The distinctive special characteristic of all law and government is force—coercion in some one of its shapes. It is this which draws the line between law and advice, between government and speculative discussion. It is because nations have no common superior that international law commonly so called is not really law at all, but merely a form of morality. It is for a similar reason that questions arising within a nation must, if they involve the question of sovereignty, be settled, not by argument, but by civil war, or by a compromise guaranteed by the fear of civil war. The question, for instance, whether each particular State of the Union was soveriegn, or whether the United States was a sovereign State, was one which depended, not on any argument about the proper construction of the Constitution, but on the power which the States individually and the United States collectively actually possessed over the feelings and imaginations of the individual citizens.
The question whether the King or the Parliament was sovereign of England was a question of the same sort. If Charles the First had been able to conquer the Long Parliament, constitutional writers would have been able to prove that England was constitutionally an absolute monarchy nearly as well as they have, since the Civil War and the Revolution, been able to prove the contrary. In a word, the doctrine that force is essential to and characteristic of law, and that established and admitted force is the origin and measure of all legal rights and of all the institutions by which life is regulated, lies at the very root of all fruitful inquiries into political subjects—of all inquiries, that is, which tend to any definite result.
Of course, it is possible, as to many persons it is pleasant, to begin political speculations at the other end; to confound—or rather deny—the validity of the distinction between 'is' and 'ought to be,' to lay down schemes of abstract and so-called natural right, and to make such schemes the measure by which actually existing institutions are to be tried, and the ideal at which reformers are to aim. The objections to this method are in my opinion insuperable. They are well known, and need not here be referred to. The terrible practical consequences to which they lead are displayed in the most glaring light in every stage of history, but in none so strikingly as in the history of the last century. If, however, this view is taken of the proper mode of conducting historical speculations and inquiries, it sets in a still stronger light than it would otherwise stand in, the truth of what I have already said—that force is the specific peculiarity and characteristic of law. Speculative systems of natural rights produce no definite legal effect till they are definitely embodied in definite laws—definite commands issued by some man or body of men having power to enforce them. Few men have had an influence over their contemporaries comparable to that of Rousseau; but every sort of arrangement absolutely opposed to his principles continued to exist and to be carried into practical effect till the States-General and its legislative successors were able by legislation to give many of his ideas the force of law. The question whether, according to the Constitution of the United States, an individual State had the right to secede from the Union, was discussed with the utmost possible ardour for years before the Civil War, and might have been discussed for centuries; and the discussion no doubt had considerable effect on a large number of the people. But it was not and could not be decided till a civil war of four years, which cost hundreds of thousands of lives and more than five hundred millions of pounds sterling, settled the question in a way which no living man, and probably the son and the grandson of no living man, will think it worth while to protest against. Look at the whole subject of rights and duties how you please, view them a priori or a posteriori, look at them from an abstract or an historical point of view, and it remains true that force is the origin of laws, institutions, and legal rights, and also the special characteristic which distinguishes them from advice, opinion, and moral rights. It is quite true that force may have a moral or speculative origin, and that this may and does give its direction to the force which is essential to law; but the moment at which speculation passes into law is the moment at which it is clothed with an efficient sanction. In short, the question which in relation to all institutions takes the lead of all others is the question, What is the sanction of your proposed laws? Let any one get into his hands an efficient sanction of his own ideas, and he becomes to a greater or less extent a legislator on the subject to which he applies it and over the people to whom he can apply it. All history is filled with the gradual growth of different kinds of sanctions and laws, and all constitutional struggles may be described as struggles to define and to regulate the scope of different sanctions, and the manner of their application.
There are sanctions which in the nature of things must always exist. All human life at all times and in all places is regulated mainly by what may be called the physical sanction. Eat and drink or you will die; Eat and drink wisely or you will not live in health; and a thousand other maxims of the same sort resemble in some ways rules enforced by inexorable sanctions, though for reasons which are irrelevant to the present subject I do not like to call them laws. Most of our conduct is affected to a greater or less extent by what Bentham called the popular sanction—that is to say, by our regard to the opinions and feelings of others. These sanctions act automatically, and in that respect do not differ from all the common mass of motives. The other great sanctions are imposed from without by institutions constructed to a great extent with a view to improving human life by imposing them. They may be described collectively as political sanctions, and may be divided into religious and secular, the one imposed by the Church, the other by the State. Of the religious sanctions and the body or bodies which impose it I say nothing here. Of the secular political sanction—that which rules by the application of punishments, which may affect life, liberty, property, character, civil rights—two assertions may be made: first, that its existence is necessary, and, secondly, that its existence implies its being exclusive. There can be but one government using the temporal political sanctions in one nation. If there are two, the more powerful will drive out and destroy the less powerful, as certainly as bad coin will, if allowed to circulate, drive out of circulation all coin more valuable than itself.
The first of these propositions no one will dispute. It is admitted that there must be laws to regulate marriage and the devolution of property, to prevent the infliction of injuries to person, character, or property, or to give a binding force to contracts. Who is to make such laws? who is to administer them? by what sanctions are they to be enforced? with what safeguards against oppression is their administration to be protected? are questions which have been made the subject of infinite discussion, but which in most countries, and especially in our own, have been practically solved in a fairly satisfactory manner. What is not sufficiently noticed is the truth that such a system must for its nature have the exclusive control of the sanction on which it depends. This is so clear to my mind it is difficult to' make it clearer, and indeed it can be made clearer only by trying to imagine it not to be true, and by tracing out the absurdity of the consequences which would follow.
Let us suppose, then, that there were two governments, each of which could say to the same persons, 'Do this or you shall be put to death.' If this were so, the result would be that, if the two governments contradicted each other and carried out their laws, the subjects must all be put to death, either for doing or not doing that which necessity compelled them either to do or leave undone. This would be not government, but destruction. This is merely an extreme illustration, but similar though less startling consequences would follow whenever the two governments disagreed.
Another illustration may be taken from the possible case in which two sets of sanctions of different classes clash—cases where the Church says, 'If you do you will be damned,' and the State, 'If you do not you will be hanged.' In such a case the stronger fear, whatever it may happen to be, will prevail over the weaker, and the government which disposes of the weaker sanction will to that extent cease to govern at all.
A simpler and more popular way of proving the same thing may perhaps be found in the reflection that liberty is usually regarded as good, and that oppression is universally regarded as bad; but it is not till after the formation of a reasonably good system of government and law that it is possible to give any intelligible definitions of liberty and oppression; and when such definitions are given, the absence of coercion unauthorised by law will be found to be essential to liberty, and the application of such coercion to be a constituent element of oppression. The only meaning which can be given to the word liberty taken absolutely is the absence of all artificial restraints whatever on any one of the passions and inclinations of men; this is a description of unbridled anarchy involving the destruction of all that makes life worth having. If, therefore, liberty is to be spoken of as a blessing and object of rational desire, it must mean absence from all artificial interferences with speech or action of any kind, except those which are imposed by a system of such laws as are above shortly described; but this cannot exist if other powers besides the law impose artificial restraints on conduct. Liberty considered as a blessing thus presupposes an established government, a system of coercive laws which preserves each man from the oppression which others might otherwise exercise over him; for it follows from what has been said that oppression may be defined as coercion not authorised by such laws as have been described.
Moreover, it is obvious that every moderately good system of law and government must constitute some recognised legislative authority, by which the existing laws can from time to time be modified as circumstances may require.
Assume the existence of a state of things such as cannot reasonably be denied to exist in this country at the present time—namely, a set of laws which are in the main wise, good, and fairly administered, though both in substance and in form they have considerable defects; and also a legislature having full power to discuss their alteration and every inclination to do so, and it seems to me to follow that every man who has the smallest regard for the reasonable liberty of himself and his neighbours, the least appreciation of the benefits of a well-organised society, and of the infinite miseries arising from anarchy—in a word, every reasonable man and good citizen—ought to feel in the strongest way that there should be no law but Law, that the established authorities should be its prophets, and that the usurpation of the functions of government should be recognised in their true light as acts of social war, as the modern representatives of the old conception of high treason. The ancient penalties for treason were to some extent barbarous, and the steps taken to repress actual rebellious war often needlessly cruel, though perhaps in some cases they might be palliated or even justified by what to us appears the harshness and brutality of the times in which they were exercised; but to me it appears that our ancestors were under no mistake at all in attaching as much importance to the maintenance of a regular established government, possessed of an exclusive right of legislation, as to 'the confinement of that government in all its parts to the limit which the law assigned to it. It appears to me that the nation will give up one of the most valuable parts of its great inheritance if it does not, at all hazards and by every means at its disposal, follow the example of its ancestors by maintaining the recognised government of the country in the exclusive possession of legislative authority, and resisting and putting down by whatever exertion of public force may be necessary all attempts to usurp any part of it.
One consideration which at first sight appears to make against this is in reality the strongest reason which could be alleged in its favour. I refer to the great changes of opinion and feeling which have taken place, and which still are taking place, on religious, moral, and political subjects; the freedom of discussion on all subjects, which is now theoretically all but complete and practically quite complete; and the great favour which has been shown both by law and by public opinion to every kind of association, so that we have any number of religious, political, and social leagues, some of which even go so far as to call themselves armies, whilst of associations and unions of all degrees of importance, and for every variety of purpose, the name is Legion.
The natural and obvious result of this is that the public look languidly, not to say sympathetically, on very dangerous things, and are led easily and insensibly to overlook vital distinctions because of superficial resemblances between what is both in practice and in theory legal and right, and what is in theory and ought to be in practice illegal and criminal. One of the strongest instances of this which can be mentioned is the prevalent notion that boycotting rests on the same principle as strikes. The law on strikes is now as clear as possible, and is this: Those who are so minded may combine to fix the price to be given or taken for labour, but they must not compel those who are not inclined to do so to take part in their combinations. This result was arrived at after many years of discussion and struggle, in which some harsh laws were passed and many disgraceful outrages were committed. In 1875 a distinction was laid down by law, which has been well recognised and acted upon since, between combinations intended to enable workmen to sell their labour at their own price, which are solemnly recognised as lawful, and intimidation in all its forms, including intimidation by acts exactly resembling those which are done for the purpose of boycotting, which is illegal and criminal.
Nothing but the most hasty superficial glance at the subject can really fail to distinguish between the legitimacy of a strike for wages and that of a so-called strike against rent. The essence of the first is that the persons on strike keep what is their own—namely, their labour—and refuse to part with it except on terms which suit them. The essence of the second is that the persons who are absurdly described as being on strike against rent keep what belongs to somebody else—namely, land or houses—and refuse to pay for the use which they have already had of it. The word 'strike,' however, conceals this glaring contrast, and hardly any phrase has been more frequently or more effectively used by those who wish to lead English workmen to sympathise with Irish Land Leagues. The National League, it is said, is only their trade union.
In the same way nothing is more common than to consider that, because it is desirable that people should not be punished only for the expression of political opinion, or only for meeting together for the purpose of expressing or discussing their opinions, it is therefore lawful that they should meet in numbers and under circumstances likely to annoy and to intimidate those who do not agree with them, and to cause breaches of the peace, and that when so assembled they should use language constituting an incitement to the commission of crime. In this case, no doubt, the confusion is not so gross as in the other just mentioned, because the line between what is and what is not objectionable can be drawn only by the use of a good deal of discretion and the exercise of calm judgment.
These illustrations, and others which might easily be given, and of which, as I hope to show, boycotting is the most glaring, are sufficient to show that the modern changes in the direction of freedom are so far from being an argument in favour of permitting methods of coercion unauthorised by law, that they form an unanswerable reason for suppressing them.
In a state or society where political discussion and the statement of grievances is not permitted, the establishment of coercive systems independent of and even antagonistic to law may be unavoidable, though even in such cases the process always involves great evils. It is a great misfortune even for a good system to be established by rebellion and violence, not only on account of the immediate evils which ensue, but because the precedent set is mischievous. Where, however, the statement of grievances is not only permitted but invited, and where an active legislature is provided to consider and determine upon any measure, which can be suggested for their removal, unauthorised coercion ought, as I have already said, to be viewed in a moral light analogous to that in which our ancestors regarded high treason. Some persons appear to think that, whereas the doctrine that an established government should be treated with profound respect, and should not, except under the most pressing necessity, be actively resisted (which is the essential meaning of the doctrine of the divine right of kings), is natural and not irrational in an absolute monarchy, it is absurd when applied to a popular government. This view is generally held by the strongest advocates of popular government. It appears to me that there cannot be a greater inversion of all the rules of logic, and that such views ought to be held only by the enemies of popular government; for it is surely absurd to say that a presumably bad government can reasonably claim respect and obedience and consistently resist its enemies, but that a presumably good one cannot; that Charles the First or Louis the Fourteenth could rightly, or at least consistently, suppress a rebellion, but that the United States act against their own principles in forcibly keeping the Confederate States in the Union.
If government is looked upon from a practical point of view, and apart from theological theories as to its origin and as to the nature of moral obligations, it is hardly possible to rate too highly the duty in all common cases of submission to any government which has maintained itself long enough to show that it rests on solid bases, and which discharges fairly well the primary indispensable objects for which all governments exist—namely, the security of person and property—or to condemn too strongly those who, instead of trying to reform its abuses and supply its shortcomings by the legal means which the law puts in their hands, presume to try to set up unauthorised governments of their own. It is necessary in order to do so to use means which must from the nature of the case be relentlessly severe and recklessly unjust. They must be relentlessly severe, because such secret and unrecognised governments can assert their powers over those who do not like them, and impose the laws which they make on those who are unfavourable to them, only by punishments severe enough and administered with sufficient pertinacity to overcome that resistance to lawless tyranny which is natural to every man of common courage. They must be recklessly unjust, because people who try to displace the existing law and to establish a rival system of their own cannot by the nature of the case do justice. They cannot hear before they punish. They must determine, but cannot try. If they do try their trials must be carried on by the bitter enemies of the accused; almost of necessity behind his back, in secret, without anything which can be called evidence, and according to laws interpreted and administered in a manner which gives him the benefit of no doubts and of no discussion as to their meaning or as to their applicability to his particular case.
In illustration of these remarks I may notice a singularity in the use of popular language which has lately become common and which is most significant, though a slight thing in itself. It is the constant use of the word 'war' in reference to every sort of popular movement which would formerly have been called 'agitation, 'movement,' or the like. The Irish disturbances are a 'land war,' a 'rent war.' The 'tithe war' is a regular heading in the newspapers about the agitation in Wales. The title of the Salvation and other armies, and the language which they consider appropriate to their functions, is a standing hint that those who conduct them mean to make bad people good by some sort of forcible means; and this use of language shows how ready people are in the present day to fall into what Hobbes called ' the monstrous confusion between power and liberty.' [Burke, who had little love for Hobbes, says the same. Liberty, he says, is not an unqualified good. 'Liberty when men act in bodies is power. Considerate people before they declare themselves' [i.e. in favour of liberty]; 'will observe the use which is made of power.'—French Revolution,' Works, vol. v. 37-8] How eagerly they snatch at force and seek to become legislators and belligerents, instead of being content to advance their views by peaceable means and to leave the coercive sanction of law in the hands of the government of the country.
I have thought it desirable to preface what I have to say of boycotting in detail by these general observations because, though they are sufficiently obvious to any one who is accustomed to such speculations, they do not seem to me to have received the attention which they deserve. They lead me to the conclusion that people in general ought to accustom themselves to the thought that any such attempt at the usurpation of coercive authority over persons who have in no way whatever consented to it, is one of the most serious social and political offences which, in the present state of society, can be committed.
I have no further remark to make before I pass to the special questions connected with the subject of boycotting. The establishment of a government which fulfils what is right regarded as its most essential duties has a tendency to defeat itself by discharging those duties too well. It tends to unfit the comfortable well-to-do classes for self-defence and the defence of the society to which they belong. I do not mean to say that in our time and country the well-to-do classes are effeminate. I think that individually they are as vigorous in body and as spirited in mind and character as they ever were. In one way and another, taking in the experience of those who were young men when I was a boy, and that of my sons and their friends, I have known intimately the habits both of English University students and of the pupils of at least three of the great public schools, Eton, Harrow, and Rugby, for more than fifty years, and I cannot see the smallest signs of degeneracy amongst them in these respects. The present generation of young English gentlemen appear to me to be in all essential respects the same sort of people as their predecessors of 1830-1840, and the vigour of the earlier generations has been proved in all sorts of ways notorious enough to every one. But, though all this is true and important, it is no less true that the comfortable classes of the present day are to the last degree indisposed, and I think are by no means well fitted, 'to descend into the streets,' to encounter unlawful by lawful violence, to undertake in any case the duties which they have delegated to the police. How far this could be altered, and how far it is desirable to try to alter it, is a great question. Much might be said on a proper occasion about the American system of Militia, our own Volunteers, and the French National Guard, but I do not at present propose to go into the matter. I confine myself to the remark that the circumstances of the time are such as to give immense facility to revolutionists of all kinds, for the institution of rival governments, which by the use of weapons that respectable people cannot employ may easily assume the command of the vast mass who are not indisposed to submit to any form of coercion exercised for an object to which they are not altogether averse. A very small amount of shooting in the legs will efficiently deter an immense mass of people from paying rents which they do not want to pay. Our age is full of new ideas; it is full of all sorts of discontent with the present and of wild hopes for the future; and this makes the establishment of new forms of government specially easy and tempting, and thus affords a special motive to all friends of law and established order to keep the ferment, if possible, within the limits of discussion and exhortation, and to prevent the different revolutionary leaders from getting possession of effective sanctions by which they can convert into coercive laws their various crude systems.
I now come to the special points to be attended to in connection with Boycotting.
The word means several different things, to which entirely different considerations apply, and which ought, I think, to be dealt with on different principles; but its meaning is plain enough for some general considerations applying to every kind of operation which passes by the name. It may be used as a sanction to any sort of laws whatever by any man or set of men who can appeal with any great success to the sympathies of any considerable body of people. Such a process might perhaps be not unfairly employed in some cases as a legal punishment. The most effective way of dealing with habitual drunkards might be to give notice to all public-houses &c., within a certain area, not to supply certain named persons with drink, under penalties. On the other hand, it might be made a frightful instrument of religious and moral persecution. I can imagine ways in which different 'armies,' 'leagues,' and the like might, by the use of the zeal about morals, religion, and irreligion which devours so many people in these days, make themselves an intolerable nuisance to wide circles of people, by methods which as yet are not forbidden by law, and which, if employed with a moderate amount of persistence and ingenuity, might be effectual for the purposes for which they were employed.
Of its powers in the hands of men who do not shrink from secret crime it is hardly necessary to speak. In part of Ireland it has enabled a small number of ruffians, by the help of a moderate number of outrages, to paralyse the law of the land and to erect a government which confronts and defies the lawful government. The shooting in the legs of a few people avowedly because they have sent goods by a boycotted railway will deter, perhaps, hundreds from incurring the risk of being shot for the same cause, as one execution for murder protects a large number of people from other murderers. It is, however, needless to multiply illustrations upon this matter. Boycotting is only a modern application of the old Roman 'Ignis et aquae interdictio,' and is very like the weapons of excommunication and interdicts by which the Church of Rome was able practically to govern a great part of the world, till the terrors of excommunications and interdicts were destroyed by the decay of faith in their importance.
It must also be remarked that the process of boycotting is particularly dangerous because it is so plausable, so quiet, so closely allied with moral feeling, and so readily capable of being represented as a mere exponent of it and legitimate vent for it. The mere act of shunning a man, of refusing to deal with him, of not taking his land or the like, in no way shocks or scandalises any one. Nothing, in itself, and if it stands alone, can be more natural and harmless. Human life could not go on at all if all of us were not at liberty in a certain sense to boycott each other, to cease to associate with people whom we do not for any reason like, to cease to do business with people with whom for any reason, good or bad, we prefer not to do business—in a word, to regulate all the course of our lives and of our intercourse with others according to our own will and pleasure. To resent what you regard as harsh conduct in a landlord in evicting a tenant, or as meanness in a tenant who plays into his hand by taking the farm from which the tenant has been evicted, by refusing to have any dealings with either, may be wise or foolish, right or wrong, if it is a mere individual act, the bonâ fide result of the natural feelings of the person who does it. The transition from this to concerted action is not one which shocks the common and uninstructed mind, and the further and final step which leads you to help to compel others by fear to do that which you rather like to do yourself is little less natural and easy. By this plain and easy process what Bentham described as the popular sanction may be readily and quickly applied as a sanction of unequalled efficiency to any code of unwritten laws which vaguely represents the current sentiment of the most ignorant and passionate part of the community—those who are guided almost exclusively by sentiment and passion. The terrible importance of the subject needs no further proof. It is capable of growing into an instrument as effective in use and as difficult to control as the spiritual censures of the Roman Catholic Church used to be.
How, then, ought boycotting to be dealt with? It should be carefully studied, and those forms of it should be effectually suppressed which are bad in themselves, as contradicting the first principle of the exclusive supremacy of the law of the land, which is that it is the only form of coercion (I do not speak here of the religious sanction) which ought to be brought to bear upon all, whether they like it or not.
Theoretically I have no doubt the law of conspiracy would reach the case of boycotting. There are cases well known to lawyers in which this has been laid down, and it would indeed be a scandal if it were not so; for the result would be that a sufficiently powerful and well-organised conspiracy might deprive people not only of all the pleasures of life, but even of life itself, without breaking the law. In the state of society in which we live every man is dependent for the necessaries of life upon his neighbours. A man cannot get so much as a loaf of bread or a roof to shelter him, be he ever so rich, without the help of others, which help they could of course be prevented from giving to him by properly calculated forms of intimidation.
These remarks must, however, be taken with one important qualification. Urgent as is the necessity of dealing with the practice of boycotting effectually, it is at least equally necessary to deal with it fairly, and on intelligible principles. Any legislation on the subject likely to be effectual and useful must be based upon a full consideration of its strong as well as its weak side, and should draw a broad line between intimidation which should be prevented, and the mere withholding of voluntary good offices with which the law ought not to interfere.
The word boycotting is, of course, as vague as it is convenient. Its essence is that the process brings the force of numbers to bear upon individuals. It consists of the repetition of a number of what may be called disobliging acts, so concerted and repeated as to make life wretched, though individually they are of no importance, and are for the most part well within the rights of those by whom they are done. To refuse to sell a man a loaf of bread is in itself nothing. In connection with other things it may be a step in the execution of a sentence of death. To employ one lawyer or doctor rather than another, to send a parcel by one conveyance or another, are matters in themselves indifferent; but they may be steps in the infliction of professional or commercial ruin. Can such practices be brought under legal control? If they cannot, then, as a great deal of recent experience shows, the result is that individual liberty is restricted within limits far narrower than has ever been regarded as desirable by the most despotic of men, the limits, namely, under which any irresponsible association, which can get itself backed by a small local public opinion, controlled and maintained by a certain amount of crime, sees fit to leave to it. There is no doubt a difficulty in legislating against boycotting, on account of the apparent harmlessness of the individual acts of which the process consists; but it can hardly be carried out without combination, and cannot be carried out effectually without a good deal of publicity and noise. Tradesmen will not give up their customers, labourers will not give up their wages without a good deal of exhortation, discussion, and denunciation. Where an act of boycotting is in progress it is always notorious in the neighbourhood, and every one knows who is responsible for it. The National League and the association called the Knights of Labour make no secret of their operations; on the contrary, they give them the very widest and broadest publicity in their power. Such matters are easily susceptible of proof. They are according to English law indictable conspiracies; for an agreement of several persons to interfere and to procure others to interfere with the comfort of their enemies, and to inflict or procure others to inflict loss upon them in the pursuit or profession by which they live, is a combination to intimidate, and this is a crime. It is, however, a crime .which it is often difficult to punish, especially when juries sympathise with the offenders and cannot be got to convict. It must also be noticed that, if the remedy against the actual authors of the process of boycotting were made more effective, it might be found practicable to carry it out in a more secret way.
Be this as it may, the propriety of treating as a crime the contrivance of an act of boycotting, or the issuing of orders for that purpose, can be denied only by those who are also prepared to deny the principle of the well-known Act of 1875 [38 & 39 Vict. c. 86, § 7.], which makes it a crime to 'intimidate' any person 'with a view to compel' him 'to abstain from doing or to do any act which such other person has a legal right to do or to abstain from doing.' It is impossible to intimidate a man—to make him afraid—in a more definite emphatic way, in order to compel him to abstain from paying his rent or evicting a tenant for not paying it—than by threatening him in the one case or the other with all the penalties of social excommunication.
Fortunately there is no difficulty in defining the offence in an unequivocal way. It would require more knowledge of the details of the practices of boycotters than I possess to give a full specification of all the practices which should be punished in a moderate but effectual and summary way; but about many of them there can be no doubt, and the enactment already quoted supplies a precedent for such a definition. I do not give the following as a complete definition, but as an illustration of the sort of enactment which might be passed:—
'Everyone shall be guilty of an offence, and shall upon conviction thereof be liable, &c.,
'Who, with a view compel any person to do or to abstain from doing anything which he has a legal right to do or abstain from doing,
'Or with a view to punish him for having done or abstained from doing any such thing,
'Or with a view to deter other persons specified or not from doing or abstaining from doing any such thing,
'(i) Counsels, procures, or commands, or conspires with any other person or persons to counsel, procure, or command, any person or body of persons, or persons in general, not to deal with any such person or not to employ him in the way of his profession, trade, or calling, or not to associate with him, or to inflict upon him any other kind of inconvenience or loss or damage whatever, whether such counsel, procurement, or command is conveyed by writing or by speaking or by any means whatever likely to produce the effect.
'(2) Publishes, or conspires to publish, the name of any person or of any firm or company in order that he or they may incur any such consequences as aforesaid;
'(3) Refuses to deal with any such person in the ordinary way of business in compliance with any such counsel, procurement, or command as aforesaid, provided that any person accused of this offence may defend himself by proving any reasonable excuse;
'(4) Attends and public sale of goods taken under any distress, execution, or other legal process, with intent to obstruct the same or the removal of goods purchased thereat, and who manifests any such intention by any act, .word, or gesture, or conspires to do so, or counsels, procures, or commands any person to do so;
'(5) Commits any assault upon any such person, or injures his property, or threatens to do so, or publicly insults, or otherwise intimidates or injures him;
'(6) Takes any part whatever in any of the proceedings of any body of persons, by whetever name it may be called, which assumes, or purports to exercise, over any person of the powers of a court of justice with any such object as aforesaid.'
No doubt such an enactment would require the greatest consideration, and there may be practices which the language suggested would not cover, and which ought to be brought within its scope; but if it were courageously and vigorously enforced, it would go a long way to render boycotting impossible, and would effectually protect society at large from what may easily be an intolerable tyranny. The measure ought to be carried one step further. I have myself known a case of boycotting in which the person sentenced to that punishment —for such it was—was unable to procure bread except through his friends, by more or less indirect means, and could get horses shod only by sending them to a forge at cavalry barracks some miles off. I cannot see why this should be permitted. If a man chooses to drive a hackney carriage, he is under a legal obligation to 'admit and carry at the lawful fare any passenger for whom there is room and to whose admission no reasonable objection is made.' [6 & 7 Vict c. 86, § 33] Why should not a similar obligation be extended to every person who keeps a shop for the sale of articles necessary to life or to the enjoyment of its common comforts? We are all dependent on butchers, bakers, tailors, shoemaker chemists, medical men, and many others for articles either absolutely necessary to life, or at all events essential to comfort. Why should these persons be allowed to make themselves the instruments of the unlawful commands of a set of irresponsible tyrants, and to refuse to sell to a boycotted man articles or to render to him services essential to his life, or at all events to his comfort? In cases of boycotting, tradesman and others who carry a great part of the operation into execution are themselves for the most part terrorised, and would be only too glad of a reasonable excuse for not carrying out the orders of those who set the movement on foot. I would therefore not only provide in the manner already stated for a penalty upon them for refusing to deal with boycotted persons, if their intention in so doing could be proved, but I would go further, and enable a boycotted man to demand to be supplied, upon payment in ready money at the market price of the day, with any necessary of life exposed for public sale or dealt in by any person dealing in it; and I would authorise any magistrate to send a policeman to take it and deliver it to the person boycotted, leaving the price at the house from which it was taken, the shopkeeper being liable to all costs. Of course with regard to personal services this could not be done. No one can make a man shoe a horse; but I do not see why, if a blacksmith refuses to shoe my horse, when I am ready and willing to pay him for doing so, and thereby compels me to send him many miles to be shod at a distance, he should not be liable to me in damages in the county court for loss of time, loss of the horse's services, and my own costs. Of course in the common state of things it is needless to give a man a legal right to buy things in shops, to have his boots cobbled, or to hire a carriage or cart. No difficulty occurs on such points, and law ought not to occupy itself with trifles; but when trifles are turned by combination into instruments of starvation or torture the matter is altered. No one would seek or ought to be entitled to recover damages for a slight touch; but if a large number of people conspired together to touch a man continually whenever he walked along the road, each touch would go to make up a grievous and monstrous injury. Collectively, indeed, they would operate as an imprisonment, by making it impossible for the injured person to leave his home.
It would be unwise to exaggerate anything. There are and must be many practices more or less analogous to boycotting which it might be unwise to attempt to interfere with by any process of law. It would not be desirable to attempt to give legal protection against those forms of the manifestation of popular displeasure which a man of courage may be expected to defy, and which it is possible to encounter or endure without undergoing any intolerable evil. Refusals of voluntary good offices which depend on the consent of others to what, without such consent, would be a violation of their legal rights, even if they are made systematically and at the exhortation of conspirators and for the purpose of a conspiracy, fall under this head. It appears to me that the tenants of land in Ireland ought not to be interfered with if they combine together to prevent hunting over their fields; for, technically, hunting is undoubtedly a trespass which the occupier has a right to prevent. With regard to shooting or fishing the case is usually different, as in most cases the landlord has a right to shoot. At the worst a conspiracy or combination to deprive people of amusements which depend on the permission of their neighbours is no great matter. People ought to be able to do without such amusements in case of need.
The same may be said of other social advantages and voluntary good offices. A systematic refusal to associate with a person, to visit him, to employ or recommend him, may be a great hardship, especially to a sociable, sensitive man; and those who form a conspiracy to do so, and by public denunciations induce others to take such courses, may justly, I think, be punished for it, if their proceedings are proved; but I do not see how the actual infliction of such penalties can be prevented, nor would it be within the clause numbered (3) above, which applies only to refusals to deal in the way of business, accompanied by an intention, which it would be in most cases impossible to prove. The attempt to go further would involve intolerable and tyrannical inquiries into conduct and motives, for the most part incapable of being ascertained. It is one thing to punish a priest who denounces a man by name in his chapel, and declares that no one ought to eat with him, speak to him, or marry him; and quite another to interfere with a girl who thereupon refuses to marry him, though the injury might be most cruel; or with a man who ceases to call upon him, or passes him in the road without speaking, though such conduct may cause great pain.
On the same principle, in any attempt which may be made to suppress boycotting, the utmost care should be taken not to interfere with the right, now happily conceded and established, to strike. For many reasons—too obvious to be mentioned—it would be impossible to interfere even with a concerted and combined refusal of labourers to work for an employer whom it was intended to reduce to submission, unless the case fell within the principle of the statute which punishes as crimes some particular breaches of contract. [38 & 39 Vict. c. 86, § 5, relating to contracts of which the breach endangers life or property, or the deprival of a town, &c., of gas or water.] The employer's remedy in such cases is to get other workmen, and the duty of the legislator is to protect them in their work and against interference by boycotting or similar means. It might be possible theoretically to draw a line between a strike—the essence of which is an effort to raise the price of labour by withholding it except on certain terms—and a refusal of labour intended merely to punish the employer or coerce him; and there is no doubt a distinction in principle between the two things. But the distinction is much too refined for practical use.
A form of boycotting which presents some special difficulties is that practised against steamship companies, railroads, and hotels. In these cases the distinction between the ringleaders—those who counsel, procure, and command—and those who merely carry out their directions seems to apply. It would be practically impossible, and it would not be desirable to attempt, to compel people to travel by or deal with railway or steamboat companies; but it would be possible to enable all common carriers, whether railway companies or not to protect themselves to a greater or less extent against those who might boycott them by enabling them to retaliate for a fixed time. If, for instance, it were provided that a railway with which the people of a district refused to deal in order to punish them was to be at liberty to refuse to deal with any of the people of the district for a given time, the boycotting of a railway would be a dangerous matter. The railway would have no wish to refuse to deal with those who had not interfered with it, but it might inflict serious inconvenience on those who had by refusing to carry them or their goods for a considerable period.
In all cases of boycotting the maxim of Vigilantibus non dormientibus ought to be carefully kept in view. It is undesirable to afford legal protection in such a form and to such an extent as to lead people to give up the practice of protecting themselves effectually. Bolts and bars and firearms in the hands of the inmates, vigorously used in case of need, are and ought to be the natural protection for a dwelling-house. If a man is exposed to serious personal attack by a person for whom he is anything like a match, the person attacked ought to regard it as a solemn duty to resist to the utmost, and if necessary with deadly weapons. In the same way the first and most natural, and often the most effective, protection against boycotting is to be found in associations for defence by lawful means. These means might be used with dreadful effect, and this should be remembered by those who provoke retaliation. No one can legally force people to employ labour, any more than they can force labourers to work. The poor are to a great extent dependent on the rich for good offices, for the performance of which there is no legal obligation, as well as the rich upon the poor. If each party, the boycotter and the boycotted, combine together to hold each other at arm's length, to exact to the very utmost their legal rights, to withold to the very utmost all that the law does not compel them to give, boycotting would not be confined to one side. The systematic refusal not only of all charity, but of all credit; the systematic and combined prosecution of every legal claim for rent (for instance) the moment it became due, constitute means of defence to which it might be possible for the poor to drive the rich, if the poor push to extremity the many powers which the present state of the law and of society have placed and are placing in their hands. The old association between riches and power is no doubt to a great extent broken down. The poor are now the powerful. They have by their numbers physical power, unorganised indeed and undeveloped, but even in its present state formidable. They have political power by their votes; they have leaders who can and do instruct them how to use their political power to procure the enactment of laws providing legal means of plunder, and intended to realise visionary communistic theories; their leaders also point out to them how by strikes and boycotting they can impose their rule on the rich, interpreting the word in the widest sense. Besides all this, they have on their side all the topics of prejudice. All the commonplaces of an earlier state of things have outlived the alterations which are gradually falsifying them. All sympathy, all pathos, is conventionally on the side of the poor. Dives is presumably bad, Lazarus presumably good and only unlucky; and the public at large is being powerfully moved in all directions by all sorts of people, most of whom, strange to say, belong themselves more or less decidedly to the Dives class, to comfort the one and torment the other. There is thus a strong current running in the Socialist direction, and circumstances have given it a character which is extremely engaging to many minds. It looks disinterested and religious, and those whom it attracts are so accustomed to assume the solidity of the foundation of the state of society in which they live, that they feel no fear of succeeding beyond their wishes.
This, as I think, constitutes a public danger; for, though it is idle to use any longer the old commonplaces about the weakness of the poor and the strength of the rich, it is still true that the rich have great power in their hands; and if they are forced to think that the poor require, under whatever names, a redistribution of property, they might be forced into using it to the utmost to protect their property and the state of the law which enables them to accumulate and enjoy it. It must be remembered in reference to this matter that the word 'rich' in this connection includes, not only those who have anything to lose, but all who hope to have anything, and all who hold positions in any station of life in which they feel themselves secure and comfortable. It is needless to dwell on so odious a topic as that of a struggle in which those who fall within this description would be arrayed in one camp and those who do not in another. Such a struggle would be by far the greatest calamity which the world ever has incurred or ever could incur. War, pestilence, and famine all in one would be less fearful. It would involve the destruction of all we mean by civilisation, and miseries of all sorts falling on all classes of society alike in a way hitherto unexampled.
For many years this has been a well-worn commonplace. It was, to take one illustration out of a million, one of the main topics of Carlyle, and it is the teaching of all his most famous and popular books. The moral which he and other writers drew from it was almost invariably put in the form of exhortations to the rich—'For your own sakes, and in order to avoid a repetition on a larger scale of the excesses of Jacobinism, be kind, be charitable; look on yourselves as Captains of Industry, and not as accumulators of wealth for personal enjoyment. Throw aside political economy. It is the theory of a mere shopkeeper. Address all the faculties of your minds to the task of devising in practice some way of life by which human beings may all be enabled to live as such without grinding poverty or want.'
There was much in this doctrine which I think no one can complain of. It, no doubt, was so preached as to impress powerfully on many rich people their moral duties; but it has also great defects, at least in my opinion, and it is preached by innumerable writers without that clear recognition, which was one distinctive feature of Carlyle's teaching, that such a process implies a well-organised and really powerful government, which knows and does not shrink from doing its duty, and that the measures which it recommends cannot be carried out merely by exhortations to charity.
The great defect of teaching of this sort (and Carlyle was as deficient in that respect as any one else) is that it is for the most part entirely silent on two matters of capital importance—namely, first, the duties of the poor, and, secondly, the truth of the fundamental principles of political economy in its old-fashioned form—the political economy of half a century ago, of the new Poor Law and Free-trade—principles which, to me, at least, appear to be as true as the second table of the Ten Commandments, with which they are closely connected, and which these principles resemble in being deeply rooted in the most permanent parts of human nature.
This is little more than saying that this teaching is too absolute. Moral teaching of all kinds, whether addressed to individuals or to societies, always takes an absolute form, but ought always to be limited by the circumstances of the age to which it is given. These circumstances supply unexpressed exceptions which cannot be neglected without the worst results. The precepts of the Sermon on the Mount would destroy all human society and convert the world into a vast monastery if they were accepted absolutely and carried into full execution on all occasions. In the present day we have for many years past heard so much of the wrongs and woes of the poor, of the quasi-sinfulness of being rich, of mankind being all brothers and sisters, and of the duties of property, that it has become extremely important to insist upon the neglected truth, that poverty has its duties as well as its rights; that human nature is so constituted that nearly all our conduct, immensely the greater part of it, is and ought to be regulated much more by a regard to ourselves and to our own interests than by a regard to other people and their interests; that this is the basis on which almost all law reposes, and in particular that important part of it which assumes the existence of property—that is to say, the power of men to be, for purposes not forbidden by law, absolute masters of such things as they acquire by lawful means—and which protects liberty, which means for one thing the protection of the owners of property from being coerced in the exercise of their rights over their property, by any means whatever not authorised by law. These principles have till quite lately been accepted as of course. They might be now and then set forth in express words when it was desired to refute any theory which was inconsistent with, them, but more often they were accepted and acted upon unconsciously. In the present day virtues which in truth are founded upon them, and which assume their existence, have been so much insisted upon as illogically to call into question the principle on which they depend.
Divide amongst the poor the superfluities of the rich, and all charity and generosity is at an end, unless it is charitable and generous to pay one's poor rates. Take away the great characteristic feature of property—the owner's absolute dominion over it—and it is no longer true that property has its duties in the sense of moral as distinguished from legal duties. Strain the quality of mercy, and it is mercy no longer. I am far from saying there should be no poor rate. I do not even say there should be no education rate, and it is fairly arguable whether education should be gratuitous; but I do say that these are exceptions to the general rule, justifiable only on the special grounds that rich and poor alike have a vital interest in the results which poor rates and education rates are supposed to procure, and that there is a dangerous tendency in the present day to enlarge the exceptions and to narrow the rule.
Apart from the special immediate reasons which exist for dealing with the subject of boycotting, the reflections just made supply a strong general reason for it. The adoption of such measures would assert vigorously and strikingly illustrate these fundamental principles. It is of the last importance to assert and vindicate the truth that legislative power must not be usurped; and that if property is to be redistributed, as many persons wish it to be—though they do not often propose it in so many plain words—they must at least obtain their object by lawful means.
The Nineteenth Century, December 1886.
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