century, upon the transition from the domestic to the factory system, and upon the appearance of the capitalist employer-in short, of the Industrial Revolution. Down to that time few people in England, even wage-earners, were wholly dependent upon wages. With the concentration of industry in factories and cities, multitudes of men and women were cut off from all supplementary resources open to the yeoman or even to the commoner; they became for the first time dependent upon weekly wages and weekly employment, and to that extent were placed at the mercy of the capitalist employer. Nor was his mercy, it must be sadly admitted, always tender; and if to-day the children's teeth are set on edge it is partly because the fathers had eaten very sour grapes.

The wage-earners sought refuge, naturally enough, in combination. But here they found themselves up against the law. By Common Law practically all combinations, whether of workmen or employers, were illegal as being conspiracies in restraint of trade,' and between the reigns of Edward I. and George IV. no fewer than thirty or forty Acts of Parliament were passed with the object of preventing combinations either of masters or men. A particularly stringent Act was passed in 1800 declaring that any person who combined with another either to secure an advance in wages, or to limit output, or to interfere with the management of a business, was on conviction liable to imprisonment. As Mr. A. V. Dicey put it, 'Any artizan who organized a strike or joined a trade union was a criminal ..; the strike was a crime, the trade union was an unlawful association.' To us such legislation is unthinkable, and yet, as the same writer pointed out, it reflected the best opinion of that day, and is not one whit more strongly opposed to trade combinations, whether among employers or workmen, than was the Code Napoléon of 1804, which summarised the commercial and economic ideas of the French Revolution.

The Act of 1800 was, however, like its predecessors, at once ineffective and mischievous, and a Royal Commission, which had been appointed to consider the whole position, reported in 1824 strongly against combination laws. So far from preventing combinations either of masters or workmen, those laws had tended, in the Commissioners' judgment, to produce mutual irritation and distrust, to give a violent character to the combinations, and to render them highly dangerous to the peace of the community.' The laws were consequently repealed en bloc by an Act of that year. The Act represents a notable triumph for Benthamite Radicalism and the principles of laisser faire. The immediate results were The real author of the Act of 1824 was Francis Place; its parliamentary sponsor was Joseph Hume.

not, however, encouraging. On the contrary, the emancipating legislation of 1824 was promptly followed by an epidemic of strikes accompanied by a good deal of violence, and by the intimidation both of employers and peaceable wage-earners. The Benthamites were in dismay. Their hope and intention had been to promote the liberty of the individual workman and the individual employer; but they discovered to their chagrin that emancipation was the prelude, not to liberty, but to coercion.

Once more they had recourse to the Legislature. An Act of 1825 declared that combinations had been found 'injurious to trade and commerce, dangerous to the tranquillity of the country, and especially prejudicial to the interests of all who were concerned in them.' The common law of conspiracy was reaffirmed; summary penalties were prescribed for the use of violence, threats, intimidation, molestation, or obstruction by any person for the purpose of forcing a master to alter his mode of business, or a workman to refuse or leave work, or of forcing any person to belong to or conform to the rules of any club or association '; but the Act exempted from punishment persons who met together to agree upon the wages or conditions of employment of those actually present at the meeting, but no others.

The general effect of this somewhat halting piece of legislation was that a trade union remained a non-lawful, though not necessarily a criminal, association. Any trade combination, unless it fell within the limited right of combination given by the Act of 1825, was illegal. 'A strike,' as Mr. Dicey says, though not necessarily a conspiracy, certainly might be so, and a trade union, as being a combination in restraint of trade, was at best a non-lawful society, i.e. a society which, though membership in it was not a crime, yet could not claim the protection of the law.' This ambiguous position entailed one very serious consequencetrade unions were excluded from the protection afforded by legislation to friendly societies (1855), and their funds were consequently at the mercy of any dishonest official.

Yet, notwithstanding this grave disadvantage, trade unions multiplied very rapidly during the second and third quarters of the nineteenth century. It was, however, the outrages committed by members of the associations in Sheffield, Manchester, and other industrial centres (1866) which first concentrated public attention on the new labour movement. In 1867 a Royal Commission was set up to inquire into the whole question, and on its Report the legislation of 1871-76 was mainly based.

That legislation has been described as the charter of trade unionism; and the description is broadly accurate. It not only extended to the funds of trade unions the benefit of the Friendly Societies Acts, but relieved them, or was supposed to relieve

them, from liability to damages for the tortious acts of their agents. It mitigated in their favour the Common Law in regard to conspiracy by declaring that an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy, if such act if done by one person would not be punishable as a crime' (38 & 39 Vict. c. 86, section 3). The plain meaning of this enactment, as expounded by. Mr. Dicey, is that a combination among workmen to break a contract with their employer, e.g. to leave his service without due notice, with a view to compelling him to grant a rise in wages, is not a crime, whilst a combination by tenants to break a contract by refusing to pay rent due to their landlord, i.e. with a view to compelling him to lower their rents, is a crime.' The provisions in regard to picketing and intimidation have at the present time a special significance. What Dicey cautiously describes as 'something like a legal sanction' was given to picketing' in connexion with a trade dispute, so long as such conduct does not partake of intimidation or violence; but it was specifically laid down that every person who, with a view to compel any other person to abstain from doing, or to do, any act which such person has a legal right to do, or abstain from doing, wrongfully and without legal authority uses violence to or intimidates such person, follows him about, hides his tools, watches or besets his house, or follows him through the streets in a disorderly way, shall be liable to three months' hard labour. Thus, in the words of Professor Geldart, a distinguished lawyer with pronounced 'popular' sympathies, trade unions' became in form privileged bodies with a special status.' Nor does it need any elaborate argument to show how far, in the course of half a century, the Legislature had travelled from the prevailing temper of 1825, and much more from that of 1800.

During the thirty years which intervened between the legislation of 1871-76 and the Trade Disputes Act of 1906 several leading cases of great importance to trade unions were decided by the courts. Of these the most famous and the most important was the Taff Vale Case, which came before the House of Lords, in its judicial capacity, in 1901. Stated in non-technical terms, the decision of the court was that the legislation of 1871-76, which was supposed to have conferred complete immunity upon trade unions, did not in fact extend to damages obtainable in a civil action, and that a trade union was still liable to an injunction and to the payment of damages for acts of violence committed or threatened in its behalf. Thus were trade unions declared liable for wrongs done by their agents. The decision came as a surprise to the public, and to trade unionists caused nothing less than

consternation. Yet, after all, trade unions were at that time much more important to workmen as benefit societies than they were as militant organisations. During the decade 1895-1904 the total expenditure of 100 of the most important unions amounted to 16,060,000l. Of this 86 per cent. was expended on benefits of various kinds; only 14 per cent. on militant objects. Thus so ardent a friend of labour as Professor Geldart has left it on record that in his opinion no fair-minded person can dispute the substantial justice of the Taff Vale decision.' So strongly, however, was feeling aroused, that in 1903 another Royal Commission was appointed, under the chairmanship of Lord Dunedin, to inquire into the subject of trade disputes and combinations and as to the law affecting them, and to report on the law applicable to the same, and the effect of any modification thereof.

The Commission produced two Reports. The majority was opposed to any alteration of the law as laid down in the Taff Vale judgment, but recommended an alteration in the law relating to picketing and conspiracy. The Radical Government, fresh from a notable victory at the polls, and confronted by the new phenomenon of an independent Labour' Party numbering twenty-nine members in the House of Commons, promptly introduced a Trade Disputes Bill. The Bill covered four branches of the subject:conspiracy, picketing, trade interference apart from conspiracy, and agency. There remained the question whether actions of tort against trade unions should be prohibited? As originally introduced the Bill provided that a union was not to be held liable for the wrongful act of its agent, unless the act had been formally approved by the executive committee of the union or had been done by a person or persons specifically authorised to bind the union by the conduct impugned. The Bill was not wholly approved by the Labour members, who, two days after the first reading of the Government Bill, introduced a Bill of their own which relieved the unions of all liability for damages sustained through the conduct of their members. The difference between the two Bills was pithily expressed by Mr. Keir Hardie, who declared that trade unionists would not be satisfied with mere barbed-wire entanglements for the protection of their funds, but would insist on their removal out of the range of the enemies' guns. Then arose a curious and complicated parliamentary situation. Sir Henry Campbell-Bannerman not only voted but spoke in favour of the Labour Bill, the second reading of which was carried by 416 to 66. The essential point was compromised in favour of the Labour view, and the Government Bill, so amended, passed into law.

The first section of the Trade Disputes Act of 1906 extended to civil responsibility for conspiracy the immunity from criminal

prosecution conferred by the Conspiracy and Protection of Property Act of 1875. Henceforward' an act done in pursuance of an agreement or combination by two or more persons' was not to be actionable if done in contemplation or furtherance of a trade dispute . . . unless the act, if done without any such agreement or combination, would be actionable.' The second section legalised peaceful picketing; it declared it to be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm 'in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.' The third section removed the liability for interfering with another person's business or with the right of some other person to dispose of his capital or his labour as he wills.' But again the act so protected by the law must be in contemplation or furtherance of a trade dispute.' Even so, sound lawyers of all parties regarded the immunity as indefensible. It was, however, around the terms of the fourth section that controversy raged, has raged, and will rage hottest. The first three sectious were of general applicability; though evidently intended primarily for the protection of trade unions, they did not exclusively refer to them. The fourth section, which exempted trade unions from all actions for tort, undeniably conferred a special and exclusive privilege upon such associations. Few unbiassed people could now be found to defend such a privilege. Lord Halsbury denounced the whole Bill as one for legalising tyranny and for the purpose of taking people outside the ordinary courts of law.' Even Lord James of Hereford was moved to wrath by section 4. Simply register yourselves as a trade union; whatever wrong you may inflict, whatever destruction of property may be caused, we the Legislature give our blessing to go forth and do it.' If it be true that the expedient of a criminal prosecution of the guilty individuals is, as good lawyers have argued, left entirely untouched by the Act of 1906, the language of Lord James may sound extravagant; but recent events must have convinced the vast majority of thinking people that the exceptional privilege conferred by section 4 of the Act of 1906 must, in the interests alike of trade unions and of the community, be curtailed, if not abrogated.

But the whole problem was about to assume a new aspect. Down to 1906 the Legislature regarded trade unions, whether it imposed restrictions or conferred privileges upon them, solely as factors in the organisation of industry. After 1908 they could no longer be so regarded. Trade unionism had definitely entered the