The History of Trade Unionism/X. The place of trade unionism in the state 1890-1920

CHAPTER X THE PLACE OF TRADE UNIONISM IN THE STATE [1890-1920]
IN 1890 Trade Union organisation had already become a lawful institution ; its leading members had begun to be made members of Royal Commissions and justices of the peace ; they were, now and then, given such Civil Service appointments as Factory Inspectors ; and two or three o1 them had won their way into the House of Commons. Bu1 these advances were still exceptional and precarious. The next thirty years were to see the legal position of Trade Unionism, actually in consequence of renewed assaults very firmly consolidated by statute, and the Trade Unior claim to participation in all public enquiries, and to nominate members to all governmental commissions and committees practically admitted. Trade Union representatives have won an equal entrance to local bodies, from Quarter Session* and all the elected Councils down to Pension and Food anc Profiteering Act Committees ; an influential Labour Partj has been established in Parliament ; and most remarkable of all, the Trade Union itself has been tacitly accepted a< a part of the administrative machinery of the State.

It is a characteristic feature of Trade Union history, a1 the end as at the beginning of the record of the past hundrec years, that we have to trace the advance of the Movemenl through a series of attacks upon Trade Unionism itself. Ii

594

The Labour Commission 595

is in this light that we regard the Royal Commission on Labour set up by the Conservative Government of 1891. Its professed purpose was to enquire into the relations between Capital and Labour, with a view to their improve- ment. But its composition was significantly weighted against the wage-earners. It is true that, in the large total membership, seven Trade Union officials were included, among them being Mr. Tom Mann ; but whilst the great employers who sat on the Commission were supported by legislators, lawyers, and economists of their own class, having substantially their own assumptions and opinions, the Trade Unionist minority was allowed no expert colleagues. From the start the Commission set itself probably quite without any consciousness of bias to discredit alike the economic basis of the workmen's combinations, the methods and devices of Trade Unionism, and the projects of social and economic reform that were then making headway in the Trade Union world. In the end, after two years' ex- haustive enquiry, which cost the nation nearly 50,000, the majority of the Commissioners either found it impossible, or deemed it inexpedient, to report anything in the nature of an indictment against Trade Unionism in theory or practice ; and could not bring themselves to recommend any, even the slightest, reversal of what had, up to the very date of the report, been conceded or enacted, whether with regard to the recognition of Trade Unions, the collective regulation of wages, the legal prescription of minimum conditions of employment or the political activities of the workmen's combinations. The majority of the Commissioners it is significant that they were joined by three out of the seven Trade Unionists contented themselves with deprecating, and mildly arguing against, every one of the projects of reform that were then in the air. What is interesting is the fact that the most reactionary section of the Com- mission nearly persuaded their colleagues of the majority to recommend putting Trade Unions compulsorily into the strait -jacket of legal incorporation, involving them in

596 The Place of Trade Unionism in the State

corporate liability for the acts of their officers or agents with the object of inducing the Unions to enter not, as i usual in Collective Bargaining, into treaties denning mereh minimum conditions but into legally binding obligation: with the employers, in which the Unions would becomi liable in damages if any of their members refused to worl on the collectively prescribed terms. At the last momen the majority of the Commissioners recoiled from this pro posal, which was left to be put forward as a separate repor over the names of seven Commissioners. The Labou Minority Report, signed by four 1 out of the seven Trad< Unionist Commissioners, whilst protesting strongly agains any interference with Trade Union freedom, took the fora of a long and detailed plea for a large number of immediately practicable industrial, economic, and social reforms, envisage< as step by step progress towards a complete transformatioi of the social order. 2

The Commission had no direct results in legislation o administration ; but the Board of Trade set up a Labou Department, appointed a number of Trade Unionists as it officials or correspondents, and started the admirably edite< monthly Labour Gazette. The next move came in the fora of an assault on the legal position of Trade Unionism, which in one or other manifestation, held the stage for more tha] a decade.

For a quarter of a century the peculiar legal status whicl had been conferred upon a Trade Union by the Acts c 1871-76 was not interfered with by the lawyers. At th

1 William Abraham (South Wales Miners), J. MawdsJey (Cottor spinners), Michael Austin, M.P. (Irish Labour), and Tom Mann (Ama gamated Society of Engineers).

2 For the Labour Commission see its Report and Evidence, publishe in 1892-94 in many volumes, the Report itself being C. 2421 of 1894. A epitome was published as The Labour Question, by T. G. Spyers, 1894 see also " The Failure of the Labour Commission," by Mrs. Sidney Webt in Nineteenth Century, 1893. The Trade Unionist Minority Report had wide circulation as an Independent Labour Party pamphlet. It readi in 1920, curiously prophetic of the actual legislative and administrativ changes that have taken place.

Civil Actions 597

close of the nineteenth century, when Trade Unionism had by its very success again become unpopular among the propertied and professional classes, as well as in the business world, a new assault was made upon it.

ACTIONS FOR DAMAGES

The attempt to suppress Trade Unionism by the criminal law was practically abandoned. 1 But officers of Trade Unions found themselves involved in civil actions, in which the employers sued them for damages caused by Trade Union activity which the judges held to be, although not criminal, nevertheless wrongful. What could no longer be punished by imprisonment with hard labour might at any rate be penalised by heavy damages and costs, for which the Trade Unionist's home could be sold up. The Trade Unions in 1875-80, though, as we have described, warned

1 For half a century after the repeal of the Combination Acts in 1824-25 the controversy as to the legal position of Trade Unionism was always muddled up, in the minds of lawyers as well as economists and the public, with that of physical violence. Because angry strikers here and there committed assaults, and occasionally destroyed property, it was habitually assumed, as it still is by some people thinking themselves educated, that Trade Unionism practically depended on, and inevitably involved, personal molestation of one sort or another. This led magis- trates, right down to 1891, occasionally to regard as a criminal offence, under the head of " intimidation," any threat or warning uttered by a Trade Unionist to an employer or a non-unionist workman, even if the consequences alluded to were of the most peaceful kind. In 1891 a specially constituted Court of the Queen's Bench Division definitely laid it down that " intimidation," under the Act of 1875, was confined to the threat of committing a criminal offence against person or tangible property (Memorandum by Sir Frederick Pollock in Appendix to Report of Royal Commission on Labour, C. 7063 ; see also Law Quarterly Review, January 1892 ; Industrial Democracy, by S. and B. Webb, Appendix I., 1897 ; Gibson v. Lawson, and Curran v. Treleaven, 1891, 2 Q.B. 545).

Magistrates continued, however, for some time to treat unfairly such breaches of public order as " obstructing the thoroughfare " or committing acts of annoyance to the pubh'c, when committed in connection with a strike of which they disapproved, which would not be proceeded against as criminal if they had been done by an excited crowd of stockbrokers in the City, by the audience of a street-corner preacher, or by a gathering of the Primrose League. Such discrimination by the police or the magistrate is unjust.

598 The Place of Trade Unionism in the State

by their friendly legal advisers, had not realised the import- ance of insisting that the elastic and indeterminable law of conspiracy should be put on a reasonable footing ; and though they were, by 1891, fairly safe from its use to re- inforce the criminal law, the lawyers found means, under the figment of " conspiracy to injure," to bring under the head of torts or actionable wrongs the most ordinary and non- criminal acts of Trade Union officers which would have been, if done by one person only, without conspiracy, no ground for legal proceedings. After-ages will be amazed at the flagrant unfairness with which the conception of a " con- spiracy to injure " was applied at the close of the nineteenth century. The greatest possible injury to other people's income or business, not involving the violation of a recognised legal right, if committed by employers for the augmentation of their profits (even in " restraint of trade," by means of the deliberate conspiracy of an association), was held not to be actionable. 1 But it was held to be an actionable wrong to the employer for a couple of men to wait in the street, in a town many miles distant, for the purpose of quite quietly and peacefully persuading a workman not to enter into a contract of service. The most pacific " picket- ing " of an employer's premises, though admittedly no longer a criminal act, was, if done in concert, held to be an actionable wrong. If a Trade Union Secretary published a perfectly accurate list of firms which were " non-Union," with the intention of warning Trade Unionists not to take service with them, this gave each of the " blacklisted " firms the right to sue him for damages. It was held to be ground for damages for a Trade Union official merely to request one firm not to supply goods to another ; or to ask an employer not to employ any particular person ; or even to urge the members of his own Union quite lawfully to come out on strike on the termination of their engagement

1 Mogul Steamship Company v. M'Gregor, Gow & Co. (1892), A.C. 25 ; Scottish Co-operative Wholesale Society v. Glasgow Fleshers' Trade Defence Association (1897), 35 Sc.L.R. 645 ; see History of Co-operation in Scotland, by William Maxwell, 1910, p. 349.

" Conspiracy to Injure " 599

of service, if the object of the strike was considered by the Court to be to put pressure on the will of some other employer or some other workman. And whilst any solicitation or persuasion to break a contract of service by a Trade Union official was certainly actionable, it became doubtful whether he would not be equally liable if he had carefully abstained from, and had really not intended, any such suggestion, whenever the members of his Society became so influenced by his action, or were thought by the Court to have been so influenced, that they, spontaneously and against his desires, impetuously came out on strike before their notices had expired. 1 It was a further aggravation, of which less advantage was actually taken by employers in this country than by those of the United States, that where the Court was convinced that an actionable wrong was threatened or intended, it was possible very summarily to obtain an injunction against its commission, any breach of which was punishable by imprisonment for contempt of Court. It became, therefore, at least theoretically possible that almost any action by a Trade Union by which an employer felt himself injured might be summarily prohibited by per- emptory injunction ; and some things were thus prohibited, even in this country.

1 For all these cases see Industrial Democracy, by S. and B. Webb, Appendix I., 1897 ; Trade Union Law, by H. Cohen and G. Howell, 1901 ; The Law Relating to Trade Unions, by D. R. C. Hunt, 1902 ; Trade Unions and the Law, by G. F. Assinder, 1905 ; The Present and Future of Trade Unions, by A. H. Ruegg and H. Cohen, 1906 ; Report of Royal Commission on Trade Disputes, Cd. 2825, 1906 ; Temperton v. Russell (1893), i Q.B. 715 ; 62 L.T.Q.B. 412 ; 62 L.T. 78 ; 41 W.R. 565. 57. J.P. 676 ; Trollope and Others v. The London Building Trades Federation and Others (1895), 72 L.T. 342; ii T.L.R. 280; Pink v. The Federation of Trade Unions (1893), 67 L.T. 258 ; 8 T.L.R. 216, 711 ; 36 S.T. 201 ; J. Lyons and Son v. Wilkin (1896), i Ch. 811 ; the same again (1899), i Ch. 255 ; Allen v. Flood (1898), A.C. i; 67 L.J.Q.B. 119; 77 L.T. 717; 14 T.L.R. 125; 46 W.R. 258 ; 47 S.J. 149 ; 62 J.P. 595 ', Q v - Leathern (1901), A.C. 495; 70L.J.P.C. 76; 85 L.T. 289; 17 T.L.R. 749; 50 W.R. 139 ; 65 J.P. 708 ; W.N. 170. For foreign comments see La Situation juridique de* Trade Unions en Angleterre, by Morin (Caen, 1907) ; Le Droit d' Association en Angleterre, by H. E. Barrault (Paris, 1908) ; Das englische Gewerk- vereinsrecht seit 1870, by F. Haneld, 1909.

6oo The Place of Trade Unionism in the State

THE TAFF VALE CASE

All this development of the Law of Conspiracy and the Law of Torts, though it went far to render nugatory the intention of the Legislature in 1871-76 to make lawful a deliberately concerted strike, left unchallenged the position of the Trade Union itself as immune from legal proceedings against its corporate funds, an anomalous position which everybody understood to have been conceded by the Acts of 1871-76. In 1901, after thirty years of unquestioned immunity, the judges decided, to the. almost universal surprise of the legal profession as well as of the Trade Union world, that this had not been enacted by Parliament. In 1900 a tumultuous and at first unauthorised strike had broken out among the employees of the Taff Vale Railway Company in South Wales, in the course of which there had been a certain amount of tumultuous picketing, and other acts of an unlawful character. In the teeth of the advice of the Company's lawyers, Beasley, the General Manager, insisted on the Company suing for damages, not the workmen guilty of the unlawful acts, but the Amalgamated Society of Railway Servants itself ; and on fighting the case through to the highest tribunal. After elaborate argument, the Law Lords decided that the Trade Gnion, though admittedly not a corporate body, could be sued in a corporate capacity for damages alleged to have been caused by the action of its officers, and that an injunction could be issued against it, restraining it and all its officers, not merely from criminal acts, but also from unlawfully, though with- out the slightest criminality, causing loss to other persons. Moreover, in their elaborate reasons for their judgement, the Law Lords expressed the view that not only an injunction but also a mandamus could be issued against a Trade Union, requiring it to do anything that any person could lawfully call upon it to do ; that a registered Trade Union could be sued in its registered name, just as if it were a corporation ;

The Taff Vale Case 601

that even an unregistered Trade Union could be made collectively liable for damages, and might be sued in the names of its proper officers, the members of its executive committees and its trustees ; and that the damages and costs could be recovered from the property of the Trade Union, whether this was in the hands of separate trustees or not. The effect of this momentous judgement, in fact, was, in flagrant disregard of the intention of the Government and of Parliament in 1871-76, to impose upon a Trade Union, whether registered or not, although it was still denied the advantages and privileges of incorporation, complete corporate liability for any injury or damage caused by any person who could be deemed to be acting as the agent of the Union, not merely in respect of any criminal offence which he might have committed, but also in respect of any act, not contravening the criminal law, which the judges might hold to have been actionable. The Amalga- mated Society of Railway Servants, which had not authorised the Taff Vale strike nor any wrongful acts that were com- mitted by the strikers, but which, after the strike had occurred, had done its best to conduct it to a successful issue, and had paid Strike Benefit, was compelled to pay 23,000 in damages, and incurred a total expense of 42,000. 1

1 Taff Vale Railway Company y. Amalgamated Society of Railway Servants (1901), A.C. 426; 70 L.J.K.B. 905; 85 L.T. 147; 17 T.L.R. 698 ; 65 J.P. 596 ; 50 W.R. 44 ; Report of Royal Commission on Trade Disputes, 1906, Cd. 2825 ; The Law and Trade Unions : A Brief Review of Recent Litigation, specially prepared at the instance of Richard Bell, M.P.,

1901 ; Statement by the Parliamentary Committee on the Taff Vale Case,

1902 ; History of the British Trades Union Congress, by W. J. Davis, vol. if. 1916, pp. 201-2 ; Trade Union Law, by H. Cohen and George Howell, 1901 ; The Legal Position of Trade Unions, by H. H. Slesser and W. S. Clark, 1912 ; Industrial Democracy, by S. and B. Webb, Introduc- tion to the 1902 edition, pp. xxiv-xxxvi. It does not appear that, in ttie strictly legal sense, the Taff Vale j udgement was unwarranted. Though the. Act of 1871 had been supposed to prevent a Trade Union from being proceeded against, it contained no explicit grant of immunity from being made answerable for any damage that might be wrongfully caused. In fact, both the 1871 Act and that of 1876 expressly provided that the registered Trade Union itself should be liable to be brought into Court for the petty penalties instituted for failure to supply the Registrar with copies of rules and balance-sheets ; and also that the trustees of a

602 The Place of Trade Unionism in the State

It has been estimated that, from first to last, the damage* and expenses in which the various Trade Unions were cast owing to this, and the other judgements against Trade Unions and Trade Union officials personally, amounted tc not less than 200,000.

The little world of Trade Union officials, already alarmec at the prospect of being individually sued for damages was thrown into consternation by the Taff Vale judgement which seemed to destroy, at a blow, the status that hac been, with so much effort, acquired in 1871-76. The ful extent of the danger was not at first apprehended. Why it was asked, should not the Trade Union rules, and th< instructions of Trade Union Executive Committees, express!] forbid the commission by officials of any wrongful acts i It was only gradually realised that, under the figment o " conspiracy to injure " that the lawyers had elaborated even the most innocent acts, which an individual coul( quite lawfully commit, might be held wrongful and action

registered Union should sue and be sued on its behalf. What the Ac of 1871 did was to relieve the Trade Union from its character of criminalit by reason of its purposes being in restraint of trade, and of its characte of illegality from the same cause ; and to prohibit legal proceeding directly to enforce certain agreements among its members, or between i and its members, or among different Unions. These were assumed to b all the cases that could arise. It seems to have been taken for grantei by the Minority of the Trade Union Commission of 1869, by the Horn Office in 1870-71, by the Parliament of 1871-76, and the Royal Com mission on Labour in 1893, that an unincorporated body could not b sued for damages in tort any more than for a civil debt. But in th following years, without any reference to Trade Unionism, the Court successively enlarged their procedure so as to admit of any group c persons having a common interest being made parties to a " representativ action " (Duke of Bedford v. Ellis, 1901, A.C. i, where the tenants c shops in Covent Garden were parties). This enabled even an unregistere< Trade Union to be sued (Yorkshire Miners' Association v. Howden, 1905 A.C. 256). In 1893, and again in 1895, actions against unregistered Trad Union organisations had been maintained in the lower Courts (Trollop and Others v. The London Building Trades Federation and Others, 1895 72 L.T. 342 ; ii T.L.R. 280 ; W.N. 45 ; Pink v. The Federation of Trade and Labour Unions, etc., 1893, 67 L.T. 258 ; 8 T.L.R. 216, 711 ; 36 S.J 201). But these had not been noticed by the Trade Union Movement a a whole ; and they had not been seriously defended, not fully argued and not carried to the highest tribunal.

Trade Unionism disarmed 603

able if they were committed by or on behalf of an association to the pecuniary injury of any other person ; and that there was no assignable limit, as the cases had shown, either to what might be held to be wrongful acts, or to the nature or amount of the damage that the Courts might hold to have been caused by such acts in the ordinary course of any extensive strike. Moreover, under the ordinary law of agency, the most explicit prohibition of unlawful acts in the rules of the association, coupled with the most scrupulous care in the Executive Committee in framing its instructions to its officials, would not prevent the Trade Union from being held liable for any pecuniary injury that might be caused, even in defiance of instructions and in disobedience to the rules, by any of its officers acting within the scope of their employment ; or, indeed, by any member, paid or unpaid, whom the Courts might hold to be acting as the agent of the Union. And as every stoppage of work, however lawful, necessarily involved financial loss to the employers, it could be foreseen that even the most carefully conducted strike might be made at least the occasion for costly litigation, and probably the opportunity for getting the Trade Union cast in swingeing damages. The immediate result was very largely to paralyse the Executive Committees and responsible officials of all Trade Unions, and greatly to cripple their action, either in securing improvements in their members' conditions of employment or in resisting the employers' demands for reductions. In particular, the general advances for which the railway workers were asking were delayed. The capitalists did not fail to use the opportunity to break down the workmen's defences. Trade Unionism had to a great extent lost its sting. 1

1 The number of stoppages through disputes known to the Labour Department of the Board of Trade, which between 1891 and 1899 had never been fewer than 700 in a year, did not again reach this figure for a whole decade; and sank in 1903-5 years during which trade was checked, and some reduction of wages took place to only half the number. Of the 135 claims to the Strike Benefit admitted by the General Federation of Trade Unions in 1903, we read that " no less than 130 have

604 The Place of Trade Unionism in the State

Though it took some time for the Trade Union world to realise the peril, the effect on the Movement was profound. Up and down the country every society, great and small, and practically every branch, rallied in defence of its right to exist. The first result was to make the newly-formed Labour Party, which will be hereafter described, and which had hitherto hung fire, into an effective political force. The effect of the Taff Vale judgement was, in 1902-3, to double, and by 1906-7 to treble the number of adhering Trade Unions, and to raise the affiliated membership of the Party to nearly a million. As the Dissolution of Parliament approached, the Trade Unions organised a systematic canvass of all prospective candidates, making it plain that none would receive working-class support unless they pledged themselves to a Bill to undo the Taff Vale judgement and put back Trade Unionism into the legal position that Parliament had conferred upon it in 1871. When the General Election at last took place, in January 1906, the Labour Party (still known as the Labour Representation Committee) put no fewer than fifty independent candidates in the field, of whom, to the astonishment of the politicians, twenty-nine were at the head of the poll. 1

THE TRADE DISPUTES ACT

The first claim of the Labour Party was for the statutory reversal of the Taff Vale judgement, which every one now admitted to be necessary. The question was what should be done. There were, substantially, only two alternatives. One was that, in view of the difficulty of effectually main- taining it against legal ingenuity, the Trade Unions should

been caused by attempts on the part of employers to encroach upon the recognised conditions prevailing in the particular trades " (Fifth Annual Report of the Federation, 1904, p. n).

1 In addition, twelve workmen, mostly miners, were elected under the auspices of the Liberal Party. Nearly all these came over to the Labour Party in 1910 (History of Labour Representation, by A. W. Humphrey, 1912).

Alternative Remedies 605

forgo their position of being outside the law, and should claim, instead, full rights, not only of citizenship, but actually of being duly authorised constituent parts of the social structure, lawfully fulfilling a recognised function in in- dustrial organisation. But for the Trade Union to become, not merely an instrument of defence, but actually an organ of government in the industrial world, required a great advance in public opinion. It assumed an explicit recogni- tion of the legitimate function of the Trade Union, as the basis of a Vocational Democracy, exercising a definite share in the control and administration of industry. It involved a complete transformation of both the criminal and the civil law, so that workmen's combinations and strikes, together with peaceful picketing in its legitimate form, should be unreservedly and explicitly legalised ; the law of civil conspiracy practically abrogated, so that nothing should be unlawful when done in concert with others which would not be unlawful if done by an individual alone ; and reason- able limits set to liability for the acts of agents and to the scope for injunctions, so that a Trade Union Executive would be able both to know the law and to be ensured against its perversion. The alternative was to make no claim for the profound advance in Trade Union status that would be involved in such a policy; to forgo any hope of satisfactory or complete amendment of the law, and merely to re-enact the exceptional legislation of 1871, this time specifically insisting that a Trade Union, whether registered or not, should be put outside the law, and made expressly immune from legal proceedings for anything, whether lawful or unlawful, done by its officers or by itself. The outgoing Conservative Government had appointed in 1903 a small Royal Commission to consider the state of the law as to Trade Unionism, before which the Trade Unions had refused to give evidence, because the Commis- sion, which was made up almost entirely of lawyers, in- cluded no Trade Unionist. This Commission, it is believed, was told privately not to report until after the General

606 The Place of Trade Unionism in the State

Election, in order that the Conservative Government might not be embarrassed by the dilemma. Early in 1906 it reported in favour of the Trade Union accepting full responsibility for its own actions, subject to considerable, but far from adequate, amendments of the law. 1 This proposal was definitely rejected by the Labour Party, which introduced a Bill of its own, merely restoring the position of 1871. When the Liberal Government brought in a Bill very much on the lines of the Commission's Report, there was a dramatic exhibition of the electoral power that Trade Unionism, once it is roused, can exercise in its own defence. Member after member rose from different parts of the House to explain that they had pledged themselves to vote for the complete immunity which Trade Unions were supposed to have been granted in 1871. Nothing less than this would suffice ; and the most powerful Government hitherto known was constrained, in spite of the protests of lawyers and employers, to pass into law the Trade Disputes Act of 1906. 2 The Trade Disputes Act, which remains (1920) the main charter of Trade Unionism, explicitly declares, without any qualification or exception, that no civil action shall be entertained against a Trade Union in respect of any wrongful act committed by or on behalf of the Union ; an extra- ordinary and unlimited immunity, however great may be the damage caused, and however unwarranted the act, which most lawyers, as well as all employers, regard as nothing less than monstrous. 3 At the same time the Act,

1 Report of Royal Commission on Trade Disputes and Trade Combina- tions, Cd. 2825.

2 6 Edward VII. c. 47.

3 Trade Unionists would be well advised not to presume too far on this apparently absolute immunity from legal proceedings. It must not be imagined that either the ingenuity of the lawyers or the prejudice of the judges has been exhausted. It has already been urged that the immunity of a Trade Union from being sued should be regarded as im- plicitly limited to acts done in contemplation or furtherance of a trade dispute ; but such a limitation has so far been negatived (Vacher v. London Society of Compositors, 29 T.R. 73). It is now suggested that the immunity might one day be held to be limited to acts committed by a Trade Union in the exercise of its specifically Trade Union functions, or

The Trade Disputes Act 607

whilst not abrogating or even defining the law as to civil conspiracy, gives three exceptional privileges to Trade Union officials by declaring that, when committed in con- templation or furtherance of a trade dispute, (i) an act done in concert shall not be actionable if it would not have been actionable if done without concert ; (2) attendance solely in order to inform or persuade peacefully shall be lawful ; and (3) an act shall not be actionable merely by reason of its inducing another person to break a contract of employ- ment, or of its being an interference with another person's business, or with his right to dispose of his capital or his labour as he chooses. These exceptional statutory privileges for the protection of Trade Union officials in the exercise of their lawful vocation, and of " pickets " in the perform- ance of their lawful function in themselves a triumph for Trade Unionism have ever since excited great resentment in most of those who are not wage-earners. Some friends of the Trade Unions expressed at the time the doubt whether the policy thus forced upon Parliament would prove, in the long run, entirely in the interest of the Movement ; and whether it would not have been better to have chosen the bolder policy of insisting on a complete reform of the law,

Eor the " statutory objects " of Trade Unions as defined by the Act, and aot to acts which the Court might hold to be beyond its legitimate scope, M- not specifically connected with what they might in their wisdom con- sider to be the principal purpose of a Trade Union. (But see Shinwell v. National Sailors' and Firemen's Union, 1913, a decision of the Scottish Cx>urt of Session, limiting the liability ot a Union to reimburse its trustees Eor damages incurred by them.) Thus, a new Taff Vale case, at a moment when public opinion was exceptionally hostile to Trade Unionism, is by no means impossible. Similarly, Trade Union officials should remember that their privileged position is confined to a trade dispute, which, as specifically defined in the Act, does not include all strikes ; and what limits the Courts might set to the phrase is uncertain. Moreover, the Trade Disputes Act does not repeal other statutes ; and Trade Union officials have been fined for persuading sailors not to embark, in contravention of the Merchant Shipping Acts. The Trade Disputes Act does not protect officials committing illegalities other than those to which it expressly refers or under circumstances other than those indicated. See Valentine v. Hyde (1919); Conway v. Wade (1908), A.C. 506; Larkin v. Belfast Harbour Commissioners (1908), 2 Ir.K.B.D. 214 ; Legal Position of Trade Unions, by H. H. Slesser and W. S. Clark, 1912.

608 The Place of Trade Unionism in the State

to which, when properly reformed, Trade Unions should be subject in the same way as any other associations. The lawyers, as it proved, were not long in taking their revenge.

THE OSBORNE JUDGEMENT

This time the legal assault on Trade Unionism took a new form. The result of the dramatic victory of the Trade Disputes Act, and of the activity of the Labour members in the House of Commons, was considerably to increase the influence of the Labour Party in the country, where preparations were made for contesting any number of constituencies irrespective of the convenience of the Liberal and Conservative parties. The railway companies, in particular, found the presence in Parliament of the secretary of the railwaymen's principal Trade Union very inconvenient. Within a couple of years of the passing of the Trade Disputes Act, on July 22, 1908, one of the members of the Amalgam-, ated Society of Railway Servants took legal proceedings to restrain it from spending any of its funds on political objects, contending that this was beyond the powers of a Trade Union. Such a contention found no support among eminent lawyers, several of whom had formally advised that Trade Unions were undoubtedly entitled to undertake political activities if their rules authorised such action and a majority of their members desired it. W. V. Osborne, the dissentient member of the Amalgamated Society of Railway Servants, took a different view ; and, liberally financed from capitalist sources, carried his case right up to the highest tribunal. As a result, in December 1909, as in 1825, 1867-71, and 1901-6, every Trade Union in the land found its position and status once more gravely impugned. In what became widely known as the Osborne Judgement, the House of Lords, acting in its judicial capacity as the highest Court of Appeal, practically tore up what had, since 1871, been universally understood to be the legal constitution of a Trade Union. 1

1 A verbatim report of the proceedings (November 1908) in the Court

The Osborne Judgement 609

The decision of the judges in the Osborne case throws so much light, not only on the status of Trade Unionism in English law, but also on the animus and prejudice which the Trade Disputes Act and the Labour Party had excited, that we think it worth treating at some length. Formally this judgement decided only that W. V. Osborne, a member Df the Walthamstow Branch of the Amalgamated Society Df Railway Servants, was entitled to restrain that Trade Union from making a levy on its members (and from using my of its funds) for the purpose of supporting the Labour Party, or maintaining Members of Parliament. But in the course of that decision a majority of the Law Lords, therein following all three judges of the Court of Appeal, laid it down as law (and thereby made it law until Parlia- nent should otherwise determine), (a) that although Parlia- nent has always avoided any express incorporation of Trade Unions, these were all now to be deemed to be corporate Bodies, formed under statute, and not unincorporated groups )f individual persons ; (b) that it follows, by an undoubted )rinciple of English law, that a body corporate, created inder statute, cannot lawfully do anything outside the mrposes for which the statute has incorporated it ; (c) that is the purposes for which Trade Unions are incorporated lave to be found somewhere authoritatively given, the lefinition which Parliament incidentally enacted in the frade Union Act of 1876 must be taken to enumerate, tccurately and exhaustively, all the purposes which any proup of persons falling within that definition can, as a
 * orporate body, lawfully pursue ; and (d) that the payment

>f the salaries and election expenses of Members of Parlia-

f Appeal in Osborne v. Amalgamated Society of Railway Servants was >ublished by the defendants (Unity House, Euston Road, London). The louse of Lords' judgement was given on December 21, 1909, when it was ddely commented on. The most convenient analysis is that by Professor V. M. Geldart, The Osborne Judgment and After, 1910, and The Present .aw of Trade Disputes and Trade Unions, 1914. See " The Osborne "evolution," by Sidney Webb, in The English Review for January 1911 ; nd My Case, by W. V. Osborne, 1910.

X

610 The Place of Trade Unionism in the State

ment, and indeed, any political action whatsoever, not beuij mentioned as one of these purposes and not being con sidered by the judges incidental to them, could not lawfull; be undertaken by any Trade Union, even if it was formed from the outset, with this purpose duly expressed in it original rules, and even if all its members agreed to it, an< continued to desire that their organisation should carr; it out.

This momentous judgement destroyed, at a blow, th peculiar legal status which Frederic Harrison had devise for Trade Unionism in 1868, and which Parliament though that it had enacted in 1871-76. The statutes of 1871 an 1876, which had always been supposed to have enlarged th freedom of Trade Unions, were now held to have deprive these bodies of powers that they had formerly enjoyed. 1 was not, as will be seen, a question of protecting a dissentien minority. Whether the members were unanimous, c whether they were nearly evenly divided, did not affect th legal position. Trade Unions found themselves suddenl forbidden to do anything, even if all their members desire it, which could not be brought within the terms of a claus in the Act of 1876, which Parliament (as Lord James c Hereford emphatically declared) never meant to be take in that sense. " What is not within the ambit of tha statute," said Lord Halsbury, " is, I think, prohibited bot to a corporation and a combination." This was the nei limitation put on Trade Unions. All their educations work was prohibited ; all their participation in municipz administration was forbidden ; all their association fc common purposes in Trades Councils and the Trades Unio: Congress became illegal. The judges stopped the mos characteristic and, as was supposed, the most constitutions of the three customary ways that (as we have shown in ou Industrial Democracy) Trade Unions pursued of enforcin, their Common Rules, namely, the Method of Legal Enact ment ; grave doubt was thrown on the legality of some o the developments of their second way, the Method of Mutua

Development of Law 611

[nsurance ; whilst the way that the House of Lords expressly Described was exactly that which used to give rise to so nuch controversy, namely, the Method of Collective Bargain- ng, with its concomitant of the Strike. So topsy-turvy a dew of Trade Unionism, a view which seems to have arisen rom the judges' ignorance of its two centuries of history, ^arliament. J
 * ould not have survived open discussion, and therefore
 * ould hardly have been taken by even the most prejudiced

THE DEVELOPMENT OF ENGLISH LAW

What was the explanation of the view of the Trade Jnion constitution that the judges took ? The English Courts of Justice, it must be remembered, have peculiar rules if their own for the construction of statutes. When the >lain man wants to know what a document means, he seeks very available explanation of the intention of the author. Vhen the historian inquires the purpose and intention of n Act of Parliament, he considers all the contemporary vidence as to the minds of those concerned. The Courts f Law, for good and sufficient reasons, debar themselves rom going behind the face of the document, and are there- Dre at the mercy of all the unstudied ineptitudes of House f Commons phraseology. Along with this rigour as to the itention of a statute, the English and American judges ombine a capacity for developments of doctrine in the 3rm of legal principles which is, we believe, unequalled in ther judicial systems. Now, the subject of corporations > one of those in which there had been, among the past enerations of English lawyers, a silent and almost unself- onscious development of doctrine, of which, in Germany, rierke had been the great inspirer, and Maitland in this Duntry the brilliant exponent. 1 Our English law long gidly refused to admit that a corporate entity could arise

1 Political Theories of the Middle Ages, by O. Gierke, with introduction y F. W. Maitland, 1900 ; see also the works of J. N. Figgis.

612 The Place of Trade Unionism in the State

of itself, without some formal and legally authoritative a of outside power. How, it was asked, except by son definite act of creation by a superior, could the persona fie come into existence ? How, otherwise (as Madox quaint puts it), could this mere " society of mortal men " becon something " immortal, invisible, and incorporeal " ? * As matter of fact, associations or social entities of all sor always did arise, without the intervention of the lawyer and nowadays they arise with amazing ease, without any a< of creation by a superior ; and when the English lawye. refused to recognise them as existing, it was they who wei irrational, and the common law itself that was at faul Nowadays we live in a world of social entities of all sorts, an of every degree of informality, corporate entities that to tl old-fashioned lawyers are still legally non-existent as such- clubs and committees of every possible, kind ; groups an circles, societies and associations for every conceivab purpose ; unions and combinations and trusts in evei trade and profession ; schools and colleges and " Universrl Extension Classes," often existing and spending and actir most energetically as entities, having a common purse an a single will, in practice even perpetual succession, and ( they desire such a futile luxury) a common seal, without an sort of formal incorporation. Gradually English lawye: (whom we need not suspect of reading Gierke, or even, f( that matter, Maitland) were unconsciously imbibing tl legally heterodox view that a corporate entity is anythir which acts as such ; and so far from making it impossible f( the persona ficta to come into existence without a formal a< of creation, they had been, by little alterations of procedui and imperceptible changes in legal principles, sometimes b harmless little dodges and fictions of the Courts themselve coming near to the practical result of putting every associ; tion which is, in fact, a social entity, however inform; in its constitution, and however " spontaneous " in i origin, in the same position of a persona ficta, for the purpos

1 Firma Burgi, by T. Madox, 1726, pp. 50, 279.

Social Entities 613

3f suing and of being sued, as if it had been created by a formal instrument of incorporation, decorated by many seals, and procured at vast expense from the post-Reforma- tion Pope himself ; or as if it had been expressly incorporated 3y the Royal Charter of a Protestant King or the private statute of a Victorian Parliament.

Now this development of legal doctrine to fit the circum- stances of modern social life is, when one comes to think of t, only common sense. If twenty old ladies in the work- louse club together to provide themselves with a special )ot of tea, and agree that one among them shall be the
 * reasurer of their painfully-hoarded pennies as a common

und, they do, in fact, create a social entity just as real n its way as the Governor and Company of the Bank of ingland. Why should not the law, if it ever comes to lear of the action of the twenty old ladies in the workhouse, Leal with the situation as it really is, according to their vtishes and intentions, without inquiring by what formal tct of external power a persona ficta has been created ; and herefore without demanding that the old ladies shall first >rocure a charter of incorporation from the Pope, from the ing, or from Parliament ? And considering that Trade Jnions were now in fact social entities, often having >ehind them more than a hundred years of " perpetual uccession " ; counting sometimes over a hundred thousand nembers moving by a single will ; and occasionally accumu- ating in a common purse as much as half a million of noney, the Law Lords might well think it absurd and [rational of Parliament to have decided in 1871-76, and .gain in 1906, to regard them as unincorporated groups of >ersons, having, in a corporate capacity, no legally enforce- ,ble obligations and hardly any legally enforceable rights, t may have been absurd and irrational, but what right o the Trade Unionists asked had the judges to change he law ?

Whatever may be the justification for the momentous hange in the law which the Six Judges (namely, the three

614 The Place of Trade Unionism in the State

members of the Court of Appeal, and three out of the five Law Lords, all of whom agreed in the series of propositions that we have cited) suddenly, without Parliamentary authority, of their own motion effected, it created an in- tolerable situation. There was, in the first place, the application of the doctrine of ultra vires to corporate entities quite unaware of its existence. It was all very well, in order to fit the law to the facts, to throw over the old legal doctrine that the persona ficta of a corporation could only come into existence by some formal act of incorporation by an external authority. But then it plainly would not do to retain, as the Six Judges quite calmly retained, the severe limitations on the action of statutory corporate entities which is involved in the doctrine of ultra vires, and which, as Lord Halsbury put it, was to prohibit them from doing what they liked. The argument for that principle is that such a corporate entity owes its existence entirely to the statutory authority by which it is created ; that the legislature has brought it into being for certain definite purposes ; that for those purposes and no others the ex- ceptional powers of a corporation have been conferred upon it ; that as such it is, in a sense, the agent whom the com- munity has entrusted with the execution of these functions, and who cannot therefore (even if all the constituent mem- bers of its body so agree and desire) assume any other purposes or functions. But any such doctrine of ultra vires can have no rational application to the corporate entity formed by the twenty old ladies in the workhouse for their private pot of tea. If we are going, in effect, to treat as corporate entities all sorts of spontaneously arising associa- tions, such as an unregistered Trade Union (and some oi the wealthiest and most powerful Trade Unions were stiU unregistered), or such as an Employers' Association (whicbj was hardly ever a registered body) corporate entities which, were, in fact, lawfully in existence long before the Act oi 1876 we must give up the fiction that the purposes of these] associations have been authoritatively fixed and defined irl

A Miscarriage of Justice 615

advance by Parliament in such a way that the members themselves, even when they are unanimous and when they are acting in strict accord with their constitution and rules, cannot add to or alter the objects or methods of their organisation. What was logically required, in fact, was not the arbitrary identification of spontaneously arising associative entities with legally created corporations, but the formulation of a new conception as to the functions and legal rights that such spontaneously arising associative entities to which the limitations of legally created corpora- tions could not be simply assumed to apply should, as a class, be permitted to exercise.

THE MISCARRIAGE OF JUSTICE

We come now to the second cardinal feature of the decision of the Six Judges in 1909, in which they showed both prejudice and ignorance. Having found that the Trade Unions were, in fact, corporate entities, and that they had been, in various clumsy ways, dealt with by Parliament very much as if they were legally corporate entities though Parliament had advisedly abstained from incorporating them, and had, indeed, always referred to them as being what in fact they were, namely already existing and spon- taneously arising associations, not created by its will the Six Judges took the view that some authoritative specification of the objects and purposes of a Trade Union had to be discovered by hook or by crook. It seems to have been by them inconceivable (though Lord James of Hereford, one of their own number, who had personally taken part in all the legislation, expressly told them it was in fact so) that no such specification should exist. They accordingly found it in an enumeration which Parliament had given in the Act of 1876 of all the various bodies which were to be entitled to the privileges conferred by the Act a definition introduced, so a well-informed writer men-

616 The Place of Trade Unionism in the State

tioned in 1878, for the special advantage of Trade Unions J principally to enable them to be registered by the Chief Registrar of Friendly Societies. The Law Lords now held that this definition must be deemed to be an exhaustive enumeration, not merely of the kinds of societies to be eligible for registration, but also of all the objects and pur- poses that Parliament intended any of those bodies, whether registered or unregistered, to be free at any time to pursue. The result was that all Trade Unions and Employers' Associations, and, indeed, all informal groups of workmen or employers falling within this definition, suddenly found themselves (to the complete amazement of every one con- cerned, including the lawyers) rigidly confined in their action, even if all their members otherwise wished and agreed, to matters which were specified in an enumerating clause of an Act of Parliament of a generation before, which had never before been supposed to have that meaning, 01 to have any restrictive effect at all. We ought to speak with proper respect of the judges, though sometimes, by their curious ignorance of life outside the Law Courts, and especially of " what everybody knows," they try us hard. But it is necessary to state plainly, with regard to this part of the Osborne Judgement, that to the present writers, as to the whole British working class and many other people, including lawyers, it seemed an astounding aberration, amounting to a grave miscarriage of justice. Again, let it be noted that Lord James of Hereford, who knew what Parliament had intended, and what Trade Unions actually were, expressly dissented from his colleagues on this point, saying that the enumeration clause in the Act of 1876 was never intended to be " a clause of limitation or exhaustive definition " of objects and purposes ; and arguing that it did not prevent a Trade Union from having other purposes, or pursuing other methods, not in themselves unlawful, even though these were not enumerated in the definition

1 Conflicts of Capital and Labour, by G. Howell, ist edition, 1878, and edition, 1890, p. 479.

The Definition Clause 617

clause and were not even incidental to the purposes therein enumerated. But what is the history of this definition clause ? As it stands in the Act of 1876 it runs as follows :

The term " Trade Union " means ariy combination, whether temporary or permanent, for regulating the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or for imposing restrictive condi- tions on the conduct of any trade or business, whether such combination would or would not, if the principal Act had not been passed, have been deemed to have been an unlawful com- bination by reason of some one or more of its purposes being in restraint of trade.

Now, to the lay mind, this extremely loose enumeration 1 of kinds of societies seems plainly intended to bring within its net, and therefore to admit to the advantages of the Act, a wide range of existing or possible associations of different kinds. It was to include all sorts of Employers' Associations as well as Trade Unions. It was to include bodies already in existence as well as those to be formed in the future. It was to include bodies seeking to impose restrictive conditions " in restraint of trade," as well as those having no such unlawful objects. It was to include, therefore, bodies already enjoying a full measure of lawful existence and legal recognition, as well as those for the first time fully legalised by the legislation of 1871-76. To the logician it will be clear that we have here a case of classifica- tion by type, not by delimitation. "It is determined," says Whewell and J. S. Mill, " not by a boundary line without, but by a central point within ; not by what it strictly excludes, but by what it eminently includes ; by an example, not by a precept." 2 Accordingly the clause

1 It should be recorded, as an instance of the prescience of ^ Sir Charles Dilke, that he is reported to have declared at the time that " the trade union Acts were spoilt during their passage through the House by the insertion of obscure definition clauses " (Conflicts of Capital and Labour, by G. Howell, 1890, p. 479).

2 Whewell, History of Scientific Ideas, vol. ii. p. 120 ; J. S. Mill, System of Logic, vol. ii. p. 276.

X 2

618 The Place of Trade Unionism in the State

names specifically one by one the various attributes, any one of which is to be typical of the class. It sufficed for the purpose to name only one attribute belonging to each body which it was desired to include. What its other attributes might be was irrelevant. It does not occur to the ordinary reader, any more than to the logician, that the effect of the clause is, not merely to include associations of different kinds, but also to limit the legal freedom of all those associa- tions, with all their varied functions, exclusively to the purposes specified in the definition, which were merely re- cited in order to bring a number of heterogeneous bodies into one class. On the construction put upon this clause by the Six Judges, the Act of 1876 was a measure which deprived Trade Unions and Employers' Associations, many of which had been for years lawfully in existence, without any unlawful objects or methods, of a freedom that they had up to then enjoyed ; it was an Act rigidly confining their operations to a limited field, and for ever prohibiting them (as Lord Halsbury expressly declared) from doing any- thing not included in the list of functions incidentally then and there given. It is safe to say that, to any historical student who knows anything of the circumstances of the case, such a supposition is preposterous. No Trade Union and no Employers' Association was aware in 1876 that its freedom was being thus restricted. Thomas Burt, M.P., and Lord James of Hereford (then Sir Henry James, M.P.), who took part in passing the Act, certainly never dreamed that they were doing anything of the sort. The Home Office officials who prepared it, and Lord Cross (then Home Secretary) who introduced it, quite plainly had not the remotest notion that they were taking away from Trade Unions (which they were anxious to legalise) any of the functions which these Unions were in fact exercising, and which such Trade Unions as were lawful associations were already lawfully exercising ; or that they were prohibiting these Trade Unions from doing anything not specified in the incidental enumeration of attributes that was then,

" Restraint of Trade " 619

merely for the purpose of including various kinds of associa- tions, statutorily enacted. As a matter of fact, the defini- tion clause in the Act of 1876 was enacted merely to correct in one small particular the definition clause in the Act of 1871. That clause had defined a Trade Union as meaning " such combination ... as would, if this Act had not passed, been deemed to have been an unlawful combination by reason of some one or more of the purposes being in restraint of trade. ' ' This was found in practice inconvenient, because it had inadvertently excluded from registration and all the benefits of the Act those Trade Unions and Employers' Associations which were already lawful associations, free from any unlawful purpose. A Trade Union had to prove that it was (but for the Act) an unlawful body before it could be admitted to the advantages of the Act. It was also inexpedient, because it actually offered an inducement to Trade Unions to have purposes or methods " in restraint of trade," in order to obtain these advantages. Now, sup- posing that the Act of 1876 had not been passed, and that the definition clause had remained in the terms of that of the Act of 1871, would the Six Judges have equally con- strued it as offering a complete and exhaustive enumeration of the permissible activities of a Trade Union, making it actually illegal for the future for any association of work- men or employer to deal with the conditions of employment, except in ways that would (but for the 1871 Act) have been unlawful ? And if the definition clause in the 1871 Act cannot be construed as (to use Lord James of Hereford's words) " a clause of limitation or exhaustive definition " of Trade Union activities, with what consistency can the definition clause of the 1876 Act (which follows the same wording, and merely extends the definition so as to take in lawful as well as unlawful societies) be so construed ? Suc- cessive Chief Registrars of Friendly Societies, like every one else, had always understood the definition clause to be an enabling clause, not a restricting one ; and they had accord- ingly for a whole generation willingly registered rules pre-

620 The Place of Trade Unionism in the State

sented to them by Trade Unions, including in their objects and purposes all sorts of things not enumerated in tht definition, and not even incidental to any of the purposes therein enumerated. It was, in 1909, not at first realised certainly the Six Judges did not realise how extensive and how varied were the actually existing operations of Trade Unions that they were rendering illegal. Not political action alone, not municipal action alone, but any work of general education of their members or others ; the formation of a library ; the establishment or management of " University Extension " or " Workers' Educational Association " classes; the subscription to circulating book-boxes ; the provision oi public lectures ; the establishment of scholarships at Ruskin College, Oxford, or any other College all of which things were at the time actually being done by Trade Unions were all henceforth to be ultra vires and illegal. The two hundred Trades Councils, local federations of different Trade Unions for the purpose of dealing with matters of general interest to workmen, which took no part in the collective bargaining of any particular Trade Union, were probably thereby equally made illegal ; though they were in 1876 already a quarter of a century old, and in 1909 numbered nearly a million members. The annual Trade Union Con- gress itself, then in its fortieth year, and dealing almost exclusively with Parliamentary projects, came under the same ban. The active participation which Trade Unions had here and there taken in technical education, and their co-operation with the Local Education Authorities, which had sometimes been found so useful, were certainly ultra vires. One would suppose, strictly speaking, that a similar illegality was to attach to all the vast " friendly society " side of Trade Unionism, with its sick and accident and out- of-work benefits not one of them being referred to in the definition which the Six Judges declared to contain an exhaustive enumeration of the purposes and objects that Parliament intended to permit Trade Unions to pursue. But here the Six Judges saved themselves though in a

Friendly Benefits 621

way logically destructive of their claim that the definition clause itself was one of " exhaustive " enumeration of per- missible Trade Union purposes by holding that these friendly benefits, though not mentioned in the definition clause, were referred to elsewhere in the Act, and might be regarded as incidental to the purpose of regulating the conditions of employment. This, indeed, so far as benefits paid to the workman himself are concerned, was a plausible view. Strike Benefit, in particular, is plainly incidental to striking, and sick benefit might conceivably be held to protect the worker from industrial oppression whilst sick. But the same cannot be said of the most widely spread of all Trade Union benefits, the provision of funeral money on a member's death. In some cases the Trade Unions were actually paying for the funerals of their deceased members' widows and orphan children. This was a mere act of humanity to the deceased member's widow and orphans ; and it could not, by any stretch of imagination, be supposed to improve the workers' bargaining power, or to be in any way incidental to the regulation or restriction of the condi- tions of employment. Yet Funeral Benefit was in 1909 (as it was in 1876) the one among the so-called " friendly " benefits most universally adopted by * Trade Unions. More than a million Trade Unionists were thus effecting through their societies a humble life insurance. This ex- tensive life insurance business of Trade Unions could not be said to be in any way included ki the definition clause of the 1876 Act, even if the sick and unemployment benefits were. If the judgements in the Osborne Case were correct, the whole of this life insurance business of Trade Unions (as distinguished from the sick and unemployment benefits), or at least the whole of that relating to widows and orphans, must be held to have been inadvertently prohibited by Parliament in 1871 and 1876, and to have been ever since ultra vires and illegal. It is impossible for the plain man to avoid the conclusion, even though the six other authorities take a contrary view, that Lord James of Hereford was

622 The Place of Trade Unionism in the State

right in declaring that the definition in the Act of 1876 was not meant by Parliament to be " a clause of limitation or exhaustive definition " of the permissible purposes of a Trade Union ; and, accordingly, that the Six Judges had presumably following quite accurately the narrow technical rules of their profession put upon the statute a construc- tion which Parliament had in no way intended.

What then did Parliament intend to fix and define as the permissible objects and functions of a Trade Union ? The answer of the historical student is clear and unhesitating. Parliament quite certainly intended, in 1871 and 1876, to fix and define nothing of the sort ; but meant, whether wisely or not, to leave Trade Unions as they then were as such of them, indeed, as had no unlawful purpose or method had long legally been namely, as free as any other unincorporated groups of persons to take whatever action they might choose, subject only to their own contractual- agreements, and to the general law of the land. From this position we venture, as historians, to say that Parliament did not, in 1871 or 1876, intentionally depart.

Finally, we have the argument of the Six Judges that, seeing that the ^ole lawful purposes of a Trade Union are " regulating the relations between workmen and masters, or between workmen and workmen, or between masters and masters," and " imposing restrictive conditions on the con- duct of any trade or business/' no action of a Parliamentary or political kind is witfiin the definition, or even incidental to anything therein. This view, to put it bluntly, showed an ignorance of Trade Unionism, British industrial history, and the circumstances not only of 1871-76, but also of 1908-9, which was as remarkable as it was deplorable. On the face of it, to take first the words of the statute, the most usual and the most natural way of " regulating " the relations between people, and the most obvious expedient for " imposing " restrictive conditions on industry, is an Act of Parliament. It was to Acts of Parliament, as we have abundantly shown in Industrial Democracy, that the

How Trade Unions Regulate 623

Trade Unions had for a century been looking, and were in 1871-76, many of them, looking, for a very large part of the " regulating " of industrial conditions, and of the " restrictive conditions " that they existed to promote. What the judges apparently forgot is that conditions of employment include not merely wages, but also hours of labour, sanitary conditions, precautions against accident, compensation for injuries, and what not. If the Six Judges had remembered how, in fact, in Great Britain the great majority of industrial relations were regulated, and how the great mass of restrictive conditions were, in fact, im- posed on industry ; or if they had had recalled to them the long and persistent struggle of the Trade Unions to get adopted the Factory Acts, the Mines Regulation Acts, the Truck Acts, the Shop Hours Acts, and so many more, they could hardly have argued that such actions as en- gaging in Parliamentary business, supporting or opposing Parliamentary candidates, and helping members of Parlia- ment favourable to " regulating," and " imposing restrictive conditions " actions characteristic of Trade Unions for generations were not incidental to these legitimate pur- poses. As a matter of fact, the getting and enforcing of legislation is, historically, as much a part of Trade Union function as maintaining a strike. 1 One Trade Union at least, which no one ever dreamt to be illegal, the United Textile Factory Workers' Association, has existed exclu- sively for political action, and had no other functions. 2 This kind of Trade Union action is even antecedent in date to any corporate dealing with employers. During the whole two centuries of Trade Union history, as in Industrial Democracy we have described, the Unions have had at their disposal, and have simultaneously adopted, three different

1 George Howell, in his Conflicts of Capital and Labour, 1890, gives a list, three pages long, of Acts which, as he expressly testifies from personal knowledge, were promoted or supported by the Trade Unions ; and in his Labour Legislation, Labour Movements and Labour Leaders, 1902, pp. 469-73, a still longer one.

8 Industrial Democracy, pp. 124, 251, 258-60.

624 The Place of Trade Unionism in the State

methods of imposing and enforcing the Common Rules which they sought to get adopted in the conditions of employ- ment. From 1700 downwards they have used the Method of Mutual Insurance ; from the very beginning of the eighteenth century down to the present day the records show them to have been continuously employing the Method of Legal Enactment ; whilst only intermittently during the eighteenth century, and not openly and avowedly until 1824, could they rely on the Method of Collective Bargaining. The Miners' Unions, and the Agricultural Labourers' Unions, in particular, had been particularly active in support of the extension of the franchise between 1863 and 1884. Even the expenditure of Trade Union funds on Parliamentary candidatures was practised by Trade Unions at any rate as early as 1868, as soon, in fact, as the town artisans were enfranchised ; and the payment of Trade Union Members of Parliament was begun as early as 1874, and had lasted continuously from that date. Yet the Six Judges assumed, apparently without adequate consideration, and certainly on inaccurate information, that Parliament in 1876 intended to authorise Trade Unions to pursue their first and third methods, but intended to prohibit them, from that time forth, from using the Method of Legal Enactment, just at the moment when this latter was being most effectively employed. It is, indeed, almost comic to remember that the Bill which is supposed to have effected this revolution in the Trade Union position was brought in by Lord Cross, then Sir R. A. Cross, M.P., fresh from his election by a constituency in which the Trade Unionists had been, politic- ally, the dominant factor ; that it was debated in a House of Commons in which the direct influence of the Trade Unions was at the highest point that it had hitherto reached ; that at the General Election of 1874, from which the members had lately come, the Trade Unions, as we have described in the present volume, had worked with might and main for the rejection of candidates opposed to their political claims, and had had a much larger share than political historians

The Law Lords' Ignorance 625

usually recognise in the Gladstonian defeat ; that two Trade Union members were actually then sitting in the House, one, at least (Thomas Burt), being openly maintained as a salaried representative of his Union, by a salary avowedly fixed on a scale to enable him to sit in Parliament ; l that the Conservative Government promptly introduced the particular legal enactments to obtain which the Trade Unions had spent their money, namely, the Nine Hours Bill, the Employer and Workman Bill, and the Trade Union Bill ; and that the Six Judges ask us to believe that the latter Bill, which the Trade Union members themselves helped to pass, was designed and intended to prevent Thomas Burt from drawing a salary from the Northumberland Miners' Mutual Confident Society whilst sitting in the House of Commons ; to prohibit the Northumberland Miners' Mutual Confident Society, just because it was a Trade Union, from taking any part in future elections in the Morpeth Division, and to make the action of this and all other Trade Unions in paying for political work and Parliamentary candidatures, even with the unanimous consent of their members, from that time forth illegal.

We have thought it worth while to place on record this analysis of the legally authoritative part of the Osborne Judgement, which, though partly modified by a subsequent statute, has not been overruled, and is still legally authori- tative, because it is of historical importance. It is significant as showing how far the Courts of Justice were, as lately as 1909, still out of touch, so far as Trade Unionism is concerned, either with Parliament or with the political economists. The case was, however, of even greater import. The bias and prejudice, the animus and partiality doubtless un- conscious to the judges themselves which were displayed by those who ought to have been free from such intellectual influences ; the undisguised glee with which this grave mis- carriage of justice was received by the governing class, and the prolonged delay of a professedly Liberal and Radical

i A Great Labour Leader [Thomas Burt], by Aaron Watson, 1908.

626 The Place of Trade Unionism in the State

Cabinet, and a professedly Liberal and Radical House of Commons in remedying it, had a great effect on the minds of the wage-earners, and contributed notably to the increas- ing bitterness of feeling against the " governing class," and against a State organisation in which such a miscarriage of justice could take place. We must, indeed, look behind the legal technicalities of the Six Judges, and consider what was the animus behind their extraordinary judgement. The " subservience " of Parliament to the Trade Unions in passing the Trade Disputes Act of 1906 had excited the deepest resentment of the lawyers. The progress of the Labour Party was causing a quite exaggerated alarm among members of the governing class. What lay behind the Osborne Judgement was a determination to exclude the influence of the workmen's combinations from the political field. This is really what the Osborne Judgement pro- hibited. One irreverent legal critic, indeed, went so far as to remark that the Law Lords were so anxious to make it clear that Trade Unions were not to be entitled to pay for Members of Parliament, that they failed to heed how much law they were severally demolishing in the process ! It is instructive to examine the arguments adduced by the Law Lords and the judges on this point, apart from their decision as to Trade Union status. These opinions could hardly be deemed to be law, as they all differed one from another, and none of them obtained the support of a majority of the Law Lords. Such as they are, however, they seem not to have been connected with Trade Unionism at all, but with the nature of the House of Commons. One of the Law Lords (Lord James of Hereford) merely objected to Trade Unions paying a Member of Parliament who was (as was quite incorrectly assumed) bound by a rule of the paying body requiring him to vote in a particular way, not on labour questions only, but on all issues that might come before Parliament. Another Law Lord (Lord Shaw), with whom Lord Justice Fletcher Moulton seemed to agree, held that what was illegal was not the payment of Members of Parlia-

The Challenge 627

ment, but their subjection, by whomsoever paid, to a " pledge-bound " party organisation (as the Labour Party was alleged to be). Another judge (Farwell, LJ.) took a different line, and held that it was illegal for a corporate body to require its own members to subscribe collectively towards the support of a Member of Parliament with whose views they might individually not agree. What the historian and the student of political science will say is that these were matters for legislation, not for the sudden intervention of the judiciary. The House of Commons is prompt enough to defend its own honour and its own " privilege " ; and the function of the judges will begin when any of the acts referred to has been made an illegal practice. In 1909, as now, the practices complained of, whether or not they were correctly described, and however objectionable to these particular gentlemen they might be, were all lawful ; and the judges and Law Lords were abusing the privileges of their office by importing them to prejudice the legal issue.

The Osborne Judgement received the support, not only of the great mass of property owners and professional men, but also, though tacitly, of the Liberal and Conservative Parties. A distinct challenge was thereby thrown down to the Trade Union world. Not only were the activities of their Unions to be crippled, not only was their freedom to combine for whatever purposes they chose to be abrogated, they were to be expressly forbidden to aspire to protect their interests or promote their objects by Parliamentary repre- sentation, or in any way to engage in politics. It was this challenge to Organised Labour that absorbed the whole interest of the Trade Union world for the next three or four years.

The experienced Trade Union leaders did not forget that it might well be a matter for Trade Union consideration how far it is wise and prudent for a Trade Union to engage hi general politics. We have elsewhere pointed out * with some elaboration how dangerous it may become to the

1 Industrial Democracy, by Sidney and Beatrice Webb, 1897, pp. 838 40,

628 The Place of Trade Unionism in the State

strength and authority of a Trade Union if any large section of the persons in the trade are driven out of its ranks, or deterred from joining, because they find their convictions outraged by part of its action. Nothing could be more unwise for a Trade Union than to offend its Roman Catholic members by espousing the cause of secular education. 1 But this is a point which each Trade Union must decide for itself. It is not a matter in which outsiders can offer more than counsel. It is clearly not a matter in which the dis- cretion of the Trade Union, any more than that of an individual employer, can properly be limited by law. For no Trade Union can nowadays abstain altogether from political action. Without co-operating with other Trade Unions in taking Parliamentary action of a very energetic and very watchful kind, it cannot (as long experience has demonstrated to practically all Trade Unionists) protect the interests of its members. Without taking a vigorous part in promoting, enforcing, and resisting all sorts of legislation affecting education, sanitation, the Poor Law, the whole range of the Factories, Mines, Railways, and Merchant Shipping Acts, the Shop Hours, Truck, Industrial Arbitration and Conciliation, and now even the Trade Boards' Act, the Trade Union cannot properly fulfil its function of looking after the regulation of the conditions of employment; But this is not all. The interests oi its members require the most watchful scrutiny of the ad- ministration of every public department. There is not a day passes but something in Parliament demands its attention. On this point Trade Union opinion is unanimous. We have never met any member of a Trade Union and Osborne himself is no exception who has any contrary view. To suggest that there is anything improper, or against public policy, for a Trade Union to give an annual retaining fee to a Member of Parliament whom its members trust, or to take the necessary steps to get that member elected,

1 For this reason the Trades Union Congress now refuses to entertain any motion on this subject.

The Unfairness 629

in order to ensure that what the Trade Union conceives to be its own interests shall be protected, was to take up a position of extraordinary unfairness. When more than a quarter of the whole House of Gommons habitually consists, not merely of individual employers, but actually of persons drawing salaries or stipends from capitalist corporations of one kind or another when, in fact, the number of com- panies of shareholders in railways, banks, insurance com- panies, breweries, ocean telegraphs, shipbuilding yards, shipping companies, steamship lines, iron and steel works, coal mines, and joint stock enterprises of all sorts actually represented in the House of Commons by 'their own salaried chairmen, directors, trustees, managers, secretaries, or solicitors is beyond all computation the claim that there is something improper, something inconsistent with our electoral system, something at variance with the honourable nature of the House of Commons, for the workmen's organisa- tions to retain a few dozen of the Members whom the con- stituencies (knowing of this payment) deliberately elect, or to help such Members to provide their election expenses, is an argument so extraordinary in its unfairness that it drives the active-minded workman frantic with rage. It is no answer to say that these representatives of capitalist cor- porations are not expressly paid to sit in Parliament. They are at any rate desired by their employers to sit, and per- mitted by the law to receive their salaries notwithstanding that they do sit. This was forbidden to representatives of Trade Unions. That it should be illegal for the salaried President or Secretary of the Amalgamated Society of Railway Servants to sit in Parliament, when it is perfectly legal for the much more generously salaried Chairman or Director of a Railway Company to sit there, is an anomaly hard for any candid man to defend ; and the anomaly is all the greater. in that the interests of the railway company come, almost every year, into conflict with those of the community at large, and the railway chairman is, on these occasions, quite frankly there to promote his own company's

630 The Place of Trade Unionism in the State

Bill, and to defend the interests of the shareholders by whom he is paid. To say that the workmen's organisations shall not pay their representatives in the way that suits working- class conditions, whilst railway shareholders may pay their representatives in the way that suits capitalist conditions to assume a great concern for the wounded conscience of a Liberal or Conservative Trade Unionist who finds his Union paying its Secretary or its President to sit as a Radical or Labour Member of Parliament, and no concern at all for the Socialist or Radical shareholder in a railway company who finds his company paying its Conservative Chairman M.P. is to be guilty of an amazing degree of class bias, if not of hypocrisy. After all, it is not the Trade Union but the constituency that elects the Member of Parliament. The Trade Union payment only enables him to stand. Whatever may be thought of the policy of the Labour Party, or the particular form of its organisation, if we regard the Trade Union payment as a retaining fee for looking after what the Trade Union members as a whole conceive to be their own interest ; if the Trade Union members have the opportunity of choosing, by a majority, which among competing persons (or, for that matter, which among com- peting groups of persons) they will entrust with this Trade Union task ; if the Trade Union assumes no responsibility for and exercises no coercion upon its Parliamentary repre- sentative with regard to issues on which it has not voted, no Trade Unionist's political conscience need be wounded by the fact that, outside the range of the task that the Trade Union has confided to him, the Union's Parliamentary agent (who must have views of one sort or another) expresses opinions in accord with those of the constituency that elected him, or joins together with other members of like opinions to form a political party. When, three-quarters of a century ago, J. A. Roebuck was the salaried agent in the House of Commons for the Legislative Assembly of Lower Canada, no one complained that it was against the dignity of Parliament for him to be thus retained and paid ; and

The Act of 1913 631

so long as he attended faithfully to Canadian \ Xsiness it was never contended that the tender conscience of any Canadian Conservative was offended by the ultra-Radical utterances or extremely independent political alliances of the Member for Bath.

THE TRADE UNION ACT OF 1913

It is an instance of the .failure of both the governing class and the party politicians to appreciate the workman's standpoint, or to understand the temper of the Trade Union world, that this crippling judgement remained for nearly four years unreversed. The Liberal and Conservative Parties were, during 1910 and 1911, quarrelling about the Budget and the exact powers to be exercised by the House of Lords ; and two successive General Elections were fought without bringing the Trade Unions any redress. Meanwhile, up and down the country discontented or venal Trade Unionists were sought out by solicitors and others acting for the employers ; and were induced to lend their names to pro- ceedings for injunctions against their own Unions, prohibit- ing them from subscribing to the Labour Party, from contributing towards the election expenses of candidates, from taking action in municipal elections, from subscribing to educational classes, and from taking shares in a " Labour " newspaper. It may have seemed a skilful political dodge, during the elections of 1910, to hamstring in this way the growing Labour Party ; but the resentment caused by such behaviour makes it doubtful whether action of this kind is, in the long run, politically advantageous. In the first place, the House of Commons, in 1911, felt itself compelled, as an alternative to restoring Trade Union. liberties, to concede the payment of 400 a year to all Members of Parliament. Finally, in 1913, the Cabinet, after a severe internal struggle, brought itself to introduce a Bill giving power generally to any Trade Union to include in its constitution any lawful purpose whatever, so long as its principal objects were those

632 The Place of Trade Unionism in the State

of a Trade Union as denned in the 1876 Act ; and to spend money on any purpose thus authorised. It was, indeed, provided that before the financing of certain specified political objects could be undertaken, including the support of Parliamentary or Municipal candidates or members, or the publication or distribution of political documents, 1 a ballot of the members was to be held in a prescribed form, and a simple majority of those voting secured ; the payments were to be made out of a special political fund, and any member was to be entitled to claim to be exempt from the special subscription to that political fund. These restrictive provisions were opposed by the Labour Members in the House of Commons ; but with slight amendment the measure was passed into law as the Trade Union Act of 1913. 2 It is not easy to sum up the whole effect of the legal assaults upon Trade Unionism between 1901 and 1913. Politically, the result was to exasperate the active-minded workmen, and greatly to promote, though with some delay, the growth of an independent Labour Party in the House of Commons. On the other hand, it must not be overlooked that the temporary crippling of Trade Unionism seemed to be of financial advantage to that generation of employers. It was, perhaps, not altogether an accident that the brunt of the attack had to be borne by the Amalgamated Society of Railway Servants, a Union then struggling for " recogni- tion " in such a position as to make effective its claims to better remuneration and shorter hours of labour for the whole body of railwaymen. It may fairly be reckoned that the railwaymen were, by means of the two great pieces of litigation to which their Union was subjected, held at bay for something like a decade, during which the improvement in their conditions, in spite of a slowly-increasing cost of living, was (mainly through the evasions of the railway

1 If the main object of a newspaper is political, any expenditure by a Trade Union upon it (including the purchase of shares) is itself political (Bennett v. National Amalgamated Society of Operative Painters (1915), 31 T.L.R. 203).

2 3 George V. c. 30.

Costs of Litigation 633

companies by their silent " regrading " of their staffs) extremely small. 1 A rise of wages to the extent of only a penny per hour for the whole body of railwaymen would have cost the railway companies, in the aggregate, some- thing like five or six million pounds a year. If any such advance was, by means of the Taff Vale Case and the Osborne Judgement, staved off for ten years, the gain to the whole body of railway shareholders of that generation might be put as high as fifty or sixty millions sterling a sum worth taking a little trouble about and spending a little money upon, in items not revealed in the published accounts. But the crippling effect of the litigation was not confined to the Amalgamated Society of Railway Servants, which spent, altogether, nearly 50,000 in law costs in defending the pass for the whole Trade Union Movement. If, in the temporary set-back to trade in 1903-5, and in the revival that immediately followed it ; or in the recurring set-back of 1908-9, and the great improvement of the ensuing years, the whole body of wage-earners in the kingdom lost only a penny per hour from their wages, or gained less than they might otherwise have done to the extent of no more than a penny per hour, their financial loss, in one year alone, would have amounted to something like a hundred million pounds. And whatever they forwent in this way, they lost not during one year only, but during at least several years, and many of them for a whole decade. There is no doubt that the capitalist employers, thinking only of their profits for the time being, regarded even a temporary crippling of the Trade Union Movement as well worth all that it might cost them. The historian, thinking more of the secular effort upon social institutions, will not find the balance-sheet so easy to construct. The final result of the successive attempts between 1901 and 1913 to cripple Trade Unionism by legal proceedings was to give it the firmest

1 " The average weekly earnings of railway servants, as given by the Board of Trade, were lower in 1910 than in 1907 " (Trade Unionism on the Railways, by G. D. H. Cole and R. Page Arnot, 1917, pp. 21-22).

634 The Place of Trade Unionism in the State

possible basis in statute law. The right of workmen to combine for any purpose not in itself unlawful was definitely established. The strike, with its " restraint of trade," and its interference with profits and business ; peaceful picket- ing even on an extensive scale ; the persuasion of workmen to withdraw from employment even in breach of contract, and the other frequent incidents of an industrial dispute were specifically declared to be, not only not criminal, but actually lawful. The right of Trade Unions to undertake whatever political and other activities their members might desire was expressly conceded. Finally, a complete im- munity of Trade Unions in their corporate capacity from being sued or made answerable in damages, for any act whatsoever, however great might be the damage thereby caused to other parties, was established by statute in the most absolute form. 1 The Trade Unions, it must be remem- bered, had not asked for these sweeping changes in their position. They had been, in 1900, content with the legisla- tion of 1871-76. It was the successive assaults made upon them by the legal proceedings of 1901-13 that eventually drove the Government and Parliament, rather than formally concede to Trade Unionism its proper position in the govern- ment of industry, and effect the necessary fundamental amendment of the law, once more to create for the work- men's organisations an anomalous status

THE RISE IN STATUS OF TRADE UNIONISM

So far we have described only the changes in the legal status of the Trade Unions and the consequent increase in their freedom of action and in their influence, alike in the industrial and political sphere. This advance in legal status

1 The Legal Position of Trade Unions, by H. H. Slesser and W. Smith Clark, and ed., 1914 ; The Present Law of Trade Disputes and Trade Unions, by Professor W. M. Geldart, 1914 ; Entwicklung des Koalisations- rechts in England, by G. Krojanker, 1914 ; An Introduction to Trade Union Law, by H. H. Slesser, 1919 ; The Law of Trade Unions, by H. H. Slesser and C. Baker (to be published in 1920).

The Rise in Status 635

has been accompanied by a still more revolutionary trans- formation of the social and political standing of the official representatives of the Trade Union world a transformation which has been immensely accelerated by the Great War. We may, in fact, not unfairly say that Trade Unionism has, in 1920, won its recognition by Parliament and the Govern- ment, by law and by custom, as a separate element in the community, entitled to distinct' recognition as part of the social machinery of the State, its members being thus allowed to give like the clergy in Convocation not only their votes as citizens, but also their concurrence as an order or estate.

Like all revolutionary changes in the British constitu- tion, the recognition of the Trade Union Movement as part of the governmental structure of the nation began in an almost imperceptible way. Though Trade Union leaders had been, since 1869, appointed occasionally and sparsely on Royal Commissions and Departmental Committees, it was possible, as recently as 1903, for a Government to set up a Royal Commission on Trade Disputes and Trade Combinations without a single Trade Unionist member. Such a thing has not been repeated. It is now taken for granted that Trade Unionism must be distinctively and effectually represented, usually by men or women of its own informal nomination, on all Royal Commissions and Departmental Committees, whether or not these inquiries are concerned specifically with " Labour Questions " ex- cepting only such as are so exclusively financial or profes- sional that the representatives of Labour do not seek or desire representation upon them.

In 1885-86, and again in 1892-95, Liberal Prime Ministers had appointed leading Trade Unionists (who were, it must be noted, also Liberal M.P.'s) to subordinate Ministerial positions, where they were permitted practically no in- fluence. 1 In 1905 Sir Henry Campbell-Bannerman startled

1 Henry Broadhurst (Friendly Society of Operative Stonemasons) was Under Secretary of State for the Home Department (1885-86) ; and Thomas Burt (Northumberland Miners' Mutual Confident Society) Parlia- mentary Secretary to the Board of Trade (1892-95).

636 The Place of Trade Unionism in the State

some of his Whig associates by asking Mr. John Burns who had presided over the Trades Union Congress as a representative of the Amalgamated Society of Engineers, but who had sat in Parliament since 1892 as a Liberal supporter to join his Cabinet as President of the Local Government Board. This recognition of Labour in the inner councils of the Government was quickly followed by an explicit recognition of the Trade Unions as part of the machinery of State administration. In 1911, when the vast scheme of National Insurance was brought forward by Mr. Asquith's Government, and Parliament sanctioned the rais- ing and expenditure of more than twenty million pounds a year for the relief of sickness and unemployment, the Trade Unions, equally with the universally praised Friendly Societies, were made the agents for the administration of the sickness, invalidity, and maternity benefits, and, parallel with the Government's own local organisation, and to the exclusion of the Friendly Societies, also for the administra- tion of the State Unemployment Benefit to their own members. But it was during the Great War that we watch the most extensive advance in the status, alike of the official representatives of the Trade Unions and of the Trade Unions themselves, as organs of representation and government. It is needless to say that this recognition was not accorded to the Trade Union world without a quid pro quo from the Trade Union Movement to the Government. Hence the part played by the Trade Unions in the national effort, and its effect on their influence and status, demands explicit notice.

BRITISH TRADE UNIONISM AND THE WAR

Though theoretically internationalist in sympathy, and predominantly opposed to " militarism " at home as well as abroad, British Trade Unionism, when war was declared, took a decided line. 1 From first to last the whole strength

1 For the facts as to Trade Unionism during the war, the most con

Effects of the War 637

of the Movement in spite of the pacifist faith of a relatively small minority, which included the most fervent and eloquent of the Labour members and was supported by the energetic propaganda of the fraction of the Trade Unionists who were also members of the Socialist Society known as the I.L.P. was thrown on the side of the nation's effort. From every industry workmen flocked to the colours, with the utmost encouragement and assistance from their Trade Unions ; until the miners, the railwaymen, and the en- \ gineers, in particular, had to be refused as recruits, exempted from conscription, and even returned from the army, in I order that the indispensable industrial services might be ( maintained. The number of workers hi engineering and the manufacture of munitions of war had, indeed, to be largely increased ; and the Government found itself, within a year, under the necessity of asking the Trade Unions for the unprecedented sacrifice of the relinquishment, for the dura- tion of the war, of the entire network of " Trade Union Conditions " which had been slowly built up by generations of effort for the protection of the workmen's Standard of Life. This enormous draft on the patriotism of the rank and file could only be secured by enlisting the support of the official representatives of the Trade Union world by according to them a unique and unprecedented place as the diplomatic representatives of the wage-earning class. In the famous Treasury Conference of February 1915 the capitalist employers were ignored, and the principal Ministers

venient source is the Labour Year Book for 1916 and 1919 ; see also Labour in War Time, by G. D. H. Cole, 1915, and Self -Government in Industry, by the same, 1917 ; the large number of Government publications issued by the Local Government Board, the Board of Trade, the Ministry of Labour, and especially the Ministry of Munitions, together with the awards of the Committee on Production, most of which are briefly noticed in the monthly Labour Gazette ; the monthly Circular (since 1917) of the Labour Research Department ; the unpublished monthly journal of the Ministry of Munitions ; Reports of the Trades Union Congress, 1915-19, and of the Labour Party Conferences, 1914-19 ; publications of the War Emergency Workers' National Committee ; The Restoration of Trade Union Conditions, by Sidney Webb, 1916 ; Women in the Engineering Trades, by Barbara Drake, 1917.

638 The Place of Trade Unionism in the State

of the Crown negotiated directly with the authorised repre- sentatives of the whole Trade Union world, not only in respect of the terms of service of Government employees, but also with regard to the conditions of employment of all persons, men and women, skilled and unskilled, unionists and non-unionists, engaged on any work needed for the conduct of the war a phrase which was afterwards stretched to include four-fifths of the entire manual-working class. The Trade Union Executives agreed, at this Conference or subsequently, to suspend, for the duration of the war, all their rules and customary practices restrictive of the output of anything required by the Government for the conduct of the war ; all limitation of employment to apprenticed men, to Trade Unionists, to men of proved technical skill, to adults and even to the male sex ; all reservation of particular jobs or particular machines to workers of particular trades ; all definition of a Normal Day, and all objection to overtime, night-work, or Sunday duty ; and even many of the Factory Act prohibitions by which the health and even the safety of the operatives had been protected. In order that the utmost possible output of munitions of every kind might be secured, elaborate schemes of " dilution " were assented to, under which the various tasks were subdivided and rearranged, a very large amount of automatic machinery was introduced, and successive drafts of " dilutees " were brought into the factories and workshops men and boys from other occupa- tions, sometimes even non-manual workers, as well as women and girls and put to work under the tuition and direction of the minority of skilled craftsmen at top speed, at time wages differing entirely from the Trade Union rates, or at piecework prices unsafeguarded by Collective Bargaining, for hours of labour indefinitely lengthened, some- times under conditions such as no Trade Union would have permitted. It must be recorded to the credit of the Trade Unions that not one of the societies refused this sacrifice, which was made without any demand for compensatory increase of pay, merely upon the condition to which not

War Measures 639

only the Ministry, but also the Opposition Leaders and the House of Commons as a whole, elaborately and repeatedly pledged themselves that the abandonment of the " Trade Union Conditions " was only to be for the duration of the war, and exclusively for the service of the Government, not to the profit of any private employer ; and that everything that was abrogated was to be reinstated when peace came. Under stress of the national emergency, the Govern- ment made ever greater demands on the patriotism of the Trade Unions, which accepted successively, so far as war- work was concerned, a legal abrogation of the employers' competition for their members' services by the prohibition of advertisement for employees, and of the engagement of men from other districts an unprecedented interference with the " Law of Supply and Demand " the suspension of the right to strike for better terms ; the submission of all disputes to the decision of a Government Department of arbitration, the awards of which, with the abrogation of the right to strike, or even freely to relinquish employment, became virtually compulsory ; the legal enforcement under penalties of the employer's workshop rules ; and even legally enforced continuance, not only in munition work, but actually in the service of a particular employer, under the penal jurisdiction of the ubiquitous Munitions Tribunals. The Munitions of War Acts, 1915, 1916 and 1917, by which all this industrial coercion was statutorily imposed, were accepted by overwhelming majorities at successive Trade Union and Labour Party Conferences. It was a serious aggravation of this " involuntary servitude " that the rigid enforcement of compulsory military service extended suc- cessively from single men to fathers of families, from 18 years of age to 51 had the incidental effect of enforcing what was virtually " industrial conscription " on those who were left for the indispensable civilian employment ; and the individual workman realised that the penalty for any failure of implicit obedience to the foreman might be instant relegation to the trenches. Although this inevitable result

640 The Place of Trade Unionism in the State

of Compulsory Military Service was foreseen and deplored, 1 the successive Military Service Acts were in view of the nation's needs ratified, in effect, by great majorities at the workmen's National Congresses. The strongest protests were made, but as each measure was passed it was accepted without resistance, and proposals to resist were always rejected by large majorities. It speaks volumes, both for the patriotism of the Trade Unionists and for the strength of Trade Union loyalty and Trade Union organisation, that under such repressive circumstances the Trade Union leaders were able, on the whole, to prevent their members from hindering production by industrial revolts. A certain amount of friction was, of course, not to be avoided. Strikes, though greatly reduced in number, were not wholly pre- vented ; and the South Wales coal-miners and the engineering workmen on the Clyde largely through arbitrary and repressive action by their respective employers broke into open rebellion ; which led, in the one industry, to the Government overriding the recalcitrant South Wales employers and assuming the direction and the financial responsibility of all the coal mines throughout the kingdom ; and, in the other, to the arbitrary arrest and deportation of the leaders of the unofficial organisation of revolt styled the " Clyde Workers' Committee/' The Trade Union Executives and officials, whilst restraining their members and deprecating all stoppages of production, were able to put up a good fight against the unnecessary and un- reasonable demands which, with a view to " after the war " conditions, employers were not unwilling to use the national emergency to put forward. These Trade Union spokesmen had to obtain for their members the successive rises in money wages which the steadily rising cost of living made necessary, and they had constantly to stand their

1 Compulsory Military Service and Industrial Conscription : what they mean to the Workers (War Emergency Workers' National Committee, 1915) ; Memorandum on Industrial and Civil Liberties (Woolwich Joint Committee on Problems arising from the War).

The Broken Pledges 641

ground in the innumerable mixed committees and arbitra- tion proceedings into which the Government was always inveigling them. On the whole, whilst co-operating in every v/ay in meeting the national emergency, the Trade Union organisation during the four and a-quarter years of war remained intact ; and Trade Union membership allowing for the millions absent with the colours steadily increased. Nor did trie Trade Union Movement make any serious revolt when the Government found itself unable to fulfil, with any literal exactness, the specific pledges which it had given to Organised Labour. The complications and diffi- culties of the Government were, in fact, so great that the v pledges were not kept. The first promise to be broken was that the abrogation of Trade Union Conditions and the removal of everything restrictive of output should not be allowed to increase the profits of the employers. The so- called " Munitions Levy " was imposed in 1916 on " con- trolled establishments," in fulfilment of this pledge, in order to confiscate for the Exchequer the whole of their excess profit, over and above a permitted addition of 20 per cent and very liberal allowances for increased capital and extra exertion by the employers themselves. It will hardly be believed that, in flagrant disregard of the specific pledge, within a year this Munitions Levy was abolished ; and the firms especially benefiting by the workmen's sacrifices j were made merely subject, in common with all other trades where there had been no such abrogation of Trade Union Conditions, to the 80 per cent Excess Profits Duty, with the result of increasing the net income left to those em- ployers whose profits had doubled, and of doing, with regard to all the employers, the very thing that the Trade Unions had stipulated should not be done, namely, giving the employers themselves a financial interest in " dilution." As the war dragged on, and prices rose, the successive

1 The Government seems to have hoodwinked the public into believing that 80 per cent of all the excess profits was the same thing as 100 per cent of the profits in excess of 20 per cent addition to the pre-war profits.

y

642 The Place of Trade Unionism in the State

war-bonuses and additions to wages especially those of the miners and the bulk of the women workers in many cases fell steadily behind the rise in the cost of living ; and in 1917 the War Cabinet was actually guilty of a formal instruction to the presumedly impartial central arbitra- tion tribunal that no further increase of wages was to be awarded an instruction which, on its public disclosure, had to be apologised for and virtually withdrawn. Even the pledge as to wages in the solemn " Treasury Agree- ment " of 1915, at which the " Trade Union Conditions" were surrendered, was not fulfilled, at any rate as regards the women workers ; and had to be made the subject of a subsequent serious investigation by the War Cabinet Committee on Women in Industry, in which all the " white- washing " of a Government majority failed to convince the Trade Unionists, any more than it did the only unpaid member of the Committee, that the Government officials had not betrayed them. 1 The solemnly promised " Restora- tion of Trade Union Conditions " was only imperfectly carried out. What the Government did, and that only after long delay, was not what it had promised, namely, actually to see the pre-war conditions and practices re- instated, but to enact a statute enabling the workmen to proceed in the law courts against employers who failed tc restore them ; continuance of any such restoration to be obligatory only for one year. 2

1 Report of the War Cabinet Committee on Women in Industry, Cmd. 135 1919. The Minority Report by Mrs. Sidney Webb was republished bj the Fabian Society, under the title of Men's and Women's Wages : Shoulc they be equal ?, 1919.

2 Restoration of Pre-War Practices Act, 1919 (9 and 10 George V. c. 42) During the first year after the cessation of hostilities the problem of restora tion did not assume so acute a form as had been expected. A large pan of the new automatic machinery which had been introduced in 1915-1? was found to have been greatly deteriorated by excessive working anc had to be scrapped ; there was an immediate demand for ordinary en gineering work of the old type ; and the British employers did not, ii fact, set themselves at once to apply " mass production " to the making of steam engines and motor cars, agricultural implements and machinery generally, nor make any dramatic advances in its application to th< production of sewing-machines, bicycles, and electrical apparatus. Durinf

Trade Union Conditions 643

The Trade Unionists, in fact, who had at the outset of the war patriotically refrained from bargaining as to the

1919 the extensive readaptation of the machine-shops, and the great demand for new tools (especially machine-tools) facilitated the absorption, often in new situations, of all the skilled engineers. There was, accord- ingly, little difficulty in finding employment at good wages for practically all the skilled workmen, and (except for temporary dislocations arising in consequence of the disputes in coalmining, ironfounding, and other trades) the percentage of members of the Amalgamated Society of Engineers and other Unions of skilled craftsmen remained throughout the year at a minimum. The great bulk of the " dilutees," including substantially all the women, received their discharge on the cessation of their jobs of " repetition work " on munitions of war, the employers preferring, in face of the immediate demand, to avoid trouble, to revert to the old methods and to get back their former staffs, rather than engage in the hazardous enterprise ot reorganising their factory methods. Hence, taking the engineering industry as a whole, the men got back the work from the women ; though not without some attempts at resistance by individual employers, which were not persisted in ; and not without leaving the total number of women employed in 1920 in what might be deemed their own branches of the engineering industry apparently double that of 1913. Many of the male " dilutees " on discharge also reverted to other employ- ment, but some proportion of them, who had acquired skill, and were members of various Unions admitting semi-skilled workers, found employ- ment in engineering shops on particular machines or in particular jobs. There has apparently been a continuous increase in the proportion of machines demanding less than full skill (such as milling machines and small turret lathes), and therefore of " semi-skilled " men in employment, without (owing to the expansion of the industry as a whole) any reduction in the number of skilled men. In face of the great demand for output, and of the fact that hardly any members of the skilled Unions were un- employed, this fact did not evoke objection. The position as regards the Premium Bonus System or other form of " Payment by Results " was left unchanged. Few, if any, legal proceedings were actually taken against employers in the Munitions Courts under the Restoration of Pre-War Practices Act. The employers and the Government were, during the first half of the year, in a state of alarm lest there should be a Labour uprising, which would seriously interfere with the resumption of business ; and great care was exercised to avoid any disputes. Successive advances of wages were awarded to meet the rising cost of living, and all rates were " stabilised " by law, so as to prevent any employer from effecting a reduction, first until May 20, 1919, then until November 20, 1919, and finally until September 30, 1920; a new " Industrial Court " being set up by statute (Industrial Courts Act 1919) empowered to give non-obligatory decisions in any disputes that might be voluntarily referred to it a measure from which the Parliamentary Labour Party succeeded in eliminating every implication of Compulsory Arbitration, Obligatory Awards, or the Abrogation of the Right to Strike. But the difficulties are not yet surmounted ; and when there comes a slump in business, and skilled engineers find themselves unemployed, the Government pledge will be heard of again.

644 The Place of Trade Unionism in the State

of their aid, were, on the whole, " done " at its close. Though here and there particular sections had received exceptionally high earnings in the time of stress, the rates of wages, taking industry as a whole, did not, as the Govern- ment returns prove, rise either so quickly or so high as the cost of living ; so that, whilst many persons suffered great Tiardship, the great majority of wage-earners found the product in commodities of their rates of pay in 1919 less rather than more than it was in 1913. During the war, indeed, many thousands of households got in the aggregate more, and both earned and needed more ; because the young and the aged were at work and costing more than when not at work, whilst overtime and night-work increased the strain and the requirements of all. When peace came, it was found that the Government, for all its promises, had made no arrangements whatever to prevent unemployment ; and none to relieve the unemployed beyond an entirely improvised and dwindling weekly dole, which (so far as civilians were concerned) was suddenly brought to an end on November 20, 1919, without any alternative provision being immediately made.

It would thus be easy to argue that the representatives of the Trade Union world made a series of bad bargains with the Government, and through the Government with the capitalist employers, at a time when the nation's needs would have enabled the organised manual workers almost to dictate their own terms. But this is to take a short- sighted view. It is a sufficient answer to say that the great mass of the Trade Unionists, like the leaders them- selves, wanted above all things that the nation should win the war; found it repugnant to make stipulations in the national emergency, and did not realise the extent to which they were being tricked and cheated by the officials. But apart from this impulsive and unself-regarding patriotism we think that, when it becomes possible to cast up and balance all the results of the innovations of the war period, | the Trade Union Movement will be found to have gained

The Fillip to Trade Unionism 645

and not lost. We may suggest, perhaps paradoxically, ,, that the very ease with which the War Cabinet suppressed the civil liberties of the manual-working wage-earners during the war, and even continued after the Armistice a machinery of industrial espionage, with agents provocateurs of workshop " sedition," enormously increased the solidarity of the Trade Union Movement an effect intensified during 1919 by the costly and futile intervention of the British Government in Russia on behalf of military leaders whom the Trade Unionists, rightly or wrongly, believed to be organising the forces of political and economic reaction. Sober and responsible Trade Unionists, who had taken for granted the easy-going. freedom and tolerance characteristic of English life in times of peace, suddenly realised that these conditions could at any moment be withdrawn from them by what seemed the arbitrary fiat of a Government over which they found that they had no control. In this way the abrogation of Trade Union liberty during the war gave the same sort of intellectual fillip to Trade Unionism and the Labour Party in 1915-19 that had been given in 1901-13 by the Taff Vale Case and the Osborne Judgement. At the same time the Government found itself compelled, in order to secure the co-operation of the Trade Unions, both during the war and amid the menacing economic conditions of the first half of 1919, to accord to them, and to their leaders, a locus standi in the determination of essentially national issues that was undreamt of in previous times. The Trade Unions, in fact, through shouldering their responsibility in the national cause, gained enormously in social and political status. In practically every branch of public'administration, from unimportant local committees up to the Cabinet itself, we find the Trade Union world now accepted as forming, virtually, a separate constituency, which has to be specially represented. We shall tell the tale in our next chapter of the participation of members of the Parliamentary Labour Party in the Coalition Govern- ments of Mr. Asquith and Mr. Lloyd George. What is here

646 The Place of Trade Unionism in the State

relevant is that these Trade Union officials were selected in the main, not on personal grounds, but because they represented the Trade Union Movement. They accepted ministerial office with the approval, and they relinquished ministerial office at the request of the National Conference of the Labour Party, in which the Trade Unions exercised the predominant influence. A similar recognition of the Trade Union Movement has marked all the recently con- stituted Local Government structure, from the committees set up in 1914 for the relief of distress to those organised in 1917 for the rationing and control of the food supply, and the tribunals formed in 1919 for the suppression of " profit- eering." In all these cases the Government specifically required the appointment of representatives of the local Trade Unions. Trade Unionists have to constitute half the members appointed to the Advisory Committees attached to the Employment Exchanges ; and Trade Unionist workmen sit, not only on the temporary " Munitions Courts " administering the disciplinary provisions of the Munitions of War Acts, but also on the local Tribunals of Appeal to determine whether a workman is entitled to the State Unemployment Benefit. In the administration of the Military and Naval Pensions Act of 1916 a further step in recognition of Trade Unionism was taken. Not only were the nominees of Labour placed upon the Statutory (Central) Pensions Committee, but, in the order constituting the Local Pensions Committees, the Trade Union organisa- tions in each locality, which were named in the schemes, were expressly and specifically accorded the right to elect whom they chose as their representatives on these committees by which the pensions were to be awarded. 1 When, towards the close of the war, the Committee presided over by the Rt. Hon. J. H. Whitley, M.P., propounded its scheme of Joint Industrial Councils of equal numbers of representative employers and workers for the supervision and eventual

1 See this noted in the report of the Parliamentary Committee in the Annual Report of the Trades Union Congress, 1917.

The Whitley Councils 647

administration of many matters of interest in each industry throughout the kingdom the " mouse " which was practi- cally the whole outcome as regards industrial reorganisation of the Ministry of Reconstruction it was specifically to the Trade Unions in each industry, and to them alone, that the election of the wage-earners' representatives was entrusted. 1

1 The " Whitley Report," published early in 1917, when possibilities of industrial and social " reconstruction " were much discussed, made a great stir, which was increased by the definite endorsement of its recom- mendations by the Government, and its energetic promotion of their adop- tion throughout British industry. Whilst significantly abstaining from any suggestion of " profit-sharing, copartnership, or particular systems of wages," the Report emphasised the importance of (a) " adequate organ- isation on the part of both employers and employed " ; (&) the imperative need for a greater opportunity of participating in the discussion about and adjustment of "those parts of industry by which they are most affected " of the work-people in each occupation ; (c) the subordination of any decisions to those of the Trade Unions and Employers' Associations. Among the subjects to be dealt with by the hierarchy of National, District, and Works Councils or Committees were : (i.) " the better utilisation of the practical knowledge and experience of the work-people . . . and for securing to them a greater share in and responsibility for the determina- tion and observance of the conditions under which their work is carried on " ; (ii.) " the settlement of the general principles governing the con- ditions of employment . . . having regard to the need for securing to the work-people a share in the increased prosperity of the industry " ; (iii.) the methods to be adopted for negotiations, adjusting wages, deter- mining differences and " ensuring to the work-people the greatest possible security of earnings and employment " ; (iv.) technical education, in- dustrial research, utilisation of inventions, and improvement of processes ; (v.) proposed legislation affecting the industry. After two years' propa- gandist effort, it seems (1920) as if the principal industries, such as agri- culture, transport, mining, cotton, engineering, or shipbuilding are unlikely to adopt the scheme ; but two or three score trades have equipped them- selves either with " Whitley Councils " the District Councils and Works Committees are much more slow to form or with " Interim Industrial Reconstruction Committees," which may be regarded as provisional Councils, in such industries as pottery, house-building, woollen manu- facture, hosiery, heavy chemicals, furniture-making, bread-baking, match- making, metallic bedstead manufacturing, saw-milling, and vehicle building. The Government found itself constrained, after an obstinate resistance by the heads of nearly all the departments, to institute the Councils throughout the public service. We venture on the prediction that some such scheme will commend itself in all nationalised or municipalised indus- tries and services, including such as may be effectively " controlled " by the Government, though remaining nominally the property of the private capitalist possibly also in the Co-operative Movement ; but that it is not likely to find favour either in the well-organised industries (for which alone it was devised) or in those in which there are Trade Boards legally

648 The Place of Trade Unionism in the State

When, in 1919, it seemed desirable to make a series of com- prehensive reforms in the terms of employment, it was not to Parliament that the Prime Minister turned, but to a " National Industrial Conference," to which he summoned some five hundred representatives of the Employers' Associa- tions and Trade Unions. It was by this body, through its own sub-committee of thirty employers' representatives and thirty .Trade Union representatives, that were elaborated the measures instituting a Legal Maximum Eight Hours Day and a statutory Minimum Wage Gommission that the Ministry undertook to present to Parliament. In the Royal Commission on. Agriculture of 1919, the several Unions enrolling farm labourers were invited to nominate as many members (eight) as were accorded to the farmers, whilst of the four remaining members appointed as scientific or statistical experts all landlords being excluded two were chosen among those known to be sympathetic to Labour. In the statutory Coal Industry Commission of the same year, to which reference has already been made, the Miners' Federation made its participation absolutely conditional on being allowed to nominate half of the total membership, under a presumedly impartial Judge of the High Court, including not merely three Trade Union officials to balance the three mine-owners, but also three out of the six " disinterested " members by whom all royalty owners being excluded the Commission was to be completed.

determining wages, etc. ; or, indeed, permanently in any others conducted under the system of capitalist profit-making. See the series of " Whitley Reports," Cd. 8606, 9001, 9002, 9085, 9099, and 9153 ; the Industrial Reports, Nos. i to 4, of the Ministry of Reconstruction ; the able and well-informed article, " La politique de paix sociale en Angleterre," by Fllie Halevy, in Revue d' Economic Politique, No. 4 of 1919 ; Recommenda- tion on the Whitley Report put forward by the Federation of British Industries, 1917 ; National Guilds or Whitley Councils ? (National Guilds League), 1918. For the " Builders' Parliament," in many ways the most interesting of these Councils, though as yet achieving only schemes in which the employers, as a whole, do not concur, see A Memorandum on Industrial Sel) f -Government, by Malcolm Sparkes ; Masters and Men, a new Co- partnership, by Thomas Foster ; and The Industrial Council for the Building Industry, by the Carton Foundation, 1919.

The New Ideas 049

All this constitutional development is at once the recogni- tion and the result of the new position in the State that Trade Unionism has won a position due not merely to the numerical growth that we have described, but also to the uprise of new ideas and wider aspirations in the Trade Union world itself.

THE REVOLUTION IN THOUGHT

The new ideas which are to-day taking root in the Trade Union world centre round the aspiration of the organisations of manual workers to take part some would urge the pre- dominant part, a few might say the sole part in the control and direction of the industries in which they gain their livelihood. Such a claim was made, as we have described in the third chapter of this work, in its most extreme form, by the revolutionary Trade Unionism of 1830-34 ; and it lingered on in the minds of the Chartists as long as any of them survived. But after the collapse, in 1848, of Chartism as an organised movement British Trade Unionism settled down to the attainment of a strictly limited end the main- tenance and progressive improvement, within each separate occupation or craft, of the terms of the bargain made by the wage-earner with the employers, including alike all the conditions of service and complete freedom from personal oppression. Hence the Trade Unionist as such, during the second half of the nineteenth century, tacitly accepted the existing organisation of industry. He discussed the rival advantages of private enterprise carried on in the interests of the capitalist profit-maker on the one hand, and of the Consumers' Co-operative Movement or State and Municipal enterprise on the other, almost exclusively from the stand- point of whether the profit-making employers or the repre- sentatives of the consumers or the citizens offered better conditions of employment to the members of his own organisation. Right down to the end of the nineteenth century this remained the dominant working-class view.

Y 2

650 The Place of Trade Unionism in the State

We find in the proceedings of the Royal Commission on Labour, 1891-94, a striking demonstration of the strictly limited purpose of British Trade Unionism at that date. Whether we study the elaborate collection of Trade Union rules and other documents made by the Commission, or the personal evidence given by the leaders or advocates of Trade Unionism, we find from beginning to end absolutely no claim, and even no suggestion, that the Trade Union should participate in the direction of industry, otherwise than in arranging with the employers the conditions of the wage-earner's working life. 1 One or two Unions included, among their published " objects," vague and pious references to the desirability of co-operative production ; but the assumption was always that any such co-operative produc-

1 It must be remembered that the conditions of the manual worker's life dealt with by the Trade Unions up to 1894 included a wide range of material circumstances and moral considerations. Besides the mainten- ance of standard rates and methods of remuneration, the reduction of the normal day, and payment for overtime, we find among the objects of Trade Unions, as reported to the Commission, the prevention of stoppages from wages ; the maintenance of the apprenticeship system and the keeping out of the trade all who are not qualified ; the abolition of the character note ; the prevention of victimisation ; the provision of legal assistance to members in respect of compensation for accidents ; the establishment of an agency through which employers may obtain efficient men ; watch- ing over the proceedings of local boards and law courts ; the enforcement of the Factory Acts and other protective legislative enactments ; the improvement of dietary scales and house and shop accommodation where workers have to li ve in ; the collection and circulation of information on trade matters ; the establishment of benefit funds for unemployment, disputes, sickness, accidents and death ; the assistance of members anxious to migrate or emigrate ; the establishment of " that reciprocal confidence which is so essential between workmen and masters," and the promotion of arbitration and conciliation ; the regulation of output ; the promotion of friendly intercourse with workers of other countries ; the assistance of other trades in times of difficulty ; and political action the support of Parliamentary and Municipal Labour candidates, of Trades Councils, of the Trades Union Congress, and of Labour newspapers. Some Unions decide to promote co-operative enterprise, " to secure the legal recognition of the natural rights of labourers to the produce of their toil," whilst others promote the " moral, social, intellectual and professional advancement " of the working class. " Trade Societies," state the rules of the Associated Shipwrights, "must be maintained as the guard of workmen against capitalists until some higher effort of productive co- operation has been inaugurated which shall secure to workers a more equitable share of the product of labour."

Socialisation 651

tion would be carried out by the members of the Union working in and managing a particular establishment, which would take its place, like any private establishment, within the framework of the capitalist system. When a Trade Union leader was also a Socialist he assumed that the " Socialisation " of industry would be carried out by the Central or Local Government, or by the Consumers' Co- operative Movement. Hence, Mr. Tom Mann, himself a Royal Commissioner, who was called as a witness before the Commission, was a powerful advocate of nationalisation and municipalisation. "I am distinctly favourable, and am associated with those who are earnestly advocating," he stated from the witness-chair, " the advisability of encourag- ing the State to at once entertain the proposal of the State control of railways. I am also identified with those who are favourable to the nationalisation of the land, which means, of course, a State control of land in the common interest ; and I am continually advocating the desirability for states- men and politicians and municipal councillors to try and understand in what particular departments of industry they can get to work and exercise their faculties in controlling trade and industry in the common interest where that interest would be likely to be secured better than under the present method." When asked by the Duke of Devonshire whether his advocacy of the nationalisation of the railways was in the interests of the public or mainly in the interests of the workmen employed on the railways, he replied : " Not mainly on behalf of the workers ; I would put it equally so. I believe it would serve the public interest, the general well-being of the community. ... I do not believe that a Government Department will ever be healthy until the public themselves are healthy in this direction, and are keeping a watchful eye upon the whole governmental show and secure the general well-being by their watchfulness. I do not think that State control of industry will ever be brought about until that development on the part of the public themselves is brought about, and they desire to see

652 The Place of Trade Unionism in the State

it controlled in the common interest. . . . When a sufficient number of men are prepared to take the initiative, and educate public opinion to the desirability of a superior method of control in the common interest, then I believe it will be done, not all at once, but gradually." l

But Mr. Tom Mann did not stand alone. The Inde- pendent Labour Party, the largest and the most popular of Socialist societies in the United Kingdom, established in 1893, and largely recruited from the ranks of Trade Unionists, carried on, right down to the outbreak of the Great War, a vigorous propaganda in favour of an indefinite extension of State and Municipal administration of industrial under- takings, whilst the more doctrinaire Social Democratic Federation was, in its early days, outspokenly contemptuous of the whole Trade Union Movement as a mere " palliative " of the Capitalist system. This bias in favour of the com- munal organisation, in favour of the government of the people by and for the people organised in geographical areas, was, until the opening of the twentieth century, equally dominant among the most " advanced " Labour and Socialist thinkers on the Continent of Europe. 2

1 Minutes of Evidence, Royal Commission on Labour: "Report of Evidence from" Co-operative Societies and Public Officials," 1893, C 7063 i (Q 2098, 2117 8).

Mr. Tom Mann was also in favour of the Consumers' Co-operative Movement, and had in those days a distinct bias for legal enactment over direct action in determining the conditions of employment. " I should have said," he stated in the witness-chair, " that I, as a Trade Unionist, am of opinion that in my capacity of citizen I have just as full a right to use Parliament for the general betterment of the conditions of the workers, of whom I am one, as I have to use the Trade Union ; and when I could use the institution of Parliament to do that constructive work that I sometimes use the Trade Union for, and could use Parliament more effectively than I could the Trade Union, then I should favour the use of Parliament, not necessarily in order to enforce men to do some- thing which they might not wish to do, but because it was the more effective instrument to use to bring about changed conditions " (Ibid.

Q 2531)-

a An interesting sidelight is afforded by the reprobation by the German Social Democratic Party, in 1894, of Eduard Bernstein for translating our History of Trade Unionism, on the ground that Trade Unionism had no place in the Socialist State, and that it was needless to trouble about it J

Co-operative Production 653

But in spite of the assumption that services and in- dustries ought to be carried out by democracies of consumers and citizens, organised in geographical districts that is, by the Central and Local Government of a Political Democracy there always remained, in the hearts of the manual work- ing class in Great Britain, an instinctive faith in the opposite idea of Associations of Producers owning, as such, both the instruments and the product of their labour. Throughout the whole of the second half of the nineteenth century it was pathetic to see this faith struggling on, in spite of the almost constant failure of the innumerable little manufacturing establishments carried on by Associations of Producers. What finally killed it as an ideal, in the eyes of the Trade Unionists of Great Britain, was the fact that Co-operative Production and its child, Co-partnership, were taken up by the most reactionary persons and parties in the State. Great peers and Conservative statesmen were always blessing " Co-operative Production/' and always trying to stimulate the workers to undertake business on their own account. When the invariable failure of self-governing workshops became too obvious, the advocates of Co-operative Produc- tion fell back on " Labour Copartnership " partnership in business with the capitalist class ! This was so obviously, and almost avowedly, an attack on, or at least a proposal for the supersession of Trade Unionism, that it aroused the fiercest opposition ; and the very idea became anathema in the Trade Union world. In short, there was, from the collapse of Owenism and Chartism in the eighteen-thirties and -forties, right down to 1900, practically no sign that the British Trade Unions ever thought of themselves other- wise than as organisations to secure an ever-improving Standard of Life by means of an ever-increasing control of the conditions under which they worked. They neither desired nor sought any participation in the management of the technical processes of industry (except in so far as these might affect the conditions of their employment, or the selection of persons to be employed) ; whilst it never

654 The Place of Trade Unionism in the State

occurred to a Trade Union to claim any power over, or responsibility for, buying the raw materials or marketing the product. On the contrary, the most advanced Trade Union leaders were never tired of asserting that their members must enjoy the full standard conditions of employ- ment, whatever arrangements the employers might make with regard to the other factors of production ; or however unskilful employers or groups of employers might prove to be in the buying of the raw material, or in the selling of the commodities in the markets of the world.

With the opening years of the twentieth century we become aware of a new intellectual ferment, not confined to any one country, nor even to the manual working class. We watch, emerging in various forms, new variants of the old idea of the organisation of industries and services by those who are actually carrying them on. We see it working among the brain-working professionals. Alike in England and in France the teachers in the schools and the professors in the colleges began to assert both their moral right to manage the institutions as they alone know how, and the advantage that this would be to the community. The doctors were demanding a similar control over the exercise of their own function. But the most conspicuous, and the most widely influential, of the forms taken by the idea was the revolutionary movement that spread among large sections of the wage-earners almost simultaneously in France, the classic home of associations of producers, and in the United States, with its large population of foreign immi- grants. In both these countries any widespread Trade Unionism was of much more recent growth than in Great Britain, and was still regarded, alike by the employers and by the Government, as an undesirable and revolutionary force. The " syndicats " of France, and the Labour Unions among the foreign workers in the United States were, in fact, at the opening of the twentieth century, in much the same stage of development as the British Trade Unions were when they were swept into the vortex of revolutionary Owenism

Syndicalism 655

in 1834. Alike in their constitutions and in their declared objects, in the first decade of the new century, the General Confederation of Labour in France and, -the Industrial Workers of the World in the United States bear a striking resemblance to the Grand National Consolidated Trades Union that we have described in an earlier' chapter; and, like that organisation, both of them excited a quite ex- aggerated terror in the hearts of magistrates and Ministers of State. Indeed, the doctrines and phraseology of the mass of literature turned out by French Trade Unionists between 1900 and 1910 are remarkably like allowing for the superior literary power of the French the pamphlets and leaflets of the Owenite Trade Unionism. 1 There is the same con- ception of a republic of industry, consisting of a federation of Trade Unions, local and central ; the federation of shop clubs, branches, or local unions forming the Local Authority for all purposes, whilst a standing conference of the national representatives of all the Trade Unions constitutes a co- ordinating or superintending National Authority. There is the same reliance, as a means of achievement, on continuous strikes, culminating in a " general expropriatory strike." There is the same denunciation of the political State as a useless encumbrance, and the same appeal to the soldiers to join the workers in upsetting the existing system.

We need not stay to inquire how this new ferment crossed the Atlantic or the Channel. Between 1905 and 1910 we become aware of the birth, in some of the industrial districts, of a number of new propagandist groups more especially among the miners and engineers groups of persons in revolt not only against the Capitalist System but against the limited aims of contemporary Trade Union- ism and the usual categories of contemporary Socialism. The pioneer of the new faith in the United Kingdom seems to have been James Connolly, afterwards organiser of the

1 See, for convenient summaries, Syndicalism in France, by Author:Louis Levine, 1911, and What Syndicalism Means, by S. and B. Webb, 1912; see also American Syndicalism, by J. Graham Brooks, 1913.

656 The Place of Trade Unionism in the State

Irish Transport and General Workers Union, to which we have already referred, a man of noble character and fine intelligence, whose tragic execution in 1916, after the suppression of the Dublin rising, made him one of the martyred heroes of the Irish race. Connolly, who was a disciple of the founder of the American Socialist Labour Party, Daniel De Leon, started a similar organisation on the Clyde in 1905. In opposition to the contemporary Socialist propaganda in favour of the nationalisation and municipal- isation of industries and services, to be brought about by political action, he advocated the direct supersession of the Capitalist System in each workshop and in every industry, by the organised workers thereof. "It is an axiom," he said, " enforced by all the experience of the ages, that they who rule industrially will rule politically. . . . That natural law leads us as individuals to unite in our craft, as crafts to unite in our industry, as industries in our class ; and the finished expression of that evolution is, we believe, the appearance of our class upon the political battle-ground with all the economic power behind it to enforce its mandates. Until that day dawns our political parties of the working class are but propagandist agencies, John the Baptists of the New Redemption ; but when that day dawns our political party will be armed with all the might of our class ; will be revolutionary in fact as well as hi thought." " Let us be clear/' he adds, " as to the function of Industrial Unionism. That function is to build up an industrial republic inside the shell of the political State, in order that when that industrial republic is fully organised it may crack the shell of the political State and step into its place in the scheme of the universe. . . . Under a Socialist form of society the administration of affairs will be in the hands of representatives of the various industries of the nation ; . . . the workers in the shops and factories will organise themselves into unions, each union comprising all the workers at a given industry ;. . . said union will demo- cratically control the workshop life of its own industry,

The Miners' Next Step 657

electing all foremen, etc., and regulating the routine of labour in that industry in subordination to the needs of society in general, to the needs of its allied trades and to the department of industry to which it belongs. . . Representatives elected from these various departments of industry will meet and form the industrial administration or national government of the country. In short, Social Democracy, as its name implies, is the application to in- v dustry, or to the social life of the nation, of the fundamental principles of Democracy. Such application will necessarily have to begin in the workshop, and proceed logically and consecutively upward through all the grades of industrial organisation until it reaches the culminating point of national executive power and direction. In other words, Socialism must proceed from the bottom upwards, whereas capitalist political society is organised from above down- ward ; Socialism will be administered by a committee of experts elected from the industries and professions of the land ; capitalist society is governed by representatives elected from districts, and is based upon territorial division." 1 A similar ferment was to be seen at work amongst the South Wales miners, giving rise to a series of propagandist organisations, preaching the doctrine of Industrial Unionism as a revolutionary force, and culminating in the much- denounced pamphlet The Miners' Next Step, 1912, which created some sensation in the capitalist world. 2

In 1910 we find Mr. Tom Mann, fresh from organising strikes in Australia, and inspired by a visit-to Paris, preaching the new faith to large popular audiences in London and the principal provincial cities with the same sincerity and eloquence with which he had formerly advocated State and Municipal Socialism and the statutory regulation of the con- ditions of employment. " The Industrial Syndicalist/' he explains, holds that " to run industry through Parliament, that is by State machinery, will be even more mischievous

1 Socialism made Easy, by James Connolly, 1905, pp. 13, 16-17. a The Miners' Next Step, 1912.

658 The Place of Trade Unionism in the State

to the working class than the existing method, for it will assuredly mean that the capitalist class will, through Govern- ment Departments, exercise over the national forces, and over the workers, a domination that is even more rigid than is the case to-day. And the Syndicalist also declares that in the near future the industrially organised workers will themselves undertake the entire responsibility of running the industries in the interest of all who work, and are entitled to enjoy the result of labour." x " We therefore most certainly favour strikes ; we shall always do our best to help strikes to be successful, and shall prepare the way as rapidly as possible for THE GENERAL STRIKE of national proportions. This will be the actual Social and Industrial Revolution. The workers will refuse to any longer manipulate the machinery of produc- tion in the interest of the capitalist class, and there will be no power on earth able to compel theiii to work when they thus refuse. . . . When the capitalists get tired of running industries, the workers will cheerfully invite them to abdicate, and through and by their industrial organisations will run the industries themselves in the interests of the whole community." 2 " Finally, and vitally essential it is," sums up Mr. Tom Mann in 1911, " to show that economic emanci- pation to the working class can only be secured by the working class asserting its power in workshops, factories, warehouses, mills and mines, on ships and boats and engines, and wherever work is performed, ever extending their control over the tools of production, until, by the power of the internationally organised Proletariat, capitalist pro- duction shall entirely cease, and the industrial socialist republic will be ushered in, and thus the Social Revolution realised." 3

1 The Syndicalist, January 1912. Column entitled, " What we Syn- dicalists are after " (by Tom Mann).

2 The Industrial Syndicalist, March 1911. "The Weapon Shaping" (by Tom Mann ; p. 5).

8 Ibid., April 1911. "A Twofold Warning" (by Tom Mann). We are concerned, in this volume, only with the effect of these new movements of working-class thought upon British Trade Unionism, and this is not the occasion for any complete appreciation of Syndicalism or Industrial

Industrial Unionism 659

x The revolutionary Industrial Unionism and Syndicalism preached by James Connolly and Tom Mann and other fervent missionaries between 1905 and 1912 did not commend itself to the officials and leaders of the Trade Unions any more than it did to the cautious and essentially Conservative- minded men and women who make up the rank and file of the British working class. But, like other revolutionary movements in England, it prepared the way for constitu- tional proposals. The ideal of taking over the instruments of production appealed to all intelligent workmen as work- men. To them it seemed merely Co-operative Production writ large, the ownership of the instruments and of the product of labour by the workers themselves. But the ownership and management was now to be carried out, not by small competing establishments doomed to failure, but in the industry as a whole by a " blackleg-proof " Trade Union. To the idealistic and active-minded Trade Union official in particular, weary of the perpetual haggling with employers over fractional changes in wages and hours, the prospect of becoming the representative of his fellow- workers in a self-governing industry, with all the initiative and responsibility that such a position would involve, was decidedly attractive. So long as this ideal was associ- ated with violent and revolutionary methods, and left no room for the political democracy to which Englishmen are

Unionism. The Syndicalist Movement in this country had died down prior to the war, but the Industrial Unionist Movement simmered on in the Clyde district and in South Wales. Its chief organisation is the Socialist Labour Party, which is not, and has never been, connected either with any other Socialist organisation in this country or with the Labour Party that is described in the next chapter. It was, we think, the moving spirits of the Socialist Labour Party who were, as Trade Unionist workmen, mainly responsible for the aggressive action of the Clyde Workers Com- mittee between 1915 and 1918, and also for the rise of the Shop Stewards Movement, and for its spread from the Clyde to English engineering centres. At the present moment (1920) the Socialist Labour Party, owing to the personal qualities of its leading spirits, J. T. Murphy and A. MacManus, holds the leading position in this school of thought, which received a great impulse from the accession of Lenin to power in Russia. But it remains a ferment rather than a statistically important element in the Trade Union world.

66o The Place of Trade Unionism in the State

accustomed, or even for the Consumers' Co-operative Move- ment, it failed to get accepted either by responsible officials or by the mass of sober-minded members. The bridge between the old conception of Trade Unionism and the new was built by a fresh group of Socialists, who called them- selves National' Guildsmen. This group of able thinkers, largely drawn from the Universities, accepted from what we may call the Communal Socialists the idea of the ownership of the instruments of production by the repre- sentatives of the citizen-consumers, but proposed to vest the management in national associations of the producers in each industry organisations which they declared ought to include, not merely the present wage-earners, but all the workers, by hand or by brain. 1 These guilds were to grow out of the existing Trade Unions, gradually made co-exten- sive with each industry. We have neither the space, nor would it be within the scope of this book, to describe or criticise this conception of National Guilds, or the theories and schemes of the Guild Socialists. These theories and schemes are none the worse for being still in the making. What we are concerned with, as historians of the Trade Union Movement, is the rapid adoption between 1913 and 1920 by many of the younger leaders of the Movement, and subject to various modifications, also by some of the most powerful of the Trade Unions, of this new ideal of the develop-

1 The revival of the Owenite proposal to develop existing Trade Unions into great Associations of Producers for the carrying on of each industry must be attributed perhaps to Mr. A. J. Penty (The Restoration of the Gild System, 1906), who, however, aimed originally at a mediaeval localism ; or to Mr. S. G. Hobson and Mr. A. R. Orage in a series of articles in The New Age (afterwards published in a volume, National Guilds, 1913, by S. G. Hobson). The idea was developed by Mr. G. D. H. Cole and his associates, and widely promulgated in the Trade Union world. An organisation for this propaganda, the National Guilds League, was started in 1915, and attained a membership of several hundreds, amongst whom were some of the younger leaders of the Trade Union Movement. See its monthly, The Guildsman ; the various books by G. D. H. Cole (especially The World of Labour, Self -Government in Industry, and Labour in the Commonwealth), S. G. Hobson (Guild Principles in Peace and War), M. B. Reckitt and C. E. Bechhofer (The Meaning of National Guilds), A. J. Penty, and G. R. S. Taylor.

A Share in Management 661

ment of the existing Trade Unions into self-organised, self- contained, self-governing industrial democracies, as supply- ing the future method of conducting industries and services. The schemes put forward by the National Union of Rail- waymen, the Miners' Federation of Great Britain, and the Union of Postal Workers differ widely from the revolutionary Syndicalism of Mr. Tom Mann and the large visions of the Industrial Workers of the World. They do not even go so far as the projects of the National Guildsmen. In fact, they limit the claim of the manual workers merely to participa- tion in the management, fully conceding that the final authority must be vested in the representatives of the community of citizens or consumers. Thus we see the Annual General Meeting of the National Union of Railway- men in 1914 resolving unanimously : " That this Congress, while reaffirming previous decisions in favour of the nationalisation of railways, and approving the action of the Executive Committee in arranging to obtain and give evidence before the Royal Commission, declares that no system of State ownership of the railways will be acceptable to organised railwaymen which does not guarantee to them their full political and social rights, allow them a due measure of control and responsibility in the safe and efficient working of the railway system, and assure to them a fair and equitable participation of the increased benefits likely to accrue from a more economical and scientific administration." 1 In a modified form this resolution was brought forward by the Railway Clerks' Association, supported by the N.U.R., and passed by the Trades Union Congress of iQiy. 2 A similar

1 N.U.R. Agenda and Decisions of the Annual General Meeting, June 1914, p. 7.

2 The resolution runs as follows : " That in view of the success which, in spite of unparalleled difficulties, has attended the working of the rail- ways under State control, this Congress urge the Parliamentary Congress to press the Government to arrange for the complete nationalisation oi all the railways, and to place them under a Minister of Railways, who shall be responsible to Parliament, and be assisted by national and local advisory committees, upon which the organised railway workers shall be adequately represented" (Trades Union Congress Annual Report, 1917, p. 345).

662 The Place of Trade Unionism in the State

movement in favour of participation in management has taken root among the postal workers of all kinds, in England as also in France. At the Annual Conference, in May 1919, of the Postal and Telegraph Clerks' Association, which had in previous years been passing resolutions on the subject, it was emphatically pointed out that the control demanded by the postal employees was not restricted to securing better conditions of employment, but that they desired to partici- pate in directing the technical improvement of the service for the good of the community. 1 The Conference resolved : " That in view of the obstructive attitude of the Department on the question of the development of the Post Office Savings Bank, the modernising of the Post Office Insurance System, and the expansion and improvement of the Post Office Services generally, this Conference directs that representatives of the Association be appointed to investigate and report on the working of the postal cheque and transfer services from both the national and international stand- point, and that the report be widely circulated, and propa- ganda work undertaken, so that this development of the Post Office Savings Bank giving a greatly improved trans- mission of moneys system be introduced throughout." 2 Finally, we may cite the scheme for the Nationalisation of the Coal-mines that the Miners' Federation brought formally before the Coal Industry Commission in 1919. Six years previously the Miners' Federation had had a Bill drafted and published, which provided merely for the vesting of the collieries in a Ministry of Mines, and for the administration of the whole industry by that department. 3 All that the Federation was then concerned to secure for the miners themselves was the continuance of free and lawful Trade Unionism. The Bill of 1919* imposed on the Minister of

1 Postal and Telegraph Record, May 22, 1919, p. 237.

2 Ibid.

3 The Nationalisation of Mines Bill (Fabian Tract, No. 171, 1913).

4 The Nationalisation of Mines and Minerals Bill, 1919, given in full in Further Facts from the Coal Commission, by R. Page Arnot, 1919. The Miners' Federation Conference of 1918 had passed the following resolution :

Direct Action 663

Mines a whole series of National and District Councils, and Pit Committees, each of which was to consist, to the extent of one half, of members nominated by the Federation, the other half being nominated by the Minister ; and the expectation was not concealed that it would be by these bipartite bodies that the administration would be conducted. We record these schemes, which are by the nature of the case only imperfect drafts prepared for propaganda, not so much for their importance as precisely denned industrial constitu- tions, but as being indicative of the change of spirit that has come over the Trade Union world.

THE INCREASED RELIANCE ON DIRECT ACTION

The acceptance, during the last decade, by Parliament, by the Executive Government, and by public opinion, of the Trade Union organisation as part of the machinery of government in all matters concerning the life and labour of the manual working class, has been coincident, some would say paradoxically coincident, with an increased reliance on the strike, commonly known as the method of Direct Action, and with an enlargement of the purposes for which this method is used by Trade Unionists. There is an impression in the public mind, which easily forgets its previous impressions of the same kind, that we are to-day (1920) living in an era of strikes. Although this impression

" That in the opinion of this Conference the time has arrived in the history of the coal-mining industry when it is clearly in the national interests to transfer the entire industry from private ownership and control to State ownership with joint control and administration by the workmen and the State. In pursuance of this opinion the National Executive be instructed to immediately reconsider the draft Bill for the Nationalisation of the Mines . . . in the light of the newer phases of development in the industry, so as to make provision for the aforesaid joint control and administration when the measure becomes law ; further, a Conference be called at an early date to receive a report from the Executive Committee upon the draft proposals and to determine the best means of co-operating with the National Labour Party to ensure the passage of a new Bill into law " (Report of Annual Conference of the Miners' Federation of Great Britain, July 9, 1918, p. 44).

664 The Place of Trade Unionism in the State

is not justified by the number of strikes, as compared with those of 1825, 1833-34, 1857-60, 1871-74, and 1885-86, there is some basis for the feeling. The strikes and threats of strikes during the past decade (excluding the four years of war) have been on a larger scale, and, in a sense, more menacing, than those of previous periods. When we pub- lished, in 1897, our detailed analysis of the theory and practice of contemporary Trade Unionism (Industrial Democracy), the very term " direct action " was unknown in this country. The strike was regarded, not as a distinct method of Trade Union action, but merely as the culminating incident of a breakdown of the Method of Collective Bar- gaining. 1 The Trade Union plea for the right to strike has always been a simple one. It is a mere derivative of the right of Freedom of Contract. Whenever an individual workman had the right to refuse to enter or continue in a contract of service, any group of individuals might, if they chose, exercise a like freedom. After the collapse of Owen- ism and Chartism all thought of using the weapon of the strike, otherwise than as an incident in Collective Bargaining with the employers, seems to have left the Trade Union Movement in Great Britain. Indeed, during the last half of the nineteenth century, the use of the weapon of the strike was falling into disrepute, even as an incident of Collective Bargaining, not only among the officials of the great trade friendly societies, such as the Amalgamated Society of Engineers and Carpenters, but also among the younger and more militant members of the Trade Union movement. The " extremists " of the last decade of the

1 At the end of our chapter on the " Method of Collective Bargaining " we cursorily dealt with the strike as a necessary incident of collective bar- gaining : "It is impossible to deny that the perpetual liability to end in a strike or a lock-out is a grave drawback to the Method of Collective Bargaining. So long as the parties to a bargain are free to agree or not to agree, it is inevitable that, human nature being as it is, there should now and again come a deadlock, leading to that trial of strength and endurance which lies behind all bargaining. We know of no device for avoiding this trial of strength except a deliberate decision of the community expressed in legislative enactment " (Industrial Democracy, p. 221).

The Insurrectionary Strike 665

nineteenth century, as we have described in a previous chapter, were out for the " capture " of Parliament and Local Authorities by an " independent " Party of Labour ; and political action was commonly regarded as the shortest and most convenient way of securing not only Socialist but also the distinctively Trade Union objects. It was at that time left to the " reactionaries " in the Trade Union Movement, who disliked the idea of a political Labour Party, to advocate reliance on " ourselves alone." l

But with the revolution of thought that we have de- scribed there has arisen, with regard to Direct Action, a change of practice. In 1913-14 there was an outburst of exasperated strikes designed, we may almost say, to super- sede Collective Bargaining to repudiate any making of long-term agreements, to spring demand after demand upon employers, to compel every workman to join the Union, avowedly with the view of building up the Trade Union as a dominant force. This spasm of industrial " insurrec- tionism " was abruptly stopped by the outbreak of war. The " political " element creeps in with the strikes and threats of strikes of the Miners' Federation in 1912 and 1919, designed, not to further Collective Bargaining with the employers, but to cause the Government and Parliament to alter the organisation of the industry, in the earlier case by the enactment of a Minimum Wage law, and in the other "by the elimination of the capitalist profitmaker in favour of public ownership and workers' control. During the years of war Direct Action took another form. The weapon of a concerted refusal to work was used by some Trade Unions, in matters entirely unconnected with their conditions of employment, in order to prevent particular individuals from doing what they wished to do. The most sensational examples were afforded by the National Union of Sailors and Firemen in 1917-18, when its members, by refusing to work, at the dictation of Mr. J. Havelock Wilson,

1 See, for instance, Trade Unionism New and Old, by George Howell, 1891.

666 The Place of Trade Unionism in the State

the Secretary of the Union, prevented certain Labour Leaders * from proceeding to Petrograd, actually by direc- tion of the Government ; and subsequently others 2 from going to Paris with Government passports, on the instruc- tions of the Labour Party, because the Union, or at any rate Mr. Havelock Wilson, disapproved of these visits, and of their supposed object in arranging for an International Labour and Socialist Congress. Another case was the withdrawal by the Electrical Trades Union in 1918 of their members (taking with them' the indispensable fuses) from the Albert Hall in London, when the directors o'f the Hall cancelled its letting for a Labour Demonstration, of the purposes and resolutions of which they disapproved, or thought that their patrons would disapprove. What the Electrical Trades Union intimated was that, unless the Hall was allowed, as heretofore, to be used for Labour meetings, it should not be used for a forthcoming demonstration of the supporters of the Coalition Government, or for any other meetings. The result was that (it is said on a hint from Downing Street) the directors of the Hall withdrew their objection to the Labour Demonstration, and have since continued to allow such meetings. Yet another example of Direct Action was given by the printing staffs of certain newspaper offices in London during the railway strike of 1919, when they threatened instantly to withdraw their labour, and thus absolutely to prevent the issue of the newspapers, unless the use of " lying posters " was given up, and unless the case of the National Union of Railwaymen was fairly treated in the papers, and accorded reasonable space. The gravest case of all was the threat by the Miners' Federation in 1919, that all the coal-mines might stop, working unless Compulsory Military Service was immedi-

1 Mr. G. H. Roberts (Typographical Society), then Parliamentary Secretary to the Board of Trade ; and Mr. J. Ramsay MacDonald, Trea- surer of the Labour Party.

2 The Rt. Hon. Arthur Henderson (Friendly Society of Ironfounders), and M. Camille Huysmans, Secretary of the International Socialist Con-

The Causes of Direct Action 667

ately brought to an end, and unless the policy of military intervention in Russia against the Bolshevik Government of Russia was abandoned. By what was perhaps a fortunate coincidence the Secretary of State for War was able to declare that all Compulsory Military Service was to cease at or before the end of the current financial year ; and the Prime Minister to announce that no more troops, and, after certain consignments already arranged for, no more military stores, would be sent in aid of those who were attacking the Bolshevik Government.

How far can these instances of Direct Action be deemed to indicate a change of thought in the Trade Union world with regard to the use of the strike weapon ? We must note that, in spite of the temporary lull in strikes in the latter part of the last century, there has been no change in Trade Union policy with regard to the strike in disputes with employers about the conditions of employment. The Trade Unions have always included in this term the dis- missal of men for reasons other than their inefficiency as workmen, the engagement of non-Unionists, the presence of an obnoxious foreman or manager, or any interference with the conduct of employees outside the works. Nor has there been any development in the original Trade Union position with regard to sympathetic strikes in aid of other sections of workers in their struggles with their employers. It is possible that some of the insurrectionary strikes of 1911-14 were inspired by the new thought that we have described the disillusionment as to the Parlia- mentary potency of a Labour Party, and the vision of a Democracy based on industrial organisation and secured by industrial action. But, in the main, the increased frequency and magnitude of strikes in these years are sufficiently accounted for by the continued fall in real wages due to rising prices, combined with the steadily improving organisation of the workers concerned. There was a new element in the proposal of the Miners' Federation in 1919 to strike if the Government did not fulfil its pledge

668 The Place of Trade Unionism in the State

to carry into effect the Sankey Report described in the last chapter. The significant and authoritative declaration in the first Report of March 20, 1919, that " the present system of ownership and working in the coal industry stands condemned, and some other system must be substi- tuted for it, either nationalisation or a method of unification by national purchase and/or by joint control," and the explicit acceptance of this Report by the Government " in the spirit and in the letter," formed an integral part of the bargain between the Miners' Federation and the Government, on the strength of which they forewent the strike at the end of March 1919 on which they had decided. It can hardly be contended that the " present system of ownership and working " is not a necessary part of the conditions of employment, or that the Miners are not entitled to refuse to enter into contracts of service under a system that Mr. Bonar Law agrees with Mr. Justice Sankey, and nine out of the other twelve members of the Royal Commission, in holding to " stand condemned." On the other hand, though the Government controls the industry and dictates the wages, the alterations in the conditions of employment that the Miners' Federation asks for require not only one but probably several Acts of Parliament, which a majority of the members of the present House of Commons, notwith- standing the explicit Government pledge, refuses to pass. What the Miners' Federation threatens, by a stoppage of the coal industry, is to coerce into agreement with them not their employers, the colliery owners, not even the Ministry with whom they made the bargain, but, in effect, the recalcitrant capitalist majority of the House of Commons which cannot be displaced without a General Election.

But an entirely new development of Direct Action, alike in form and in substance, is the distinctly political, or, as we should prefer to call it, the non-economic strike that is, the strike, not for any alteration in the conditions of employment of any section of the Trade Union world, but with a view to enforce, either on individuals, on Parliament;

The Political Strike 669

or on the Government, some other course of action desired by the strikers. So far as we know, there is, on this question, no consistent body of opinion in the Trade Union world ; all that we find are currents of opinion arising from different section of Trade Unionists who are Syndicalists or extreme Industrial Unionists in opinion, and who look forward to the supersession of political Democracy, and the reconstitu- tion of society on the basis of the suffrages of the several trades. Like the Sinn Feiners in Ireland, though on different grounds, they do not acknowledge the competency of the existing Parliament to undertake the government of the country, and they advocate Direct Action as the only weapon of revolt accessible to the workers organised as workers. But it was no such theory of social revolution that induced Mr. Havelock Wilson to prevent the visit of Mr. G. H. Roberts and Mr. MacDonald to Petrograd, when the Government wished them to go ; or to prevent Mr. Henderson and M. Camille Huysmans from using their passports to Paris. Nor were the electricians of the Albert Hall inspired by faith in an immediate revolution of the Russian type. It cannot even be suggested that the wide- spread approval by the more active spirits of the Trade Union world of the proposed strike to stop the intervention of Great Britain in support of the reactionary Russian leaders was accompanied by any desire to set up in Great Britain the constitution which is believed to obtain in Moscow and Petrograd. We must look elsewhere for the motive that underlies and is held by many to justify the non-economic or " political " strike.
 * assumptions of social expediency. There is, first, a small

We suggest that the explanation is a more complex one. We have first the impulsive tendency of some men in all classes to use any powers that they possess, whether over land, capital, or labour, to dictate to their fellow-men a course of conduct on any question on which they feel hotly, even if it is wholly unconnected with their several economic functions. This delight in m anarchic use of economic

670 The Place of Trade Unionism in the State

power is, it is needless to say, not peculiar to those whose economic power is that of labour. There have been in- numerable instances, within our own memories, among landlords and capitalists, of actions no less arbitrary than that of Mr. Havelock Wilson (who, it must be remembered, had the general approval of the capitalist press ; and, in the case of the attempted internment in this country of a distinguished Belgian visitor, M. Huysmans, the connivance of the naval officers, if not of the Admiralty). We find within the last few decades many cases of landlords who have ejected persons, not because they were objectionable tenants, or had failed to pay their rent, but because they had supported a political candidate, or had led to action on the part of the Local Authority, to which the landlord objected. We have seen landed proprietors refusing sites for Nonconformist chapels, not because they objected to buildings of that character, or were dissatisfied with the price offered, but because they disliked the theology of the promoters. We have heard of banks refusing to the Trade Unions who were their customers any accommodation at all on the occasion of a strike, merely because they disliked the strike. We have seen employers dismissing workmen, not for their inefficiency, not even for their Trade Union activities, which might be held to affect the economic interest of the capitalist, but because the workmen held different political opinions from those of the employer. But these cases of the use of economic power to prevent individuals from pursuing or promoting their own religious or political creeds are emphatically condemned by the Trade Union Movement. Thus no Trade Union support was overtly given to Mr. Havelock Wilson, even by those Trade Union leaders who agreed with him in detesting any meeting between Britons and enemy subjects.

We have a quite different class of cases when Direct Action is taken in reprisal for the Direct Action of other persons or groups of persons. This was the case in the strike of the electricians at the Albert Hall. It was a reprisal for the

The Non-Economic Strike 671

use by the directors of the Albert Hall of their power over lettings to bann opinions that they happened to dislike, whilst permitting the use of their hall to the other side. A more difficult case is that of the threatened refusal to work of the compositors against the newspapers who denied fair play to the railwaymen. Here our judgement may depend on what view is taken of the function of newspapers ; how far are newspapers what their name implies, the public purveyors of news ? Supposing that all the capitalist press were deliberately to boycott all Labour news, whilst deliberately giving currency to false statements about Labour Leaders and the Labour Movement, would the compositors, as representing the Trade Union world in this industry, be justified in a strike ? The only conclusion we can suggest is that, human nature being instinctively militant, any anarchic use of the power given by one form of monopoly will lead to a similar anarchic use of the power given by another form of monopoly.

We come now to the third class of use of the method of Direct Action, a general strike of the manual workers to compel the Government of the country to abstain from political courses distasteful to those who control a monopoly of labour power, or to the majority of them. This form of Direct Action is justified by a minority of Trade Unionists, who consider that under the present constitution of Parlia- ment the organised workmen have practically no chance of getting their fair share of representation an argument strengthened by every election trick, and especially by the partisan use of the capitalist press as an election instrument. The majority of Trade Unionists, however, do not, at the present time, seem to support this view. They reply that the manual workers and their wives now constitute, in every district, a majority of the electorate. They can, if they choose, return to Parliament a Labour majority and make a Labour Government. This very consideration, indeed, seems to make any such general strike impracticable, and, as a matter of fact, no such proposal of a general strike

672 The Place of Trade Unionism in the State

has yet been endorsed by the Trades Union Congress. We can imagine occasions that might, in the eyes of the Trade Union world, fully justify a general strike of non-economic or political character. If, for instance, a reactionary Parliament were to pass a measure disfranchising the bulk of the manual workers, or depriving them of political power by such a device as the " Three Class Franchise " of Prussia and Saxony if any Act were passed depriving the Trade Unions of the rights and liberties now conceded to them if the Executive or the judges were to use against the Trade Unions, by injunction or otherwise, any weapon that might be fished up from the legal armoury, confiscating their funds or prohibiting their action then, indeed, we might see the Trades Union Congress recommending a General Strike ; and it would be supported not only by the wage-earning class as a whole, but also by a large section of the middle class, and even by some members of the House of Lords. That is one reason why, short of madness, no such act would be committed by the Government or by Parliament. If any such act were perpetrated, it would probably involve a revolution not in the British but in the continental sense. It must be remembered that the " last word " in Direct Action is with the police and the army, and there not with the officers but with the rank and file.

To sum up, the vast majority of Trade Unionists object to Direct Action, whether by landlords or capitalists or by organised workers, for objects other than those connected with the economic function of the Direct Actionists. Trade Unionists, on the whole, are not prepared to disapprove of Direct Action as a reprisal for Direct Action taken by other persons or groups. With regard to a general strike of non- economic or political character, in favour of a particular home or foreign policy, we very much doubt whether the Trade Union Congress could be induced to endorse it, or the rank and file to carry it out, except only in case the Government made a direct attack upon the political or industrial liberty of the manual working clas^which it

y

Elimination of the Capitalist 673

seemed imperative to resist by every possible means, not excluding forceful revolution itself.

THE DEMAND FOR THE ELIMINATION OF THE CAPITALIST PROFIT-MAKER

It is interesting to note that this widening enlargement of the aspirations and purposes of Trade Unionism has been accompanied, not by any decline, but by an actual renewal of the faith in Communal Socialism, towards which we described the Trade Union Movement as tending in 1889-94. For the Trade Unionist objects, more strongly than ever, to any financial partnership with the capitalist employers, or with the shareholders, hi any industry or service, on the sufficient ground that any such sharing of profits would, whilst leaving intact the tribute of rent and interest to proprietors, irretrievably break up the solidarity of the manual working class. To the new school of Trade Unionists the nationalisation or municipalisation of industry, or its assumption by consumers' co-operation, is a necessary preliminary to the partnership of Labour in its government. What they are after is to alter, not only the status of the manual worker, but also the status of the employer who is the director of industry ; they wish them both to become the agents of the community; they desire that manual workers and brain workers alike should be inspired, not by the greed of gain made by profit on price, but by the desire to produce the commodities and services needed by the community in return for a sufficient livelihood, and the personal freedom and personal responsibility which they believe would spring from vocational self-government. Thus we find Mr. Hodges, the General Secretary of the Miners' Federation, in one of his numerous speeches in favour of the nationalisation of the mines, declaring that what they demanded was " a new status for the worker as a controller of his industry. Miners were not anarchists, although they had the power to be. They realised that

674 The Place of Trade Unionism in the State

their interests were bound up with those of the community and therefore they demanded conditions which would develop the corporate sense. . . . Education was carrying men along social rather than individualistic lines, and righl throughout the mining industry there was the desire to be something different from what they were. This desire tc be master of the work in which the man was engaged was the great thing that was vital in working-class life. . . . There had never been a movement born of greater moral aspiration than this movement for the nationalisation of the mines. The miner wanted to be hi a position where it would be to him a point of honour not to allow even a piece oi timber to be wasted, where he would want to do his work well. He wanted a Social Contract." 1

1 These extracts from a speech by Mr. Hodges are put together from the separate imperfect reports in the Times, Daily News, and Daily Herald of October 27, 1919. A more explicit statement of Mr. Hodges' views will be found in his speech at the Annual Conference of the Miners' Federation in July 1918 : " For the last two or three years a new move- ment has sprung up in the labour world which deals with the question of joint control of the industry by representatives from the side which represents, for the most part, the consumer, and representatives of the workmen, who are the producers. Nationalisation in the old sense is no longer attractive. As a matter of fact, you can have nationalisation, but still be in no better position than you are now under private ownership. That is the experience of institutions which have been State owned and State controlled for many years. The most remarkable scheme worked out during the last year is the theory worked out by the . . . Postmen's Federation. He has endeavoured to provide a scheme by which the postal workers should have a definite amount of control, a definite form of control, in the postal service, and in working it out he has demonstrated beyond all doubt how at every point he is up against the power of the bureaucrats, as exemplified by the State. Now, is it any good to have these mines nationalised unless we are going to exercise some form of control as pro- ducers ? If not, the whole tendency will be towards the power of bureau- cracy. We shall be given no status at all in the industry, except to be the mere producers, as we have been in the past years. Under State owner- ship the workmen should be desirous of having something more than the mere question of wages or the mere consideration of employment ; the workmen should have some directive power in the industry in which they are engaged. Now, how are we going to have this directive power under State control ? I think we must admit that the side representing the consumers (the State) should have some form of control on property which will be State property, and when a national industry becomes State controlled you must have permanent officials to look after the consumers'

The Effect of Profiteering 675

The demand for the nationalisation or municipalisation of industries and services, or their absorption by the Con- sumers' Co-operative Movement, was greatly strengthened by the experience, during the war and after the Armistice, of the failure of every alternative method of preventing " profiteering/' The rapid development of capitalist com- binations and price-agreements l ; the ill-success of the most stringent Government control in preventing alarming increases of price ; the inability of even legally fixed maxi- mum prices to do anything more, under private ownership, than authorise the charge required to cover the cost at the least efficient and least well - equipped establishment of which the output was needed ; the enormous and even unprecedented profits made throughout the whole range of business enterprise ; the helplessness of the consumers, in the mere expectation of shortage, and their willingness to pay almost any price that was demanded rather than go without combined with the obvious breakdown of capi- talist competition as a safeguard of the public which the proceedings under the Profiteering Act revealed all these things co-operated to convince the bulk of the wage-earning class, many of the families living on fixed incomes, and (in

interests, and from the purely producers' point of view the Miners' Federa- tion must represent the producers in the central authority and in the decentralised authority, right down to the separate collieries. Are we ready to do this ? Are we prepared for this, starting at the separate collieries, indicating how the industry is to be developed locally? Men must take their share in understanding all the relations embodied in the export side of the trade ; they must take a share even in control- ling the banking arrangements which govern the financial side of the industry, and with that comes a very great deal of responsibility. Now, are we prepared to assume that responsibility, a responsibility which is implied in the term workmen's control ? It is going to be a big task and a test of the educational attainments of the miners themselves if they assume control of the industry, and if it did not thrive under that control there is the possibility we should have to hark back to private ownership in order to make it successful. ... I hold these views, and unless they are accompanied by an effective form of working-class control, I do not believe that nationalisation will do any good for anybody " (Report oj Annual Conference of the Miners' Federation of Great Britain, July 9. 1918, pp. 49-51).

1 Report of the Committee on Combinations and Trusts, 1919-

676 The Place of Trade Unionism in the State

spite of the objection to " bureaucratic control ") some even among business men, that there was practically no other course open, in the industries and services that were suffi- .ciently highly developed to render such a course practicable, than a gradual substitution of public for private ownership. This advance in public opinion is naturally reflected in the passionate support of public ownership, with participation of the workers in administration and control, given by the Trades Union Congress and Labour Party Conference.

It will have become clear from our review of the larger conception now current of the place of Trade Unionism in the State, that the Trade Unionist, as such, no longer retains the acquiescent and neutral attitude towards the two great parties of British politics, nor to the Capitalist System itself, which characterised the Trade Unionism of thirty or forty years ago. The object and purpose of the New Unionism of 1913-19 not without analogy with that of 1830-34, but with a significant difference cannot be attained without the transformation of British politics, and the supersession, in one occupation after another, of the capitalist profit-maker as the governor and director of industry. Meanwhile, as a result of the successive attacks upon the very existence of Trade Unionism, even in its most limited form, there has been growing up a distinct political organisation of the Trade Union Movement, aiming at securing the acceptance by the electorate, as a whole, of a definitely Socialist policy in the administration of both home and foreign affairs. It is this formation of a Labour Party, ready for the carrying into effect of the new ideas, that we have now to describe.