27 JULY 1901, Page 8


T4ORD HALSBURY put the common-sense of the matter very pithily when he said of the case of the Taff Vale Railway v. the Amalgamated Society of Railway Servants that " if the Legislature has created a thing which can own property, which can employ servants, which can inflict injury, it must be taken to have implicitly given the power to make it suable in a Court of Law for injuries purposely done by its authority and procurement." What- ever the intention of Parliament may have been in passing the Trade-Union Acts, on the interpretation of which the case turned, nothing short of an express exemption from being sued ought to carry such an immunity with it. There may be good reasons for making such an exemption. There may be good reasons for giving to a voluntary society the power of inflicting injury without a correspond- ing responsibility for injury inflicted. But however good these reasons may be, they can, as it seems to us, be urged only in defence of an exemption plainly made and plainly intended. If the language of an Act of Parliament leaves it uncertain whether it was intended, the common-sense view that power and responsibility should go together ought to prevail. In the absence of express words to the contrary, Parliament must be presumed to have intended this until its subsequent action makes it plain that it intended something else.

The present case arose out of the strike on the Taff Vale Railway last August. Mr. Bell, the general secretary of the Society, took the conduct of the strike upon himself by giving notice to the general manager of the railway that all further negotiations were to be conducted through him, and by publishing and circulating a leaflet warning the men brought in from outside by the Company that they would be known as blacklegs. Whether in this Mr. Bell went beyond what he might legally do is not the question raised in the suit decided by the House of Lords on Monday. The Society contended that, however contrary to law the things said and done at Cardiff and in the neighbourhood might be, the Amalgamated Society of Railway Servants could not be sued for anything done by its officers. Their responsibility was purely individual ; they were a Trade-Union registered under the Acts, and such a Union could not be sued in its registered name. The point came before Mr. Justice Farwell as Vacation Judge, and an injunction was issued restraining the Society from interfering with the Company's new work- men except by giving them information. The strike came to an end, but the question whether a Trade-Union could be sued in its registered name was rightly held to be too important to be decided by a single Judge. Mr. Justice Farwell had held that the Amalgamated Society could be thus sued. The Society appealed, and a strong Court, consisting of the Master of the Rolls and Lord Justices Collins and Stirling, sustained their contention, dissolved the injunction, and struck the Society's name out of the action. The case was then carried up to the House of Lords, and on Monday the Lord Chancellor and Lords Macnaghten, Shand, Brampton, and Lindley unani- mously reversed the decision of the Court of Appeal, and replaced the Society's name in Mr. Justice Farwell's Order.

The law of the case, therefore, is settled ; it only remains to inquire whether the decision ultimately arrived at is one which ought to be varied by legislation. We cannot, of course, foresee what arguments may be brought forward hereafter in defence of a Bill for giving Trade-Unions the immunity they have hitherto supposed themselves to possess. But so far as these arguments are disclosed in the very careful judgments delivered by Lord Macnaghten and Lord Lindley, we can see no reason for altering the law as now laid down. The latter Judge pointed out that the rules as to parties to suits in equity " were long since adapted to meet the difficulties presented by a multiplicity of persons interested in the subject matter of litigation." It was recognised that unless " some of such persons were allowed to sue and be sued on behalf of all other persons having the same interest," therewould necessarily be a failure of justice. Indeed, Lord Lindley feels no doubt that even if the Amalgamated Society of Railway Servants could not be sued in its registered name, its executive " could be sued on behalf of themselves and other members of the Society." If this is the right view, the importance of the present case is greatly lessened. The question at issue is reduced to this,---ought Mr. Justice Farwell's injunction to have been granted against the Amalgamated Society in its registered name or against the executive of the Society ? This disposes, so far as Lord Lindley is concerned, of one criticism that has been made on the decision. The House of Lords, it has been said, have considered not what the law is but what the law ought to be. But if it is good law that a Trade-Union can be sued in the persons of its executive, it really matters very little whether it can be sued in its registered name. What the Amalgamated Society sought to establish was, we imagine, whether they could be sued at all, and as regards this Lord Lindley had a second arrow in reserve even if the first had missed. Lord Macnaghten took pre- cisely the same view. The use of the registered name is a merely subordinate matter; the essential point raised in the present case is whether any one injured by a body of persons acting in concert, but too numerous to be made defendants in an action, would be without remedy unless he could fasten upon the individuals actually doing the wrong. I should be sorry, said Lord Macnaghten, to think that the law was so powerless. He sees no need, however, to think anything of the kind. Justice can be done if such a body can be sued in the persons of its proper representatives.

There has been some disposition to treat this decision as a victory of employers over Trade-Unions. To our mind, it is only so from the accident that the point has been determined at the instance of a body of employers. All that the judgment itself declares is that the general principle that power implies responsibility is not suspended in the case of a Trade-Union, that workmen's societies are not really the objects of that half-contemptuous favour which has occasionally led to their being treated as way- ward children who are humoured because they know no better. That is not the way in which a great class secures its proper place in the social system. On the contrary, a class rises to power by giving proof of its readiness to accept the duties and liabilities that power involves. The secret of class unpopularity is class exemption, the fact that its members escape the liabilities which fall on other men merely by reason of their belonging to the class. If the contention of the counsel for the Railway Servants' Society had been sustained, the effect of the Trade-Union Act of 1871—we are quoting Lord Lindley—would have been " to legalise Trade-Unions, and confer on them rights to acquire and hold property, and at the same time to protect the Union from legal proceedings if their managers or agents, acting for the whole body, violate the rights of other people." It would, in fact, have been a reversal of the old law of conspiracy that made it illegal to do things in combination which might have been done quite innocently not in combination. This would have made it innocent to do things in combination which it is illegal to do not in combination but individually. There is no question that a railway servant is forbidden to do certain things to or on account of certain other workmen whom he calls blacklegs. But on the contention urged at the Bar he would not be forbidden to associate himself with his fellow-servants and do far more effectually the things he may not do by himself. Quite apart from more general considerations, we are sure that such a position as this could only injure Trade-Unions. They would. become a privileged class, and so the objects of the dislike and distrust which are the lot of every class which claims the right to injure other people and take no harm.

We believe, too, that the effect of this judgment will be to confer a positive benefit on Trade-Unions. Hitherto there has been a marked unwillingness on the part of employers to negotiate with them. Strikes have often turned on the refusal of masters to recognise any com- bination of their workmen with workmen not in their employ. The reason has in part been the uncertainty, now removed, as to the degree in which Trade-Unions could be made liable for the breach of contracts made with their executives. Arbitrations have again and again broken down because employers have felt that it was idle to make terms with a society which could not be held to its word. Now that this doubt is removed, we shall expect to see a great impetus given to the settlement of trade disputes on the basis of arbitration, and we are confident that anything which has this effect will promote the interests of reason- able combination among workmen.