Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century

Appendix

Appendix note i. The Right of Association (See pp. 68–74, 109–113, 136–143, 189–193, ante; Pic, Traité Élémentaire de Législation Industrielle, Les Lois Ouvrières (2nd ed.); Hauriou, Prècis 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. See especially Duguit (Léon). Les Transformations du Droit Public (1913); Les Transformations Générales du Droit Privé (1912); L’État, Le Droit Objectif et la loi Positive (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. 109–113, 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 dif- 332 / Appendix ficulty 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 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 X to say or write what he chooses, and the right of A 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 nineteenth 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. I. The Right of Association / 333 As to Similarities. I. The combination...