and authoritatively established by that case; and which his Lordship stated in the following words:

An act otherwise lawful although harmful does not become actionable by being done from a bad motive and with intent to annoy or harm another.

Nor is it less evident that to introduce such a fundamental principle would be in the highest degree unwise and inexpedient, inasmuch as it would make the whole law of torts vague and uncertain, until a great quantity of new judge-made law had determined in what cases there is and in what cases there is not reasonable cause or justification.

The House of Lords recently decided that it has no power to over-rule one of its own decisions, but as there are numerous dicta throwing doubt on what was, unless I am mistaken, decided in Allen v. Flood, I think it should be expressly enacted, as is proposed in Sir C. Dilke's Bill that

A person shall not be liable for doing any act not in itself an actionable tort, only on the ground that it is an interference with another person's trade, business or employment.

Report by Sir Godfrey Lushington.
The Taff Vale Case.

With all that is said in the Report on this case I am in complete accord. I hold it of great importance that in the conduct of strikes workmen should recognize their duty to conform to the law, and feel themselves to be not only workmen pursuing their own interest but members of society at large, and, like everybody else, responsible for their actions.

But for the same reason I dissent from the proposal in the Report that the Provident Funds of Trade Unions should be exempt from liability. No reason is given for this but the encouragement of thrift. Thrift is a good object; but thrift comes after payment of just debts, and certainly not least, debts incurred in consequence of wrong-doing to others. The case is only made the stronger by the attempt altogether to repudiate

1

debts of this character. That workmen should collectively do wrong, and be able to refuse to those who have suffered from such wrong any reparation out of the funds they have collectively saved for their own use and benefit, is contrary to justice. The proposed exception is quite anomalous. In the case of an individual debtor all insurance policies of which he is the beneficiary owner pass to his trustee in bankruptcy. The reservation, made in misericordiam, of a workman's tools and bedding, is an exception that marks the rule, and the value of such goods is trifling, whereas the Provident Funds of a Trade Union may amount to hundreds and thousands of pounds. So in the case of societies. Friendly societies are Provident societies; but the official rule in the case of a dividing society expressly provides that it shall be the duty of the Committee of Management to see that all claims upon the society existing at the time of any division of the funds thereof are met and provided for before any such division takes place. And the same principle would be followed in the event of a society being dissolved.

I may add that the practical difficulties in separating provident funds from other funds, or rather in securing that such separation has been made and observed, are very great indeed. Unregistered Trade Unions are not bound to keep any accounts. Registered Trade Unions are bound once a year to send in a return in a prescribed form. At no other time do the accounts come before the Registrar, and there is no provision for a public audit. The auditors are appointed as prescribed by the rules, and there is nothing to prevent members of the Union being chosen for the office.

The objection above stated applies still more strongly to Mr. Webb's suggestion that out-of-work funds should be also exempted. The term out-of-work-funds is an ambiguous one. On this point I may refer to the Trade Union Provident Funds Act, 56 and 57 Vic., c. 2, which in granting exemption from income tax to Trade Union Funds applicable and applied solely for the purpose of Provident Funds declared that the expression Provident Funds should include, inter alia, payments made to members out of work. The Bill was introduced into Parliament as a proposal to exempt Provident Funds pure and simple, and

as such passed through both Houses without any amendment or discussion. But the accounts of many Trade Unions show no difference between payment to members who are out of work from slackness of trade and payments to members who are out of work because of a strike. And there is reason to believe that, although strike pay is not officially regarded as pay to members out of work, there is an unknown number of cases in which what are virtually Strike funds are exempt from income tax.

The Report further recommends a special enactment to protect a Trade Union from undue liability on account of the acts of its Branches as its agents; and one or more of the Commissioners suggest a special enactment of a wider scope to comprehend the most important of such principles of responsibility for the acts of agents as are applicable to Trade Unions. Both of these proposals appear to me open to grave objection. No doubt the law of Principal or Agent is from the nature of the subject necessarily complicated, and difficulties must be expected in applying it to trade unions, just as difficulties have been experienced in applying it to other societies and to individuals. But it is not suggested that the general law is really inappropriate for Trade Unions, or that its application has been found to produce injustice. It would in my judgment be impracticable to embody the law in a few clauses, more especially as it is not proposed to place any restrictions upon the liberty which Trade Unions now possess of adopting any form of internal organization or of relations between the Central Association and its Branches that they think fit. And, after all, the responsibility as Principal cannot in the case of a Trade Union be made to turn solely on the rules of the Society any more than in other cases it turns exclusively upon instructions given by the Principal to His Agent. The almost inevitable result of any such legislative attempt as is proposed would be to assign to Trade Unions some sort of peculiar rule of liability for the acts of their agents. This is much to be deprecated. A more stringent liability than is imposed on others as Principals would be a hardship to Trade Unions, whilst a laxer rule would be unjust to those who may suffer from the tortious acts of Trade Unions and would impair the salutary effect of the Taff Vale judgment.

Status of Trade Unions.

Attention, I think, should be called to the case of Howden v. Yorkshire Miners' Association recently decided by the House of Lords, which opens up and throws light upon the whole Status of Trade Unions as fixed by the Trade Union Acts 1871, 1876.

Before 1871 the legal position was this. By general law any agreement, by whomever made, which in itself was in restraint of Trade, was unlawful in the sense of being unenforceable; and in the case of an Association, if, as a whole, its purposes were unlawful, the Association itself became an unlawful Association, with the consequence that all its agreements were unenforceable. This was the case with a Trade Union. Its purposes were unlawful as being in restraint of Trade: none, therefore, of its agreements could be enforced by either party to the same. The particular agreement in question might not itself offend against the rule as to restraint of trade, as for instance an agreement to hire business premises, but for the Courts to enforce it would be indirectly to further the unlawful purposes of the Union. For the same reason a Trade Union could take no civil action for the protection of its funds, nor claim the benefit of any power given for that purpose to lawful Associations. This was an acknowledged grievance as shown by the temporary Trade Union Funds Protection Act of 1869. In 1871 Trade Unions sought to have this disqualification removed with the view that such of their agreements as were necessary for the carrying on of the business of a Trade Union and could be enforced without an investigation of the internal administration of the Union should be treated as valid by the Courts. If, however, the Bill were to be to the effect that Trade Unions and their affairs should be altogether exempted from the rule of restraint of Trade, then, as one consequence, all their agreements with their members would be enforceable either by members against the Union, or by the Union against the members. The first would be objectionable to Trade Unions, as it would expose them to litigation and interference by the Courts. The second would presumably be rejected by Parliament. Hence a middle course was adopted, and this found expression in the Trade Union Act of 1871.

The intended objects of the proposed legislation were thus explained by the members of the Government in charge of the measure when it was introduced successively into the two Houses of Parliament.

Mr. Bruce: 1

At present Trade Unions were wholly illegal; and, being so, every agreement, however innocent in itself, was tainted with illegality. The Bill did not propose to legalize what might be called primary contracts, - such as agreements not to work or not to employ, and no person will be entitled for benefits to which he is entitled under a contract with a Trade Union. If such contracts were enforceable now, Courts of Equity might be called upon to enjoin masters against opening their works, or workers from going to work or discontinuing a strike; whilst our County Courts would have to make decrees for contributions to strikers, or to enforce penalties from workmen who had felt it their duty to resume employment.1 It was not proposed to place Trade Unions therefore in all respects on the same footing as Friendly Societies. It was not the opinion of Mr. Harrison who so ably represented Trades Unions on the Commission that the law should be altered to that extent.

The Bill provided that all primary contracts made by Trade Unions should not be enforceable, but that the secondary contracts should be enforceable. The result of that would be that no legal proceedings could be instituted to enforce any agreement between the members as to conditions on which they will work, nor compel the payment of subscriptions, nor for the application of the funds, nor to discharge fines imposed upon any person by Courts of Justice, but on the other hand the Secretary could sue the Society for his salary, or the Society their banker in respect of their fund deposited with him. None of the agreements he had mentioned were constituted unlawful, but they were simply not enforceable by law. Indeed it was not the wish of the Trade Unions to be put completely in the position of Friendly Societies. Their objects, rights and liabilities were mostly, as remarked by the minority of the Commission, such as Courts of Law should neither enforce, modify, or annul, but such as should rest on consent.

1 Hansard, vol. cciv., page 266, 14th February 1871.

2 See remarks by Crompton, J., in Hilton v. Eckersley and Jessel, M.R., in Rigby v. Connol.

3 $ 1871, May 1st, Hansard ccv., page 1918.