The power to

en by the later optional, and in this respect

mpany in that society is not efinition of a e Trade Union le union which not registered, union has bey statute, and all within the a trade union. in Act, 1913, ssed, are easily the litigation

ich arose quite nd resulted in

h the scope of re 1871 there

existed no statutory dennition or a trade union at all; the real question before the Courts was whether the society was or was not in restraint of trade.

v. Riley in the Court of Appeal. Midway between the two is the regard to the intention disclosed in the Mogul case and in Quinn v. Leathem, and, if Allen v. Flood was decided, as was said in Quinn v. Leathem, solely on the facts that there was a mere warning by an official, it seems that there is authority in the House of Lords for the contention that intention is of the gist of the

action.

Under these circumstances it is perhaps fortunate the Trades Disputes Act has made so many of these discussions academic, as otherwise the responsibility of counsel in advising in this type of case would be almost insuperable. It is hoped that the day will come when either the whole of the law will be reduced to a clearer statutory form or that the House of Lords will be pleased to lay down a ruling as to the circumstances in which the registered trade union and other similar associations and their officials may, with impunity, order, persuade or force their members not to work with persons of whom they disapprove, and when such actions are to be held to be unlawful.

LECTURE III.-LEGAL STATUS.

§ 1. THE PROBLEM OF INCORPORATION. It will be remembered that the Trade Union Act of 1871, in addition to legalizing the purposes of a trade union, provided for certain changes in the constitution of such bodies. The power to register a trade union, which is given by the later sections of that Act, is entirely optional, and registration of a trade union differs in this respect from the registration of a limited company in that its fundamental status as voluntary society is not affected by registration. The definition of a trade union, which is contained in the Trade Union Act of 1913, applies equally to a trade union which is registered and to one which is not registered, and, at any rate, since 1913, a trade union has become a body specifically defined by statute, and any combination which does not fall within the definition therein contained is not a trade union.

The purposes of the Trade Union Act, 1913, and the mischief to which it is addressed, are easily understood if we trace the history of the litigation which led to its passing.

The problem before the courts which arose quite late in the history of our subject and resulted in the 1913 statute, was concerned with the scope of the powers of trade unions. Before 1871 there existed no statutory definition of a trade union at all; the real question before the Courts was whether the society was or was not in restraint of trade.

These matters, it will be remembered, had been discussed in such cases as Hilton v. Eckersley' and Hornby v. Close,' and no doubt the definition. which appeared in the Acts of 1871 and of 1876 made specific what had been implicit in earlier judgments. The Acts of 1871 and 1876, it will be remembered, defined a trade union as “any combination whether temporary or permanent, for regulating the relations between workmen and masters or between workmen or masters or for imposing restrictive conditions on the conduct of any trade or business," but, as Lord Justice Fletcher Moulton said in the Osborne case, the legislature did not create the name for the purpose of the Trade Union Acts. It was at the time a well-known form connoting combinations of a known type formed for objects and purposes which were well recognized. The only two additional matters imported by Statute were the definition of the combination for imposing restrictive conditions and the inclusion of societies not as a whole in restraint of trade. The terms of the definition are very wide, so that to show that a combination is not a trade union it is insufficient to show that the regulations imposing restrictive conditions on the trade are only such as are necessary to secure beneficial results. A trading association which fixes the rate at which federated bodies may charge is thus a trade union. Chamberlains Wharf Ltd. v. Smith so also a society imposing restrictions on federated bodies

2

1 (1857) 6 E. and B. 47. (1867) 2 Q.B.D. 153. [1909] I Ch. 163, at p. 184. Per Lord Moncreiff in the Edinburgh and District Water Manufacturers' Defence Association Ltd. v. Jenkinson (1903), 5 F. 1,159, at p. 1,163. [1900] 2 Ch. 605.

as to the employment of persons may be a trade union.'

These cases, however, decide only that a body which relies on functions which are defined as such in the Trade Union Acts is a trade union. They leave open the more difficult question as to whether a body, which is admittedly a trade union, can spend money or do acts which are not mentioned specifically in the Trade Union Acts. This question first came before the courts in the case of Steele v. South Wales Miners' Federation." The defendant union had as one of its objects the power to provide funds wherewith to pay the expenses of returning and maintaining representatives to Parliament. A resolution was carried approving this object and a member objected to paying the contribution. The Divisional Court, however, treated the case as one solely of administrative jurisdiction and, in the opinion of Mr. Justice Darling, the definition of a trade union was not intended to be exhaustive or to prevent the association from lawfully doing other acts beyond those mentioned. He points out that the section is silent about providing benefits for members and that, in any event, he thought that the promotion of laws passed by Parliament might be a means of regulating the relations between masters and workmen. Mr. Justice Phillimore agreed and the appeal was dismissed, but, in the case of Osborne v. Amalgamated Society of Railway Servants,' the same matter was again litigated with different results 1 Mineral Water Bottle Exchange and Trade Protection Society v. Booth (1887), 36 Ch.D. 465. 2 [1907] 1 K.B.D. 361. [1909] I Ch.D. 163.

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