Labor's   Bitter   Struggle
   from The Strike Threat System
by W.H. Hutt
W.H Hutt
*  ESSAY *

“The strike-threat system is an intolerable abuse of economic freedom. The strike is a type of warfare under which privileged groups can gain at the expense of the unprivileged.”

“I shall argue that while taxation can have limited effects in bringing about property and income transfers from rich to poor, the strike threat cannot. Forcing up the price of labor in different firms, occupations or industries does not effect an income redistribution from investors in general to workers in general.”

“I must make it clear that I do not dismiss the more positive side of union functions. The union framework has become an indispensable part of the institutional apparatus of this age. But the private use of coercive power in determining the price of labor is not a necessary concomitant of unionism, although it is its overriding purpose at present.”

“The strike-threat system must accept main responsibility for the political expediency of inflation in modern societies.”

“I want the reader to consider whether the survival of the democratic system may not be dependent upon a general recognition of the illegitimacy of privately motivated coercion in all forms.”

In this chapter I shall challenge some of the hardier myths that shroud the history of the strike threat.
The gradual increase in average real earnings that has been almost continuously enjoyed by the laboring, artisan, and white-collar classes over the last two centuries has never been the result of growing merit on their part. Nor can improvement in the average material condition of the people be attributed to any special changes in governmental power and policy over time (although governments naturally like to claim the credit)...

The improving real income of the wage-earning and salaried classes has been the consequence of (a) what I shall be calling the “economizing displacement” process, namely, managerial, technological and scientific ingenuities which have progressively displaced labor and assets from their existing employments, thereby releasing effort and resources for providing additional—usually different—outputs, and (b) thrift—the net accumulation of output-yielding assets—resources which magnify the real yield to human effort.

Society has learned how to replace and accumulate assets in an increasingly efficient form, and how to use the services of people in an increasingly efficient manner. The phrase “increasingly efficient” refers to (a) the composition of replacement and accumulation of assets, and (b) the organization of labor, both occurring increasingly in economizing-displacement forms. The achievement of given outputs with fewer workers, and with assets of reduced real value, is continuously rendering workers redundant in their existing occupations and specializations, and rendering assets obsolescent or obsolete in their existing form. This process is the most progressive dynamic force in economic activity because, in releasing a proportion of people and assets from their existing occupations, it leaves them available for the production of additional real income...

Now unless the almost phenomenal rise of working-class affluence in the western world is recognized as having resulted because of this influence, the material progress experienced can easily lead to the naive inference that it must have been due mainly (or in part) to “a long and bitter struggle” manifested in a growing use of the strike threat. For instance, throughout the last century, the United States experienced a movement of workers from jobs offering relatively low real incomes to jobs of greater productivity and hence higher real incomes. There has been a movement of wage earners away from agriculture to urban and industrial pursuits; a movement from domestic service, including the domestic service of unpaid housewives, to industrial and commercial employments, a general movement from “unskilled” to “semiskilled” jobs and from “semiskilled” to “skilled” occupations, and so forth. The dynamic forces which have overcome the inertias and barriers to mobility in such adjustments are all consequences of the economizing-displacement process, and that has been due to entrepreneurial enterprise and acumen allied with technological progress and thrift. A rapidly accumulating stock of assets is the chief physical manifestation of the development.

Market forces tending to bring about the just-mentioned upward mobility have succeeded against an organized resistance which intensified as living standards rose. Union exclusiveness generally, featherbedding and other make-work practices, and, the most powerful, enforcement of the standard rate have provided the chief resistance to the wage-multiplying forces I have been discussing.

The phenomenon has been interpreted rather differently. Tibor Scitovsky sees it as “a changing pattern of demand [my italics] for people, with fewer positions available in the higher and more in the lower echelons.” “The demand for skilled people,” he says, “has declined relative to that of the unskilled, as has the demand for executives relative to that for clerks and for generals relative to privates.” 1. Certainly emerging affluence appears to have caused a transfer of preference towards the outputs of labour-intensive occupations. But the egalitarian tendency to which Scitovsky is referring is, I judge, a question of supply rather than demand. Unskilled workers are becoming relatively scarce and expensive. That is because so many of them (or their children) have succeeded in climbing to wage-rate levels at which, through developing technologies, their productivities, their real natural scarcity values, are higher. Equipment in various forms now permits a person without specialized training to do what required long periods of instruction and practice in earlier ages...

Now it has seldom been to anyone’s interest to draw attention to the real wage-rate increases of those classes which have been excluded from the best remunerated occupations (mainly excluded by standard rates determined under the strike threat). When people enjoy no union protection in the inferior occupations to which they have been relegated, their real incomes still tend to rise steadily with the rise in general productivity, just as their money incomes tend to rise in accordance with the speed of inflation. As Albert Rees has put it:

All…sources of information are biased… Newspapers and broadcasters give prominent coverage to wage increases resulting from strike settlements or from large scale negotiations because they are dramatic, while little attention is paid to the gradual upward creep of non-union wages. Small wonder that the public does not suspect that in this race the tortoise sometimes catches up with the hare. 3

The evidence establishes, indeed, that the wholly “unprotected” wage earner, with no union to offset his supposedly inferior “bargaining power,” gains proportionately as much from general economic progress as the wage earner in a “strong” labor union unless exclusions enforced through strike-threat pressures (or other causes) are currently pushing him further down the scale of relative wage earnings. That is, in the relatively low-productivity spheres to which the “unprotected” are often confined by the “protected,” earnings tend to increase as rapidly as they do in the privileged spheres. Empirical studies disclose no clear correlation between the degree of unionization existing and the speed of wage-rate increases.4 The facts suggest that the workers’ basic protection against exploitation is market forces; in other words, the alternatives that are open to any person possessing scarce and valuable attributes—skills, muscles, intelligence, or responsibility. And this protection guarantees nonunion workers the highest possible earnings consistent with the non-exploitation of others, that is, of potential competitors and the community in its consumer role.

A curious fact is that at times the unions themselves appear to be pleading that incomes (including fringe benefits) in nonunionized occupations have risen faster than they have in unionized ones. The unions argue this casuistically to show the reasonableness of demands for higher wage rates for their members. But it is not without relevance to the claim that the strike threat can alone secure justice in remuneration.

Unfortunately most writing on this topic is emotion-charged. That is hardly surprising. The strike is a form of warfare (see Chapter 4) and the expectation of its use—as a fact or as a threat—has come to condition nearly all private policy in determining wage offers. The strike-threat system has created a species of continuous aggression and resistance to aggression; and as we shall see, union policymakers have felt it essential to keep alive an un-damped suspicion of and lurking hostility toward management and investors. And just as exploiters of aggressive nationalism throughout time and space have always relied upon legends of past struggles for “freedom,” so have union officials and their apologists found it useful to perpetuate the myths of “labor’s bitter history.” That these officials are most often deeply sincere in their beliefs is hardly a mitigation.

The genuineness of many of the influential and disinterested leaders of thought and opinion who have faith in the story of “labor’s bitter struggle” against oppression is enormously important. For instance in the United States, when the Norris-LaGuardia and the Wagner acts were being passed, the public opinion to which Congress is sensitive reflected the conviction that, in the past, “labor” had been shamefully treated. Time-honored but virtually fictional stories of the inequities and iniquities of former days had been propagated and reiterated with conviction by public-spirited novelists, journalists, jurists, clergymen, and academics, as well as by parties seeking to exploit the myths. And the American labor legislation of the 1930s was endorsed, it seems to me, by people who simply wanted to turn the tables. Whereas until then “labor” had been downtrodden, it was now to be assured that it was to be top dog. All the old injustices, inequalities and exploitation were to be swept away. The power of “the employers” to oppress their workers was to be ended and an age of economic justice to be ushered in. Few economists in the United States who perceived the folly of the legislative steps then being taken could conceive of any effective manner in which to communicate their warnings. The most forthright was Henry Simons; but because his teachings did not conform to those of the opinion-molders, his view was that of a tiny minority.

The Norris-LaGuardia and Wagner acts will, I predict, come to be regarded by future historians as economic blunders of the first magnitude. They were worked for and acquiesced to under motivations of almost unparalleled sordidness and cynicism combined with the highest, misguided idealism. For the American worker had not been maltreated and oppressed by managements committed to satisfying the rapacity of stockholders. That was not true of the nineteenth century in either continent; it was not true of the pre-NRA era, and it has not been true since then. “Exploitation” there has certainly been, as we shall see, but hardly at all, if at all, of “labor” by “capital.” And this is equally true of “labor” in all countries of the western world. Economic injustices have had a wholly different origin.

Among those who have been convinced that in past ages labor had to fight against exploitation and oppression, or who find it expedient to pose as convinced, we find today’s “business community” in general. Executives who are wise and expert in the conduct of their functions in markets other than that for labor seldom appear to have any grasp of the economics of wages and no trustworthy knowledge of the history of labor relations and income distribution. The typical private entrepreneur, says Arthur Shenfield,5 generally accepts

the popular view of early capitalism that it was harsh, cruel and oppressive. Indeed he will often defend the capitalist system by saying that its early defects, and notably that of the exploitation of the worker, have now been removed, so that it is an efficient producer and distributor of wealth and at the same time guiltless of exploitation. He does not realize that there is essentially nothing in the allegation of early capitalist exploitation which cannot be applied to modern capitalism. He thinks that the low wages and long hours of early capitalism bespoke exploitation, while the high wages and short hours of our times bespeak equity and humanity. He thus displays his ignorance of what it is that determines the general level of wages and hours. . . . Of course, the businessman is not to be blamed for accepting this view of early capitalism. It has been propagated by a long line of biased historians and publicists, and it is now common currency in almost all circles.

Unfortunately, in very few business schools or universities is it thought essential to disturb the stereotypes which have been so formed.6 On the contrary, through most of the “labor economists” the legends are perpetuated.
The following pages are devoted to briefly examining the notions which have been propagated during this century about the oppression of the workers in Britain during the emergence of the modern industrial system, and the supposed fight of the unions on their behalf against tyranny, oppression, and injustice in the courts. I use Britain to illustrate because the tendentious writings of British historians such as the Webbs, the Hammonds, Cole, and others have colored the literature of “labor” in many countries.

Since medieval times, the conviction had persisted that it was the will of God that all, except for those in the privileged classes, should work from sunrise to sunset. “In the sweat of thy brow shalt thou eat bread” was unchallenged as a divine precept. The Sabbath was the Lord’s provision for rest. It embodied the wisdom of the ages. It was almost unchallenged until industrial capitalism had got under way. Only then did technological inventions plus thrift begin to cause a remarkable magnification of the yield to effort and the emancipation of man from the struggle for physical survival.

The “economizing displacement” process which characterized the new industrialism was gradually able to render possible a quite general enjoyment of leisure, even by the lower income groups, through sacrifices which those groups would have felt were powerful deprivations in earlier times. And as labor-saving developments progressed, especially after 1790, the customary contribution of children to the family income of the poor, and the early education of children in industrial skills under parental discipline, were transferred from the squalor of the domestic system to the relatively satisfactory factory environment. Then, by reason of the very progress which had engendered this transition, the output of children became less necessary for the retention or rise of living standards. Machinery economized labor, competition among the workers in each occupation raised the real earnings of noncompetitors, and because the material well-being of the working class as a whole rose, a potentially more rapid increase in the physical welfare of the poorest classes could be sacrificed in return for excluding children from certain kinds of productive work.7

Labor’s rising average living standard during the industrial revolution was marked less by increases in the per capita wage rates of which the records survive than by a rising proportion of workers coming to be employed in occupations offering higher real wage rates (a changed frequency distribution, a gradually increasing proportion of workers finding employment in the more productive and higher-paid kinds of work rather than an increase in wage rates for work of a defined type), the achievement of greater leisure, and the amelioration of working conditions, rural or urban. Such wage statistics relevant to that period as we have are, however, too meager to enable us to estimate the speed with which the masses were benefiting. We know that outputs of “wage goods” were increasing rapidly and steadily, e.g., bricks, which were used in building houses for the poor. And we know also that, despite continuous attempts to hinder the economizing displacement process, a la Luddism, the efficiency and the value of the stock of wage-multiplying assets increased. Hence although there must have been some dilution of rising per capita outputs and incomes, because of population increases, it appears to be beyond doubt that the workers benefited absolutely. Their material well-being probably improved more or less in proportion to that of other classes of the community. But certainly environments of home and workshop which had been inherited from the pre-laissez-faire, mercantilist era were steadily improved. Then, in the light of a rapidly growing ability to produce, the traditional living and working conditions of the wage-earning classes came to be regarded for the first time as deplorable.

This remarkable upward adjustment in standards and hopes, reflecting a new humanitarianism, could well be regarded as emergent capitalism’s outstanding attribute. So rapidly did the new (although partial) economic freedom cause people to change their judgments about what was tolerable that, in doing so, it caused the very forces which were currently eradicating condemned conditions to be blamed for the existence of those conditions.

It is almost platitudinous to say of any age since the eighteenth century that earnings were lower and working conditions had been less satisfactory in previous ages. We shall reach this conclusion whenever we compare any long historical period (say, a decade) with a later one and use the conventional standards of the latter as our criterion.8 But that is because thrift, plus economizing displacement, plus discoveries have been continuously augmenting the yield to human effort. The living conditions of the masses in the 1920s were bad in relation to what they are now; they were even worse in the previous decade; worse still in the last century; and they worsen increasingly the further one moves back in time. Yet this does not allow us to say that there any unfairness in early arrangements for wage determination against which labor had to fight. Such injustices as existed in previous ages were, as I have suggested, in a different form, but probably neither more common nor more reprehensible than those of today. And they did not arise out of the ability of owners of assets, or managements on behalf of investors, to oppress or steal from those who supplied labor inputs.

In the past, general standards of treatment and standards of consideration m different income groups, as well as between different social classes and races, were indisputably such as we should today find intolerable. Pre-capitalistic attitudes dissolved slowly under the pressures of the free market and competitive institutions. Persons of higher rank would behave arrogantly and peremptorily toward those of a lower rank. The cultured classes would not always cloak their disdain toward groups which lacked refinement of taste, education, bearing and behavior. The upper-middle and middle classes often openly despised “the great unwashed.” Such attitudes alone were “institutional barriers” to equality of opportunity, and there were some deliberately planned and maintained barriers (more in Europe than in the United States—except for the institution of slavery), intended to preserve a way of life which the privileged and ruling classes thought was basically good. But the relative economic inequalities of, say, the nineteenth century, were never the result of any power acquired by the owners of assets or by managements to maltreat or tyrannize over “the workers.”

The most persistent and tenacious myth about the origin of the strike-threat system is that it emerged out of a struggle of the poor against subjection by their “employers.” The truth is that, with hardly any exceptions, it was relatively affluent artisans (by contemporary standards) who first organized for the collusive pricing of their labor. And their motive was, in every case, to defend their privileges—special rights which were contrary to the interests of the poorer classes (and in multiracial countries, poorer races). On this point, even the Webbs note: “It is often assumed that trade unionism arose as a protest against intolerable oppression. This was not so.”9 Labor unionism emerged indeed in the form of a strongly class-conscious movement, expressing a determination to maintain a class structure. Throughout, this has been an unchallengeable attribute of the union form of organization.’10 The Webbs describe the union system as “strengthening the almost infinite grading of the industrial world into separate classes, each with its own distinctive ends, and each therefore exacting its own ‘rent of opportunity’ or ‘rent of ability.’” These last terms are skillful euphemisms for “privilege.” The defense of such privilege was, in the Webbs’ words, “the common purpose” of nearly all eighteenth-century combinations.11 Already, in that century, workers’ “combinations” in Britain had resisted powerful equalitarian forces that were being released through the emergence of freer markets in most spheres. History records this not only in such evidence as we have of strike-threat action (then technically illegal) but in the evidence of petitions from workers’ organizations asking the legislature for protection of their customary position (against unprivileged interlopers). The Webbs write, tendentiously, of the eighteenth-century unions having been forced into demanding protection because the industries in which their members were employed were menaced by “pauper labor.” Actually, the industries in which union members were employed would have prospered had labor been recruited freely from less productive and less well-paid occupations, thereby releasing the “paupers” from their poverty. It was sheer sectional privilege for which the unions were asking protection. The interests of those referred to as “pauper labor” were regarded as of no importance, either by the unions or - (in this context) by their famed defenders, the Webbs.

Now the method of maintaining the “grading into separate classes” (with the inequalities of opportunity associated with it) has not been mainly restrictive apprenticeship rules and such-like devices for discouraging investment in human capital among the underprivileged. Nor has the insistence in the present age upon the maintenance of “established differentials”12 been relatively important (although this insistence does disclose the motivation). The principal method has been a simple insistence upon the standard rate.13  It has been as a defense of the most blatant privilege that the objection has arisen to “pricing labor as though it were a commodity, and buying it in the cheapest market.” Yet this objection has been elevated into what has almost become a respected ethical principle. This thesis is examined in Chapter 12.

One very shaky argument is that the emergence of unionism during the late eighteenth century was a reaction against great “monopsonies” (as we now call them) among the masters, with the power to exploit labor. Adam Smith referred to what he believed was a “tacit monopoly” among the masters to keep wage rates down. He noticed that the law did not prohibit masters from combining to lower the price of work although it did prohibit workmen from combining to raise it.14 Nevertheless, it was the tacit combination of masters which he believed was widespread. “Particular combinations” (that is, formal agreements) among masters were, he thought, only “sometimes” entered into.

But Adam Smith’s evidence of tacit combination was the unpopularity of masters who raised wage rates, evidence which suggests rather the normal competitive circumstances of the active world under which competing sellers, hoping that supply conditions are not changing to their disadvantage, regard price cutters with disfavor and reluctantly follow suit.
Regarding the “particular” combinations to keep down wage rates which Adam Smith alleged “sometimes” occurred, although “always conducted with the utmost silence and secrecy,”15 there is no evidence of any such organization to be found in the secondary sources with which I am familiar or in official reports.’16  I believe that Adam Smith’s judgment in dealing with this subject was vitiated by the same defect that George Stigler has held adversely affected Alfred Marshall, “a warm heart.”17

Even the Webbs’ presentation quotes no facts which might suggest the operation of formal monopsonies during the eighteenth and nineteenth centuries. Actually their explanation of the need for the protection of labor relies most often on the fact that “employers” had not combined. They refer, for example, to the craft guilds fighting for legislative protection “against the cutting down of their earnings by the competing capitalists.”18 This is of course the opposite of the monopsony allegation. If the masters were competing in the sale of the product, they were equally competing for the purchase of labor and materials. Hence they would have been tending to bid up the remuneration of the work force (actual or potential) as a whole, not to push it down.

But it is in respect of the history of judicial decisions under the common law and statute law against “conspiracy” or “combination” that the most serious fictions have arisen. Students have been indoctrinated with the belief that laws enacted in the interests of the relatively wealthy were applied over the ages; and that, increasingly as the industrial revolution progressed, these laws were enforced in a dastardly way—to suppress laudable attempts by organized labor to avoid injustices. Partisan textbook accounts of English experience of early strike-threat activities have created this wholly false impression.

We must notice at the outset that, as feudalism and serfdom disappeared during the last two centuries of the Middle Ages, and especially following the Black Death, associations of workers for peaceful and lawful purposes had been neither illegal nor discouraged. Nor were they ever illegal or discouraged in subsequent ages.19 But from the thirteenth century, the conviction clearly emerged that certain antisocial practices affecting the pricing of products (including the product of labor) had to be restrained for the common good. Thus, practices known as “forestalling, engrossing and regrating” were forbidden by ordinances and statutes because these were supply and pricing procedures which were perceived to be exploiting the common people through the contriving of scarcities of food and necessities.

Now the common law cases and statutes concerned with the crime of “conspiracy” (dating from the thirteenth century) applied exactly the same principle in more general terms. “Conspiracy” or “combination,” words having an identical connotation until well into the nineteenth century, were prohibited. Indictments generally read “conspiring, combining, confederating and agreeing.” These notions covered any kind of action in concert which aimed at making products (including the product of labor) dearer (for the benefit of those who associated for that purpose) by agreements not to sell below stipulated prices.

The mere fact that the common law on this topic became explicit in statutes suggests that attempts to fix prices in concert must have occurred deep back in history. And there is evidence of this as long ago as 1298, when an organization of coopers in London was prosecuted for having agreed to raise the price of hoops from one halfpenny and three farthings to one penny. And economic conspiracy cases which did not directly involve laborers or artisans have been noted as late as the eighteenth century. In 1773, the publicans of Westminster were believed to be conspiring to raise the price of beer. The authorities got word of this somehow, and the publicans were at once warned that if they raised the price collusively they would be prosecuted for conspiracy. And there are other examples of steps taken to prosecute for attempts to raise the price of commodities (as distinct from labor) by concerted action.

Collusive action to raise the price of labor was, then, regarded as pernicious only in the sense that agreements to raise the price of food or necessities (such as salt) were considered pernicious. The spirit of the law seems never to have been hostile to artisans as such, still less to the laboring masses. Its hostility was directed against what I like to call “the contrived scarcity.” Cases such as those brought against London carpenters in 133920 and against shoemakers in 1349 certainly seem to have had the aim of preventing specific commodity prices from being forced up.

One thing which makes the preindustrial revolution era rather difficult to interpret is a blatant inconsistency in this respect. Merchant and craft guilds, constituted by charter, had the explicit right to act in a manner which would have been criminal, under the common law and certain statutes, had it not been for the protection of a charter. Wyclif accused the guilds of conspiring “that no man practicing their craft shall take less payment daily than that they have agreed among themselves,” and that “they oppress other men who are in the right” (meaning that these others were prepared to work for less).21 But the guilds were protected by charter. The anomaly can probably be explained in terms of pre-eighteenth-century conservatism. Unsettling change could be prevented by way of protection of a privileged status quo (and this policy took the form among other things of encouragement of craft and merchant guilds) as well as through the prevention of any new privileges which seemed likely to arise. Revolutionary changes were feared. By the middle of the eighteenth century, however, the guilds had largely lost their power, and rather different forms of organization—labor unions of the modern type—emerged as “friendly societies.”

A supplementary policy, developed following the Black Death, was that embodied in wage-fixing by authority and, following the Elizabethan Statute of Artificers, generally bolstering up the guild system. Important provisions of this statute had, however, the effect of enforcing adherence to contract. An artisan wishing to transfer to another master required a testimonial certifying that he had carried out his obligations to the master he was leaving. In some cases the employee was bound by contract until a specific piece of work had been completed, for example, “any ship, house or mill or any work taken by the gross or piece.”22 If he left before then, his master could claim damages fixed in the statute.

Recourse to special statutes to outlaw “conspiracy” in particular trades seems to have been mainly because really effective enforcement of the common law (when there was no exoneration through guild privilege) had seemed beyond the administrative machinery of the courts until modem times. Common law cases had to be heard by judges and hence were costly. They were time-consuming. By reason of long delays, artisans charged could often escape trial by moving to other districts where they could seldom be traced. Statute law cases, on the other hand, could be dealt with expeditiously by justices. That is why we found “masters,” in the emergent industries of the seventeenth and eighteenth centuries, petitioning Parliament for explicit statutory protection against “conspiracy” for their own industries or trades.23 In Britain, as a whole, some 40 such statutes were repealed in 1824. But before then enforcement of common and statute law in this sphere seems to have been curiously casual. Moreover, as I have already insisted, conspiracy law was not aimed primarily at labor.24

It is extremely difficult to judge how effective the common law together with general and particular statutes against conspiracy had been before the Industrial Revolution got underway. The domestic system of manufacture, which dominated until well into the nineteenth century, probably meant that members of any trade were usually too scattered to be able to act in effective collusion, whether by restrictive agreement or intimidation of nonconformists. Moreover, the distinction between masters and men was often ambiguous. Such conditions, rather than laws against conspiracy, may help explain the apparent rarity of strike action before 1824.

Nevertheless, the problem to which these laws were believed to offer a solution seems to have increased in importance during the late eighteenth century, probably because of the gradual emergence of labor unions in the modem sense in the relatively highly-paid crafts and occupations, and their apparent growing activity.25 Unions were “friendly societies” concerned with the commendable task of insuring their members against the worst consequences of sickness or unemployment.26 This was the more conspicuous side of their activities but probably not the most important. Indeed, it seems that their insurance funds were often more in the nature of strike funds. Where apprenticeship had survived, they enforced the rules under some protection from the otherwise virtually moribund Elizabethan Statute of Artificers. Some “friendly societies” were trying to maintain, even at that time, what is today called “the closed shop.” In the light of rising sophistication during the eighteenth century, the harm done may well have been becoming more conspicuous. For instance, Adam Smith pointed out that the wool-combers were able, by refusing to take a reasonable number of apprentices, not only to “engross the employment, but reduce the whole manufacture into a sort of slavery to themselves, and raise the price of their labour above what is due to the nature of their work.”27

Already, throughout the eighteenth century, despite evidence that the demand for leisure as such was tending to fall, some of the unions had perceived that, when artisans were remunerated by time instead of by the piece, to enforce by way of the strike threat a reduction of the hours of labor was an effective method of reducing the supply of effort and raising aggregate remuneration. Other restrictions of output were also imposed. The rules of a society would specify the amount of output to be supplied daily or weekly by the worker. At times, these methods drove industries away from where they had been originally located.

The Webbs suggest, however, that in the eighteenth century, the common law was “constrained” to convict striking workers. They present no clear evidence of any such “constraint.” The facts suggest (1) that the tradition of no discrimination against labor was maintained, and (2) that there was considerable leniency in the administration of the existing laws when the alleged offense occurred in the form of strikes or strike preparations. This was partly because of lingering guild influences and possibly because the unions did not represent the masses but what the socialist William Thompson later called (in 1827) “bloody aristocracies” of labor.

As evidence of leniency, we can consider the fact that although combinations in the cotton trade had been forbidden by statute as early as 1749, cotton spinners were obviously strongly organized in the 1790s and a force with which manufacturers had to reckon. Again, London tailors were prosecuted under the common law in 1765; yet they remained organized and further prosecutions against them had to be instituted in 1770 and 1783. As evidence that the common law doctrine remained neutral, we can consider the 1783 case against these tailors. It was in these proceedings Lord Mansfield, one of Britain’s greatest judges, rendered a famous judgment. The most pertinent passage of the decision reads,

Persons in possession of any articles of trade may sell them at such prices as they individually may please, but if they confederate and agree not to sell them under certain prices, it is conspiracy; so every man may work at what price he pleases, but a combination not to work under certain prices is an indictable offence.28 .........continued