Preference for Collective Action

This preference rests on two grounds.

The one is the belief that whenever the interest of the wage-earners comes into competition with the interest of capitalists, and especially when a bargain has been struck as to the rate of wages payable by employers to workmen, an individual artisan or labourer does not bargain on fair terms; he seems powerless against a wealthy manufacturer, and still more so against a large company possessed of wealth, which, as compared with his own resources, may be regarded as unlimited. The sale of labour, in short, is felt to be unlike the sale of goods. A shopkeeper can keep back his wares until the market rises, whilst a factory hand, if he refuses low wages, runs the risk of pauperism or of starvation. The other ground is the sentiment or conviction which is entertained by every collectivist, that an individual probably does not know his own interest, and certainly does not know the interest of the class to which he belongs, as well as does the trade union, or ultimately the State of which he is a member. This belief that associations or communities of any kind are organisms, which may be wiser as well as stronger than the persons of whom they are composed, affects a man’s whole estimate of the merit of combined as compared with individual action, and underlies much modern legislation.

As illustrations of this preference for collective action take the Combination Act of 1875 and the modern Arbitration Acts.

The Combination Act, 1875 (Conspiracy and Protection of Property Act, 1875).—This statute must be read in connection with the Trade Union Acts, 1871-1876. All these Acts taken together place trade combinations of every kind, whether they take the form of strikes or of trade unions, in a position totally different from that which they occupied under the Benthamite legislation of 1825. From this point of view the following features of the existing combination law, which may well be described as the compromise of 1875, deserve special consideration.

First. A combination to do an act in furtherance of a trade dispute between employers and workmen is made, so to speak, privileged. For it is enacted that “an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime.” Hence a distinction is made between trade combinations and other combinations, in virtue of which it is not a criminal conspiracy if in furtherance of a trade dispute a combination is made to do a particular thing (e.g. to break a contract), which would certainly not in general be a crime if done by a person acting alone, whilst a combination to do the same thing (viz. break a contract) in furtherance of some other object may be a criminal conspiracy. The effect, in short, of this enactment is that a combination among workmen to break a contract with their employer, e.g. to leave his service without due notice, with a view to compelling him to grant a rise in wages, is not a crime, whilst a combination by tenants to break a contract by refusing to pay rent due to their landlord, with a view to compelling him to lower their rents, is a crime.

Secondly. Something like a legal sanction is given to conduct which is popularly known as picketing in connection with a trade dispute, as long as such conduct does not partake of intimidation or violence.

Thirdly. A trade union—which under the legislation of 1825 was more or less an unlawful society, on the simple ground that its object was the restraint of trade—is freed from this character of necessary illegality. Hence a trade union is completely protected as regards its funds, and can no longer be defrauded with impunity by its officials. Thus too trade unions, though not corporate bodies, enjoy the protection of the law. Violation of the rules of a trade union by one of its members, however, is not allowed to give rise to a right of action for breach of contract.

Fourthly. Certain kinds of intimidation likely to be used by trade unions, or by workmen on strike, in order to interfere with the free action either of other workmen or of employers, are made criminal—that is to say, are forbidden under severe penalties.

The combination law of 1875 is, on the face of it, a compromise between the desire of collectivists to promote combined bargaining and the conviction of individualists that every man ought, as long as he does not distinctly invade the rights of his neighbours, to enjoy complete contractual freedom. But the compromise marks a distinct change in the spirit of English legislation, and, though it contains some severe provisions for the protection of individual freedom, is, as compared with the combination law of the past, highly favourable to trade combinations.

The combination law of 1875 is the direct antithesis to the combination law of 1800. The former favours as much as the latter condemns combinations among either workmen or employers. The law of 1875 treats a strike as a perfectly lawful proceeding, and gives to trade unions a recognised, though somewhat singular position; whilst the law of 1800 in effect treated a strike as a crime, and a trade union as little better than a permanent conspiracy.

The combination law of 1875 differs, again, in its whole spirit from the law of 1825. For the law of 1875 contemplates and facilitates combined bargaining on the part both of men and of masters; whilst the Benthamite legislation of 1825 was intended to establish free trade in labour, and allowed, or tolerated, trade combinations, only in so far as they were part of and conducive to such freedom of trade. The law of 1875 is primarily designed to extend, as regards bargaining between masters and workmen, the right of combination, and is only secondarily concerned with protecting the freedom of individuals in the sale or purchase of labour; whilst the law of 1825 was primarily concerned with protecting the contractual freedom of each individual; whether as a seller or purchaser of labour, and was only secondarily concerned with extending the right of combination, so far as seemed necessary for establishing genuine free trade in labour.

The combination law of 1875 has, indeed, been thought to go so far in the way of extending the right of association, that competent critics have doubted whether it sufficiently secures the contractual freedom either of an individual workman or of an individual master. This doubt has, it is true, been to a great extent removed by cases decided during recent years, which establish, first, that combinations having reference to a trade dispute, though not indictable as conspiracies, may nevertheless expose the persons who take part in them to civil liability for damages thereby done to individuals; and next, that trade unions can be made responsible for wrongs done by their agents. One thing is at any rate clear. The authors of the compromise of 1875, and the public opinion by which that compromise was sanctioned, were very far from accepting the Benthamite ideal of free trade in labour.

The story of the combination law from 1800 to the present day illustrates with such singular accuracy the relation between law and opinion, that it is well at this point to cast a glance back over this tangled story, which has necessarily been told bit by bit, and survey it as a whole.

The combination law of 1800 represents the panic-stricken but paternal toryism of that date.

The legislation of 1824-1825, even in its singular fluctuation, corresponds with and is guided by the Benthamite ideal of free trade in labour.

The compromise of 1875 represents in the main the combined influence of democracy and collectivism—an influence, however, which was still balanced or counteracted by ideas belonging to individualistic liberalism.

The interpretation of that compromise by the Courts was necessitated by the ambiguity of the law, and represents the belief which now, as heretofore, has great weight with Englishmen, that individual liberty must be held sacred, and that this liberty is exposed to great peril by an unrestricted right of combination. If we ask what were the causes which after 1875 revived the sense of this peril, they may all be summed up in the existence, or rather the creation, of the one word, “boycott.” The term, which has obtained a world-wide acceptance, came into being during the autumn of 1880; it spread far and wide, because it supplied a new name for an old disease, which had reappeared under a new form. It bore witness to the pressing danger that freedom of combination might, if unrestrained, give a death-blow to liberty.

The present state of the law, it is sometimes said, is confused, but this very confusion, in so far as it really exists, corresponds with and illustrates a confused state of opinion. We all of us in England still fancy, at least, that we believe in the blessings of freedom, yet, to quote an expression which has become proverbial, “to-day we are all of us socialists.” The confusion reaches much deeper than a mere opposition between the beliefs of different classes. Let each man, according to the advice of the preachers, look within. He will find that inconsistent social theories are battling in his own mind for victory. Lord Bramwell, the most convinced of individualists, became before his death an impressive and interesting embodiment of the beliefs of a past age; yet Lord Bramwell himself writes to a friend, “I am something of a socialist.”

The combination law, from whatever point of view and at whatever date it be examined, affords the clearest confirmation of the doctrine that in modern England law is the reflection of public opinion.

The Modern Arbitration Acts.—These enactments begin with the Arbitration Act, 1867, and terminate for the moment with the Conciliation Act, 1896. Earlier enactments known as Arbitration Acts provided summary or expeditious modes for the settlement of definite disputes between a master and his workmen, similar in character to the differences connected with trade or commerce which are determined by the ordinary law courts. The modern Conciliation Acts, as represented by the statute of 1896, aim at a new object and rest upon new ideas. Their object is not merely the settlement of definite disputes which have arisen between employers and their workmen, but also the prevention of such disputes in the future, and they seek to achieve this end through the moral influence of the State brought into play by the action of the Government. The ideas on which these enactments are based obviously tend in the direction of collectivism. True it is that, as the law now stands, governmental intervention in labour disputes is restricted within narrow limits. But the possibility of such intervention is sufficient to bring the full force of public opinion—an opinion which is never impartial—to bear upon the relation in a given case between a master and his workmen; the sphere, moreover, of the State’s activity may any day receive extension. We have reached a merely transitory stage in the effort of the State to act as arbitrator. The attempt, if not given up, must be carried out to its logical conclusion, and assume the shape of that compulsory arbitration which is a mere euphemism for the regulation of labour by the State, acting probably through the Courts.