LABOUR LEGISLATION. Regulation of labour,[1] in some form or another, whether by custom, royal authority, ecclesiastical rules or by formal legislation in the interests of a community, is no doubt as old as the most ancient forms of civilization. And older than all civilization is the necessity for the greater part of mankind to labour for maintenance, whether freely or in bonds, whether for themselves and their families or for the requirements or superfluities of others. Even while it is clear, however, that manual labour, or the application of the bodily forces—with or without mechanical aid—to personal maintenance and the production of goods, remains the common lot of the majority of citizens of the most developed modern communities, still there is much risk of confusion if modern technical terms such as “labour,” “employer,” “labour legislation” are freely applied to conditions in bygone civilizations with wholly different industrial organization and social relationships. In recent times in England there has been a notable disappearance from current use of correlative terms implying a social relationship which is greatly changed, for example, in the rapid passage from the Master and Servant Act 1867 to the Employer and Workman Act 1875. In the 18th century the term “manufacturer” passed from its application to a working craftsman to its modern connotation of at least some command of capital, the employer being no longer a small working master. An even more significant later change is seen in the steady development of a labour legislation, which arose in a clamant social need for the care of specially helpless “protected” persons in factories and mines, into a wider legislation for the promotion of general industrial health, safety and freedom for the worker from fraud in making or carrying out wage contracts.
If, then, we can discern these signs of important changes within so short a period, great caution is needed in rapidly reviewing long periods of time prior to that industrial revolution which is traced mainly to the application of mechanical power to machinery in aid of manual labour, practically begun and completed within the second half of the 18th century. “In 1740 save for the fly-shuttle the loom was as it had been since weaving had begun ... and the law of the land was” (under the Act of Apprentices of 1503) “that wages in each district should be assessed by Justices of the Peace.”[2] Turning back to still earlier times, legislation—whatever its source or authority—must clearly be devoted to aims very different from modern aims in regulating labour, when it arose before the labourer, as a man dependent on an “employer” for the means of doing work, had appeared, and when migratory labour was almost unknown through the serfdom of part of the population and the special status secured in towns to the artisan.
In the great civilizations of antiquity there were great aggregations of labour which was not solely, though frequently it was predominantly, slave labour; and some of the features of manufacture and mining on a great scale arose, producing the same sort of evils and industrial maladies known and regulated in our own times. Some of the maladies were described by Pliny and classed as “diseases of slaves.” And he gave descriptions of processes, for example in the metal trades, as belonging entirely to his own day, which modern archaeological discoveries trace back through the earliest known Aryan civilizations to a prehistoric origin in the East, and which have never died out in western Europe, but can be traced in a concentrated manufacture with almost unchanged methods, now in France, now in Germany, now in England.
Little would be gained in such a sketch as this by an endeavour to piece together the scattered and scanty materials for a comparative history of the varying conditions and methods of labour regulation over so enormous a range. While our knowledge continually increases of the remains of ancient craft, skill and massed labour, much has yet to be discovered that may throw light on methods of organization of the labourers. While much, and in some civilizations most, of the labour was compulsory or forced, it is clear that too much has been sometimes assumed, and it is by no means certain that even the pyramids of Egypt, much less the beautiful earliest Egyptian products in metal work, weaving and other skilled craft work, were typical products of slave labour. Even in Rome it was only at times that the proportion of slaves valued as property was greater than that of hired workers, or, apart from capture in war or self-surrender in discharge of a debt, that purchase of slaves by the trader, manufacturer or agriculturist was generally considered the cheapest means of securing labour. As in early England the various stages of village industrial life, medieval town manufacture, and organization in craft gilds, and the beginnings of the mercantile system, were parallel with a greater or less prevalence of serfdom and even with the presence in part of slavery, so in other ages and civilizations the various methods of organization of labour are found to some extent together. The Germans in their primitive settlements were accustomed to the notion of slavery, and in the decline of the Roman Empire Roman captives from among the most useful craftsmen were carried away by their northern conquerors.
The history and present details of the labour laws of various countries are dealt with below in successive sections: (1) history of legislation in the United Kingdom; (2) the results as shown by the law in force in 1909, with the corresponding facts for (3) Continental Europe and (4) the United States. Under other headings ([Trade-Unions], [Strikes and Lock-Outs], [Arbitration and Conciliation], &c., &c.) are many details on cognate subjects.
I. History in the United Kingdom
1. Until the Close of the 15th Century.—Of the main conditions of industrial labour in early Anglo-Saxon England details are scanty. Monastic industrial communities were added in Christian times to village industrial communities. While generally husbandry was the first object of toil, and developed under elaborate regulation in the manorial system, still a considerable variety of industries grew up, the aim being expressly to make each social group self-sufficing, and to protect and regulate village artisans in the interest of village resources. This protective system, resting on a communal or co-operative view of labour and social life, has been compared as analogous to the much later and wider system under which the main purpose was to keep England as a whole self-sufficing.[3] It has also been shown how greatly a fresh spirit of enterprise in industry and trade was stimulated first by the Danish and next by the Norman invasion; the former brought in a vigour shown in growth of villages, increase in number of freemen, and formation of trading towns; the latter especially opened up new communications with the most civilized continental people, and was followed by a considerable immigration of artisans, particularly of Flemings. In Saxon England slavery in the strictest sense existed, as is shown in the earliest English laws, but it seems that the true slave class as distinct from the serf class was comparatively small, and it may well be that the labour of an ordinary serf was not practically more severe, and the remuneration in maintenance and kind not much less than that of agricultural labourers in recent times. In spite of the steady protest of the Church, slavery (as the exception, not the general rule) did not die out for many centuries, and was apt to be revived as a punishment for criminals, e.g. in the fierce provisions of the statute of Edward VI. against beggars, not repealed until 1597. At no time, however, was it general, and as the larger village and city populations grew the ratio of serfs and slaves to the freemen in the whole population rapidly diminished, for the city populations “had not the habit and use of slavery,” and while serfs might sometimes find a refuge in the cities from exceptionally severe taskmasters, “there is no doubt that freemen gradually united with them under the lord’s protection, that strangers engaged in trade sojourned among them, and that a race of artisans gradually grew up in which original class feelings were greatly modified.” From these conditions grew two parallel tendencies in regulation of labour. On the one hand there was, under royal charters, the burgh or municipal organization and control of artisan and craft labour, passing later into the more specialized organization in craft gilds; on the other hand, there was a necessity, sometimes acute, to prevent undue diminution in the numbers available for husbandry or agricultural labour. To the latter cause must be traced a provision appearing in a succession of statutes (see especially an act of Richard II., 1388), that a child under twelve years once employed in agriculture might never be transferred to apprenticeship in a craft. The steady development of England, first as a wool-growing, later as a cloth-producing country, would accentuate this difficulty. During the 13th century, side by side with development of trading companies for the export of wool from England, may be noted many agreements on the part of monasteries to sell their wool to Florentines, and during the same century absorption of alien artisans into the municipal system was practically completed. Charters of Henry I. provided for naturalization of these aliens. From the time of Edward I. to Edward III. a gradual transference of burgh customs, so far as recognized for the common good, to statute law was in progress, together with an assertion of the rights of the crown against ecclesiastical orders. “The statutes of Edward I.,” says Dr. Cunningham, “mark the first attempt to deal with Industry and Trade as a public matter which concerns the whole state, not as the particular affair of leading men in each separate locality.” The first direct legislation for labour by statute, however, is not earlier than the twenty-third year of the reign of Edward III., and it arose in an attempt to control the decay and ruin, both in rural and urban districts, which followed the Hundred Years’ War, and the pestilence known as the Black Death. This first “Statute of Labourers” was designed for the benefit of the community, not for the protection of labour or prevention of oppression, and the policy of enforcing customary wages and compelling the able-bodied labourer, whether free or bond, not living in merchandise or exercising any craft, to work for hire at recognized rates of pay, must be reviewed in the circumstances and ideals of the time. Regulation generally in the middle ages aimed at preventing any individual or section of the community from making what was considered an exceptional profit through the necessity of others.[4] The scarcity of labour by the reduction of the population through pestilence was not admitted as a justification for the demands for increased pay, and while the unemployed labourer was liable to be committed to gaol if he refused service at current rates, the lords of the towns or manors who promised or paid more to their servants were liable to be sued treble the sum in question. Similar restrictions were made applicable to artificers and workmen. By another statute, two years later, labourers or artificers who left their work and went into another county were liable to be arrested by the sheriff and brought back. These and similar provisions with similar aims were confirmed by statutes of 1360, 1368 and 1388, but the act of 1360, while prohibiting “all alliances and covins of masons, carpenters, congregations, chapters, ordinances and oaths betwixt them made,” allowed “every lord to bargain or covenant for their works in gross with such labourers and artificers when it pleaseth them, so that they perform such works well and lawfully according to the bargain and covenant with them thereof made.” Powers were given by the acts of 1368 and 1388 to justices to determine matters under these statutes and to fix wages. Records show that workmen of various descriptions were pressed by writs addressed to sheriffs to work for their king at wages regardless of their will as to terms and place of work. These proceedings were founded on notions of royal prerogative, of which impressment of seamen survived as an example to a far later date. By an act of 1388 no servant or labourer, man or woman, however, could depart out of the hundred to serve elsewhere unless bearing a letter patent under the king’s seal stating the cause of going and time of return. Such provisions would appear to have widely failed in their purpose, for an act of 1414 declares that the servants and labourers fled from county to county, and justices were empowered to send writs to the sheriffs for fugitive labourers as for felons, and to examine labourers, servants and their masters, as well as artificers, and to punish them on confession. An act of 1405, while putting a property qualification on apprenticeship and requiring parents under heavy penalties to put their children to such labour as their estates required, made a reservation giving freedom to any person “to send their children to school to learn literature.” Up to the end of the 15th century a monotonous succession of statutes strengthening, modifying, amending the various attempts (since the first Statute of Labourers) to limit free movement of labour, or demands by labourers for increased wages, may be seen in the acts of 1411, 1427, 1444, 1495. It was clearly found extremely difficult, if not impracticable, to carry out the minute control of wages considered desirable, and exceptions in favour of certain occupations were in some of the statutes themselves. In 1512 the penalties for giving wages contrary to law were repealed so far as related to masters, but it also appears that London workmen would not endure the prevalent restrictions as to wages, and that they secured in practice a greater freedom to arrange rates when working within the city. Several of these statutes, and especially one of 1514, fixed the hours of labour when limiting wages. During March to September the limits were 5 A.M. to 7 or 8 P.M., with half an hour off for breakfast and an hour and a half off for mid-day dinner. In winter the outside limits were fixed by the length of daylight.
Throughout the 15th century the rapidly increasing manufacture of cloth was subject to a regulation which aimed at maintaining the standard of production and prevention of bad workmanship, and the noteworthy statute 4 Edward IV. c. 1, while giving power to royal officers to supervise size of cloths, modes of sealing, &c., also repressed payment to workers in “pins, girdles and unprofitable wares,” and ordained payment in true and lawful money. This statute (the first against “Truck”) gives an interesting picture of the way in which clothiers—or, as we should call them, wholesale merchants and manufacturers—delivered wool to spinners, carders, &c., by weight, and paid for the work when brought back finished. It appears that the work was carried on in rural as well as town districts. While this industry was growing and thriving other trades remained backward, and agriculture was in a depressed condition. Craft gilds had primarily the same purpose as the Edwardian statutes, that is, of securing that the public should be well served with good wares, and that the trade and manufacture itself should be on a sound basis as to quality of products and should flourish. Incidentally there was considerable regulation by the gilds of the conditions of labour, but not primarily in the interests of the labourer. Thus night work was prohibited because it tended to secrecy and so to bad execution of work; working on holidays was prohibited to secure fair play between craftsmen and so on. The position of apprentices was made clear through indentures, but the position of journeymen was less certain. Signs are not wanting of a struggle between journeymen and masters, and towards the end of the 15th century masters themselves, in at least the great wool trade, tended to develop from craftsmen into something more like the modern capitalist employer; from an act of 1555 touching weavers it is quite clear that this development had greatly advanced and that cloth-making was carried on largely by employers with large capitals. Before this, however, while a struggle went on between the town authorities and the craft gilds, journeymen began to form companies of their own, and the result of the various conflicts may be seen in an act of Henry VI., providing that in future new ordinances of gilds shall be submitted to justices of the peace—a measure which was strengthened in 1503.
2. From Tudor Days until the Close of the 18th Century.—A detailed history of labour regulation in the 16th century would include some account of the Tudor laws against vagrancy and methods of dealing with the increase of pauperism, attributable, at least in part, to the dissolution of the monasteries under Henry VIII., and to the confiscation of craft gild funds, which proceeded under Somerset and Edward VI. It is sufficient here to point to the general recognition of the public right to compel labourers to work and thus secure control of unemployed as well as employed. The statutes of Henry VIII. and Edward VI. against vagrancy differed rather in degree of severity than in principle from legislation for similar purposes in previous and subsequent reigns. The Statute of Labourers, passed in the fifth year of Elizabeth’s reign (1562), as well as the poor law of the same year, was to a considerable extent both a consolidating and an amending code of law, and was so securely based on public opinion and deeply rooted custom that it was maintained in force for two centuries. It avowedly approves of principles and aims in earlier acts, regulating wages, punishing refusal to work, and preventing free migration of labour. It makes, however, a great advance in its express aim of protecting the poor labourer against insufficient wages, and of devising a machinery, by frequent meeting of justices, which might yield “unto the hired person both in time of scarcity and in time of plenty a convenient proportion of wages.” Minute regulations were made governing the contract between master and servant, and their mutual rights and obligations on parallel lines for (a) artificers, (b) labourers in husbandry. Hiring was to be by the year, and any unemployed person qualified in either calling was bound to accept service on pain of imprisonment, if required, unless possessed of property of a specified amount or engaged in art, science or letters, or being a “gentleman.” Persons leaving a service were bound to obtain a testimonial, and might not be taken into fresh employment without producing such testimonial, or, if in a new district, until after showing it to the authorities of the place. A master might be fined £5, and a labourer imprisoned, and if contumacious, whipped, for breach of this rule. The carefully devised scheme for technical training of apprentices embodied to a considerable extent the methods and experiences of the craft gilds. Hours of labour were as follows: “All artificers and labourers being hired for wages by the day or week shall, betwixt the midst of the months of March and September, be and continue at their work at or before 5 o’clock in the morning and continue at work and not depart until betwixt 7 and 8 o’clock at night, except it be in the time of breakfast, dinner or drinking, the which time at the most shall not exceed two hours and a half in a day, that is to say, at every drinking half an hour, for his dinner one hour and for his sleep when he is allowed to sleep, the which is from the midst of May to the midst of August, half an hour; and all the said artificers and labourers betwixt the midst of September and the midst of March shall be and continue at their work from the spring of the day in the morning until the night of the same day, except it be in time afore appointed for breakfast and dinner, upon pain to lose and forfeit one penny for every hour’s absence, to be deducted and defaulked out of his wages that shall so offend.” Although the standpoint of the Factory Act and Truck Act in force at the beginning of the 20th century as regards hours of labour or regulation of fines deducted from wages is completely reversed, yet the difference is not great between the average length of hours of labour permissible under the present law for women and those hours imposed upon the adult labourer in Elizabeth’s statute. Apart from the standpoint of compulsory imposition of fines, one advantage in the definiteness of amount deductable from wages would appear to lie on the side of the earlier statute.
Three points remain to be touched on in connexion with the Elizabethan poor law. In addition to (a) consolidation of measures for setting vagrants to work, we find the first compulsory contributions from the well-to-do towards poor relief there provided for, (b) at least a theoretical recognition of a right as well as an obligation on the part of the labourer to be hired, (c) careful provision for the apprenticing of destitute children and orphans to a trade.