An Introduction to the Industrial and Social History of England

by Edward Potts Cheyney

Since 1878 there have been a number of extensions of the principle of factory legislation, the most important of which are the following. In 1891 and 1895, amending acts were passed bringing laundries and docks within the provisions of the law, making further rules against overcrowding and other unsanitary conditions, increasing the age of prohibited labor to eleven years, and making a beginning of the regulation of "outworkers" or those engaged by "sweaters." "Sweating" is manufacturing carried on by contractors or subcontractors on a small scale, who usually have the work done in their own homes or in single hired rooms by members of their families, or by poorly paid employees who by one chance or another are not in a free and independent relation to them. Many abuses exist in these "sweatshops." The law so far is scarcely more than tentative, but in these successive acts provisions have been made by which all manufacturers or contractors must keep lists of outworkers engaged by them, and submit these to the factory inspectors for supervision.

In 1892 a "Shop-hours Act" was passed prohibiting the employment of any person under eighteen years of age more than seventy-four hours in any week in any retail or wholesale store, shop, eating-house, market, warehouse, or other similar establishment; and in 1893 the "Railway Regulation Act" gave power to the Board of Trade to require railway companies to provide reasonable and satisfactory schedules of hours for all their employees. In 1894 a bill for a compulsory eight-hour day for miners was introduced, but was withdrawn before being submitted to a vote. In 1899 a bill was passed requiring the provision of a sufficient number of seats for all female assistants in retail stores. In 1900 a government bill was presented to Parliament carrying legislation somewhat farther on the lines of the acts of 1891 and 1893, but it did not reach its later stages before the adjournment.

71. Employers' Liability Acts.—Closely allied to the problems involved in the factory laws is the question of the liability of employers to make compensation for personal injuries suffered by workmen in their service. With the increasing use of machinery and of steam power for manufacturing and transportation, and in the general absence of precaution, accidents to workmen became much more numerous. Statistics do not exist for earlier periods, but in 1899 serious or petty accidents to the number of 70,760 were reported from such establishments. By Common Law, in the case of negligence on the part of the proprietor or servant of an establishment, damages for accident could be sued for and obtained by a workman, not guilty of contributory negligence, as by any other person, except in one case. If the accident was the result of the negligence of a fellow-employee, no compensation for injuries would be allowed by the courts; the theory being that in the implied contract between employer and employee, the latter agreed to accept the risks of the business, at least so far as these arose from the carelessness of his fellow-employees.

In the large establishments of modern times, however, vast numbers of men were fellow-employees in the eyes of the law, and the doctrine of "common employment," as it was called, prevented the recovery of damages in so many cases as to attract widespread attention. From 1865 forward this provision of the law was frequently complained of by leaders of the workingmen and others, and as constantly upheld by the courts.

In 1876 a committee of the House of Commons on the relations of master and servant took evidence on this matter and recommended in its report that the common law be amended in this respect. Accordingly in 1880 an Employers' Liability Act was passed which abolished the doctrine of "common employment" as to much of its application, and made it possible for the employee to obtain compensation for accidental injury in the great majority of cases.

In 1893 a bill was introduced in Parliament by the ministry of the time to abolish all deductions from the responsibility of employers, except that of contributory negligence on the part of workmen, but it was not passed. In 1897, however, the "Workmen's Compensation Act" was passed, changing the basis of the law entirely. By this Act it was provided that in case of accident to a workman causing death or incapacitating him for a period of more than two weeks, compensation in proportion to the wages he formerly earned should be paid by the employer as a matter of course, unless "serious and wilful misconduct" on the part of the workman could be shown to have existed. The liability of employers becomes, therefore, a matter of insurance of workmen against accidents arising out of their employment, imposed by the law upon employers. It is no longer damages for negligence, but a form of compulsory insurance. In other words, since 1897 a legal, if only an implied part of the contract between employer and employee in all forms of modern industry in which accidents are likely to occur is that the employer insures the employee against the dangers of his work.

72. Preservation of Remaining Open Lands.—Turning from the field of manufacturing labor to that of agriculture and landholding it will be found that there has been some legislation for the protection of the agricultural laborer analogous to the factory laws. The Royal Commission of 1840-1844 on trades then unprotected by law included a report on the condition of rural child labor, but no law followed until 1873, when the "Agricultural Children's Act" was passed, but proved to be ineffective. The evils of "agricultural gangs," which were bodies of poor laborers, mostly children, engaged by a contractor and taken from place to place to be hired out to farmers, were reported on by a commission in 1862, and partly overcome by the "Agricultural Gangs Act" of 1867. There is, however, but little systematic government oversight of the farm-laboring class.

Government regulation in the field of landholding has taken a somewhat different form. The movement of enclosing which had been in progress from the middle of the eighteenth century was brought to an end, and a reversal of tendency took place, by which the use and occupation of the land was more controlled by the government in the interest of the masses of the rural population. By the middle of the century the process of enclosing was practically complete. There had been some 3954 private enclosure acts passed, and under their provisions or those of the Enclosure Commissioners more than seven million acres had been changed from mediæval to modern condition. But now a reaction set in. Along with the open field farming lands it was perceived that open commons, village greens, gentlemen's parks, and the old national forest lands were being enclosed, and frequently for building or railroad, not for agricultural uses, to the serious detriment of the health and of the enjoyment of the people, and to the destruction of the beauty of the country. The dread of interference by the government with matters that might be left to private settlement was also passing away. In 1865 the House of Commons appointed a commission to investigate the question of open spaces near the city of London, and the next year on their recommendation passed a law by which the Enclosure Commissioners were empowered to make regulations for the use of all commons within fifteen miles of London as public parks, except so far as the legal rights of the lords of the manors in which the commons lay should prevent. A contest had already arisen between many of these lords of manors having the control of open commons, whose interest it was to enclose and sell them, and other persons having vague rights of pasturage and other use of them, whose interest it was to preserve them as open spaces. To aid the latter in their legal resistance to proposed enclosures, the "Commons Preservation Society" was formed in 1865. As a result a number of the contests were decided in the year 1866 in favor of those who opposed enclosures.

The first case to attract attention was that of Wimbledon Common, just west of London. Earl Spencer, the lord of the manor of Wimbledon, had offered to give up his rights on the common to the inhabitants of the vicinity in return for a nominal rent and certain privileges; and had proposed that a third of the common should be sold, and the money obtained for it used to fence, drain, beautify, and keep up the remainder. The neighboring inhabitants, however, preferred the spacious common as it stood, and when a bill to carry out Lord Spencer's proposal had been introduced into Parliament, they contended that they had legal rights on the common which he could not disregard, and that they objected to its enclosure. The parliamentary committee practically decided in their favor, and the proposition was dropped. An important decision in a similar case was made by the courts in 1870. Berkhamstead Common, an open stretch some three miles long and half a mile wide, lying near the town of Berkhamstead, twenty-five miles north of London, had been used for pasturing animals, cutting turf, digging gravel, gathering furze, and as a place of general recreation and enjoyment by the people of the two manors in which it lay, from time immemorial. In 1866 Lord Brownlow, the lord of these two manors, began making enclosures upon it, erecting two iron fences across it so as to enclose 434 acres and to separate the remainder into two entirely distinct parts. The legal advisers of Lord Brownlow declared that the inhabitants had no rights which would prevent him from enclosing parts of the common, although to satisfy them he offered to give to them the entire control over one part of it. The Commons Preservation Society, however, advised the inhabitants differently, and encouraged them to make a legal contest. One of their number, Augustus Smith, a wealthy and obstinate man, a member of Parliament, and a possessor of rights on the common both as a freeholder and a copyholder, was induced to take action in his own name and as a representative of other claimants of common rights. He engaged in London a force of one hundred and twenty laborers, sent them down at night by train, and before morning had broken down Lord Brownlow's two miles of iron fences, on which he had spent some £5000, and piled their sections neatly up on another part of the common. Two lawsuits followed: one by Lord Brownlow against Mr. Smith for trespass, the other a cross suit in the Chancery Court by Mr. Smith to ascertain the commoner's rights, and prevent the enclosure of the common. After a long trial the decision was given in Mr. Smith's favor, and not only was Berkhamstead Common thus preserved as an open space, but a precedent set for the future decision of other similar cases. Within the years between 1866 and 1874 dispute after dispute analogous to this arose, and decision after decision was given declaring the illegality of enclosures by a lord of a manor where there were claims of commoners which they still asserted and valued and which could be used as an obstacle to enclosure. Hampstead Heath, Ashdown Forest, Malvern Hills, Plumstead, Tooting, Wandsworth, Coulston, Dartford, and a great many other commons, village greens, roadside wastes, and other open spaces were saved from enclosure, and some places were partly opened up again, as a result either of lawsuits, of parliamentary action, or of voluntary agreements and purchase.

Perhaps the most conspicuous instance was that of Epping Forest. This common consisted of an open tract about thirteen miles long and one mile wide, containing in 1870 about three thousand acres of open common land. Enclosure was being actively carried on by some nineteen lords of manors, and some three thousand acres had been enclosed by rather high-handed means within the preceding twenty years. Among the various landowners who claimed rights of common upon a part of the Forest was, however, the City of London, and in 1871 this body began suit against the various lords of manors under the claim that it possessed pasture rights, not only in the manor of Ilford, in which its property of two hundred acres was situated, but, since the district was a royal forest, over the whole of it. The City asked that the lords of manors should be prevented from enclosing any more of it, and required to throw open again what they had enclosed during the last twenty years. After a long and expensive legal battle and a concurrent investigation by a committee of Parliament, both extending over three years, a decision was given in favor of the City of London and other commoners, and the lords of manors were forced to give back about three thousand acres. The whole was made permanently into a public park. The old forest rights of the crown proved to be favorable to the commoners, and thus obtained at least one tardy justification to set against their long and dark record in the past.