“The condition of this effective force was that, while it was being used in furtherance of political action, it should be kept quite clear and independent of political parties. The divergence came with the advent of the Gladstonians to office. The Liberal Government began a policy of coercion in Ireland. Combination was to be put down by the very same mechanism which had been invented to repress labour combinations—by the law of conspiracy. The very ruling of Baron Bramwell as to the Tailors’ strike was employed to concoct a law to convict Mr. Parnell and his coadjutors. As a result law was laid down by the Irish judges as to political combinations, which is binding in England, and has still to be resisted or abolished. The Positivists endeavoured to the utmost of their ability to rouse the working classes to a sense of the danger of these proceedings, and to offer an uncompromising resistance to the suspension of the Habeas Corpus Act. The Parliamentary Committee would have none of it. They no doubt believed that the interests of their clients would be best served by a narrower policy, by seeking the help and favour of the eminent statesmen in office. Instead of a compact, powerful force, holding the balance between the parties and the key of the situation, dictating its terms, they preferred to be the tag end of a party. In the end they did not get much, but the Congress was successfully captured and muzzled by the Gladstonian Government.”
[516]Report of Trades Union Congress, Dublin, 1880, p. 15.
[517]The working of the Trade Union Act of 1871 revealed some technical defects in the law, which were remedied by an amending Act in 1876 (39 and 40 Vic. c. 22). Rules for the execution of the Employers and Workmen Act were framed by the Lord Chancellor in the same year.
[518]This defence of “common employment,” which practically deprived the workman in large undertakings of any remedy in case of accidents arising through negligence in the works, was first recognised in the case of Priestly v. Fowler in 1837 (3 Meeson and Welby). Not until 1868 did the House of Lords, as the final Court of Appeal, extend it to Scotland. The growth of colossal industrial undertakings, in which thousands of workmen were, technically, “in common employment,” made the occasional harshness of the law still more invidious.
[519]Act 43 and 44 Vic. c. 52 (1880).
[520]The annual Parliamentary returns for the next fifteen years showed that between three and four hundred cases came into court every year, the amount of compensation actually awarded reaching between £7000 and £8000. But a large number of cases were compromised, or settled without litigation. Meanwhile the relative number of accidents diminished. Whereas in 1877 one railway employee in 95 was more or less injured, in 1889 the proportion was only one in 195. Whereas between 1873 and 1880 one coal-miner in 446 met his death annually, between 1881 and 1890 the proportion was only one in 519; although there was apparently less improvement, if any, as regards non-fatal accidents in the mine.
[521]By “contracting out” was meant an arrangement between employer and employed by which the latter relinquish the rights conferred upon them by the Act, and often also their rights under the Common Law. The Act was silent on the subject; but the judges decided, to the great surprise and dismay of the Trade Union leaders, that contracting out was permissible (see Griffiths v. Earl of Dudley, 9, Queen’s Bench Division, 35). The usual form of “contracting out” was the establishment of a workman’s insurance fund to which the workmen were compelled to subscribe, and to which the employer also contributed. Among the coal-miners, those of Lancashire, Somerset, and some collieries in Wales generally contracted out. The employees of the London and North-Western, and London and Brighton Railway Companies also contracted out. In one or two large undertakings in other industries a similar course was followed. But in the vast majority of cases employers did not resort to this expedient. Particulars are given in the Report and Evidence of the Select Committee on Employers’ Liability, 1866; the publications of the Royal Commission on Labour, 1891-94; and Miners’ Thrift and Employers’ Liability, by G. L. Campbell (Wigan, 1891); and our Industrial Democracy.
In 1893-94 a further amending Bill passed the House of Commons which swept away the doctrine of common employment, and placed the workman with regard to compensation on the same footing as any other person. A clause making void any agreement by which the workman forewent his right of action, or “contracted out,” was rejected by the House of Lords, and the Bill was thereupon abandoned. The question was settled in 1896 by the passage, under the Unionist Government, of the Workmen’s Compensation Act, giving compensation in all cases, irrespective of the employers’ default.
[522]The legal advisers of the Junta realised that the triumph of 1875, though it resulted in a distinct strengthening of the Trade Union position, was mainly a moral victory. Though Trade Unions were made legal, the law of conspiracy was only partially reformed, whilst that relating to political combinations, unlawful assemblies, sedition, etc., remained, as it still remains, untouched. Expert lawyers knew in how many ways prejudiced tribunals might at any time make the law oppressive. The legal friends of Trade Unionism desired, therefore, to utilise the period of political quiet in simplifying the criminal law, and in removing as much of the obsolete matter as was possible. And though State Trials recommenced in Ireland in 1881, and criminal prosecutions of Trade Unionists continued in England down to 1891, the interval had been well spent in clearing away some of the grosser evils.
[523]In the proposed reform of the Jury laws, for instance, the Parliamentary Committee for several years did not venture to ask explicitly for that payment of jurymen which alone would enable working men to serve, and contented themselves with suggesting a lowering of the qualification for juryman. In 1876, indeed, John Burnett, then a prominent member of the Committee, strongly opposed the Payment of Jurymen on the ground that it might create a class of professional jurors (Trades Union Congress Report, 1876, p. 14).