There is a clear distinction—at any rate, as regards England—between the various statutes which forbade combination prior to the end of the eighteenth century, and the general Combination Acts of 1799-1800. In the numerous earlier Acts recited and repealed in 1824 the prohibition of combination was in all cases incidental to the regulation of the industry. It was assumed to be the business of Parliament and the law courts to regulate the conditions of labour; and combinations could, no more than individuals, be permitted to interfere in disputes for which a legal remedy was provided. The object primarily aimed at by the statutes was not the prohibition of combinations, but the fixing of wages, the prevention of embezzlement or damage, the enforcement of the contract of service or the proper arrangements for apprenticeship. And although combinations to interfere with these statutory aims were obviously illegal, and were usually expressly prohibited, it was an incidental result that combinations formed to promote the objects of the legislation, however objectionable they might be to employers, were apparently not regarded as unlawful. [111]
Thus one of the earliest types of combination among journeymen—the society to enforce the law—seems always to have been tacitly accepted as permissible. Although it is probable that such associations came technically within the definitions of combination and conspiracy, whether under the common law or the early statutes, we know of no case in which they were indicted as illegal. We have already described, for instance, how, in 1726, the woollen weavers of Wiltshire and Somersetshire openly combined to present a petition to the King in Council against their masters, the broad clothiers. The Privy Council, far from deeming the action of the weavers illegal, considered and dealt with their complaint. And when the employers persisted in disobeying the law, we have seen how, in 1756, the Fraternity of Woollen Clothweavers petitioned the House of Commons to make more effectual the power of the justices to fix wages, and obtained a new Act of Parliament in accordance with their desires. The almost perpetual combinations of the framework knitters between 1710 and 1800 were never made the subject of legal proceedings. The combinations of the London silkweavers obtained a virtual sanction by the Spitalfields Acts, under which the delegates of the workmen’s organisations regularly appeared before the justices, who fixed and revised the piecework prices. Even in 1808, after the stringency of the law against combinations had been greatly increased, the Glasgow and Lancashire cotton-weavers were permitted openly to combine for the purpose of seeking a legal fixing of wages, with the results already described. Nor was it only the combination to obtain a legally fixed rate of wages that was left unmolested by the law. Combinations to put in force the sections of the Statute of Apprentices (5 Eliz. c. 4), or other prohibitions of the employment of “illegal workmen,” occurred at intervals down to 1813. In 1749 a club of journeymen painters of the City of London proceeded against a master painter for employing a non-freeman; and the proceedings led, in 1750, to a conference of thirty journeymen and thirty masters with the City Corporation, at which the regulations were altered.[112] No one seems to have questioned the legality of the 1811-13 outburst of combinations to prosecute masters who had not served an apprenticeship, or who were employing unapprenticed workmen. One reason, doubtless, for the immunity of combinations to enforce the law was that they included employers and sympathisers of all ranks. For instance, the combinations in 1811-13 to enforce the apprenticeship laws comprised both masters and journeymen, who were equally aggrieved by the competition of the new capitalist and his “hirelings.”[113] The Yorkshire Clothiers’ Community, or “Brief Institution,” to which reference has already been made, included, in some of its ramifications, the “domestic” master manufacturers, who fought side by side with the journeymen against the new factory system.
On the other hand, combinations of journeymen to regulate for themselves their wages and conditions of employment stood, from the first, on a different footing. The common law doctrine of the illegality of proceedings “in restraint of trade,” as subsequently interpreted by the judges, of itself made illegal all combinations whatsoever of journeymen to regulate the conditions of their work. Moreover, with the regulation by law of wages and the conditions of employment, any combination to resist the order of the justices on these matters was obviously of the nature of rebellion, and was, in fact, put down like any individual disobedience of the law. Nor was express statute law against combinations wanting. The statute of 1305, entitled, “Who be Conspirators and who be Champertors” (33 Edw. I. st. 2), was in 1818 held to apply to a combination to raise wages among cotton-spinners, whose leaders were sentenced to two years’ imprisonment under this Act. The “Bill of Conspiracies of Victuallers and Craftsmen” of 1549 (2 and 3 Edw. VI. c. 15), though aimed primarily at combinations to keep up the prices charged to consumers, clearly includes within its prohibitions any combinations of journeymen craftsmen to keep up wages or reduce hours.
It is some proof of the novelty of the workmen’s combinations in the early part of the eighteenth century, that neither the employers nor the authorities thought at first of resorting to the very sufficient powers of the existing law against them. When, in 1720, the master tailors of London found themselves confronted with an organised body of journeymen claiming to make a collective bargain, seriously “in restraint of trade,” they turned, not to the law courts, but to Parliament for protection, and obtained, as we have seen, the Act “for regulating the Journeymen Tailors within the bills of mortality” (7 Geo. I. st. 1, c. 13, amended by 8 Geo. III. c. 17).[114] Similarly, when the clothiers of the West of England began between 1717 and 1725 to be inconvenienced by the “riotous and tumultuous clubs and societies” of woolcombers and weavers, who made bye-laws and maintained a Standard Rate,[115] they did not put in force the existing law, but successfully petitioned Parliament for the Act “to prevent unlawful combinations of workmen employed in the Woollen Manufactures” (12 Geo. I. c. 34). Indeed, prior to the general Acts of 1799 and 1800 against all combinations of journeymen, Parliament was, from the beginning of the eighteenth century, perpetually enacting statutes forbidding combinations in particular trades.[116]
In the English statutes this prohibition of combination was, as we have seen, only a secondary feature, incidental to the main purpose of the law. The case is different with regard to the early Irish Acts, the terms of which point to a much sharper cleavage between masters and men, due, perhaps, to difference of religion and race. The very first statute against combinations which was passed by the Irish Parliament, the Act of 1729 (3 Geo. II. c. 14), contained no provisions protecting the wage-earner, and prohibited combinations in all trades whatsoever. The Act of 1743 (17 Geo. II. c. 8), called forth by the failure of the previous prohibition, equally confined itself to drastic penal measures, including the punishment of the keepers of the public-houses which were used for meetings. But in later years the English practice seems to have been followed; for the laws of 1758 (31 Geo. II. c. 17), 1763 (3 Geo. III. 34, sec. 23), 1771 (11 and 12 Geo. III. c. 18, sec. 40, and c. 33), and 1779 (19 and 20 Geo. III. c. 19, c. 24, and c. 36) provide for the fixing of wages, and contain other regulations of industry, amongst which the prohibition of combinations comes as a matter of course.
By the end of the century, at any rate, the common law, both in England and in Ireland, had been brought to the aid of the special statutes, and the judges were ruling that any conspiracy to do an act which they considered unlawful in a combination, even if not criminal in an individual, was against the common law. Soon the legislature followed suit. In 1799 the Act 39 Geo. III. c. 81 expressly penalised all combinations whatsoever.
The grounds for this drastic measure appear to have been found in the marked increase of Trade Unionism among workers of various kinds. The operatives’ combinations were regarded as being in the nature of mutiny against their employers and masters; destructive of the “discipline” necessary to the expansion of trade; and interfering with the right of the employer to “do what he liked with his own.” The immediate occasion was a petition from London engineering employers, complaining of an alarming strike of the millwrights. This led to a Bill suppressing combination in the engineering trade, which was passed by the House of Commons, in spite of the protests of Sir Francis Burdett and Benjamin Hobhouse. The measure was, however, dropped in the House of Lords in favour of a more comprehensive Bill, applicable to all trades, which Whitbread had suggested. This was introduced on June 17, 1799, by William Pitt himself, then Chancellor of the Exchequer, who referred to the alarming growth of combination, not merely in the Metropolis but also in the north of England. Subsequent stages of the Bill were moved by George Rose, another member of the Administration; and the measure was hurried through all its stages in both Houses with great rapidity, receiving the Royal Assent only twenty-four days after its introduction into the House of Commons. There was therefore little opportunity for any effective demonstration against its provisions, but the Journeymen Calico-printers’ Society of London petitioned against the measure, and instructed counsel to put forward their objections. They represented that, although the Bill professed merely “to prevent unlawful combinations,” it created “new crimes of so indefinite a nature that no one journeyman or workman will be safe in holding any conversation with another on the subject of his trade or employment.” Only a few other petitions were presented, and, though Benjamin Hobhouse opposed it in the Commons and Lord Holland in the Lords, the Bill passed unaltered into law. [117]
But the struggle was not yet over. The employers were not satisfied with the 1799 Act; and The Times announced in January 1800 that “one of the first Acts of the Imperial Parliament [of the United Kingdom] will be for the prevention of conspiracies among journeymen tradesmen to raise their wages. All benefit clubs and societies are to be immediately suppressed.”[118] On the other hand, the trade clubs in all parts of the country poured in petitions of protest; and the Whig and Tory members for Liverpool, General Tarleton and Colonel Gascoyne, among whose constituents were the strongly combined shipwrights, who were freemen and Parliamentary electors, united to bring in an amending Bill. This was supported in a series of brilliant speeches by Sheridan, whose attempts to reduce to a minimum the mischief of the 1799 Act were strenuously resisted by Pitt and the Law Officers of the Crown. The petitions were considered by a Committee, which recommended certain amendments. Two justices were substituted for one as the tribunal; no justice engaged in the same trade as the defendant could act; the qualifying words “wilfully and maliciously” were introduced in the description of the offences. A clause protecting trade friendly societies was proposed but eventually rejected. A particularly odious feature of the 1799 Act, under which defendants were required to give evidence against themselves under severe penalties for refusal, was left unaltered. A series of interesting clauses providing for the reference of wage disputes to arbitration—copied from the contemporary Act relating to the cotton trade[119]—aroused great opposition, as tending “to fix wages” and as involving the recognition of the Trade Union representative, but they were finally adopted; without, so far as we are aware, ever being put in force. [120]
The general Combination Act of 1800 was not merely the codification of existing laws, or their extension from particular trades to the whole field of industry. It represented a new and momentous departure. Hitherto the central or local authority had acted as a court of appeal on all questions affecting the work and wages of the citizen. If the master and journeyman failed to agree as to what constituted a fair day’s wage for a fair day’s work, the higgling of the market was peremptorily superseded by the authoritative determination, presumably on grounds of social expediency, of the standard of remuneration. Probably the actual fixing of wages by justices of the peace fell very rapidly into disuse as regards the majority of industries, although formal orders are found in the minutes of Quarter Sessions during the first quarter of the nineteenth century, and deep traces of the practice long survived in the customary rates of hiring. Towards the end of the eighteenth century, at any rate, free bargaining between the capitalist and his workmen became practically the sole method of fixing wages. Then it was that the gross injustice of prohibiting combinations of journeymen became apparent. “A single master,” said Lord Jeffrey, “was at liberty at any time to turn off the whole of his workmen at once—100 or 1000 in number—if they would not accept of the wages he chose to offer. But it was made an offence for the whole of the workmen to leave that master at once if he refused to give the wages they chose to require.”[121] What was even more oppressive in practice was the employers’ use of the threat of prosecution to prevent even the beginnings of resistance among the workmen to any reduction of wages or worsening of conditions.
It is true that the law forbade combinations of employers as well as combinations of journeymen. Even if it had been impartially carried out, there would still have remained the inequality due to the fact that, in the new system of industry, a single employer was himself equivalent to a very numerous combination. But the hand of justice was not impartial. The “tacit, but constant” combination of employers to depress wages, to which Adam Smith refers, could not be reached by the law. Nor was there any disposition on the part of the magistrates or the judges to find the masters guilty, even in cases of flagrant or avowed combination. No one prosecuted the master cutlers who, in 1814, openly formed the Sheffield Mercantile and Manufacturing Union, having for its main rule that no merchant or manufacturer should pay higher prices for any article of Sheffield make than were current in the preceding year, with a penalty of £100 for each contravention of this illegal agreement.[122] During the whole epoch of repression, whilst thousands of journeymen suffered for the crime of combination, there is no case on record in which an employer was punished for the same offence.