The State In Relation To Labour

Front matter

^tate m delation to

THE ENGLISH CITIZEN : HIS RIGHTS AND RESPONSIBILITIES.

THE STATE

Chapter II. Direct Interference Of The State With Industry 33

CHAPTEB III.

THE FACTORY ACTS AND SIMILAR LEGISLATION

DIRECTLY AFFECTING LABOURERS . . 52

CHAPTER IY.

INDIRECT INTERFERENCE WITH INDUSTRY TRADES

UNION LEGISLATION . . . ,88

CHAPTER Y.

THE LAW OF INDUSTRIAL CONSPIRACY . . 128

CHAPTER YL CO-OPERATION AND INDUSTRIAL PARTNERSHIP . 139

CHAPTER YII.

ARBITRATION AND CONCILIATION . . .148

CHAPTER VIII.

CONCLUDING REMARKS . . . .164

THE STATE IN KELATION TO LABOUR.

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 authoiity should interfere, in order to ensure 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 approaching it. Here & 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 B

2 THE STATE IN RELATION TO LABOUK [CHAP.

individual workman is bound to take care of himself, and to be especially wary 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 m 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 will 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 the 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 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 wood 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 unaccountable 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 lemonstrated against the dangerous unfenced condition of a fly-wheel, 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 which did not seem to have previously occurred to his mind.

It is obvious, then, that somebody ought to suggest idteas of the sort to the erectors of dangerous machine traps. But there is still a wide choice 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 expected 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 effective. The law may command that dangerous machinery shall be fenced, and the executive government may appoint inspectors to go round and prosecute such owners as disobey the law.

The Principle of Liberty. Of course the case treated above is but a simple example of the questions which arise in every matter relating to the health, safety, convenience, or general welfare of the workman. If an employer 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 contract 1 * Has the community nothing to say to the matter 'Z 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 may depend no doubt 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 hmb which very little pressure from the Legislature would avert with benefit to all parties. The difficult 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 Englishmen, 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 development 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 KELATIOET TO LABOUK. [CHAP

results, the first step must be to rid our minds of the idea that there are any such things in social matters as abstract rights, absolute principles, indefeasible laws, inalterable 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 with 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 prevailing 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 refuses to pay church-rates or Easter offerings ; a clergyman declines to recognise the authority of a temporal court; an anti-vaccinationist prefers fine and imprisonment 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 but not quite without limits. Hence he enjoys the privilege, in England at least, of endeavouring to persuade other people that the law is mistaken. If he succeeds, it is well ; if not, he must practically conform.

But the law in itself has nothing to do with conscience, nor religion, nor even with moral right and wrong, as estimated 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 & fortwn 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 settlement of wages 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 employed. 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 of making barter contracts with their workmen. But what becomes of that celebrated entity, "the liberty of the subject "2

It may be imagined, again, that a person has an absolute 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 countries, and in theory yet is in England ; statute labour was required 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 misconceived than the relation which exists between economics and legislation. It is generally supposed that the economist is a presumptuous theorist, who is continually laying down hard-and-fast rules for the conduct of other people.

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 starvation ; 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, however, they arise from the misinterpretation 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 consequences of the most varied character. As, then, in philosophy the first step is to begin by doubting everything, so in social philosophy, 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 steamengine, 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 which, by giving us comprehension 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 complications, and break up into all kinds of exceptions and apparent anomalies.

10 THE STATE IF RELATION TO LABOUR [CHAP

Abstractions and Realities. la 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 speaking, there is a large balance of probability of good in favour of the law. Eut 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 ceitainty. 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 prevent this injury. To preserve an appearance of consistency 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 child whenever he feels inclined ; as the lawyers say, the chastisement must be reasonable; which, being interpreted, means i ] PRINCIPLES OF INDUSTRIAL LEGISLATION.

that the parent must never chastise his child but in 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 was 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 presumption of good was altogether rebutted by the certainty 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.

Gromds and Limits of Legislation. It may be fearlessly 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 Bellers, or Babeuf, or Robert Owen could be resisted, if only their advocates could 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 way of

12 THE STATE IN DELATION TO LABOUR [CHAP.

the greatest happiness. Solus populi, supremo, lex. But it ought to be evident that before we venture upon a great leap in the dark, we 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 happiness \ 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 the 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 interference 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 nxen 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 primdfaae 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, will 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 acknowledge the existence in social affairs of any indefeasible right or absolute principle, none would seem more sacred than the principle of freedom the right of the individual to pursue his own course towards his own ideal end. In favour of such a view, it may be said, in the first place, that happiness mainly consists in unimpeded and successful energising. Every needless check or limitation of action amounts to so much destruction of pleasurable energy, 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 constantly corning into conflict with them. The freedom of

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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 limit 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 dimmish 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 innumerable municipal, railroad, sanitary, and other bye-laws, is after all an infinitely freer as well as nobler creature

L] PEIKCIPLES OF INDUSTRIAL LEGISLATION. 15

than the savage who is always under the despotism of physical 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 we can have the constant multiplication of institutions and instruments of civilisation which evolution is producing, without a growing complication 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 doctrines should yet be appreciated, even by their originators. It is easy to perceive that in many a primitive community little legislative interference is needed, because 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 different 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 woik, 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 experience, 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 individual action.

The Metaphysical Incubus. 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 which 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 philosophers, 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 ho 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 off the incubus of metaphysical ideas and expressions. We must resolve all these supposed principles and rights into the facts and probabilities which they are found to involve when we inquire into their real meaning. The right of ij PRINCIPLES OF INDUSTRIAL LEGISLATION. 17

a man to dispose freely of his labour means the recognition by 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 considerations. All depend ultimately upon the salus popiih, which is the only lex suprewia.

The question may well arise, indeed, whether, according 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 should 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 discretionary power to the Secretary of State, so that he can deal with each individual case according to its merits Under the Factory and Workshop Act of 1878, extensive 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.M. and 9 P.M. in certain cases, c

It will be easily seen, however, that legislation becomes 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 considerable 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