As to Differences.

I. At the beginning of the nineteenth century the combination law of France and the combination law of England, though they aimed at the same object, namely, the suppression of trade unions and strikes, rested upon essentially different principles.

The French combination law as it then existed was the work of men who were both lawyers and individualists. As lawyers they inherited from the traditions of the ancien régime the belief (characteristic of French law) that the right of association was dangerous to and ought to be strictly controlled by the authority of the state (Trouillot and Chapsal, Du Contrat d’Association, pp. 5-11). As individualists they were thoroughly imbued with the conviction, handed down to them by Turgot and other philosophic reformers, that corporations and, above all, trade guilds, and the like bodies, were hostile to the freedom and the interests of individuals, and that whilst the rights of individual citizens and the rights of the State deserve recognition, no account at all ought to be taken of the supposed interest or rights of corporate bodies (Pic, pp. 184-186, 211-213; Hauriou, pp. 100, 101). This conviction held by the lawyers who, either as revolutionary statesmen or as Napoleonic officials, remodelled the law of France, is well expressed in these sentences in the Report of Chapelier in favour of the law which bears his name.

“Il doit sans doute être permis à tous les citoyens de s’assembler; mais il ne doit pas être permis aux citoyens de certaines professions de s’assembler pour leurs prétendus intérêts communs. Il n’y a plus de corporation dans l’Etat. Il n’y a plus que l’intérêt particulier de chaque individu et l’intérêt général. Il n’est permis à personne d’inspirer aux citoyens un intérêt intermédiaire, de les séparer de la chose publique par un esprit de corporation” (Pic, Traité Elémentaire de Législation, p. 212).

Hence, though the French combination law in its earliest stage treated strikes and trade unions with special severity, it nevertheless placed associations, whether temporary or permanent, either of masters or of workmen, in theory at least on the same footing as other professional societies (syndicats professionnels). All such societies were looked upon with jealousy or disapproval as intended to promote the interest of particular professions, and, therefore, presumably hostile to the interest of the public. The combination law of France, in short, though it no doubt pressed with special heaviness on such societies as trade unions, was, after all, inspired by a conviction that it was necessary to place strict limits on the general right of association. It thoroughly harmonised with French opinion of the day and with the general spirit of French law.

The authors of the Combination Act of 1800 were Tories. They were in no special sense individualists, but they accepted the ideas of the common law. From the common law they learned that men might lawfully combine together for the attainment of any object which was neither unlawful nor opposed to public interest; but from the common law they also learned that any combination in restraint of trade was opposed to the public interest, and might possibly make any man who took part in it a conspirator. They perceived, further, truly enough that a strike or a trade union did aim at the restraint of trade. They therefore, while by no means denying the common law right of Englishmen to combine together for any lawful purpose, passed an Act quite in harmony with the legislative opinion of the day, which aimed at the suppression of strikes and trade unions (see pp. 95-102 ante).

Hence, though the French combination law and the English combination law were at the early part of the nineteenth century equally severe, yet there has always been this difference between them. The French combination law has always rested on the general principle, till quite recently admitted by almost all Frenchmen, that the right of association ought to be very strictly controlled. Thus a trade union was treated as one of that large number of professional associations on all of which the Government ought to keep a watchful eye. The French combination law was severe, but it was hardly exceptional legislation. The English Combination Act of 1800, and to a certain extent the Combination Act of 1825, behind which (as already noted) stood the law of conspiracy, were specimens of exceptional legislation; for they rested on the idea that while all men ought in general to enjoy what one may term the right of association, yet that combinations of workmen and, in theory, of masters, since they tended towards the restraint of trade, ought to be the object of special watchfulness on the part of the Government, and generally to be the subject of special and peculiar legislation. Thus the combination law of England was opposed to the general spirit of the common law, and had from the first the defects which inevitably attach to all law-making of an exceptional character.

II. Till 1884 the existence of trade unions lay in France at the mercy of the Government (see Code Pénal, arts. 292-294). In England, even in 1800, the members of trade unions might be liable to punishment under the Combination Act of 1800, or under the law of conspiracy, and a trade union which was certainly a non-lawful, was possibly an unlawful society, but it could not be dissolved at the will of the Government. English workmen, like all other Englishmen, fell under the rule of law, not of arbitrary power.

III. The existing combination law of France differs in character from the existing combination law of England.

A comparison, no doubt, of the French law of 1884 (loi 21 mars 1884) with the Combination Act of 1875 and the Trade Union Acts 1871 and 1876 (see pp. 267-273 ante) suggests, as already pointed out, that the combination laws of France and of England are now of a fundamentally similar character. But this idea is erroneous, and leads us to overlook an essential difference which may be thus stated:—The right of association has in France under the law of 1884 and the law of 1901, as well as under other laws, been vastly extended. By these changes trade combinations, whether in the shape of strikes or trade unions, have been made thoroughly legal; they have profited and were intended to profit by changes in the general law of the land which have favoured every kind of combined action. But trade combinations are not in France regulated by exceptional legislation. A trade union is a lawful society, but it is so in virtue not of any special legislation or of any special privilege, but because it falls within the body of professional associations, the position whereof is regulated by the loi du 21 mars 1884. In England, on the other hand, though as in France a strike is a lawful proceeding and a trade union is a lawful society, the position of men on strike and of a trade union is still to a certain extent exceptional. Thus a combination to do an act in contemplation or furtherance of a trade dispute between employers and workmen may escape from criminality, where a combination to do the same act for some other purpose may be a crime, and a trade union itself, though a legal society, stands in some respects in an exceptional situation (see pp. 267-273 ante). England has still a special combination law, whilst trade combinations are in France governed entirely, or all but entirely, by the general law of the land. The cause of this difference is seemingly to be found in a fact to which attention has already been directed. The law of France was at the beginning of the nineteenth century as much opposed as was the law of England to trade combinations, and in truth was more severe, but it was not in strictness exceptional legislation. The law of England in regard to trade combinations was not only severe but was also exceptional. The result is curious. The feeling has grown up in England which has apparently not grown up in France, that trade combinations for the regulation of labour must be treated exceptionally. Severity has given place to favouritism: the denial of equality has by a natural reaction led to the concession of, and promoted the demand for, privilege.