We reject the testimony of those who were willing to come. therefore decided that it was incumbent on us to hear at least a selection of those witnesses who had expressed their willingness to attend. 9. The inquiry even to this limited extent was protracted, but we did our best to narrow its limits both by the terms of the circular already quoted and by steadily refusing to go into such general topics as were covered by the Report of the Royal Commission on Labour, 1894. We also endeavored to take a fair sample of the various kinds of trades and employment. 10. As we understood we had been selected in respect of our being familiar with the law of the subject we did not think it necessary or advisable to invite the testimony of lawyers generally. We, however, did avail ourselves of the special inquiries which had been made by Mr. Askwith. 11. The main subject of our inquiry may conveniently be divided into three branches: A. The liability of trade union funds to be taken in execution for the wrongful acts of agents of the union. B. The statute law relating to picketing and other incidents of strikes. C. The law of conspiracy as affecting trade unions. 12. The division lines between these branches of the subject are not rigid, and as will be seen the topics with which they deal are interlinked at many points. At the same time we think it will conduce to lucidity to discuss the subject under these three heads. Broadly speaking it may be said that the trade unions demand a change of the law in regard to each of them; and further allege that the present state of the law differs from that in the past and is due to the effect of the well-known decisions of the House of Lords in the Taff Vale Case, 1901, A. C. 426, and Quinn v. Leathem, 1901, A. C. 495, and of the Court of Appeal in Lyons v. Wilkins, 1896, 1 Ch. 811, 1899, Ch. 255. A. The Liability of Trade Union Funds to be taken in Execution for the Wrongful Acts of the Agents of the Union. 13. In the case of the Taff Vale Railway Company, the Amalgamated Society of Railway Servants, being a trade union registered under the Trade Union Act of 1871, and its officers, were sued by the Taff Vale Railway Company in tort for having conspired to induce the workmen of their company to break their contracts, and also for having conspired to interfere with the traffic of the company by picketing and other unlawful means. Mr. Justice Farwell having granted an interim injunction against all the defendants, the defendant trade union appealed on the legal question whether a registered trade union was liable to be sued in tort. The Court of Appeal reversed the decision of the Judge, but ultimately the House of Lords restored it, holding that a registered trade union could be sued in tort by the name in which it was registered under the Act. The grounds for the judgment were that a registered trade union having been invested with the statutory powers of the Act of 1871, it must be legally inferred that it was the intention of Parliament that such trade union should be liable to be sued in its registered name. A strong opinion was also expressed by Lord Macnaghten and Lord Lindley that, apart from the Trade Union Act, any trade union whether registered or not registered could under the general rules of legal procedure be sued in tort by means of a representative suit, i.e., a suit in which a few members have been selected by the plaintiff to represent all the defendants. The case then went for trial, and verdict was found for the plaintiffs. The damages were assessed (or fixed by agreement) at £23,000 ($115,000), which sum has since been paid out of the union funds.1 14. The judgment of the House of Lords took many by surprise, and trade unions protest against it as a decision of Judges making a practically new law against trade unions, and nullifying the settlement of their status made by the Legislature in 1871. Bills on their behalf have been introduced into Parliament to alter the law as declared by the House of Lords. Clause 3 of Mr. Whittaker's bill of 1905 may be taken as a sample. It is in the following terms: An action shall not be brought against a trade union, or other association aforesaid for the recovery of damage sustained by any person or persons by reason of the action of a member or members of such trade union or other association aforesaid. 1 The full decision of the House of Lords is published on pages 232-240 of the Annual Report of the Massachusetts Bureau of Statistics of Labor, 1906. It might perhaps be enough, in order to meet the argument, to point out that if liability of trade unions in actions of tort can be enforced under the general rules of legal procedure, this shows that such liability must previously have existed. For assuredly those rules did not create any new liability. It may, however, be thought desirable to ascertain from the history of the subject what is the foundation for the belief that trade unions were exempt from actions in tort, and, in particular, for the belief that such exemption was secured to them by the Act of 1871. 15. We are satisfied that the law laid down by the House of Lords involved no new principle and was not inconsistent with the legislation of 1871. In 16. It is indeed true that that statute did not declare nor has any other statute declared that trade unions should be liable to an action in tort, and before the Taff Vale case there is not on record any case in which the question of the liability of a trade union was distinctly raised and in which a court of law pronounced a trade union liable. But this does not prove that trade unions as such possessed any special exemption from actions of tort. On the contrary it cannot be disputed that theoretically the funds of trade unions have all along through their members been subject to the general law of liability. When an individual is cast in an action of tort whatever property he possesses is liable to be attached for payment of damages. the eyes of the law a trade union before 1871 was nothing but an aggregate of individuals: and there never was a time when, if all the individual members had been brought before the court in an action of tort and the tort had been proved against them or their agent, the property of the members, including the union. funds which belonged to them, would not have been liable to make good the damage. The union might be an unlawful association, but this would be immaterial. The fact that the wrong was done in pursuance of an unlawful purpose could be no excuse to the tort-feasors, nor any reason why the sufferer should be deprived of redress. This liability of the funds of a trade union in an action of tort could at any time have been effectively realized in case of a trade union consisting of a very small number of persons. If the liability was not enforced, it was not because trade unions were regarded as peculiar institutions outside the law, but simply because of the following reason: An action to recover damages in respect of a tort could be instituted only in the courts of common law, and those courts, although they did not allow the non-joinder of defendants to be pleaded in such an action either in bar or in abatement, adopted a rigid rule that judgment could not be recovered against any person or persons not named as defendants in the action. From this it followed that no property could be taken in execution which was not the property of the named defendants. If, therefore, an association consisted of so large a number of persons that it was impracticable to ascertain the names of all of them or to make them all defendants, the property of the association, as distinguished from that of the individual members, could not be taken in execution in a common law action. The difficulty, of course, was not confined to cases against trade unions: it equally affected cases against clubs and all unincorporated associations with a number of members, and, it may be added, whether the action was in tort or upon contract. The rule that all individuals interested should be before the court was in itself a just one, but it operated a denial of justice whenever it had to be applied on a scale so large that it was impossible to name all the defendants. This evil was manifestly one that called for a remedy, and in course of time expedients were devised for the purpose. They were chiefly of two kinds. One was incorporation - the creation, by the Legislature or by charter, of corporate bodies in various forms or the granting by the Legislature to particular bodies of special powers to sue and be sued. The other was a relaxation by the courts of the rule that all persons interested should be before the court. When the number of persons was large, a few were allowed to be taken to represent all, and a decision with regard to these few was held binding upon all. This reform of procedure, however, which as appears from the cases cited in Lord Lindley's judgment in the Taff Vale case dates so far back as the time of Lord Hardwicke, was only operative in the Court of Chancery, and there was confined to cases of contract, since that court did not entertain actions for damages in cases of tort. The Common Law Courts which dealt with tort continued to adhere to the ancient rule. It was in consequence of these difficulties in common law procedure that in practice trade unions continued to be unamenable to actions of tort. 17. It was, however, not only as defendants in actions of tort that trade unions were kept out of the law courts. They were kept out in other cases and for a different reason. This reason was that before 1871 not only had they no sort of corporate existence at law, but they were unlawful, because their purposes were in restraint of trade. In consequence they could neither sue in tort nor sue nor be sued with respect to contract, whether made with members or with others, for any such proceeding would be deemed to be a furtherance of the illegal purposes of the trade union. This unlawfulness, as has been already said, would not have been in itself any bar to a trade union being sued in tort. But the result was that by a combination of causes the presence of trade unions or trade unionists, as such, in the Common Law Courts either as plaintiffs or as defendants, either in cases of tort or in cases of contract, was unknown, and to all appearance it was as if they were outside the civil law altogether. Hence the popular notion that trade unionists, as such, were subject to the criminal law alone. 18. With this state of affairs trade unionists might have been content, but for one thing. They had no protection for funds in case of embezzlement. As unlawful associations they could take no civil proceedings against the wrongdoer, and there were technical difficulties in enforcing the ordinary criminal law. Under these circumstances trade unions endeavored to take advantage of the Friendly Societies Act of 1855, 18 and 19 Vic. c. 63, which conferred upon any association not constituted for an illegal purpose a special power to prosecute, and upon the Court of Summary Jurisdiction hearing the case power to order the offender on conviction to restore the property and make further compensation up to £20. But in Hornby v. Close, L. R. 2 Q. B. 153, tried in 1867, it was decided that a trade union by reason of its illegal purposes in restraint of trade was not entitled to benefit by the enactment. The conse |