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LAW MAGAZINE AND REVIEW.
No. CCCX-NOVEMBER, 1898.
1.-CONCILIATION AND ARBITRATION IN
ECENT events have called public attention to the
advantages of devising some method of settling disputes between masters and men, and have given rise to the expression of that very common and often very hopeless suggestion — that something ought to be done. But, in addition to that confused cry, there has been heard a demand for what is called compulsory arbitration. It may be permissible, in writing, for lawyers, who, I hope, will always retain a desire to use exact language, to observe that the phraseology of this cry is somewhat embarrassing. A lawyer understands by arbitration the voluntary settlement by reference to a third person of some existing dispute as to some existing right or wrong. Those who cry for compulsory arbitration desire the reference, by legal compulsion, to some tribunal of the question what wages masters ought to pay in the future, and what wages men ought to work for ; other words, what is asked for is that some tribunal shall be constituted which is to make contracts to bind men in the future.
I have never seen any definition or explanation of what is meant by the demand for compulsory arbitration in trade disputes; but the only meaning that can be put upon it
is that men shall be compelled to submit their disputes as to future wages to a judge, and shall be compelled to carry into execution the decision of the judge; or, to put it in other words, it is that a body of masters who wish to make their own contracts for labour, shall have these contracts settled by some third person, and that then they shall be compelled to carry on their works and pay the rate of wages mentioned in the judgment—and that, I suppose, whether they gain or lose by their works so carried on. For how long must they carry on their works ? Will neither loss of profits, nor old age, nor desire for leisure excuse them from this obligation to carry them on at the rate of wages fixed by the arbitration ? And how is the obligation to be enforced? Is it to be specifically performed, and the master to lie in prison for contempt of court till he again performs the unwilling task of paying the wages decreed? or is he to be liable for an action for damages at the suit of each workman?
And in like manner for the workman. Is he to be compelled to work at the wages fixed ? Is he to be adscript to the factory or the coalpit? May he be stopped from emigration by a writ of ne exeat regno? May he be kept in prison till he works on at the wages fixed, and this till death liberates him from the effects of compulsory arbitration?
Some of these difficulties may no doubt be removed by careful legislation, but only by at the same time lessening the efficacy of the remedy. It might, for instance, be provided that no award should remain in force for more than a year, or that disobedience to the award should entail only the liability to some stipulated payment, whether by way of fine or damages. But unless the penalty be such as practically to compel obedience, the award may fall inoperative: and, after all, the great difficulty will remain—that compulsory arbitration is a scheme for forcing men to do, on the terms imposed by a third person, that which in a free state they ought only to
do, and can only well do, on their own terms and of their own free will. Whether I shall work at all, and for what wages I will work, are matters of volition ; whether I will employ a man, and what wages I will pay him, are equally matters of volition ; if I choose to refer the terms for settlement by a third person, that is equally an act of volition, and it is reasonable that I should be bound by my voluntary act; but to compel me to do some personal act on the terms fixed by some third person is degrading alike to me and to the work, which I shall do with an ill will, and therefore badly.
When the London Chamber of Commerce took in hand the subject of conciliation in trade disputes, they were naturally induced to consider the question of compulsory arbitration. Mr. Boulton, speaking in behalf of the Committee of the Chamber, gave evidence before the Royal Commission on Labour, which is very important as expressing the judgment of a body of business men on this question.
“The next question, I think," said the chairman of the Commission, “which you wish to dwell upon is voluntary conciliation and arbitration as regards engagements and future employment ?" “We carefully studied,” said the witness, "all the attempts which had been made, at least all that we could get hold of, for compulsory arbitration as regards the future rates of wages; and we arrived at the conclusion that whereas attempts have been made for the last five hundred years to do so, they have all more or less ended in failure, and we also arrived at the conclusion that it would be quite impossible for any compulsory arrangement to fix future rates for labour, because, supposing any court were appointed, supposing it arrived at a decision, supposing it said that in any particular trade or in any particular district the wages should be so-and-so for the next twelve months, or for the next six months, it would be absolutely impossible to compel either the workmen to work at those wages if they did not like them, or for the employers
to open their factories if they thought the wages were higher than they could afford to pay."
“Would that not apply," said the chairman, “to an award which was the result of a voluntary submission to arbitration?” To which Mr. Boulton replied, “It no doubt would; but if an award is arrived at by the wishes of the parties themselves, we have confidence that in the future—and our experience shows it so far by all our awards having been honourably kept on both sides—that there would be a growing feeling that it would be extremely dishonourable to break any arrangement of that sort voluntarily arrived at, and moreover in any dispute which came before the public it would, no doubt, place the sympathy of the public on the side of that one particular party who had kept to their engagements, as against the one who had broken theirs.”
“ And you do not therefore think,” the chairman asks, “that the inability to enforce by legal procedure an award upon a large body of men is any reason why arbitration should not be encouraged, being of opinion that the force of public opinion would go for very much in causing an award to be observed ?” Mr. Boulton replies, “Undoubtedly we think that it would. We further think that it would be quite impossible to compel workmen-in fact, we see no way of compelling workmen to work at wages which do not suit them, because after your decision in your so-called compulsory court you still have a chance of a strike or a lock-out. How can you force a large body of workmen to work at wages which do not suit them ? Supposing you bring before a magistrate five hundred men or a thousand men, the magistrate may fine them, but it would be very difficult to enforce the fines. He cannot say, You shall work at that particular factory, because they may say, We do not choose to work at that particular trade, or, We do not choose to work in that particular district; we will go to another district. You could not enforce the award.”
To the chairman's question, “But you do not think that is conclusive against the usefulness of arbitration in such cases?" the reply is, “ We do not see any way out of it, except by voluntary arbitration and conciliation. In looking at all the past legislation on the subject, we found there had been an entire failure in every case where compulsory powers had been attempted to be enforced.”
I will now advert shortly to the history of legislation on trade disputes, and first in England.
The earliest and most drastic effort to regulate the rate of wages by law is undoubtedly the celebrated Statute of Labourers of Edward III., passed shortly after the black death of 1348. That enactment applied to every man and woman within the kingdom, whether free or serf, of whom it could be predicated that he or she was of bodily capacity and under the age of sixty years, did not live of merchandize, did not practise a craft as artificer, did not possess independent means of livelihood, or land of his own on the cultivation of which he occupied himself, and was not already engaged in service. It provided that every such person should, when required to undertake work fitting to his or her condition, undertake the same, and should receive the same wages and allowances as had been accustomed in the place of the service in the 20th year of King Edward's reign, and the five or six preceding years : in default of obedience to the obligation thus created, the offender might be arrested and sent to prison till he or she found security that he or she would serve as required. This principal enactment was hedged round with accessory provisions ; if a servant departed from his service before the time agreed upon, he was to be imprisoned : the giving as well as receiving of wages beyond the statutory limit was made an offence: the giving of alms to a beggar who was able to work was equally made an offence. The statute is very instructive reading for those who advocate compulsory arbitration : it will suggest the kind of enactments by which the