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(A): Principles of Collectivism - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) [1917]

Edition used:

Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


(A)

Principles of Collectivism

The fundamental principle which is accepted by every man who leans towards any form of socialism or collectivism, is faith in the benefit to be derived by the mass of the people from the action or intervention of the State even in matters which might be, and often are, left to the uncontrolled management of the persons concerned.

This doctrine involves two assumptions: the one is the denial that laissez faire is in most cases, or even in many cases, a principle of sound legislation; the second is a belief in the benefit of governmental guidance or interference, even when it greatly limits the sphere of individual choice or liberty. These assumptions—the one negative, the other positive—are logically distinguishable, and, as a matter of reasoning, belief in the one does not of necessity involve belief in the other.1

This fundamental doctrine, however, is of too abstract a nature to tell much upon the course of legislation, at any rate where the law-makers are Englishmen. The importance of its general, even though tacit, acceptance lies, as regards the development of English law, in the support which it has given to certain subordinate principles or tendencies which immediately affect legislation. These may conveniently be considered under four heads: the Extension of the idea of Protection; the Restriction on Freedom of Contract; the Preference for Collective as contrasted with Individual Action, especially in the matter of bargaining; the Equalisation of Advantages among individuals possessed of unequal means for their attainment. A given law, it should be remembered, may easily be the result of more than one of these tendencies, which indeed are so closely inter-connected that they ought never, even in thought, to be separated from one another by any rigid line of demarcation.

The extension of the idea and the range of protection.

The most fanatical of individualists admits the existence of persons, such as infants or madmen, who, because they are incapable of knowing their own interest, and, in the strictest sense, unable to protect themselves, need the special protection or aid of the State. The most thoroughgoing Benthamites, moreover, not only acknowledge, but strenuously insist upon2 the principle that for certain purposes all persons need State protection, e.g. for the prevention of assault by robbers, or for the attainment of compensation for injuries done to them by the breaker of a contract or by a wrong-doer. But such protection or State aid, as understood by consistent individualists, is in reality nothing but the defence of individual liberty, and is, therefore, not an exception to, but an application of the individualistic creed. Protection, however, may, in the mouth of any man at all influenced by socialistic ideas, acquire a far wider signification. It is extended in two different ways.

“Protection,” in the first place, is tacitly transformed into “guidance,” and is applied to classes who, though not in any strictness “incapable” of managing their own affairs, are, in the opinion of the legislature, unlikely to provide as well for their own interest as can the community. An artisan, a tenant farmer, and a woman of full age, would each feel insulted, if told that they could not manage their own business; and they do, in fact, each of them possess on most matters the full legal capacity (as regards at any rate anything coming under the head of private law) which is possessed by other citizens, yet they are each on certain subjects treated as incapables. A workman cannot make a binding contract for the payment of his wages in goods instead of in money;3 an artisan or a labourer cannot by contract give up the benefit of, or, as the expression goes, “contract himself out” of, the Workmen’s Compensation Acts,4 nor can a farmer contract himself out of the Agricultural Holdings Acts.5 A woman’s labour in factories, workshops, shops, or even in some cases at her home, is regulated by law.6 She is excluded, as it is presumed for her own good, from work which she might personally be willing to undertake. All of these persons, therefore, represent large classes on whom the State confers protection or imposes disabilities. Nor is it doubtful that modern legislation tends to increase the number of protected classes.7

Protection, in the second place, is made to include arrangements for the safeguarding, not of special classes, but of all citizens against mistakes which often may be avoided by a man’s own care and sagacity. Thus enactments to prevent the adulteration of food or to provide for its analysis by some State official, extending from the Adulteration of Food Act, 18608 down to the Sale of Food and Drugs Act, 1899,9 defend all citizens from dangers which certainly might be warded off, though at the cost of a great deal of trouble, by individual energy and circumspection, and these enactments rest upon the idea (which is thoroughly congenial to collectivism) that the State is a better judge than a man himself of his own interest, or at any rate of the right way to pursue it.

Restrictions on Freedom of Contract

Collectivism curtails as surely as individualism extends the area of contractual freedom. The reason of this difference is obvious. The extension of contractual capacity enlarges the sphere of individual liberty. According as legislators do or do not believe in the wisdom of leaving each man to settle his own affairs for himself, they will try to extend or limit the sphere of contractual freedom. During the latter part of the nineteenth century the tendency to curtail such liberty becomes clearly apparent. With Irish legislation these lectures are not directly concerned, but, though that legislation has generally been dictated by exceptional circumstances due to the peculiar history of Ireland, it throws, at times, strong light on the condition of English opinion. The Landlord and Tenant (Ireland) Act, 1870, 33 & 34 Vict. c. 46, and still more the Land Law (Ireland) Act, 1881, 44 & 45 Vict. c. 49, are the negation of free trade in land, and make the rights of Irish landlords and of Irish tenants dependent upon status, not upon contract. Legislation of this character would in any year between 1830 and 1860 have been in reality an impossibility, owing to the absence in Parliament, and indeed among the electors who were then represented in Parliament, of the convictions to which the later Irish Land Acts give expression.

Let us here consider with a little further attention the increasing number of cases in which a person belonging to a particular class, e.g. the body of tenant farmers, has been forbidden by law to part under a contract with advantages, such as compensation for improvements, which Parliament intends to secure to the class of which he is a member.10 Law-making of this sort generally passes through two stages. In the earlier stage the law places upon some kind of contract an interpretation supposed to be specially favourable to one of the parties, but allows them to negative such construction by the express terms of the agreement between them. In the later stage the law forbids the parties to vary, by the terms of their contract, the construction placed upon it by law. The difference between these two stages is well illustrated by the case of a lease made by a landlord to a tenant farmer. As the law originally stood the tenant had no right to compensation for improvements made by him during his tenancy, unless he was entitled thereto by an express term in his lease. This was felt to be a hardship. Parliament, therefore, enacted that it should be an implied term of every lease, unless the contrary were expressly stated therein, that the tenant should receive compensation for improvements. So far there was no interference with the contractual freedom either of the landlord or the tenant, for it was open to the parties by an express term of the lease to exclude the tenant’s right to compensation. It was found, however, that, upon this change in the law, the tenant’s right was habitually excluded by the terms of the lease, and that he did not therefore receive the benefit which the legislature hoped to confer upon him. The next step was for Parliament absolutely to prohibit the bargaining away of his right by the tenant. Here the inroad upon contractual freedom is patent. The necessity for forbidding the tenant to contract himself out of the statute is no proof that the policy of conferring upon him an absolute right to compensation was unsound, but it is conclusive evidence that landlords were ready to purchase and tenants were ready to sell the rights conferred upon them by statute, and that the Act, which prevents the parties to a lease from making the bargain which they are willing to make, does curtail the freedom of contract. The transition from permissive to compulsory legislation bears witness to the rising influence of collectivism.

Preference for Collective Action

This preference rests on two grounds.

The one is the belief that whenever the interest of the wage-earners comes into competition with the interest of capitalists, and especially when a bargain has been struck as to the rate of wages payable by employers to workmen, an individual artisan or labourer does not bargain on fair terms; he seems powerless against a wealthy manufacturer, and still more so against a large company possessed of wealth, which, as compared with his own resources, may be regarded as unlimited. The sale of labour, in short, is felt to be unlike the sale of goods. A shopkeeper can keep back his wares until the market rises, whilst a factory hand, if he refuses low wages, runs the risk of pauperism or of starvation. The other ground is the sentiment or conviction which is entertained by every collectivist, that an individual probably does not know his own interest, and certainly does not know the interest of the class to which he belongs, as well as does the trade union, or ultimately the State of which he is a member. This belief that associations or communities of any kind are organisms, which may be wiser as well as stronger than the persons of whom they are composed, affects a man’s whole estimate of the merit of combined as compared with individual action, and underlies much modern legislation.

As illustrations of this preference for collective action take the Combination Act of 1875 and the modern Arbitration Acts.

The Combination Act, 1875 (Conspiracy and Protection of Property Act, 1875).11 This statute must be read in connection with the Trade Union Acts, 187112 –1876.13 All these Acts taken together place trade combinations of every kind, whether they take the form of strikes or of trade unions, in a position totally different from that which they occupied under the Benthamite legislation of 1825.14 From this point of view the following features of the existing combination law, which may well be described as the compromise of 1875, deserve special consideration.

First. A combination to do an act in furtherance of a trade dispute between employers and workmen is made, so to speak, privileged. For it is enacted that “an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy15 if such act committed by one person would not be punishable as a crime.”16 Hence a distinction is made between trade combinations and other combinations, in virtue of which it is not a criminal conspiracy if in furtherance of a trade dispute a combination is made to do a particular thing (e.g. to break a contract), which would certainly not in general be a crime if done by a person acting alone, whilst a combination to do the same thing (viz. break a contract) in furtherance of some other object may be a criminal conspiracy. The effect, in short, of this enactment is that a combination among workmen to break a contract with their employer, e.g. to leave his service without due notice, with a view to compelling him to grant a rise in wages, is not a crime, whilst a combination by tenants to break a contract by refusing to pay rent due to their landlord, with a view to compelling him to lower their rents, is a crime.

Secondly. Something like a legal sanction is given to conduct which is popularly known as picketing in connection with a trade dispute, as long as such conduct does not partake of intimidation or violence.17

Thirdly. A trade union—which under the legislation of 1825 was more or less an unlawful society,18 on the simple ground that its object was the restraint of trade—is freed from this character of necessary illegality.19 Hence a trade union is completely protected as regards its funds, and can no longer be defrauded with impunity by its officials. Thus too trade unions, though not corporate bodies, enjoy the protection of the law. Violation of the rules of a trade union by one of its members, however, is not allowed to give rise to a right of action for breach of contract.

Fourthly. Certain kinds of intimidation likely to be used by trade unions, or by workmen on strike, in order to interfere with the free action either of other workmen or of employers, are made criminal—that is to say, are forbidden under severe penalties.20

The combination law of 1875 is, on the face of it, a compromise between the desire of collectivists to promote combined bargaining and the conviction of individualists that every man ought, as long as he does not distinctly invade the rights of his neighbours, to enjoy complete contractual freedom. But the compromise marks a distinct change in the spirit of English legislation, and, though it contains some severe provisions for the protection of individual freedom, is, as compared with the combination law of the past, highly favourable to trade combinations.

The combination law of 1875 is the direct antithesis to the combination law of 1800.21 The former favours as much as the latter condemns combinations among either workmen or employers. The law of 1875 treats a strike as a perfectly lawful proceeding, and gives to trade unions a recognised, though somewhat singular position; whilst the law of 1800 in effect treated a strike as a crime, and a trade union as little better than a permanent conspiracy.

The combination law of 1875 differs, again, in its whole spirit from the law of 1825. For the law of 1875 contemplates and facilitates combined bargaining on the part both of men and of masters; whilst the Benthamite legislation of 1825 was intended to establish free trade in labour, and allowed, or tolerated, trade combinations, only in so far as they were part of and conducive to such freedom of trade. The law of 1875 is primarily designed to extend, as regards bargaining between masters and workmen, the right of combination, and is only secondarily concerned with protecting the freedom of individuals in the sale or purchase of labour; whilst the law of 1825 was primarily concerned with protecting the contractual freedom of each individual, whether as a seller or purchaser of labour, and was only secondarily concerned with extending the right of combination, so far as seemed necessary for establishing genuine free trade in labour.

The combination law of 1875 has, indeed, been thought to go so far in the way of extending the right of association, that competent critics have doubted22 whether it sufficiently secures the contractual freedom either of an individual workman or of an individual master. This doubt has, it is true, been to a great extent removed by cases decided during recent years,23 which establish, first, that combinations having reference to a trade dispute, though not indictable as conspiracies, may nevertheless expose the persons who take part in them to civil liability for damages thereby done to individuals; and next, that trade unions can be made responsible for wrongs done by their agents. One thing is at any rate clear. The authors of the compromise of 1875, and the public opinion by which that compromise was sanctioned, were very far from accepting the Benthamite ideal of free trade in labour.

The story of the combination law from 1800 to the present day illustrates with such singular accuracy the relation between law and opinion, that it is well at this point to cast a glance back over this tangled story, which has necessarily been told bit by bit, and survey it as a whole.

The combination law of 1800 represents the panic-stricken but paternal toryism of that date.24

The legislation of 1824–1825, even in its singular fluctuation, corresponds with and is guided by the Benthamite ideal of free trade in labour.25

The compromise of 1875 represents in the main the combined influence of democracy and collectivism—an influence, however, which was still balanced or counteracted by ideas belonging to individualistic liberalism.26

The interpretation of that compromise by the Courts was necessitated by the ambiguity of the law, and represents the belief which now, as heretofore, has great weight with Englishmen, that individual liberty must be held sacred, and that this liberty is exposed to great peril by an unrestricted right of combination. If we ask what were the causes which after 1875 revived the sense of this peril, they may all be summed up in the existence, or rather the creation, of the one word, “boycott.” The term, which has obtained a world-wide acceptance, came into being during the autumn of 1880;27 it spread far and wide, because it supplied a new name for an old disease, which had reappeared under a new form. It bore witness to the pressing danger that freedom of combination might, if unrestrained, give a death-blow to liberty.

The present state of the law, it is sometimes said, is confused, but this very confusion, in so far as it really exists, corresponds with and illustrates a confused state of opinion. We all of us in England still fancy, at least, that we believe in the blessings of freedom, yet, to quote an expression which has become proverbial, “to-day we are all of us socialists.” The confusion reaches much deeper than a mere opposition between the beliefs of different classes. Let each man, according to the advice of the preachers, look within. He will find that inconsistent social theories are battling in his own mind for victory. Lord Bramwell, the most convinced of individualists, became before his death an impressive and interesting embodiment of the beliefs of a past age; yet Lord Bramwell himself writes to a friend, “I am something of a socialist.”

The combination law, from whatever point of view and at whatever date it be examined, affords the clearest confirmation of the doctrine that in modern England law is the reflection of public opinion.28

The Modern Arbitration Acts. These enactments begin with the Arbitration Act, 1867,29 and terminate for the moment with the Conciliation Act, 1896.30 Earlier enactments known as Arbitration Acts31 provided summary or expeditious modes for the settlement of definite disputes between a master and his workmen, similar in character to the differences connected with trade or commerce which are determined by the ordinary law courts. The modern Conciliation Acts, as represented by the statute of 1896, aim at a new object and rest upon new ideas. Their object is not merely the settlement of definite disputes which have arisen between employers and their workmen, but also the prevention of such disputes in the future, and they seek to achieve this end through the moral influence of the State brought into play by the action of the Government. The ideas on which these enactments are based obviously tend in the direction of collectivism. True it is that, as the law now32 stands, governmental intervention in labour disputes is restricted within narrow limits.33 But the possibility of such intervention is sufficient to bring the full force of public opinion—an opinion which is never impartial—to bear upon the relation in a given case between a master and his workmen; the sphere, moreover, of the State’s activity may any day receive extension. We have reached a merely transitory stage in the effort of the State to act as arbitrator. The attempt, if not given up, must be carried out to its logical conclusion, and assume the shape of that compulsory arbitration which is a mere euphemism for the regulation of labour by the State, acting probably through the Courts.34

Equalisation of Advantages

The extension given by collectivists to the idea of protection makes easy the transition from that idea to the different notion of equalisation of advantages. Of the members of every community the greater number cannot obtain the comforts or the enjoyments which fall to the lot of their richer and more fortunate neighbours. Against this evil of poverty the State ought, it is felt by collectivists, to protect the wage-earning class, and in order to give this protection must go a good way towards securing for every citizen something like the same advantages, in the form of education, or of physical well-being, as the rich can obtain by their own efforts. This extension of the idea and practice of protection by the State has not, it is true, in England led as yet to anything like that enforced equality popularly known as communism, but, during the latter part of the nineteenth century, it has produced much legislation tending towards that equalisation of advantages among all classes which, in practice, means the conferring of benefits upon the wage-earners at the expense of the whole body of the tax-payers.

This tendency is traceable in the development of the law with reference to elementary education, to an employer’s liability for injuries received by workmen in the course of their employment, and to municipal trading.35

As to Elementary Education. Up to 1832 the State recognised no national responsibility and incurred no expense for the elementary education of the people of England; nor did it impose upon parents any legal obligation to provide for the education of their children.36

From 1833 onwards, the State made grants, the earliest of which amounted to not quite £20,000, for the indirect promotion of the education of the English people, and thereby to a certain extent admitted its duty as a national educator, but the assumption of this duty was delayed by the distrust of State intervention which characterised the Benthamite era.37

In 1870 the education of the English poor became for the first time the direct concern of the nation, and the State attempted to enforce upon parents, though to a very limited extent, the obligation of providing their children with elementary knowledge, and in so far at the parents’ own expense, that they were compellable to pay school fees. In 1876 this duty of the parents38 received distinct legal recognition, and in 1880 the compulsory attendance of children at school was for the first time made universal.39

In 1891 parents of children compelled to attend school were freed from the duty of paying school fees, and elementary education became what is called free.40

This last change completely harmonises with the ideas of collectivism. It means, in the first place, that A, who educates his children at his own expense, or has no children to educate, is compelled to pay for the education of the children of B, who, though, it may be, having means to pay for it, prefers that the payment should come from the pockets of his neighbours. It tends, in the second place, as far as merely elementary education goes, to place the children of the rich and of the poor, of the provident and the improvident, on something like an equal footing. It aims, in short, at the equalisation of advantages. The establishment of free education is conclusive proof that, in one sphere of social life, the old arguments of individualism have lost their practical cogency. Here and there you may still hear it argued that a father is as much bound in duty to provide his own children at his own expense with necessary knowledge as with necessary food and clothing, whilst the duty of the tax-payers to pay for the education is no greater than the obligation to pay for the feeding of children whose parents are not paupers. But this line of reasoning meets with no response except, indeed, either from some rigid economist who adheres to doctrines which, whether true or false, are derided as obsolete shibboleths; or from philanthropists who, entertaining, whether consciously or not, ideas belonging to socialism, accept the premises pressed upon them by individualists, but draw the inference that the State is bound to give the children, for whose education it is responsible, the breakfasts or dinners which will enable them to profit by instruction. The State, moreover, which provides for the elementary education of the people, has now, in more directions than one, advanced far on the path towards the provision of teaching which can in no sense be called elementary.41 If a student once realises that the education of the English people was, during the earlier part of the nineteenth century, in no sense a national concern, he will see that our present system is a monument to the increasing predominance of collectivism. For elementary education is now controlled and guided by a central body directly representing the State; it is administered by representative local authorities, it is based on the compulsory attendance of children at school, it is supported partly by parliamentary grants and partly by local rates.42

As to Employer’s Liability. Before 1800 the Courts had established the principle, that an employer was liable to a third party for damage inflicted upon him through the negligence of the employer’s servants or workmen in the course of their work. The moral justification for this obligation has been sometimes questioned by moralists no less than by judges.

“The law of this country,” writes Paley,

goes great lengths in intending a kind of concurrence in the master [with the acts of his servant], so as to charge him with the consequences of his servant’s conduct. If an innkeeper’s servant rob his guests, the innkeeper must make restitution; if a farrier’s servant lame a horse, the farrier must answer for the damage; and still farther, if your coachman or carter drive over a passenger in the road, the passenger may recover from you a satisfaction for the hurt he suffers. But these determinations stand, I think, rather upon the authority of the law than any principle of natural justice.43

This doubt whether legal liability could justly co-exist with the absence of moral responsibility contributed to a singular result. The Courts, between 1830 and 1840, curtailed the extent of an employer’s liability by grafting upon it an anomalous limitation. An employer, they held, was not liable to pay compensation to one of his servants or workmen for damage suffered through the negligence of a fellow-servant or fellow-workman in the course of their common employment.44 This rule is known as the “doctrine of common employment.” It belonged to the era of individualism, and was supported by the economic theory, of dubious soundness, that when a person enters into any employment, e.g. as a railway porter, the risks naturally incident to his work are taken into account in the calculation of his wages.45 However this may be, the doctrine of common employment caused much apparent hardship. If a railway accident occurred through the negligence of the engine driver, every passenger damaged thereby could obtain compensation from the railway company, but a guard or a porter, since they were injured through the negligence of their fellow-servant, could obtain no compensation whatever. A rule accepted in Massachusetts, no less than in England, could not be attributed to anti-democratic sentiment, but it excited frequent protests from workmen. The introduction, however, of household suffrage46 did not lead to the immediate abolition of the doctrine of common employment.47 In 1880 the Employers’ Liability Act, 43 & 44 Vict. c. 42, greatly limited the operation of a rule which all wage-earners felt to be unjust, but did not do away with its existence.48 In 1894 a Bill passed through the House of Commons which did away altogether with the doctrine of common employment, but the House of Lords struck out a clause which prohibited a workman from contracting himself out of the Act, and the Bill was dropped by its supporters. Thus far every actual or proposed amendment of the law aimed mainly at placing a workman, when injured through the negligence of his fellows, in the same position as a stranger.

In 1897, however, legislation took a completely new turn. The Workmen’s Compensation Act of that year49 (60 & 61 Vict. c. 67) introduced into the law the new principle that an employer must, subject to certain limitations, insure his workmen against the risks of their employment. At the same time the right of a workman to bargain away his claim to compensation was in reality, though not in form, nullified, since any contract whereby he foregoes the right to compensation secured him by the Workmen’s Compensation Acts is effective only where a general scheme for compensation, agreed upon between the employer and the employed, secures to the workmen benefits at least as great as those which they would derive from the Compensation Acts; and this arrangement must be sanctioned by a State official.50

This legislation bears all the marked characteristics of collectivism. Workmen are protected against the risks of their employment, not by their own care or foresight, or by contracts made with their employers, but by a system of insurance imposed by law upon employers of labour. The contractual capacity both of workmen and of masters is cut down. Encouragement is given to collective bargaining. The law, lastly, secures for one class of the community an advantage, as regards insurance against accidents, which other classes can obtain only at their own expense, and, though it is true that the contract of employment is still entered into directly between masters and workmen, yet in the background stands the State, determining in one most important respect the terms of the labour contract. The rights of workmen in regard to compensation for accidents have become a matter not of contract, but of status.

As to Municipal Trading. At the beginning of the nineteenth century English municipal corporations51 took little part in trade; they did not, in general, engage in business which otherwise would have been carried on for profit by private persons or companies.52 In truth, the old corporations which were reformed by the Municipal Corporations Act, 1835,53 were not adapted for entering into trade. As we have seen,54 they were corrupt and inefficient, and shirked even the duties which generally belonged to civic authorities;55 they were the object of deep distrust;56 no one dreamed of increasing their sphere of action. It was not till municipal reform had worked its salutary effects that any popular feeling grew up in favour of the management of trades, which might concern the public interest, by municipal corporations. Nor was municipal trading during the Benthamite era in harmony with the liberalism of the day. A gradual change of public opinion may be dated from about the middle of the century. Since 1850 the extension of municipal trading has progressed with a rapidity which increased greatly as the nineteenth century drew towards its close; the market rights of private owners have been bought up by municipalities;57 markets so purchased have often turned out lucrative properties, and “we find that the more recent developments [of municipal trading] in connection with municipal markets include slaughter-houses, cold-air stores, ice manufactories, and the sale of surplus ice, and that the right to sell the ice to the public without restriction has been demanded”58 from Parliament. Municipal bathing establishments have become common, as well as the foundation of municipal water-works,59 and since the middle of the century the supply of gas, which up to that date had been wholly in the hands of companies, has in many cases passed under the management of local authorities. Tramways (1868–1869) were first constructed and owned, and since a later date (1882–1892) have been worked by municipalities, whilst since 1889 electrical works have been carried on by municipalities, and the fact is now clearly recognised that all or the greater number of tramways will ultimately become municipal property. Before 1890 local authorities had little concern with house building, and the Labouring Classes’ Lodging Houses Act, 1851,60 remained a dead letter. Under the Housing of the Working Classes Act, 1890, local authorities now possess large powers of buying up insanitary areas, of demolishing insanitary buildings, of letting out land to contractors under conditions as to the rebuilding of dwellings for the poor, and of selling to private persons the buildings thus erected. Municipalities have at the same time received powers to build additional houses on land not previously built upon, and to erect, furnish, and manage dwellings and lodging-houses. They have also entered into various trades. They have employed themselves, e.g. in turning dust into mortar, in working stone quarries, in building tram-cars, in the provision of buildings for entertainments and for music, in laying out race-courses, in the manufacture of electrical fittings, in the undertaking of telephone services, in the sale and distribution of milk, and the like. The desires, moreover, of municipalities have outstripped the powers hitherto conceded to them by Parliament. They desire to run omnibuses in connection with tramways; they wish to construct bazaars, aquaria, shops, and winter gardens; they wish to attract visitors to a district by advertising its merits. No one, in short, can seriously question that, for good or bad, the existence of municipal trading is one of the salient facts of the day, and that it has since the middle of the nineteenth century acquired a new character. The trades, if so they are to be called, which were first undertaken by local authorities were closely connected with the functions of municipal government. At the present day municipal trading is becoming an active competition for business between municipalities supported by the rates, and private traders who can rely only on their own resources. The aim, moreover, of municipal trading is, on the face of it, to use the wealth of the ratepayers in a way which may give to all the inhabitants of a particular locality benefits, e.g. in the way of cheap locomotion, which they could not obtain for themselves. Here we have, in fact, in the most distinct form the effort to equalise advantages. The present state of things, indeed, can in no way be more vividly described than by using the words of an author, who is certainly no opponent of socialism, and who, if he expresses himself with satirical exaggeration, means honestly to depict matters passing before our eyes:

The practical man, oblivious or contemptuous of any theory of the social organism or general principles of social organisation, has been forced, by the necessities of the time, into an ever-deepening collectivist channel. Socialism, of course, he still rejects and despises. The individualist town councillor will walk along the municipal pavement, lit by municipal gas, and cleansed by municipal brooms with municipal water, and seeing, by the municipal clock in the municipal market, that he is too early to meet his children coming from the municipal school, hard by the county lunatic asylum and municipal hospital, will use the national telegraph system to tell them not to walk through the municipal park, but to come by the municipal tramway, to meet him in the municipal reading-room, by the municipal art gallery, museum, and library, where he intends to consult some of the national publications in order to prepare his next speech in the municipal town hall, in favour of the nationalisation of canals and the increase of Government control over the railway system. “Socialism, Sir,” he will say, “don’t waste the time of a practical man by your fantastic absurdities. Self-help, Sir, individual self-help, that’s what’s made our city what it is.”61

But here we pass to the second subject of this lecture.

[1. ]A thinker may without inconsistency repudiate the faith of individualists in the unlimited benefits to be conferred on mankind by the extension of individual freedom, and yet rate very low the advantages which any community can derive from the action of the State. A doctor may have little trust in the recuperative power of nature as a cure for a serious malady, and yet may warn the sufferer that popular nostrums will hasten instead of arresting the progress of the disease. But statesmen or reformers can never permanently hold this attitude of balanced and unsanguine scepticism.

[2. ]The State often falls short, in the eyes of an individualist, of affording to a citizen all the protection which is justly due to him. If X breaks a contract made with A, or libels A, the latter is clearly entitled, assuming that he himself has done nothing unlawful, to compensation, as complete as possible, for the injury he has suffered. He ought to be paid damages, first, for the loss arising from, e.g. the breach of contract; next, for the costs he has incurred in bringing an action against X; and, lastly, for the loss of time and trouble involved in bringing the action. Under English law he may possibly recover, though he rarely does, complete compensation for the damage arising from the breach of contract; he never, or hardly ever, recovers the whole of the costs actually incurred in bringing the action; he receives no compensation for the loss of time and the trouble incurred in the assertion of his rights. The antiquated, though not even yet quite obsolete idea, that the law ought to discourage litigation, means in reality that a law-abiding citizen who has suffered an injury from the inability or neglect of the State to defend his rights, is rightly fined for trying to obtain compensation for the wrong he ought never to have suffered.

[3. ]See the Truck Acts, 1831, 1 & 2 Will. IV. c. 37; 1887, 50 & 51 Vict. c. 46; 1896, 59 & 60 Vict. c. 44; and Stephen, Comm. ii. (14th ed.), p. 281.

[4. ]See the Workmen’s Compensation Acts, 1897, 60 & 61 Vict. c. 37; 1900, 63 & 64 Vict. c. 22.

[5. ]See Acts, 1875, 38 & 39 Vict. c. 92; 1876, 39 & 40 Vict. c. 74; 1883, 46 & 47 Vict. c. 61; 1887, 50 & 51 Vict. c. 26; 1890, 53 & 54 Vict. c. 57; and 1895, 58 & 59 Vict. c. 27.

[6. ]See the Factory and Workshop Acts, 1878 to 1895, and especially 1901, 1 Edw. VII. c. 22.

[7. ]Note the provisions for the protection of sailors from imposition (Merchant Shipping Act, 1894, 57 & 58 Vict. c. 60, ss. 212–219). Note also the curious extension given to the doctrine long ago established by the Courts of Equity, that where X induces A to enter into a contract through the use of undue influence, the contract is voidable at the instance of A. This doctrine was reasonable enough where X made an unconscientious use of authority or power over A, arising from the special relation between X and A, as, for instance, where X is A’s parent, or stands towards Ain loco parentis, or is A’s spiritual adviser or doctor; but the doctrine has in one set of cases, at any rate, been extended far beyond this, and has been used as a means for enabling any person who expects, whether strictly as heir or merely on account of a relation’s goodwill, to succeed to property, and being in want of money, makes a “catching bargain,” as it is called, with regard to such expected property, to repudiate the contract, with the result that in some instances a man well past twenty-one is given the protection against the results of a hard bargain which the common law gives only to infants—that is, to persons below twenty-one (see Aylesford v. Morris (1873), L.R. 8 Ch. 484). There is thus constituted a new class of protected persons. It is not an unreasonable conjecture that the extension given to the idea of undue influence was originally suggested by the usury laws, and, after the repeal of the usury laws, was supported by the Courts, partly with a view to diminish the effect of the repeal.

[8. ]23 & 24 Vict. c. 84.

[9. ]62 & 63 Vict. c. 51.

[10. ]See the Agricultural Holdings Acts, 1875 to 1895; the Workmen’s Compensation Act, 1897, 60 & 61 Vict. c. 37.

[11. ]38 & 39 Vict. c. 86.

[12. ]34 & 35 Vict. c. 31.

[13. ]39 & 40 Vict. c. 22.

[14. ]See pp. 136–143, ante.

[15. ]It may be “actionable” though not indictable. (But see now the Trade Disputes Act, 1906, 6 Edw. VII. c. 47.) [Editor’s note: The previous sentence was added in the second edition.]

[16. ]Conspiracy, etc. Act, 1875 (38 & 39 Vict. c. 86), s. 3, 1st par.

[17. ]38 & 39 Vict. c. 86, s. 7.

[18. ]See p. 139, ante.

[19. ]34 & 35 Vict. c. 31. A trade union may, it is submitted, now be described as a semi-legal association. It is not of necessity, or indeed in most cases a strictly unlawful society, since the only objection to its lawful character may be that its object is the restraint of trade, and this objection is, under the Conspiracy, etc. Act, 1875, no longer tenable; but a trade union may obviously pursue some other objects, e.g. the interference with the right of an individual workman to take service on such terms as he sees fit; and it is possible, at any rate, that the pursuance of such an object may make a trade union an unlawful society.

[20. ]It is “enacted in general terms that every person who, with a view to compel any other person to abstain from doing, or to do any act which such person has a legal right to do or abstain from doing, wrongfully and without legal authority, uses violence to or intimidates such person, follows him about, hides his tools, watches or besets his house, or follows him through the streets in a disorderly way, shall be liable to three months’ hard labour.”—Stephen, Hist. iii. p. 226, and see 38 & 39 Vict. c. 86, s. 7. Certain specific breaches of contract which are likely to cause injury to persons or property are in like manner made criminal.—Ibid. ss. 4, 5.

[21. ]I.e. the Combination Act, 1800, and the law of conspiracy as then interpreted. See pp. 68–74, ante.

[22. ]Conf. Memorandum by Sir F. Pollock on Law of Trade Combinations, Fifth and Final Report of Labour Commission, 1894 [c. 7421], pp. 157–159.

[23. ]Quinn v. Leathem [1901], A. C. 495; Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1901], A. C. 426; Giblan v. National Amalgamated Labourers’ Union [1903], 2 K. B. (C. A.) 60. Compare Allen v. Flood [1898], A. C. 1, and Mogul Case [1892], A. C. 25.

[24. ]See pp. 68–74, ante.

[25. ]See pp. 136–143, ante.

[26. ]See pp. 189–192, ante.

[27. ]See Murray’s Dictionary, “Boycott.”

[28. ]See Appendix, Note 1, Right of Association.

[29. ]30 & 31 Vict. c. 105.

[30. ]59 & 60 Vict. c. 30. The Acts repealed by the latter Act are the Workman’s Arbitration Act, 1824, 5 Geo. IV. c. 96; the Councils Conciliation Act, 1867, 30 & 31 Vict. c. 105; the Arbitration (Masters and Workmen) Act, 1872, 35 & 36 Vict. c. 46.

[31. ]See Howell, Labour Legislation, etc. p. 436. “In all essential respects the questions adjudicated upon by justices of the peace relating to labour disputes were similar to those pertaining to trading and commercial disputes, though the conditions of reference, pleading, and adjudication were decidedly different. In the case of labour the dispute to be dealt with had reference to work actually done, and as to wages due therefor; or to lengths of work, in the case of silk, cotton, woollen, or other textiles; or to deductions for alleged bad work. Various other matters would often arise as to time of finish of work, delivery, and as to frame rents and other charges. But all these questions related to work done, not done, damaged, not delivered, and otherwise, at the date of complaint and arbitration. Future rates of wages—amounts to be paid—had no lot or part in legislation except possibly as to finishing a certain article in hand. It was not arbitration or labour questions, as we now understand the subject, but adjudication upon disputed points there and then at issue. How, indeed, could it be otherwise? Wages were arbitrarily fixed in very many industries.”—Howell, p. 436.

[32. ]1905. [Editor’s note: This footnote was added in the second edition.]

[33. ]It must take the form either of mere inquiry into the circumstances of a particular dispute, or of arbitration on the application of both the parties to such dispute.

[34. ]Compulsory arbitration must be carried through either by the Courts or by the Executive, but it may be doubted whether either of these bodies is fit for the work.

1. The judges are not by nature qualified for real arbitration, as regards matters of which they can have no special knowledge; and the Courts possess no proper machinery for enforcing their awards against the parties to a trade dispute. To put the judges, it may be added, to do work which is not judicial, is certain to deprive them of that repute for perfect impartiality which is in England their special glory.

2. The Executive is a more appropriate body than the Courts for the enforcement of an award, but a Parliamentary Cabinet does not and cannot possess that impartiality, which is the primary requisite for the performance of his duties by an arbitrator. A ministry called upon to adjudicate upon a dispute between an employer and his workmen will inevitably, in giving judgment, think a good deal of the effect which the judgment may produce at the next general election.

[35. ]No attempt is here made to give, even in outline, a history or a full statement of the law on these topics; they are dealt with only in so far as they illustrate the tendency towards the equalisation of advantages.

[36. ]See Balfour, Educational Systems of Great Britain and Ireland (2nd ed.).

The statements made here as to education do not refer to Scotland or Ireland.

In 1807 Whitbread introduced a Bill, which passed the House of Commons, for the foundation of a school in every parish, with power to employ local rates.

In 1816 Brougham obtained a Select Committee to Inquire into the Education of the Lower Orders. In 1820 he brought in an Education Bill which did not pass into law. In 1811 was founded the National Society for Promoting the Education of the Poor in the Principles of the Established Church, and in 1808 the British and Foreign School Society, which in effect represented Dissenters. These facts, as also the foundation of Sunday Schools, show the gradual growth, since at any rate the beginning of the nineteenth century, of the conviction that it was the duty of the State or the public to provide education for the poor.

The mere fact that a country maintains a national system of education does not of itself necessarily prove the prevalence of socialistic ideas, as witness the history of popular education in Scotland and in New England. But it is true that the gradual development of the conviction that the nation must provide for the education of the people, and make such provision at the expense of the nation, may be, and certainly has been in England, connected with the development of collectivism.

[37. ]Even as late as 1859, John Mill deprecated the direct assumption by the State of educational functions, and contended that it ought to do no more than compel parents to provide for the elementary education of their children.—Mill, On Liberty, pp. 188–194.

[38. ]“It shall be the duty of the parent of every child to cause such child to receive efficient elementary instruction in reading, writing, and arithmetic, and if such parent fail to perform such duty, he shall be liable to such orders and penalties as are provided by the Act.”—Elementary Education Act, 1876, 39 & 40 Vict. c. 79, s. 4. See Balfour, Educational Systems, 2nd ed. p. 24.

[39. ]The Elementary Education Act, 1880, 43 & 44 Vict. c. 23.

[40. ]54 & 55 Vict. c. 56, s. 1.

[41. ]See Balfour, pp. xxi.–xxiii.; Stephen, Comm. iii. (14th ed.) 132, and compare generally as to the present state of the law relating to education, ibid. 127–144. The chapter on this subject has had the advantage of revision by F. W. Hirst.

[42. ]I have no wish to overlook the extent to which voluntary contributions, made by the members of different religious bodies, supply in part the means of national education, but it cannot be disputed that the education of the people is now in the main paid for by the nation.

The cost of elementary education to the Imperial Exchequer, as provided for in the Estimates, is for the financial year 1904–5, £10,998,000. This is made up as follows:

Grants£10,688,400 }= Total, £10,998,000.
Administration and inspection309,600 }

The corresponding figures for the financial year 1903–4 were:

Grants£9,798,512 }= Total, £10,114,126.
Administration and inspection315,614 }

In addition to this the cost of training of teachers and pupil teacher instruction, which is now a part of education other than elementary, is estimated at—

for1904–5£385,795
1903–4£335,215.

To the amounts here mentioned must, I conceive, be added the sums raised from the local rates, which in 1901 amounted in round numbers to £6,000,000. The sums paid in one shape or another by the nation to maintain the elementary education of the people of England cannot, therefore, apparently fall much short, if at all, of £18,000,000.

Legislation with regard to elementary education illustrates the influence exerted by the cross-current of ecclesiastical opinion.

[43. ]Paley, Moral Philosophy, book iii. part i. ch. xi. “Contracts of Labour” (12th ed. 1799), vol. i. p. 168.

The true basis of the liability of an employer for damage caused to others through the negligence of his servant or workman, is that every man must so conduct his affairs as not to injure third parties either by his own negligence or that of the agents whom he employs.

[44. ]See Priestley v. Fowler (1837), 3 M. & W. 1, and the American case, Farwell v. Boston Railroad Corporation (1842), Bigelow, Leading Cases, 688.

[45. ]This economic view was supplemented by the consideration that a servant or workman may be partially responsible for an accident from which he suffers, even though he may not contribute directly to its occurrence. Thus, if the workmen in a powder magazine habitually and contrary to orders smoke there, and N, who is one of their number, shares or tolerates this habit, he may well be responsible for the explosion of which he is the victim, even though it is not caused by a spark from his own pipe.

[46. ]1867–68.

[47. ]In 1868, indeed, the House of Lords forced the doctrine upon the reluctant Courts of Scotland, Wilson v. Merry, L.R., 1 Sc. Ap. 326.

[48. ]It still in some instances remains in force. It applies to actions under the Employers’ Liability Act, 1880, 43 & 44 Vict. c. 42, which do not fall within sec. 1. It applies also to actions by domestic servants, who do not fall within this Act. See Macdonell, Master and Servant, ch. xv. The fact that after the Compensation Acts have placed the rights of workmen and the liability of employers on a new basis, the Employers’ Liability Act, 1880, which belongs to an older and abandoned view of the relation between employers and workmen, should not have been repealed, and that the doctrine of common employment should not have been abolished, is characteristic of the fragmentary and unsystematic manner in which the law is amended in England.

[49. ]Extended three years later so as to apply to agricultural labourers. Workmen’s Compensation Act, 1900, 63 & 64 Vict. c. 22. The principle of the Compensation Acts is not as yet [1905] extended to domestic servants. It may be conjectured with some confidence that this extension will sooner or later take place.

[50. ]See the Workmen’s Compensation Act, 1897 (60 & 61 Vict. c. 37), s. 3.

[51. ]See Leonard Darwin, Municipal Trade, pp. 1–27; Redlich and Hirst, Local Government in England, i. pp. 111–133.

[52. ]This statement may be disputed, but is (it is submitted) in substance true. Municipal corporations, or other local authorities created for a special purpose, did in some instances, long before the beginning of the nineteenth century, carry on concerns which might be called trades (e.g. the supply of water for a particular locality); but these concerns were closely connected with municipal administration, and could not fairly be described as municipal trading.

[53. ]5 & 6 Will. IV. c. 76.

[54. ]See p. 85, ante.

[55. ]In Bath “every quarter of the town was under the care of a separate board, except one quarter which was totally unprotected.”—Redlich and Hirst, Local Government, i. p. 120.

[56. ]The belief was widespread that a town without a charter was a town without a shackle.

“Manchester,” observes Aikin (in 1795), “remains an open town; destitute (probably to its advantage) of a corporation, and unrepresented in Parliament.” See Leslie Stephen, English Utilitarians, i. pp. 99, 100.

[57. ]Darwin, pp. 3, 4.

[58. ]Ibid.

[59. ]The extension of municipal business has been constantly accompanied and accomplished by the compulsory purchase on the part of local authorities, of land, or other property, belonging to private individuals. It is worth notice that compulsory purchase might more accurately be termed compulsory sale, and always involves the possibility, or probability, that a man may be compelled to sell property either which he does not wish to sell at all, or which he does not wish to sell on the terms that he is compelled to accept. Such compulsory sale is often justified by considerations of public interest, but it always means a curtailment of the seller’s individual liberty.

[60. ]14 & 15 Vict. c. 34.

[61. ]See Sidney Webb, Socialism in England (1890), pp. 116, 117.