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 GEORGE I. COCHRAN MEYER ELSASSER 
 
 DR. JOHN R. HAYNES WILLIAM L. HONNOLD 
 
 JAMES R. MARTIN MRS. JOSEPH F. SARTORI 
 
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 CIjc ^tatc in aaclation to itabour 
 
 THE ENGLISH CITIZEN 
 
 HIS EIGHTS AND RESPONSIBILITIES
 
 THE STATE 
 
 IN EELATION TO LABOUE 
 
 BY 
 
 W. STANLEY JEVONS 
 
 LL.D., F.R.S. 
 
 12.0 nD Oil 
 MACMILLAN AND CO. 
 
 AND NEW YORK 
 1887 
 
 85973 
 
 The Right oj Translation and Seproduclion is Kescrved.
 
 Fitst Edition printed 1882 
 Reprinted 1887. 
 
 Printed by R. & R. Clakk, Edinburgh.
 
 n^7G 
 
 PEEFACE 
 
 So much has been written about Labour and Capital 
 and the legislation relating to them that it is scarcely 
 possible to say anything new upon this subject. 
 Not only is there an immense literature of contro- 
 versial pamphlets bearing upon the matter, but 
 there is also a superabundance of facts and in- 
 formation. What seems now to be needed is 
 ^a careful attempt to understand the principles of 
 P^ legislation which emerge when we analyse the 
 actions of the Legislature, and the state of public 
 •j^ opinion with reference to the conflict of labour and 
 ^ capital and the regulation of industry. The all- 
 important point is to explain if possible why, in 
 general, we uphold the rule of laisser /aire, and yet 
 in large classes of cases invoke the interference of 
 local or central authorities. This question involves 
 the most delicate and complicated considerations, 
 and the outcome of the inquiry is that we can lay 
 down no hard-and-fast rules, but must treat every 
 case in detail upon its merits. Specific experi-
 
 vi PREFACE 
 
 ence is our best guide, or even express experiment 
 where possible ; but the real difficulty often consists 
 in the interpretation of experience. "We are reduced 
 to balance conflicting probabilities of good and evil. 
 In order, however, to prevent the possible misappre- 
 hensions into which a hasty reader of some of the 
 following pages might fall, I may here state that I 
 am a thorough-going advocate of free trade. As the 
 subject of the book does not include foreign com- 
 merce I have no opportunity of showing the consist- 
 ency of this doctrine with such regulation of home 
 industry as I advocate. 
 
 Concerning the functions and actions of trade 
 societies I have not hesitated to express approval or 
 blame in the freest way ; but I think the time is 
 come when all bitter terms, all class rancour, and all 
 needless reference to former unfortunate occurrences, 
 should be laid aside. The economic errors of trades 
 unions after all are not worse than those which per- 
 vaded the commercial, if not the governing classes 
 a generation or two ago. One result which clearly 
 emerges from a calm review is that all classes of 
 society are trades unionists at heart, and differ chiefly 
 in the boldness, ability, and secrecy with which they 
 push their respective interests.
 
 PREFACE vii 
 
 The necessity of writing briefly has generally 
 prevented me from giving references to authors or 
 quotations of facts and opinions. I must content 
 myself with acknowledging my special indebted- 
 ness to certain works — such as Professor F. A. 
 Walker's Wages Question; Mr. George Howell's 
 Conflicts of Capital and Lcibour; Mr. G-. J. Holyoake's 
 instructive and amusing History of Co-operation; Mr. 
 J. E. Davis' excellent treatise on the Labour Laws ; 
 Mr. Jos. D. Weeks' Eeports on the Practical Opera- 
 tion of Arbitration and Conciliation (Harrisburg, 
 U.S.A.) ; the valuable collection of documents con- 
 tained in the Eeport on Trades Societies, published by 
 the Social Science Association in 1860; the eleven 
 voluminous reports of the Trades Union Commis- 
 sioners of 1 8 6 7, especially the masterly memorandum 
 of Sir William Erie upon the Law relating to Trades 
 Unions ; the Eeports of the Labour Laws Commission 
 of 1874, of the Factory Acts Commission, the Factory 
 Inspectors, etc. 
 
 Hampstead, N.W. 
 April 18S2.
 
 CONTENTS 
 
 CHAPTER I 
 
 PAGE 
 
 Principles of Industrial Legislation . .1 
 
 CHAPTER II 
 Direct Interference op the State with Labour 33 
 
 CHAPTER III 
 
 The Factory Acts and similar Legislation 
 
 DIRECTLY affecting LABOURERS . . 52 
 
 CHAPTER IV 
 
 Indirect Interference with Industry — Trades 
 
 Union Legislation . . . .88 
 
 CHAPTER V 
 The Law of Industrial Conspiracy . . 128 
 
 CHAPTER VI 
 Co-operation and Industral Partnership . 139 
 
 CHAPTER VII 
 Arbitration and Conciliation . . .148 
 
 CHAPTER VIII 
 Concluding Remarks . . . .164
 
 THE STATE IN RELATION TO 
 LABOUE 
 
 CHAPTER I 
 
 PRINCIPLES OF INDUSTRIAL LEGISLATION 
 
 "We are about to deal in this little Treatise with the 
 proper methods and limits of legislation in matters 
 relating to labour — that is to say, the operative or 
 handicraft classes. "We have to distinguish, as far as 
 possible, between cases in which individuals should be 
 left at liberty, as being the best judges of their own 
 interests, and those cases in which some kind of authority 
 should interfere, in order to insure or increase their 
 welfare. Imagine, for the sake of illustration, that there 
 is in some factory a piece of revolving machinery which 
 is likely to crush to death any person carelessly approach- 
 ing it. Here is a palpable evil which it would be 
 unquestionably well to avert by some means or other. 
 But by what means ? It is obvious that there are many 
 possible courses to choose between, and much to be said 
 for and against each particular course. 
 
 In the first place, it may fairly be said that the
 
 2 THE STATE IN RELATION TO LABOUR chap. 
 
 individual workman is bound to take care of himself, 
 and to be especially waiy when approaching machinery. 
 Mere common sense, we might think, would lead people 
 to avoid negligent conduct likely to be instantly and 
 inexorably punished -with, sudden death, or the most 
 fearful and painful mutilation. As a general rule, at 
 least, adult persons must take care of themselves, and 
 observe where they are going. If everybody is to go in 
 leading-strings, it is obvious that there will be no persons 
 left to act as leaders. It may well be urged, too, that 
 the more we guard people from palpable dangers, the 
 more heedless they Avill become, and the more likely 
 to fall victims to some unforeseen danger. But a little 
 observation and reflection show that to such general 
 rules and arguments there must be exceptions. It is all 
 very well for theorists and "cabinet philosophers" to 
 argue about what people ought to do ; but if we learn 
 from unquestionable statistical returns that thousands 
 of hapless persons do, as a matter of fact, get crushed 
 to death, or variously maimed, by unfenced machinery, 
 these are calamities which no theory can mitigate. 
 
 Evidently there must be cases where it is incumbent 
 on one citizen to guard against danger to other citizens. 
 If one man digs a pit in search of coal, and, not finding 
 coal, leaves the hole uncovered, to be half hidden by grass 
 and brambles, he is laying a mere trap for his neighbours ; 
 he might as well at once lay man-traps and spring-guns in 
 the old-fashioned way. Are all neighbours to grope their 
 way about in constant fear of a horrible, lingering death, 
 because he dislikes tlie trouble of filling up or covering 
 the pit he has made 1 So obviously unreasonable was 
 such neglect, that we find a customary law existing in
 
 I PRINCIPLES OF INDUSTRIAL LEGISLATION 3 
 
 the Forest of Dean two hundred years ago, requiring 
 every owner of an abandoned pit to cover it over. 
 Now, revolving machinery is in many cases quite on a 
 par with uncovered coal-pits. When the putting up, at 
 inconsiderable expense, of a few bars of Avood or iron 
 will remove all danger and difficulty, surely it is much 
 better simply to put them up, and avoid all metaphysical 
 argument. 
 
 Unfortunately the metaphysician cannot be kept at 
 bay in so simple a way. Having once decided that the 
 fly-wheel ought to be fenced, we have but raised a series 
 of questions relating to the person who ought to put 
 up the fences, and the other persons who have either 
 a right or a duty to take care that he puts them up. 
 We might, in the first place, assume that the owner of 
 dangerous machinery would fence it from motives of 
 mere humanity, if not from those of self-interest. But 
 here again experience proves the existence of unaccount- 
 able thoughtlessness, if not heartlessness. Before the 
 Legislature began to interfere, hardly any owner of 
 machinery thought of incurring the small additional 
 percentage of cost requisite to render the machinery safe 
 to the operatives. Plenty of documentary evidence 
 exists, moreover, to show that legislation on the. subject 
 was distinctly opposed by factory owners. In other 
 cases mere thoughtlessness and indifference can alone be 
 charged against the owners. In one of the reports of 
 factory inspectors we are told that when the inspector 
 remonstrated against the dangerous unfenced condition 
 of a fly-Avheel, the owner calmly remarked that it had 
 no doubt killed a man not long before; he made no 
 objection to erecting the necessary fence, the idea of
 
 4 THE STATE IN RELATION TO LABOUR chap. 
 
 Avhich did not seem to have previously occurred to his 
 mind. 
 
 It is obvious, then, that somebody ought to suggest 
 ideas of the sort to the erectors of dangerous machine 
 traps. But there is still a wide choic6 of means and 
 persons. The men employed about the factory might 
 be expected to meet together and, through their trades 
 union or otherwise, insist upon proper fences being 
 put up. But, as a matter of fact, the men have not 
 generally taken this reasonable course. Whether from 
 false pride, want of thought, or otherwise, the last people 
 to complain about danger seem to be the people exposed 
 to it. The public in general, through the agency of some 
 society such as the Eoyal Humane Society, might be ex- 
 pected to step in from humanitarian motives, and either 
 fence the machinery at their own cost, or oblige the 
 owners to do it. But there is nothing more fickle and 
 unaccountable than the humanity of the public in general. 
 The Legislature might frighten the owner of machinery 
 into carefulness by making negligence into manslaughter, 
 should a fatal accident occur. Judges and juries might 
 do much to the same end by awarding heavy damages 
 against the owner. But there remains one other mode 
 of solving the question which is as simple as it is 
 eflfective. The law may command that dangerous 
 machinery shall be fenced, and the executive government 
 may appoint inspectors to go round and prosecute such 
 o^vuers as disobey the law. 
 
 The Principle of Liberty. — Of course the case treated 
 above is but a simple examjile of the questions which 
 arise in every matter relating to the health, safety, con-
 
 1 PRINCIPLES OF INDUSTRIAL LEGISLATION 5 
 
 venieuce, or general welfare of the Avorkman. If an em- 
 ployer offers a man work in a very unhealthy workshop, 
 and the man accepts the work and its conditions, are the 
 employer and the workman at perfect liberty to carry 
 out such a contracts Has the community nothing to 
 say to the matter. Is the Legislature to save the man 
 from sudden death by the rotating fly-wheel, and yet to 
 leave him, unwarned and unaided, to a slower but surer 
 death by steel particles, phosphorus vapour, clay dust, 
 lead poisoning, or some other easily avoidable source of 
 injury'? The answer no doubt may depend upon the 
 question whether the operative is an adult man, an adult 
 woman, a young person (i.e. a boy or girl of the age of 
 fourteen years and under eighteen years), or a helpless 
 child. But, even in the extreme case of the adult man, 
 experience unquestionably shows that men from mere 
 thoughtlessness or ignorance incur grave injuries to 
 health or limb which very little pressure from the Legis- 
 lature would avert with benefit to all parties. The diffi- 
 cult question thus arises whether, out of respect to some 
 supposed principle of individual liberty, the State ought 
 to allow men to go on working and living in the midst 
 of needless risks. 
 
 It may well be urged, on the one hand, that the 
 liberty of the subject is an indefeasible right of English- 
 men, and a fundamental principle of English law. Not 
 only is liberty in itself a prime element in happiness, 
 but it is also the necessary condition of that free develop- 
 ment from which all our social blessings arise. Liberty 
 is a theme upon which it would be possible to enlarge 
 very considerably, and it is always a popular theme. 
 
 But if my study of this subject has led to any true
 
 6 THE STATE IN RELATION TO LABOUR chap. 
 
 results, the first step must be to rid our niiuds of the 
 idea that there are any such things in social matters as 
 abstract rights, absolute principles, indefeasible laws, in- 
 alterable rules, or anything whatever of an eternal and 
 inflexible nature. We deal here, it should be observed, 
 only with a lower class of relations, and have nothing 
 directly to do Avith those higher questions of ethical 
 science, of moral obligation, of conscience, of religious 
 conviction, in which we may rightly seek for a firmer 
 basis. Legislation undoubtedly must take account of 
 moral feelings, and must usually conform to the prevail- 
 ing opinions of the people. Yet a positive law is a very 
 different thing from a moral rule : the former deals only 
 with outward acts ; the latter both with acts and motives. 
 Not uncommonly conflict arises. A nonconformist re- 
 fuses to pay church-rates or Easter offerings ; a clergy- 
 man declines to recognise the authority of a temporal 
 court; an anti- vaccinationist prefers fine and imprison- 
 ment to allowing a slight but life-saving operation on his 
 children ; one of the " peculiar people " goes still further, 
 and maintains that it is the law of God not to call in a 
 physician to a dying child. All these cases raise very 
 difficult questions ; but the attitude of the law is simple. 
 Either the man does as the law orders, or he goes to 
 prison. A person may entertain whatever moral feelings 
 he thinks proper to indulge in, and in our present state 
 of society he enjoys the further liberty of expressing 
 those feelings nearly hid not quite without limits. Hence 
 he enjoys the privilege, in England at least, of endea- 
 vouring to persuade other people that the law is mis- 
 taken. If he succeeds, it is well ; if not, he must practi- 
 cally conform.
 
 I rRINCIPLES OF INDUSTRIAL LEGISLATION 7 
 
 But the law in itself has nothing to do with conscience, 
 nor religion, nor even with moral right and wrong, as esti- 
 mated by individuals. Moreover, it knows nothing of 
 absolute principles from which we must not diverge. It 
 is but a series of arbitrary rules, accumulated or varied 
 from century to century, and defining the terms on which 
 people may best live in each other's society. It is a 
 system of adjustments and compromises, founded upon 
 experience and trial. The complication of social relations 
 is such that no simple unqualified laws can hold good in 
 all cases ; necessary exceptions spring up as soon as ever 
 we try to establish a general proposition. It might surely 
 be thought, for instance, that a man would be free to buy 
 and sell as he thought best. Barter, moreover, being 
 the original simple form of commerce, would It fortiwi 
 seem to be open to every free subject. Yet, since the 
 fourth year of Edward IV. (cap. 1) laws have existed 
 prohibiting the payment of wages in the manner of 
 barter. Even at the present day the Truck Act is in 
 full operation (1st and 2d "William IV. cap. 37), and in a 
 number of specified trades inflicts penalties on any settle- 
 ment of Avages by way of barter, the third offence being 
 treated as a misdemeanour punishable by fine only at the 
 discretion of the court. Curiously enough, however, this 
 law does not apply to agricultural labourers, domestic 
 servants, and various other important classes of the em- 
 ployed. What is a misdemeanour in an iron-work or 
 cotton-mill is the most familiar arrangement possible in 
 the adjoining farmhouse. All that can be said in favour 
 of the law, and it is probably sufficient, is that repeated 
 inquiry and long experience ever since the time of King 
 Edward IV. have shown that masters abuse the liberty 
 
 B
 
 8 THE STATE IN RELATION TO LABOUR chap. 
 
 of making barter contracts with their workmen. But 
 what becomes of that celebrated entity, " the hberty of 
 the subject " 1 
 
 It may be imagined, again, that a person has an 
 absohite right to his own property. Apart from the 
 difficulty of defining what is his own property, a cursory 
 examination of the statute-book would show that this 
 absolute right has been invaded in every conceivable 
 way. Taxation is in complete conflict with the supposed 
 absoluteness of the right. Even property in a man's 
 own labour has never been absolute : sailors were pressed 
 into the navy ; military service was in former centuries 
 compulsory, as it now is in most continental coimtries, 
 and in theory yet is in England ; statute labour was re- 
 quired to mend the roads. The compulsory purchase of 
 land for railways, water-works, and other enterprises of 
 public utility, is a further invasion of absolute rights, 
 although accompanied in most cases by abundant, if not 
 superfluous compensation. The new Irish Land Act is 
 destructive to the absolutist theory, as regards Ireland 
 at least; that Act has been denounced as contrary to 
 all the principles of political economy. But when a 
 country has arrived at a state of social disorganisation, 
 the probabilities of good implied in those principles are 
 met by certainty of evil, and the question simply is by 
 what least sacrifice to approximate to a sounder state of 
 things. 
 
 There is, indeed, no subject more generally miscon- 
 ceived than the relation Avhich exists between economics 
 and legislation. It is generally supposed that the econo- 
 mist is a presumjituous theorist, who is continually laying 
 down hard-and-fast rules for the conduct of other people.
 
 I PRINCIPLES OF INDUSTRIAL LEGISLATION 9 
 
 Everybody is to buy in the cheapest market, and sell in 
 the dearest ; marriage is to be restrained as much as 
 possible ; paupers are to be reduced to the verge of starv- 
 ation ; strikes are not to be endured, and so forth. It 
 is possible that such ideas may have been put forward 
 by some over-dogmatic economist such as MacCulloch. 
 For the most part, hoAvever, they arise from the mis- 
 interpretation by the public of the relation between 
 science and practice. It is one thing to demonstrate 
 scientifically the tendency of population to progress in 
 a geometric ratio ; it is quite another thing to infer that 
 marriage should therefore be discouraged, still more that it 
 should be discouraged by some particular measure, which 
 might involve conseqiiences of the most varied character. 
 As, then, in philosophy the first step is to begin by 
 doubting everything, so in social philosoj)hy, or rather 
 in practical legislation, the first step is to throw aside all 
 supposed absolute rights or inflexible principles. The 
 fact is that legislation is not a science at all ; it is no 
 more a science than the making of a ship or a steam- 
 engine, or an electrical machine, is a science. It is a 
 matter of practical work, creating human institutions. 
 There are sciences which instruct us in the making of a 
 ship or an engine, and Avhich, by giving us comprehen- 
 sion of its nature, enable us to use it well or to improve 
 it. In these sciences there may be general principles of 
 nature. So there may be general sciences of ethics, of 
 economics, of jurisprudence, which may much assist us 
 in the work of legislation. But before we can bring the 
 principles down to practice they run into infinite com- 
 plications, and break up into all kinds of exceptions and 
 apparent anomalies.
 
 10 THE STATE IN RELATION TO LABOUR chap. 
 
 Abstractions and JRealities. — In endeavouring to gain 
 clear ideas as to the proper method of legislation, nothing 
 is more necessary than to descend from vague terms and 
 abstractions to the definite facts which they imply or are 
 founded upon. "We cannot help speaking of principles 
 and rights, but we must endeavour to avoid the persistent 
 fallacy of taking words for things. Such principles are 
 not existing things ; they are only complex propositions 
 founded on extensive experience, and indicating the 
 probable results of actions. They are registers, as it 
 were, of the convictions of society that a certain course 
 will involve certain consequences. The principle of the 
 common law, for instance, that parents have a right to 
 the governance of their children, is a register of the 
 general belief that the strong instinctive love of parent 
 for child will be the best guarantee in general for the 
 beneficial treatment of the child, while conducing also 
 to the happiness of the parents. Mathematically speak- 
 ing, there is a large balance of probability of good in 
 favour of the law. But it can never have been intended 
 that a right designed for the production of good should 
 be perverted to the production of evil. Probability 
 cannot stand against certainty. If it clearly appear 
 that a parent is injuring his child, there is an end of 
 presumption to the contrary, and it is a mere question 
 of degree when the power of the law will step in to pre- 
 vent this injury. To preserve an appearance of consist- 
 ency the lawyers use various circumlocutions. 
 
 A parent has the legal right of chastising his child ; but 
 this does not mean that he may beat his cliild whenever 
 he feels inclined ; as the lawyers say, the chastisement 
 must be reasonable ; Avhich, being interpreted, means
 
 I PRINCIPLES OF INDUSTRIAL LEGISLATION 11 
 
 that tlic parent must never chastise his child but in such 
 manner, degree, and on such occasion (if any there be) 
 as is conducive to the good of the child primarily, with 
 some regard, perhaps, to the interests of the family and 
 neighbours secondarily. In fact, it comes to this, that 
 he has no right to do anything but just what he ought 
 to do, all the circumstances being taken into account. 
 So from time to time, as it Avas made plain that children 
 were being worked to death in factories — reduced to 
 crippled, stunted, deformed little creatures — a further 
 inroad was made upon the parent's right. The pre- 
 sumption of good was altogether rebutted by the cer- 
 tainty of evil, and the State undertook, through the 
 Factory Acts, to secure a better state of things. Quite 
 recently the same conflict between presumed good and 
 certain evil arose in the controversy regarding elementary 
 education. The parent in theory was the best educational 
 guardian of the child ; but, if the result was no education 
 at all, there was no ground for the theory. In this case, 
 again, the State dispersed metaphysics by stepping in and 
 ordering the child to be educated. 
 
 Ghvunds and Limits of Legislation. — It may be fear- 
 lessly said that no social transformation would be too 
 great to be commended and attempted if only it could 
 be clearly shown to lead to the greater happiness of the 
 community. No scheme of Sellers, or Babeuf, or Eobert 
 Owen could be resisted, if only their advocates coidd 
 adduce scientific evidence of their practicability and good 
 tendency. No laws, no customs, no rights of property 
 are so sacred that they may not be made away with, if 
 it can be clearly shown that they stand in the Avay of
 
 12 THE STATE IN RELATION TO LABOUR chap. 
 
 the greatest happiness. Salus popiili, sup'cma lex. But 
 it ought to be evident that before we venture upon a 
 great leap in the dark, Ave may well ask for cogent 
 evidence as to the character of the landing-place. The 
 question resolves itself into one of logic. What are the 
 means of proving inductively or deductively that a 
 certain change will conduce to the greater sum of happi- 
 ness ? In the case of any novel and considerable change 
 direct experience must be wanting. The present social 
 arrangements have the considerable presumption in their 
 favour that they can at least exist, and they can be 
 tolerated. A heavy burden of proof, therefore, lies 
 upon him who would advocate any social change which 
 has not or cannot be tested previously on a small scale. 
 Wherever direct experience can assure us that good is 
 to be obtained by a certain course, we may with some 
 confidence venture to adopt it. In hardly any case, 
 however, are the consequences of an action or a law 
 limited to the direct obvious results. As Bastiat said, we 
 must take into account " what is not seen " as well as 
 "what is seen," 
 
 To descend, however, from philosophy to the practical 
 subject before us, I conceive that the State is justified in 
 passing any law, or even in doing any single act which, 
 without ulterior consequences, adds to the sum total of 
 happiness. Good done is sufficient justification of any 
 act, in the absence of evidence that equal or greater evil 
 will subsequently follow. It is no doubt a gross inter- 
 ference with that metaphysical entity, the liberty of the 
 subject, to prevent a man from working with phosphorus 
 as he pleases. But if it can be shown by unquestionable 
 statistics and the unimpeachable evidence of scientific
 
 I PRINCIPLES OF INDUSTRIAL LEGISLATION 13 
 
 men that such working with phosphorus leads to a 
 dreadful disease, easily preventable by a small change of 
 procedure, then I hold that the Legislature is primil facie 
 justified in obliging the man to make this small change. 
 The liberty of the subject is only the means towards an 
 end ; it is not itself the end ; hence, when it fails to 
 produce the desired end, it may be set aside, and other 
 means employed. Wherever, in like manner, palpable 
 evil arises, the Legislature is justified, if not bound to 
 inquire, whether by some special change of law that evil 
 might not be avoided. It is obvious, however, that in 
 this inquiry all effects of the proposed act, whatever be 
 their remoteness or uncertainty, must be taken into 
 account. Direct observation, therefore, Avill not usually 
 be all-sufficient. There may be collateral or secondary 
 effects of an action which will not be apparent for years 
 to come. 
 
 The Evolutionist Doctrine of Freedom. — If we are to 
 acknoAvledge the existence in social affairs of any inde- 
 feasible right or absolute principle, none would seem 
 more sacred than the principle of freedom — the right of 
 the individual to pursue his own course toAvards his own 
 ideal end. In favour of such a view, it may be said, in 
 the first place, that happiness mainly consists in unim- 
 peded and successful energising. Every needless check 
 or limitation of action amounts to so much destruction 
 of pleasurable energj--, or chance of such. Not only, 
 however, must man, in common with the brutes, suffer 
 from endless material checks and obstacles, but he 
 cannot enjoy the society of other men without con- 
 stantly coming into conflict with them. The freedom of
 
 14 THE STATE IN RELATION TO LABOUR chap. 
 
 one continually resolves itself into the restriction of 
 another. In any case, then, the mere fact of society 
 existing obliges us to admit the necessity of laws, not 
 designed, indeed, to Hmit the freedom of any one person, 
 except so far as this limitation tends on the whole to the 
 greater average freedom of all. Thus the evolutionists 
 aim, not so much at directly maximising happiness, as at 
 maximising liberty of action, which they conceive to be 
 equivalent to the means of greatest happiness. The 
 principle of equal freedom is therefore put forth as an 
 all-extensive and sure guide in social matters. It would 
 lead me too far to attempt in this place to inquire 
 whether the present course of industrial legislation, and 
 the remarks to be made upon it in the present volume, 
 are really reconcilable with this principle. I am inclined 
 to think that the reconciliation is not impossible; but 
 that, when applied to the vast communities of modern 
 society, the principle fails to give a sure guiding light. 
 So intricate are the ways, industrial, sanitary, or political, 
 in which one class or section of the people affect other 
 classes or sections, that there is hardly any limit to the 
 interference of the legislator. 
 
 I do not think that such interference, applying, as 
 it would do, only to the simpler physical conditions 
 of the body, can be said, in a reasonable point of 
 view, to diminish freedom. As physical conditions 
 become more regulated, the intellectual and emotional 
 nature of man expands ever more freely. The modern 
 English citizen who lives under the burden of the 
 revised edition of the Statutes, not to speak of innumer- 
 able municipal, railroad, sanitary, and other bye -laws, 
 is after all an infinitely freer as well as nobler creature
 
 I PRINCIPLES OF INDUSTRIAL LEGISLATION 15 
 
 than the savage who is always under the despotism 
 of jjhysical want. He is far freer, too, than the poor 
 Indian who, though perhaps unacquainted with written 
 law, is bound down by the most inflexible system of 
 traditional usage and superstition. It is impossible, 
 in short, that ^ve can have the constant multiplica- 
 tion of institutions and instruments of civilisation 
 whicli evolution, is producing, without a growing com- 
 plication of relations, and a consequent growth of social 
 regulations. 
 
 The doctrines of evolution, moreover, are yet so 
 young and novel, being, indeed, no older than illustrious 
 philosophers yet living and working among us, that it is 
 hardly to be supposed that the full bearing of such doc- 
 trines should yet be appreciated, even by their origin- 
 ators. It is easy to perceive that in many a primitive 
 community little legislative interference is needed, be- 
 cause the people, by long- continued trial, have settled 
 down to a mode of life approximately perfect according 
 to its circumstances. There long tradition is legislation, 
 and often legislation of the most strict and minute kind. 
 Evolution has had time to work its full effects ; we see it 
 accomplished, not in progress. But all is diflferent with 
 a great modern manufacturing community, the whole 
 mode of industry and life of which has been invented or 
 profoundly modified within the memory of men yet 
 living or but lately dead. Tradition is in such a case 
 broken and dispersed. New conditions of life have to 
 be discovered and tried. Evolution is doubtless at work, 
 but the question arises whether the very legislation 
 which we are about to consider is not the manifestation 
 of evolution. Based, at any rate, upon trial and experi-
 
 16 THE STATE IN EELATIOX TO LABOUR chap. 
 
 ence, it is but the multiplying of the good tendencies, 
 and the quick elimination of the bad. It is an attempt 
 to save needless suffering by making the few teach the 
 many, so as to bring individuals into conformity with 
 their environment without the blind striving of indi- 
 vidual action. 
 
 The Metai)hysical Inciihiis. — It is futile to attempt to 
 uphold, in regard to social legislation, any theory of 
 eternal fixed principles or abstract rights. The whole 
 matter becomes a complex calculus of good and evil. 
 All is a question of probability and degree. A rule of 
 law is grounded on a recognised probability of good 
 arising in the opinion of the lawgiver from a certain line 
 of conduct. But as there almost always occur cases in 
 Avhich this tendency to good is overmastered by some 
 opposite tendency, the lawgiver proceeds to enact new 
 rules limiting, as it is said, but in reality reversing, the 
 former one in special cases. Lawgivers, as well as philo- 
 sophers, delight in discovering euphemisms adapted to 
 maintain the fiction of universal principles. When the 
 principles fail to hold good, it is said that the cases are 
 exceptional. It is a general principle that a man may 
 do as he likes with his own property. It is an exception 
 when a railway company forcibly takes possession of his 
 land. 
 
 I venture to maintain, however, that we shall do much 
 better in the end if we throw oil' the incubus of meta- 
 physical ideas and expressions. We must resolve all 
 these supposed principles and rights into the facts 
 and probabilities which tliey are found to involve 
 when we inquire into their real meaning. The right of
 
 I PRINCIPLES OF INDUSTRIAL LEGISLATION 17 
 
 a man to dispose freely of his labour means the recogni- 
 tion hy the Legislature that in the majority of cases a 
 man is the best judge of his own interests in disposing of 
 his labour. In a number of cases specified in the statute- 
 books, the Legislature recognises an opposite state of 
 things. The principle of the freedom of trade stands on 
 the same footing ; it is a probability of advantage which, 
 however, must be set aside in case of greater probability 
 of evil. The indefeasible right of a squire to his 
 ancestral acres rests, of course, upon the like considera- 
 tions. All depend ultimately upon the salus populi, 
 which is the only lex su.prcma. 
 
 The question may well arise, indeed, whether, accord- 
 ing to the doctrine here upheld, there is really any place 
 at all for rules and general propositions. If a general 
 law may be limited by a particular law, and that again 
 by a further and more limited exception, we shall get 
 down eventually to individual cases. When followed 
 out, this is the outcome of the Benthamist doctrine. 
 Every single act ought to be judged separately as 
 regards the balance of good or evil which it produces. 
 Practically, too, the doctrine is often recognised as true 
 and necessary. Many Acts of Parliament give discre- 
 tionary power to the Secretary of State, so that he can 
 deal with each individual case acording to its merits. 
 Under the Factory and Workshop Act of 1878, exten- 
 sive powers of relaxing the directions of the Act are 
 given to the Secretary of State. Many of the sections 
 contain a clause beginning, " Where it is proved to the 
 satisfaction of a Secretary of State," etc. Thus section 
 43 gives power to allow the period of employment to be 
 between 9 A.i\r. and 9 r.i^r. in certain cases.
 
 18 THE STATE IN RELATION TO LABOUR chap. 
 
 It will be easily seen, however, that legislation be- 
 comes impracticable when it runs into too much detail. 
 Not only is discretionary action likely to be abused, but 
 the time and trouble spent in obtaining it form a con- 
 siderable obstacle. There arises a distinct advantage in 
 being able to know how other people will act, and 
 whether they are or are not acting rightly. Even under 
 a system of general rules, such as are most of those 
 contained in the statute-book, legislation is so complex 
 that only those who give themselves wholly to the study 
 can be acquainted with any considerable part of it. The 
 statute-book, again, can never really contain the whole 
 of the law, as the definitions of terms, the conflicts of 
 clauses and acts, the complex evolution of unforeseen 
 cases, necessitate numberless decisions which practically 
 add themselves to the text. 
 
 Inferential Besults of Legislation. — Among the most 
 important eff"ects of a legislative act must be placed the 
 expectations which it creates of future similar or appa- 
 rently similar acts. People are always reasoning, well 
 or ill — usually ill. Accordingly, every conspicuous act 
 which is done becomes a precedent, on which many 
 future claims are based. In courts of law where that 
 metaphysical entity justice is administered, judges are 
 obliged to act upon precedents. The expectations raised 
 and the actions guided by one decision must be justified 
 by a like decision in similar circumstances. This is 
 done even when the particular decision is regretted 
 by the judges and allowed to work evil in itself. It 
 is impossible, however, that law can be administered 
 otherwise than by reference to precedents, and the only
 
 I rRINCIPLES OF INDUSTRIAL LEGISLATION 19 
 
 question remaining open is tlie minuteness of analysis of 
 the circumstances and conditions. As no two exactly 
 similar cases ever do come before courts of law, analysis, 
 if carried to the utmost, would practically render every 
 decision independent of every other decision; — there 
 never can, in short, be a precise precedent. Practically, 
 therefore, the analysis of precedents is restricted to those 
 more obvious elements which can be generally appre- 
 hended, and, in jury cases, rendered satisfactory to the 
 average British householder. 
 
 The Legislature is less bound by regard to precedent. 
 It is all powerful, and apparently irresponsible. It can 
 do single executive acts as well as pass general rules of 
 law. Every private Act of Parliament is a distinct inter- 
 ference with some persons for the good of others. In 
 special cases it acts for the good of a single individual — 
 reversing a legal decision, validifying a c^uestionable 
 marriage, rectifying accidental mistakes, authorising the 
 enclosure of land, or altering the legal status of a single 
 estate. These well-understood cases bear out my con- 
 tention that any act is justified by the good done in the 
 absence of countervailing inferential or other evils. But 
 even in regard to private acts, Parliament is to a great 
 extent bound by tradition and precedent. Such acts 
 generally fall into well-defined classes with regard to 
 which experience has already been gained. Any proposal 
 for a novel kind of private act meets with the utmost 
 scrutiny. Railway companies, for instance, seem able to 
 obtain almost any land they want for their purposes. 
 They have merely to ask, and it is given at a price. But 
 when a company proposed to build a large hotel near 
 Lincoln's Inn, and applied for a private act to enable
 
 20 THE STATE IN RELATION TO LABOUR chap. 
 
 them to make the purchase of land, the Bill was summarily 
 rejected by the Lords. In this particular case the 
 public would probably have gained distinct benefit from 
 the passing of the Act. The result of course would have 
 been that multitudes of other companies would discover 
 modes of benefiting the public by building hotels and 
 other large structures by private Acts of Parliament. 
 In this way it is that we become hampered in every act 
 of legislation, if not of private life. We must do to one 
 as we would to another, or else we must be prepared to 
 give some clear reason why we do not. This reason, too, 
 must be clear and sufficient, not so much to those who 
 act, as to those who are in a position to judge the actors. 
 The distinctions, then, must not be very fine drawn. 
 Public opinion is in the highest degree undiscriminating, 
 and yet it is the ultimate court of appeal. Thus the 
 legislator or the administrator may be practically com- 
 pelled to abstain from many measures and acts good in 
 themselves, because if they happened to come under 
 public notice they would not be discriminated from 
 measures and acts of a recognised evil tendency. It 
 necessarily follows that the public man, without the least 
 real sacrifice of his own conscience and instincts of right, 
 is obliged to defer more or less to the state of public 
 opinion and of popular education There arises an in- 
 evitable contest between the private and so to say the 
 public conscience. 
 
 Questions of Degree. — One of the most serious diffi- 
 culties standing in the way of legislation is the fact 
 that many legislative questions are questions of degree. 
 One act differs from another not l)y any clearly assign-
 
 I TRINCirLES OF INDUSTRIAL LEGISLATION 21 
 
 able mark present in one and absent in the other, 
 but ])y more or less of the same mark. In a case of 
 assault, for instance, the provocation given may vary 
 from nothing at all up to something extremely great, 
 and there may be all intermediate degrees. Sir W. 
 Erie, in his profound memorandum upon the Law of 
 Trades Unions, pointed out that in the case of nuisances, 
 whether by obstruction or otherwise, unlawfulness begins 
 at a certain degree of annoyance, and that this degree is 
 to be measured not by any exact standard, but on a sup- 
 posed estimate of what is reasonable by men assumed to 
 be prudent. 
 
 Two obvious difficulties arise out of this variation of 
 degree : the first consists in the fact that it is often 
 impossible to define with certainty what acts are to be 
 restrained by law and what left free. Obstruction of 
 the Queen's highway may range from the case of one or 
 two men carelessly lounging about, up to that of thou- 
 sands of men purposely blocking the road in order to 
 create public terror and disaster. Negligence, again, is 
 a legal fault of which no precise measure can be given. 
 To shoot a person by misadventure is not criminal in 
 the eye of the law; to shoot him owing to a certain 
 undefined degree of negligence is manslaughter. 
 
 A second resulting difficulty consists in the fact that 
 in questions of degree an illegal act must differ by an 
 infinitesimal quantity from a legal act. Mere care- 
 lessness merges on one side into pure accident, but on 
 the other side into gross or illegal negligence. Now 
 when an act ceases to be legally innocent, it becomes 
 legally culpable, and in theory there must be some point 
 at which this change logically takes place. At this point
 
 22 THE STATE IN RELATION TO LABOUR chap. 
 
 the minutest difference distinguishes crime from inno- 
 cence. It is a case of the ancient logical sophism called 
 the Sorites or the Acervalis. It can be shown that one 
 single hair makes the difference between a bald man and 
 those well-haired people who have no special class-name, 
 but are not bald. If a man who has only a hundred hairs 
 is called bald, the question will arise whether men with 
 101, 102, 103, 104 hairs, and so on, are also bald. If so, 
 we can proceed with like questions until we get up to 
 thousands of hairs. Sooner or later the man must be 
 pronounced not-bald; but as there is no third term or 
 middle between bald and not-bald, the change must take 
 place upon a single hair. Certainly this is often the case 
 with legal questions. A railway signalman charged with 
 manslaughter on account of some mistake is either com- 
 mitted for trial or not committed : there is no legal middle 
 term. But the mistake occasioning the accident may 
 vary in culpability from zero up to something amount- 
 ing to murder. At some point, therefore, an infinitesimal 
 difference lies between crime and innocence. 
 
 In practice, these nice questions of degree are slurred 
 over, and roughly decided by referring the whole matter 
 to the discretion of a jury. Twelve jurymen decide 
 whether the signalman has used ordinary and reasonable 
 caution, "such as might be fairly expected from a person 
 in his position." The lawyers and the judges are always 
 talking about "what is reasonable," "what is fair," 
 although they know perfectly well that they cannot 
 explain clearly what they mean. Nor can the jury say 
 any better on what clear grounds they decide the question 
 of "reasonable care." Probably, the only real use in the 
 jury system is that it furnishes the judges with a practi-
 
 I PRINCIPLES OF INDUSTRIAL LEGISLATION 23 
 
 cal measure of ordinaiy ways of thinking. Unconsciously 
 the twelve men in the jury-box are so many standard 
 measures of ordinary capacity, and though they may 
 differ more or less in opinion, the final average opinion 
 is tlie best standard of " reasonableness " which Ave can 
 command. It is curious to observe how frequently men 
 are engaged in solving mathematical problems without 
 being aware of the fact. 
 
 Baconian Legislation. — Hardly any person will be found 
 to contest the statement that legislation must ])roceed 
 upon the ground of experience. IjCgislation must be 
 Baconian. But, when we try to ascertain exactly what 
 is meant by these statements, difference of opinion will 
 arise. As I have attempted in another l^ook to show, all 
 reasoning must be general. Even when we appear to 
 pass in inference from one single experiment to a like 
 one, we rise in the course of the logical journey to a 
 general truth concerning all such experiments, so far as 
 they are like to each other, and then we descend the 
 logical mountain again to the particular one in prospect. 
 But there may be all degrees of proximateness or remote- 
 ness between our real premisses of fact and our ultimate 
 conclusion. "What I venture to maintain is that Baconian 
 legislation Avill always proceed Ijy reasoning from the 
 most nearly proximate and analogous experience Avhich 
 is available. We cannot possibly dispense with general 
 reasoning, but we should use it as sparingly as possible. 
 We should choose, as it were, the lowest logical elevation 
 ■within sight. 
 
 I have recently endeavoured to show, in an article in 
 the Contempoi'ary Eeiieiv of January 1880 (vol. xxxvii. pp. 
 
 C
 
 24 THE STATE IN KELATION TO LABOUR chap. 
 
 177-192), that in many cases it is possible for the legis- 
 lator to resort to direct experiment. Before passing any 
 great Act of Parliament which will involve the whole 
 of an extensive trade or class in some irrevocable and 
 costly change, we ought to try experiments, and thus 
 obtain the most direct and pertinent evidence con- 
 cerning the probable result. It is not for a moment to 
 be supposed that legislation has not long, or, even always, 
 been based upon experiment or upon experience in some 
 sense; but the experiments have generally been the 
 unintentional changes which time and circumstance have 
 wrought, or the institutions which individuals or private 
 societies have created with no distinct legislative purpose. 
 The vast collection of parliamentary papers which Parlia- 
 ment has printed in the last hundred years, amounting 
 to several thousand folio volumes, show the empirical 
 basis upon which the Legislature has proceeded. Not 
 a few great laws, notably the Poor Law Reform of 1834, 
 were based upon inquiries of an empirical character 
 which in care and completeness left little to be desired. 
 But as a general rule Parliament has confined itself to 
 accumulating information about the working of existing 
 institutions ; when an institution of a certain kind did 
 not exist in this country, it has not created one for the 
 purpose of trial, but has inquired into the working of 
 such an institution in any foreign country where it hap- 
 pened to exist. This method is easy and inex})ensive ; 
 nevertheless it involves a breach of Baconian rules ; for 
 analogy is much more remote and inference accordingly 
 precarious between one country and another, as compared 
 with one part and another of the same country. 
 
 Nor can it for a moment be contended that cxperi-
 
 I PRINCIPLES OF INDUSTRIAL LEGISLATION 25 
 
 inents have not been made and consciously described 
 and treated as experiments. Kobcrt Owen, for instance, 
 establislied his mills and schools at New Lanark for 
 the purpose of showing what might be done to elevate 
 mill hands by wise and considerate treatment. He ex- 
 })ressly described his establishment as an experiment If 
 not exactly the founder of the Factory Acts, he origin- 
 ated ideas and supi)lied practical evidence which was of 
 the greatest value, so far as it could be appreciated at 
 the time. 
 
 From time to time, too, statesmen have distinctly 
 approved the experimental method. Thus, on 4tli March 
 1835, Mr. Secretary Cloulburn,^ speaking of the new 
 Factory Act of 1833, said that "he thought it the most 
 expedient course to make an experiment of the law ; so 
 that from actual experience, rather than from contradic- 
 tory opinions, they might be enabled to ascertain what 
 alterations reall}^ were necessary." In the debate upon 
 the second reading of the Factory and Workshop Bill 
 (11th February 1878), Mr. Fielden, whose father was 
 one of the leaders of the party which carried forward 
 the improvement of the Factory Law, remarked that 
 ''in all its legislation upon the subject Parliament had 
 been guided by experience, and had gradually extended 
 the operations of the Acts from one trade to another." 
 In the same debate the Home Secretary expressed his con- 
 currence in the statement that such legislation proceeded 
 on "a tentative system." It must be quite apparent 
 too that the common practice of passing an Act and then 
 remedying its mistakes, oversights, omitted cases, incon- 
 
 ^ Hausard's Pai'liamentary Debates, 3d Series, \o\. xxvi. p. 
 527.
 
 26 THE STATE IN RELATION TO LABOUR chap. 
 
 veniences, or unforeseen wrongs, in successive Amend- 
 ment Acts, is really an application of the tentative or 
 experimental method. 
 
 It ought also to be pointed out that the late Mr. New- 
 march explained the empirical or experimental character 
 of legislative method. Speaking at the British Associa- 
 tion in 1861 he said : "From the plan suggested by the 
 Statistical Congress of last year, they would gradually 
 be able to ascertain what was the real condition, and 
 what Avas the effect, of the social relations pervading 
 different parts of the world. The application of the ex- 
 perimental method pursued during the last thirty years 
 had led to a large modification of the early economic 
 science in reference to free colonisation, legal interfer- 
 ence with labour," etc. The idea that legislation is and 
 must be essentially experiential, if not experimental, 
 pervades this remarkable address, which is printed in full 
 in the Journal of the Statistical Society for December 
 1861, vol, xxiv. p. 453, etc. 
 
 Legislative Experimentation. — But in order that we may 
 pursue a truly Baconian course in legislation, we must 
 not merely make experiments, but we must make them 
 in the particular way calculated to prove or disprove the 
 conclusion in view. There is manifest advantage, for 
 instance, in making a legislative change in certain cities 
 or districts only, so that we may observe what happens 
 both where the change is in operation, and also in closely 
 proximate places, where it is not in operation. This is 
 often the only way in which we can clearly learn what 
 is really the eflcct of the change in question ; because if 
 ai)plicd universally the effects of the new course will be
 
 I PRINCIPLES OF INDUSTKIAL LEGISLATION 27 
 
 merged into the general aggregate of many existing and 
 varying effects. Nor is there usually any practical 
 obstacle in the way of such partial trial. Since the 
 article referred to was published, the Postmaster-General 
 actually applied the experimental method in the intro- 
 duction of the penny stamp savings bank forms. These 
 forms were first tried by distribution in certain selected 
 comities, and the results were inquired into before the 
 measure was adopted generally. Although the case was 
 not one suited to test the method effectively, the com- 
 plete success of the trial tends distinctly in favour of 
 experimental legislation. 
 
 It is not possible to repeat here all that was said in 
 the article referred to in favour of direct appeal to ex- 
 perience. The fact, however, is, that the real difficulty 
 will consist, not in making such appeals, but in knowing 
 when to make them, how to interpret the results, and 
 how far to depend upon our inferences. Experience 
 must be our guide when we can enjoy such an advan- 
 tage, but it is often the most difficult thing in the world 
 to know what experience teaches. The palpable and 
 direct result will often be the least part of the matter. 
 A fence erected around machinery palpably saves people 
 from falling among such machinery ; but how are we to 
 prove that it does not generate recklessness which will 
 lead the people to fall into other dangers 1 "We have to 
 fall back upon vague presumptions and general inferences. 
 An operative advocating a strike may easily point to 
 other strikes in like circumstances which have benefited 
 the strikers — to all appearance. Here are experiments 
 to the point. It would require a great deal of inquiry 
 and much argument of a va^ue kind to convince an
 
 28 THE STATE IN RELATION TO LABOUR chap. 
 
 economist that the striker really was benefited in the 
 long-run. 
 
 It will now be apparent that the true method of 
 approaching a legislative measure assumes the form of 
 a complicated logical and scientific problem. It is 
 granted, or at least assumed, that anything is right and 
 expedient in legislation which adds to the sum of 
 happiness of the community. But how to show this 1 
 It is not sufficient to show by direct experiment or other 
 incontestable evidence that an addition of happiness is 
 made. "We must also assure ourselves that there is no 
 equivalent or greater subtraction of happiness, — a sub- 
 traction which may take eftect either as regards other 
 people or subsequent times. This, it need hardly be 
 said, is a more difficult matter. There is the difficulty of 
 discovering and measuring, as Bastiat so clearly put it, 
 " that which is not seen, as well as that which is seen." 
 Let it, moreover, be clearly understood that in thus 
 endeavouring to see the invisible we must make use of 
 any science, or of all sciences which have any bearing 
 upon the matter. It seems to be commonly supposed 
 that certain matters are to be treated by economic 
 science; others by moral science or jurisprudence; others, 
 again, are questions of mere physical science only. It 
 would generally be implied, for instance, that questions 
 relating to corn or wages arc purely economic ; that 
 marriage is a simj)ly moral question ; that the building 
 of a bridge is one of engineering science or physics. 
 
 Belation of Science to LegidaUon. — The relation of 
 science to social legislation will now become apparent. 
 Each science is an aggregate of natural laws, more or
 
 I rRINCIPLES OF INDUSTRIAL LEGISLATION 29 
 
 less general ; and these laws, wlien divestcil of meta- 
 physical wrappings, resolve themselves into prohal)ilities 
 that certain consequences will follow from certain con- 
 junctions of antecedents. Obviously, at whatever end 
 the legislator aims, he must consult all those sciences 
 whose probabilities bear upon this end. If, for instance, 
 the matter under consideration be colliery explosions, sup- 
 posed to arise from the firing of shots or blasts, there is 
 — (1) the probability that the blasting is really the cause 
 of the- explosion ; (2) the probability that more efficient 
 ventilation would render the blasting harmless ; (3) that 
 if gunpowder Avere prohibited, compressed air or some 
 other agent would be brought into successful operation ; 
 (4) that if blasting were confined to the night time, the 
 mines could still be Avorked ; and so forth, until we 
 come finally to the probability that if the mines in 
 question were actually thrown out of use, more harm 
 than good would result. The legislator must look at 
 such questions in an all-round manner. He is neither 
 chemist, nor physicist, nor physician, nor economist, nor 
 moralist, but all of these in some degree, and something 
 more as well, in the sense that he must gather to a 
 focus the complex calculus of probabilities, the data of 
 which are supplied by the separate investigators. The 
 Minister of State, as it is said, acts "upon advice." It 
 is impossible that he should read up all the text-books 
 of the sciences concerned, but he takes from the most 
 reliable professors of each branch of science their 
 inferences as bearing directly upon the matter. Here 
 evidently we meet the reason why so few men of science 
 are legislators, and so few legislators are men of science. 
 The occupations are almost incompatible. The profound
 
 30 THE STATE IN RELATION TO LABOUR chap. 
 
 man of science must restrict his purview, whereas the 
 legislator must be equally open to truth — that is to say, 
 probability, from whatever quarter it comes. And 
 although the legislator in matters of trade has perhaps 
 more to do with economics than with any other science, 
 yet on this very account he may need the more caution, 
 lest he attribute exclusive value to the economic proba- 
 bilities, and overlook moral, sanitary, political, and other 
 probabilities. 
 
 Complications of the Subject. — After the preceding 
 general remarks on the principles of legislation in matters 
 of industry, we may proceed to consider how far certain 
 of the more important or imminent questions may be 
 treated on those principles. Industrial legislation is, 
 indeed, of such extent and complication of detail that we 
 cannot do more in the available space than select tj^pical 
 cases. The subject Avould be comparatively simple 
 were we concerned only with the direct relations of the 
 State to individuals. Even in this respect there is com- 
 plication enough, when Ave remember the vast variety of 
 trades which have to be considered, and the fourfold 
 classes of persons to be legislated for in various degrees 
 and manners — namely, men, women, young persons, and 
 children. 
 
 In reality, however, the most difficult questions arise, 
 not from the relations of the State to individuals, but 
 from its relations to aggregates and organisations of 
 individuals. After all, the State may perhaps be 
 described, with a little pardonable hyperbole, as the 
 least of the powers which govern us. Tjaw is but the 
 consecration of custom and public opinion. Whether in
 
 I PRINCIPLES OF INDUSTRIAL LEGISLATION 31 
 
 the home, tlie school, the Avorkshop, or the public 
 meeting, we are really governed hy an indefinite amount 
 of common law. More especially is this the case in the 
 factory and the exchange. Men of the same trade 
 cannot meet together Avithout entering into some kind 
 of combination, tending to govern its constituents and 
 to affect the interests of outsiders. Industrial society is, 
 and always has been, more or less honeycombed with 
 cliques and corners and cabals, each with its own ideas 
 of private interest, and its own code of right and Avrong. 
 As we shall presently see, trade societies or guilds are 
 among the oldest institutions of which we have any 
 historical information, and they doubtless existed long 
 before their existence came to be recorded. 
 
 The relation of the State to labour is a question not 
 so much of the direct restraint of the labourer by the 
 State, as of the manner in which the State can regard 
 the voluntary and unauthorised legislation of the 
 labourers themselves. It may be that the work of the 
 State will consist in increasing rather than lessening 
 the liberty of the individual Avorkman. In any case, it 
 is impossible to treat of industrial legislation without 
 fully taking into account the rules and restraints under 
 which labour exists. AVe shall, however, best approach 
 the difficulties of the subject by considering, in the first 
 place, the modes and degrees in which it is expedient for 
 the State to control labour directl}-. AVe shall then 
 have some clue to the question, how far individuals are 
 justified in attempting to control their felloAv-workmen. 
 Next there arises the higher question, how far the State 
 ought to control individuals in their attempts at con- 
 trolling each other. Even when Ave can clearly perceive
 
 32 THE STATE IN RELATION TO LABOUR chap. 
 
 that the action of a "corner "or a trades union is pernicious, 
 it does not necessarily follow that the State would do 
 well to intervene. In some cases evils are best left to 
 work their own remedy ; in other cases attempted inter- 
 vention would only aggravate the evil. There are often, 
 moreover, several Avays of approaching the same end : in 
 some cases an institution may need to be summarily 
 suppressed ; in other cases it may be allowed to show 
 its own worthlessness and futility ; in yet other cases 
 rival institutions may be set up to undermine and 
 counteract that which is deemed pernicious; occasionally, 
 instead of trying to suppress the obnoxious institution, it 
 Taa.y be favoured and promoted, in the hope that the 
 good which is in it may grow and the evil die away ; nor 
 is this at all an exhaustive statement of the many indirect 
 ways in which legislation may be brought to bear upon 
 an industrial problem. Not uncommonly we may hesi- 
 tate between the several ways, and perhaps wait for 
 further experience to indicate the best method of setting 
 to work. If we only have carefully-recorded information 
 aboiit it, every institution may be regarded as an experi- 
 ment tending to show its own success or non-success.
 
 DIRECT INTERFERENCE OF THE STATE 33 
 
 CHAPTER II 
 
 DIRECT INTERFERENCE OF THE STATE WITH LABOUR 
 
 The manner, occasion, and degree in which the State 
 may interfere with tlie industrial freedom of its citizens 
 is one of the most debatable and difficult questions of 
 social science. Existing legislation, which all allow to 
 be necessary, obliges us on the one hand to look upon 
 such interference as justifiable in certain circumstances ; 
 more general considerations lead us to look upon free- 
 dom as the normal state. There is a Avide intervening 
 tract, where the line of demarcation is very differently 
 drawn by different thinkers. The question arises, 
 moreover, Avhether the matter is not one which must 
 be decided according to circumstance of time, place, 
 history, and national character. 
 
 It might perhaps be expected that we could learn a 
 good deal about labour legislation from the English 
 Statnte-Book, which now covers in almost unbroken 
 continuity an interval of Gr)0 years. There is no want 
 of such legislation in that great book ; in fact, there is 
 over-abundance, and we may learn something from the 
 failure and futility of much that has been enacted by 
 English Parliaments. But the great lesson which we 
 learn, and it is an impressive one, is that legislation with
 
 34 THE STATE IN RELATION TO LABOUR chap. 
 
 regard to labour has almost always been class-legislation. 
 It is the effort of some dominant body to keep down a 
 lower class, which had begun to show inconvenient 
 aspirations. Such is clearly the nature of the celebrated 
 Statute of Labourers, which was simply a futile attempt 
 to prevent labour from getting its proper price. Bren- 
 tano is doubtless right in saying that all statutes of 
 labourers in the Middle Ages were framed with regard 
 to the powers and wants of the landed proprietors, the 
 feudal lords. The great Statute of Apprentices (5 Eliz. 
 cap. 4), of which I shall have much to say, had a 
 different origin. According to the opinion of historians, 
 it represented the triumph of the craft-guilds — that is, 
 the mediaeval trade-unions. If it was this, it was also 
 more than this. Regarded as a piece of legislative 
 handiwork, it certainly left nothing to be desired in 
 thoroughness and comprehensiveness ; but it was never- 
 theless a monstrous law. From beginning to end it 
 aimed at industrial slavery. The Justices of the Peace 
 could not only fix all rates of wages, but if they chose 
 to exert their powers, could become the industrial 
 despots of their district. 
 
 It has often been weakly remarked that probably 
 this statute, however indefensible it may seem at the 
 present day, was well suited to the then existing 
 state of society. Such remarks imply ignorance of 
 the contents of the statute. The general theory of 
 the Act is that every servant or artificer shall be 
 compelled to work in the trade to which he was 
 brought up. Any workman departing from his city, 
 town, or parish, without a testimonial from his previous 
 employer or some officer, Avas to be imprisoned until he
 
 II DIKICCT INTERFEUENCE OF THE .STATE 35 
 
 procured a testimonial ; or if he could not do so within 
 the space of one and twenty days, was to be whipped 
 and used as a vagabond. The hours of labour were 
 prescribed, not, as in our Factory Acts, by way of limita- 
 tion, but l)y imposition. Thus, from the middle of the 
 month of March to the middle of September all artificers 
 and labourers hired by time were to be and continue at 
 their work at or before five o'clock in the morning, and 
 continue at work and not depart until betwixt seven 
 and eight of the clock at night — two and a half hours 
 in the course of the day being allowed for meals and 
 drinking. Thus the legal day's work was to be about 
 twelve hours at the least. 
 
 As to young women, they were simply at the orders 
 of the magistrates ; for the 2-ith section enacts that 
 any two Justices of the Peace or other competent 
 magistrates shall "appoint any such woman as is 
 of the age of twelve years and under the age of forty 
 years and unmarried, and forth of service, as they 
 shall think meet to serve, to be retained or serve by 
 the year, or by the week or day, for such wages and 
 in such reasonable sort and manner as they shall think 
 meet ; and if any such woman shall refuse so to serve, 
 then it shall be laAvful for the said Justices of Peace, 
 Mayor, or Head Officers, to commit such woman to 
 ward, until she shall be boundeu to serve as is aforesaid." 
 Lest the Justices should be lax in regulating the service 
 of labourers, they Avere to be paid for their trouble. 
 Such was liberty — such was industry under " good Queen 
 Bess," — at least such it was in the Statute-Book, and in 
 the intention of the governing classes. In operation the 
 statute was, there is reason to believe, little more than a
 
 36 THE STATE IN DELATION TO LABOUR chap. 
 
 dead letter, except as regards the important sections 
 relating to apprenticeship, of Avhich the evil influence 
 has hardly yet died out. It has often been boasted that 
 the laws of England were always just and equal to all 
 classes; this may be true of much judge-made law, 
 but it is decisively contradicted by such a monstrous 
 statute, from the operation of which the higher classes 
 and even their servants Avere expressly exempted. Yet 
 this Statute of Apprentices was not finally and com- 
 pletely repealed until six years ago by the Conspiracy 
 and Protection of Property Act (38 and 39 Vict. cap. 86, 
 sec. 17, III. ((). 
 
 An Old Ex^perimcnt in Industrial Legislation. — In many 
 cases we learn from the preamble or other contents of a 
 statute regulating a trade that it was really passed at the 
 instance of the trade for their supposed advantage. This 
 is most plain in the case of the Act touching drapers, 
 cottoners, and frizers of Shrewsbury (8 Eliz. cap. 7), 
 which commences by reciting that there has been in 
 Shrewsbury time out of mind of man a guild of the art 
 and mystery of drapers lawfully incorporated. This 
 guild, it appeared, was used most commonly to set on 
 work above six hundred persons of the art or science of 
 shearmen or frizers. Divers artificers and other j^ersons 
 of Shrewsbury, however, not being of the said company 
 or mystery, " nor brought up in the use of the said trade, 
 have of late with great disorder, upon a mere covetous 
 desire and mind, intromittcd with and occupied the said 
 trade of buying Welsh cloth or lining, having no know- 
 ledge, experience, or skill in the same." After further 
 describing the dire evils thus produced by successful
 
 II DIRECT INTERFERENCE OF THE STATE 37 
 
 competition, the Act proceeds to prohibit every person 
 inhabiting in Shrewsbury from occupying the trade of 
 buying Welsh cottons, etc., unless he be free thereof. 
 However quaintly and candidly expressed, there is 
 nothing in this statute but the simple spirit of trade 
 monopoly. We may wonder indeed that the cottoners 
 of Shrewsbury could so easily move the great statesmen 
 of Queen Elizabeth in their favour ; but the policy of the 
 cottoners was of a piece with the policy of Lord Burleigh, 
 as so strikingly formulated in the Statute of Apprentices 
 above referred to. What, however, is very strange about 
 the Shrewsbury cottoners is that before six years were over 
 they had not only found out their error, but candidly 
 confessed it to the powers. In the Act 14 Eliz. cap. 12, 
 we find the previous Act almost entirely repealed, 
 " at the humble suit of the inhabitants of the said town, 
 and also of the said artificers, for whose benefit the said 
 Act was supposed to be provided." Nor is this all ; for 
 in the second section the moral of the matter is brought 
 out in the clearest terms. "Experience hath plainly 
 taught in the said town that the said Act hath not only 
 not brought the good eflect that then was hoped and 
 surmised, but also hath been and now is likely to be the 
 very greatest cause of the impoverishing and undoing 
 of the poor artificers and others, at whose suit the said 
 Act Avas procured, for that there be now, sithence 
 the making of the said statute, much fewer persons to 
 set them a-work than before," etc. etc. Were it not 
 that the Lord Chancellor Bacon Avas then a boy of onl}- 
 eleven years of age, Ave might have thought that he hail 
 had a hand in draAving this Act, Avhere the A'alue of ex- 
 perience is brought out in so truly a Baconian manner. 
 
 85973
 
 38 THE STATE IN RELATION TO LABOUR chap. 
 
 Parliament, since the 14t}i year of Elizabeth, has made 
 many great mistakes and failures, and has had often 
 to eat its own words. But it has seldom taken the 
 lessons of experience in the same spirit of candour and 
 philosophy. 
 
 The Common Laiv. — We ought not, however, to forget 
 that, in England at least, the statute-hook contains but 
 half the law. The unwritten and judge-made common 
 law has always held a very different tone in matters of 
 industry. The same judges who delighted themselves 
 with the intricacies of the law of real estate held one 
 simple rule about industry — that it should be free. It 
 would be very difficult to say when this doctrine of the 
 common law took its rise. As Blackstone said of the 
 common law in general, its rise is like that of the Nile — 
 unknown. Some persons have found the principle of 
 non-restraint of trade in the Great Charter ; but Article 
 41 of that charter (re-enacted by 2 Edw. III. cap. 9) 
 only refers to foreign merchants trading in England. 
 There is no reference to the general industry of the 
 people, who, it need hardly be said, were by no means 
 free at that time. It seems likely that tlie extremely 
 wise course of the judges was due in no small degree to 
 natural reaction against the tyranny of the statute law, 
 the greed of class legislators, and the illegal encroach- 
 ments of the Crown. The judges were the only disin- 
 terested parties in power, and however they might 
 delight on other occasions to display their acumen in 
 logical quibbles, they took in trade questions the interest 
 of the whole community as their sole guide. In this 
 course they Averc mucli assisted by the fact that the
 
 II DIRECT INTERFERENCE OF THE STATE 39 
 
 Statute of Apprentices, when enacting in the 31st section 
 that none may use any manual occupation except he hath 
 been apprentice to the same, fortunately confined this 
 restriction to "any craft, mystery, or occupation now 
 used or occupied within the reahn." The words " now 
 used or occupied " were inserted, I presume, from regard 
 to the logical impossibility of any new trade springing up, 
 if its " occupiers " were required to have passed through a 
 seven years' apprenticeship before occupying it. Lord 
 Burleigh, or the other ingenious authors of the statute, 
 not foreseeing the development of modern industry, 
 made no attempt to circumvent this difficulty, and the 
 fortunate result was that all the new industries of the 
 seventeenth and eighteenth centuries were left to free 
 development. The Act contained the elements of its 
 own abrogation. 
 
 Government Infection of Commodities. — To illustrate 
 these views of the proper limits of legislative action we 
 cannot do better than consider the reasons which may 
 be urged for and against the system of submitting 
 commodities to the scrutiny of Government officers. 
 Herrings are branded by Government inspectors in 
 Scotland; kegs of butter are tested and weighed in 
 some Irish markets. Gun-barrels are proved in Birming- 
 ham ; gold and silver plate must be marked at the Assay 
 Offices ; meat and fish are inspected by sanitary officers ; 
 public analysts are appointed to detect the adulteration 
 of groceries, drugs, and some kinds of food. Are not all 
 these cases violations of the general principle that the 
 individual is the best judge of his own needs and 
 interests ? On what principle, if any, are these particular 
 
 D
 
 40 THE STATE IN RELATION TO LABOUR chap. 
 
 classes of things submitted to an arbitrary system of 
 State supervision, while the far greater number and bulk 
 of commodities are left to the great principle of laisser 
 /aire ? 
 
 It may well be said, on the one hand, that laws 
 defining what we shall wear and eat, — sumptuary laws, 
 as they have been called, — were long since repealed by 
 general consent. Statutes of Edward III., Edward IV., 
 and Henry VIII. prescribed minute regulations about 
 peaked shoes, short doublets, and long coats. They were 
 all repealed as long ago as the first year of James I. 
 (cap. 25). Are we gradually to get back to a somewhat 
 similar system in which the articles which we use must 
 be passed by a Government officer before we are allowed 
 to buy and use them 1 By degrees inspectors will make 
 their way into our houses to see that our drains are in 
 good order, our rooms well ventilated, our kitchen boilers 
 safe, our cisterns clean, our children at school. 
 
 If this sort of thing is to progress, we shall be guided 
 and tutored and inspected at every hour of the day. 
 
 But in discussing these matters we need above all 
 things discrimination. One hundred modes of Govern- 
 ment interference might be mentioned, of which fifty 
 might be very desirable and fifty condemnable. In each 
 case, as I contend, we must look to the peculiar aim, 
 purpose, means, and circumstances of the case. Sump- 
 tuary laws, for instance, bear no analogy to recent 
 sanitary laws. They were mere class laws, intended to 
 support the pride of an aiistocracy by restraining the 
 tastes of the lower classes. If any pretext was put for- 
 ward about saving the purses of the poor, and prevent- 
 ing them from running into extravagance, it was a too
 
 II DIRECT INTERFERENCE OF THE STATE 41 
 
 obvious pretence. The roots of the legislation of this 
 kind were in pride and oppression. 
 
 The purpose of recent Government interference in 
 trade is widely different. Whether that interference is 
 Avise or not we will presently consider ; but those who 
 examine such things as herrings, butter, gun -barrels, 
 coffee, tea, pepper, butchers'-meat, and the like, cannot be 
 charged with indifference or opposition to the good of 
 the common people. But why examine and certify these 
 and a few other things, and leave the great mass of 
 commodities — chairs and tables, hats, shoes, calicoes, 
 woollen cloths, and so on ad infinitum — to the unfettered 
 choice of the purchaser ? Discrimination is here again 
 needed. 
 
 It ought to be easily seen that commodities fall into 
 two distinct categories, according as the purchaser is or is 
 not the best judge of what he wants. The pattern of a 
 dress, the style of a bonnet, the shape of a pair of boots, 
 the tone of a picture, the melody of a piece of music, are 
 matters in which the intending purchaser is necessarily 
 the final judge, at least for the time being. If the 
 pattern of a dress is pleasing to the intending wearer, 
 that settles the matter ; no Government inspector can 
 make it unpleasing. The question is one of taste and 
 individual preference. Now the greater number of 
 commodities fall into this category : Avhethcr we are 
 buying books or pictures, or horses or carriages, a mansion 
 or an estate, or anything ministering to our personal feel- 
 ings, we are clearly the best judges. Similarly, the palat- 
 ableness of drinking water, the flavour of wine, the 
 pungency of pepper, are matters of which every consumer 
 may be supposed able to judge.
 
 42 THE STATE IN RELATION TO LABOUR chap. 
 
 But it is a totally different question whether a 
 purchaser in certain cases knows what he is buying. A 
 man, for instance, about to buy a mansion tries the water 
 out of the well, and is satisfied by its sparkling lim- 
 pidity and its brisk taste. A chemist would have 
 pointed out that these are suspicious symptoms, and 
 analysis might have detected deadly sewage poison. The 
 drains of a mansion, again, are a different matter from 
 its style of architecture, or the view from its windows. 
 It is a pure matter of technical skill to say whether 
 the existing: drains ensure freedom from infectious 
 sewer gases. A sanitary inspector can decide this with 
 indefinitely greater approach to certainty than the average 
 householder. In a similar way it may be easily allowed 
 that he who can judge the pungency of cayenne pepper 
 cannot by taste detect the red lead which colours it. 
 He who selects the greenest pickles may be unaware of 
 the copper which gives the attractive tinge. 
 
 It must surely be allowed, then, that there are many 
 cases Avhere the expert is a far better judge than the 
 individual purchaser. Common sense would in these 
 cases, of course, lead us to desire the opinion of the 
 expert before purchasing. We might, it is true, still 
 leave the matter to individual action. A whole profes- 
 sion of food analysts would spring into existence if the 
 ordinary paterfamilias made a rule of sending samples of 
 his grocer's supplies to be examined. Laisser faire 
 policy might still be maintained if everybody understood 
 his interests. But the very point of the matter is that 
 ignorant people cannot take precautions against dangers 
 of which they are ignorant. While it is a fact that 
 people live in badly-drained houses, drink sewage water.
 
 II DIRECT INTERFERENCE OF THE STATE 43 
 
 purchase bad meat or adulterated groceries, it is of no 
 use urging that their interests would lead them not to 
 do so. The fact demolishes any amount of presumption 
 and argument. The same considerations apply to various 
 other cases, such as the testing of gun-harrels, the assay 
 of plate, and the like. Nobody can possibly wish to be 
 blown up when shooting off a rifle or fowling-piece ; but 
 no purchaser, by mere visual examination, can tell that 
 an apparently sound and beautifully-constructed barrel 
 is really safe. 
 
 It must surely be apparent that in such cases the 
 Government officer who steps in and prevents the faulty 
 article from being exposed to sale does not really restrict 
 the liberty of the purchaser. We may assume that no 
 consumer wants to buy putrid sausages, poisonous 
 pickles, dangerous guns, or fraudulent plate. Thus the 
 Government official who excludes these things from 
 public sale actually assists the purchaser in carrying out 
 his own desires. We come, therefore, to the view long 
 since maintained by the great economist Jean-Baptiste 
 Say, that Government may properly interfere to prevent 
 abuses in those special cases where it is impossible, or at 
 least difficult, for the buyer of goods to verify their 
 character for himself. (See the CaUchisme d'Ecorwmie 
 Politiqiie, chap. xxi. Cours, 4'"* Partie, chap. x. vol. iii. 
 p. 278 seq.) 
 
 Multiplication of Efficiency of the Expert. — It can hardly 
 fail to be noticed, too, that an immense increase of 
 efficiency and multiplication of utility is secured by 
 appointing officers to assist and protect the public in 
 certain special points. The Avholc division and sub-
 
 44 THE STATE IN RELATION TO LABOUR chap. 
 
 division of labour is but a case of Mr. Herbert Spencer's 
 doctrine of evolution, and the evolution of special 
 Government inspectors is a case of division of labour. 
 It is obviously impossible that an ordinary person busily 
 engaged in his ordinary daily occupation can acquire the 
 technical knowledge and skill requisite to enable him to 
 test the purity of the groceries, water, milk, meat, ale, 
 gas, and other commodities daily consumed in his house. 
 If he does attempt to acqmre the knowledge, and pro- 
 vide himself with the requisite apparatus for testing, 
 how needlessly great is the trouble and expense, con- 
 sidering that a single officer, provided with one set of 
 apparatus, may do the work for a whole town. However 
 zealous and clever the individual may be, he cannot 
 compete in skill with an officer devoted to the occupa- 
 tion, who, besides giving his whole time and thought 
 to the work, has opportunities of varied experience and 
 comparison. An individual householder, for instance, 
 can inspect his o"\\ti drains and those of a few friends. 
 But an authorised sanitary inspector may go from house 
 to house all over the parish or district. He sees drains 
 of all kinds — good, bad, and indifferent. He learns by 
 repeated observation where evil is likely to arise, and by 
 what change it can be avoided. He enjoys, in fact, all 
 the resources of experience and experiment. The same 
 advantages are enjoyed by every inspector whose busi- 
 ness it is to pass from factory to factory, from school to 
 school, from shop to shop, and who sees what is good 
 and bad in each place. 
 
 It is no slight further advantage in favour of Govern- 
 ment action that an inspector becomes acquainted with 
 the law and legal procedure applying to his business.
 
 II DIRECT INTERFERENCE OF THE STATE 45 
 
 and can put the law in operation with immensely greater 
 ease and efficiency than can a private person. We might 
 think, for instance, that everybody would take care to 
 get full weight when they buy a sack of coals, a pound 
 of sugar, or an ounce of tobacco. The law provides the 
 fullest remedies and penalties for giving short weight ; 
 and in the special cases of coals and bread it obliges the 
 deliverer to carry scales and weights to the purchaser's 
 house, in order that he may weigh them on the spot if 
 so minded. But experience proves that private persons 
 seldom test the weights of commodities they buy, and 
 probably never prosecute those who use false scales and 
 weights. The reasons are sufficiently obvious. The loss 
 of time involved in a prosecution is almost sufficient 
 reason, without taking into account the cost, the obloquy, 
 and the chance of making some mistake Avhich will turn 
 the tables against the prosecutor. But a single official 
 inspector of weights and measures can do for a whole 
 town what they cannot do for themselves. Without 
 personal offence, and as a mere matter of routine, he 
 tests all scales and weights ; he knows precisely when 
 and how to prosecute, and can conduct a number of 
 prosecutions at the same time. Everything is in his 
 favour. 
 
 It seems to be certain, again, that a skilled inspector 
 can detect dangerous high-pressure boilers incomparably 
 better than persons not specially expert in the matter. 
 The advantage of some system of Government inspection 
 cannot be seriously denied, and the only question which 
 remains is, whether the inspection should be directly 
 governed from Whitehall, or should be indirectly carried 
 on through local bodies of experts.
 
 46 THE STATE IN RELATION TO LABOUR chap. 
 
 The Herring-Brand System. — Although it seems im- 
 possible to hold that Government inspection of retail food 
 supplies is inexpedient, a very different question is raised 
 in the case of the herring-brand system in Scotland, or 
 the tasting and sizing of butter kegs in Ireland. Such 
 regulation affects the wholesale trade, and is, in fact, 
 chiefly brought into action as regards goods intended for 
 exportation. The inspection and branding is not com- 
 pulsory, as it formerly was, but is largely used by 
 producers, owing to the facility with which barrels of 
 herrings or butter thus branded are accepted in foreign 
 markets. Branded barrels of herrings are, in fact, 
 endowed with the property of currency — that is to say, 
 they pass from owner to owner without sampling or 
 examination of any kind. They can be ordered, bought, 
 sold, or assigned as security for advances, by the mere 
 specifying of the crown brand. 
 
 There can be no question that this system is nearly, 
 if not quite, anomalous. Its only analogues are found in 
 the Hall marking of gold and silver plate and jewellery, 
 in the proving of gun-barrels, or in the coining of the 
 Queen's money at the mint. Of the two former cases it 
 may be said that they are compulsory regulations 
 required to prevent fraud or accident. Of money it 
 may be said that, although a commodity, it is a very 
 peculiar one. The herring -brand cannot possibly be 
 said to be necessary, for sundry large herring -curers 
 dispense with the stamp of the State, and argue that 
 they can sell their produce at a somewhat better price 
 without it. Still the great bulk of the curers are 
 not of this opinion, when Ave find that in a recent 
 season GGO,000 barrels of herrings, cured by perhaps
 
 II DIRECT INTERFERENCE OF THE STATE 47 
 
 400 different curers, were examined and branded, this 
 work being accomplished by only twenty-six official 
 inspectors. The great opponent of the system was that 
 doctrinaire-economist, MacCulloch, who, in his well-known 
 Commercial Dictionary, advocated the complete abolition 
 of the Fishery Board of Scotland. The " inspection, he 
 held, was in point of fact utterly useless. It was an attempt 
 on the part of Government to do that for their subjects 
 which they could do far better for themselves. If the 
 official inspection Avere put an end to, merchants and 
 others who buy herrings would themselves inspect the 
 barrels ; and Avhile any attempt at fraud would thus be 
 effectually obviated, curers could prepare their herrings 
 in any way they pleased without being compelled to 
 prepare fish in the same Avay for the tables of the poor 
 as for those of the rich. Then, having denounced the 
 system as useless, MacCulloch proceeds in his charac- 
 teristic way to discover that it is far Avorse than useless, 
 being, " rather a security against the detection of fraud, 
 than against its existence." The immense expansion of 
 the herring trade since the date of MacCulloch's remarks 
 (1840), and the general use of the brand to the present 
 day, is the answer which experience gives. It is impos- 
 sible that the brand should still carry the Scotch cured ■ 
 herring through all parts of the world were it the mere 
 cloak for deception which was asserted. 
 
 MacCulloch's theoretical objections and the discontent 
 of some members of the trade led, however, in 1848, to 
 the despatch of a Treasury Commissioner, who was to 
 inquire into the expenditure and operations of the Scotch 
 Fishery Board. This duty was entrusted to the late 
 John George Shaw Lefevrc, and the result was a most
 
 48 THE STATE IN RELATION TO LABOUR chaf. 
 
 able, and to my mind conclusive, report on the subject, 
 reprinted in John M. Mitchell's excellent work on The 
 Herring (Edinburgh, 1864). The commissioner went 
 Avith no leaning towards the system, but came back 
 impressed with its usefulness. The only serious objec- 
 tion to the system which he admits is, that it somewhat 
 tends to discourage the improvements of private enter- 
 prise by promoting a uniform limit of price which it is 
 difficult to pass. The Government brand indeed is purely 
 optional ; yet so long as the great majority of the trade 
 adopt it, other curers find great difficulty in dispensing 
 with it. On the other hand, the trade generally uphold 
 the system as facilitating trade in herrings, and prevent- 
 ing disputes or repudiation of orders. Lefevre summed 
 up the results of his inquiry in these words : "I feel 
 compelled, notwithstanding the objection in principle to 
 Avhich it is liable, to recommend that it should still be 
 maintained." He suggested, indeed, that a small fee 
 should be imposed to meet the expenses of the Fishery 
 Board, and this suggestion was carried into effect in 
 1859, fourpence being charged for each barrel branded. 
 So much, however, has the use of the brand extended, 
 that the fees for 1880 were estimated at £11,000, or 
 about £7000 beyond the whole expenses of the branding 
 staff. 
 
 Here Ave are brought to a very interesting dilemma 
 in industrial legislation. Experience decisively confirms 
 the advantages of a system which is in conflict with prin- 
 ciple, at least in the estimation of MacCulloch, Lefevre, 
 and many other economists. 
 
 There are, indeed, many cases of commodities of 
 which the purchaser can be no good judge, but which the
 
 II DIRECT INTERFERENCE OF THE STATE 49 
 
 Legislature has never thought of certifying. No ordinary- 
 person, for instance, can possibly judge the quality of a 
 watch which, from all that appears to the unpractised 
 eye, might be worth £10 or £50. Nevertheless, it is out 
 of the question that Government officers should be em- 
 ployed to inspect and stamp watches before they are 
 allowed to be exposed for sale. The sufficient reason is, 
 no doubt, that Avatches differ infinitely in details of 
 construction and finish, so that it would be impossible to 
 say exactly what the certification meant, or how long it 
 would hold good. The fineness of the gold or silver 
 composing the case is a simple definite fact which can be 
 tested in a few moments and exactly recorded. 
 
 From a review of what precedes we may perhaps infer 
 that Government branding is only to be approved under 
 the following joint conditions — (1) When some special 
 danger is to be avoided, or some special considerable 
 advantage to be attained by Government intervention ; 
 (2) When the individual is not able to exercise proper 
 judgment and supervision on his own behalf ; (3) When 
 the intervention required is of a simple and certain char- 
 acter, and the result can be certified in a manner com- 
 prehensible to all. 
 
 Ancient Sanitary and Trade Regulations. — It is well 
 worthy of notice that the tendency towards sanitary 
 inspection which some people now dread as an approach 
 to despotism, is in reality a very old institution. A 
 study of Riley's translation of the Liber Alhus, or " White 
 Book of the City of London," and a glance through Mr. 
 G. L. Gomme's Index of Municipal Offices (Index Society), 
 will show that the ancient municipalities of this land
 
 50 THE STATE IN RELATION TO LABOUR chap. 
 
 were minutely organised in this respect. Ale-couners, 
 ale -founders, ale -tasters, auditors, aulnegers, beadles, 
 bread-weighers, coal-meters, flesh-searchers, and inspec- 
 tors and searchers under various other names, were 
 employed by our ancestors to save themselves from un- 
 apparent frauds and evils. I think, too, that Mr. Gomme 
 has clearly shown, in other writings, that the munici- 
 palities were no creations of Norman monarchs, but were 
 really developments of original village communities. So 
 far, therefore, as antiquarian learning can go, we have 
 the fullest warrant for the functions of Government 
 objected to by some persons. The tendency to centralis- 
 ation, again, which is involved in much recent legislation, 
 is due partly to the decay of local activity, and partly 
 to the immense improvements in communication, which 
 render every part of a kingdom now almost as accessible 
 to the seat of government as were the outlying parts of 
 an extensive parish or hundred to its local lords in early 
 days. It is the vastly greater scale on which our legisla- 
 tive operations now proceed which makes them bear the 
 appearance of offensive innovations and despotic encroach- 
 ments. 
 
 In former days, too, much trouble was taken by the 
 Government to ensure the excellence of several kinds of 
 goods, especially woollen cloth. The Act 2d and 3d 
 Philip and Mary, cap. 12, for instance, provides for the 
 viewing and sealing of clothes called Bridgwaters. At 
 Leeds the ancient regulations of the Cloth Hall con- 
 tinued to be exercised in full vigour until about the 
 middle of last century. The fact, however, is, that the 
 old system of Government certification has been replaced 
 within the last hundred years by the modern system of
 
 II DIRECT INTERFERENCE OF THE STATE 51 
 
 trade-marks, the legislation of which, however, is only 
 now being carried into efl'cct under the Trade-Mark Acts 
 of 1875 and 1876. The trade-mark or trade-name is a 
 private brand, and it is essential to the continued success 
 of a firm that they shall uphold the reputation of their 
 marks by carefully supervising the qualities of the goods 
 to which they are affixed. Registered trade -marks 
 being now legal property, manufacturers become their 
 own branders, and are urged to brand honestly by the 
 powerful and constantly -acting motive of self-interest. 
 Roth statute and judge-made law have of late tended 
 strongly to create and maintain property in trade reputa- 
 tion, and the effect is probably very good. But I see 
 nothing in this to prohibit the employment of State 
 inspection and certification in cases where it can be 
 clearly shown to possess superior advantages. 
 
 As frequent complaints are now made in the manu- 
 facturing districts as to frauds committed in the packing 
 of cotton, — earth, stones, brick-bats, and rubbish of all 
 descriptions being sometimes found inside the bales, — it 
 may be pointed out that such matters were well looked 
 after by our ancestors. The packing of wool was superin- 
 tended by a special officer qualified and admitted before 
 the mayor and constables of the staple of Westminster. 
 An elaborate treaty of commerce between Henry VII. 
 and the Duke of Burgundy, contracted in the year 1499, 
 provided that all wool exported should be packed by duly 
 qualified packers, who were to certify by labels the quality 
 of the wool. Penalties were enacted against any fraud, 
 cheat, collusion, or deceit, especially against those who 
 should " pack or fold up earth, stones, dung, sand, gravel, 
 or hair in the fleeces."
 
 52 THE STATE IN RELATION TO LABOUR chap. 
 
 CHAPTER III 
 
 THE FACTORY ACTS AND SIMILAR LEGISLATION DIRECTLY 
 AFFECTING LABOURERS 
 
 The most important mass of legislative enactments re- 
 lating to labour is contained in the Factory Acts, now 
 consolidated into the very important, long, and compli- 
 cated statute known as the Factory and Workshop Act, 
 1878 (41 Vict. cap. 16). This Act, mainly due, as regards 
 the passing, to Mr. (noAv Sir) Assheton Cross, forms a 
 complete code of factory regulations, and replaces about 
 sixteen previous statutes, which are enumerated and 
 repealed in a schedule. There can be no doubt that, 
 whether we look to the several more tentative acts by 
 which this was preceded, to the inquiries connected with 
 them, to the diligent and zealous labours of the factory 
 inspectors, to the thorough inquiries of the Factory Act 
 Commissioners of 1875, — conducted to no small extent by 
 personal examination of the workshops, — or finally, to the 
 prolonged and exhaustive debates in committee of the 
 House of Commons, by which the details of the Act 
 were finally settled, — this Consolidation Act is one of 
 the brightest achievements of legislation in this or any 
 other country. The great fact is that it embodies disin- 
 terested legislation : the health and welfare of the people
 
 in THE FACTORY ACTS 53 
 
 at large form the sole object ; no one class or trade is to 
 be promoted, as in almost all the older industrial laws. 
 If anything, it involves a sacrifice on the part of those 
 capitalists and employers who were greatly concerned in 
 passing it. Before, hoAvever, entering further into the 
 matter of existing factory legislation, it Avill be well to 
 consider as l^ricfly as possible the course of events which 
 have led up to the present state of the law. 
 
 Histoiij of English Factory Legislation. — Not only is it 
 impossible to attempt anything approaching to a history 
 of factory legislation, but it is also unnecessary. The re- 
 port or essay upon this subject prepared by Ernst, Edler 
 von Plener, the first Secretary of the Austro-Hungarian 
 embassy in London, leaves nothing to be desired as a 
 most clear, accurate, and compendious historical sketch of 
 the subject. It has been excellently translated into 
 English by F. L. Weinmann, and published with an In- 
 troduction by Mr. Mundella (London, Chapman and 
 Hall, 1873). This convenient little book contains also, 
 as an appendix, abstracts of Continental laws and regula- 
 tions respecting the labour and education of children 
 employed in factories. The history of factory legislation 
 is not only highly technical, involving details of hours 
 and arrangements of little general interest, but it is also 
 complicated by the intrusion of political intrigues and 
 struggles. 
 
 The first of the Factory Acts was the so-called Health 
 and Morals Act, passed in 1802 (42 Geo. III. cap. 73), 
 and generally known as the Elder Sir Robert Peel's Act. 
 It appears to have originated out of the practice of 
 apprenticeship — many children having been sent by the
 
 54 THE STATE IN RELATION TO LABOUR chap. 
 
 poor-law overseers of the southern counties, under bonds 
 of apprenticeship, to the rising manufacturing towns of 
 the north. These children were treated hardly better 
 than slaves, which indeed they really were. They were 
 worked day and night, and it is even said that one gang, 
 when exhausted, went to rest in the beds still warm of 
 those who were coming on to work. Attention having 
 been drawn to this state of things by the epidemics 
 which arose from overcrowding, a Board of Health was 
 appointed in 1796, and in 1802 the Act already named 
 was passed, which declares in the preamble that certain 
 regulations were become necessary to preserve the health 
 and morals of the great number of male and female 
 apprentices whom it was then the practice to employ in 
 cotton and woollen mills. The Act began by requiring 
 factories to be well whitewashed twice a year, and a suf- 
 ficient number of windows to be provided to supply fresh 
 air. The next clause obliges every master to supply each 
 of his apprentices with one new suit of clothes yearly, 
 showing that it was legally bound apprentices with whom 
 the Act really dealt. The time of working was not to 
 exceed twelve hours daily, and night work was prohibited, 
 with certain exceptions. Apprentices were to be in- 
 structed in reading, writing, and arithmetic. Male and 
 female apprentices were not to sleep in the same room, 
 nor were more than two to sleep in the same bed. A 
 long clause governs the instruction and conduct of 
 apprentices on Sundays, all these matters being looked 
 after by two visitors appointed by the justices. The 
 point of greatest interest about this Act, now wholly I'c- 
 pealed by the Factory and Workshop Act, is the fact that 
 it applied directly only to legal apprentices, Avho, being
 
 Ill THE FACTORY ACTS 55 
 
 industrial slaves, indubitably needed the protection of the 
 law. Thus was the thin end of the wedge introduced. 
 
 In course of time, however, it was brought to the 
 notice of Parliament that great numbers of children 
 residing near factories were being worked in an excessive 
 and injurious manner, because they did not enjoy the 
 protection of the Act described. As the evils produced 
 were practically as great as if the children had been 
 legal apprentices, the parents being almost as grasping 
 and careless of the children's health as the masters, Parlia- 
 ment could not deny the need of inquiry. The evidence 
 given before a Select Committee of the House of Commons 
 in 181G led to the passing in 1819 of the Second Factory 
 Act (59 Geo. III. cap. 6G), which applied, however, 
 only to cotton mills. The age at which children could 
 be admitted to such mills was now for the first time 
 limited to nine years of age or upwards. Between the 
 ages of nine and sixteen the hours of labour were not to 
 exceed twelve per day, exclusive of meal times, and night 
 work was again prohibited. Some trifling exceptions 
 were allowed in the case of water mills, which suffer from 
 irregularity of water-power, such exceptions existing 
 even in the present day. 
 
 Progress was again made in 1825 by an Act passed by 
 Sir John Cam Hobhouse (6 Geo. IV. cap. 63), which, 
 besides a more thorough restriction of labour as regards 
 children under sixteen years, introduced a half or rather 
 quarter holiday on Saturdays. The work on that day 
 was not to exceed nine hours in length, to be completed 
 between five in the morning and half-past four in the 
 afternoon. Meal hours were carefully provided, and 
 labour of any kind during such hours absolutely pro- 
 
 E
 
 56 THE STATE IN RELATION TO LABOUR cnAr. 
 
 hibited. A register of children employed was now first 
 required, and the signature of the pai"ents or guardians 
 of a child to the statement of age was to exempt em- 
 ployers from penalty in case of falsity. Powers were 
 given or confii^med to justices, but the important provi- 
 sion was introduced that uo justice being the proprietor 
 or master of a cotton mill, or the father or son of such, 
 should act as justice in respect of this law. 
 
 There soon followed that troublous time when trades 
 unions were rampant and the Reform Bill imminent. 
 The Factory king, Richard Oastler, now came forth into 
 notoriety, advocating a Ten Hours Bill. The only im- 
 mediate fruit of the agitation, however, was the Act 
 1 and 2 Will. IV. cap. 39, which, Avhile repealing five 
 previous enactments, consolidated and slightly improved 
 their provisions. But this Act had the great advantage 
 of being carried into effect to a considerable extent, the 
 law having been previously much disregarded. There 
 soon followed, however. Lord Althorp's Act of 1833 
 (3 and 4 Will. IV. cap. 103), which introduced several 
 important novelties. The distinction Avas now intro- 
 duced, which has been ever since maintained, between 
 " children " admitted to work of the ages nine to thirteen 
 years, and "young persons" of ages from thirteen to 
 eighteen years. The attendance of children at school 
 was now also rendered compulsory, and effectively pro- 
 vided for. Children were not to work more than nine 
 hours per day, and were to spend two more hours daily 
 in school. It is said that this "half-time" principle Avas 
 quite accidentally discovered. Some means being sought 
 whereby evidence should be available that a child Avas 
 not working at a certain hour, it Avas suggested by Mr.
 
 Ill THE FACTORY ACTS 57 
 
 Edwin Chadwick tliat presence in school Avould afFoixl 
 the best possible evidence. Thus it came about that all 
 factory children have for half a century past received 
 something to call education. 
 
 Passing over many technical difficulties which were 
 encountered in ascertaining the ages of children, whether 
 by reference to stature, general appearance, dentition, 
 etc., we come to the Consolidating Act, which Sir Kobert 
 Peel carried in 1844, namely the Factory Act (7 and 8 
 Vict. cap. 15). The hours of labour of children of eight 
 (instead of nine) years of age and upwards were now 
 reduced to six and a half, three hours' daily attendance 
 at school for five days per week being further required. 
 In some cases, however, alternate days of ten hours' 
 labour and five hours' schooling were allowed. Various 
 careful regulations were made about meal times, during 
 which times no children nor young persons were to be 
 allowed to remain in the workrooms. Many such regula- 
 tions, which appear at first sight needless or oppressive, 
 were found by experience to be requisite to prevent evasion 
 of the law, and to facilitate discovery of infractions by the 
 inspectors and sub -inspectors, who were now endowed 
 with considerable powers. Under the original Health 
 and Morals Act visitors were to be appointed by the 
 local justices, but the law was generally disregarded. 
 The Act of 1833 introduced the principle of centralisa- 
 tion, enabling the Crown to appoint four inspectors, with 
 all kinds of functions, including, at that time, magis- 
 terial powers. The latter powers were retrenched by 
 the Act of 1844, and inspectors must now prosecute 
 before a court of summary jurisdiction ; but in every 
 other respect the inspectors have retained or advanced
 
 58 THE STATE IN RELATION TO LABOUR chap. 
 
 their functions, and they have been the key to the suc- 
 cess of the whole system. 
 
 The subsequent Factory Acts are of less general 
 interest, being chiefly occupied either with more nar- 
 roAvly defining hours, or with extending the provisions 
 of the Acts to additional branches of industry. Th"s 
 the 13 and 14 Vict. cap. 54, detined the legal Avorking 
 day as limited between six in the morning and six in 
 the evening, Avith an hour and a half for meals, leaving 
 a maximum of ten and a half hours for work. Any 
 person simply found upon the premises of a factory was 
 to be deemed at work. A Saturday half-holiday after 
 two o'clock Avas securely provided for. 
 
 The legislation so far described related only to textile 
 factories — cotton, woollen, silk, or linen. Bleaching 
 and dyeing works Avere only brought under restriction 
 in 1860, by the 23 and 24 Vict. cap. 78. Mining in- 
 dustry had been regulated so far back as 1842, Avhen 
 the Mining Act (5 and 6 Vict. cap. 99) absolutely pro- 
 hibited the employment of females, and boys under ten 
 years of age, underground. In 1850 the supervision of 
 mines was vastly improved by the Coal and Iron Mines Act 
 (23 and 24 Vict. cap. 151) which introduced a variety 
 of precautions as regards the health and safety of miners, 
 and cmpoAvered the appointment of a staff of inspectors. 
 In 18G2 double shafts Avere required to be provided to 
 coal mines. Several minor industries, such as manufac- 
 tories of earthenware, lucifcr matches, cartridges, etc., 
 Avere brought under regulation in 18G4. 
 
 A great advance was carried out by the Factory Acts 
 Extension Act and the Workshop Regulation Act, both 
 passed in 18G7 (30 and 31 Vict. caps. 103 and 146),
 
 in THE FACTORY ACTS 59 
 
 which brought almost all establishments to be called 
 manufactories under supervision, the number of suIj- 
 inspectors being increased for the purpose. The regu- 
 lations of the Workshop Act, however, were to be 
 enforced by the local authorities. A kind of experi- 
 mentum crucis Avas thus afforded to show the com- 
 parative merits of localised and centralised management, 
 which resulted entirely in favour of the latter. Many 
 tOAvn councils explicitly resolved not to interfere with 
 trade, and many more silently ignored the Act, so that 
 the inspectors were obliged to declare, in 1868 and 1869, 
 that the Workshop Act was a dead letter. Compara- 
 tively little interest attaches to some of the subsequent 
 Acts, such as that of 1870, extending the Factory Acts 
 Extension Act to print, bleaching, and dyeing -works, 
 and to preserving and fish-curing establishments, or the 
 Amendment Act of 1871, allowing Jews to work on 
 Sundays. Another Act of 1871 (34 and 35 Vict. cap. 
 104) transferred the supervision of workshops from the 
 local authorities to the inspectors and sub-inspectors of 
 factories, who were to enforce the law and make reports 
 as in the case of factories. The Factories (Health of 
 Women) Act of 1874 much enlarged the powers of 
 inspectors, and made many small improvements in the 
 law which it is needless to refer to, inasmuch as the 
 whole of the laws relating to factories and Avorkshops 
 generally are consolidated and codified, as already 
 stated, in the Act of 1878. The changes eff"ected 
 by this Act, indeed, were not great, the chief pur- 
 pose of the consolidation being to make the law 
 clear, consistent, and embodied in a single convenient 
 code.
 
 60 THE STATE IN RELATION TO LABOUR chap. 
 
 The Factory and JFarhhoj) Act, 1878.— This Act 
 (41 Vict. cap. 16), Avhich has no preamble at all, con- 
 sists, in addition to two preliminary sections giving 
 the short title and commencement of Act, of four 
 principal parts, and six schedules. The first part con- 
 tains the general law relating to factories and work- 
 shops, treating in succession of sanitary provisions, the 
 safety of employees, their employment and meal hours, 
 holidays, the education of children, certificates of fit- 
 ness, and notice and investigation of accidents. Part II. 
 is of a more detailed character, and provides specially 
 for particular classes of factories and workshops as 
 regards health and safety, special restrictions of employ- 
 ment, special exceptions regarding Jews, meal hours, 
 overtime, night -work, doniestic employment, etc. In 
 Part III. the machinery of administration is provided — 
 the appointment of inspectors, certifying surgeons, regu- 
 lation of clocks, provision of registers, enforcement of 
 penalties, and legal procedure, being provided for. There 
 yet remains Part IV., which settles the difficult question 
 of definition of terms, the mode of application of the Act 
 to Scotland and Ireland, and adds a few trifling excep- 
 tions, finally repealing all the previous sixteen Factory 
 Acts, and a few sections of other Acts, as enumerated in 
 the sixth schedule. There are, moreover, five important 
 schedules, giving detailed lists of occupations subject to 
 certain special restrictions or exceptions. Such, however, 
 are the complications of this remarkable code of law, — the 
 mere table of contents filling eight pages and the text 
 sixty-five, — that anything approaching to a commentary 
 upon its effects would fill a large volume. In addition to 
 several publications of Mr. Alexander Redgrave, a text-
 
 Ill THE FACTORY ACTS 61 
 
 book of the Act has been published by Mr. G. J. Notcutt, 
 entitled " The Law relating to Factories and AVorkshops, 
 with Introduction and Explanatory Notes ; comprising 
 the Factory and Workshop Act, 1878, and the Orders 
 of the Secretary of State made thereunder." Second 
 Edition. London, 1879 (Stevens). 
 
 It is a peculiarly difficult task to give in a few words 
 the general effect of this Act, because there are in almost 
 every clause various alternatives or options in addition 
 to exceptions and other complications. Thus every 
 abbreviated statement is of necessity more or less in- 
 accurate. The general assumption of the Act is, that 
 labour in textile factories involves a more severe strain 
 than that in non-textile factories and workshops. While 
 the longest period for which a young person or Avoman 
 may be employed in textile labour without an interval 
 for meals is four and a half hours, the corresponding 
 limit for other labour is five hours. Textile factories are 
 defined in section 93 as premises in which steam, water, 
 or other mechanical power is used in manufacturing 
 cotton, wool, hair, silk, fiax, etc., not including bleach, 
 print, and various other kinds of works. Non-textile 
 factories are described in a long schedule ; and workshops 
 are practically any places not being factories where 
 manufacture is carried on. 
 
 The hours of work seem to be in no case absolutely 
 fixed, but on five days a week are either to begin not 
 before 6 A.m. and end not later than 6 P.M. (in work- 
 shops 9 P.M.), or else begin not before 7 A.m. and end 
 not later than 7 P.M. On Saturdays work must end at or 
 before 2 P.M. in textile and 4 p.m. in other factories and 
 workshops. The meal-times shall amount to not less
 
 62 THE STATE IN RELATION TO LABOUR chap. 
 
 than two hours in the day in textile factories, and one 
 hour and a half in other places of work, except on 
 Saturday, when half an hour only may be allowed. The 
 general result seems to be a working week of 56i hours 
 in textile factories, and 60 hours in non-textile factories 
 and workshops, subject to exceptions, holidays, etc. 
 
 The regulations for the employment of children are 
 of a far more complex character. The 20th section, in- 
 deed, is simple enough, absolutely prohibiting the employ- 
 ment in any factory or workshop of children under the 
 age of ten years — a rule extended to industry generally 
 by the 5th section of the Elementary Education Act of 
 1876, 39 and 40 Vict. cap. 79. Under sixteen years of age 
 a certificate of fitness for factory labour must be obtained. 
 Children are only to be worked upon the half-time system, 
 which admits, however, two methods, either of working 
 part of the day in the factory and another part in school, 
 or else attending the factory and school on alternate days. 
 On the latter system the child is treated much on the 
 terms of a young person, but must never be employed at 
 work for two days in succession, nor without alteration 
 of the days in each alternate week. 
 
 In the daily half-time system, morning sets of children 
 begin with the young persons, but end at one o'clock, and 
 afternoon sets begin at one o'clock and end with the 
 young persons. The morning set of one week becomes 
 an afternoon set the next week, and vice versd. The 
 Saturday half-holiday is provided for in an elaborate 
 way. When employed in a morning or afternoon set, a 
 child is required to attend a recognised efficient school 
 for one attendance every day excepting Saturday. On 
 the alternate day system two attendances shall be made
 
 Ill THE FACTORY ACTS 63 
 
 on each work day preceding each day of employment. 
 Sunday labour is prohibited on the part of all children, 
 young persons, and women, excepting Jews, for whom 
 special regulations are provided. There are, moreover, 
 all kinds of special exceptions and relaxations in parti- 
 cular trades. Manual labour carried on by a family in 
 their own dwelling is exempted from restriction under 
 section 98, provided that the labour is exercised at 
 irregular intervals, and does not furnish the whole or 
 principal means of living. The work of straw -plaiting, 
 pillow-lace-making, and glove-making is expressly ex- 
 empted under section 97 when carried on in a private 
 house, and such exemption may be extended by the 
 Secretary of State to other light, healthy handicrafts. 
 As the terms employed do not include male persons 
 above the age of eighteen years, except in the sections 
 relating to safety and sanitary precautions, it follows 
 that men are allowed to work as they like, day or night. 
 
 There are various further exceptions ; thus overtime 
 is freely allowed up to nine or ten o'clock at night, when 
 fruit has to be suddenly preserved, or railway guides 
 bound at the end of the month, or Christmas presents 
 rapidly pushed forward, or some similar press of work 
 undertaken. When water-mills are liable to be stopped 
 by drought or flood, a certain amount of overtime may 
 be granted by the Secretary of State to make up the loss. 
 
 A number of additional relaxations or changes have 
 been made by order of the Secretary of State, i;nder 
 powers given in several sections ; thus another day has 
 been allowed to be substituted for the Saturday half- 
 holiday in the case of printing-offices engaged in printing 
 newspapers, railway time-tables, and other urgent publi-
 
 64 THE STATE IN RELATION TO LABOUR chap. 
 
 cations, as also in certain workshops where clothes are 
 being made. Other orders grant a five hours' spell in 
 the hosiery and woollen factories of certain counties ; vary 
 the holidays ; alter the meal hours ; allow employment 
 during meal hours; allow thirty minutes' overtime in 
 case of non-completion of work, and so forth. 
 
 Adult Male Labour. — It is quite possible that, at some 
 future time, attempts will be made to press upon the 
 attention of the Legislature measures for the restriction 
 of adult male labour. At present, under the Factory 
 and Workshop Act, regulation of the time of labour is 
 carefully limited, as already explained, to the labour of 
 children, young persons, and women. The Legislatui'e 
 has, in fact, always abstained from interfering with the 
 liberty of adult men to work as long or as short a time 
 as they like. Indirectly, however, a large number of 
 workmen fall practically under restriction, because, 
 where many children or women are employed, the 
 whole labour of the factory is brought to a stand when 
 the clock strikes the hour assigned for stopping in the 
 Act. It is well known, however, that many men 
 advocate the interference of the Legislature in all fac- 
 tories whatsoever. The ultimatum of the working 
 classes is expressed in the following couplet : — 
 
 "Eight hours to work, eight hours to play ; 
 Eight hours to sleep, ami eight shillings a day." 
 
 In the United States an Eight Hours Act has already 
 been passed in some of the States, but being purely per- 
 missive in character, has proved to be a dead letter. 
 An Act which defines a day's labour as being that of 
 eight hours, in the absence of any stipulation to the
 
 Ill THE FACTORY ACTS 65 
 
 contrary, is, of course, easily set aside, and has l^een 
 generally disregarded. 
 
 I venture to maintain that the question of limiting 
 adult male labour in associated and organised bodies of 
 men is not to be decided once for all on some supposed 
 principle of liberty. The same principle, if it existed, 
 would apply to adult women. We must treat the ques- 
 tion on the varied and detailed grounds of expediency. 
 No one, indeed, would propose to interfere with the 
 workman labouring in his own private shop or dwelling. 
 There each man can work as he likes. But where a 
 large number of men are employed together in a factory 
 there is not the same individual liberty ; all must con- 
 form to the wishes of the majority, or the will of the 
 employers, or the customs of the trade. I see nothing, 
 therefore, to forbid the State interfering in the matter, 
 if it could be clearly shown that the existing customs 
 are injurious to health, and that there is no other 
 probable remedy. Neither principle, experience, nor 
 precedent, in other cases of legislation, prevents us from 
 contemplating the idea of State interference in such 
 circumstances. 
 
 But we are bound in a question of this sort to place 
 ourselves at every point of view, and to accept all kinds 
 of information, irrespective of any strict laws of 
 evidence. Thus, when we hear workmen debating on 
 the moral and sanitary advantages of an Eight Hours 
 Bill, we must remember the prevalent fallacy that the 
 limitation of labour raises its price, and transfers some 
 of the master's profits to the workman's pockets. To 
 lessen the day's labour by one hoiu", is to lessen the 
 supply of labour by one-ninth or one-tenth part, and to
 
 66 THE STATE IN RELATION TO LABOUR chap. 
 
 the same extent to waste the efficiency of all machinery, 
 and of the fixed capital connected therewith. It is an 
 economic fallacy to suppose that any adequate counter- 
 balancing advantage can, as a general rule, arise out of 
 this loss, except of course the recreative, sanitary, or 
 intellectual advantages (if any) to the workman from 
 his enjoyment of more leisure time. When we observe, 
 too, that trades unions are already constantly Avi^angling 
 with employers for a reduction of hours, while individual 
 workmen are generally ready to work overtime for a 
 moderate inducement, we shall be led to think that 
 there is no ground whatever for legal limitation of adult 
 male labour in the present day. Where the interference 
 of trade societies is already, if anything too great, there 
 would be harm rather than good in adding Grovernment 
 restrictions. 
 
 Gh'andmotherly Legislation. — In spite of the conclusion 
 just arrived at, I think it well to show by example that 
 the Legislature has fully conceded, even for adult men, 
 the principle of "grandmotherly legislation," if principles 
 must be spoken of. I may mention again the Truck 
 Acts as a standing proof that men have been held to need 
 the protection of the State in some of the simplest 
 transactions of life. The freedom of contract is actually 
 destroyed by such laws. It is only necessary again to men- 
 tion the Coal Mines Act and the Metalliferous Mines Act 
 (35 and 36 Vict. caps. 76, 77), or the complicated series 
 of Acts relating to merchant shipping, to show what a 
 mass of legislation has already been sanctioned for the 
 protection mainly of adult men. The provisions of the 
 law to rei^ress crimping and imposition by the keepers
 
 Ill THE FACTORY ACTS 67 
 
 of seamen's lodgings (17 and 18 Vict. cap. 104, sections 
 233-238) are especially a case in point. Any person can 
 be fined five pounds who, on board a ship within twenty- 
 four hours of her arrival, solicits a seaman to become a 
 lodger. The seaman is treated by the law as if he 
 were a mere child ; but there is no like law to protect 
 the bewildered traveller, who, in stepping out of the 
 railway -station at some strange town, finds himself 
 beset by a score of hotel porters and touts of various 
 descriptions. 
 
 The point of the matter, however, is most curiously 
 illustrated by the history of the law relating to the 
 fencing of machinery. By the 7 and 8 Vict. cap. 15, 
 sec. 21, it was enacted that "every fly-wheel . . . and 
 every hoist or teagle, near to which children or young 
 persons are liable to pass or be employed, and all parts 
 of the mill-gearing^in a factory, shall be securely fenced." 
 When these words came to be critically read by those 
 machinery owners, to whom they were a matter of 
 pecuniary importance, it was argued that the limitation 
 "near to which children or young persons are liable to 
 pass " must have been intended to apply to all parts of 
 the mill-gearing in a factory as well as to the fly-wheel, 
 hoist, teagle, etc. The contrary supposition not only 
 produced some absurd distinctions between parts which 
 were always to be fenced and those which were only 
 sometimes to be fenced, but it led to the very sweeping 
 result that a vast amount of machinery to which men 
 alone had access was to be fenced just as if women and 
 children were in question. The principle of adult male 
 protective legislation was in fact involved unintention- 
 ally in the awkward wording of the clause. The disputes
 
 68 THE STATE IN RELATION TO LABOUR chap. 
 
 which arose in consequence induced the Government to 
 pass a special Act (the Factory Act of 1856, 19 and 20 
 Vict. cap. 38), for the purpose of explaining and limiting 
 the words above quoted. It was enacted that " the said 
 section 21, so far as the same refers to mill-gearing, 
 shall apply only to those parts thereof with which 
 children and young persons and women are liable to 
 come in contact, either in passing or in their ordinary 
 occupation in the factory." Adult males, then, were to be 
 left to be crushed to death by their own carelessness, 
 when so small an expenditure would render these acci- 
 dents nearly impossible. Twenty years later the absurdity 
 as well as the inhumanity of this limitation seems to have 
 become apparent, and in the Factory and Workshop Act 
 of 1878 the sections (5 and 6) relating to the fencing 
 of machinery apply to "any person," which of course 
 includes the adult male. Nor, while these sections were 
 debated in committee, was any objection made nor any 
 reference to the old disputes. The regulations in the 
 same Act relating to bakehouses involve men as well as 
 boys, but it was explained by Mr. Cross that they were 
 intended for the good of the bread, not the good of the men. 
 But the principle of legislation for men was sufficiently 
 conceded in the matter of fencing. 
 
 Adult Women's Labour. — After the remarks just made 
 upon the expediency of restrictions on adult men's labour, 
 it may be superfluous to consider whether like restric- 
 tions are justifiable in the case of adult women. It 
 seems to be conceded that women are less able to take 
 care of themselves than men, and accordingly since 1833 
 they liave been an object of care to the Legislature. No
 
 Ill THE FACTORY ACTS 69 
 
 doubt, with trifling exceptions, they have formed no 
 trades unions, and apparently have taken no measures to 
 protect themselves. In the case of domestic service, 
 nevertheless, they have known perfectly well how to 
 advance their interests. It is, indeed, a remarkable fact 
 worthy of careful notice, that while factory labour has 
 engrossed so large a share of the attention of Parliament, 
 and added a multitude of Acts to the Statute-Book, there 
 is really no statute law worth speaking of which relates 
 to domestic service. The common law, which in this case 
 means little more than custom, has been found sufficient 
 to secure the rights and interests of adult women as well 
 as men. This, however, seems to indicate by contrast the 
 need for legislation where the conditions of labour are 
 very diff'erent. The most absolute of labour prohibi- 
 tions, for instance, is that of the Act of 1842 (5 and 
 6 Vict. cap. 99), which declared it to be "unfit that 
 women and girls should be employed in any mine or 
 colliery." Everybody has acquiesced in this law, and 
 though the circumstances of mines may be described as 
 exceptional, so in fact in some degree are all the circum- 
 stances in which restrictive legislation has been applied. 
 A factory where people work together in large numbers, 
 and under necessity to remain the whole interval of time 
 determined by the employers or by custom, is an excep- 
 tion to the conditions of agricultural or domestic labour 
 which had prevailed from primeval times down to a 
 century or two ago. 
 
 Professor Fawcett has upon every suitable occasion 
 — especially in his powerful speech in the House of 
 Commons on 30th July 1873 — protested against inter- 
 ference with adult women's labour on the 2;round that
 
 70 THE STATE IN RELATION TO LABOUR chap. 
 
 there was no more justification for interfering with their 
 labour than there was for interfering Avith the labour of 
 men.^ This opinion he repeated in the debates upon the 
 Factory Act of 1878. His argument does not readily 
 admit of answer except upon the grounds adopted gener- 
 ally in this essay. If the liljerty of the subject, or any 
 abstract indefeasible right, is to be recognised, Professor 
 Fawcett cannot be answered. But if we say that legis- 
 lation is a matter of circumstance, and must be guided 
 by experience, then there are ample grounds, not only 
 for the Mines Act of 1842, but generally for the course 
 of legislation in regard to women. In the next section, 
 indeed, I venture to advocate a decided advance in 
 restrictive legislation as regards women. 
 
 Employment of Mothers. — Another question relating 
 to the factory laws is that of the expediency of allow- 
 ing the employment, as is usually said, of married, 
 or more strictly speaking, of child-bearing women in 
 factories and workshops. The great evil which arises 
 from such employment is the separation of the mother 
 from her young children. In the case of infants who 
 ought to be suckled, the result is usually disastrous. 
 Committed during the whole day to the care of inexperi- 
 enced and uninterested nurses, they are fed on " pap " — 
 that is, bread and water — or some mixed food hardly more 
 suitable to an infant's stomach. A large proportion 
 succumb, and those who, by any fortunate accident of 
 more vigorous constitution or slightly better treatment, 
 survive, are too often ruined physically and mentally, 
 and grow up into a stunted and sickly generation. Im- 
 ' Fawcctt's " Speeches on some Current Political Questions," p. 133.
 
 Ill THE FACTORY ACTS 71 
 
 provident marriages, too, are much promoted by the fact 
 that the mother can earn her own living. The evils 
 arising out of the admission of mothers to the mills are 
 in fact so palpable, and so generally admitted in the 
 manufacturing districts, that the only question is. Are 
 such evils remediable 1 
 
 It has long, indeed, been one of the most frequent 
 and urgent proposals of trade unionists that married 
 women should be "taken out of the mills." The so- 
 called labour advocates are often a great deal nearer to 
 the truth than the general public believe. But then, 
 unfortunately, they give reasons for their opinions, and 
 these reasons will not always bear examination. Thus, 
 in favour of the summary exclusion of married women, it 
 is argued that the market is overstocked, and that if 
 married women were taken out the operatives would 
 realise a great social and domestic benefit, whilst " much 
 of the overplus labour would be reduced." This, however, 
 is obviously bad political economy. We cannot possibly 
 increase the Avelfare of the people by lessening labour, 
 the source of wealth. But there is another possible 
 aspect of the matter. It must not be necessarily assumed 
 that the amount of earnings is the measure of advantages 
 enjoyed. Those who know not how to spend well are 
 often injured rather than bettered by higher earnings ; 
 and when these earnings are acquired at the cost of 
 neglecting a young family and destroying the home, the 
 evils may become such as to demand the attention of the 
 Legislature. The doctrine of the liberty of the subject 
 will of course crop up again. On what ground, it Avill be 
 asked, can we presume to think of preventing an adult 
 woman, not uncommonly an unmarried woman, with full 
 
 F
 
 72 THE STATE IN RELATION TO LABOUR chap. 
 
 legal rights, from working where she pleases 1 In this case 
 the answer is particularly easy and conclusive. On the 
 ground that the first duty of a mother is to give that 
 sustenance to her infant which she alone can give in 
 perfection. Now the Factory Act practically obliges a 
 Avoman who works under it to remain at work four and 
 a half hours at a spell, which is about tAvice the interval 
 Avhich should elapse between the meals of a very young 
 infant. The result is that suckling is abandoned, or, 
 what is perhaps still worse, an alternation of artificial 
 and of deteriorated natural food is given to the child. 
 In any case the interests of a future generation are sacri- 
 ficed to the apparent good of the present, and the 
 foundation is laid for multitudinous evils in the future. 
 Hence arises a considerable part of the shocking infantile 
 mortality prevailing in many parts of the manufacturing 
 districts, accompanied by much immorality and intem- 
 perance not unnaturally produced by the destruction of 
 home influences. 
 
 As some incredulity seems to exist in England as to 
 the expediency and practicability of legislation concern- 
 ing this subject, it may be well to mention that the 
 Social Science Association of Germany, according to Mr. 
 Mundella, warmly advocates the entire exclusion of 
 married women from factory labour. The subject has 
 also been carefully investigated by Mr. Carroll D. 
 Wright, the chief, and Mr. George H. Long, the deputy- 
 chief, of the Massachusetts Statistical Bureau. Their 
 conclusions, as stated in the Sixth Annual Eeport of the 
 Bureau, published in March 1875 (Public Document, 
 No. 31), are in such striking accord with the views hero 
 advocated that I must make some brief quotations. On
 
 Ill THE FACTORY ACTS 73 
 
 pp. 183-4 the American statisticians denounce the 
 employment of married women (i.e. mothers), as "at 
 once the most harmful wrong, and the most difficult to 
 reach." With some deprecation of popular opinion they 
 pronounce "that married women ought not to be tolerated 
 in mills at all. Vital science will one day demand their 
 exclusion ; but ive certainly can recommend the regula- 
 tion of their work." As to the effect of such employ- 
 ment upon the health and welfare of the offspring, they 
 conclude — "it is an evil that is sapping the life of our 
 operative population, and must sooner or later be regu- 
 lated, or, more probably, stopped." 
 
 In the paragraph which I quote below, the American 
 statisticians explain what has not received proper atten- 
 tion here, namely, that the employment of a married 
 woman under the Acts practically defeats the intention 
 of those Acts, inasmuch as she has domestic work to 
 perform in addition to a full day's work at the mills. 
 They say — 
 
 " We find it a difficult subject to treat, so many 
 obstacles come up, so many seemingly insurmountable 
 barriers, so much that smacks of sentimentalism, but 
 still speaks to one's highest appreciation of real justice 
 and mercy, and to one's sympathy for the helpless who 
 now must be raised in such a way as to entail constant 
 expense, when, by proper treatment and deprivation 
 from immediate earnings, comfort and strength for old 
 age would be secured. It is a knotty point, and one 
 which must demand the attention of philanthropists and 
 law-makers, as it already has of mill-owners, and which 
 will soon call for serious consideration ; but it is so 
 delicate and so knotty, we can at the present time do little
 
 74 THE STATE IN RELATION TO LABOUR chap. 
 
 more than enter an earnest appeal for this class of workers, 
 which has, as a class by itself, been overlooked in the 
 desire to establish some more noisy reforms. To be sure, 
 married women have received, or Avill receive, what 
 benefits accrue from the teu-hoiu" law; but when it is 
 considered that no ten-hour law can ever be put into 
 practical operation by the mother of a family, even when 
 she has nothing but her family to attend to, it will be 
 readily seen how utterly impossible it is for such law to 
 reach the woman who does ten hours' work in the mill, 
 cooks for her husband and children, and cares for the 
 household. It is a slavery which must be abolished or 
 alleviated ; and, if we succeed in drawing the attention 
 of earnest practical men to the subject, we shall have no 
 fear but the intelligence of the citizens of Massachusetts 
 will, at an early day, remove the evil." 
 
 So great are the social evils thus arising that no doubt 
 can exist as to the propriety of legislative interference 
 could a practicable method be devised which would not 
 entail counterbalancing evils. There are as usual many 
 possible courses. Summary and immediate exclusion of 
 mothers from factory work is out of the question, so con- 
 siderable are the numbers concerned, and so difficult the 
 position into Avhich many women have brought them- 
 selves by thoughtless marriages. Some intermediate 
 and palliative measure is therefore requisite, such as 
 the permission of employment for mothers at those 
 factories only where well -supervised crkhes are pro- 
 vided by the employers, the mother being permitted 
 to break the morning and afternoon spells in order to 
 suckle her child. This system has been carried into 
 efTcct in some French factories with nuich success ; and
 
 in THE FACTORY ACTS 75 
 
 it is regularly adopted in many laundries. Even without 
 legislative interference much good Avould be done if 
 employers would make it a rule to inquire into the cir- 
 cumstances of married or child-bearing Avomen, and only 
 to give employment where there are no young children 
 to be injured, or where, on consideration of all the cir- 
 cumstances, more harm than good would be done by re- 
 fusal. This system has long been maintained by a large 
 firm of cotton thread manufacturers in Glasgow. It 
 would be even more advantageous in the case of any large 
 isolated factory which furnishes the sole employment of 
 the neighbourhood. I will not, however, further dwell 
 upon this subject here, because I have recently treated 
 it at some length in the Contemimrary Review for January 
 1882 (vol. xli. pp. 37-53), where will be found a good 
 deal of evidence concerning the evils in question, and 
 some suggestions as to the best form of remedy. 
 
 Aj^iyrenticeshi]) or Industrial Slavery of Youths. — A sub- 
 ject well worthy of attention, but which receives little, 
 is that of apprenticeship, and the terms under which 
 young persons are educated to a trade. An admirable 
 article, to be found both in the Penny and the English 
 Cyclopcedias, and in Knight's Political Dictionary, gives a 
 detailed history of the law and practice of apprentice- 
 ship. The binding of young persons to serve masters 
 was unknown to the Romans and the Roman law. Its 
 origin is to be sought in the mediaeval guilds from the 
 twelfth century onwards, the purpose being obviously to 
 combine instruction with that limitation of numbers 
 entering a trade, which was always a prime point of guild 
 policy. Subsequently to the twelfth century appren-
 
 76 THE STATE IN RELATION TO LABOUR chap. 
 
 ticeship prevailed in all the more advanced nations of 
 Europe — in France, Germany, Italy, and Spain, as well as 
 England. According to Adam Smith, seven years was 
 the usual term of the engagement in all trades and 
 countries. But it is probable that there was no settled 
 rule. The number seven probably prevailed from the 
 superstitions or traditional reasons which made it pre- 
 dominate in many human institutions. Apprenticeship 
 is first incidentally noticed in the English Statute-Book 
 in the year 1388 (12 Rich. II. cap. 3). From the 7 
 Henry IV. cap. 17 (1405-6) we learn that apprenticeship 
 had become a common practice — so common that this 
 law was intended to prevent children from going into 
 trades and to retain them as agricultural labourers. 
 In another Act (8 Henry VI. cap. 11) the taking of ap- 
 prentices is stated to have been at that time a custom 
 of London time out of mind. The whole law of the 
 subject was consolidated and perfected by the celebrated 
 Statute of Apprentices (5 Eliz. cap. 4) of which the 
 second half, sections 25 to 48, is almost exclusively 
 occupied in defining the term of apprenticeship in various 
 trades. The general rule was (sec. 36) that no one could 
 be apprenticed other than such as be under the age of 
 twenty-one years, which section, together with the pro- 
 hibitions in section 31, was intended to prevent any 
 person from entering a handicraft unless he were brought 
 up to it when young. The term of apprenticeship was 
 to be seven years at least (sec. 26), "so as the term 
 and years of such apprentice do not expire or determine 
 afore such apprentice shall be of the age of twenty-four 
 years at the least." Apparently, then, every apprentice to 
 a manual occupation was bound to remain in such posi-
 
 Ill THE FACTORY ACTS 77 
 
 tion up to the age of twenty-four years at least, though 
 it is provided (sec. 25) that in agriculture twenty-one 
 years may be the end of the term. 
 
 We must suppose that the clauses of this great but 
 noxious Act relating to apprentices were found more 
 practicable and less tyrannical than those relating to 
 adult workmen, for they long remained in operation in 
 the trades which existed at the epoch of the Act. As 
 elsewhere remarked, newly invented occupations were 
 exempt under section 31 from the restrictions of the 
 statute, so that apprenticeship was in them optional. A 
 seven years' apprenticeship was, however, for a long time 
 the customary mode of entering all trades, and the cus- 
 tom survives even to the present day. It is a curious 
 fact, too, that even in those trades, such as the woollen 
 manufacture, which were legally under the Statute of 
 Apprentices, the law of Elizabeth was entirely forgotten, 
 being known neither to masters nor men. The custom 
 of the seven years' apprenticeship was, however, tradi- 
 tionally established, and a long struggle arose when 
 manufacturers began in the newly-built mills to intro- 
 duce women and children who had served no apprentice- 
 ship. Combinations of woollen weavers were at length 
 formed to endeavour to maintain the custom, and they 
 seem in time to have discovered the existence of the 
 Elizabethan law. While Parliament, on the one hand, 
 was occupied in endeavouring to suppress combinations 
 of workmen, these workmen succeeded in prosecuting 
 several employers and convicting them for breaches of 
 the Statute of Apprentices. As, however, the enforce- 
 ment of the law would have thrown great numbers of 
 working people out of employment. Parliament resorted
 
 78 THE STATE IN RELATION TO LABOUR chap. 
 
 in 1803 to the device of suspending the laws of appren- 
 ticeship, — a suspension renewed in successive years until 
 they were repealed in 1809 (49 Geo. III. cap. 109). 
 
 Thus at length died apprenticeship as the statutory 
 mode of entering trades. The recent entire repeal of 
 the 5 Eliz. cap. 4, and of various other statutes relat- 
 ing to the subject, has left little written law on the 
 subject except what relates to parish or marine appren- 
 tices. But there undoubtedly still remains the common- 
 law power on the part of parents of binding their children 
 apprentices, and so recent a law as the Employers and 
 Workmen Act (1875) recognises the custom by provid- 
 ing for the settlement of disputes between master and 
 apprentices (sections 5 to 7). Such disputes are to be 
 determined by courts of summary jurisdiction as if they 
 were between employers and workmen. The justices 
 may indeed rescind the instrument of apprenticeship, 
 ordering the whole or any part of the premium to be 
 repaid. But they may also order the apprentice to per- 
 form his duties, and if he fails they may, after the expira- 
 tion of one month, imprison him for a period not exceed- 
 ing fourteen days. This, moreover, may be done " from 
 time to time," which is understood to mean that after 
 one order of performance the justices may impose any 
 succession of fourteen-day terms of imprisonment upon a 
 refractory apprentice. Except, then, by the consent of 
 the jDarties, or the merciful discretion of the justices in 
 rescinding the indentures, the apprentice is in the posi- 
 tion of a slave to his master, bound to fulfil his reason- 
 able orders under the constant penalty of imprisonment. 
 
 There is reason to hope and believe, indeed, that the 
 practice of binding youths to long terms of aj^prentice-
 
 Ill THE FACTORY ACTS 79 
 
 ship is falling into desuetude. The demand for boys' 
 labour in factories, shops, workshops, the telegraph ser- 
 vice, etc., is so great that the youths are masters of the 
 situation; they can choose their employment, and ask 
 fair wages as well. Thus in many trades journeymen 
 are glad to get intelligent youths as assistants, without 
 insisting on a long term of service. As the intelligence 
 of children is raised under the Education and Factory 
 Acts this tendency will still further develop itself. In 
 fact, the seven years' indentures can only be required in 
 some few trades which by combination succeed in limit- 
 ing their numbers. The question may well admit of 
 discussion, therefore, whether on every ground the com- 
 mon law, allowing a parent to bind his child to a long 
 term of industrial servitude, ought not to be abolished 
 almost entirely. The law and practice is such as to give 
 the master a vastly greater power than the parent him- 
 self. The child is bound at an age when he can have 
 no sure judgment nor choice of a trade, and once bound 
 there is no further choice. There is no field for the dis- 
 play of inclination or talent. Surely the power of the 
 parent thus to divest himself of his responsibilities is 
 altogether anomalous, and in operation often little short 
 of barbarous. It is now simply a survival, an obsolete 
 relic of a former state of things. There is, however, 
 little need to argue about the matter, because the great- 
 est authorities have denounced the custom. Adam 
 Smith (JFealth of Nations, Book I. chap. x. part ii.) 
 especially has condemned long apprenticeships in well- 
 known passages. 
 
 " The institution of long apprenticeships has no tend- 
 ency to form young people to industry. A journeyman
 
 80 THE STATE IN RELATION TO LABOUR chap. 
 
 who Avorks by the piece is likely to be industrious, 
 because he derives a benefit from every exertion of his 
 industry. An apprentice is likely to be idle, and almost 
 always is so, because he has no immediate interest to be 
 otherwise. ... A young man naturally conceives an 
 aversion to labour, when for a long time he receives no 
 benefit from it. ... A young man would practise 
 with much more diligence and attention, if from the 
 beginning he wrought as a journeyman, being paid in 
 proportion to the little work which he could execute, and 
 paying in his turn for the materials which he might 
 sometimes spoil through awkwardness and inexperience. 
 His education would generally in this way be more 
 effectual, and always less tedious and expensive." 
 
 These opinions of Smith have been to a great extent 
 borne out by the disuse of apprenticeship in many trades. 
 What remains of the practice is a survival which ought 
 to be put an end to. Inquiry would, no doubt, be 
 needed as to the exact mode of doing this. Probably a 
 father ought not to be alloAved to hire out his child for a 
 longer term than one year at a time ; in any case, 
 apprenticeships should be limited to three years. Such 
 a tyrannical power as that possessed by the justices of 
 forcing a young person to work at an unwelcome trade 
 under the fear of constantly -renewed imprisonment 
 should be repealed, as befitting the Middle Ages rather 
 than the reign of Victoria. 
 
 Since the above remarks were first drafted, the public 
 has been startled by the case of the unfortunate youths 
 brought home from Constantinople by Mr. Littler, Q.C. 
 It was actually suggested in the Police Court that the law 
 against slavery would apply in the case of these youths ;
 
 Ill THE FACTORY ACTS 81 
 
 but the magistrate held that ^.pprenticeship bonds duly 
 executed held good against that law. The Englishman 
 is engaged in putting down slavery in all parts of the 
 world, but is unaware that parents can and do sell their 
 own children into slavery and wretchedness here in 
 London itself, under the forms of a law which ought to 
 be regarded as a mere survival from semi -barbarous 
 times. And although a child is legally an infant, and 
 incapable of most legal acts below the age of twenty-one 
 years, yet his nominal consent, even at a very tender 
 age, is held sufficient to consign him to industrial slavery 
 up to the age of legal majority ! 
 
 Shop Assistants' Lahour. — An important but hitherto 
 little regarded kind of industry is that of men, women, 
 and young persons employed in retail shops and ware- 
 houses. Where the work done is simply that of trade, 
 as distinguished from manufacture, the State has hitherto 
 held entirely aloof. The distinction is clearly an arti- 
 ficial one in many cases ; the making up of pounds of 
 sugar and the packing of goods is clearly a manual 
 operation, or sometimes a machine operation, identical 
 with much that is done in factories. Grocers' assistants, 
 too, are frequently employed in grinding coflee, chopping 
 loaf sugar, mixing teas, and the like. As a shopman or 
 woman seldom sits down during the hours of work, the 
 labour is exhausting in the long-run. In the character 
 of the work itself there is no reason why it should not 
 be regulated as much as various handicrafts. The 
 anomaly of the distinction drawn by the law is strongly 
 marked in the case of some establishments where per- 
 sons employed upstairs under the Factory and Workshop
 
 82 THE STATE IN RELATION TO LABOUR chap. 
 
 Act are brought downstairs to assist in the shop as soon 
 as the legal hour has struck upon the clock. 
 
 We must assume, then, that the hours of shop assist- 
 ants' labour remain unregulated from regard to the con- 
 venience of the public, or else from regard to the profits 
 of the employers. But the interests of the employers 
 have not been allowed to stand in the way of the crea- 
 tion of the Factory Acts. It seems, then, that it is the 
 public necessity or convenience which keeps shops open 
 to ten or twelve o'clock at night, and obliges shop 
 assistants to labour, in many cases, from fourteen to 
 eighteen, or even nineteen hours in the twenty-foui\ 
 
 It is well known that neither the shop people nor the 
 philanthropic public acquiesce entirely in this state of 
 things. The existence of many early closing associations 
 shows the prevailing discontent. Considerable success 
 has been achieved in some towns or parts of towns by 
 these associations, and most high-class shops now close 
 at six or seven o'clock, or nearly as early as we should 
 think desirable. But in the east end of London and 
 other poor localities the hours of closing are still very 
 late, especially on Saturday night. The difficulty of the 
 matter is clearly that of competition. Jones has a well- 
 grounded fear that if he closes his shop at 7 p.m., his rival 
 Brown will enjoy all the better trade until 9 or 10. Such 
 gain of customers may eventually enable Brown to drive 
 Jones out of the trade altogether. Failure in the com- 
 petition of retail trade may mean ruin. No ordinary 
 tradesman, then, can singly break through the custom of 
 the locality. It is obvious, too, that as a chain may 
 break from the defect of a single link, so the defection 
 of a single grocer from an early closing association may
 
 Ill THE FACTORY ACTS 83 
 
 oblige all the other grocers to withdraw. Only a strong 
 spirit of trades unionism, or else the abstention of the 
 public, or, in the last resort, legislative interference, can 
 effect early closing. 
 
 I venture to think that the early closing of shops in 
 so-called respectable neighbourhoods is mainly due to 
 the fact that richer customers usually go home to dinner 
 between 6 and 7 p.m., and, owing to our laisser faire 
 system of moral legislation, ladies especially are obliged 
 to retire from the streets about that time. The 
 working- classes, on the contrary, having come from 
 their employment at some time between half-past five 
 and seven o'clock, are then prepared, if not obliged, to 
 begin their shopping. If this be the state of the case, it 
 seems to be very doubtful whether any considerable 
 change Mall be effected without the intervention of the 
 Legislature. As there can be no doubt about the advan- 
 tage of shorter hours to the shop people, the only re- 
 maining questions regard the convenience of the public, 
 and the practicability of enforcing a restrictive law. As 
 to the latter point, Mr. Henderson, one of the inspectors 
 of factories in the Metropolis, expressed considerable 
 doubt, in his evidence before the Factory Acts Commis- 
 sion. Considering, however, that shops depend for their 
 trade upon publicity, and that competitors in trade 
 would have the strongest possible motives for expos- 
 ing each other's infractions of the law, I cannot see 
 the practical difficulties. An inspector, by merely 
 walking down a street of shops after the legal hour 
 of closing, would discover the infractions without much 
 difficulty. 
 
 The real point to consider, therefore, is whether the
 
 84 THE STATE IN RELATION TO LABOUR chap. 
 
 public, especially the working-class public, would suffer. 
 Judging from their present habits of shopping up to ten 
 o'clock at night, and twelve o'clock on Saturday nights, 
 they would suffer. It can hardly, indeed, be supposed 
 that anybody is driven by necessity to buy clothes, 
 furniture, and other permanent articles, after eight o'clock. 
 The case may be somewhat different with food, tobacco, 
 drinks, and other matters of immediate need. Some 
 doubt may arise as to whether the brightly-lighted streets 
 of a poor neighbourhood do not really form the promenade 
 ground of those who have few pleasures to relieve the 
 dull monotonous round of a laborious life. To those 
 who live in crowded dirty lodgings unsavoury streets 
 may be a breathing -place, and the well -filled shop 
 windows the only available museum of science and art. 
 Much care and discrimination would obviously be needed, 
 and a legislator might find the question almost as thorny 
 as that of public-house closing and the bona fide traveller. 
 In any case, it is necessary to approach the question 
 tentatively and gradually. The experiment might, more- 
 over, be tried at first in such separate towns as should 
 present strong petitions in favour of it ; but to prevent 
 unfair competition the law should apply to the whole of 
 a town, if to any part. The regulation might even be 
 carried out by special clauses in local Acts of Parliament, 
 in the same way that the municipal authorities of Man- 
 chester and Liverpool are endeavouring to remedy the 
 great abuse of young children trading in the streets at 
 night. Such special legislation no doubt needs to be 
 watched, but when properly watched presents the best 
 method of gaining experience. It amounts, in fact, to 
 experimental legislation.
 
 Ill THE FACTORY ACTS 85 
 
 Agricultural Labour. — Very little can be said in this 
 book on the subject of agricultural labourers. The 
 "hind," as he now exists in the rural parts of England, 
 is mainly the result of the Land Laws and the Poor 
 Laws, subjects of great extent and importance which 
 have little affinity with the special topic of this essay, 
 and are treated in other volumes of the same series. In 
 former centuries the agricultural labourer, in common 
 with all other labourers, came within the scope of the 
 Statute of Labourers, the Statute of Apprentices, and 
 other similar laws; but since such kind of legislation 
 became obsolete, the real peasant, so far as he has been 
 allowed to exist at all, has not been vexed with much 
 legislation. Even the Truck Act, as we have seen, does 
 not apply to him. A family living on their ancestral 
 farm, and cultivating it with their united labour, repre- 
 sent so natural and healthy a condition of life that little 
 or no interference of the State is needed. But bad laws, 
 especially bad Poor Laws, not to speak of bad Game 
 Laws, have in England caused the peasant to diverge 
 sadly from this state of things. The laws of pauper 
 settlement led to the general destruction of labourers' 
 cottages wherever they could possibly be destroyed. 
 The labourers were obliged to crowd together in the 
 nearest village or town. Hence, whenever much labour 
 was needed for the cultivation of root and other special 
 crops, gangs of men, boys, women, and children had to 
 be employed, in a manner giving rise to scandalous 
 results. As it was impossible all at once to reverse the 
 course of events which led to these abuses, the only 
 resource was to regulate agricultural gangs, a work 
 attempted in the 30 and 31 Vict. cap. 130. This Act
 
 86 THE STATE IN RELATION TO LABOUR chap. 
 
 provided that every person acting as gang-master should 
 previously obtain a license from the justices, on proof 
 that he was a person of good character, and fit to be 
 trusted with the control of a gang. No child under 
 eight years of age was to be employed ; no females were 
 to work in the same gang as men ; and, when females 
 were employed, a licensed female gang-mistress was to 
 be present. From the first the Act was to a great extent 
 evaded or disregarded. Although penalties were imposed 
 upon every breach of the Act, no machinery of inspection 
 or prosecution was provided ; it was nobody's business 
 to see that the Act was observed, and it was therefore 
 not observed. 
 
 Shortly after the passing of this Act were published 
 the elaborate inquiries of the Commission appointed in 
 1867 to investigate the employment of children, young 
 persons, and women in agriculture.^ The facts brought 
 to light showed abundant scope for State interference, 
 but no useful results have followed except as regards the 
 compu.lsory education of agricultural children. This was 
 specially provided for by the Agricultural Children 
 Act, 1873 (36 and 37 Vict. cap. 67), which, however, 
 was repealed for no very clear reason by the Elementary 
 Education Act of 1876, the j^rovisions of which were 
 substituted. But section 1 6 of the Agricultural Children 
 Act had already repealed so much of the fourth section 
 of the Agricultural Gangs Act as related to children, and 
 this repeal holds good. It seems to follow that the 
 remainder of this fourth section, relating to mixed gangs 
 and female gang-mistresses, probably entirely inoperative, 
 together with the provisions of the Elementary Educa- 
 1 Parliamentary Papers, 18G7-8 [4068 and i.], 1868-9 [4202 and i.]
 
 Ill THE FACTORY ACTS 87 
 
 tion Acts, forms practically the sum total of direct re- 
 strictive legislation now applying to agriculture. Here 
 is a wonderful contrast to the elaborate regulations of 
 the factory, workshop, shipping, coal mines, metalliferous 
 mines, and other Acts relating to the various branches 
 of manufacturing and commercial industry. It would 
 lead us too far to inquire Avhether this absence of 
 legislative restriction is due to its needlessness, or to 
 the unwillingness of landowning legislators to touch 
 the interests of their own order.
 
 88 THE STATE IN RELATION TO LABOUR chap. 
 
 CHAPTER IV 
 
 INDIRECT INTERFERENCE WITH INDUSTRY — TRADES 
 UNION LEGISLATION 
 
 Having now considered the application of the principles 
 of industrial legislation as manifested in the direct inter- 
 ference of the State, we have yet the larger and more 
 difficult part of the subject before us. Individuals are 
 in the habit of interfering with their neighbours' affairs, 
 and in the case of trade and industry such interference 
 has from early times assumed a decided form. Common 
 trade interest is one of the strongest and most frequent 
 bonds of society, and, judged by the light of history, is 
 likely always to be a considerable factor in social affairs. 
 It leads to the creation of secret or open confederacies 
 attempting to control not only their own members, but 
 all whose actions touch the trade interest. Imperia 
 in iniperio are continually growing up, and, under the 
 guise or name of guilds, fraternities, colleges, corpora- 
 tions, friendly societies, trades unions, institutes or asso- 
 ciations of various titles assume a right of government. 
 It thus becomes a highly important and difficult question 
 for the State to decide how such bodies can be treated. 
 The State in controlling the individual must, of course, 
 control his control over other individuals, where that
 
 IV TRADES UNION LEGISLATION 89 
 
 becomes noxious to the community. This task, how- 
 ever, is one of great difficulty, owing to the secret and 
 insidious forms which trade confederacy assumes when 
 prohibited, and the insensible way in which it varies in 
 degree from perfectly legitimate discussion to distinct 
 conspiracy, enforced occasionally by criminal outrage. 
 
 History of Trade Societies. — It is always needful to 
 view the present by the light of the past, but more 
 especially so in the case of trade societies. We learn 
 from history that such societies are among the earliest and 
 most persistent institutions of the human race. In the 
 Old Testament, for instance, are to be found allusions to 
 a guild of apothecaries (Nehemiah iii. 8, and other 
 passages, as specified in Mr. Spencer's Descriptive Soci- 
 ology, No. 7, p. 103). In the Roman State trade so- 
 cieties arose at least as early as the time of Publius 
 Servilius, under whose reign existed a collegium mer- 
 catorum. The Roman law, however, was very jealous 
 of the existence of any such bodies, and in the Digest we 
 find that the formation of collegia was prohibited unless 
 under the authority of the Emperor or a Senatus-Consul- 
 tum (Digest 47, tit. 22, ss. 1, 2, 3). No doubt in Roman 
 Britain such collegia opificum existed ; nevertheless the 
 first origin of modern trade societies must be traced to 
 the guilds of the rude Teutonic tribes. Space totally 
 fails me here to allow description of the three kinds of 
 guilds — Frith or Peace guilds, religious guilds, and trade 
 guilds — which undoubtedly existed in Saxon times, the 
 charters of some of them being extant in Thorpe's Diplo- 
 matarium Anglicum. The laws of Ina, Alfred, and 
 Athelstan mention and recognise such bodies, and even
 
 90 THE STATE IN RELATION TO LABOUR chap. 
 
 if some societies such as the Freemasons have not a 
 continuous history from the hne of Athelstan to the 
 present day, certain it is that trade guilds have never 
 been wanting ; the City Companies still meeting in their 
 guild halls are the lineal descendants in a degenerated 
 form of the Saxon guilds. For the whole history of the 
 mediffival guilds I must refer the reader to the essay of 
 Brentano " On the History and Development of Guilds, 
 and the Origin of Trades Unions," prefixed to the invalu- 
 able collection of documents given in Toulmin Smith's 
 English Guilds (Early English Text Society), also issued 
 separately. Brentano's own views on industrial legislation 
 should be read cum grano, but his history is excellent. 
 A great amount of information is also given in Mr. 
 C. Walford's Insurance Cyclopceclia, vol. v. article 
 "Guilds." 
 
 As the relations of labour and capital turn mainly 
 upon economic considerations, and as the theory of the 
 subject has been much misunderstood and perverted even 
 by economists, I commence with the briefest possible 
 exposition of what I conceive to be the true theory of 
 the mechanics of production. 
 
 Economics of the Lahour Question. — The economics of 
 the labour question may be stated in a manner brief and 
 simple enough. Production of wealth consists in the 
 putting together of certain materials, and the working 
 them up into some novel form by the aid of labour — that 
 is, by muscular force and mental skill and knowledge. 
 As with the Witches' Cauldron, there is needed 
 
 ' ' Double, double toil and trouble ; 
 Fire burn and cauldron bubble."
 
 IV TRADES UNION LEGISLATION 91 
 
 The point of the matter is that, like the contents of the 
 cauldron, the results of production form a joint result 
 or medley. All the constituents are thrown into hotch- 
 potch, and as it is impossible to say what part of the 
 product is due to any of the contributions thrown into 
 the cauldron, no natural, necessary, or legal principle of 
 dividing the proceeds can be assigned. If, indeed, all 
 the elements of production, the materials as well as the 
 labour and skill of management, are all due to one 
 person, he of course owns the whole of the products, and 
 no question of distribution arises. The product is 
 neither wages, profit, interest nor rent, nor any combina- 
 tion of these. It is wealth or commodity simply. 
 
 Under the complex arrangements of modern industry, 
 however, the several requisites which go to the produc- 
 tion of commodity, such as cotton cloth, are contributed 
 by dffferent persons and classes of persons. One person 
 owns the land on which the mill stands ; another builds 
 the mill and stocks it with machinery ; the work-people 
 furnish what might seem the most essential of all — the 
 labour which actually produces the cloth. But where 
 all are essential there can be no question of degree and 
 precedence. The finished product is the joint product 
 of all that was requisite to produce it. Quite clearly, 
 too, the wealth to be earned by all those concerned is to 
 be found in the aggregate product of the Avork after 
 being sold. Rent, profit, interest, and wages must all 
 be paid out of the proceeds of the business, which is in 
 modern trade the money value of the produce. 
 
 But the diflScult question now arises, on Avhat principle 
 or system, if any, the value of the joint product is to 
 be shared among the landowners, capitalists, managers.
 
 92 THE STATE IN RELATION TO LABOUR chap. 
 
 and workmen who have contributed to its production. 
 Property in result cannot possibly be traced, as we 
 have seen, through the complex process of manufacture. 
 Hence it may be safely said that there is no natural 
 principle, certainly no single and simple principle, on 
 which the division can be effected. No person's share 
 being defined, each must ask for the most which he has 
 any chance of getting, and must content himself with 
 the best which he succeeds in securing. Every contri- 
 butor enters voluntarily into the hotch-potch, and he 
 cannot demand more than was agreed upon when he 
 entered the partnership. Practically, the whole question 
 resolves itself into a complex case of the laws of supply 
 and demand. If any intended partner in the work of 
 production is dissatisfied with his assigned share of the 
 expected produce, he is at liberty to refuse to enter into 
 the business. The other partners then must either con- 
 cede his demands, or must find somebody else to take 
 his place, or must abandon the work. The whole 
 adjustment of distribution of wealth thus hinges upon 
 the question whether one person or thing will do as well 
 as another. A landlord cannot successfully ask a certain 
 rent for his land if another landlord is willing to let an 
 equally good and available site at a lower rent. A 
 workman cannot expect to get forty shillings a week, 
 while an equally good workman is ready to work at 
 thirty-five shillings. As to simple money capital, it 
 matters little whence it comes, provided it can be had 
 for a sufficient term, and the smallest fractional difference 
 in the rate of interest Avould therefore be a sufficient 
 cause of i)rcfcrence. The same princijjle holds true, 
 likewise, of the business capacity of the manager, though
 
 IV TRADES UNION LEGISLATION 93 
 
 in a less obvious manner. It all comes to this, that the 
 price which the owner of any kind of property, whether 
 land, labour, or capital, can demand is limited by the 
 price at which further supplies of the same kind can be 
 found. In other words, all like articles must be sold at 
 the same price when they come into competition with 
 each other in the same market. 
 
 Obviously, then, the rate of wages which workmen 
 can demand will depend upon the relation of supply to 
 demand of such particular kind of labour. The demand 
 depends upon the expected value of the produce. If a 
 certain kind of commodity is much wanted by consumers, 
 it means that considerable quantities can be sold at a 
 fair or high price. There will therefore be money 
 value in plenty to be divided between landowners, capi- 
 talists, and labourers. But if the production of such 
 commodity requires a peculiar skill in certain of the 
 workmen such as happens to be enjoyed by few men, 
 there is no limitation by competition, and any price can 
 be obtained by that skill and labour, provided, indeed, 
 that the shares of the other producers are not reduced 
 below what they could acquire in other occupations. 
 The whole affair, therefore, is one of comparative advan- 
 tages, each contributor to the hotch-potch trying to get 
 the largest share of the proceeds, short of the point at 
 which he will drive the other contributors to find other 
 hotch-potches where their shares will be better. There 
 is this further complication in the matter, that, as the 
 proceeds of production depend both upon the quantity 
 of commodity produced, and the price at which it can be 
 sold to consumers, there is no limit to the earnings of a 
 producer except the inclinations and means of the con-
 
 94 THE STATE IN RELATION TO LABOUR chap. 
 
 sumer — that is to say, the portion of other persons' pro- 
 ductions which he is able and wilHng to give in exchange. 
 The earnings of a labourer may therefore be large, 
 either because he can produce much commodity, or 
 because what he produces being much valued exchanges 
 for a large share of other labourers' products. There 
 thus arise two possible modes of increasing earnings : 
 the one being to increase products, so as to have more 
 to sell, and the second to decrease products in order to 
 sell them at a higher price. But there is this obvious 
 and all-important difference between these courses, that 
 the latter tends to impoverish all persons except the 
 producer, whereas the former tends to enrich both the 
 producer and those whom he supplies. It follows in- 
 evitably that if many or all people pursued the latter 
 policy it would fail altogether ; it can only succeed by 
 the few enriching themselves at the expense of the 
 many ; whereas the former policy of increasing products 
 enriches alike the giver and the receiver. It is twice 
 blessed, and is capable of unlimited adoption by all 
 parties. 
 
 A False Theory of Wages. — The view above stated of 
 the economics, or, as it might be called, the mechanics of 
 production, is so obviously true and so entirely in accord- 
 ance with facts that it might seem hardly to need the 
 emphasis here given to it.^ Nevertheless this view differs 
 fundamentally from the two theories (for mere theories 
 
 ^ This view of the economics of industry appears to be nearly 
 coincident with that put forth by the eminent American economist, 
 Professor Francis A. AValker, in his standard work on " The Wages 
 Question : a Treatise on Wages and the AVages Class ; " London,
 
 IV TRADES UNION LEGISLATION 95 
 
 they are) of the relations of capital and labour now or 
 recently prevailing. The first of these theories is known 
 as the wage -fund theory of the books on political 
 economy. It represents the rate of wages as depending 
 upon the amount of capital which employers think 
 proper to disburse as wages. The wages rate was re- 
 garded as the dividend, found by dividing the wages 
 fund by the number of labourers. But, though this 
 division doubtless takes place, there is nothing in the 
 theory to determine either the whole amount which is to 
 be divided, or the proportional share which any particu- 
 lar labourer may obtain. Nobody can possibly suppose 
 that workmen in different branches of production, or in 
 different ranks of the same branch, receive the same 
 wages. 
 
 Nor can anybody imagine that the capitalist distri- 
 butes his capital simply because it is his capital, irre- 
 spective of the produce which he expects from the 
 labour bought. The relations between the producer and 
 consumer are complicated and obscured by the fact that 
 the real producer seldom comes into relation with the 
 real consumer, whom he serves. The process of produc- 
 tion takes a long time to complete, and middlemen 
 intervene, who buy up the produce of one in order to 
 sell again to another. In his capacity of capitalist, the 
 owner and manager of a mill buys up the share of the 
 eventual proceeds which the factory hand may expect to 
 receive. The labourer cannot or will not wait many 
 weeks ; he wants to spend the value of his labour. 
 
 1878 (Macmillau) ; but the same view may be traced in tlie 
 \\Titiiigs of Jlr. Longe, the late Professor Cliffe Leslie, and others. 
 This is not the place to inquire into the niceties of the history of 
 economic doctrine.
 
 96 THE STATE IN RELATION TO LABOUR chap. 
 
 Hence his wages are paid, and spent, and consumed, 
 weeks, or months, or even years, before the useful eflfect 
 of his labour is enjoyed by consumers. The capitalist 
 bridges over this period and discounts the labourer's 
 share. 
 
 But it is not the less true that, in the long-run, the 
 wages are a share, not of the capitalist's property, but 
 of the products which that capital assists the labourer to 
 produce. Obviously, the amount which the capitalist 
 will advance to any particular workman is not the 
 amount which he possibly has to advance, but the value 
 of the product which he expects to receive, taken in 
 connection with what would be sufficient to pay for 
 equally good labour by other men. Cases, of course, 
 constantly occur where the labourer is quite ignorant 
 and indifferent as to what is to be the result of his 
 labour ; he simply does what he is asked, and gets his 
 customary pay. But even this ignorance will not neces- 
 sarily deprive him or his class from receiving in the long- 
 run their due share. For if some highly profitable means 
 of employing such labour arises, many capitalists will 
 engage in the work, and, in the absence of abundant 
 supplies of such labour, will be obliged to attract fresh 
 supplies by raising the rate of wages. But it is evidently 
 the produce in prospect and not the mere possession of 
 capital which induces this demand for labour. 
 
 Another False Theory. — The view here adopted of the 
 economics of industry differs also from that of many 
 members of trades unions, who appear to think that their 
 wages actually come out of their employers' pockets. 
 Inasmuch as the employer palpably hands over the wages.
 
 IV TRADES UNION LEGISLATION 97 
 
 it would seem that the more they receive the less he can 
 retain. There is no more fallacy in this idea than in 
 the theory of a good many economists who have held 
 that as wages rise profits must fall. But any such theory 
 is not only obviously defective in itself, but is opposed 
 to facts. It overlooks the fact that the amount received 
 by the employer is unfixed, depending, as we have seen, 
 both on the amount of goods produced aad on the price 
 at which the goods can be sold. Even assuming that 
 the former factor cannot be raised, it may be open to the 
 producer to raise the price of his goods, and thus recoup 
 himself for increased payments of wages. Whether he 
 can or cannot do so depends upon the state of the market, 
 and especially upon the question whether other producers 
 are under like circumstances. There are, of course, excep- 
 tional cases in which a heedless or unfortunate employer 
 may really have to pay out of his own pocket the in- 
 creased wages of his work-people, as when he has made 
 long-continuing contracts, or has commenced production 
 in the wrong part of the commercial cycle. But such 
 mishaps are more or less foreseen and discounted by 
 capitalists, who look to exceptional profits in brisk times 
 to balance these exceptional losses. Employers must 
 earn on the average the customary profits due to their 
 capital and skill, otherwise the greater attractions of 
 other branches of trade will draw capital away. Certainly 
 the employer will no more pay wages out of his own 
 private fortune than a wine merchant would pay the 
 wine duties. All such duties are paid by one hand, but 
 charged to another, namely the consumer, and so it is, as 
 a general rule, with all other costs of production. The 
 capitalist, like the merchant, is but an intermediary who
 
 98 THE STATE IN RELATION TO LABOUR chap. 
 
 gets goods ready for the consumer, and presents him in 
 the price a complete bill of costs. 
 
 So far is it from being true that high wages imply 
 loss on the employer's part, that the opposite result will 
 often follow. Such high wages usually arise from 
 circumstances occasioning scarcity and high price of 
 products. Now, on higher -priced goods the employer 
 will usually get a larger gross profit, even though the 
 rate be no higher than in ordinary times. But it may, 
 moreover, be possible for the employer to run up the 
 price of his goods more than in proportion to the rise 
 of wages, and he may thus net a considerable profit. 
 Certainly the efforts made by miners to limit the output 
 of coal and to raise wages during the coal famine of 
 1873-74 led to enormous gains on the part of many coal- 
 owners. 
 
 The result which emerges is that the supposed con- 
 flict of labour with capital is a delusion. The real con- 
 flict is between producers and consumers. The capitalist 
 employer is a part of the producing system, and his 
 conflict is naturally with the consumer who buys from 
 him. But his function of acting as discounter of the 
 labourer's share gives rise to a further conflict with the 
 labouring class. Thus it comes to pass that the capi- 
 talist is buff'eted about and bears the whole brunt of the 
 economic battle, while the consumer always smarts in 
 the end. 
 
 Imaginary Right to a Trade. — A question which really 
 lies at the basis of many past and jiresent disputes about 
 labour is Avhethcr a workman can claim any right of 
 property in his skill. It may be at least plausibly said
 
 IV TRADES UNION LEGISLATION 99 
 
 that in his education and training a skilled operative 
 expends no small amount of capital, which remains in- 
 vested in him, to be repaid by an annuity of higher 
 wages during his available working life. Any change in 
 trade which tends to supplant the skill thus acquired 
 may seem to be an invasion of property almost as dis- 
 tinctly as if a landowner were turned out of his estate. 
 Such arguments, however, can hardly be urged either 
 from an economic or, in the present state of the law, 
 from a legal point of view. We have nothing here to do 
 with rights of property in land, which are peculiar in 
 their nature, owing to the fact that land is necessarily 
 limited and exclusive, each portion of each other portion, 
 so that it must become sooner or later the monopolised 
 property of some person or body of persons. But labour 
 is the primary possession of every person ; it represents 
 the economic value of the person, and in respect of the 
 greatest number is the sole source of sustenance. 
 
 Anything, then, which tends to interfere with the 
 exercise by any person of the utmost amount of skill 
 of which he is capable, is primd facie opposed to the 
 interests of the community. There may, as we have 
 seen and shall further see, be counterbalancing advan- 
 tages which, as in the case of registered medical practi- 
 tioners and others, justify a certain restriction of industry 
 in a few cases. But these partial monopolies must be 
 fully justified and carefully regulated by the State. 
 Their raison d'etre must be the good of the people out- 
 side, not that of the privileged few inside the monopoly ; 
 and when they fail to secure this advantage they must 
 be either reformed or destroyed. But it is, of course, a 
 totally different matter for any body of labourers to
 
 100 THE STATE IN RELATION TO LABOUR chap. 
 
 endeavour to monopolise a trade without public sanction. 
 The presumption, usually confirmed by experience, is 
 that they intend such monopoly for their own benefit, 
 not for that of the public. The only possible answer is 
 that a trade society by maintaining regulations, by insist- 
 ing upon adequate training or apprenticeship as the 
 means of entry, and by raising a high esprit de corps, may 
 really serve the public better than an entirely disaggre- 
 gated body. Such, for instance, is the plea put forward 
 in defence of those arrant trades unions — the Inns of 
 Court. But the obvious retort is that if they are thus 
 anxious to serve the jiublic, they must allow the public 
 to judge of the manner in which the service is to be 
 performed. 
 
 The Original Plan of Modern Trades Unions. — Nor, as 
 we have elsewhere seen, is the common law more favour- 
 able to monopoly, the uniform doctrine of which has 
 been that restraint of trade is illegal, and may even be 
 punished as a misdemeanour. The case Avas, no doubt, 
 dififerent so long as the Statute of Apprentices remained 
 a part of the letter of the laAv. It might fairly be 
 argued that, when the condition of entry into a trade 
 was by law apprenticeship of at least seven years, per- 
 sons who, to use the old expression, " intromitted " them- 
 selves into the trade without due apprenticeship, invaded 
 legal property. This, accordingly, was the ground upon 
 which many petitions of working-men were grounded 
 when a parliamentary committee considered the proposed 
 repeal of the Statute of Apprentices in 1813. Some 
 time previously, in the very year which became an epoch 
 by the publication of the JVealth of Nations, there was
 
 IV TRADES UNION LEGISLATION 101 
 
 printed a very remarkable pamphlet, which more than 
 any other publication known to me discloses the origin 
 and principle of modern trades unions. I should sup- 
 pose that this pamphlet is now an exceedingly rare docu- 
 ment, as I know no copy except that in the British 
 Museum, of which the press mark is 1029, i. 6 (6). 
 (See Catalogue ad verhum ^' Flan.") It bears a long title, 
 as follows : — 
 
 " A practicable and eligible plan to secure the rights 
 and privileges of mechanics : with proper directions for 
 the journeymen, whereby they may get an advancement 
 in their wages without loss of time or hindrance of busi- 
 ness. Humbly submitted to the perusal of the com- 
 munity at large by the Author. London, 1776." 
 
 This ably written tract urges the general establish- 
 ment of trades unions. The journeymen of every shop in 
 a parish were to send one deputy to a parish meeting of 
 the trade, at which an agent for the parish was to be 
 selected out of their number. The parish agents, 
 again, were to meet at times to elect a special or grand 
 committee with proper salaries. Masters were eligible 
 equally with the journeymen, and half the special com- 
 mittee might consist of them. There might also be 
 two gentlemen not of the calling. All members were to 
 pay one shilling a month. All strangers before getting 
 employment in the metropolis were to apply to one of 
 the clerks of the society and get a certificate of having 
 entered themselves as a member. Before leaving London 
 they were to get certificates to carry into the country. 
 The grand committee were to make use of every lawful 
 means in their power to preserve their rights inviolate, 
 and to prevent those from exercising the calling who
 
 102 THE STATE IN RELATION TO LABOUR chap. 
 
 were not authorised by law, whether as journeymen or 
 masters. Those, however, were to be accepted who had 
 followed the trade prior to the establishment of the pro- 
 posed society. These arrangements, it was hoped, would 
 "deter those from communicating the secrets of our 
 trade, whose duty it is most to conceal them." The com- 
 mittee were further to avail themselves of every inform- 
 ation, and to pursue every legal mode to prevent any 
 person from working at "our" calling who refuses to 
 comply with the articles and resolutions of this society. 
 
 This plan, it will be at once seen, anticipates the 
 whole principles and mode of working of modern trades 
 unions. Societies appear actually to have been formed 
 on the basis sketched out, for, in Brentano's work (p. 110), 
 we find mention of an advertisement in 1802 calling a 
 meeting of one weaver out of the parish he represents, 
 in order to determine on prosecuting those who unlaw- 
 fully exercise or follow the trade of a weaver. But the 
 parish area was afterwards abandoned by societies, and the 
 limits of districts selected as might be most convenient. 
 Masters, again, have not in recent times taken the pro- 
 minent place assigned to them in the " Plan," although 
 in many trades it has been the practice to require both 
 foremen and employers to belong to the society at least 
 formally. In all other respects the raison d'etre and 
 the principles of action of trade societies are faithfully 
 sketched out in this remarkable pamphlet. One of the 
 ablest passages, however, is that in which the writer in 
 a few words puts the whole question of the right to a 
 trade before us. He says (p. 14) : — 
 
 "It has been frequently objected that to deprive an 
 ingenious man of the liberty to exercise his abilities
 
 IV TRADES UNION LEGISLATION 103 
 
 merely because his parents had it not in their power to 
 put him apprentice, and permit another of meaner parts 
 to prosecute business, only because he has enjoyed such 
 an advantage, is notoriously unjust and glaringly partial : 
 to which I answer, such is the imperfection of all human 
 laws, that in their operation some individuals are always 
 prejudiced ; and the nearest approaches we can make to 
 justice is by preferring the good of the whole to that 
 of a part. Whenever, therefore, the exercise of an 
 individual's abilities invades the rights of a whole 
 profession, civil and natural law proclaim such exercise 
 unjust." 
 
 It is impossible to deny the ingenuity of the argument 
 here given, identical with that ever since employed by 
 the advocates of exclusive trade societies : that the interest 
 of the many — i.e. the many of the same trade — is to be 
 preferred to the interest of one. A single workman, by 
 accepting wages below the tariff, or by working too 
 vigorously, may lead to a change prejudicial to the whole 
 trade. Of course the answer is that the still greater 
 number, the public at large, are left out of view altogether. 
 If the interests of a thousand are to overbalance those of 
 one, still more must the interests of hundreds of thou- 
 sands or of millions overbalance those of thousands. 
 
 Social Effects of Private Monopolies. — Let it be under- 
 stood, then, in the clearest way, that whosoever tries to 
 raise his own wages by preventing other persons from work- 
 ing at his trade, and thus makes his own kind of labour 
 scarce, attempts to levy contributions from other people. 
 It is simply a case of private taxation. In the early 
 Norman times it was not uncommon for the small sea- 
 
 H
 
 104 THE STATE IN RELATION TO LABOUR chap. 
 
 port towns to impose customs duties of their own upon 
 goods imported, the proceeds being aj^plied to the advan- 
 tage of the town. One of the first results of improved 
 government Avas the abolition of such exclusive imposts. 
 Whatever duties were levied were to go to the king, 
 who was supposed to expend them for the benefit of 
 the whole community. 
 
 Those who pay the private duties levied by exclusive 
 trades are the consumers of the goods made by the trade. 
 High wages for hat-makers simply mean high prices of 
 hats, and so much out of the pockets of hat-wearers. Or, 
 as in consequence of expense the hat-wearers will prob- 
 ably wear fewer hats, it means less convenience to them. 
 We ought not to look at such subjects from a class point 
 of view, and in economics at any rate should regard all 
 men as brothers. But it cannot escape attention that, 
 as by far the larger number of hat-wearers are workmen, 
 a very large part of the tax in any case falls upon brother 
 workmen. In this particular case the harm done may 
 not be considerable, but in the case of other trades it 
 certainly is. Nothing, for instance, can be more injurious 
 to the poorer classes than any artificial restrictions in the 
 building trades tending to raise the cost of building, or 
 to impede the introduction of improvements in brick- 
 laying and the other building arts. The effect is pecu- 
 liarly injurious, because it places great obstacles in the 
 way of any attempt to produce really good new dwellings 
 for the working classes. There are always quantities of 
 old houses and buildings of various sorts which can be 
 let as lodgings at a rate below that at which it is possible 
 to l)uild good new ones. The result is either that very 
 inferior cheap houses must be built, or the more cxi)en-
 
 IV TRADES UNION LEGISLATION 105 
 
 sive model dwellings fall practically to a better -paid 
 class. The general effect is to make really wholesome 
 houses a luxury for the wealthier classes, while the 
 residuum have to herd together between whatever walls 
 they can find. 
 
 Of course it may be said that to some extent unionists 
 raise their wages at the cost of the wealthy classes. 
 Beautifully-printed books, for instance, are seldom pur- 
 chased except by book-fanciers, and other well-to-do 
 people. Hence, if high wages could be maintained in 
 the high -class printing houses, the extra cost would 
 come, not out of the employer's funds, but out of the 
 spare cash of the book -buyers. Little harm would be 
 done in this particular case, because such bibliomaniacs 
 actually aim at finding scarce and costly books, and buy 
 in preference those books which are printed in small 
 numbers. But anything which tends to raise the price 
 of printing in general has the very pernicious effect 
 of hindering the diffusion of knowledge among the 
 people. 
 
 Nor is the injury to their fellow-workmen by exclu- 
 sive trades unionists solely produced by this raising of 
 cost directly. As is ingeniously pointed out by Professor 
 Alfred Marshall in his Economics of Industry (pp. 
 206-7), several trades usually act together in the produc- 
 tion of any important commodity. Thus bricklayers, 
 stone-masons, carpenters, plasterers, slaters, painters, 
 common labourers, and various minor trades, are all 
 concerned in the production of a house. If, then, any 
 one of these trades, say plasterers, could by combination 
 seriously raise their wages, and thus add to the cost of 
 the house, the effect would be to diminish the demand
 
 106 THE STATE IN RELATION TO LABOUR chap. 
 
 for such houses, and to lessen the wages of the other 
 trades concerned. Each trade Avhich maintains a strict 
 union is, in fact, striving to secure an unfair share of 
 the public expenditure. Though Avorkmen, in respect of 
 belonging to the same social class, may try to persuade 
 themselves that their interests are identical, this is not 
 really the case. They are and must be competitors, and 
 every rise of wages which one body secures by mere 
 exclusive combination represents a certain amount, some- 
 times a large amount, of injury to the other bodies of 
 workmen. "We must further take into account the 
 consideration that by raising barriers around trades, 
 and preventing the surplus labour of one from finding 
 employment in another, there is a general decrease of 
 l)roducing power. On the whole, then, we conclude that 
 it is quite impossible for trades unions in general to 
 effect any permanent increase of wages, and that success 
 in maintaining exclusive monopolies leads to great loss 
 and injury to the community in general. 
 
 There Avould be a certain fairness in the establish- 
 ment of monopolies if all trades were equally able to 
 combine and tax each other. The result would of 
 course be very absurd and very pernicious, but it Avould 
 be equal. As a matter of fact, however, those who most 
 need combination to better their fortunes are just those 
 who are the least able to carry it out. As in so many 
 other walks of life, to him that hath shall be given. A 
 small body of skilled men arc able in some cases to form 
 a nearly complete and exclusive society, and by the 
 restriction of apprentices to hold the " mystery " as 
 their private property. This power would doubtless be 
 much more used Avere it not controlled by the compe-
 
 IV TRADES UNION LEGISLATION 107 
 
 tition of foreign producers. Where goods arc very 
 portable in proportion to value, it is obviously impossible 
 for any mere trade society to prevent the substitution 
 of foreign productions. There are certain trades, how- 
 ever, which are concerned either with very heavy, l)ulky 
 goods, or else with work which must be performed 
 upon the spot. Bricks, for instance, of which 1000 may 
 be had for a little more than twenty shillings, are usually 
 made in close proximity to the buildings of which they 
 are to form part. In any case, they cannot be concealed, 
 and thus brickmakers are (or were) able to exercise a 
 close supervision over the sources of supply. Accordingly, 
 the brickmakers of Manchester actually succeeded for 
 a length of time in maintaining the rule that no bricks 
 made beyond four miles of Manchester should be 
 brought into that city. House -carpenters formerly 
 enjoyed the advantage of making all the woodwork of 
 a house upon the spot. A close union could then by a 
 strike entirely stop the progress of the building. The 
 advance in the use of wood-working machinery, and 
 the possibility of importing foreign machine-made 
 window-frames and doors, has somewhat diminished this 
 advantage. But the plasterers still have the master 
 builders at their mercy ; for, though a few mouldings 
 and casts may be made elsewhere, the bulk of the 
 ])lastercr's work must be done actually upon the walls 
 and ceilings of the house in situ. In countries where 
 wooden houses are chiefly used, these may be bought 
 and carried piecemeal for erection on any spot ; but 
 those who prefer to dwell in brick, stone, and plaster 
 dwellings must continue for the present to be more or 
 less at the mercy of the building trades.
 
 108 THE STATE IN RELATION TO LABOUR chap. 
 
 Such being the facts •svith regard to exckisive trade 
 monopolies, what is the attitude which the State should 
 maintain towards theml Economists have almost 
 unanimously condemned such trade societies. Adam 
 Smith refers in a condemnatory tone to the exclusive 
 privileges of corporations, and all laws which restrain 
 in particular employments the competition to a smaller 
 number than might otherwise go into them. They 
 are, he thought, a sort of enlarged monopoly, and 
 might keep the market price of particular commodities 
 above the natural price, maintaining both the wages of 
 labour, and, as he correctly adds, the profits of stock 
 employed about them, somewhat above their natural 
 rate.^ 
 
 J. S. Mill, after expressing some opinions in which 
 I cannot coincide, has added" the folloAving striking 
 passage, which cannot be too much read : — 
 
 " If the present state of the general habits of the 
 people were to remain for ever unimproved, these 
 partial combinations, in so far as they do succeed in 
 keeping up the wages of any trade by limiting its 
 numbers might be looked upon as simply intrenching 
 round a particular spot against the inroads of over- 
 pojiulation, and making their wages depend upon their 
 own rate of increase, instead of depending on that of 
 a more reckless and improvident class than themselves. 
 The time, however, is past when the friends of human 
 improvement can look with complacency on the attempts 
 of small sections of the community, whetlicr belonging to 
 the labouring or any other class, to organise a separate 
 
 ' Wcallh of Kdlions, Book \. elm]), vii. 
 - Principles of Political Eco/wmy, ]>ook II. cliap. xiv. sec. 0.
 
 IV TRADES UNION LEGISLATION 109 
 
 class interest in antagonism to the general body of 
 labourers." 
 
 Professor Fawcett also is not less emphatic in pro- 
 testing against such monopolies. He says ■} — " If trades 
 unions are permitted to prevent this free passage of 
 labour from one employment to another, wages may per- 
 manently maintain an artificial advance ; but trades 
 unions can only exert such an influence by resorting to 
 a social tyranny, which is in every sense illegal and un- 
 justifial)le." But it is, of course, one thing to protest 
 in theory ; it is another to interfere by force of law. A 
 brief consideration of the history of the Combination 
 Laws will show how hopeless is the attempt to prevent 
 trade confederacies by direct prohibition. 
 
 The Combination Laics.— In view of the economic prin- 
 ciples considered above. What is the duty of the 
 legislator 1 Monopoly in any trade is against the public 
 interest. Ought not the lawgiver, then, simply to pro- 
 hibit societies which tend towards such monopoly 1 and 
 ought they not to carry out the law with all " the re- 
 sources of civilisation " 1 There are, however, two 
 reasons against such forcible suppression : in the first 
 place, it is impracticable and impossi])le ; in the second 
 place, if possible, it would suppress with much evil many 
 germs of good. As to the first point, Avhich might 
 seem decisive of the question, we have the evidence of 
 long experience. Our grandfathers and great grand- 
 fathers, not to speak of earlier ancestors, did their best 
 to crush all societies of working men, and ignominious 
 was their failure. Are we likely to succeed better when 
 ' Mamial of Political Economy, 2il cd., p. 2.
 
 110 THE STATE IN RELATION TO LABOUR chap. 
 
 the working-class order has become immensely increased 
 in numbers, and increased almost equally in intelligence, 
 organisation, wealth, and general resources ? 
 
 Eegard to space Avill not allow of my citing fully the 
 evidence which conclusively proved the failure of the 
 restrictive legislation. The Combination Laws begin 
 with that quaint Act of the 33 Edward I. (stat. 2, 
 1304), — "Who be conspirators and who be champer- 
 tors." This curious law is a definition only, not an 
 enactment. "Conspirators," it says, "be they that do 
 confeder or bind themselves by oath, covenant, or other 
 alliance, that every of them shall aid and bear the other 
 falsely and maliciously to indite," etc. It seems to have 
 been thought quite sufficient to define who were con- 
 spirators ; the rest went without saying. 
 
 The subsequent long series of Combination Laws, 
 about thirty-five in number, are fully recapitulated in 
 the first section of the 5 Geo. IV. cap. 95, which swept 
 them away so far as they rendered it illegal for workmen 
 to meet together to deliberate and agree upon the terms 
 and wages for which they should labour. Most of these 
 Acts related only to particular trades; thus the "jour- 
 neymen tailors within the Aveekly bills of mortality" 
 came under the care of the Legislature in the 7 Geo. I. 
 and the 8 Geo. III. ; the better regulation of the linen 
 and hempen manufactures was provided for in the 
 3 Geo. III., and so forth. Finding, however, in 1800, 
 that in spite of the many complicated enactments then 
 in force strikes and combinations were still rampant, 
 the Legislature directed a final blow against workmen's 
 associations in the 39 and 40 Geo. III. cap. 106. By this 
 thoroughgoing law all agreements between journeymen
 
 IV TRADES UNION LEGISLATION 111 
 
 and workmen for obtaining advances of wages, reductions 
 of hours of labour, or any other changes in the condi- 
 tions of work, were declared illegal ; persons entering 
 into such agreements could be convicted summarily by 
 two justices of the peace, and committed to prison for 
 two months. A like penalty was imposed upon all who 
 should, by giving money, by persuasion, intimidation, or 
 otherwise, prevent any unhired workman from hiring 
 himself, or any hired Avorkman from continuing in his 
 employ, and so forth. But, as Mr. Longe remarks, in his 
 interesting sketch of this legislation ^ — "This elaborate 
 attempt on the part of the Legislature to prevent 
 'strikes' was its last. Experience soon showed that 
 such laws were not only useless, but pernicious." This 
 experience is sufficiently detailed in various parts of the 
 excellent volume referred to. The effect of such laws 
 was not to suppress societies, but to render them secret 
 conspiracies. Very often clubs, simulating the character 
 of friendly societies in public, acted as trade societies in 
 private. Some societies boldly defied the law, especially 
 the formidable imion of the Liverpool shipwrights. 
 According to Mr. Philip Rathbone's report on the Liver- 
 pool trade societies, these bold shipwrights used to range 
 about the town carrying a loaded cannon with them. 
 
 There were prosecutions from time to time. In 1805 
 three linen weavers of Knaresborough were sent to gaol 
 for three months, one of them for simply carrying a 
 letter to York requesting assistance. Mr. George 
 Howell specifies a good many other cases (pp. 121-124), 
 especially a notable one in Lancashire in 1818, in which 
 
 ^ Report on Trades Societies: Social Science Association, 1860, 
 p. 345.
 
 112 THE STATE IN RELATION TO LABOUR chap. 
 
 a trade union deputy was sent to prison for twelve 
 months, although his own employer gave evidence in his 
 favour, and said that he had himself suggested the reso- 
 lutions carried at the illegal meeting of workmen. A 
 most telling fact is that in some cases the masters 
 declared to their men their intention not to appeal to 
 the Combination Laws, and more peaceful relations be- 
 tween the parties then ensued. The writer of the admir- 
 able anonymous tract "On Combinations of Trades," 
 published in 1831, asserts that the general conviction of 
 the injustice and impolicy of these laws had produced a 
 disinclination on the part both of masters and justices to 
 put them in force unless in seasons of disturbance, when 
 they were administered for other purposes. But we need 
 hardly resort to secondary evidence when we find that 
 a Committee of the House of Commons declared "that 
 the Act of the 39 and 40 of his present Majesty, for 
 settling disputes between masters and workmen engaged 
 in the cotton manufacture in England, has not produced 
 the good effects that were expected from it." ^ 
 
 It was upon such grounds of distinct experience, 
 rather than upon any theory of freedom of trade, that 
 Parliament in 1824, led mainly by the lamented 
 Huskisson, swept those mistaken laAvs away. The act 
 was inevitable, and yet it was momentous ; for it has 
 led to the growth of the many great societies which now 
 exist and, as many people think, oppress industry. It 
 is requisite from time to time to remind one generation 
 of the experience which led a former generation to 
 important legislative actions. 
 
 ' Journals of (lit House of Commons, 28tli March 1804, vol. lix. 
 p. 187.
 
 IV TRADES UNION LEGISLATION 113 
 
 The Legislation of Trades Unions. — It is very desiraljlc 
 that the public, especially the working-class public, 
 should always bear in mind exactly what was the 
 intention and effect of the Trades Union Acts of 1871 
 and 1876, which enabled trades societies to be regis- 
 tered and to obtain legal facilities equivalent to those 
 enjoyed by registered friendly societies. The matter 
 is a technical one, of no real importance in principle, 
 but the change made in the law is liable to be mis- 
 construed into an approval by the State of trade combi- 
 nations. Previous to the passing of the above-named 
 Acts, trades societies, being deemed illegal in respect of 
 acting in restraint of trade, were excluded from regis- 
 tration under the Friendly Societies Act (18 and 19 
 Vict. cap. 63, sec. 44). This Act granted special benefits 
 as regards security of property and settlement of dis- 
 putes to any societies established for certain specified 
 purposes, and in certain cases "for any purpose which 
 is not illegal." But then it must be remembered that 
 exclusion from this Act was only exclusion from special 
 facilities. The members did not lose their ordinary 
 legal rights, and, if the funds of the society were made 
 away with, could proceed under the ordinary law, pro- 
 vided, indeed, that no unlawful acts or purposes in 
 restraint of trade could be proved against the union. 
 
 But as in modern times governments could not 
 venture to prevent the existence of associations of all 
 kinds, there arose gradually the anomaly of societies 
 allowed to exist, and yet deprived of any means of put- 
 ting the law into effective operation. Lawyers would 
 probably be the first to allow that the law of partnership, 
 whether theoretically good or not, was practically in-
 
 114 THE STATE IN RELATION TO LABOUR chap. 
 
 applicable to societies whose rates of subscription were 
 counted in shillings or pence. The expense of proceed- 
 ings and the difficulty of proving ownership in common 
 funds was such as to amount to practical refusal of justice, 
 and several scandalous cases occurred in which the em- 
 bezzlement of the funds of unions was thus allowed to 
 go unpunished. The state of the law was such as to 
 promote and encourage fraud and injustice. There was 
 no sense in trying to discourage vmions by indirect 
 means, which did not prevent their formation, but which 
 obliged the members either to suffer from fraud or else 
 to resort to violent means of redress, such as is practised 
 upon " welchers " at a race meeting. 
 
 Under the present state of the law, however (Trades 
 Union Acts, 1871 and 1876), great facilities are enjoyed 
 by unions. They can hold land and other property in 
 the names of trustees, and can carry on all legal proceed- 
 ings in the trustees' names. They have remedy on sum- 
 mary conviction for any fraud or illegality on the part 
 of their officers. Members' property in the union funds 
 can be transmitted at death Avithout a will, and various 
 other facilities are enjoyed, as described in the Eeport of 
 the Chief Eegistrar of Friendly Societies, 1877, p. 32. 
 It is remarkable, however, that very few trades societies 
 have availed themselves of these advantages, the number 
 in 1878 being only 177, compared with 17,77G registered 
 societies of other kinds. Possibly the necessity of regis- 
 tering the rules has had a deterrent influence in some 
 cases. 
 
 It is a matter worthy of consideration, however, 
 whether the Legislature ought not finally to give up 
 its jealousy of associative action, by recognising in law
 
 IV TRADES UNION LEGISLATION 115 
 
 courts eveiy society of whose existence formal evidence 
 can be given. The law has come, in fact, very nearly to 
 this point. The Friendly Societies Act of 1855 (18 
 and 19 Vict. cap. 63, sec. 9) gave power to a Secretary 
 of State to name " additional purposes " to which the 
 powers and facilities of the Act might be extended. 
 Under this, and the like provisions in subsequent Acts 
 (see the Consolidation Act of 1875, 38 and 39 Vict. cap. 
 60, sec. 8 [5]), additions have been made. In January 
 1878 societies guaranteeing the performance of their 
 duties by officers of friendly societies were allowed to be 
 registered. In April of the same year societies for playing 
 the game of quoits were approved by the Treasury ; and 
 finally, in July 1878, there was made the sweeping addition 
 of societies for the promotion of literature, science, and the 
 fine arts. All societies "for any charitable or benevolent 
 purpose" had been previously eligible for registration. 
 Now these terms are so wide and vague as to comprehend 
 almost every purpose for which associations, not for trad- 
 ing purposes, could be formed. The public appear to be 
 generally ignorant of these facilities, and the number of 
 registrations under the additional powers is very limited. 
 The point of most interest to us here is that the existence 
 of such comprehensive definitions disposes of the idea 
 that the Legislature, in allowing the registration of trade 
 societies, gave any kind of special approval or facility to 
 them. 
 
 ThcGood and Evil ofStrihs. — I have adopted, in the first 
 chapter, the doctrine that in social as in physical matters 
 we must be guided by experience — direct specific experi- 
 ence if possible. But nothing is more necessary than to
 
 116 THE STATE IN RELATION TO LABOUR chap. 
 
 bear in mind how impossible it is in some cases to inter- 
 pret experience with certainty. Especially is this the 
 case as regards the effects of strikes. Of these we have 
 indeed had ample experience. Hardly can we take up 
 any newspaper without meeting accounts of strikes, 
 small or large, in some parts of the country. In the 
 Trades Societies' Report of the Social Science Association 
 we have minute details of some of the most celebrated 
 and prolonged strikes — such as that of Preston in 18.53, 
 the Yorkshire coal strike of 1858, or the building trades 
 strike in London in 1859-60. The origin and results 
 of many strikes are also investigated in the evidence 
 taken by the Trades Union Commission of 1867. Any 
 one who Avishes to appreciate fully the difference of 
 opinions which may be held on this subject should 
 compare the optimist view of Mr. George Howell in his 
 important article on " Strikes : their Cost and Results," 
 in Fraser^s Magazine for December 1879, with the some- 
 what pessimist conclusions derived by Mr. G. P. Bevan 
 from his very careful and elaborate statistical inquiries, as 
 given in the Statistical Journal for March 1880, vol. xliii. 
 pp. 35-54. 
 
 Prima facie, indeed, we might take the recurrence of 
 strikes as evidence of their success ; for it is hardly to 
 be supposed that the workmen so seriously concerned 
 would venture on new strikes unless they were satisfied 
 that advantage Avas derived by themselves or other 
 workmen from previous strikes. It would seem, in 
 short, as if we had the direct specific experience needed 
 to settle the matter. A little consideration, however, 
 Avill show that this is one of the cases where the whole 
 difficulty lies in interpreting experience. In a certain
 
 IV TRADES UNION LEGISLATION 117 
 
 proportion of strikes no doubt the strikers do really 
 succeed in gaining what they demand ; and more than 
 this, other workmen of the same trade often profit from 
 a corresponding rise of wages conceded in consequence 
 by their employers. It may also be argued that, since 
 workmen acquired the liberty of striking at discretion, 
 their wages have been greatly advanced, — a fact which will 
 not be disputed. But it is altogether a different matter 
 to infer that because increased wages have been attained 
 the strikes are the cause of attainment. This argument 
 is essentially one of the kind post hoc, ergo propter hoc — a 
 kind of argument more often fallacious than sound. 
 We must remember that many other causes have been 
 in operation tending towards the increase of earnings. 
 Free trade has made the world our customers ; invention 
 has proceeded by leaps and bounds ; the power of coal 
 has been brought to the assistance of human labour ; the 
 capital of employers has grown vastly ; the productive 
 powers of machinery have been multiplied time after 
 time. Moreover, great changes have taken place in the 
 purchasing power of money. We should have to allow 
 for these and not a few other causes before we could 
 really infer that any definite rise of wages is due to a 
 strike. In view of this multiplicity of causes, in fact, 
 the method of direct experience fails. 
 
 The last chance of a verdict conclusively in favour of 
 strikes is removed when we remember that the general 
 rise of wages allowed by statists to have occurred is by 
 no means confined to trades which are united and 
 addicted to striking, but extends more or less distinctly 
 to all classes of employees. Many extensive groups of 
 workers, such as mercantile and bank clerks, Government
 
 118 THE STATE IN RELATION TO LABOUR chap. 
 
 clerks and officials, post-office employees, policemen, 
 soldiers, and so forth, have all attained distinct and, 
 what is more, permanent advances of salary, without 
 anything to be called striking. Still more remarkably 
 is this the case Avitli domestic servants, an exceedingly 
 numerous class of persons, quite devoid of organisation, 
 and often of an age and character little suited, it might 
 be thought, to enforce concession. Yet, by the natural 
 operation of the laws of supply and demand, and by their 
 own good sense, these employees have been greatly 
 advanced in earnings and other advantages. So far as 
 regards employments free from fluctuations of trade, the 
 evidence tends to show conclusively the uselessness and 
 harm of strikes. 
 
 The case, no doubt, is somewhat different where there 
 are violent oscillations of activity and depression, as in 
 the coal and iron trades especially. It is of such trades, 
 in all probability, that Professor Fawcett was thinking 
 when he said — "I cannot, after great deliberation, resist 
 the conclusion, that such a power of combination may 
 secure to the labourers higher wages in certain special 
 states of trade." It is difficult indeed to deny that in a 
 sudden improvement of trade a strike or the threat of a 
 strike will occasionally induce masters to raise wages 
 with a promptitude otherwise not to be expected. But 
 the reverse process is witnessed when the wave begins 
 to recede : the masters having promptly advanced wages 
 determine to reduce them with like promptitude, whereas 
 the men, convinced of the efficacy of strikes, resist when 
 the circumstances are all against them. Nothing is 
 clearer than that in a time of falling demand strikes 
 must fail. They often form, indeed, the opportunity — as
 
 IV TRADES UNION LEGISLATION 119 
 
 in the disastrous strike at Cyfartha — for employers to 
 close works which they might otherwise have felt bound 
 to carry on at some risk of loss. 
 
 So difficult, or rather impossible, is it to distinguish 
 the cases in which strikes must inflict great loss and 
 disappointment and those in which they may yield at 
 least apparent success, that the economist incurs grave 
 responsibility in expressing approval of any strikes. As 
 well commend gambling because there are occasions 
 when the gambler gains, as commend striking because 
 " in certain special states of trade " it may be successful. 
 The only true system of striking is for every man to 
 strike individually when he has an undoubted opportunity 
 of bettering his position. 
 
 Professional Trades Unions. — During the long and 
 bitter controversies which have been waged on the 
 Trades Union question, no argument has been found 
 more telling on the side of the unions than the tu quoque 
 retort. Trades unions, it is said, are not confined to 
 handicraftsmen. The legal and medical professions 
 understand equally well the virtue of combination. 
 The Inns of Court, the Colleges of Surgeons and Phy- 
 sicians, and suchlike bodies, are but exclusive trade 
 societies of the upper classes. The very name college 
 imj)lies as much, collegium (co?i, together ; and legere, to 
 gather) being, in fact, the Latin equivalent of association, 
 or guild. It is only in late years that the name, college, 
 has become specialised to associations of teachers, and 
 thence applied to mere schools for boys and girls. 
 
 This tu quoque argument is so far true that the only 
 possible way of meeting it is to admit its substantial 
 I
 
 120 THE STATE IN RELATION TO LABOUR chap. 
 
 truth. There can be no doubt whatever that both the 
 legal and medical professions are pervaded by strong 
 " professional " feelings, and that under the euphemism 
 of "professional etiquette," they are governed by elaborate 
 systems of social terrorism. Nobody could possibly have 
 followed the several steps of the struggle concerning the 
 admission of women to the practice of medicine, especi- 
 ally the debates and votes on the subject in the Convo- 
 cation of the London University, without feeling that it 
 was simply a trade question. As to the Inns of Court, 
 venerable as they are in respect of age — having been 
 founded at various dates between 1310 and 1520 — they 
 were but lately trades unions in an advanced stage of 
 degeneration, and they are not very much better now. 
 Entry was obtained by the mere form of eating dinners 
 in the public hall, and the paying of certain substantial 
 fees. The true genius of the trades union is shown in 
 the jealous care with which the barristers exclude 
 solicitors, the exclusion being in former years absolutely, 
 and in the present day sufficiently, complete. The same 
 spirit is also evinced in the vexatious restrictions regard- 
 ing circuits. Every circuit mess is a separate union, 
 election to which is jjractically compulsory. Having 
 joined one mess, the barrister is confined to it, and must 
 refuse work from other circuits except at "special rates.". 
 But while it is impossible not to admit that the bodies 
 referred to are trades unions of a well-marked type in 
 some respects, they are strongly distinguished from the 
 handicraft unions in other important respects. In the 
 first place, no attempt is made at limiting the numbers 
 of members. Every respectable man who brings the 
 requisite fees and goes through the proper forms, is
 
 IV TRADES UNION LEGISLATION 121 
 
 admitted almost without exception. So much is this 
 the case in the Inns of Court, that the nominal barristers- 
 at-law are perhaps two or three times as numerous as 
 those barristers who really practise with success. Even 
 in the medical profession, where entry is now barred by 
 stiff examination, as well as by costly education and not 
 inconsiderable fees, the number Avho qualify for practice 
 is distinctly in excess of those who adhere to the pro- 
 fession and eventually succeed. The danger, if any- 
 thing, lies in the direction of too free admission, and 
 the temptation is always on the side of relaxing every 
 condition except the payment of fees. 
 
 Again, within these professional bodies there is no 
 trace of socialistic tendency. On the contrary, the 
 keenest possible competition is the rule. Successful 
 barristers and physicians make their £10,000 or 
 j£15,000 a year; but, instead of meeting with obloquy 
 and opposition from their less successful brothers, they 
 are the objects of admiration and esteem. Thus the 
 life of an eminent professional man becomes one un- 
 ceasing round of severe labour ; his talent and experience 
 are multiplied in utility to the highest possible degree, 
 not without reward to himself, but with still greater 
 benefit to a public who need skilful assistance. In the 
 case of the bar, this unlimited competition tends perhaps 
 to run into excess and abuse ; but as regards the medical 
 profession, I am unable to see any evil in the present 
 system, the avenue to distinction and success usually 
 lying through long-continued gratuitous services at 
 hospitals, or a distinguished career as a public teacher 
 of the healing art. 
 
 There is, too, a third condition which strongly dis-
 
 122 THE STATE IN RELATION TO LABOUR chap. 
 
 tinguislies professional from handicraft unions, namely, 
 the exaction in the present day of a more or less severe 
 entrance examination. Corporations, according to J.-B. 
 Say, have never really guaranteed the quality of the 
 goods which they produce. It would not be practicable 
 for the College of Surgeons to guarantee continuously 
 the excellence of the services rendered by their members. 
 But, so far as entrance examinations are concerned, there 
 is little ground of complaint at present. As to the 
 expediency of some State regulation of the medical and 
 legal professions, no serious difference of opinion can 
 exist. Medical advice is obviously a thing of which an 
 ordinary patient is incapable of judging ; it clearly falls, 
 therefore, under the category of commodities which may 
 be inspected by State officers. Clearly, too, the inten- 
 tion of the Legislature has always been to secure the 
 efficiency of practitioners. Thus, shortly before the 
 establishment of the College of Physicians, we find that 
 an Act was passed (3 Henry VIII. cap. 11), providing 
 that no one should take upon him, " to exercise and oc- 
 cupy " as a physician or surgeon in London, unless he had 
 been admitted by the Bishop of London or the Dean of St. 
 Paul's. These eminent ecclesiastics were not themselves 
 to be the judges of efficiency, but were to call unto them 
 four doctors of physic, and "for surgery, other expert 
 persons in that faculty, and for the first examination 
 such as they shall think convenient, and afterward 
 alway four of them that have been so approved." In 
 other parts of the country the bishop of the diocese, or 
 the vicar-general, was to be the licensing authority. The 
 method of examination, then, was established by law 
 more than 350 years ago. From time to time, no doubt,
 
 IV TRADES UNION LEGISLATION 123 
 
 in spite of renewed legislation, the examinations fell into 
 abeyance, or were little more than nominal. 
 
 In recent years, it need hardly be said, the practice 
 and the art of examination have made rapid progress. 
 Examinations have become the sole mode of entry, not 
 only into the medical profession, the lower branch of 
 the law, the civil service, the army and navy, and 
 even the church, but many other bodies of professional 
 men have taken steps in the like direction. A Sur- 
 veyors' Institute has just been created, entry to which 
 will be eventually confined to successful examinees. 
 The Institute of Actuaries, the Bankers' Institute, and 
 the Society of Chartered Accountants, have also estab- 
 lished systems of examination. It is even proposed, by 
 means of an Act for the registration of teachers, to make 
 some kind of examination test a legal qualification for 
 all teachers in secondary schools. 
 
 So long as entrance examinations are of a bond fide 
 character, there is no analogy between such chartered 
 bodies and mere trades unions. No trade society has in 
 recent times made even the pretence of exacting a test 
 of proficiency. In former days the apprentice, before 
 he could be admitted to act as journeyman, was required 
 to exhibit his clief d'oeuvre as a specimen of his skill. 
 I am not aware that any such test is ever applied now. 
 The applicant for admission to a modern trades union 
 must indeed satisfy the society that he is capable of 
 earning the usual wages, but this is only in order that 
 his employment may not tend to make a precedent for 
 admitting lower rates of wages. So good a witness as 
 Mr. G. J. Holyoake says [Ilistorij of Co-operation, 
 vol. ii. p. 262) — "Now, a man being a unionist, is no
 
 124 THE STATE IN RELATION TO LABOUR chap. 
 
 guarantee to any one that he will not scamp his work, 
 or do the least for the most he can get. ... A trades- 
 union council are not leaders of art in industry ; they 
 are, with a few exceptions, mere connoisseurs in strikes. 
 All a union does is to strike against low wages, they 
 never strike against doing bad work." It is indeed 
 remarkable that with their extensive funds, widespread 
 organisation, and trade-knowledge, hardly any union has 
 attempted to carry on industry itself. They confine 
 themselves to criticism and opposition. Even their 
 funds are deposited in banks or other ordinary modes of 
 investment, and find their way round into the hands of 
 capitalists, perhaps their own obnoxious employers. In 
 spite of the evils and horrors of " capitalism," the work- 
 men can find no way of using their own capital but such 
 as put it into the hands of their supposed enemies. 
 
 There can be no doubt that the system of examina- 
 tions Avill go on and prosper, and that we have not yet 
 seen the end of the movement towards the incorporation 
 of professions. There can, however, be equally little 
 doubt that the public and the Legislature must keep a 
 vigilant eye on all such bodies, and must without scruple 
 reform them as soon as ever they fall away from their 
 original good purpose. 
 
 Principle of Degeneration of dissociations. — In attempting 
 to forecast the future of trade societies, it is indispens- 
 able to take account of what I may call the principle of 
 degeneration, which applies to all associations of men. 
 Every society which has perpetual succession is subject 
 to a tendency to fall away from its original purposes. 
 Although formed in the first instance by persons having
 
 IV TRADES UNION LEGISLATION 125 
 
 a definite object in view, the society subsequently becomes 
 a distinct entity. It acquires reputation and power ; it 
 often collects endowments and acquires vested interests 
 of various kinds. By degrees those who act as officers 
 are drawn aside by their private interests, and there is 
 no setting a limit to the possible divergence of the 
 institution from the intentions of its founders. 
 
 It is hardy requisite to illustrate this statement; 
 instances of degeneration pour upon us. St. Katharine's 
 Hospital in Regent's Park, the city companies, sundry 
 ancient colleges before their reformation, the Inns of 
 Court, as they were not long ago, are sufficient instances. 
 The change, however, is not always correctly described 
 as degeneration; though diverging from its original 
 purpose, a society often develops into something of unex- 
 pected utility. A small benefaction for the erection of 
 a hospital leads to the creation of a great medical and 
 scientific school. A convivial club of a score of members 
 grows into the greatest of learned societies. By far the 
 most singular of such transformations, however, is that 
 of the Freemasons' societies. 
 
 The Freemasons' lodges were originally simple trade 
 societies of the skilful builders who in the Middle Ages 
 raised oui' grand cathedrals and our beautiful parish 
 churches. A lodge Avas established at York as early as 
 A.D. 926, and the order is said to have been introduced 
 into England some centuries before, perhaps in 674. 
 However that may be, the societies retained their dis- 
 tinctive trade character throughout the Middle Ages, as 
 we learn incidentally from the Act 3 Henry VI. cap. 1, 
 against masons who " confederate themselves in chapiters 
 and assemblies." That great builder, William of Wyke-
 
 126 THE STATE IN RELATION TO LABOUR chap. 
 
 ham, was at one time Grand Master, and as late as 1666 
 Sir Christopher "Wren was elected deputy grand-master, 
 in recognition of his skill as an architect and builder. 
 Subsequently the order has become entirely disconnected 
 from the building trade, and while ever prospering has 
 adopted philanthropic or social purposes. The square 
 and compasses, once the actual implements of its mem- 
 bers, are now mere mystic symbols. 
 
 The bearing of this principle of degeneration on our 
 subject is very evident. The existing great trade societies 
 only need to be let alone and they will probably degen- 
 erate from their original trade purposes. But inasmuch 
 as those trade purposes were against the public good, 
 the process of degeneration will probably bring them 
 more nearly into consonance with public interests. What 
 Avere, under the Combination Laws, mere midnight con- 
 spiracies, are developing and will develop into widespread 
 philanthropic bodies, headed by members of Parliament, 
 meeting in large halls before a table full of reporters, 
 gradually giving up their selfish and mistaken ideas. 
 No one could have read the proceedings of the recent 
 Trades Union Congress in London without feeling that 
 recent wise legislation was bearing good fruit. Instead 
 of machine - breakers and midnight conspirators, the 
 working-men met as the members of a parliament to 
 discuss the means and ends of legislation Avith dignity 
 and propriety at least equal to that recently exhibited at 
 St. Stephen's. No longer entirely devoted to the pet 
 fallacies and interests of their order, their deliberations 
 touch many of the most important social questions of the 
 day. The more extensive the federations of trades 
 Avhich thus meet in peaceful conference, the more wide
 
 IV TRADES UNION LEGISLATION 127 
 
 and generous must of necessity become their views. 
 Enjoying all the rights and performing all the duties of 
 the English citizen, the trades unionist will before long 
 cease his exclusive strife against his true ally, his wealthy 
 employer. It is impossible not to accept the general 
 views of Mr. Henry Crompton, that as working-men 
 gradually acquire their full rights, their leaders will turn 
 to the noble task of impressing upon them the duties of 
 citizenshi]}.
 
 128 THE STATE IN RELATION TO LABOUR chap. 
 
 CHAPTER V 
 
 THE LAW OF INDUSTRIAL CONSPIRACY 
 
 There is no part of the law relating to labour which has 
 been debated with more bitterness than that touching 
 the doctrine of conspiracy. Until quite recent years 
 the common law gave power to the judges, or they at 
 any rate assumed the power, to treat any combination 
 of labourers aiming at the increase of wages as a con- 
 spiracy against the public weal, an attempt at public 
 mischief, which could be punished as a misdemeanour 
 by fine and imprisonment. The celebrated case of the 
 Dorsetshire labourers in the year 1834 was an instance 
 of the exercise of this somewhat arbitrary power. The 
 common law has now been defined and restricted, if not 
 almost abrogated, by the Conspiracy and Protection of 
 Property Act, 1875, which in the 3d section enacts 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. But as other parts of the same section and the 
 same Act continue or impose special penalties in the case of 
 proceedings involving conspiracy, some unionists are still
 
 V THE LAW OF INDUSTRIAL CONSPIRACY 129 
 
 dissatisfied at the state of the law. They regard these 
 penalties as being still specially aimed at combinations of 
 working-men, as relics, in fact, of past mistaken class 
 legislation, and it is seriously urged that the offence of 
 conspiracy should be entirely abolished as regards labour 
 questions. It is not superfluous, therefore, to inquire 
 into the grounds of the law of conspiracy. 
 
 JFJiat is Conspiracy? — That confident but often mis- 
 taken economist MacCulloch has touched the point of 
 the matter when he says, in his little treatise on Wages 
 (2d ed. p. 90) : "A criminal act cannot be generated by 
 the mere multiplication of acts that are perfectly inno- 
 cent." This statement may be true as it stands, but it 
 has no reference to conspiracy. To ask for more wages 
 is a perfectly legal act, and if a thousand men were to be 
 struck independently with a wish for higher wages, and 
 were to go and ask separately, there would be no con- 
 spiracy in the matter. But, if a number of men meet 
 together and agree jointly to ask for more, and then 
 persuade others to do likewise, it is not a mere multipli- 
 cation of requests ; it is that plus an agreement and an 
 organised arrangement. The difference is even greater 
 than this : the act becomes different in nature by 
 reason of the concert and the purpose implied in that 
 concert. 
 
 It is, for example, a perfectly legal action to walk 
 along a highway, and no multiplication of such acts 
 in the ordinary course of life or business can render 
 them illegal. If so many men happened some day to 
 want to walk through Throgmorton Street that the 
 street became entirely blocked up, there would still be
 
 130 THE STATE IN RELATION TO LABOUR chap. 
 
 no legal offence. The concourse would be fortuitous, and 
 each man would be simply exercising his legal right 
 under difficulties. But if a number of men were to 
 agree together that they would walk up and down 
 Throgmorton Street on a particular day, the complexion 
 of the act would be entirely changed. The act is no 
 doubt physically the same ; but, being accompanied with 
 the knowledge that other people would do the same, and 
 that a block would be occasioned, there would be reason 
 to presume some special purpose, as, for instance, the 
 obstructing the business of the Stock Exchange, or 
 occasioning alarm, perhaps panic, in the city. The act 
 would be illegal in respect of the intention to block up 
 the Queen's highway, and it would be further illegal in 
 respect of a special purpose, which, though not illegal 
 in itself, might be illegal if sought by means of com- 
 bination. 
 
 Surely it cannot escape attention that many of the 
 industrial and other ordinary arrangements of society 
 entirely hang upon the tacit assumption that individuals 
 will act as individuals, pursuing independent and usual 
 courses of action. A footpath, an omnibus, a railway 
 train, is calculated only for the ordinary average traffic. 
 A banker's business entirely depends upon the presump- 
 tion that, while some customers are drawing out, others 
 will be paying money in. There is no bank in the 
 country which could stand a run on the part of a con- 
 siderable number of its depositors. But, according to the 
 theory of probabilities, it is practically impossible that 
 such a sudden concurrence of demands should take place 
 really by accident ; the mere occurrence of such a run 
 Avould be sufficient evidence of a common cause, which
 
 V THE LAW OF INDUSTRIAL CONSriRACY 131 
 
 might be merely a false rumour, or it might be a con- 
 spiracy of depositors to ruin the bank. Now, it must 
 be quite apparent that any agreement between bank 
 depositors to draw out money in order to overthrow a 
 bank is a totally different thing from dramng out in 
 the ordinary course of business, and is, in fact, a serious 
 matter. 
 
 It must be easy to see that there is hardly one of the 
 ordinary arrangements of trade which may not be entirely 
 upset by concerted action. The bakers and butchers 
 might starve us out; the cab proprietors might refuse 
 to carry us away ; innkeepers might decline to harbour 
 us ; our neighbours might tacitly avoid assisting us. 
 No man's life would be safe if unlimited " Boycotting " 
 were regarded as legal. 
 
 Industrial Treason. — It must be apparent, too, that 
 this subject assumes by degrees higher importance as 
 the organisation of society becomes more complex and 
 delicate, and the condensation of population greater. 
 London might be reduced to starvation and anarchy by 
 a well-devised combination among a few thousands of 
 men. When we depend for water upon one organisation, 
 for light upon another, for food upon railways and a 
 long series of middlemen, the state of things is very 
 different from that of the old-fashioned house with a 
 well in the back-yard, and plenty of candles, salt-meat, 
 and groceries in the store-room. 
 
 It seems to me to be cpite impossible, then, to sup- 
 pose that the law of conspiracy can be entirely repealed. 
 Such entire abrogation would enable a handful, or at 
 most a few thousands, of men, by legal means, to coerce
 
 132 THE STATE IN RELATION TO LABOUR chap. 
 
 the community to any extent, and, in the absence of 
 concession, to inflict immeasurable injury. It is still a 
 serious crime to purchase arms and to organise and drill 
 a body of men in order to oppose the State, or any of its 
 authorities. Treason is still an off"ence in the Statute- 
 Book. But so all-powerful has the English Government 
 become in recent times by the inventions of science and 
 the improvements of organisation, that little harm is to 
 be feared from this antiquated kind of treason. But I 
 venture to think that a great strike, if carried sufficiently 
 far, might assume the character of social treason. As in 
 the case of the great railway strike in the United States 
 in 1877, it might bring society to a dead lock. If ten 
 thousand Yorkshiremen were to march upon London, 
 with the very best arms they could muster, the Govern- 
 ment would probably surround and capture them in 
 twenty-four hours by the aid of railways and telegraphs. 
 But if ten thousand railway men were to form a con- 
 spiracy to obstruct and destroy the railways and telegraphs 
 of the kingdom, they would create infinitely greater alarm 
 and injury, and would be checked with far greater diffi- 
 culty. It is thus highly needful to bear in mind how 
 the more delicate and elaborate arrangements of modern 
 society have caused a change in the bearing of social 
 dangers. 
 
 In accordance, however, with what has been said 
 before, it is one thing to hold that there must exist the 
 offence of conspiracy, and another thing to say that any 
 particular kind of conspiracy should be punished. Con- 
 spiracy is especially a question of degree, varying in 
 several ways, as regards the number of persons involved, 
 the consciousness of common intention on their part.
 
 V THE LAW OF INDUSTRIAL CONSPIRACY 133 
 
 and the innocence or noxiousness of the purpose aimed 
 at. One end of the scale is formed by some case in 
 which thousands of men intentionally injure society in a 
 manner which might lead to death, distress, and harm 
 incalculable. At the other end of the scale we may 
 place the case of a few workmen talking over together 
 the state of trade and their own condition, and agreeing 
 unanimously that they must ask for more wages. Nothing 
 can be easily conceived more innocent, if not praiseworthy, 
 than the latter action ; few things more blamable than 
 the former. It is, therefore, the extreme vagueness and 
 graduation of the act of conspiracy which constitutes the 
 difficulty. This was surmounted in the old common law, 
 if, indeed, surmounted at all, by leaving it to the dis- 
 cretion of the judges only to apply the law where the 
 interests of society required it. But even judges are not 
 always perfectly discreet; and the sentence of seven years' 
 transportation passed upon the Dorsetshire labourers for 
 a mere strike, involving nothing which we should now 
 esteem criminal, not unnaturally created intense indigna- 
 tion throughout the country. 
 
 The Present Law. — I venture to hold, therefore, that 
 the Conspiracy and Protection of Property Act of 1875 
 was drawn upon the proper lines. It endeavoured 
 to discriminate between such acts of conspiracy as are 
 and are not highly noxious to society. Thus any breach 
 of contract involving failure of the water and gas supplies 
 of towns or other places is rendered punishable with 
 imprisonment for three months, under the fourth section. 
 The next section is a much more elastic one, inflicting like 
 punishment " where any person wilfully and maliciously
 
 134 THE STATE IN RELATION TO LABOUR chap. 
 
 breaks a contract of service or of hiring, knowing or 
 having reasonable cause to believe that the probable con- 
 sequences of his so doing, either alone or in combination 
 with others, will be to endanger human life, or cause serious 
 bodily injury, or to expose valuable property whether 
 real or personal to destruction or serious injury." The 
 seventh section, again, enacts special penalties for any 
 person convicted of intimidating, annoying, or watching 
 another person, with a view to compel him to do or 
 abstain from doing any act which such person has a 
 legal right to do or abstain from doing. It has been 
 frequently urged, indeed, that these special penalties are 
 invidious. If the acts of intimidation and annoyance 
 are illegal, why should they not be left to be dealt with 
 by the general law *? But here again is false analogy ; to 
 shake your fist at a man is no doubt the same physical 
 act whether done in momentary anger or as part of an 
 extensive concerted system of actions. But it may have 
 vastly greater significance and importance in the latter 
 than the former case. The law must always look to the 
 real character of the action, not to the mere outward 
 manifestation. The whole of the criminal law may be 
 said to consist of special penalties for special acts accord- 
 ing to their social noxiousness. Forgery is only one 
 mode of fraud, but being peculiarly dangerous to society 
 is punished with special severity. To break into a 
 house is the same act physically whether done by day 
 or by night ; but being more alarming and injurious in 
 the latter case is treated as the special crime of burglary, 
 and punished with greater severity. Having regard 
 now to the peculiar and in fact extraordinary powers 
 which combinations of men acting well together may
 
 V THE LAW OF INDUSTRIAL CONSPIRACY 135 
 
 acquire, it is not at all unnatural that any illegal acts 
 which they commit should need repression under a 
 special law adapted to the circumstances. 
 
 Industrial Emergency. — One point of much importance 
 concerning the Conspiracy and Protection of Property 
 Act is that it only punishes conduct leading to injury of 
 property, loss of life, etc., when it involves breach of 
 contract. Thus, if a body of workmen employed in 
 water or gas works leave in a body at the expiration of 
 their agreement, they commit no oftence, be the conse- 
 quences to the community what they may. This seems to 
 be reasonable enough, because they act within the terms 
 of their engagement, and the community through their 
 servants, the water and gas companies, ought to take care 
 of themselves. But we can easily conceive conjunctures 
 to arise in which perfectly legal action may inflict the 
 highest injury on society. If any very large proportion 
 of the colliers of the kingdom, for instance, were to leave 
 work, even after due legal notice, they might bring the 
 industry of the country to a standstill. Not only in- 
 dustry, indeed, but the sustenance and health of millions 
 of their fellow-citizens would be imperilled. 
 
 Necessity knows no law, and the essence of illegality 
 is injury to other people. I conceive, therefore, that in 
 repealing the old common law of conspiracy as regards 
 industrial disputes the Act in question has opened up at 
 least the possibility of injurious actions for which no legal 
 remedy is provided. Of course if such extreme cases 
 could not occur there would be no good in providing 
 against them, which is perhaps the motive of the repeal 
 referred to. But then the federated societies of colliers 
 
 K
 
 136 THE STATE IN RELATION TO LABOUR chap. 
 
 have repeatedly proposed to resort to a universal strike ; 
 and ten years ago, though they never went to such an 
 extreme length, they inflicted much harm upon the 
 industry of the country, and eventually upon themselves, 
 by restricting the output of coal. So entirely has coal 
 now become the motive-force of all industry, the source 
 of maintenance, that a really complete strike of colliers 
 would place the country in a state of siege as completely 
 as Paris was so placed by the German armies. We 
 cannot seriously contemplate the idea of a coalless and 
 foodless nation, perishing because some quarter of a 
 million of colliers refuse to work. Yet a strike of only 
 a few weeks would reduce the country to a state of 
 which Ave have no present idea. 
 
 I venture to point out that there is another mode of 
 approaching this subject, otherwise than through the law 
 of conspiracy. It is quite in accordance with all prece- 
 dents that every citizen should be bound to perform 
 duties essential to the good of the State and the com- 
 munity. On this ground householders are compelled to 
 serve on juries, and rich men are obliged to assume the 
 onerous office of sheriff. Several parish offices — such 
 as those of constable, overseer, collector of taxes, etc. — 
 Avere lately obligatory, if they are not so still, obsolete or 
 unusual though they may in many places have become. 
 Every able-bodied man, too, is potentially a police con- 
 stable, and can be fined for refusing to assist a police- 
 man Avhen called upon to do so. Eight to the military 
 service of all men of military age is in abeyance in this 
 kingdom, but Avould, of course, be reasserted under the 
 pressure of necessity. I presume that the ])osse comitatus 
 still exists in theory. But as some things become
 
 V THE LAW OF INDUSTRIAL CONSPIRACY 137 
 
 archaic, new things arise ; and if our present elaborate 
 system of trade and industry presents the chance of 
 serious emergencies, the ])0sse cotnitatus should be called 
 out in the appropriate way. In other words, there should 
 be some legal authority capable in the last resort of 
 obliging citizens to perform certain essential duties, 
 whether it be the stoking of gas retorts, the mending of 
 water conduits, or the mining of coal, essential for the 
 life of the nation. Instead of sentencing men to penal 
 servitude, as in former days, because they had refused 
 to continue in their legal employment, they would be 
 simply ordered, by competent authority, to continue to 
 work so long as the imperative needs of society con- 
 tinued, ordinary compensation being given, and punish- 
 ment inflicted only for breach of orders. 
 
 For this course there are, in fact, some precise legal 
 precedents. Thus the Sewers Act (28 Henry VIII. cap. 
 5) gave powers to the Commissioners of Sewers to pro- 
 vide for the draining of the Fens, and allowed them "to 
 arrest and take as many carts, horses, oxen, beasts, and 
 other instruments necessary, and as many workmen and 
 labourers as for the said works and reparation shall 
 suffice, paying for the same competent wages, salary, and 
 stipend." Again, the liability of parishioners and tenants 
 personally to repair the highways by Statute Labour has 
 only recently been commuted into money payments. 
 
 It is worthy of notice that the great railway strike in 
 the United States, Avhich was, in fact, an industrial 
 insurrection, was brought to an end not by any legal 
 process, but by the arbitrary exhibition of force. The 
 situation having become intolerable, " a division, headed 
 by two 12-pounder Napoleon guns and a detachment of
 
 138 THE STATE IN RELATION TO LABOUR chap. 
 
 mounted police, was marched out, supported by volun- 
 teers, to Schuler's Hall, the new headquarters of the 
 strikers, when about ninety men were arrested without 
 form or M^arrant of law, and taken off to prison. These 
 men were subsequently examined, and discharged with 
 cautionary counsels from the authorities " (Reports 
 respecting the late Industrial Conflicts in the United 
 States, 1877 [C. 1853], p. 47). In the same very in- 
 structive report we are told that about 300 discontented 
 railway hands, and a score or two of agitators, were 
 powerful enough to paralyse a vast system of railway 
 traffic, and the industries of a city (St. Louis) of nearly 
 half a million people, when "had 200 police been 
 detailed in the first instance to compel 'hands off' the 
 property of the railroads, and to enforce peace at all 
 hazards, the strike would not have lasted a day." 
 
 It ought to be added that Messrs. Thomas Hughes 
 and Frederick Harrison, the most enlightened perhaps of 
 all the so-called "labour advocates," while condemning 
 the policy of exceptional penalties, allow that some ex- 
 traordinary danger to the public safety may justify even 
 such an anomalous system. In their separate report 
 imder the Eoyal Commission of 1867, they say (Third 
 Dissent, p. liii.) — 
 
 " It seems to us that the policy of imposing exceptional 
 penalties upon the labouring population en masse, and as 
 such recognising in that class exceptional offences, is a 
 principle vicious in itself, and long discredited. Nothing 
 but some extraordinary danger to the public safety, or some 
 peculiar j^roneness to crime, can justify such an anoma- 
 lous system. We can see nothing in the combinations of 
 workmen which the ordinary police cannot deal with."
 
 INDUSTRIAL PARTNERSHIP 139 
 
 CHAPTER VI 
 
 CO-OPERATION AND INDUSTRIAL PARTNERSHIP 
 
 Among the means by which the relations of workmen 
 and capitalists may be put on a sounder footing, much 
 has been hoped from co-operation. The name co-opera- 
 tion has indeed been used in so many and such vague 
 senses, that it has come to mean little or nothing beyond 
 some novel form of association. Before we can say any- 
 thing about it, we must distinguish at least three different 
 classes of co-operative associations, which again in their 
 details admit of much variety. Thus we may enumerate — 
 
 (1.) The co-operation of retail purchasers to buy their 
 household supplies on the wholesale scale, and thus avoid 
 the profits of the middleman. 
 
 (2.) The co-operation of workmen who form joint- 
 stock companies for the carrying on of manufacturing or 
 agricultural industry independently of large capitalists. 
 
 (3.) The co-operation of employers and employed in 
 any scheme of partnership which admits the employed 
 to a share of the ultimate profits, in addition to the 
 wages advanced. 
 
 Of these forms of co-operation the first has little or 
 no direct connection with the subject of this volume. 
 There is of course not the least reason why any body
 
 140 THE STATE IN RELATION TO LABOUR chap. 
 
 of persons, whether working-men, or civil servants, or 
 merchants, or others, may not associate themselves 
 together to procure supplies at the lowest rates. Such 
 associations are, or at least were, experiments, the failure 
 of which can hardly injure any but the members. 
 Their success, on the contrary, may lead to extensive 
 social advantages of a kind not strictly coming within 
 the scope of this Avork. The State, too, has little to do 
 with the matter beyond allowing the utmost possible 
 legal freedom and facilities to such associations. There 
 is nothing Avhatever in the legal position or the actions 
 of such societies, with the trifling exception of their 
 disputed exemption from the necessity of giving receipts 
 with penny stamps, to threaten any other industrial 
 bodies or institutions unfairly. 
 
 Indirectly, however, co-operative associations have con- 
 siderable bearing on trade questions, because they offer 
 the most ready and engaging mode of investment for 
 small sums of capital. Half the bitterness of trades 
 union disputes arises from the anti-capitalist feelings of the 
 workman, who believes that he is by the nature of things 
 cut off from the possession of capital, and even looks 
 upon it as contrary to the esinit de corps of his order to 
 own capital. Nothing can tend more to break down 
 this most mistaken and lamentable feeling than the 
 insidious way in which capital accumulates in a well- 
 managed co-operative society. Almost without know- 
 ing it, the workman finds himseK a small capitalist, and 
 when the balance has once begun visibly to grow, it is 
 strange if the love of accumulation is not at length 
 excited. The balance not only grows, but its growth 
 excites the more interest because the OAvner, as a customer,
 
 VI INDUSTRIAL PARTNERSHIP 141 
 
 a member, or even a committee man, assists in its growth, 
 and may take part in the management of the affair. A 
 savings bank deposit pays very low interest, and that 
 interest is perfectly fixed. The depositor is entirely 
 passive and is in respect of it a powerless dependant of 
 the State. But savings deposited in almost any form of 
 co-operative company tend to excite the instincts of the 
 capitalist, and to acquaint the owner with a new view of 
 the labour question. 
 
 It may almost go without saying that the second 
 form of co-operative undertaking, the joint- stock 
 association of workers, is highly desirable as far as it 
 can be carried out. The law for so many centuries prac- 
 tically prohibited joint-stock enterprise that we can hardly 
 wonder at the small progress which has yet been made 
 in this direction among the working classes. The break- 
 down of the Ouseburn Co-operative Society and other 
 hasty experiments shows that time is needful for learning 
 the conditions of success in this direction. The Oldham 
 Joint-Stock Mills, however, are now earning profits, 
 and by the periodical publication of their accounts are 
 probably preparing the way for new phases of the labour 
 question. The law, at any rate, does not now stand in 
 the way. The old mistaken law of unlimited liability is 
 sufficiently set aside by the Companies Acts of 1862 and 
 1867, and also by the Partnership Law Amendment Act 
 of 1865 (28 and 29 Vict. cap. 86), which allows any 
 trader to give an employee a share of profits without 
 thereby rendering him liable as a partner, or giving him 
 right to demand an account. We proceed to consider 
 the new form of industrial association which will prob- 
 ably emerge in time from these changes of the law.
 
 142 THE STATE IN RELATION TO LABOUR chap. 
 
 Industrial Partnership. — It has been seen that the 
 value of a workman's services depends not only upon 
 his technical skill and the quantity of goods which he 
 has helped to produce, but also upon the price at which 
 those goods can be disposed of. Owing to unavoidable 
 commercial fluctuations the price obtained varies from 
 time to time in a manner defying precise anticipation. 
 It follows that there is a large margin for loss or gain, 
 which must fall upon the employer if the interests of 
 the workman are to be closed by the weekly or fort- 
 nightly payment of wages. The operative, in short, is 
 a partner who is being continually paid out of the firm, 
 as it were, because he will not or cannot await the realis- 
 ation of his labours. 
 
 There can be no doubt that the soundest possible 
 solution of the labour question Avill eventually be found 
 in such a modification of the terms of partnership as 
 shall bind the interests of the employer and workman 
 more closely together. Under such a system the weekly 
 wages would be regarded merely as subsistence money 
 or advances which the employer would make to enable 
 the labourer and his family to await the completion of 
 the interval between manufacture and sale. The balance 
 of the value produced would be paid at the end of the 
 year or half-year in the form of a dividend or bonus, 
 consisting in a share of all surplus profits realised beyond 
 the necessary charges of interest, wages of superintend- 
 ence, cost of depreciation of capital, reserve to meet 
 bad debts, and all other expenses of production for 
 which the employer can fairly claim compensation. 
 Under the name of Industrial Partnership such an ar- 
 rangement has been experimentally tried in England,
 
 VI INDUSTRIAL PARTNERSHIP 143 
 
 and has been subject to a good deal of adverse discussion. 
 The outlines of the scheme are familiar to all Avho have 
 read with proper care John Stuart Mill's Principles of 
 Political Economy^ I need not repeat here the details 
 of the success attained by Leclaire, the house-decorator 
 of Paris, in organising a partnership on this basis, 
 including 200 employees. Nor need I do more than 
 refer to the Paris and Orleans Eailway Company, which 
 long made a practice of distributing a bonus to its 
 employees. 
 
 It would probably be impossible to get back to the 
 first origin of this system. The primitive form of 
 industrial organisation within the family, the family 
 tribe, or the village community, was not very different. 
 It is said that at the present day there is a system of 
 social partnership in Hindu villages in which the divi- 
 sion of the aggregate profits is made according to the 
 work, ability, or capital which each individual contributes. 
 Brentano quotes an ancient record showing that at Bruges 
 and Ypres the masters and servants in the woollen trade 
 divided the profits according to a fixed scale. In the 
 herring fishery, whaling adventures, Cornish mining, and 
 some other branches of industry, it has always been 
 usual to make the workman's share depend partly at 
 least upon the results. The extension of a similar 
 system to manufacturing industry in general was until 
 recent years practically impossible owing to the law of 
 partnership). But it is a very remarkable fact that nearly 
 a hundred years ago (1788), an Act was passed by the 
 Irish Parliament to promote trade and manufacture 
 by regulating and encouraging partnerships. It allowed 
 
 ^ Book IV. chap. vii. sect. 5, People's Edition, pp. 461-465.
 
 144 THE STATE IN RELATION TO LABOUR chap. 
 
 persons to subscribe suras of money to men well quali- 
 fied to trade, on the condition that the subscribers were 
 not to be deemed traders on that account, or subject to 
 any further demands.^ Had such a law existed for a 
 hundred years in England, it would have allowed of the 
 growth of industrial partnership, and would in all 
 probability have profoundly ameliorated the relations of 
 labour and capital. 
 
 I entered into careful consideration of this subject in a 
 lecture prepared for the Social Science Association in 1 870, 
 and published by the Society, ^ and I see no reason to 
 alter the opinions in favour of the plan then expressed. 
 It is true that the experimental trials of the system 
 which were then being made by Messrs. Henry Briggs 
 and Co. in coal mining, Messrs. Fox, Head, and Co. in 
 iron manufacture, Mr. E. 0. Greening, and others, in 
 several branches of trade, have proved more or less 
 unsuccessful. The industry has continued, but the 
 partnership with the men has been given up. On the 
 principles enunciated at the outset, to the effect that we 
 must reason from the most direct and proximate experience 
 available, it might seem that these failures negative the 
 whole thing. But then, as before explained, experience 
 requires careful interpretation ; when we remember that 
 these few experimental partnerships were started in 
 single-handed opposition to powerful trades unions, we 
 can see that there may have been interfering causes suffi- 
 cient to ensure failure. A system like that of trades 
 
 ^ Holyoake, History of Co-operation, vol. ii. p. 227. 
 
 "^ On Industrial Partnerships — A Lecture delivered under the 
 auspices of the National Association for the Promotion of Social 
 Science. April 5, 1870. London, 1 Adam Street, Adelphi.
 
 VI INDUSTRIAL PARTNERSHIP 145 
 
 unionism, with all its associated ideas, has vast latent 
 influence. When we remember that the men employed 
 in the works in question were brought up and imbued 
 with these ideas, we see that it must take a long time 
 to introduce a very different system. 
 
 The present doctrine is that the workman's interests 
 are linked to those of other workmen, and the employer's 
 interests to those of other employers. Eventually it 
 will be seen that industrial divisions should be per- 
 pendicular, not horizontal. The workman's interests 
 should be bound up with those of his employer, and 
 should be pitted in fair competition against those of 
 other workmen and employers. There would then be 
 no arbitrary rates of wages, no organised strikes, no long 
 disputes rendering business uncertain and hazardous. 
 The best workman would seek out the best master, and 
 the best master the best workmen. Zeal to produce the 
 best and the cheapest and most abundant goods would 
 take the place of zeal in obstructive organisation. The 
 faithful Avorkman would not only receive a share of any 
 additional profits which such zeal creates, but he would 
 become a shareholder on a small scale in the firm, and a 
 participator in the insurance and superannuation benefits 
 which the firm could hold out to him with approximate 
 certainty of solvency. 
 
 I should hesitate thus to enlarge upon the advantages 
 of industrial partnership were they at present purely 
 imaginary and in opposition to experience. The fact, 
 however, is, that in France, where trades unions have never 
 acquired much influence, the system of industrial partner- 
 ship has advanced surely, and of late rapidly. Under 
 the name of Participation aibx B6n<''fices, or participation in
 
 146 THE STATE IN RELATION TO LABOUR chap. 
 
 profit, it has been adopted by at least forty firms, many 
 of them, such as the well-knoAvn " Bon Marche," being 
 establishments of great extent and importance. A society, 
 now in the third year of its existence, has been formed to 
 study the different schemes of participation adopted, and 
 to make them known in the Bulletin of the Society. This 
 publication is issued by Messrs. A. Chaix et Cie., Rue 
 Bergere, 20, Pres du Boulevard Montmartre, 5 francs 
 per volume. Payments can be made to a collector in 
 London, who will be named on application to the 
 secretary of the society at the address just given. Full 
 membership of the society is obtained by payment of an 
 annual subscription of 20 francs. The fullest details of 
 the constitution, general management, and results of the 
 French industrial partnerships are given in this peri- 
 odical. One of the latest numbers of the Bulletin con- 
 tains a complete history of the partnership accorded 
 to its employees by the Compagnie du Chemin de Fer 
 d'Orl^ans, since amalgamated with other lines. In the 
 last year or two Mr. Sedley Taylor has drawn attention 
 to the remarkable progress of " participation in profits " 
 in France, and has wisely and ably advocated similar 
 progress in this country. So great is the practical 
 importance of the subject that I subjoin a list of the 
 papers or books in which the reader can obtain full 
 information : — 
 
 Cliarles Babbage, Ecoiiomy of Manufactures, chap. xxvi. 
 H. C. Briggs, Social Science Association, 1869. 
 H. C. and A. Briggs, Evidence before the Trades-Union Com- 
 mission, 4th March 1868. Questions 12,485 to 12,753. 
 The Industrial Partnerships Record. 
 Pare, Co-operative Agricultiore (Longmans), 1870.
 
 VI INDUSTRIAL PARTNERSHIP 147 
 
 Jean Billon, Participation des Ouvriers aux Benefices des 
 Patrons, Geneve, 1877. 
 
 Fougerousse, Patrons et Ouvriers de Paris (Chaix), 1880. 
 
 Sedley Taylor, Society of Arts Jotirnal, 18th February 1881, 
 vol. xxix. pp. 260-70. Also in Nineteenth Century, May 1881, pp. 
 802-11, " On Profit Sharing." 
 
 To see what is being clone abroad, the reader sbonld consult La 
 Question Ouvrih'c : Essai de Solution Pratique. Par J. C. Van 
 Marken : Paris (Chaix), 1881.
 
 148 THE STATE IN RELATION TO LABOUR chap. 
 
 CHAPTER VII 
 
 ARBITRATION AND CONCILIATION 
 
 Having regard to the failure of working-men in most 
 cases to become their own employers by co-operation, 
 and the apparent remoteness of the time when the 
 system of industrial partnership is likely to be adopted 
 in this country, we must turn with increased interest 
 to the measures which have been taken with respect 
 to conciliation and arbitration. A conciliator is one who 
 intervenes between disputants in order to promote calm 
 discussion, to draw forth frank explanations, or to 
 suggest possible terms of compromise. The mere fact 
 that the conciliator is, as he always ought to be, unim- 
 passioned and disinterested, the impartial spectator of 
 Adam Smith's theory of morals, is often sufficient to 
 enable him to allay the irritation and to prove that the 
 disputants are more nearly of a mind than they imagined 
 themselves to be. An arbitrator, on the other hand, is 
 one appointed either by the consent of the parties, or by 
 superior authority, to inquire into the facts, to receive 
 explanations from both sides, and then, with or without 
 the concurrence of the disputants, to assign the terms of 
 arrangement. The losrical difference between conciliation
 
 VII ARBITRATION AND CONCILIATION 149 
 
 and arbitration is that the agreement is in the former 
 case entirely vokmtary ; in the latter case it is, if need 
 be, compulsory. It follows that conciliation may be 
 practised any day by any person, irrespective of the law 
 or the State. To constitute arbitration in the proper 
 sense of the term there must be some statutory or 
 judicial power under which the arbitrators proceed. 
 Even if the parties enter into arbitration in a perfectly 
 voluntary way, they must surrender their freedom to a 
 certain extent, by agreeing to accept the arbitrators' 
 award, and thus enabling it to be judicially imposed. 
 If this be not the case, the arbitration so called is in 
 reality only conciliation. 
 
 It must be quite apparent, however, that the greatest 
 possible difference exists between trade disputes according 
 as they relate to the past, or (the present being a mere 
 moment) to the future. When difficulties occur about 
 the interpretation of past contracts, or questions of detail 
 arise which were unforeseen at the time, arbitration is 
 of course the proper and natural resource. It is the 
 mode of settling disputes provided for in the articles of 
 association of countless mercantile companies, in agree- 
 ments of many kinds, and in the instruments of partner- 
 ship of private firms. A court of law in a civil action 
 is to a great extent a court of arbitration, but when 
 the points of disagreement turn on questions of usage, 
 technical practice, or complicated accounts, rather than 
 points of law, it is usual for the judges to hand over the 
 decision to arbitrators who are unfettered by the forms 
 and ceremonies of the law. All such disputes relating 
 to the past must be settled one way or the other, and 
 when the arbitrators have been chosen and have given a
 
 150 THE STATE IN RELATION TO LABOUR chap. 
 
 decision honestly and carefully, it is proper that the 
 result should be carried into effect compulsorily. 
 
 It is a totally different question how far agreements 
 relating to the future conduct of trade and industry can 
 or ought to be decided by the judgment of a third party. 
 Here the freedom of industry is at stake, for the arbi- 
 trator will now have to decide, not what agreement was 
 made, but what is to be made. The voluntary nature of 
 the arrangement cannot be affected by inquiries directed 
 merely to ascertain Avhat the arrangement was ; but in 
 regard to the future an arbitrator in assigning the terms 
 on which disputants are to agree necessarily restricts 
 their liberty. The course of future events being unknown, 
 there can be no certainty that the arbitrator knows 
 better than the other parties. Such arbitration, then, 
 resolves itseK into the arbitrary fixing of rates of wages 
 and prices, and other terms of working, which it is 
 supposed, according to the principles of economics, should 
 be left to the play of supply and demand. It is of a 
 piece with the assize of bread and ale, and the provisions 
 of the Statute of Apprentices which required the justices 
 of the peace to fix rates of wages at their o^m discretion. 
 
 The Law of Arlitrcdion in Labour Disjmtes. — Before 
 attempting, however, to form an opinion how far some 
 kind of conciliation or arbitration is applicable to the 
 future, it is well to review briefly the com'se of legislation 
 on the subject. Under the Elizabethan statutes there 
 was no place for arbitration, becatise the conditions of 
 labour were placed entirely in the hands of magistrates. 
 But the decadence of that legislation was marked by 
 the statute of the 20 Geo. II. cap. 19, which introduced
 
 VII ARBITRATION AND CONCILIATION 151 
 
 a new principle by giving summary jurisdiction to justices 
 of the peace in disputes between masters and servants 
 when the term of hiring is one year or longer. A justice 
 of the peace may decide all such disputes " although no 
 rate or assessment of wages has been made that year by 
 the justices of the peace of the shire," etc. Extensive 
 powers were given to the magistrates for coercing refrac- 
 tory servants and apprentices, although there was the 
 alternative of discharging them from their engagements. 
 By the 31 Geo. II. cap. 11, the powers of the Act 
 were extended to the case of agricultural servants hired 
 for less than a year; but the magistrate's interference 
 was clearly limited to disputes arising during the 
 currency of a hiring, and no power was given to bind 
 servants beyond that term. 
 
 During the eighteenth century a series of Acts was 
 passed, partly the same as those known as the Combination 
 Acts, which provided means for the settlement of disputes 
 in particular trades, especially those engaged with cotton. 
 The Act of the 43 Geo. III. (1803), cap. 151, was of a 
 more elaborate character, and enabled disputes between 
 masters and weavers, or such as arise with persons 
 engaged in ornamenting cotton goods by the needle, to 
 be settled by referees appointed by a justice of the peace. 
 Such Acts were, however, consolidated and replaced 
 by that of the 5 Geo. IV. cap. 96, which established 
 one general law relating to arbitration of disputes in 
 every branch of trade and manufacture. This Act was 
 doubtless passed in consequence of the recommendations 
 of the Committee of the House of Commons of 1824, 
 which inquired into the operation of the Labour Laws. 
 In the second section we find an enumeration of the 
 
 L
 
 152 THE STATE IN RELATION TO LABOUR chap. 
 
 causes of dispute which may be referred to arbitrators 
 under the Act; but we find it carefully provided that 
 " nothing in this Act contained shall authorise any justice 
 or justices acting as hereinafter mentioned to establish a 
 rate of wages or price of labour or workmanship, at 
 which the workman shall in future be paid, unless with 
 the mutual consent of both master and workman." There 
 is a great contrast between the powers here given to 
 justices and those which they enjoyed under the older 
 laws ; but it will be seen that with the consent of both 
 parties they could settle rates prospectively. The arbi- 
 tration under this Act is to be carried out by persons 
 nominated by the justice of the i^eace, one half being 
 master manufacturers and the other half workmen, out 
 of which the master and workmen who are in dispute 
 respectively choose one man each as referees having full 
 power to hear and determine the dispute. In case of 
 failure of decision other referees could be appointed, and 
 in the last resort the justices could settle the matter 
 finally, provided that no master manufacturer could act 
 as justice in this capacity. This elaborate Act is in full 
 force, only the first section having been superseded by 
 the Statute Law Revision Act, 1873. It is, I presume, 
 but seldom appealed to. 
 
 The Function of the Conciliator. — It is quite obvious, 
 then, that there is ample precedent for referring trade 
 disputes to arbitration, provided that the powers of the 
 arbitrators shall not extend to the fixing of a future rate 
 of wages or prices of any commodity. But, as this fixing 
 of future rates is often the main matter in dis^jute, it 
 still remains to be considered how far conciliation may 
 apply to the future. Clearly, the consent of both the
 
 VII ARBITRATION AND CONCILIATION 153 
 
 parties will be the measure of the jDower of the arbi- 
 trator, and, as the term of the compulsory award, if any, 
 will be brief, prospective arbitration becomes reduced to 
 conciliation. But the question still remains, Is there 
 any legitimate function for a third party intervening 
 in such disputes 1 Wages and prices are governed by — 
 that is to say, manifest — the laws of supply and demand. 
 Buyers and sellers must higgle until they hit that mean 
 term at which business can proceed. In the corn, cotton, 
 stock, and other large markets, no conciliators are needed 
 to arrange quotations. The question is. Will you, or will 
 3^ou not buy 1 If one person does not buy, another does ; 
 or the price asked is shifted a little, until a buyer is 
 attracted. Why does not the same spontaneous adjust- 
 ment take place in the labour market 1 Probably it 
 would take place were individual workmen and em- 
 ployers left alone to make separate bargains in each case. 
 Domestic servants, for instance, arrange their terms of 
 hiring in perfect independence ; there are no strikes and 
 no lock-outs. If an employer offers too low terms, 
 servants are not to be had. There is the freest com- 
 petition among good servants for good places, and among 
 good employers for good servants. The general result is 
 quite satisfactory. 
 
 The existence, however, of combinations in the labour 
 market alters the nature of the bargains altogether. 
 There is no longer competition among men and among 
 employers, but we have a uniform body of men demand- 
 ing a certain rate of wages, and a body of employers 
 offering another. The laws of supply and demand do 
 not apply to such a case. In all bargains about a single 
 object there may arise, as I have explained in my Theory
 
 154 THE STATE IN RELATION TO LABOUR chap. 
 
 of Political Economy (2d ed. pp. 128-137), a dead-lock. 
 In the sale of an estate, for instance, A may be willing 
 to sell for £10,000, and B may in his own mind be pre- 
 pared to give £11,000, if necessary. Could their minds 
 be perfectly known to each other, any price between 
 £10,000 and £11,000 would be possible; but there 
 would even then be a dead-lock arising from the want of 
 any means of determining at what point between £10,000 
 and £11,000 the eventual price should be fixed. As 
 each party in a negotiation, however, conceals his own 
 feelings and intentions as much as possible, B may believe 
 that A Avill sell for £9000, and by way of dissembling 
 his own great wish for the estate offers only £8000. 
 The combat of desires and fears is only resolved by the 
 lapse of time which tries the patience of both parties, 
 unless, indeed, a third party is called in as mediator. 
 An important negotiation of the kind is, indeed, seldom 
 conducted by the personal meeting of the parties in- 
 terested. It is handed over to their solicitors or land 
 agents ; and, when they come to a dead-lock, the inde- 
 pendent opinion of a valuer will be appealed to, if it is 
 obviously for the advantage of all that some bargain 
 should be concluded. 
 
 Now, as pointed out by Mr. F. Y. Edgeworth, in his 
 remarkable work on Mathematical Physics, the exist- 
 ence of combinations in trade disputes usually reduces 
 them to a single contract bargain of the same indeter- 
 minate kind. The men, for instance, ask for 15 per 
 cent advance of wages all round. Rather than have a 
 strike, it might be for the interest of the employers to 
 give the advance, or for the men to withdraw their 
 demand ; a fortiori, any intermediate arrangement would
 
 VII ARBITRATION AND CONCILIATION 155 
 
 still more meet their views. But there may be absolutely 
 no economic principle on which to decide the question. 
 Mathematically speaking, the problem is an indeterminate 
 one, and must be decided by importing new conditions. 
 
 It would appear, then, that, even on the grounds of 
 pure economic theory, there are reasons why a conciliator 
 might be proj)erly called in to resolve an industrial dead- 
 lock. Far more expedient still must this course appear 
 when we remember that in trade disputes the economic 
 question is often the smallest part of the matter. Masters 
 and men belong to such different classes of society that 
 the least difference of opinion is soon complicated with 
 sentiments of social dislike. Ideas of so-called fairness, 
 justice, generosity, good faith, etc., are implicated. If 
 no mode of allaying the dispute be quickly discovered, 
 it becomes a question of surrender or no surrender. 
 A strike, says Mr. Newmarch, is the end of discussion 
 and the beginning of war. As Mr. Bevan remarks, a 
 casus belli no sooner arises than all prudence is thrown 
 to the winds. Pecuniary losses are of little account to 
 those who are prepared to endure starvation rather than 
 submit to Avhat they esteem "injustice." It is obvious, 
 then, that a trade dispute, especially when it has reached 
 the acute phase of a strike, has little or nothing to do with 
 economics. It is not a question of science, and there is no 
 theoretic reason why conciliators should not be called in, 
 if experience shows that they are usually able to compose 
 matters. 
 
 In many cases the work of such conciliators will con- 
 sist in little more than inquiring into the real facts of the 
 case, and impartially and authoritatively making them 
 known to both parties. If either party then confesses to
 
 156 THE STATE IN RELATION TO LABOUR chap. 
 
 misapprehension, it is clear that the conciHator imports 
 rather than ousts pohtical economy. He acts the part 
 of an economic and statistical inquirer. Even if a differ- 
 ence still exists, the conciliator may be able to suggest 
 some medium course which it Avill be for the interests of 
 both parties to accept rather than to continue a struggle 
 ruinous to all. As in legal litigation, it is often better 
 to have any decision rather than no decision at all. The 
 conciHator may play the part of scapegrace, and bear the 
 reproaches, provided only that the combatants will accept 
 the terms and try to forget their mutual reproaches. 
 
 Results of Experience in Conciliation. — The success of the 
 conciliation system has varied much in different trades. 
 From a review of the facts adduced by Mr. Weeks in his 
 valuable report upon the subject, to be presently men- 
 tioned, I should infer that success is greatest when there 
 is a multiplicity of rates of wages and prices of work and 
 all kinds of technical details to be settled. In the hosiery 
 trades, for instance, this is conspicuously the case, the lists 
 of prices and rates extending to thousands of items. In 
 such a trade some method of arrangement must be invalu- 
 able if not indispensable, as the remarkable success attained 
 at Nottingham by the Board originated by Mr. Mundella 
 sufficiently shows. In many other trades the details are 
 more numerous and perplexing than easily appears to an 
 outsider. Thus, in the building trades generally there 
 are not only the principal rates of wages to be paid, but 
 the rates for overtime, the time of payment, the length 
 of notice, the hours of beginning and ending work, and 
 the intervals allowed for meals. The allowance of 
 " walking time," or the time required for getting to and
 
 VII ARBITRATION AND CONCILIATION 157 
 
 from the place of work, is also a fruitful cause of dispute. 
 When all such matters are arranged to the satisfaction 
 of both parties, there arises a complete code of working 
 rules, like that prepared by Mr. Davis for the bricklayers 
 and builders ofthe Staffordshire potteries. Such trouble- 
 some details must be settled by custom or by some kind 
 of rule, written or unwritten. The laws of supply and 
 demand cannot settle such details. And if disputes and 
 strikes are shown by experience to be fewest under a 
 system of arbitration, it is difficult to deny the utility of 
 the system. 
 
 Much less success has so far attended the practice of 
 arbitration in the great branches of mining industry and 
 metallurgy. When a single decision affects in a serious 
 degree the interests of a very large body of men, or a 
 very large mass of capital, it is difficult to induce the 
 parties to submit so important a matter to the judgment 
 of a single mind. The employers affirm that they cannot 
 yield demands for higher wages without suffering a large 
 pecuniary loss, Nothing but necessity, then, can make 
 them yield. The men, on the other hand, will not be 
 satisfied by the assurances of the most respectable arbi- 
 trator. Thus either the dead-lock is maintained without 
 arbitration, or the awards of arbitrators are unfortunately 
 repudiated in some cases by the men, or in rare cases by 
 the masters. It is to be hoped, however, that arbitration 
 may make progress even among colliers ; there must be 
 many matters relating to modes of weighing, safety of 
 mines, convenience of labour, etc., which might be settled 
 by a board, and an approach to a better understanding 
 about wages should be made through a sliding scale. 
 In several cases, indeed, sliding scale agreements have
 
 158 THE STATE IN RELATION TO LABOUR chap. 
 
 recently broken down, and the experience of arbitration 
 in the great trades alhided to is rather discouraging. 
 But in the absence of any better method of comjiosing 
 strife, the only course seems to be to try again and again, 
 until the parties learn the superior advantages of indus- 
 trial peace. It must be obvious, however, that both the 
 sliding scale and the system of arbitration generally 
 should be regarded as no permanent settlement of the 
 relations of workmen and employers, but rather as a 
 stepping-stone to some still sounder method of partner- 
 ship and participation in profits which a future generation 
 will certainly enjoy. 
 
 A very careful and impartial inquiry into the methods 
 and success of arbitration and conciliation in this country 
 was made a few years ago by Mr. Jos. D. Weeks, special 
 commissioner of the State of Pennsylvania. It is en- 
 titled, "Report on the Practical Operation of Arbitra- 
 tion and Conciliation in the Settlement of Differences 
 between Employers and Employees in England. . . . 
 Harrisburg (U.S.A.), 1879." It is probably the most 
 valuable document published on the subject, describing 
 both the successes and failures of the system.^ Reference 
 should also be made to Mr. Rupert Kettle's valuable 
 evidence before the Trades-Union Commissioners of 1867 
 (Questions 6985 to 7231), and to Mr. Henry Crompton's 
 well-known "Essay on Industrial Conciliation." 
 
 Conseils de Prudliommes. — The comparatively brief 
 experience furnished by boards of arbitration in this 
 
 ^ See also Mr. Weeks' later report on Industrial Conciliation and 
 Arbitration in New York, Ohio, and Pennsylvania, in the Twelfth 
 Annual Report of the Massachusetts Bureau of Statistics of Labor. 
 Boston, 1881.
 
 VII ARBITRATION AND CONCILIATION 159 
 
 country is fortified by the long and successful action of 
 somewhat similar bodies in France and Belgium. Though 
 invested with judicial power, and placed upon a legal 
 footing, the Conseils de Prud'hommes are in part of 
 their functions closely analogous to the volunteer concili- 
 ators of the English manufacturing districts. The name 
 prucVhommes (wise men) carries us back to the mediaeval 
 communauUs or guilds of arts and trades in France. 
 They were the experts chosen to judge the soundness 
 of commodities or to settle trifling disputes between 
 merchants and manufacturers at fairs. The Revolution 
 made an end of all such antiquated institutions, so far 
 as they had not already fallen into disuse; but it is 
 curious to find that the eleventh year of the Eepublic 
 had not elapsed before the City of Lyons discovered the 
 necessity of some kind of trade tribunal, and the law of 
 the 21 Germinal of that year, although applying at first 
 only to Lyons, soon became the basis on which similar 
 conseils were established in many other French towns. 
 The members of the conseil are elected by all the 
 employers, managers, foremen, and workmen of the 
 industries coming under its purview, the make of the 
 commune preparing the voting lists, and the ^;?y/c^ acting 
 as returning officer. The masters and men are convoked 
 separately, and return to the council equal numbers of 
 their own body. The president and vice-president are 
 nominated by the chief of the executive power (i.e. the 
 Central Government), and the council thus constituted 
 retains its power for three years. It is divided into two 
 bureaux or committees — the bureau general, composed of 
 at least five members, meeting once a week, and the 
 bureau particulier, consisting of one master and one
 
 160 THE STATE IN RELATION TO LABOUR chap. 
 
 workman, Avho attend every day for two hours. All 
 disputants are " invited," in the first place, to come before 
 the bureau particulier, in order to "explain" their difter- 
 ences. If this result be not achieved, they are summoned 
 more formally before the bureau g6n6ral, which disposes 
 authoritatively of the matter, if falling Avithin their com- 
 petence. It is plain that the bureau particulier represents 
 conciliation as contrasted with the arbitration of the 
 bureau gdn&al. 
 
 From Mr. Bevan's paper on Strikes {Journal of the 
 Statistical Society, March 1880, vol. xliii. pp. 35-64) Ave 
 learn that the numbers of cases brought before these 
 bodies annually in France have varied from 30,000 up to 
 45,000. In about 70 per cent of the cases conciliation 
 Avas sufficient, Avhile a considerable number of cases Avere 
 eventually settled outside the court. Of the causes of 
 dispute, 61 per cent related to wages, 14 per cent to 
 dismissals, and 5 per cent to apprenticeship cases. The 
 conseils also have cognisance of property in designs, trade- 
 marks, and some other matters not coming Avithin our 
 present subject. 
 
 A considerable body of laAv has groAvn up in France 
 around these tribunals, the functions of Avhich are care- 
 fully defined and regulated. Those who are interested 
 in the subject can learn the AA^hole constitution, laA\", and 
 practice from any of several admirable little manuals 
 which haA^e been drawn up by French advocates. It 
 Avill be sufficient to mention the Code Pratique des Frud'- 
 hommes, par Th. Sarrazin, 3e ed. 2e Tirage, Paris, 1880 
 (Marchal, Billard, et Cie. Prix 1 franc 50 cent.) 
 
 The Best Constitution of Boards of Conciliation. — The
 
 VII ARBITRATION AND CONCILIATION 161 
 
 question still remains how far Boards of Arbitration and 
 Conciliation in this country ought to be connected with 
 or regulated by the State. The long-continued success 
 of the Conseils de Prud'hommes, which are distinctly 
 State tribunals, would lead us to expect good results from 
 a like institution here. But the analogy between French 
 and English institutions is never a very safe ground of 
 inference, and experience in England tends rather to 
 show that the more the arbitrating bodies originate in 
 the voluntary action of the parties concerned, the more 
 they are likely to carry weight. An attempt has, indeed, 
 been made to give a legal basis to such bodies, by 
 the passing of the 30 and 31 Vict. cap. 105 (1867), 
 entitled, "An Act to establish Equitable Councils of 
 Conciliation to adjust difterences between masters and 
 workmen." After reciting, without repealing, three of 
 the previous Acts already mentioned (p. 151) relating 
 to arbitration, this new Act gives power to Her Majesty, 
 or the Secretary of State for the Home Department, to 
 grant a license for the formation of a council, after 
 receiving a joint petition from any number of persons, 
 who as masters shall have resided in a place for six 
 months, or as workmen shall have so resided six months, 
 and shall also have worked at the trade for seven years 
 previous to the signing of the petition. The petitioners 
 shall, at a meeting specially convened for the purpose, 
 agree to form a council, and notice of the intention must 
 be published, one month before the application, in the 
 London Gazette, and in one or more newspapers of the 
 locality. The masters and men of two or more adjoining 
 boroughs or districts of the metropolis may associate 
 themselves together in these matters. The council is
 
 162 THE STATE IN RELATION TO LABOUR oiiap. 
 
 to consist of not loss than two, nor more than ten, 
 masters and workmen, together with a chairman ; but 
 no member can adjudicate in a cause in which he or 
 any of his relatives is concerned. The petitioners are to 
 elect the first council, which, after appointing their 
 chairman, clerk, and other requisite officers, shall have 
 power to hear and determine all differences between 
 masters and workmen, as set forth in the Act of the 
 5 Geo. IV. cap. 96, which may be submitted to them by 
 both parties. The award is to be final and conclusive, 
 and may be enforced by proceedings of distress, sale, or 
 imprisonment, as provided in the recited Acts. It is, 
 however, specially provided that "nothing in this Act 
 contained shall authorise the said council to establish a 
 rate of wages, or price of labour, or workmanship, at 
 which the workman shall in future be paid." The 
 quorum of the council is to consist of three members, 
 but a committee called the Committee of Conciliation, 
 appointed by the council, and consisting of one master 
 and one workman, shall endeavour to reconcile all differ- 
 ences in the first instance. The chairman is to be uncon- 
 nected Avith trade, and has a casting voice. No counsel, 
 solicitors, or attorneys are to be heard before the council 
 or committee Avithout the consent of both parties. The 
 council is to be elected annually on the 1st November, 
 and any inhabitant householder, who as a master has 
 resided six months, or as a man has resided for a" like 
 period, and worked for seven years at the trade, is 
 entitled to be registered as a voter. The proceedings 
 at the election are carefully prescribed, and a schedule 
 gives the various official forms required, including 
 warrants of distress and commitment.
 
 VII ARBITRATION AND CONCILIATION 163 
 
 Evidently these Equitable Councils of Conciliation 
 are imitations of the French Conseils de Prud'hommes, 
 with some infusion of the older English law of arbitra- 
 tion. They are courts of laAV in disguise, and although 
 care is taken to make them as impartial as possible, it is 
 to be doubted, and experience confirms the doubt, whether 
 they will meet with any favour. As such legally con- 
 stituted councils are very properly prohibited from fixing 
 rates of wages for the future, they fail to give aid just 
 where aid is needed. All available evidence tends to 
 show that successful boards of conciliation must be 
 purely volunteer bodies, with no taint of the justice of 
 the peace about them, and no powers of distress and 
 commitment. 
 
 In all probability success will best be obtained in the 
 settlement of trade disputes by keeping lawyers and laws 
 as much at a distance as possible. There must be spon- 
 taneous or at least voluntary approximation of the 
 parties concerned. It is a question not of litigation, but 
 of shaking hands in a friendly manner, and sitting 
 down to a table to talk the matter over. The great 
 evil of the present day is the entire disunion of the 
 labourer and the capitalist ; if we once get the hostile 
 bodies to meet by delegates round the same table on a 
 purely voluntary and equal footing, the first great evil 
 of disunion is in a fair way of being overcome. There 
 might arise danger of joint conspiracy against the outside 
 public, but on the whole the evils thus likely to arise are 
 less considerable than those connected with strikes.
 
 1(54 THE STATE IN RELATION TO LABOUR chap. 
 
 CHAPTER VIII 
 
 CONCLUDING REMARKS 
 
 On reviewing the arguments given in the little treatise 
 now brought to a close, it may perhaps seem to the 
 reader that the results obtained are hesitating and con- 
 flicting, if not positively contradictory. We started with 
 the task of determining in what cases the State should 
 or should not interfere vnth industrial freedom. 
 
 Ancient restrictive legislation such as that of the 
 Statute of Apprentices was denounced ; and even the 
 slight modern remnant, the practice of apprenticing 
 youths for seven years, was described as slavery; the 
 common law doctrine of non-restraint of trade was held 
 up as wise in the highest degree ; yet at the same time 
 the modern Factory Acts were treated as admirable, and 
 additional restrictions were advocated in the cases of 
 mothers- of -3'oung- children employed in factories, shop- 
 assistants, and some other cases. 
 
 Anything approaching to a government superintend- 
 ence of industry or official inspection of commodities 
 was treated as out of the question ; yet certain branches 
 of trade, it was concluded, could be advantageously 
 regulated by government.
 
 VIII CONCLUDING REMAEKS 165 
 
 Passing to another branch of the subject, the inter- 
 ference of trade societies in productive industry was, as a 
 general rule, deprecated ; j^et the existence and proceed- 
 ings of certain professional unions and newly -created 
 institutes of various sorts were defended. Though it 
 was held that trades unions ought not to settle the 
 course of trade, yet it was argued that courts of concilia- 
 tion, if not of arbitration, might decide many matters 
 which, according to the pure principles of political eco- 
 nomy, ought to be left to the action of the laws of supply 
 and demand. 
 
 All this savours of paradox and contradiction, but 
 only on a superficial view of the matter. The subject is 
 one in which we need above all things — discrimination. 
 Eestrictions on industr}' are not good nor bad j>(?r se, but 
 according as they are imposed Avisely and Avith good 
 intentions, or foolishly, and with sinister intentions. 
 Prima facie, indeed, restriction is bad, because Providence 
 is wiser than the legislator — that is to say, the action of 
 the natural forces of evolution will ensure welfare better 
 than the ill-considered laws of the prejudiced and unskil- 
 ful legislator. But reason is a Divine gift, and where 
 upon the grounds of clear experience interpreted by 
 logical reasoning we can see our way to a definite im- 
 provement in some class of people without injuring others, 
 we are under the obligation of endeavouring to promote 
 that improvement. The greater part of the interference 
 of trade societies is objectionable, because, though directed 
 toward the welfare of a part, it is directed against the 
 Avelfare of the rest of the community. All other indus- 
 trial problems must be solved by similar careful estima- 
 tion of the total utilitarian results.
 
 166 THE STATE IN RELATION TO LABOUR cuap.viii 
 
 If such be a true view of the case it is clear that there 
 can be no royal road to legislation in such matters. 
 We cannot expect to agree in utilitarian estimates, 
 at least without much debate. We must agree to differ, 
 and though we are bound to argue fearlessly, it should 
 be with the consciousness that there is room for wide 
 and bo7iS, fide difference of opinion. We must consent to 
 advance cautiously, step l)y step, feeling our way, adopt- 
 ing no foregone conclusions, trusting no single science, 
 expecting no infallible guide. We must neither maximise 
 the functions of government at the beck of quasi-military 
 officials, nor minimise them according to the theories of 
 the very best philosophers. We must learn to judge 
 each case upon its merits, interpreting with painful care 
 all experience which can be brought to bear upon the 
 matter. 
 
 Moreover, we must remember that, do what we ^vill, 
 we are not to expect approach to perfection in social 
 affairs. We must recognise the fact clearly that we have 
 to deal •ndth complex aggregates of people and institu- 
 tions, which we cannot usually dissect and treat piece- 
 meal. We must often take "all in all or not at all." 
 Tolerance therefore is indispensable. We may be obliged 
 to bear with evil for a time that we may avoid a worse 
 evil, or that we may not extinguish the beginnings of 
 good. In the end we shall not be disappointed if our 
 efforts are really directed towards that good of the people 
 which was long ago pronounced to be the highest law. 
 
 THE END
 
 Now Publishing, in Crown 8«o., Price Zs. 6c?. each. 
 
 Z\)C Enolisb (titisen: 
 
 A SERIES OF SHORT BOOKS ON 
 
 HIS RIGHTS AND RESPONSIBILITIES. 
 
 Edited by HENRY CRAIK, M.A. (Oxon.), LL.D. (Glasgow). 
 
 This series is intended to meet the demand for accessible 
 information on the ordinary conditions and the current terms of 
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 men, the reading of newspapers, the hearing of political speeches, 
 may give a partial acquaintance with such matters, or at least 
 stimulate curiosity as to special points. But such partial 
 acquaintance with the most important facts of life is not 
 satisfactory, although it is all that the majority of men find 
 within their reach. 
 
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 The following are the titles of the volumes : — 
 
 1. CENTRAL GOVERNMENT. H. D. Traill, D.C.L., late 
 
 Fellow of St. John's College, Oxford. Eeady.] 
 
 " Mr. Traill gives a chapter to executive governineut under the constitutional 
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 state. . . . This scheme Mr. Traill has carried out with a great deal of know- 
 ledge and in an excellent manner. ... A clear, straightforward style enables 
 h'm to put his knowledge in a way at once concise and lucid." — Saturday 
 Jievietv. 
 
 2. THE ELECTORATE AND THE LEGISLATURE. Spencer 
 
 Walpole, Author of "The History of England from 1815." 
 
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 those stages with which we are now familiar, and he does so very clearly and 
 succinctly." — St. James s Gazette. 
 
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 information is packed into a small space, and yet Mr. Maitland has contrived 
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 TAXES, AND RATES. A. J. Wilson. [Ready 
 
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 Series. Not one of these works have better deserved the highest encomiums 
 
 than Mr. Wilson's book. ... It is calculated to do much in the way of 
 
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 6. THE STATE AND EDUCATION. Henry Craik, M.A., 
 
 LL.D. [Ready. 
 
 " An excellent digest of the progress of our National Education during the 
 present century. " — Academy. 
 
 7. THE POOR LAW. Eev. T. W. Fowle, M.A. [Ready. 
 
 " Mr. Fowle's is indeiHl an admirable epitome not only of the present state 
 of our poor laws, but also of the earliest institutions wliich they have superseded. 
 . . . His work is a remarkably concise statement on tlie whole question in its 
 bearings on the rights and responsibilities of English ciiiziin^."^AtIienccum. 
 
 "Mr. Fowle's treatise is a valuable little summary. ... It is worthy of 
 a wide circulation." — Academy. 
 
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 8. THE STATE IN ITS RELATION TO TRADE. Sir T. H. 
 
 Fahrer, Bart. [Ready. 
 
 " The subject is one on which Sir T. H. FaiTcr, from liis official position, 
 speaks with a fulness of knowledge such as few possess, and this knowledge he 
 lias the faculty of conveying to others in a vigorous and attractive way." — 
 The EcoTiomist. 
 
 9. THE STATE IN RELATION TO LABOUR. W. Stanley 
 
 Jevons, LL.D., M.A., F.R.S. {Ready. 
 
 " This little book is full of useful information, well and thoughtfully 
 digested. The facts are conveniently grouped, either to illustrate 2:)rinciplos 
 which the author desires to inculcate, or in accordance with the particular 
 branch of law to which they relate." — Law Times. 
 
 10. THE LAND LAWS. F. Pollock, late Fellow of Trinity 
 
 College, Cambridge. Professor of Jurisprudence in the University 
 of Oxford. [Ready. 
 
 "The book as a whole can be spoken of with the heartiest praise. For its 
 patient collection and clear statement of facts on a great and confused subject 
 .... the excellence of the book as a survey of its subject can hardly be 
 too well spoken of." — Saturday Review. 
 
 11. THE STATE AND THE CHURCH. Hon. Arthur Elliot, 
 
 M.P. [Ready. 
 
 "This is an excellent work— judicious, candid, and impartial." — Nwth 
 British Daily Mail. 
 
 12. FOREIGN RELATIONS. Spencer Walpole, Author of 
 
 "The History of England from 1815." [Ready. 
 
 "A work which every student of public affiiirs should almost know by 
 heart." — Glasgow News. 
 
 13. (1) INDIA. J. S. Cotton, late Fellow of Queen's College, 
 
 Oxford. [Ready. 
 
 (2) COLONIES AND DEPENDENCIES. E. J. Payne, 
 
 Fellow of University College, Oxford. [Ready. 
 
 " One of tlie most interesting of this valuable series." — The Statist. 
 
 14. THE PENAL CODE. Sir Edmund Du Cane, K.C.B. [Ready. 
 
 15. THE NATIONAL DEFENCES. Lieutenant-Colonel 
 
 Maueice, R.A. [In preparation. 
 
 MACMILLAN & CO., LONDON.
 
 Now Publishing in Crown 8vo., Price 2s. 6d. each. 
 
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 Edited by JOHN MORLEY. 
 
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 UNIVERSITY OF CALIFORNIA LIBRARY 
 
 Los Angeles 
 
 This book is DUE on the last date stamped below. 
 
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