ent businessmen, and were in a weak bargaining position. As a matter of fact, the producers were practically helpless in their dealings with the clothiers and had to take whatever they were given in return for their work. When business was bad the clothiers frequently paid the workers with cloth instead of money. Employment was not steady, and these highly skilled workers found it difficult if not impossible to fall back on agriculture during periods of unemployment. This period is characterized by the concentration of capital in the hands of an oligarchy which held sway over a mass of impoverished workers.

As early as 1464 Parliament passed a law to regulate this system of production; other laws were passed prohibiting the exclusion of apprentices and journeymen from full membership in the guilds; and in 1555 the number of looms that could be maintained in the homes of country weavers was limited. These measures were designed to bolster the tottering guild system against the encroachments of the putting-out system, but they did little to stem the tide.

During this period experiments were being carried out along the lines Thomas Blanket and his brothers had tried 200 years before. John Winchcombe (known as Jack of Newbury), Martin Brian of Manchester, a man named Stumpe of Malmesbury, and other rich clothiers each assembled numbers of clothworkers under one roof for better discipline and coordination of effort. Their embryonic factories failed for a number of reasons: the attitude of Parliament and the population in general was hostile; as rich as these men were they did not have sufficient capital to build proper factory structures; and the factories consisted merely of aggregations of identical hand-operated machines, an arrangement which did not make for sufficient economy compared to the cottage fabrication which characterized the putting-out system.

Elizabethan Regulation of Industrial Relations. A comprehensive labor code was enacted in the Elizabethan Statute of Laborers of 1562. It reconciled conflicting industrial-relations concepts without introducing anything new. It standardized the term of apprenticeship, it placed restrictions on the movement of labor from farms to towns, and it more accurately defined the relationship of employers and employees. It retained the concept that it was the duty of laborers to work and to work for a fixed wage, but it now set up administrative machinery for establishing different wages in different industries and for changing them as the need arose. Both taking and giving excessive wages were punishable by fine and imprisonment, and breach of a labor contract by either an employee or an employer was made a penal offense. The statute authorized the imprisonment of an employee until he agreed to work for the estab6 Act of 5 Eliz. I, Chap. 4.

lished wage. Hours of service and the term of contracts were fixed, and legal action could be taken against an employer who knowingly hired a worker who had broken a labor contract with another employer.

Although this statute was in line with the prevailing economic philosophy of the times (mercantilism), it was somewhat less repressive than previous industrial-relations law. The importance of the employee in an era of expanding industrial activity was recognized, but the policy of the ruling classes was that under no circumstances should the law recognize the right of workers, either individually or collectively, to use their bargaining power in bettering themselves as employees.

Influences of Industrial Capitalism. In order to reemphasize the principle of continuity in the development of industrial relations, it should be pointed out that the Industrial Revolution did not spring full-blown out of the inventions of the eighteenth century. The significant changes that profoundly influenced existing employer-employee relationships were the culmination of many developments, each of which had its separate roots far in the past. Without discounting the enormous significance of the other events behind the Industrial Revolution, we can say that new ways of thinking about the economy had much to do with touching off the rapid surface changes which began about the middle of the eighteenth century.

The Concept of Laissez Faire. Under the policy of mercantilism the regulation of industrial relations had been taken over by the government. This regulation extended to every department of economic life at that time. It was believed that a fixed amount of wealth existed in the world and that the country able to regulate imports and exports to create an inflow of gold settlements of favorable balances of trade would get the lion's share of wealth. In order to produce the goods which could be sold abroad, the government specified the areas in which people could work, the wages they could receive, etc. In 1776 Adam Smith came forward with the dictum: 7

The patrimony of a poor man lies in the strength and dexterity of his hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.

Those who were in a position to influence the course of events spread the doctrine that government regulation, as then practiced, tended to interfere with “natural development.” They used convincing arguments that 7 Wealth of Nations, Book I, Chap. X, Part II.

tended to prove the futility of interfering with the "natural" laws of economics. Ricardo formulated his famed iron law of wages, which was that wages tended to swing slightly above and below the subsistence level no matter how much the government sought to regulate them. Gradually the conviction spread that the responsibilities of government should be reduced to two, or possibly three, duties: to protect the nation, to protect individuals from injustice and violence, and to some extent to engage in educational activities. Inasmuch as these theories seemed to be borne out by the facts, most people were ready to believe them. Government controls were not functioning very well anyhow, and soon the whole fabric of mercantilistic regulation collapsed. The way was now clear under laissez faire for the Industrial Revolution.

The Industrial Revolution. The term "Industrial Revolution" is applied to the visible changes in the way of living and producing which began in England in the latter part of the eighteenth century, changes which have had a profound effect upon the entire world.

What were these changes? First, they involved a shift in emphasis from agriculture to industry. Next, they included a change in emphasis in production. Formerly machines had aided the skill of the workers; now the production workers became mere adjuncts to machines. The skill of workers was in large part transferred to machines. Another feature involved the system of production. The putting-out system of cottage production rapidly gave way to factory production, which now became feasible because of some of the underlying changes previously mentioned: removal of restrictions on borrowing for interest, aggregations of employable craftsmen, the availability of iron machinery to replace the crude wooden and iron contraptions then in use, flexible sources of relatively cheap power, demand for large amounts of identical goods, etc. To these might be added another important factor which soon came to the fore: the invention of the concept of interchangeability of parts. These changes resulted in the rapid growth of industrial cities, and the demand for labor increased tremendously. The most apparent result of the Industrial Revolution was the rise of the factory system of production.

Effects of the Industrial Revolution upon Employment Relations. The dependence of labor upon capital was now almost complete. At first the unprecedented demand for labor resulted in general prosperity; wages rose, and there was full employment. But soon there was a reaction. Such progress had been made in producing automatic machines that it was now possible to use children to operate them, and the country was scoured for orphans who could be "apprenticed" to the new trades. Such unfortunates who were found became little better than slaves, and their treatment by the foremen was revolting. These children, sometimes as

young as six, were chained to their machines and were worked fifteen or sixteen hours a day. Moral conditions were at a low ebb, and workers lived amid filthy and unsanitary conditions.

8

The bargaining power of presumably free labor was never so low. In view of the freedom accorded capital to combine into huge aggregations of bargaining power, the attitude of the government toward labor presented a strange contrast. In 1720 Parliament passed a law which pointed out that certain laborers had combined to advance their wages and decreed that such agreements were void and that all persons entering into them should be condemned to prison and to hard labor without bail. Similar statutes were enacted for various trades over the following seventy-five years, the last of which (1795) specifically forbade the employees of paper manufacturers to combine to raise their wages and declared illegal all assemblages held for this purpose. Even the existence of labor organizations in this industry was declared to be illegal.

The Doctrine of Conspiracy. One of the landmarks of the law of industrial relations is the King's Bench case, Rex v. Journeymen-Tailors of Cambridge.10 The journeymen tailors were indicted for conspiracy to raise their wages. It was held by the court that "a conspiracy of any kind is illegal although the matter about which they conspired might have been lawful for them, or any of them to do, if they had not conspired to do it." The case cited by the court as being the ruling precedent is believed to have been decided in 1665.11

In 1783 a judge clarified somewhat the apparent unequal treatment of employers and employees. In Rex v. Eccles, 12 the judge stated: "The illegal combination is the gist of the offense, persons in possession of any articles of trade may sell them at such prices as they may individually please, but if they confederate and agree not to sell them under certain prices, it is a conspiracy; so every man may work at what price he pleases, but a combination not to work under certain prices is an indictable offense."

Two other cases in this period should be mentioned. In 1786 five London bookbinders were convicted of conspiracy for leading a strike to reduce the hours of labor from twelve to eleven, and in 1799 two London shoemakers were prosecuted for picketing.13 All these cases were de

8 Act of 7 Geo. I, Stat. 1, Chap. 13.

912 Geo. I, Chap. 34 (1725); 9 Geo. I, Chap. 27 (1729); 22 Geo. II, Chap. 27 (1749); 17 Geo. III, Chap. 55 (1777); and 36 Geo. III, Chap. 111 (1795). 10 8 Mod. 10 (K.B. 1721).

11 The Tubwomen v. The Brewers of London, never positively identified, but thought to be Rex v. Starling, 1 Lev. 125, 1 Sid. 174, 1 Keb. 650 (1665). See James M. Landis, Cases on Labor Law, The Foundation Press, Inc., Chicago, 1934, p. 11, n. 71; also, 3 Columbia Law Review 447 (1903).

12 Leach Crim. Cas. 274 (K.B. 1783).

13 Landis, op. cit., p. 12.

cided under the common law without reference to any statute. The common-law principle at that time appeared to be that two or more persons could not combine to do what they could legally do as individuals. This doctrine has had far-reaching influences on industrial-relations law both in England and America.

15

The Combination Acts of 1799 and 1800 14 are held by some as being a radical departure from existing law. Professor James M. Landis, of Harvard, holds to the view, however, that these statutes, which forbade combinations of workers to better their conditions and which made it illegal to interfere so as to prevent individuals from working or employers from hiring workers (picketing), simply confirmed the centuries-old concepts toward labor. Professor Landis explains the enactment of these statutes (which, if they merely enunciated existing law, would constitute a useless gesture on the part of Parliament) on the grounds that there was at that time widespread disobedience of these common-law principles and that it was the hope of Parliament that a public avowal to enforce them would lead to obedience.16

During the next quarter century prosecutions for collective action by labor, under both the Combination Act of 1800 and the common law, were very frequent. And during this period trade-union activities continued and labor became exceedingly restive. The reaction of Parliament was to make the laws against collective action more and more severe until in 1824 they were suddenly repealed. But such is the nature of trends in this field that two individuals, Francis Place and Joseph Hume, got most of the credit for the reversal of a centuries-old labor policy. Actually, of course, because most people were shocked at the severe treatment of the condemned labor leaders, the trends of public opinion ran more and more strongly in favor of permitting collective action on the part of laborers, until the warm waters eating away at the submerged portions of the iceberg finally brought about an imbalance which caused a sudden reversal. Because of their skill in presenting the evidence to Parliament, Place and Hume are credited by history with a great victory. The Combination Act of 1824 " repealed all earlier laws forbidding collective labor action. It decreed that both combinations of employees and combinations of employers should not be prosecuted (under statute or common law) for trying to advance wages, lessen hours, decrease the quantity of work, induce others to quit, or regulate ways of doing work. However, threats were outlawed. After the enactment of this

14 39 Geo. III, Chap. 81; and 40 Geo. III, Chap. 106.

15 Sidney and Beatrice Webb, The History of Trade Unionism, Longmans, Green, London, 1920, p. 64.

16 Landis, op. cit., pp. 13-14.

17 5 Geo. IV, Chap. 95.