few individuals on behalf of the society and the members generally. The English law of trusts affords peculiar facilities for such an arrangement. Land and buildings, stocks and shares and money, may be vested in a small number of trustees, who as legal owners can deal with such property, take proceedings for its recovery and protection, and dispose of it to strangers, while the rights of the members in such property are a form of legally recognized, "equitable," beneficial ownership. Such equitable ownership of the members, however, is not a pure co-ownership. It is a co-ownership for the purposes and subject to the rules of the society, and the member's right is not a direct right to a share, but a right to participate in the benefits and control of the property as "social property." "7 The member of a club, for instance, is not entitled as an ordinary co-owner would be to have the club property partitioned; he is only entitled to use it as club property.8

This possibility of subjecting property to a common purpose is restricted by the rule against perpetuities. Thus a bequest of property to a society in terms which provided that it should permanently, or for a period longer than the rule allows, be preserved intact as capital, would, unless the purposes of the society were charitable, be invalid. But there seems to be nothing objectionable in the holding of property by a society as an endowment in fact, so long as the society by its rules retains power at any time to deal with the capital at its pleasure.9

4. The application of the foregoing principles to the liability of societies, and their members, and of the social property.

On general principles the liability which persons incur for the acts of their agents is a direct liability of every such person, and is unlimited in amount, a rule well illustrated by the common law as to partnership. But in the case of associations for purposes other than those of individual profit, the principle is established, at any rate as regards contractual liabilities, that the authority conferred by the members on the agents of the society is not an

7 It seems convenient to use the phrase "social property" as meaning what is technically property held upon trust for the members of the society for the purposes and subject to the rules of the society, and is in effect the property of the society. 8 In re St. James's Club, 2 De G. M. & G. *383 (1852).

See Carne v. Long, 2 De G. F. & J. *75 (1860); Cocks . Manners, L. R. 12 Eq. 574 (1871); In re Clarke, [1901] 2 Ch. 110; In re Swain, 24 T. L. R. 882 (1908).

authority to pledge the credit of each member generally, but only to the extent of the common property, and that persons dealing with the officers of such associations must be taken to know that they can look only to such common property for payment.10 In the case of liability for wrong, it seems that no attempt has ever been made to establish any wider liability of the members." On the other hand, it is clear that within the ordinary limits of the liability of a principal for the acts of his agent, the social property will be liable whether for contract or wrong, through the medium of proceedings brought by the stranger against the members generally in what is called a "representative" action, a few prominent members being selected to represent all; or against the trustees in whom the common property is vested; or by proceedings brought by an officer who has been compelled to pay damages to a stranger, for an indemnity against the members and trustees. In this way the social property is treated in effect as being what it is in truth, — the property of a body distinct from its members. Further, it would seem that in practice and probably in principle the social property is not subject to the private liabilities of the members; e. g., my share in the property of my club cannot be made available for payment of my private groceries bill.

I now proceed to deal specifically with the position of trade unions.

First, a trade union is in substance a voluntary society. The legislature in 1871 was unwilling to incorporate trade unions, and then as now trade unionists were almost unanimously opposed to

10 In re St. James's Club, supra; Flemyng v. Hector, 2 M. & W. 172 (1836); Wise. Perpetual Trustee Co., [1903] A. C. 139.

11 The committee of a political association acting within the general scope of their authority publish a pamphlet which contains a libel on A. Can it be supposed that A. could hold individual members liable without limit for payment of the damages which he may recover? If it is argued that the rules of the association which expressly or impliedly limit the liability of members to payment of their subscriptions are res inter alios acta which cannot limit A.'s rights, the answer is that the relation between the members and their executive is not like that of master and servant in which the master at every moment retains the power of controlling the servant's actions. There seems to be nothing to prevent the courts from holding that the agency in such a case is sui generis, analogous to the position of an independent contractor in involving no personal liability of the members, but differing from it in that the members have authorized the social property to be employed for certain purposes and have thereby rendered it liable for wrongs done in the course of effecting those purposes.

incorporation. This unwillingness was due largely to fear, on the one hand that incorporation would confer on them far larger powers than they would possess as voluntary societies, on the other that it would subject them to liabilities from which as voluntary societies they would be free. Both fears were largely based on a failure to appreciate the fact that the principles of contract, agency, and trust in reality place a voluntary society in a position which for practical purposes, both as regards powers and liabilities, is very little different from that of a corporation. It was this mistaken belief which caused trade unionists to regard the decision in the Taff Vale case 12 as an injustice, on the ground that it placed trade unions under liabilities from which the legislature by refusing incorporation had left them free. In substance that decision was nothing more than an application to trade unions of general principles which are applicable to all voluntary societies, and which might well be applied to such bodies as the Tariff Reform League or the Gladstone League. 13

Secondly, trade unions before 1871 were commonly believed to be, and in many or most cases really were, illegal societies, on the ground that their purposes were in restraint of trade. The Trade Union Act of 1871 assumed that a trade union must be an illegal society in this sense by including in the statutory definition only combinations which at common law would be illegal on the ground of restraint of trade. As a matter of fact this belief in the necessary illegality of trade unions was also erroneous. The amending Act of 1876 removed common-law illegality from the statutory definition, and a fair number of recent cases, notably the second action brought by Mr. Osborne against the Amalgamated Society of Railway Servants, 14 have shown that a very efficient trade union, fulfilling all the purposes for which trade unions exist, may be formed without incurring the taint of commonlaw illegality. The precise effect of the illegality of trade unions at common law, where it existed, was never determined. The following seems to be as complete a statement as is possible.

12 Taff Vale Ry. Co. v. Amalgamated Society of Railway Servants, [1901] A. C. 426. 13 The Times of March 6, 1912, publishes an opinion given by Sir Edward Clarke, K. C., to the effect that it would be possible by means of a representative action to render the funds of the Women's Social and Political Union liable for damage to property committed on behalf of that society.

14 Osborne v. Amalgamated Society of Railway Servants (No. 2), [1911] 1 Ch. 540.

At any rate since the repeal in 1824 of the older statutes against combinations, no person has ever been punished for mere membership of a trade union. The prosecution and punishment of trade unionists have always been for particular acts done in combination, in most cases amounting to offenses against statutes then in force, in a few doubtful cases offenses against the common law of conspiracy. In spite of some older dicta to the contrary, it seems now certain that mere membership of a trade union was never at common law a punishable offense.15

It seems clear that not only contracts directly in restraint of trade, e. g., agreements not to work, but all contracts sufficiently closely connected with the illegal purposes of a trade union, e. g., agreements to pay subscriptions to a union whose purposes were illegal, or agreements to provide benefits for members of such a union, would be void; and this would go far to make all the rules of such a trade union void and legally inoperative.

There seem to be no cases before 1871 of actions brought by or against trade unions in respect of the acts of the officers of the union, and it is a matter of mere speculation whether the illegality of the purposes of the union would have been a bar to such actions on either side.

The disabilities in respect of property involved in the illegal character of trade unions are also somewhat uncertain. It is substantially true that till shortly before 1871 a member of a trade union who misappropriated trade-union property could not be made criminally liable. But this was not primarily due to the illegality of a trade union, but to the common-law rule that the misappropriation of common property by a co-owner was not theft. This rule imposed a disability which trade unions shared with such respectable associations as business partnerships or the Young Men's Christian Association. Before this disability was removed a special procedure to prosecute for misappropriation was conferred by statute on friendly societies, and two decisions 16 laid it down that the illegality of the purposes of a trade union prevented it from using this procedure. But as soon as the Larceny

15 Dicta of Crompton, J., in Hilton v. Eckersley, 6 E. & B. 47 (1855), dissented from in Mogul S. S. Co. v. McGregor, [1892] A. C. 25, 47, 58.

16 Hornby v. Close, L. R. 2 Q. B. 153 (1867); Farrer v. Close, L. R. 4 Q. B. 602 (1869).

Act of 1868 had removed the common-law rule as to co-owners, it was held (even before the passing of the Act of 1871) that a trade union could prosecute for misappropriation by one of its members.17

As to the civil position of trade-union property, it would seem that the illegality of the purposes of a trade union would make void any trust of property for those purposes. But it does not follow that such property was wholly at the mercy of the person who for the time being held it. On the contrary, it is submitted that such a person would hold it upon a resulting trust. He would hold it for the benefit of those whose contributions it represented, i. e., the members individually, so that each individual member would be entitled to call for a return of his contribution, so far as it has not been employed for trade-union purposes.18 This would have put it in the power of dissentients to embarrass a union by taking proceedings for the division of the property, but would not have left the property destitute of all legal protection.

The Trade Union Act of 1871 dealt with the status of trade unions in the following way:

It made clear that the illegality of the purposes of a trade union should not be such as to involve any liability to punishment of members.19 Agreements and trusts for trade-union purposes were declared not to be void, and thus the agreements embodied in the rules of a trade union, and the trusts upon which property was held for trade-union purposes, became valid agreements and trusts, and except so far as the contrary was provided in the next section, with regard to agreements, all such agreements and trusts would be entitled to legal protection and direct enforcement in the courts.20 It was declared that a number of specified agreements should not by reason of the passing of the Act become directly enforceable.21

17 Regina v. Blackburn, 11 Cox C. C. 157 (1868).

18 Cf. Regina v. Tankard, 17 Cox C. C. 719, [1894] 1 Q. B. 548; In re Printers' etc. Society, [1899] 2 Ch. 184.

19 34 & 35 Vict. c. 31, § 2: "The purposes of any trade union shall not, by reason merely that they are in restraint of trade be deemed to be unlawful, so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise."

20 Id., § 3: "The purposes of any trade union shall not, by reason merely that they are in restraint of trade, be unlawful so as to render void or voidable any agreement or trust."

1 Id., § 4: "Nothing in this Act shall enable any court to entertain any legal proceed