APPENDIX

NOTE I

THE RIGHT OF ASSOCIATION

[See pp. 95-102, 152-157, 190-200, 266-272 ante;

Pic, Traité Élémentaire de Législation Industrielle, Les Lois Ouvrières (2nd ed.);

Hauriou, Précis de Droit Administratif ;

Trouillot and Chapsal, Du Contrat d'Association ;

Loi 14-17, juin 1791 (Loi Chapelier) ;

Code Pénal, arts. 414-416; Loi 25 mai 1864; Loi 21 mars 1884; Loi 1er juillet 1901.]

(A) The problem raised in every civilised country by the right of association.

Of the nature of the right of association and its peculiarities enough has been already said (pp. 152-157 ante).

The point to note is that at the present day its exercise raises difficulties in every civilised country. In England, as elsewhere, trade unions and strikes, or federations of employers and lock-outs; in Ireland, the boycotting by leagues and societies of any landlord, tenant, trader, or workman, bold enough to disobey their behests or break their laws; in the United States, the efforts of mercantile Trusts to create for themselves huge monopolies; in France, the real or alleged necessity of stringent legislation in order to keep religious communities (congrégations religieuses) under the control of the State-in almost every country, in short, some forms of association force upon public attention the practical difficulty of so regulating the right of association that its exercise may neither trench upon each citizen's individual freedom nor shake the supreme authority of the State. The problem to be solved, either as a matter of 2 H

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theory or as a matter of practical necessity, is at bottom always and everywhere the same. How can the right of combined action be curtailed without depriving individual liberty of half its value; how can it be left unrestricted without destroying either the liberty of individual citizens, or the power of the Government ? To see that this problem at the present day presents itself everywhere, and has nowhere received a quite satisfactory solution, is of importance. The fact suggests at least two conclusions: The one is, that the difficulty felt in England of dealing with our combination law arises, to a great extent, neither from the greediness of employers nor from the unreasonableness of workmen, but from the nature of things; the other is, that the most which can be achieved by way of bringing into harmony two essentially conflicting rights, namely, the right to individual freedom and the right of association, is to effect a rough compromise between them. Such a practical solution of a theoretically insolvable problem is sometimes possible. That this is so is proved by our existing law of libel. It is a rough compromise between the right of A to say or write what he chooses, and the right of X not to be injured in property or character by X's free utterance of his opinions. The compromise is successful; it substantially allows freedom of discussion, and at the same time protects Englishmen against defamation.

(B) Comparison between the development of the combination law in France and in England during the nineteenth century.

The expression "combination law," though peculiar to the law of England, may conveniently be used as describing a particular part of French no less than of English law. It means the body of legal rules or principles which regulate the right of workmen, on the one side, to combine among themselves for the purpose of determining by agreement the terms on which, and especially the wages at which, they will work, or, in other words, sell their labour; and the right of masters, on the other side, to combine among themselves for the purpose of determining by agreement the terms on which, and especially the wages at which, they will engage workmen, or, in other words, purchase labour.

The development of the combination law in France and in England has been, during the last century, marked by curious similarities and differences. This will be seen to be so if we take the law of France and compare it with the law of England at different parts of the nineteenth century.

As to Similarities.

I. The combination law of France, no less than that of England, passed during the last century through three stages; these three stages of development in each country roughly correspond in character and in sequence, though not in date.

First Stage-1800-1864.-During this period trade combinations, whether temporary or permanent, either of men or of masters, were under the law of France unlawful, and the persons taking part in them were liable to punishment; a strike was a crime, a trade union (under which term we may include a combination of employers) was an unlawful association. (See Pic, pp. 185, 186, and 211-229 9; Hauriou, 5th ed. pp. 100, 101, and compare Hauriou, 3rd ed. pp. 155-158.) This was the effect of both revolutionary and Napoleonic legislation. In 1789 the National Assembly had dissolved all trade guilds, corporations, or unions. The Loi Chapelier, 14 juin 1791, imposed penalties on persons taking part-to use English expressions-in strikes or lock-outs, or becoming members of trade unions (see Pic, pp. 185, 186, 213). The Code Pénal, arts. 291, 292, prohibited all societies or associations of more than twenty persons (except mercantile partnerships) which were not authorised by the Government, and articles 414-416 punished with severe penalties combinations (coalitions) either of masters or of workmen; and the Code Pénal, though it did not come into force till 1810, more or less codified or represented the spirit of earlier revolutionary legislation. The combination law of France, moreover, was till 1849 not even nominally equal as between men and masters. It pressed heavily on combinations of workmen, and lightly on combinations of employers (see Code Pénal, arts. 414-416). In practice, a law which was felt to be oppressive by artisans was looked upon with favour by their employers. The law remained in substance unchanged till 1864; its severity as against workmen was increased during the reign of Louis Philippe (loi 10 avril 1834), and the law, though in 1849 it was so amended that combinations of workmen were placed nominally in exactly the same position as combinations of masters, still pressed with far greater severity on the employed than on employers.

The French combination law then from 1800 to 1864 bore, as regards its practical effect, a strong resemblance to the English combination law from 1800 to 1824 (see pp. 95-102 ante). Under French law it was impossible, under English law

it was, to say the least, extremely difficult, for any workman to take part in a strike or to join a trade union without committing a crime. In France a trade union was an unlawful, in England it was at best a non-lawful association. In each country the combination law which prevailed there in the corresponding stage of its development originated in fact in legislation earlier than 1800. In each country enactments directly applying to combinations, whether of masters or of workmen, were supplemented by other parts of the law. Behind the combination law of France lay the extensive power conferred upon the Government (Code Pénal, arts. 291, 292) of refusing to authorise, or putting an end to the existence of whole classes of associations among which trade unions appear to have been included. Behind the English Combination Act of 1800 lay the law of conspiracy. Second Stage-1864-1884.—The law of 1864 (loi 25 mai 1864) so amended the Code Pénal, arts. 414-416, as to make strikes lawful proceedings. The general effect of the law, with the details whereof we need not trouble ourselves, appears to have been this :-Temporary combinations (coalitions) for the purpose of raising or lowering wages, or, as we should say, strikes or lock-outs, ceased to be punishable. On the other hand, various unlawful acts, such as acts of violence, assaults, menaces, or fraudulent manœuvres, when done by any one for the purpose of maintaining a strike or lock-out, or generally interfering with the free exercise of a man's business or work (exercice de l'industrie ou du travail) were made severely punishable, and the punishment was increased if these offences, e.g. an assault, were the result of a combination (plan concerté) (see Code Pénal, amended articles 414, 415), and the new crime was created of combining to interfere with the free exercise of a man's business or work by the imposition of fines, prohibitions, and the like. No doubt the new crime might be committed as well by masters as by men, but it is obvious that the general effect of the amended law was to punish severely every unlawful act, and a good number of acts not in themselves unlawful, which interfered with free trade in labour. When we remember that a trade union still remained an unlawful society, the general result of the legislation of 1864 must have been that whilst a strike was no longer in itself an unlawful proceeding, it remained hardly possible to use any of the means which render a strike effective without a breach of the law, or, in other words, without the commission of a crime (Code Pénal, arts. 414416, as amended by loi 25 mai 1864).

The general likeness between the French combination law of 1864 to 1884 and the English combination law of 1825 to 1875