Appendix, As to Similarities.

I. The combination law of France, no less than that of England, passed during the last century through three stages; these three stages of development in each country roughly correspond in character and in sequence, though not in date.

First Stage—1800-1864.—During this period trade combinations, whether temporary or permanent, either of men or of masters, were under the law of France unlawful, and the persons taking part in them were liable to punishment; a strike was a crime, a trade union (under which term we may include a combination of employers) was an unlawful association. (See Pic, pp. 185, 186, and 211-229; Hauriou, 5th ed. pp. 100, 101, and compare Hauriou, 3rd ed. pp. 155-158.) This was the effect of both revolutionary and Napoleonic legislation. In 1789 the National Assembly had dissolved all trade guilds, corporations, or unions. The Loi Chapelier, 14 juin 1791, imposed penalties on persons taking part—to use English expressions—in strikes or lock-outs, or becoming members of trade unions (see Pic, pp. 185, 186, 213). The Code Pénal, arts. 291, 292, prohibited all societies or associations of more than twenty persons (except mercantile partnerships) which were not authorised by the Government, and articles 414-416 punished with severe penalties combinations (coalitions) either of masters or of workmen; and the Code Pénal, though it did not come into force till 1810, more or less codified or represented the spirit of earlier revolutionary legislation. The combination law of France, moreover, was till 1849 not even nominally equal as between men and masters. It pressed heavily on combinations of workmen, and lightly on combinations of employers (see Code Pénal, arts. 414-416). In practice, a law which was felt to be oppressive by artisans was looked upon with favour by their employers. The law remained in substance unchanged till 1864; its severity as against workmen was increased during the reign of Louis Philippe (loi 10 avril 1834), and the law, though in 1849 it was so amended that combinations of workmen were placed nominally in exactly the same position as combinations of masters, still pressed with far greater severity on the employed than on employers.

The French combination law then from 1800 to 1864 bore, as regards its practical effect, a strong resemblance to the English combination law from 1800 to 1824 (see pp. 95-102 ante). Under French law it was impossible, under English law it was, to say the least, extremely difficult, for any workman to take part in a strike or to join a trade union without committing a crime. In France a trade union was an unlawful, in England it was at best a nonlawful association. In each country the combination law which prevailed there in the corresponding stage of its development originated in fact in legislation earlier than 1800. In each country enactments directly applying to combinations, whether of masters or of workmen, were supplemented by other parts of the law. Behind the combination law of France lay the extensive power conferred upon the Government (Code Pénal, arts. 291, 292) of refusing to authorise, or putting an end to the existence of whole classes of associations among which trade unions appear to have been included. Behind the English Combination Act of 1800 lay the law of conspiracy.

Second Stage—1864-1884.—The law of 1864 (loi 25 mai 1864) so amended the Code Pénal, arts. 414-416, as to make strikes lawful proceedings. The general effect of the law, with the details whereof we need not trouble ourselves, appears to have been this:—Temporary combinations (coalitions) for the purpose of raising or lowering wages, or, as we should say, strikes or lock-outs, ceased to be punishable. On the other hand, various unlawful acts, such as acts of violence, assaults, menaces, or fraudulent manœuvres, when done by any one for the purpose of maintaining a strike or lock-out, or generally interfering with the free exercise of a man’s business or work (exercice de l’industrie ou du travail) were made severely punishable, and the punishment was increased if these offences, e.g. an assault, were the result of a combination (plan concerté) (see Code Pénal, amended articles 414, 415), and the new crime was created of combining to interfere with the free exercise of a man’s business or work by the imposition of fines, prohibitions, and the like. No doubt the new crime might be committed as well by masters as by men, but it is obvious that the general effect of the amended law was to punish severely every unlawful act, and a good number of acts not in themselves unlawful, which interfered with free trade in labour. When we remember that a trade union still remained an unlawful society, the general result of the legislation of 1864 must have been that whilst a strike was no longer in itself an unlawful proceeding, it remained hardly possible to use any of the means which render a strike effective without a breach of the law, or, in other words, without the commission of a crime (Code Pénal, arts. 414-416, as amended by loi 25 mai 1864).

The general likeness between the French combination law of 1864 to 1884 and the English combination law of 1825 to 1875 (see pp. 191-201 ante) is patent. In each country the law was intended to establish free trade in labour. It allowed to masters and to men such an amount of combined action among themselves as the legislature deemed necessary for ensuring such freedom of trade. It punished severely various unlawful acts, e.g. assaults, menaces, etc., when used, speaking broadly, for the purpose of interfering with an individual’s right to carry on his business in such manner or to work on such terms as he pleased. It in effect limited the right of combination whenever it interfered with freedom of trade in labour. It was in each country a law which, though it did not make strikes unlawful, made it an extremely difficult matter to carry out an effective strike without the commission of crime. The likeness between the combination law of France and of England during the second stage of its development must indeed not be overpressed. No comparison can possibly be fair which does not take into account, among other considerations, the far greater power always possessed by a French than by an English Government. The authority of the Executive in France is even now not adequately realised by most Englishmen. All that can safely be asserted is that the French legislation of 1864 gave expression to ideas very similar to the beliefs which underlay the English Combination Act of 1825. It is at least a noticeable coincidence that Napoleon III., who in 1860, under the influence of Cobden, promoted free trade in goods, did, in fact, by the legislation of 1864, try to promote free trade in labour as understood by political economists.

Third Stage—1884 to the end of the nineteenth century.—The law of 1884 (loi du 21 mars 1884) includes much of what Englishmen understand by the combination law, but deals with a wider subject than the right of combination as exercised by employers or by workmen. Its object is to legalise all professional associations (syndicats professionnels)—that is, societies of whatever kind (not being trade partnerships, which have always been fully legal) for the promotion or the protection of the interest of any profession or trade (loi du 21 mars 1884, art. 3). It repeals, as regards all such professional associations, all earlier laws, e.g. Code Pénal, arts. 291-294, and 416, which might restrict their freedom of action. With the wider aspects of the law we are not concerned; what we need chiefly note is that trade unions, whether of masters or of men, come within the class of professional associations, and therefore profit by the law of 1884. The French combination law of to-day would appear, as far as an English lawyer can judge, to be much as follows:—Strikes have been since 1864 in theory, and are now in practice, if properly conducted, entirely lawful proceedings. Trade unions are, like other professional associations (syndicats professionnels), lawful societies. The Code Pénal still punishes severely assaults, menaces, and the like, used as means for interfering with a man’s right to carry on his business or to work as he sees fit. The law, therefore, imposes heavy punishment upon conduct, which is illegal in itself, when used as a means for rendering a strike effective; but, otherwise, combinations between masters on the one side, or men on the other, for regulating the terms of the labour contract, are lawful, and a strike may be carried on without any necessity for breaking the law.

The likeness between the combination law of France since 1884 and the combination law of England since 1875 at once arrests attention. In France and in England the law is intended to allow to employers and employed as unlimited a right of combination as is compatible with the respect due to the freedom of individuals, whether masters or workmen. In each country strikes and lock-outs are lawful; in each country a trade union is a lawful society; in neither country does a trade union need for its legal existence the sanction of the Government. In each country masters and workmen stand, as regards their right to combine, on a complete equality; in each country the law allows combinations for the purpose of regulating the terms of the labour contract. Both in France and in England the law protects the liberty of individuals by imposing special penalties on any man guilty of certain unlawful acts, e.g. assault, intimidation, and the like, for the purpose of interfering with his neighbour’s freedom of action; in other words, the law of each country specially punishes acts of coercion likely to be committed in furtherance of a strike. (Compare Code Pénal, arts. 414, 415, and the Conspiracy and Protection of Property Act, 1875, s. 7.) The practical similarity between the combination law of each country is increased if we take into account the abolition, under modern French law, of restraints on the liberty of the press and on the right of public meeting which used to hamper attempts to carry out a strike, and if we at the same time remember that the celebrated law on associations (loi du 1er juillet 1901) has very widely extended the right of association. We are naturally then led to the conclusion that the combination law of France and the combination law of England not only bear a great similarity to one another, but have at last reached exactly the same goal. This idea does not entirely harmonise with facts, but does contain a large element of truth.

II. In France as in England judicial legislation, or judicial interpretation which comes very near to legislation, modifies the combination law.

French Courts, it is true, are far less bound than our English tribunals by precedent, and different Courts will in France occasionally on one and the same question of principle pronounce inconsistent decisions. Still, French judges must from the nature of things interpret the law of 21st March 1884 in accordance with principle, and interpret it so as if possible to respect at once the rights of trade unions (syndicats) and the rights of individual masters or workmen. That they have tried to do this is manifest. It is also clear that they have had to deal with just the kind of questions which have perplexed our judges. They have been or may be called upon, to consider the questions whether a trade union can lawfully put on a black list, or boycott (mettre à l’index), a workman because he is not a member of a union; or, on the other hand, whether a master can lawfully discharge a workman because he is a member of a union? And French Courts apparently would in such cases at any rate protect individual freedom, and hold the action both of the union and of the employer to be unlawful, because it, in fact, interfered with the right of the workman to stand apart from, or to belong to, a trade union as he thought fit. Such decisions as these would greatly resemble in spirit some recent judgments pronounced by our Courts. What further appears to be clearly established in France is that in such cases the person aggrieved has a right of action for damages against the wrong-doer. (See Pic, pp. 232-235.)

III. Both in France and in England a severe combination law did not at any time fully attain its object.

Even during the first stage of the French combination law (1800-1864) trade combinations, certainly among employers, and in some cases among workmen, grew up and existed not only by the toleration, but with the approval of the Government. The administrative power of the Executive could do a good deal to mitigate the severity of the combination law, and it would rather seem that, at any rate during the second stage of the combination law (1864-1884), workmen, no less than employers, did in fact exercise the power of association with considerable freedom. To what extent this freedom may have been used, no English lawyer can pronounce with certainty. In England, at any rate, the severity of the combination law, even between 1800 and 1824-25, did not suppress the combined action of workmen. The Combination Act of 1825 certainly was not inconsistent with the existence both of trade unions and of strikes.