The Government and the Labour Laws

Whether Mr. Frederic Harrison is right or wrong in his belief that the working men will view with suspicion the appointment of a Royal Commission, to inquire into the operation of the law of conspiracy and of the Master and Servants Act, he is right, we think, in holding that the subject is not one to which this mode of treatment ought to be applied. A Royal Commission is a very useful machine for collecting information. If the Government wanted to know what workmen on the one side and employers on the other say about the labour laws, why the former universally hate them, and why a large section of the latter enthusiastically defend them, a Royal Commission would exactly serve their purpose. Or if the matter were one to be decided entirely by experts, the Government might be willing to accept the report of a majority of the Commissioners as the foundation of an amending Bill. But the case of the labour laws answers to neither of these descriptions. Everything that can be said upon the subject has been said over and over again. If the Home Secretary feels uncertain as to the opinion of the working men Mr. Henry Crompton will tell him all he need care to know. If he wants to acquaint himself with the counter opinion, he has only to apply to the Association of Federated Employers, and, supposing the report of a Royal Commission to be presented, the responsibility of the Home Secretary in dealing with the subject would be in no way lessened. He would have to give just as much pains to the preparation of a Bill as though a Commission had never been appointed. It would be no answer to hostile critics, whether on the side of the workmen or of the employers, to say that the Government had merely followed the recommendation of a majority of the Commissioners. The enemies of the Bill would at once reply that Governments cannot be allowed to shield themselves in this way; that the function of a Commission is at most to collect materials for the legislator, not to become legislators themselves; and that Ministers must be held as responsible for the measures they introduce on the advice of others as for measures framed by themselves.

The charges which working men bring against the laws relating to labour are principally three-- that a conspiracy to commit an offence may be visited by a heavier penalty than the actual commission of the same offence; that breaches of contract under the Master and Servants Act may be punished by imprisonment without the option of a fine; and that certain acts which ordinarily are not punishable, or not punishable so severely, may, if they can be brought under the Criminal Law Amendment Act, be also punished by imprisonment. As regards the first complaint, it is very difficult to answer it satisfactorily. The case of the gas-stokers, which brought the question into sudden prominence, was beyond doubt a case of great hardship. The only objection to an alteration of the law is the fact that in a few rare but by no means impossible instances an injury may be very much greater if it is inflicted by a combination of persons than the same injury would be if inflicted by one person. The question to be decided is whether, for the sake of retaining a weapon which may conceivably be useful once in twenty years or so, it is worth while to allow the leaders of lawful trade combinations to feel that some sudden slip may at any time bring them within the scope of a power so vague, and therefore so dangerous, as that now possessed by the judges in cases of conspiracy. This is not a question to be answered by any sifting of evidence, however careful. It is a point to be decided partly by lawyers and partly by politicians, and a Government which does not already possess competent advisers of both kinds had better at once reconstruct itself, not hand over its duties to an irresponsible Commission.

The second grievance relates, we think, rather to the administration and interpretation of the law than to the law itself. The 14th section of the Master and Servants Act provides that when the magistrates shall be of opinion that "any injury inflicted on the person or property of the party complaining, or the misconduct, misdemeanour, or ill-treatment complained of, has been of an aggravated character . . . and further that any pecuniary compensation will not meet the circumstances of the case," the person complained against may be imprisoned for three months. There is good reason to think that this clause has been read as though it gave the magistrates power to imprison all offenders against the Act, whether their misconduct has been aggravated or not. A wrong sense has also, we suspect, been often affixed to the words which declare that some cases cannot be adequately met by a fine. The argument most commonly used in defence of the clause as it stands is, that workmen who commit breaches of contract do not mind being fined, because their Union will pay the fire for them. It is not at all unlikely that magistrates impressed with this idea may have considered that a case in which the penalty is paid by some one other than the offender is a case which is not met by "any pecuniary compensation." To act upon this theory, however, is to put workmen in a position which is not shared by any other class of the community. The principle of insurance against money liabilities is universal. If the fact of its application to breaches of contract between employed and employer is to subject workmen to imprisonment, there is no reason why railway directors should not be imprisoned under Lord Campbell's Act, or persons who refuse to vaccinate their children under the Vaccination Act. The former do not pay the compensation awarded against the company for injuries inflicted by their agency; it is paid by the shareholders. The latter rarely pay the fine inflicted on them by the magistrate; it is usually paid by the Anti-Vaccination Society.

That malicious breach of contract-- breach of contract, that is to say, in which the object of the person guilty of it is rather to inflict injury upon the other party than to benefit himself-- ought to entail some kind of criminal penalty will hardly be disputed. The difficulty is to frame a satisfactory definition of the offence. It is quite possible that of two acts precisely similar in appearance and in results one might involve deliberate malice of the worst order while the other would be simply a matter for compensation. But a Royal Commission is not likely to help us here. What is wanted is the sort of aid which can be given by a thoroughly unbiassed and competent criminal lawyer who will advise the Government how to arrive at a definition of malicious breach of contract, if such a thing is possible, and tell them frankly if it is not possible. In the latter event the Government will have to decide whether, under the circumstances, it is best to retain a definition which is confessedly exceedingly loose or to let a certain percentage of malicious breaches of contract go unpunished. Such inquiries and discussions would be much better conducted by Mr. Cross or Lord Cairns, with the confidential assistance of one or two common lawyers, than amidst the publicity of what is called a "representative" Commission.

A more difficult subject still is the Criminal Law Amendment Act-- which, strangely enough, is not mentioned as included in the reference to a Royal Commission that the Government are said to have in view. The first section of the Act makes molestation or obstruction with a view to coerce a workman to belong or not to belong to any association, or to pay any fine or penalty imposed by any association, punishable by imprisonment; and for the purpose of the Act it includes under the head of molestation or obstruction persistent following of any person from place to place, and watching or besetting any place where such person happens to be. The workmen complain that the public generally may for their own amusement follow people about from place to place and watch any house in which they happen to be without incurring any penalty, but that if a member of a trade society uses this same liberty for the purpose of persuading a non-member not to make common cause with the masters, or of getting in a debt due to the union from a member-following and watching being the only means of attaining either of these ends which working men possess-he comes within reach of the law. It is contended, on the other side, that "picketing" is in practice found to be one of the most formidable forms of coercion, partly from the weight of class disapprobation which it embodies, and partly from the frequency with which it leads to acts of overt violence. But though the problem may be more difficult, the elements of the solution are the same as in the last case. There is, first, the inquiry whether the Criminal, Law Amendment Act can be improved; there is, secondly, the inquiry whether if it cannot be improved it had better be entirely repealed or be retained with all its faults. A Royal Commission will give the views of masters and workmen respectively on this last point, but this is not what the case demands. The important questions for the Government to consider are whether the two views can be reconciled, and, if this is impracticable, which of them is to be embodied in the statute-book.  The first is a point for examination and decision by competent lawyers, the second belongs to the region of politics.  Both lie outside the sphere of a Royal Commission.

If nothing else can be done, it would be worth the while of the Government to consider whether a great deal of the unpopularity attaching to these two Acts would not be removed by a provision that in places where there is no stipendiary magistrate complaints shall at the instance of either party be heard by a county-court judge.  It can hardly be contended that men who may themselves be large enough employers of labour are the best type of judges in trade disputes.  Yet both in town and country this constantly happens.  A workman is summoned by his master to answer for a breach of contract or for molesting a fellow-workman against the interest of his master, and he sees the bench filled by other masters.  They may hear the case with the utmost patience, and decide it with the utmost fairness; but they will almost certainly be set down as men who have made up their minds beforehand, and have rested their conclusion on the position of the parties rather than on the facts shown in evidence.  It is of great importance that no excuse should be given for such suspicions; and the proposed transfer of jurisdiction to the county court would remove the excuse which now exists without leading to any serious increase of expense or risking a miscarriage of justice.

Pall Mall Gazette, March 19, 1874.