yers' fees and costs, if not by damages and 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 voluntary character of their associations, would, in our opinion, provoke the most embittered resistance from the whole body of trade unionists, and would, we think, be undesirable from every point of view.

This opinion no doubt represents the views of trade unionists that trade unions ought to be exempt from liability to be sued, but the assumption that such exemption had been obtained by the legislation of 1871 is, as we have shown, mistaken. As regards the Act of 1876 that Act amended the definition of trade unions and made some minor changes, but did not touch either status or civil liability.

29. In 1901 the decision in Temperton v. Russell came under review by the House of Lords in the case of Duke of Bedford v. Ellis and others (L. R. 1901 A. C. 10) which was an action not against trade unionists, but against a number of occupiers of premises in Covent Garden market. The House of Lords overruled Temperton v. Russell and held that General Order No. xvi. Rule 9, was universal in its application.

30. Such was the state of the law when the Taff Vale railway case came before the House of Lords in 1901. In the first place, expounding the Trade Union Act of 1871, they held unanimously that from the provisions in that Act concerning registered trade unions there is to be legally inferred an intention of Parliament that a trade union might be sued in tort in its registered name, with the consequence that trade-union funds would be liable for any damages that might be awarded. Seconding apart from the Trade Union Act - Lord Macnaghten and Lord Lindley expressed an unhesitating opinion that under the General Order, No. xvi., as interpreted in Duke of Bedford v. Ellis, any trade union, whether registered or not, could be sued in tort by means of a representative action.

31. We have given this detailed narrative in order to throw

light upon two questions - how it came about that trade unions did so long enjoy a practical immunity from actions of tort, and what are the circumstances which induced the notion so generally entertained that this immunity had been secured by the Act of 1871 as a privilege of trade unions. But when the circumstances come to be sifted, it is manifest that with the exception of the comparatively recent decision in Temperton v. Russell, which, though delivered in a trade-union case, was on a point of general procedure having no special reference to trade unions, and which is now proved to have been erroneous; and with the exception of the assumptions of the Royal Commission on Labour of 1894, which were based on that decision

no assurance of such immunity has ever been held out; no public commission as a body has represented that they ought to be exempt; no Government has promised that they would be exempt by forthcoming legislation; and no judge has pronounced that they are exempt. In short, it turns out that the notion of a trade union having been intended to be specially exempted from actions of tort is a mere misconception resting on no other foundation than long practical immunity, which was simply the result of defects in general legal procedure that have now been remedied on general considerations of equity quite irrespective of trade unions and trade-union law. And the Taff Vale case shows that, even if the rules of general legal procedure were not available in case of trade unions, nevertheless under the Act of 1871 registered trade unions would be liable to be sued in tort.

32. It remains now to consider the question on the ground of justice and equity, and here the objections against disturbing the law as laid down in the Taff Vale case appear insurmountable. There is no rule of law so elementary, so universal, or so indispensable as the rule that a wrong-doer should be made to redress his wrong. If trade unions were exempt from this liability they would be the only exception, and it would then be right that that exception should be removed. That vast and powerful institutions should be permanently licensed to apply the funds they possess to do wrong to others, and by that wrong inflict upon them damage, perhaps to the amount of many thousand

pounds, and yet not be liable to make redress out of those funds, would be a state of things opposed to the very idea of law and order and justice.

33. On what grounds can such a claim be supported? Trade unions which originally were looked upon as illegal combinations have made out their claim to enfranchisement and existence. But having done so they cannot put their claims higher than to say that they are institutions which are beneficial to the community as a whole. But so are many other institutions — banks, railways, insurance companies, and so on. It may have been right to provide, as has been done, that the courts shall not have power directly to enforce agreements between trade unions and their members in the same manner as they can in the case of shareholders and policy holders in the institutions above mentioned. But when trade unions come in contact by reason of their own actions with outsiders, and ex hypothesi, wrong those outsiders, there can be no more reason that they should be beyond the reach of the law than any other individual, partnership, or institution. Such a claim has indeed in former times been made by the spiritual as against the civil authority, and has been consistently disallowed. What was denied to religion ought not in our judgment to be conceded to trade unionism.

34. In the discussion thus far it has been necessarily made matter of assumption that the trade union has done some act from which a liability to pay damages ensues: or, in other words, that having so acted any association other than a trade union would be liable. It is thus at once apparent how branches B and C of the subjects we have laid down for discussion are interlinked with branch A, because the practical as distinguished from the theoretical liability of trade-union funds will largely depend on the law as to branches B and C. Before, however, we pass to the consideration of these subjects, there is something to be said on two other topics, viz., the law of agency and the position of benevolent funds.

35. The torts in respect of which trade unions may be sued are necessarily torts committed by agents, for trade unions, like all other aggregate bodies, can only act by means of agents.

There are certain principles of the law of agency which are of general application, and will be found to apply to trade unions just as they do to all other persons or bodies. In all cases the plaintiff who seeks to render the principal liable for the tort committed by the agent has to prove (1) that a wrong was done to him; (2) that the wrong-doer was an agent; and (3) that the agent, in doing the wrong, acted within the scope of his employment.

36. These three matters depend in one sense on questions of fact, and as facts infinitely vary it is obviously impossible antecedently to set forth what facts will and what will not constitute liability. But in regard to (2) and (3) for as to (1) no comment is required it is obvious that trade unions are in a somewhat peculiar position in two respects. The first is as regards to what are known as their "branches," which are often in a semi-independent position to the union as a whole or its central executive. It is not unnaturally looked on as a hardship that the funds of the whole union may be rendered liable by the unauthorized act of some branch agent. We recommend that means shall be furnished whereby the central authorities of a union may protect themselves against unauthorized and immediately disavowed actions of branch agents. The other consists in the fact that registered trade unions are, though not incorporated, held liable as if they were incorporated. The principles governing the application of the rules of agency to bodies so constituted have been carefully stated in the case of Denaby v. Yorkshire Miners' Association, and we are of opinion that trade unions would have no just ground of complaint if the law is applied to them strictly in accordance with the principles there laid down. We are, however, divided in opinion whether it is possible or expedient to endeavor to embody these principles in a statutory enactment, and therefore refrain from making any recommendation on this point.

37. As regards non-registered trade unions, they have not yet been made the subject of a legal decision, but we conceive that the funds can be made liable only by means of a representative action, and it follows that two conditions must be satisfied in order to make those funds liable for the acts of agents:

(1)

Such agents must be persons who can properly be considered to be the agents of all the members, and must be acting within the scope of their agency; (2) the funds must be property which would have been taken into execution or attached in an action in which all the members had been made defendants.

38. Although unions may exist for the purposes, inter alia, of a benefit society, the funds of the union for whatever purpose are in law a massed fund, and as such liable to be taken into execution in accordance with the principles above laid down. It is often represented that this is a great hardship on those who have contributed to the benefit funds, and that this hardship is not lessened by the prevalent though erroneous belief that trade-union funds were immune from outside attack. To separate the funds under the law as it at present stands would require a very elaborate scheme of trust. We think such separation should be made easier by statutory enactment. The Chairman and Mr. Cohen consider that, in accordance with the views already expressed, such separation would have to be accompanied by the condition that the funds so separated should not be available for what may be termed militant as distinguished from purely benevolent purposes. In other words, they would have to be confined to sick, accident, and superannuation funds, and not extend to out-of-work funds. Mr. Webb thinks that the definition of the Trade Union (Provident Funds) Act, 1903, should be followed with the object of placing out-of-work funds in the same position.

39. We have discussed the question so far historically and upon its merits, but apart from evidence as to the effect of the Taff Vale judgment. As we have pointed out, the evidence on the question of effect has only been proffered on the employers' side. So far as it is concerned it is practically unanimous, and asserts clearly that the effect of the judgment has been to make trade unions much more careful than heretofore in seeking not to infringe the law: with the result that strikes have been less frequent, that in the conduct of trade disputes there has been less violence and intimidation, and that the disputes themselves have been easier to settle than was the case before the law was authoritatively laid down.