The History of Trade Unionism (Barnes & Noble Digital Library)

THE HISTORY OF TRADE UNIONISM

SIDNEY AND BEATRICE WEBB

This 2011 edition published by Barnes & Noble, Inc.

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CONTENTS

INTRODUCTION TO THE EDITION OF 1911

ORIGINAL PREFACE

I. THE ORIGINS OF TRADE UNIONISM

II. THE STRUGGLE FOR EXISTENCE [1799–1825]

III. THE REVOLUTIONARY PERIOD [1829–1842]

IV. THE NEW SPIRIT AND THE NEW MODEL [1843–1860]

V. THE JUNTA AND THEIR ALLIES [1860–1875]

VI. SECTIONAL DEVELOPMENTS [1863–1885]

VII. THE OLD UNIONISM AND THE NEW [1875–1889]

VIII. THE TRADE UNION WORLD [1892–94]

APPENDIX

INTRODUCTION TO THE EDITION OF 1911 (TENTH THOUSAND)

THE continued demand for the History of Trade Unionism, after sixteen years' sales, gives us an opportunity of writing a new introductory chapter.

We make no attempt to bring the history down to the present day. The student will find in our companion volume, entitled Industrial Democracy—the closer analysis of Trade Union structure and function to which the closing paragraph of the history refers—not merely a survey of Trade Union problems but a detailed critical examination of almost every phase of the organization and regulation of labour, Factory Legislation no less than Trade Union regulations, together with an analysis of the working of democratic machinery, and a new exposition of the economics of the wage-contract.

This examination of a large part of the field of political and economic science has, in our judgement, not been affected by either the expert criticism or by the subsequent progress of events. To the judgements and conclusions then expressed, we still adhere.

Trade Unionism, of which we have here sought to represent the two hundred years' history, so far as the United Kingdom is concerned, stands, in 1911, once more at a crisis of its fate. As in 1824–5, 1867–71 and 1901–6, it finds its position and status gravely impugned, and must, if it is not to come into disastrous conflict with the law, necessarily obtain fresh legislative authorization. In the case known as the Osborne Judgement,¹ in December 1909, 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. Formally this judgement decided only that Mr. Osborne, a member of the Amalgamated Society of Railway Servants, was entitled to restrain that Trade Union from making a levy on its members (and from using any 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 Parliament shall otherwise determine), (a) that although Parliament has always avoided any express incorporation of Trade Unions, they must all now be deemed to be corporate bodies, formed under statute, and not unincorporated groups of individual persons; (b) that it follows, by an undoubted principle of English law, that a body corporate, created under statute, cannot lawfully do anything outside the purposes for which the statute has incorporated it; (c) that as the purposes for which Trade Unions are incorporated have to be found somewhere authoritatively given, the definition of a Trade Union, which Parliament incidentally enacted in the Trade Union Act of 1876, must be taken to enumerate accurately and exhaustively all the purposes which any group of persons falling within that definition can, as a corporate body, lawfully pursue; and (d) that the payment of Members of Parliament, and, indeed, any political action whatsoever, not being mentioned as one of these purposes and not being considered by the judges incidental to them, cannot lawfully be undertaken by any Trade Union, even if it was formed, from the outset, with this purpose duly expressed in its original rules, and even if all its members agree to it and continue to desire that their organization shall carry it out.

This momentous judgement destroys, at a blow, the peculiar legal status that Mr. Frederic Harrison devised for Trade Unionism in 1868 (see page 255 of this volume), and which Parliament thought that it had enacted in 1871–6. The statutes of 1871 and 1876, which have always been supposed to have enlarged the freedom of Trade Unions, are now held to have deprived these bodies of powers that they formerly enjoyed. It is not, as will be seen, a question of protecting a dissentient minority. Whether all the members are unanimous, or whether they are nearly evenly divided, does not affect the legal position. Trade Unions now find themselves, pending the necessary revision by the legislature of this remarkable judge-made law, forbidden to do anything, even if all their members desire it, which cannot be brought within the terms of a clause in the Act of 1876, which Parliament (as Lord James of Hereford emphatically declared) never meant to be taken in that sense. What is not within the ambit of that statute, said Lord Halsbury, "is, I think, prohibited both to a corporation and a combination." This is the new limitation suddenly put on Trade Unions. All their educational work is suddenly prohibited; all their participation in municipal administration is forbidden; all their association for common purposes in Trades Councils and the Trade Union Congress becomes illegal. The judges have stopped the most characteristic and, as was supposed, the most constitutional, of the three customary ways that (as we have shown in our Industrial Democracy) Trade Unions pursued of enforcing their Common Rules, namely, the Method of Legal Enactment; grave doubt is thrown on the legality of some of the most extensive developments of their second way, the Method of Mutual Insurance; whilst the way that the House of Lords now expressly prescribes is exactly that which used to give rise to so much controversy, namely, the Method of Collective Bargaining, with its concomitant of the Strike. So topsy-turvy a view of Trade Unionism—a view which seems to have arisen from insufficient knowledge of its two centuries of history—can hardly be upheld by Parliament.

What is the explanation of the view of Trade Union constitution that the judges are now taking? The Courts of Justice, it must be remembered, have peculiar rules of their own for the construction of statutes. When the plain man wants to know what a document means, he seeks every available explanation of the intention of the author. When the historian enquires the purpose and intention of an Act of Parliament, he considers all the contemporary evidence as to the minds of those concerned. The Courts of Law, for good and sufficient reasons, debar themselves from going behind the face of the document, and are therefore at the mercy of all the unstudied ineptitudes of House of Commons phraseology. Along with this rigour as to the intention of a statute, the English and American judges combine a capacity for developments of doctrine in the form of legal principles which is, we believe, unequalled in other judicial systems. Now, the subject of corporations is one of those in which there has been, among the present generation of English lawyers, a silent and almost unselfconscious development of doctrine, of which, in Germany, Gierke has been the great inspirer, and Maitland, in this country, the brilliant exponent. Our English law long rigidly refused to admit that a corporate entity could arise of itself, without some formal and legally authoritative act of outside power. How, it was asked, except by some definite Act of Creation by a superior, could the persona ficta come into existence? How, otherwise (as Madox quaintly puts it) could this mere society of mortal men become something immortal, invisible and incorporeal?² As a matter of fact corporate entities of all sorts always did arise, without the intervention of the lawyers, and nowadays they arise with amazing ease, without any act of creation by a superior; and when the English lawyers refused to recognize them as existing, it was they who were irrational, and the common law itself that was at fault. Nowadays we live in a world of corporate entities of all sorts and of every degree of informality—corporate entities that to the old-fashioned lawyer are still legally nonexistent as such—clubs and committees of every possible kind; groups and circles, societies and associations for every conceivable purpose; unions and combinations and trusts in every trade and profession; schools and colleges and University Extension Classes, often existing and spending and acting most energetically as entities, having a common purse and a single will, in practice even perpetual succession and (if they desire such a futile luxury) a common seal, without any sort of formal incorporation. Gradually English lawyers (whom we need not suspect of reading Gierke, or even, for that matter, Maitland) are unconsciously imbibing the legally heterodox view that a corporation is anything which acts as such; and so far from making it impossible for the persona ficta to come into existence without a formal act of creation, they are, by little alterations of procedure and imperceptible changes in legal principles—sometimes by harmless little dodges and fictions of the Courts themselves—coming near to the practical result of putting every corporate entity, however informal in its constitution and however spontaneous in its origin, in the same position as the persona ficta, just as if it had been created by a formal instrument of incorporation, decorated by many seals, and procured at vast expense from the Pope himself; or as if it had been expressly incorporated by the Royal Charter of a Protestant King, or the private statute of a Victorian Parliament.

Now this development of legal doctrine to fit the circumstances of modern social life is, when one comes to think of it, only common sense. If twenty old ladies in the workhouse club together to provide themselves with a special pot of tea, and agree that one among them shall be the treasurer of their painfully hoarded pennies as a common fund, they do, in fact, create a corporate entity just as real in its way as the Governor and Company of the Bank of England. Why should not the law, if it ever comes to hear of the action of the twenty old ladies in the workhouse, deal with the situation as it really is, according to their wishes and intentions, without enquiring by what formal act of external power a persona ficta has been created and therefore without demanding that the old ladies shall first procure a charter of incorporation from the Pope, from the King, or from Parliament? And considering that Trade Unions are now in fact corporate entities, often having behind them more than a hundred years of perpetual succession; counting sometimes over a hundred thousand members moving by a single will; and occasionally accumulating in a common purse as much as half a million of money, the Law Lords may well think it absurd and irrational of Parliament to have decided in 1871–6, and again in 1906, to regard them as unincorporated groups of persons, having, in a corporate capacity, no legally enforceable obligations and hardly any legally enforceable rights.

But whatever may be the justification for the momentous change in the law which the Six Judges (namely, the three 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) have effected, it has created an intolerable situation which Parliament will quite inevitably be driven to remedy. There is, in the first place, the application of the principle of ultra vires to corporate entities quite unaware of its existence. It is 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 can only come into existence by some formal act of incorporation by an external authority. But then it won't do to retain, as the Six Judges have quite calmly retained, the severe limitations on the action of statutory corporate entities which is involved in the principle of ultra vires, and which, as Lord Halsbury puts it, is to prohibit them from doing what they like. 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 exceptional powers of a corporation have been conferred upon it; that as such it is, in a sense, the agent whom the community has entrusted with the execution of these functions, and who cannot therefore (even if all the constituent members 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 associations, such as an unregistered Trade Union (and some of the wealthiest and most powerful Trade Unions are still unregistered), or such as an Employers' Association (which is hardly ever a registered body)—corporate entities which were, in fact, in existence long before the Act of 1876—we must give up the fiction that the purposes of these associations have been authoritatively fixed and defined in 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 organization.

We come now to the second cardinal feature of the decision of the Six Judges. 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 already existing and spontaneously 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 told them it was in fact so) that no such specification should exist. They accordingly found it in a definition which Parliament had given of a Trade Union in the Act of 1876, principally for the purposes of registration by the Chief Registrar of Friendly Societies, and they held that this definition must be deemed to be an exhaustive enumeration of all the objects and purposes that Parliament intended Trade Unions, whether registered or unregistered, to be free at any time to pursue. The result is that all Trade Unions and Employers' Associations, and, indeed, all informal groups of workmen or employers falling within this definition, find themselves today (to the complete amazement of every one concerned, including the lawyers) rigidly confined in their action, even if all their members otherwise wish and agree, to matters which were specified in a mere definition clause of an Act of Parliament of thirty-five years ago, which has never before been supposed to have that meaning, or 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 many other people, it seems 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 are, expressly dissented from his colleagues on this point, saying that the definition clause in the Act of 1876 was never intended to be a clause of limitation or exhaustive definition; 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 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 any 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 conditions 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 combination by reason of some one or more of its purposes being in restraint of trade.

Now, to the lay mind, this extremely wide definition seems plainly intended to bring into 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 legalized by the legislation of 1871–6. To the logician it will be clear that we have here a case of classification 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.³ Accordingly the definition names specifically one by one the various attributes, any one of which is to be typical of the class. It does not occur to the ordinary reader, any more than to the logician, that the effect of the clause is to limit the legal freedom of all those associations, with all their varied functions, exclusively to the purposes specified in the definition, which happen to be those alone in which they resemble each other. 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 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 forever prohibiting them (as Lord Halsbury expressly declares) from doing anything not included in the definition 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. Mr. Thomas Burt 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 legalize) any of the functions that these Unions were in fact exercising, and that 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 formal definition that was then enacted. As a matter of fact, the definition 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 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, supposing 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 construed it as offering a complete and exhaustive enumeration of a Trade Union, making it actually illegal for the future for any association of workmen or employers to deal with the conditions of employment, unless it included in its purposes something 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, with what consistency can the definition clause in 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? Successive Chief Registrars of Friendly Societies, like every one else, have always understood the definition clause to be an enabling clause, not a restricting one; and they have accordingly for a whole generation willingly registered rules presented to them by Trade Unions, including in their objects and purposes all sorts of things not enumerated in the definition, and not even incidental to any of the purposes therein enumerated. It is not commonly realized—certainly the Six Judges did not realize—how extensive and how varied are the actually existing operations of Trade Unions that are now rendered 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 formation or management of University Extension or Workers' Educational Association classes; the subscription for circulating book-boxes; the provision of public lectures; the establishment of scholarships at Ruskin College, Oxford, or any other College—all of which things are now being done by Trade Unions—are all plainly ultra vires and illegal. The two hundred Trades Councils, which are local federations of different Trade Unions for the purpose of dealing with matters of general interest to workmen, and which take no part in the collective bargaining of any particular Trade Union, are probably equally illegal; though they were in 1876 already a quarter of a century old, and now number nearly a million members. The annual Trade Union Congress itself, now in its fortieth year, comes under the same ban. The active participation which Trade Unions have here and there taken in technical education, and their cooperation with the Local Education Authorities, which has sometimes been found so useful, is certainly ultra vires. One would suppose, strictly speaking, that a similar illegality now attaches 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 believe to contain an exhaustive enumeration of the purposes and objects that Parliament intended to permit Trade Unions to pursue. But here the Six Judges save themselves by holding that these friendly benefits, though not mentioned in the definition clause, are referred to elsewhere in the Act, and may 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, is a plausible view. Strike Benefit, in particular, is plainly incidental to striking, and sick benefit may be held to protect the worker from industrial oppression. 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 actually pay for the funerals of their deceased members' widows and orphan children. This is a mere act of humanity to the deceased member's widow and orphans; and it cannot, 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 conditions of employment. Yet Funeral Benefit is today (as it was in 1876) the one among the so-called friendly benefits that is most universally adopted by Trade Unions. More than a million Trade Unionists thus effect through their societies a humble life insurance. This extensive life insurance business of Trade Unions is in no way covered by the definition in the 1876 Act, even if the sick and unemployment benefits are. If the judgements in the Osborne Case are to be deemed correct, the whole of this life insurance business of Trade Unions (as distinguished from the sick and unemployment benefits) 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 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; and accordingly that the Six Judges have—presumably following quite accurately the narrow technical rules of their profession—put upon the statute a construction which Parliament 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 it has never intentionally departed.

Finally we have the argument of the Six Judges that as the sole 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 conduct of any trade or business, no action of a Parliamentary or political kind is within the definition, or even incidental to anything therein. This view, to put it bluntly, shows an ignorance of Trade Unionism, English industrial history, and the circumstances of 1871–6, which is as remarkable as it is 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 Trade Unions in 1871–6 were looking for the greater part of the regulating of industrial conditions, and for the bulk of the restrictive conditions that they existed to promote. The question of the conditions of employment, it need hardly be said, is not merely one of wages, but one of hours of labour, sanitary conditions, precautions against accident, compensation for injuries, and what not. If the Six Judges had remembered how, in fact, in England, the great majority of industrial relations are regulated, and how the great mass of restrictive conditions are, in fact, imposed 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 engaging in Parliamentary business, supporting or opposing Parliamentary candidates, and helping members of Parliament favourable to regulating and imposing restrictive conditions—actions characteristic of Trade Unions for generations—were not incidental to these legitimate purposes. 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. One Trade Union at least, which no one ever dreamt to be illegal, the United Textile Factory Workers Association, exists exclusively for political action, and has no other functions.⁴ 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 methods of imposing and enforcing the Common Rules which they sought to get adopted in the conditions of employment. 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. 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 artizans were enfranchised; and the payment of Trade Union Members of Parliament was begun as early as 1874, and has 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 authorize 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 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 subsequently described in the present volume (pp. 270-6), had worked with might and main for the rejection of candidates opposed to their claims, and had had a much larger share than political historians usually recognize in the Gladstonian defeat; that two Trade Union members were actually then sitting in the House, one, at least (Mr. Thomas Burt), openly maintained as a salaried representative of his Union, with a salary avowedly fixed on a scale to enable him to sit in Parliament; 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 we are now asked to believe that the latter Bill, which the Trade Union members themselves helped to pass, was designed and intended to prevent Mr. Burt from drawing a salary from the Northumberland Miners' Union, to prohibit the Northumberland Miners' 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, because it will be of historical importance. It is significant as showing how far the Courts of Justice are still out of touch, so far as Trade Unionism is concerned, either with Parliament or with the political economists. Such revolutionary, far-reaching changes as it has made in the law of the land will inevitably produce early legislation. We may summarize more briefly the considerations which should, in our opinion, guide the legislature in its revision of the new law that the judges have made for us. A judicial decision of the House of Lords cannot, of course, be reversed. What Parliament can do, and ought clearly to do without delay, is once more to attempt to express what position it means Trade Unions (and with them must equally be included Employers' Associations) in future to hold.

Can the Trade Union be put back in the position of an unincorporated group of persons; unrecognized as a corporate entity, and free, at any moment, to act as its members for the time being (but in accordance with their own rules) may decide? To us it seems that this is a task almost transcending the omnipotence of Parliament itself. The ingenious legal status which Mr. Frederic Harrison invented for Trade Unionism in 1871 has broken down. Whether or not we grant it incorporation, a Trade Union is and must be, in fact, a corporate body; and with the steadily growing habit of the lawyers of recognizing corporations wherever they exist, it will be almost impossible for Parliament to prevent Trade Unions from being treated as what, in fact, they are. It is because neither the Trade Union leaders nor the Cabinet would face this fact in 1906, after the Taff Vale Judgement, but preferred merely a specific change in the law, that the present situation has arisen. Unless it is now faced, a similar situation will again occur, in some unforeseen way.

But Parliament must clearly settle afresh how the permissible purposes, objects, functions, or methods of each Trade Union are to be defined and ascertained, it only because the Chief Registrar of Friendly Societies must know what rules he may register. The Trade Union may quite fairly be subjected to the ordinary procedure of association prescribed by the Companies Acts. A Trade Union ought to have its Memorandum of Association and its Articles of Association, by which it should define its purposes, and by which, in fairness to the earlier members, it should remain bound; subject to the same possibilities of amendment, with the same sort of protection for dissentient minorities as are allowed to a joint stock company. With regard to Trade Unions already registered, from which no Memorandum of Association and no Articles of Association have hitherto been required, they must clearly be permitted to frame these in whatever terms their present members (perhaps acting by a two-thirds majority) may now determine.

With regard to the limits within which these purposes and methods may be stated, there seems no reason for putting Trade Unions and Employers' Associations in any worse position than a joint stock company. There cannot, clearly, be any derogation from the principle of Freedom of Association, which the Liberal Government adopted in 1871 and the Conservative Government even more ungrudgingly in 1876. If workmen choose to join together for political purposes, are we going to prohibit them from doing so? There seems to be no reason for preventing any persons who propose to form a Trade Union or an Employers' Association from including, in its Memorandum and Articles of Association, whatever objects and purposes, not being unlawful, the subscribing members choose to promote. The fundamental object of the workmen's combination is to put themselves on a par with the individual employer who is a combination in himself. The individual employer, even if he employs ten thousand men, and controls all the means of livelihood in a whole district, is free to pursue all lawful objects. The Trade Union has a claim to be put in a like position. This has, in fact, been the law (so far as any one imagined) down to 1909, and no practical inconvenience has resulted.

This would leave Trade Unions (and with them Employers' Associations), if due provision were made in their Memorandum and Articles of Association, free to join in federal union with other bodies for any purposes they chose (not being in themselves unlawful); free to spend money, in accordance with their own rules, even against the will of a dissentient minority, on promoting or resisting Factory Acts, or any other Parliamentary projects in which their members were interested; free, therefore, to engage and pay solicitors and counsel, Parliamentary agents, and, for that matter, also to retain Members of Parliament to watch over their real or fancied interests.

Here at last we touch what, to the practical politician, seems the only point at stake. This, surely, he says, was what the Osborne Judgement prohibited. One irreverent critic has, indeed, gone so far as to remark that the Law Lords were all 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 can hardly be deemed to be law, as they all differ 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 be 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 the payment of a Member of Parliament who was 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 Parliament, but their subjection, by whomsoever paid, to a pledge-bound party organization. Another judge (Farwell, L.J.) 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 are matters for legislation, not for the sudden invention 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, or a breach of privilege.

Now, it may well be a matter for Trade Union consideration how far it is wise and prudent for a Trade Union to engage in general politics. We have pointed out,⁵ with some elaboration, how dangerous it may become to the 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; or to annoy another section by actively supporting Home Rule for Ireland. 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 discretion 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 cooperating 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, 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 of its members require the most watchful scrutiny of the administration 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 Mr. 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, in order to ensure that what the Trade Union conceives to be its own interests shall be protected, would be to take up a position of extraordinary unfairness which will certainly not prove tenable. When more than a quarter of the whole House of Commons habitually consists not merely of individual employers, but of persons actually drawing salaries or stipends from capitalist corporations of one kind or another—when, in fact, the number of companies of shareholders in railways, banks, insurance companies, breweries, telegraphs, shipbuilding yards, shipping companies, steamship lines, iron and steel works, coal mines and joint stock enterprises of all sorts actually directly 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 organizations to retain a few dozen of the Members whom the constituencies (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 average workman frantic with rage. It is no answer to say that these representatives of capitalist corporations are not expressly paid to sit in Parliament. They are at any rate desired by their employers to sit, and permitted by the law to receive their salaries notwithstanding that they do sit. This has been 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 bill, and to defend the interests of the shareholders by whom he is paid. To say that the workmen's organizations 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 Socialist 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 organization, 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 competing 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 representative with regard to general politics, 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 Government of Canada, no one complained that it was against the dignity of Parliament for him to be thus retained and paid; and so long as he attended faithfully to Canadian business 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.

We may therefore confidently expect that Parliament will (as it did in 1871–6, and again in 1906) rescue the Trade Unions from the narrow views taken by the judges; though exactly what form the new legislation will assume it would be rash to predict. We would fain hope that the opportunity will be taken to put the whole position of Trade Unionism on a satisfactory basis—to do, in fact, for Trade Unions what the Companies Act did for joint stock companies.

It remains for us to indicate in what other respects the position has changed since 1894 when we completed this book. And first as to the extent of the movement. Trade Unionism has continued to increase in rhythmic waves, both in other countries (notably Germany, France, Italy, and Denmark) and in the United Kingdom. Writing at the beginning of 1894, when official statisticians placed Trade Union membership in this country at about a million, we were able, with some confidence, to state that the official figures did not include more than two-thirds of the existing Trade Unionism, and to prove that the total membership at the end of 1892 had certainly exceeded a million and a half. Our statement was presently confirmed. Working upon the data thus supplied, the Labour Department of the Board of Trade extended its investigations, and now records an ascertained Trade Union membership for 1892 of 1,502,358. The statistical work of that Department has come to be so complete, and so admirably performed, that the close coincidence of its figures, after many years' further investigation, with those furnished by our own enquiries, indicates that our exploration of the Trade Union world had been practically exhaustive.

Is Trade Unionism still a growing force? The same statistics supply the answer. For three years after 1892, a year of flood, the aggregate membership slowly ebbed. The total for 1895 was only 1,407,836, though even this was a larger enrolment than existed at any period prior to 1889. But from the year 1895 the total rose steadily for six years, the numbers for 1901 reaching the then unprecedented total of 1,966,761. This high total was not quite maintained during the next four years, but in 1905 the aggregate again began to rise, reaching, by the end of 1907, no less a figure than 2,406,746. This new flood mark, compared with that of 1892, represents a rise in the fifteen years of more than 60 percent, or about four times as much as the increase of population in the same period. In the subsequent three years the total has again receded from the flood mark, though less than it did in 1893–5 and 1902–4;⁶ and there is no doubt that the aggregate Trade Union membership at the end of 1910 considerably exceeded two and a quarter millions, a total unprecedented before 1907.

The distribution of Trade Unionism among the various industries remains much as we described it sixteen years ago (pp. 411-431 of the present volume), with this significant exception that the increase has been greatest in the trades and in the districts which were already most effectively organized. Speaking generally, the strong have become stronger, whilst those who were weak are now even weaker than they were. The following table, compiled from the Labour Department's reports for 1900 and 1905–7, shows how the Trade Union membership in the principal groups of trades has varied since 1892.

Table showing the aggregate Trade Union membership in groups of industries at the end of each of the years 1892–1907 inclusive.⁷

The coal-miners, the cotton operatives, the industries connected with shipbuilding, the engineers and the railway workers have added considerably to their membership. The building trades have had a more checkered history, but they show an aggregate increase. On the other hand, Trade Unionism has gone back among the agricultural labourers, the seamen and fishermen, the clothing trades and the general mass of unskilled and unspecialized labour. There has been a steady, if somewhat slow, increase of Trade Unionism among women workers. The total woman membership has, indeed, doubled, having increased from about 100,000 in 1892 to 201,709 in 1907. But this increase in voluntary organization among women has taken place principally in the textile trades, which still account for 85 percent of women Trade Unionists—the textile trades, be it remembered, being those in which women's labour is most effectively regulated by law. Outside the textile trades, the Trade Union membership among women amounted in 1907 only to 29,589, a figure which, unsatisfactory as it is, represents more than twice the women Trade Unionists than could have been numbered in 1892, or even in 1900. The long-continued patient work of the Women's Trade Union League is at last having its effect.⁸

The geographical distribution of Trade Union membership remains, we believe, practically as it was in 1892, except that the rural districts are more than ever destitute, and the great industrial centres better provided than before. If we take the twenty most important societies of 1892, representing the principal trades, we find that all of them still appear in the table for 1907, and that all but three of them have added to their funds and increased their membership in the fifteen years. In the tailoring and boot and shoemaking trades, Trade Union membership has declined, and most of the widely extended unions of seamen, navvies, coal-porters, dock, agricultural and other labourers have shown themselves unstable. To this result the Gasworkers and General Labourers' Union (established 1889) has proved a conspicuous exception, its membership standing in 1907 at 38,249, as compared with 36,000 in 1892; and four or five other labourers' unions had in 1907 over 13,000 members apiece.

Even more satisfactory is the financial position. The Labour Department's statistics are here confined to the 100 principal unions, comprising nearly two-thirds of the total membership. Since 1892 the total accumulated funds of these societies have more than trebled, the balance in hand at the end of 1907 amounting to no less than £5,637,661, a sum quite without precedent in the history of labour in this or any other country. Even after the serious drains of unemployment, sickness, and dispute benefits in the years 1908–9, the funds of these 100 societies exceeded five millions sterling, and the whole Trade Union funds probably exceeded six millions.⁹

The internal organization of the great Trade Unions has, we believe, steadily improved, though more slowly than we could have wished. Of the two leading types of the Trade Union Civil Service that we described—the General Secretary and the Trade Official—both have increased in number and, we think, on the whole, in efficiency. On the other hand, the third type, the Labour Organizer, with his more equivocal qualities, fills, for the moment, a much smaller place in the movement. The routine organization of the great national societies, whose bookkeeping is necessarily complicated and whose financial transactions are large, now works usually with smoothness and accuracy. Trade Union officials, if not abler than the great leaders of a previous generation, are gradually becoming better educated, and some of them strive most laudably to fit themselves by study for their responsible positions. On the other hand, their work grows steadily more difficult. The industrial complications and economic problems with which they have to cope demand, year by year, a wider outlook on the world, a greater knowledge of the methods of industrial organization and a firmer grasp of economic principles. The problem of how, in each trade, to adjust all the technical conditions of the contract of service, so as to combine the utmost possible productivity, and the greatest possible stimulus to improvement in processes, with the maintenance and progressive improvement of the manual worker's Standard of Life, is one of the most difficult ever set to man. It is doing no injustice to the employers to say that, occupied only with one side of this problem, they have not, up to the present, contributed much to its solution—even the best of them regarding it as no part of their business to rack their brains to discover how to maintain or raise the workmen's Standard of Life. Little assistance has been given from outside. The workmen have necessarily to puzzle out the answer for themselves. That they should, like the employers, have regarded primarily their own side of the problem was only to have been expected. The result is that, except in a few trades, the problem has—in 1911 as in 1892—not yet been solved—has indeed, as yet, scarcely been seriously grappled with—either by masters or by men. Instead of complaining that the Trade Union leaders are not intellectually equal to their huge task, we might with more reason wonder why the great captains of industry give the matter so little study, and devote such a small part of their brains to its solution. And when we consider how scanty are the workmen's opportunities for that wide economic training which even employers seldom possess, we may with more justification congratulate ourselves that the English Trade Union leaders should have done as well as they have. At the same time we cannot but regret that the competitive examinations by which the cotton operatives have, for a whole generation, chosen their officials, have not spread to other trades; that there is not even a qualifying examination for Trade Union officials in such subjects as Trade Union history, the forms and methods of industrial organization in other trades and other countries than their own, and the economics of the wage-contract; and that (in spite of the establishment of Ruskin College at Oxford, to which Trade Unions now send promising young men by Scholarships) so few of the young workmen find themselves able to give any really effective study to these subjects. The Trade Unions have, moreover, not yet shaken off their reluctance, alluded to in this volume as well as in Industrial Democracy, to make appropriate use, in their difficult task, of skilled legal, actuarial, and Parliamentary experts; or even to engage a sufficiently expensive official staff of their own. In particular the Engineers, Boilermakers,