Citizen A contracts with citizen B that citizen B, in consideration of a sack of wheat, shall plough a bit of land. Certain known risks must attach to that operation. Citizen B, if he is a free man, undertakes those risks with his eyes open. For instance, he may sprain his wrist in turning the plough, or one of the horses may kick him while he is having his bread-and-cheese. If upon such an accident A is compelled to pay damages to B, a difference of status is at once recognised. B undertook to do work which, by all the theory of free contract, was, with its risks and its expense of energy, the equivalent in B’s own eyes of a sack of wheat; yet a law is passed to say that B can have more than that sack of wheat if he is hurt.
There is no converse right of A against B. If the employer suffers by such an accident to the employee, he is not allowed to dock that sack of wheat, though it was regarded in the contract as the equivalent to a certain amount of labour to be performed which, as a fact, has not been performed. A has no action unless B has been culpably negligent or remiss. In other words, the mere fact that one man is working and the other not is the fundamental consideration on which the law is built, and the law says: “You are not a free man making a free contract with all its consequences. You are a worker, and therefore an inferior: you are an employee; and that status gives you a special position which would not be recognised in the other party to the contract.”
The principle is pushed still further when an employer is made liable for an accident happening to one of his employees at the hands of another employee.
A gives a sack of wheat to B and D each if they will dig a well for him. All three parties are cognisant of the risks and accept them in the contract. B, holding the rope on which D is lowered, lets it slip. If they were all three men of exactly equal status, obviously D’s action would be against B. But they are not of equal status in England to-day. B and D are employees, and are therefore in a special and inferior position before the law compared with their employer A. D’s action is, by this novel principle, no longer against B, who accidentally injured him by a personal act, however involuntary, for which a free man would be responsible, but against A, who was innocent of the whole business.
Now in all this it is quite clear that A has peculiar duties not because he is a citizen, but because he is something more: an employer; and B and D have special claims on A, not because they are citizens, but because they are something less: viz. employees. They can claim protection from A, as inferiors of a superior in a State admitting such distinctions and patronage.
It will occur at once to the reader that in our existing social state the employee will be very grateful for such legislation. One workman cannot recover from another simply because the other will have no goods out of which to pay damages. Let the burden, therefore, fall upon the rich man!
Excellent. But that is not the point. To argue thus is to say that Servile legislation is necessary if we are to solve the problems raised by Capitalism. It remains servile legislation none the less. It is legislation that would not exist in a society where property was well divided and where a citizen could normally pay damages for the harm he had himself caused. 10
This first trickle of the stream, however, though it is of considerable historical interest as a point of departure, is not of very definite moment to our subject compared with the great bulk of later proposals, some of which are already law, others upon the point of becoming law, and which definitely recognise the Servile State, the re-establishment of status in the place of contract, and the universal division of citizens into two categories of employers and employed.
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These last merit a very different consideration, for they will represent to history the conscious and designed entry of Servile Institutions into the old Christian State. They are not “origins,” small indications of coming change which the historian will painfully discover as a curiosity. They are the admitted foundations of a new order, deliberately planned by a few, confusedly accepted by the many, as the basis upon which a novel and stable society shall arise to replace the unstable and passing phase of Capitalism.
They fall roughly into three categories:—
(1) Measures by which the insecurity of the proletariat shall be relieved through the action of the employing class, or of the proletariat itself acting under compulsion.
(2) Measures by which the employer shall be compelled to give not less than a certain minimum for any labour he may purchase, and
(3) Measures which compel a man lacking the means of production to labour, though he may have made no contract to that effect.
The last two, as will be seen in a moment, are complementary one of another.
As to the first: Measures to palliate the insecurity of the proletariat.
We have of this an example in actual law at this moment. And that law the Insurance Act (whose political source and motive I am not here discussing) follows in every particular the lines of a Servile State.
(a) Its fundamental criterion is employment. In other words, I am compelled to enter a scheme providing me against the mischances of illness and unemployment not because I am a citizen, but only if I am:
(1) Exchanging services for goods; and either
(2) Obtaining less than a certain amount of goods for those services, or
(3) A vulgar fellow working with his hands. The law carefully excludes from its provisions those forms of labour to which the educated and therefore powerful classes are subject, and further excludes from compulsion the mass of those who are for the moment earning enough to make them a class to be reckoned with as economically free. I may be a writer of books who, should he fall ill, will leave in the greatest distress the family which he supports. If the legislator were concerned for the morals of citizens, I should most undoubtedly come under this law, under the form of a compulsory insurance added to my income tax. But the legislator is not concerned with people of my sort. He is concerned with a new status which he recognises in the State, to wit, the proletariat. He envisages the proletariat not quite accurately as men either poor, or, if they are not poor, at any rate vulgar people working with their hands, and he legislates accordingly.
(b) Still more striking, as an example of status taking the place of contract, is the fact that this law puts the duty of controlling the proletariat and of seeing that the law is obeyed not upon the proletariat itself, but upon the Capitalist class.
Now this point is of an importance that cannot be exaggerated.
The future historian, whatever his interest in the first indications of that profound revolution through which we are so rapidly passing, will most certainly fix upon that one point as the cardinal landmark of our times. The legislator surveying the Capitalist State proposes as a remedy for certain of its evils the establishment of two categories in the State, compels the lower man to registration, to a tax, and the rest of it, and further compels the upper man to be the instrument in enforcing that registration and in collecting that tax. No one acquainted with the way in which any one of the great changes of the past has taken place, the substitution of tenure for the Roman proprietary right in land, or the substitution of the mediæval peasant for the serf of the Dark Ages, can possibly misunderstand the significance of such a turning point in our history.
Whether it will be completed or whether a reaction will destroy it is another matter. Its mere proposal is of the greatest possible moment in the inquiry we are here pursuing.
Of the next two groups, the fixing of a Minimum Wage and the Compulsion to Labour (which, as I have said, and will shortly show, are complementary one to the other), neither has yet appeared in actual legislation, but both are planned, both thought out, both possessed of powerful advocates, and both upon the threshold of positive law.
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The fixing of a Minimum Wage, with a definite sum fixed by statute, has not yet entered our laws, but the first step towards