Governments, Labour, and the Law in Mid-Victorian Britian: The Trade Legislation of the 1870s.

Vol. 15 No.1 (January 2005), pp.12-17

GOVERNMENTS, LABOUR, AND THE LAW IN MID-VICTORIAN BRITAIN: THE TRADE UNION LEGISLATION OF THE 1870s, by Mark Curthoys. Oxford: Oxford University Press, 2004. 304pp. Hardback. £55.00 / $99.00. ISBN: 0-19-926889-4.

Reviewed by Philip Benesch, Department of Political Science, West Chester University, Pennsylvania. Email: pbenesch@wcupa.edu.

This study by Mark Curthoys, a historian and biographer, focuses on the responses by British officials to the growing visibility and assertiveness of a mass organized labor movement in the middle decades of the nineteenth-century. In particular, it examines how both statute and common law pertaining to working class combination was interpreted and reshaped by judges, civil servants, government ministers, and members of Parliament in the period from the repeal of the outright ban on unions in 1824-25 to the full decriminalization of union activity in Britain in 1875. To achieve this end, Curthoys departs from the various mainstream narratives of nineteenth-century British labor history, narratives (such as those of Hobsbawm, Thompson, Pelling, and the Webbs) that typically emphasize the social, economic, and labor-organizational factors influencing the development of working-class movements. Instead, Curthoys’ work concentrates on the view “from above,” the deliberations of the “official mind,” and has as its openly declared purpose “reinstating the role of government into an established narrative” (p.14).

Curthoys is not blind to class interest; he recognizes clearly the desire of many large employers to use the law as a tool to inhibit and weaken, or to suppress, unions. He observes that many justices of the peace, the part-time magistrates recruited from the class of “masters” and gentry in each locality, were prone to interpret the law in a manner aligned with employer interests, rather than those of employees. Nonetheless, beyond the local level, Curthoys shows the national political-administrative elite, including the upper reaches of the judiciary, to have been motivated less by self-conscious class interest than by what they understood (imperfectly) to be principles of fairness, freedom, and the rule of law.

Official deliberations on labor law were framed by the governing elite’s ideological commitment to open market economics. It is here that Curthoys’ work yields impressive insights. His diligent scholarship on official archives, especially on the papers of the Home Office and Home Office Counsel, the Office of the Parliamentary Counsel, and the reports and proceedings of the Royal Commissions that examined labor questions in the Mid-Victorian period, reveals the process through which elite understanding of open market principles was clarified and revised in response to problems with the post-1825 legal structure regulating unions.

In the early 1820s, elite opinion noted that many workers believed the anti-combination statutes perpetuated their [*13] poverty by denying them the means to resist exploitation. Some advocates of laissez-faire urged repeal of those statutes. They contended that, when regulated mainly by common law, union activity would continue to fail as a consequence of the easy replacement of strikers by the unemployed. This experience would educate workers to see that their only route out of poverty was through the reform of “their own sensuous natures by prudence and delay in marriages to reduce the excess population” (p.20). For most of the mid-Victorian period, elite opinion was impressed by the “wage fund” theory – in effect, the idea that wages constituted a fixed proportion of the national product and therefore that if workers united in efforts to raise their wages they would either price themselves out of a job or so subvert the profitability of their employers as to bring the economy crashing down around them. This alleged natural law of political economy was enlisted in the campaign waged by free-market advocates against all forms of anti-competitive protectionism. Yet, as empirical evidence grew, elite belief in the wage fund theory was undermined. It was observed first, that competition between individual workers depressed wages towards mere subsistence levels, while workers in combination often could achieve substantial pay increases without ruining their employers, and second, that workers learned from strikes of the need for continuing and improved union organization, while union membership itself helped educate and morally elevate the workers. In 1869 John Stuart Mill joined the chorus of wage fund critics, recanting the view he had advanced two decades earlier in his “Principles of Political Economy.” (Curiously, Curthoys does not mention Marx’s 1865 response to adherents of the wage fund theory – usually reprinted as “Value, Price, and Profit” – which influenced British trade unionists and allied radicals, and almost certainly echoed in elite debates on British labor law in the late 1860s.) By the 1870s “The distinction between protection for labour enforced by law, and that which was carried out by the voluntary will of individuals choosing to act collectively, was crucial to refuting those . . . who attacked unionism as a form of protectionism. Proponents of unrestricted legalization insisted that trade unions and strikes were entirely compatible with the laissez-faire state, and were indeed a logical consequence of it” (p.238). As Curthoys shows, acceptance by mainstream elite opinion of the compatibility of unions with open market economics set the scene for the reform of three key areas of labor law. These concerned the legal status of unions, the penal provisions in post-1825 labor statutes, and the powerfully oppressive threat posed by the ill-defined common law of conspiracy.

In the mid-Victorian era unions possessed an anomalous legal status. They were not entitled to an independent legal personality, as were incorporated joint-stock companies and the voluntary welfare organizations known as friendly societies. Hence, as a collective entity, rather than as numerous individuals, they were able neither to use the law to enforce their rules against non-compliant members nor to sue for the recovery of funds misappropriated by fraudulent union officials. Sympathetic members of the elite counseled against incorporation under commercial rules as they foresaw that this would leave [*14] unions liable to suits for damages by employers and by disgruntled members. The pursuit of friendly society status was problematic due to the dual role of unions as both welfare-benefit societies and trade-restraining organizations. Even after the Friendly Societies Act of 1855 expanded the grounds for registration, most unions failed to qualify because their primary objective was to limit competition among workers. Those hostile to unions hoped that they would be forced to choose between jettisoning their “trade” related activities so as to qualify for friendly society status, or to risk the insecurity of their growing benefit funds—a number of anti-unionist commentators observed that these benefit funds fortified union discipline, facilitating the implicit coercion of dissenting members by a “tyrannical” union majority—an expelled or lapsed member would likely loose all entitlement to the benefits. The perils of the legal limbo in which unions found themselves was made all too apparent in cases appealed to the Queen’s Bench in the late-1860s. Drawing on the precedent it had set almost twelve years earlier in HILTON v. ECKERSLEY, the Court of Queen’s Bench upheld inferior court rulings in HORNBY v. CLOSE (1867) and FARRER v. CLOSE (1869) that because a union qua union acted to restrain competition, it was not entitled to the simple legal remedies available to friendly societies for recovery of stolen funds. Sensitive to electoral considerations (the franchise had been extended to part of the working class in 1867), Parliament moved rapidly to pass first a temporary law protecting union funds, and then the Trade Union Act of 1871, which gave registered unions corporate protection of their funds and property and a legal status similar in many respects to that enjoyed by joint-stock companies.

The very Act which decriminalized membership of a union, the Combination Laws Repeal Act of 1825, extended the range of criminal offences the elite feared would be associated with union activities: “Not only were acts of violence to person or property, threats, and intimidation subject to special penalties . . . but so too were the vaguer offences of ‘molestation and obstruction’” (p.19), these latter two offences having been designed to constrain picketing. Even before repeal of the anti-combination laws, Parliament passed the Master and Servant Act of 1823, which empowered courts to impose an array of penalties, including imprisonment, on workers who broke their contracts of employment. Unionists recognized these provisions as a species of class legislation, designed to criminalize the pursuit of working-class interests but inapplicable to the capitalists. During the early and mid-1860s, judicial interpretation extended the reach of these punitive provisions, imprisoning union officials who led strikes or issued verbal ultimata challenging an employer’s hiring practices or use of non-union labor. Even after a revised Master and Servant Act was passed in 1867, supposedly limiting imprisonment to “aggravated” breaches of contract (i.e., those breaches of contract likely to result in injury to persons or property), it was quite clear that only workers were subject to its provisions, despite the class-neutral language of the Act. Further, in practice, imprisonment even for non-aggravated breaches of contract continued, when strikers failed to comply with [*15] court orders for specific performance or for payment of monetary damages and fines.

Curthoys notes that in sustaining incarceration for these offences, labor law within Britain lagged behind the codified law of British ruled India. At the same time, the conscience of the liberal elite was troubled both by the parallel between specific performance orders and slavery, and by the contrast between the reforms ending custodial sentences for debtors and the continued practice of imprisoning unionists unable to pay fines or damages imposed under the Master and Servant Act. While the Criminal Law Amendment Act of 1871 (a companion piece to the Trade Union Act passed earlier that year) revised the 1825 Act by tightening the definition of “molestation and obstruction” and “threats,” it further encumbered picketing by introducing the vague offense of “watching and besetting.” Full repeal of statutory provisions and allied common law criminalizing specifically union activity awaited legislation in 1875.

Prior to 1875, union activity was further constrained by the revival of the common law of conspiracy. Curthoys observes that while jurists “were unsure precisely at what point a combination became a conspiracy . . . there was no doubt that there were instances where an act, if not criminal when done by a single person, became indictable ‘when effected by several with a joint design’” (p.19). The vagueness of conspiracy law afforded broad scope to judicial and prosecutorial innovation and made the common law a very useful tool to employers in confrontations with unions. Both liberal jurists and organized labor regarded the common law of conspiracy as a potentially expansive threat to the freedom of association and urged its statutory limitation. In response to these concerns the Liberal government intended that the 1871 Criminal Law Amendment Act (CLAA) would protect strikers from common law prosecutions provided their activity was non-violent. Yet much continued to hinge on how judges interpreted the statute.

In the 1873 trial of leaders of the London gas stokers’ strike, the judge allowed an indictment for conspiring to commit an offense under the Master and Servant Act. This coupling of a conspiracy charge with a statutory offense resulted in the defendants being sentenced to terms of imprisonment four times longer than the maximum period of incarceration prescribed for aggravated breaches of contract in the 1867 Act. In the face of widespread working class disgust at the judge’s handling of the case, the government rapidly arranged to remit the sentences. Curthoys notes that in the fall of 1873, Robert Lowe, the new Home Secretary, found the law of conspiracy objectionable on two grounds: “[It] could transform a minor statutory offence punishable by summary jurisdiction into a misdemeanor, heard before higher tribunal with power to inflict heavier penalties. It was even more objectionable that conspiracy could transform an action which was not an offence at all when committed by an individual into a misdemeanor when agreed to (without even being actually committed) by more than one person” (p.194).

However, new legislation was delayed for two years, in part because officials disagreed about the extent of legal [*16] reform needed (some pressed for complete codification of conspiracy law, others merely for the circumscription of its application to labor disputes) and in part because the general election of 1874 resulted in a change of government. The new Conservative government promptly appointed a Royal Commission to review the labor laws, chaired by the Lord Chief Justice, Sir Alexander Cockburn (best known in America as an originator of the insanity defense and the author of the HICKLIN test for obscenity). While the Cockburn Commission was generally inclined to conserve rather than reform the labor laws, it urged new legislation to immunize non-violent union activity from conspiracy prosecutions. In two enactments in 1875, Parliament went beyond the recommendations of the Cockburn Commission, with the Employers and Workmen Act eliminating all statutory offences for non-violent union activity and the Conspiracy and Protection of Property Act curtailing the common law in labor disputes. As a result, labor law cases were to be heard by civil rather than criminal courts.

Two final aspects of Curthoys’ analysis of these developments might be mentioned. First, the flurry of labor legislation in the period from 1867 to 1875 was not unconnected with the 1867 extension of voting rights. Pre-1867 resistance both to franchise and to labor law reform resulted from elite fear of majority tyranny, a fear that was fed by each report of coercive strike and picketing action. Curthoys observes, “The claims of those unionists to seek only equality before the law, and to respect contracts . . . strengthened the mid-century Liberal belief that a democratic electorate would uphold the rule of law” (p.245). Only when the elite was reassured that the working class would abjure revolution if not denied legal rights enjoyed by other classes, was the stage set for union legalization and the emergence of democratic citizenship. By the 1870s “[t]he argument for coercing labour into conformity with the system of free trade was . . . turned on its head” (p.236). Second, while intellectuals and legal practitioners made major contributions to the process by which elite understanding of the relationship between labor unions and open market principles was clarified and revised, Curthoys notes the pivotal role played by lawyer-civil servants, in particular Henry Thring and Godfrey Lushington, successive Home Office Counsel: “Permanent officials were the conduit through which new theoretical approaches initially flowed into policy-making . . . The approach suggested by Thring and carried forward by Lushington detached economic considerations from the resolution of the contested legal issues” (p.240). The continuity of these officials between Liberal and Conservative ministries facilitated consistent advice and reduced policy oscillations. Curthoys emphasizes that while Cross, the Conservative Home Secretary, is often given credit for the 1875 legislation, the statutes finally enacted resembled bills drafted by his Liberal predecessor, Lowe, shortly before the 1874 general election.

This book is a published version of Curthoys’ doctoral thesis. Curthoys has written a very solid historical monograph, replete with archival references. However, in order to serve [*17] the purpose of an academic reference, a book needs to couple scholarly authority with accessibility. Curthoys’ focus on detail, especially on the contributions of the many individuals whose names cascade across the pages—a dramatis personae or a biographical appendix would have been helpful—tends to impede access to his broader narrative. Three additional presentational criticisms might be offered. There is considerable overlap in the foci of the middle chapters, which seem to lack clear chronological or thematic identities. Curthoys insufficiently connects his study of Mid-Victorian labor law to the longer term trajectory of confrontations between the courts and the British labor movement—from the “Tolpuddle Martyrs” to the TAFF VALE and OSBORNE cases and beyond—yet it is this larger historical context that provides the full significance and interest of Curthoys’ subject. Finally, more might have been made of comparisons between the reform of British labor law and contemporaneous international developments in state-union interaction, especially those taking shape on the European continent, and in the several Anglophone countries that drew from the common law and political culture of Britain. The excellence of Curthoys’ research deserves a wider readership than is likely for this volume. To make his book more accessible to a broad array of political scientists, legal scholars, and labor historians would require little more than minor organizational and presentational revisions.

REFERENCES:

Hobsbaum, Eric. 1964. LABOURING MEN: STUDIES IN THE HISTORY OF LABOUR. London: Weidenfeld & Nicholson.

Pelling, Henry. 1970. A HISTORY OF BRITISH TRADE UNIONISM. London: Penguin.

Pelling, Henry. 1979. POPULAR POLITICS & SOCIETY IN LATE VICTORIAN BRITAIN (2^nd ed.). London: Macmillan.

Thompson, E.P. 1966. MAKING OF THE ENGLISH WORKING CLASS. New York: Vintage Press.

Webb, Sidney, and Beatrice Webb. 1920/1976. THE HISTORY OF TRADE UNIONISM. New York: AMS Press.

CASE REFERENCES:

FARRER v. CLOSE, 4 L.R.-Q.B. 602 (1869).

HILTON v. ECKERSLEY, 119 Eng. Rep. 781 (Q.B. 1855).

HORNBY v. CLOSE, 2 Q.B. 153 (1867).

OSBORNE v. AMALGAMATED SOC'Y OF RY. SERVANTS. 77 L.J.R. 759 (Ch. Div'l Ct. 1908).

TAFF VALE RY. CO. v. AMALGAMATED SOC'Y OF RY. SERVANTS, 1 Q.B. 170 (1901)

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