representative character, but only as individuals, and this decision was confirmed by the Court of Appeal. Damages were subsequently recovered in this action against the officials of the three trade unions, and an injunction obtained restraining the defendants. This case shows that persons injured by the action of trade unions and their agents can only proceed against the agents personally, and whilst they may obtain verdicts against them, they may, in many easily conceivable cases, be unable to recover adequate damages. This difficulty is one which illustrates the inconvenience which may be caused by the existence of associations having, as a matter of fact, very real corporate existence and modes of action but no legal personality corresponding thereto."

This

24. That is accentuated at page 115 ?—Yes, at pages 115, 116, and 117, where the majority of the Commission are arguing that the right of incorporation should be granted, they speak of the impossibility of suing; and the same thing occurs at page 146, where the minority strongly object to that, and give as their reason the following: "One proposal made to the Commission by several witnesses appears to us open to the gravest objection. suggestion is that it would be desirable to make trade unions liable to be sued by any person who had a grievance against the action of their officers or agents. To expose the large amalgamated societies of the country, with their accumulated funds, sometimes reaching a quarter of a million sterling, to be sued for damages by any employer in any part of the country, or by any discontented member or non-unionist, for the action of some branch secretary or delegate would be a great injustice. If every trade union were liable to be perpetually harassed by actions at law on account of the doings of individual members; if trade union funds were to be depleted by lawyers' fees and costs, if not even by damages or fines, it would go far to make trade unionism impossible for any but the most prosperous and experienced artisans. The present freedom of trade unions from any interference by the courts of law, anomalous as it may appear to lawyers, was, after prolonged struggle and Parliamentary agitation, conceded in 1871, and finally became law in 1876. Any "attempt to revoke this hardly won charter of trade union freedom, or in any way to tamper with the purely voluntary character of their associations would in our opinion provoke the most embittered resistance from the whole

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body of trade unionists, and would, we think, be undesirable from every point of view." That statement by the minority in 1894 I cite for the purpose of showing what the opinion in 1894 was upon this question of suing and 14 Mar. 1904 being sued. Then in 1895 the point came up again in Trollope and Sons v. the London Building Trades Federation, (72 L.T. 342; 11 Times L.R. 228). In that case the Court of Appeal affirmed an injunction restraining a libel by a trade union, but the trade union had entered no appearance, so it went in default of appearance, before Mr. Justice Kekewich, and that judgment of his was affirmed. Once again it is the case of a union not appearing, and no notice being taken. Then in 1899 in Lyons v. Wilkins [1899] 1 Ch. 255, the name of the trades union was struck out by Mr. Justice Byrne, but the point was not argued whether they were liable or not. So that really it came up, first of all, in the Taff Vale case, and about the same time, February, 1901, in the case of Linaker v. Pilcher, (17 Times L.R. 256). There a trade union organ was registered as a newspaper, in the name of the Trustees of the Amalgamated Society of Railway Servants, and in that paper there was a libel upon a man, who sued them and was awarded damages by a jury against the trustees, the judge holding that the plaintiff was entitled to be indemnified out of the funds of the trade union.

25. In what year was that ?-That was in 1901. 26. (Chairman.) The same time as the Taff Vale case? -Yes, but after the judgment.

The

27. (Mr. Sidney Webb.) And the same union ?—Yes. So that from 1894 to 1901 the point had really not been up to be argued, but the belief evidently was that trade unions could not be sued. The first doubt that was thrown upon that judgment in Temperton v. Russell occurred in 1901 in the case of the Duke of Bedford v. Ellis, [1901] A.C. 1, which is mentioned again in the Taff Vale case, and I have got the quotation from the Taff Vale case by Lord Macnaghten [1901] A.C. 439, where Lord Macnaghten says, "Temperton v. Russell, as I said in Duke of Bedford v. Ellis, was an absurd case. persons there selected as representatives of the various unions intended to be sued were selected in defiance of all rule and principle. They were not the managers of the union; they had no control over it or over its funds. They represented nobody but themselves. Their names seem to have been taken at random for the purpose, I suppose, of spreading a general sense of insecurity among the unions, who ought to have been sued, if sued at all, either in their registered name, if that be permissible, or by their proper officers-the members of their executive committees and their trustees." Of course the Taff Vale case has been followed in other cases, since, such as the Glamorgan Coal Company Limited v. South Wales Miners' Federation, 1902 (18 Times L.R. 810), Giblan v. The National Amalgamated Labourers' Union of Great Britain, 1902 (18 Times L.R. 500), and in the recent case this year of the Denaby and Cadeby Collieries Companies, of which there is no law report until the case has been before the Court of Appeal, but the daily reports are to be found in The Times newspaper of Jan. 28, 29, 30, Feb. 2, 3, 4, 5, 6, 9, 10, 15.

28. (Chairman.) Now, I should like to ask you a question here, because I want, if possible, to disentangle the substance of this thing from that amount of form which is necessarily wrapped up in any particular system of jurisprudence, but which would be quite different, say, in my own country-I mean the question of the way in which you bring a person into court, as opposed to the question really of the merits, in the sense, I mean, of whom you can make liable. I noticed the sentence you have just read from Lord Macnaghten, that the proper way would have been to sue either in the incorporated name, it if was permissible, or in the name of the proper officers or trustees. Am I right in thinking that the Taff Vale case seems to have been the first in which they actually used the registered name ?-It was the first case, I think, in which any Association sued by its registered name appeared. There were those two libel cases in which apparently they did not appear.

29. I will take back the word "registered" if it is wrong. I used it simply because Lord Macnaghten used it; but what I want to get at is the difference between the descriptive name of the Society, who may, or may not, be registered, and the question of taking up the surname A 2

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of a single officer or trustee?—I am unable to say whether those two societies, the London Building Trades Federation and the Federation of Trades Unions, who had these 14 Mar.1904. cases against them, were registered or not.

30. But it comes to this, does it not, that the Taff Vale case was the first litigated case in which there was any attempt to proceed against what I call the descriptive name, which will do as well as any other expression, I think?-Exactly.

31. Upon that I should like to ask you this-asking you as an English lawyer-in Trollope's case it was against some association, and they got an injunction by default; that is so, is it not?-Yes, the Trade Union did not enter an appearance.

32. No, but at any rate it seems to have been presented against the trades union under its descriptive name, and an injunction was granted by default ?—Yes.

33. I want to ask you as an English lawyer-supposing they had gone on publishing the libel, how would you have worked out the injunction, when the injunction had been granted against the descriptive name ?-At that time?

34. I mean that the people who asked for the injunction must have had some theory, at any rate, as to what they would do with it when they got it, if it did not stop the people issuing the libel at once ?-I presume they would have tried to attach the funds if there were damages.

35. (Mr. Cohen.) A sequestration of funds where there was incorporation might be asked ?—It is a difficult thing to say.

36. (Chairman.) I do not wonder it was a puzzle; it is really part of the object of my question. You tell us that you do not know as a matter of fact whether they were registered or not ?-No, I do not know whether the cases themselves would say whether they were registered; I have not the reports here.

37. But speaking for a moment from my own memory of the judgment, there is nothing in the Taff Vale case which turns upon registration per se; does it, or does it not?-What the Taff Vale case must be taken to decide, I think, is, that a registered trade union is liable; but there are certain dicta to which I am going to allude later on, the effect of which, if they are the law, raises a very important point with regard to unregistered trade unions being sued.

38. (Mr. Cohen.) But the judgment of Mr. Justice Farwell and the opinion of the Lord Chancellor were limited entirely to registered trade unions?—That is so.

39. And the ratio decidendi was founded entirely upon that consideration, that a legal entity was created by the registration ?—These are the dicta with regard to unregistered Trade Unions. Lord Justice Lindley said, "I have myself no doubt whatever that if the trade union could not be sued in this case in its registered name, some of its members (namely, its Executive Committee) could be sued on behalf of themselves and the other members of the society, and an injunction and judgment for damages could be obtained in a proper case in an action so framed." Lord Macnaghten on the same occasion said, “I have no doubt whatever that a trade union, whether registered or unregistered, may be sued in a representative action if the persons selected as defendants be persons who, from their position, may be taken fairly to represent the body." Then also Lord Justice Vaughan Williams is reported, Glamorgan Coal Company, Limited, and others v. the South Wales Miners' Federation and others (19 Times L. R. 1903, p. 707), to have said that this Federation, "according to the decision in the Taff Vale case, is a thing which can own property, and which can employ servants, and which can inflict injury, and to which the Legislature has impliedly given the power to sue, and on which the Legislature has imposed the liability to be sued for injuries purposely done by its authority and procurement; that is on the point of suing. 40. (Chairman.) That is a registered company ?-Yes, that is a registered company; that is on the point of suing as the correlative to being sued. I am taking two statements together, first the statement that unregistered unions can be sued or sue, and also what actually was not in the Taff Vale judgment, the statement that registered unions can sue. And Lord Shand, also in the Taff Vale case, said: "A registered trade union has an exclusive right to the name in which it is registered, a right to hold a limited amount of real estate and unlimited personal estate, for its own use

and benefit, and the benefit of its members, the power of acting by its agents and trustees, and is liable to be sued for penalties, as it appears to me, in the society's name. I am clearly of opinion that these and the provisions generally of the statutes imply a liability on the society, to be sued in its trade union name, and a privilege of thus suing." Neither of those two points of these unregistered unions being sued and suing, and of registered unions suing as well as being sued, were necessary to the decision in the Taff Vale case, but they are both alluded to by the judges in it.

41. (Mr. Cohen.) But there is no privilege conferred by the Act of 1871, I think, upon a registered trade union, is there? They are merely declared not to be unlawful associations, but there is no privilege conferred at all ?— No, I think not.

42. (Chairman.) Do you find, prior to the report of 1894, a discussion upon the subject of what powers of suing and being sued ought to appertain to trade unions?-Going back to the year 1867, I find that, in the Minority Report of the Royal Commission of that year, by Mr. Frederick Harrison and the late Judge Hughes, they dealt with the question in the following manner :-"A very serious question arises here as to whether legislation of a far more compre. hensive character is not needed to place trade unions on a full legal footing; whether, in fact, a complete statute should not be enacted analogous to the provisions of the Friendly Societies Act, and the Joint Stock Companies Acts, and the like, by means of which uniform rules would be framed for the formation, management, and dissolution of these associations, and by which they should be enabled to sue and be sued by their members, to recover from members their contribution or fines, and to be made liable to members for the benefits assured. We are inclined to believe that the time has not yet come, if it ever will come, for any such statute. The amount of feeling which this question arouses on both sides, the great irritation of those who have suffered by trade unions and the extreme jealousy on the part of their members of State interference would, we are convinced, render the attempt to pass such a measure impracticable. We are far from seeing any certainty that such an Act is even ultimately desirable. Trade unions are essentially clubs, and not trading companies, and we think that the degree of regulation possible in the case of the latter is not possible in the case of the former. All questions of crime apart, the objects at which they aim, the rights which they claim, and the liabilities which they incur, are for the most part, it seems to us, such as Courts of law should neither enforce nor modify, nor annul. They should rest entirely on consent." When the Bill of 1871 was brought in, Mr. Bruce, then Home Secretary, quoted that paragraph of the Minority Report, and used these words: "It is in accordance with that opinion that the measure of the Government has been framed." So that the Government, in introducing the Bill, evidently took the Report of the Minority, which Report opposed the idea of trade unions being sued. Also after the Bill had been passed, in 1875, at the Trade Union Congress at Glasgow, a motion was brought forward that trade unions should be Incorporated and have the power of suing and being sued. That was most strongly opposed, and there were only three people in favour of it. At the Trade Union Congress, Mr. George Howell, who was secretary of the Parliamentary Committee, said, "Their Scotch friends seemed to be rather fond of law; in England they endeavoured, as far as possible, to keep out of the Law Courts. It might seem a simple thing that societies should have the right of suing and being sued, but it involved trade questions, and trade rules, which were often so complicated that Courts of Justice could not possibly deal with them." And then Mr. Kennedy "considered that the right to sue and be sued would give to unscrupulous persons the power to drag societies from Court to Court, perhaps at the instigation and expense of employers, until the funds were completely drained and the societies split up. By introducing such a clause, they would be breaking a stick to beat their own back," and Mr. George Odger was strongly opposed to the principle embodied in the amendment, holding that it would give rise to vexatious prosecutions and endless confusion. It would (he said) be productive of no good, while it would embarrass the societies in every direction.

43. May I take it that the earlier history of trade unionism and the law appertaining thereto was all really connected with what I may call the struggle for existence. I mean to say that the first and initial difficulty of a trade union was to exist without being struck at as an illegal

body, was it not?-Quite so. Of course the first great object was to get rid of the criminal responsibility.

44. That is what I mean; and therefore do you think that these considerations of civil liability which we are now thinking of, did not really emerge till the first great struggle was over?-But they were all considered in 1894.

45. But 1894 is coming to very modern days? A moment ago you were speaking of what was being thought of in 1875 ?-Yes, quite so.

46. But you would look upon that as the correct view, would you not ?—Yes, I think so.

47. Then would it also be correct to say that after their charter of existence, so to speak, had been vindicated as against the criminal law, the first question of civil liability which emerged was rather in regard to the relations of themselves to their own members than the relations of them to outsiders who were not members of a trade union at all?-I think that was the most important matter that they had in their minds, but I think that then so far as these statements go, and in my opinion most certainly now, the trades unions and working men generally have got a great objection to the law courts and to having a great deal of litigation thrust them. upon

48. But then you see when you say that they have an objection to the law courts, that may be of two kinds. We might all have an objection to the law courts if it meant that we were to be allowed to do what we liked and nobody was to stop us; but on the other hand you might say that it was quite a fair desire that in creating a certain body you should create it upon the condition that so far as all internal management was concerned the law courts were not to be invoked. It is very much analagous, is it not, to the clause in a partnership deed which binds you to refer all partnership disputes to arbitration and ousts the jurisdiction of the law courts altogether ?—Yes. Of course arbitration probably might come in a great deal more supposing the example of the Friendly Societies Acts were more followed; but I may point out that in 1894 this minority Report, at page 146, uses these words: “If every trade union were liable to be perpetually harassed by actions at law on account of the doings of individual members; if trade union funds were to be depleted by lawyers' fees and costs, if not even by damages or fines, it would go far to make trade unionism impossible for any but the most prosperous and experienced artisans." That is what I meant by an objection to the law courts.

I am

49. I am not doubting that the idea had come well to the front by 1894; I am only throwing out these as suggestions, not as my considered opinions of course. rather asking you this :-Reading the Act of 1871, supposing you had never seen it before, would it not be very difficult to conclude that it really dealt, in any way, with the civil liability to outside people. It dealt with the criminal matter and it also dealt with the courts ?-I quite agree.

50. And the question of restraining the action of the members ?-Taking the Act of 1871 as a separate entity, as it were by itself, that seems to me to be the principal effect of it upon one's mind.

51. (Mr. Cohen.) May I first ask this question-I think it points to the same conclusion. Is it not true that the Trade Union Act 1871 had mainly two objects in view? One was to legalise trades unions, that is to say, to prevent them from being considered criminal associations, and to enable them, if registered, to hold property and acquire rights and legal protection in respect of that property; and the other object was to leave the control of the affairs of the union entirely to its own members without any power given them to invoke the aid of the courts in enforcing the rules regulating the position of the members towards one another or towards the union. Those were the two objects, were they not?— I think, if I may say so, that sums up admirably the effect of the Act of 1871.

52. So that, as our Chairman has said, there are no provisions as regards outsiders or strangers ?-No. On that point of suing which was being mentioned before with regard to unregistered trade unions suing, and which was mentioned in the dictum of Lord Macnaghten, one difficulty that seeins, prima facie at any rate, to come forward is that according to the Act of 1876, section 16, which amended section 23 of the principal Act and defined a trade union, it is provided that The term

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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 14 Mar. 1904. 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." That definition of a trade union is extremely wide, and under it if unregistered combinations are liable it is difficult to see why such things as employers' associations, joint wages committees, sliding scale committees, or conciliation boards are not trade unions as combinations for regulating the relations or for imposing restrictive conditions within the meaning of that section, and so liable, under the Taff Vale decision, to be sued or to

54. (Mr. Cohen.) Then may I ask you what is the ratio decidendi in the Taff Vale case taking the Lord Chancellor's judgment or Mr. Justice Farwell's ?-I think I quoted Lord Halsbury's words, in which he said “If the legislature has created a thing which can own property, which can employ servants, and which can inflict injury, it must be taken I think to have impliedly given the power to make it suable in a court of law for injuries purposely done by its authority and procurement." In reading the judgment that seemed to me to sum it up as clearly as anything.

55. In what way has the Act of 1871 created such an entity as regards unregistered trade unions? That is the real question, is it not ?—You are confining it to the Act of 1871 ?

56. Any other Act you like to mention?-Or as an unregistered body?

57. I mean in what way has the Legislature made an unregistered trade union an entity such as this described by the Lord Chancellor and by Mr. Justice Farwell?-I think that registration was added to trade unions as an additional privilege, but that Section 2 of the Act of 1871 shows that the restraint of trade is not to render trade unions unlawful, and gives them, whether registered or unregistered, the position of combinations which are permitted by law. Of course there are certain sections in these Acts which make it still more difficult to see how the Acts can avoid being amended if the Taff Vale judg. ment is to stand. For instance, Section 4 of the Act of 1871 is one upon which I shall speak later, but upon this point of suing it says specifically that certain legal proceedings shall not be enforced as between members of a trade union. Now a trade union under the Taff Vale decision, at any rate a registered trade union under that decision, would be liable for damages supposing that that union caused a workman to break his contract with his employer, but Section 4 would prevent the union from getting damages, supposing a contract was broken with the union, supposing the workman ceased to be a member of the union and the union desired to obtain damages from him or to get money. The correlative right to sue by employees as against the union does not seem to exist, because it is expressly forbidden by the Trade Unions Act.

58. (Chairman.) I am not sure that I follow you. Is that correlative ?-Perhaps correlative is the wrong word to use, but freedom of suing and being sued exists more for the employer than it does for the workman with that

section.

59. Of course if you mean by freedom that the one is debarred from nothing and the other is by terms debarred from certain things, that is true, but so far as one thing is the correlative of the other, there is nothing in Section 4 to prevent the union suing an employer, an outsider?But then it will have to sue him for the breach of an agreement which cannot be entertained in a court of law.

60. He could sue him for that, and he could also surely sue him in this case, could he not? We need not use the

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word employer, because the point is not so much" employer as outsider here. Supposing the union contracted with an ordinary tradesman for printing, say, 14 Mar. 1904. there is nothing in Section 4 to prevent them suing him for breach of contract ?—No, but supposing a workman broke his contract with the union at the instigation of an employer, he has broken an agreement, with regard to directly enforcing any damages for which no entertainment in a court of law is to be allowed.

61. (Mr. Sidney Webb.) There is another point. Does not the disability go further, that in the event of a trade union being successfully sued for damages for some act committed by either its officers or its members as its agents, the union cannot then recover from those members any proportion of the damages which their wrongful action has caused it to be liable for ?-It looks very much as if it was so, in view of what Section 4 lays down.

62. Is there any analagous disability of that sort within your recollection ?-No.

63. I mean of a corporate entity being liable and yet not being able to recover from those persons who have caused it to be liable ?-I do not know a corporate entity which has been formed in that way by a statute evidently passed with a different view before the makers of it than that which it is now found to hold.

64. (Chairman.) I suppose there is no other instance of a corporate entity which is precluded from invoking the law courts for breach of its own family arrangements? -Not so far as I am aware.

65. (Mr. Sidney Webb.) Then the trade union has no means of preventing its agents from involving it in this liability?—It is no use ordering an agent not to do so and so if he afterwards goes and does it, if it is within the scope of his employment.

66. And he can do it with impunity ?-The instance which has been cited I think in various articles is that of a carriage and coachman. If the coachman is driving your carriage to the station and runs into a 'bus, whether you told him not to run into a 'bus or not, you are liable as the principal.

67. But then the employer in that case would theoretically have the right to recover damages from the coachman for having wrongfully let him in for that liability ?— Yes.

68. And a trade union is expressly precluded from recovering from its members who are its agents doing wrongful acts, the damages in which they have landed them? -It seems to me that is so, so long as Section 4 of the Act of 1871 lasts.

69. (Chairman.) I suppose the answer to that would be, would it not, in the outsider's mouth to say, "That is your own affair; if you think it for your benefit to have an embargo upon all legal proceedings between you and your own members, it may be for your benefit; but that is not to prejudice me" ?—It might be a valid argument from that point of view.

70. (Mr. Cohen.) But are you quite sure that is so? Does the 4th Section preclude any action to recover damages for a tort? I do not think it touches that question?-It is an action for damages for breach of agreement, whether for breach of contract or implied contract, I think, An action for tort?

71. (Chairman.) Let us test that; let us take some other action. Supposing the trade union members went to the headquarters of the society and smashed all the furniture, do you think Section 4 would prevent its recovering at law. That would seem to test it ?—No, I do not think it would. If it was damage for breach of implied contract, I think it would come within the section.

72. (Mr. Sidney Webb.) If a trade union member has done something which the House of Lords holds the trade union liable for, does that give the trade union an action for tort against that member ?-I think not.

73. (Chairman.) That is an ambiguous phrase when you say "I think not." He might not have it because tort would not lie, or he might not have it because it is barred by the 4th Section. Which do you mean in saying "I think not ? If it was simply an action for tort, I do not think it would come within the 4th Section. If it was an action for breach of an implied contract, I think it would.

74. Then you think, evidently, that the right which the trade union would prima facie have against its own officer who had done something which subjected it to damages from an outsider, would be an action which in some form or other is based upon implied agreement, and therefore is struck at by Section 4 ?-If it was something done by a person employed upon which you could recover damages from him by an action laid on implied contracts, I think it would come within Section 4.

75. (Sir Godfrey Lushington.) Will you point out the words of Section 4 which deal with that ?" Nothing in this Act shall enable any court to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements.”

76. Which is the agreement ?-It gives the different agreements.

77. But which of them do you rely upon ?—No. 4:-"Any agreement made between one trade union and another

is

one of them; and No. 1 is, "Any agreement between the members of a trade union as such concerning the conditions on which any members for the time being of such trade union shall or shall not sell their goods, transact business, employ or be employed."

78. (Mr. Cohen.) Do you think that comes within it ?—— I think it goes very close to it.

79. (Chairman.) I suppose there is no case on this point, so far as you know ?-No.

80. A trade union has never tried to recover from its peccant agent ?—Not so far as I am aware.

81. I think we have really got in your general examination to the end of the Taff Vale case, and you have pointed out the various cases in which the ques tion of suing trade unions has been mooted, and you have appealed to the state of public opinion as shown by the Labour Commission prior to the Taff Vale case. Now I think that would lead next to the point dealing with such proposals of change as have been made in your knowledge in the law as settled by the Taff Vale case ?-The proposals which were made in 1894 by the Labour Commission tended, according to the report of the majority, towards incorporation, which may be a matter that in view of the Taff Vale decision will come up again.

82. (Mr. Cohen.) Voluntary incorporation ?-Voluntary incorporation. The suggestions are made at pages 116 and 117.

83. Is this the majority report, or the minority report? -This is the majority report, beginning at Section 8, page 116: "We think that such an extension of liberty (that is referring to the preceding paragraph) "if conceded (and in so far as it might be acted upon) would not only result in the better observance for definite periods of agreements with regard to wage-rates, hours of labour, apprenticeship rules, demarcation of work, profit sharing and joint insurance schemes, the undertaking of special works, and other matters, but would also afford a better basis for arbitration in industrial disputes than any which has yet been suggested. In order to enable trade associations to enter into collective, legally binding agreements, with the consequence that in case of breach of contract they would be liable to be sued for damages payable out of their collective funds, it would not be sufficient to repeal Sub-section (4) of Section 4 of the Act of 1871." That is the section we have just been dealing with. "Even if that legislative incapacity were taken away the trade associations would be prevented by their want of legal personality from entering into such agreements or suing or being sued, except with regard to the management of their funds and real estate. It would be necessary that they should acquire by some process of registration, a corporate character sufficient for these purposes. We are anxious to make it clear that we propose nothing of a compulsory character, but that we merely desire that existing or future trade associations should have the liberty, if they desire it, of acquiring a larger legal personality and corporate character than that which they can at present possess. It must be added that even if trade associations were thus clothed with a legal personality, it would be open to them by express stipulation to provide that any special agreement between them should not be enforceable at law. The further powers of incorporation would not be made a condition of the existing registration,