JAMES A. JAFFE

Industrial Arbitration, Equity, and Authority in England, 1800-1850

In an obscure aside, the well-known English working-class radical, Francis Place, remarked in his Autobiography that even when "in deepest poverty" he had tried to serve other artisans. Some he had helped to train up as small masters or foremen while others he aided by working to settle their problems and disputes. "I had many matters brought to me for adjudication, arbitration or arrangement," he wrote. "I hardly know the time when for three months together I have been free from this kind of interference." Most matters it seems had to do with debtors and their creditors, but others appear to have concerned the settlement of estates or even affairs "related to an association or large body of men." ¹ While he may have been justly proud of his service to the working-class community, Place's comment provides an insight into working-class life that is rarely glimpsed. He did not choose the word arbitration accidentally. By the nineteenth century, life and work in England had been penetrated by forms of dispute resolution that were meant to secure "order without law." ² Indeed the arbitration of disputes by reference to independent individuals, frequently beyond the supervision or interference of the courts, was a well-recognized and common way to resolve contentious issues in many areas of English social life, including business ventures, contracts, property, and employment relations. ³
1

      During the first half of the nineteenth century, the most vibrant forms of arbitration were largely autonomous, free of judicial oversight, and operated independently of most statutory authority. In this sense, industrial arbitration during the early nineteenth century frequently was voluntary and often informal. ⁴ Nevertheless, in an attempt to deal with the apparent social and political unrest of the late eighteenth and early nineteenth centuries, the state increasingly sought to adapt these voluntary and informal systems of arbitration to the resolution of a whole range of civil disputes, most notably to those between employers and employees. In these latter cases, each attempt to "formalize" the arbitration of industrial disputes failed in the face of resistance from either employers or workers, and sometimes both. Instead, those voluntary systems of arbitration retained their vibrancy and proliferated throughout the first half of the nineteenth century.
2

      The existence of these forms of arbitration, both voluntary and statutory, raises several intriguing questions for both labor and labor law historians. First, parliamentary promotion of arbitration seems to present a striking paradox: At the same time as the early nineteenth-century "disciplinary state" was making its presence felt on issues of crime, poverty, social deviance, and even trade unionism, the state also appears to have attempted to construct alternative forms of industrial relations that were largely self-governing and autonomous. ⁵ Indeed Parliament's repeated attempts to institute arbitration as a means of settling disputes appear to be strikingly at odds with its simultaneous endeavors to criminalize trade unions through the famous Combination Acts. Therefore, whether Parliament's repressive attack upon trade unions in 1799 and 1800 is fully indicative of its industrial relations policy may bear further examination. Second, despite the repeated failures of parliamentary-sponsored arbitration, the persistence of voluntary forms of arbitration may indicate that there are significant limits to the extent to which the law itself imposes a structure upon social relations. Some recent work has suggested that the law plays an important role in the construction of broad social concepts such as "labor." ⁶ However, the vitality of voluntary systems of dispute resolution emphasizes the limits of the law as well as the extent to which social relations are constructed both beneath and beyond the law's grasp. ⁷ Finally, the persistence of voluntary arbitration apparently contradicts some of the most commonly held assumptions concerning the nature of industrial relations during the early nineteenth century. The labor historiography of this period has been built upon paradigms of struggle, repression, and conflict, paradigms that have left very little space for the existence of industrial arbitration or other means of dispute resolution. While the "linguistic turn" taken up by a few former labor historians questions some of these older paradigms, those same historians generally have forsaken the traditional objects of social history, preferring instead to analyze linguistic formulations of the social or political order. ⁸ An analysis of arbitration procedures during this period may help to refine questions concerning the paradigmatic value of such concepts by locating them within the context of a legal-historical perspective.
3

      To accomplish any of these aims, however, arbitration's claim to equity and fairness must first be distinguished from its effects, and it is here perhaps that its historiographical importance can be most clearly seen. Early nineteenth-century arbitration functioned on the premise that fair and impartial observers could decide issues that the participants in a dispute could or would not resolve themselves. Particularly in industrial disputes, arbitration sought to extract disputes from both the labor market and the shop floor and, by doing so, relocate them to a neutral arena where equitable principles, rather than economic power or the law, might preside. Such claims to equity had a powerful resonance among trade unionists as well as many employers and continued to attract the attention of business, union, and government leaders throughout the century. Yet in practice these pretensions differed significantly from their ultimate effects on the distribution of authority both in the labor market and on the shop floor. Arbitration, despite its claims to equity, was not neutral. Depending upon the circumstances of its introduction into the industrial relations of employers and workers, many arbitration schemes tended to consolidate asymmetrical power relationships rather than to redress them. Thus, workers who already possessed advantages in the labor market could gain from arbitration a set of working rules that ensured the retention of those benefits. Conversely, employer-sponsored schemes rarely shifted significant authority to independent arbitrators except under circumstances that might improve the employers' standing in the labor market or on the shop floor.
4

       Recognizing arbitration's role in the construction and elaboration of authority may support the importance of studying the employment relationship as a principal site for the articulation of social and legal relations. An analysis of the early development and deployment of arbitration in British industry reveals the employment relationship as a "contested terrain" that comprised elements of both conflict and cooperation. ⁹ It may, therefore, deepen and extend our understanding of the complex foundations of social relations during the early industrial period. More important, however, the history of arbitration can be used to understand how authority becomes constructed both on the shop floor and in civil society as well as the methods by which such power is "authorized." ¹⁰ Indeed, the history of early industrial arbitration in Britain presents a compelling example not only of the competing sources of authority in industry but also of the ways in which such power relationships are reproduced and sanctioned through institutions and discourses that present themselves as allegedly fair and impartial.
5

      Therefore the object of this article is twofold. First, it seeks to recover the vitality and variety of early nineteenth-century industrial arbitration in contrast to its more evident statutory incarnations. Second, it seeks to analyze and examine arbitration's claim to equity in order to account for the forms in which such voluntary schemes of arbitration were adopted and survived as well as the apparently inconsistent responses evoked by arbitration among masters and artisans. Such insights may contribute to our understanding of the origins and construction of social and industrial relations during the early nineteenth century.
6

I

The roots of arbitration run deep in British history although working-class participation in this process is often difficult to measure. The forms and procedures of arbitration were initially developed by canon lawyers in the late twelfth century and appear to have been broadly applied to secular matters after the middle of the fourteenth century. The church was particularly interested in promoting arbitration as were city and borough courts in their jurisdictions over guilds and corporations. While the most prominent arbitration cases of the medieval period related to feuding magnates and county gentry, medieval practices of arbitration quickly spread to many areas of the law, especially commercial and maritime law as well as contracts. ¹¹ By the Tudor and Stuart periods, a commoner may have had a dispute arbitrated under a great many circumstances. In the cities, masters and merchants might frequently find themselves before mutually acceptable arbitrators in matters concerning payment of accounts, the quality of merchandise, or foreign cargoes. ¹² Journeymen might also have recourse to arbitrators in disputes with their masters. The city chamberlain of London often arbitrated such disputes himself or appointed arbitrators from the master's company. ¹³ In many small towns and villages, disputes over small debts were often informally arbitrated by neighbors or the local clergy. ¹⁴ Even the courts encouraged the settlement of disputes by independent arbitrators despite the fact that their authority over such arbitrations was ambiguous. The seventeenth-century order books of the Western Circuit Assizes, for example, reveal that arbitration was ordered to resolve a vast array of disputes, including those as disparate as conflicts between a local vicar and his parishioners, domestic abuse, the keeping of ale houses, the settlement of paupers, road repairs, wages, the ownership of a gold ring, and even an apparent claim by several of the poor of Jacobstowe, Devon, upon the estate of a deceased woman. ¹⁵ Finally, arbitration was one of the principal means by which litigants in the ecclesiastical courts of the period were "positively encouraged to reach an out-of-court settlement to restore harmony between them as soon as possible." ¹⁶ There, arbitration was applied to cases involving allegations of defamation and slander and tithe disputes. It was also used to resolve conflicts over marriage contracts and the settlement of marriage property. ¹⁷
7

      By the end of the Tudor and Stuart periods, arbitration had become especially popular in the commercial sector, principally in order to avoid the costs and delays engendered by proceedings in the courts of common law and equity. There was, moreover, a growing interest emanating from the Board of Trade to put commercial arbitration on a statutory footing to ensure compliance to arbitrators' awards. Traditionally, there were few legal methods by which the performance of an arbitrator's award could be enforced and this was repeatedly mentioned as arbitration's principal weakness. Medieval arbitrators therefore had developed the concomitant procedure of entering into mutual bonds to secure the acceptance of the award. ¹⁸ The practice was thereby created by which failure to perform an arbitration award could be remedied by a parallel suit in breach of contract. Yet the possibility of such appeals undermined the potential value of arbitration. Therefore, John Locke, one of the members of the newly created Board of Trade in the late seventeenth century, resolved upon securing an act of Parliament to both facilitate the resolution of commercial disputes by the use of independent referees and to prevent appeals to the courts. The result, as Horwitz and Oldham have noted, was largely a confirmation of developing practices. The 1698 Arbitration Act stipulated that arbitration agreements could be enrolled in a court of record and defaulters punished for contempt of court. ¹⁹
8

      The relatively few arbitration agreements registered by the courts of King's Bench and Common Pleas (141 in 1785) may indicate the sclerosis that such bureaucratization often entails. ²⁰ However, the relative failure of arbitration under rule of court masks the proliferation of arbitration practices that nonetheless proceeded during the eighteenth and nineteenth centuries. Partnership agreements, for example, frequently included provisions pledging the signatories to arbitrate their disputes before seeking satisfaction in the courts. ²¹ The most respected contemporary guide to late eighteenth- and early nineteenth-century commercial arbitration, Stewart Kyd's A Treatise on the Law of Awards, noted that "it is usual, in articles of copartnership, and not uncommon in other agreements, to insert a provision or covenant, that all disputes arising between the parties relative to their intended transactions, or to any covenant in the articles, shall be referred to arbitration." ²² Indeed such covenants to refer disputes to arbitration were also commonly included in insurance policies from at least the second quarter of the eighteenth century as well as in building contracts before 1830. ²³ A. W. B. Simpson has even found arbitration clauses in the rule books of employers' organizations during this period. He suggests that most business people would have found it ridiculous to take highly complicated business matters before a jury. ²⁴ Simpson's judgment might very well apply to the arbitration of most matters of social and industrial relations.
9

      The vibrancy of arbitration beyond the 1698 Act was due in part to its flexibility. Kyd maintains that oral agreements were common and that arbitration agreements varied considerably in both their forms and their promises to perform awards. Of equal importance perhaps was the fact that the courts acquiesced in the extension of the practice of arbitration to cover a wide range of civil and commercial issues. According to Kyd, reference to arbitrators could legally be made in cases of "debt arising on a simple contract; a demand of rent for use and occupation; a complaint of slander; trespass of every kind, whether personal or on the land of the complainant; and, in general, all kinds of personal wrong, where, by the policy of the state, the injury done to the individual is not considered as merged in the public crime, or where it does not include an offence against the public manners." Therefore, the matters that were exempt from arbitration were largely those against church and state including murder, robbery, adultery, forgery, and sacrilege. Disputes concerning the standing of persons in civil law such as bastardy or social status were also exempt as were most matters of record such as those for the recovery of damages or interest that had been specifically described in a deed or bond. ²⁵
10

II

Despite the broad reach of voluntary arbitration, parliamentary interest in formalizing it languished after the passage of the 1698 Act until the very beginning of the nineteenth century. Then, the nearly simultaneous passage of the so-called Cotton Arbitration Acts of 1800 and 1804 and the notorious Combination Acts of 1799 and 1800 revealed a new and more expansive interest in resolving industrial disputes though arbitration. For most of the eighteenth century, Parliament had been groping toward an industrial relations policy that had sought to the criminalize trade unions. The model for much of the eighteenth-century's legislation against unions was the act passed in 1720 outlawing combinations among journeymen tailors of London and Westminster. The recourse to legislation at that time was perhaps stimulated by the complaints of the London and Westminster master tailors who had failed to gain convictions of their journeymen for combination under common laws of conspiracy. According to James Moher, however, the resulting act was neither exceptionally one-sided nor repressive. Instead, it guaranteed certain concessions to the journeymen, including the restriction of working days and the privilege of appealing to magistrates for both the adjustment and enforcement of new wage rates based on the cost of living. ²⁶
11

      The Combination Acts of 1799 and 1800 that outlawed trade unions were an important departure in government policy, although the precise degree of that departure is still a matter of dispute. The acts, of course, effectively outlawed trade unions by making it illegal for workers to enter into contracts or agreements to obtain an advance of wages, alter the hours of work, limit output, or to prevent others from working. ²⁷ Yet the criminalization of trade unions or shop clubs either by statute or the common law of conspiracy was certainly nothing new, as has frequently been noted. ²⁸ Moreover, as Malcolm Chase recently has suggested, the acts served as enabling legislation, making prosecution possible by those masters who chose to use it rather than requiring the state to intercede in the sphere of industrial relations and initiate such action. ²⁹ What then was new in the Combination Acts? They significantly expanded the summary jurisdiction of magistrates to prosecute workers who sought to form unions or to deter others from working. (It should be noted, however, that not only did magistrates frequently mediate industrial disputes during the late eighteenth century, but also that Parliament had found the expansion of JPs' summary authority to be a ready remedy for a variety of ills during the previous century. ³⁰ ) Moreover, the acts were drafted to be applied to industrial relations generally and not to individual industrial sectors, as had been the case in the past. ³¹
12

      While the purpose of the 1799 Act was probably to establish a more speedy and effective way to prosecute combinations (rather than to create any new crime), the petitions of workmen received by the House of Commons after the act's passage uniformly protested the criminalization of breach of contract. ³² Many petitions seem to have implicitly accepted the criminality of combination; at least none explicitly rejected the notion. Most complained that under the new act employees who refused to work when hired or refused to work with other laborers became subject to criminal prosecution. Yet parliamentary reaction to the workers' protests sought both to expand the repressive impact of the law and to blunt the criticism of the criminalization of breach of contract. ³³ When the act was reviewed the following year, many amendments either broadened the language of the act or tightened up procedures. For example, the definition of offenses was extended significantly from "direct or indirect actions" to "wilful and malicious intent." On the other hand, the summary jurisdiction of one justice in the original act was expanded to two. ³⁴ Two further prominent alterations to the 1799 act were new sections criminalizing masters' combinations and a prohibition against interested masters from serving as justices in combination cases. Yet the most extensive change by far was the addition of five new sections to the act providing for the resolution of a variety of disputes over wages and work through arbitration. ³⁵ The new act empowered either a master or worker to initiate the arbitration process upon the delivery of a complaint to the other party. As was traditional in arbitrated matters, the arbitrators themselves needed no special requirements or qualifications. However, unlike traditional civil or ecclesiastical practices, arbitrators functioning under the terms of this act were authorized both to issue summonses and to examine witnesses under oath. Moreover, persons who refused to enter into arbitration could be fined by the local justices of the peace up to £10, and those who failed to attend an arbitration hearing, refused to give evidence, or failed to perform an award could be imprisoned without bail. Therefore, if Prime Minister William Pitt and Parliament were intent upon establishing a new industrial relations policy at this time, it may very well have been one based upon something akin to the principle of compulsory arbitration. ³⁶
13

      Indeed the importance of arbitration for a new industrial relations policy becomes even more apparent when the amended Combination Act of 1800 is viewed alongside the so-called Cotton Arbitration Acts of 1800 and 1804. As John Orth has shown, the committee that revised the Combination Act drew upon the arbitration provisions that were then being drafted for a separate bill governing industrial relations in the cotton trade. ³⁷ The 1800 Cotton Arbitration Act applied solely to the cotton weaving trade and provided for the appointment of a pair of arbitrators, one each by the worker and master, to resolve disputes concerning wages, deductions, standards of production, and the like. ³⁸ In the event that these arbitrators could not agree on an award, the dispute was to be referred to the nearest justice of the peace for a hearing and summary decision. Justices of the peace were further authorized to imprison or fine those who refused to attend, participate, or abide by the arbitration process. As in the 1800 Combination Act, the arbitrators were accorded the power to summon witnesses and examine them under oath, and manufacturers (and their workers) were expressly forbidden from acting as magistrates in these cases. ³⁹
14

      This act proved to be popular among cotton workers, especially for resolving disputes concerning the standards and quality of both raw materials and finished work. James Holcroft, a Bolton warehouseman, was an arbitrator in about three hundred cases; Richard Needham, a Bolton weaver, helped arbitrate about one hundred other cases during the first two years of the act. ⁴⁰ However, the act failed to protect the weavers against uniform reductions of wages by manufacturers or to insulate them from the rising cost of living. The weavers of Whitefield made a particularly clever attempt to adapt the act to these broader goals. Nine hundred of them simultaneously submitted their demands for arbitration in response to a general reduction of piece rates. Significantly, the question of whether the terms of the act could be construed to operate in this way was entertained first by a pair of arbitrators who then agreed to refer the matter to an attorney for an opinion. When the attorney, whose costs were paid jointly by the weavers and manufacturers, returned a judgment favorable to the weavers, the manufacturers sought a further opinion from the irascible Edward Law (soon to be Lord Ellenborough) who wrote a brief more to their liking. Both opinions were referred to the next Quarter Sessions where the magistrates decided that the weavers' actions were tantamount to an attempt to regulate wages and thus were illegal. ⁴¹
15

      By the beginning of 1802, therefore, both the weavers and the manufacturers had reason to be dissatisfied with the act and had begun to organize campaigns to either amend or abolish it. For the weavers, the act failed to protect them against uniform rate reductions and they therefore sought to revise the act to include mechanisms for the regulation of wages. The manufacturers, on the other hand, sought the act's total repeal. They argued that it had not only led to a spate of frivolous litigation, but it also had led to the loss of time for both weavers and manufacturers. Moreover, they speciously argued, the litigation engendered by the act had soured the relationship between masters and servants. ⁴² Revisions to the act, passed in 1804, reveal that Parliament's faith in arbitration had been diminished but not totally extinguished. The most important effect of the new arbitration act was to reduce the discretionary authority of arbitrators. ⁴³ Its first section annulled the legislation of 1800 and specifically repealed an arbitrator's power to administer oaths. Instead, the summary jurisdiction of magistrates became the preferred forum of adjudication on the condition that both parties agreed to submit the dispute to them. Arbitration to settle disputes was retained but only under more significant magisterial regulation, notably including the new power to compel arbitration. In the event that one or more parties rejected the summary adjudication of a dispute, justices were given the authority to force reluctant parties into arbitration and to propose a list of suitable arbitrators. After each of the parties selected an arbitrator from the list, the dispute was to be heard within forty-eight hours and the arbitrators' decision was final. Further discretionary power was given to JPs to appoint new arbitrators if the original arbitrator failed to appear or refused to act and to impose a settlement if the arbitrators failed to settle the dispute. The power of the magistrates to imprison those who refused to enter into or abide by arbitration was repealed, but the £10 penalty for noncompliance was retained. Interestingly, the prohibition against cotton manufacturers serving as magistrates in weavers' disputes also was repealed.
16

      By most accounts, the new Cotton Arbitration Act was widely disregarded. ⁴⁴ Indeed, it seems to have foundered on the fundamental contradiction inherent in the attempt to apply an individualistic mode of settling disputes to a collective system of industrial relations. Both attempts to reduce wages and attempts to raise them operated uniformly across working groups regardless of the individual nature of the contract. The assumption that individual arbitration could resolve a conflict over a uniform wage reduction, therefore, was misplaced and likely to fail. As Lord Amulree suggested long ago, industrial arbitration without combination was like "giving a man a bicycle to make up for the loss of his legs." ⁴⁵
17

      This failure may have had a chastening affect on the legislature's affinity for arbitration for at least the succeeding two decades. However, in 1820, only a year after expanding the summary jurisdiction of magistrates to cover the recovery of seamen's wages, Parliament revived the application of arbitration to industrial disputes by providing seamen and their masters the opportunity to seek redress through the intervention of arbitrators. ⁴⁶ In 1824, the effort to expand the application of forms of arbitration was again promoted in conjunction with the repeal of both the Combination Act and the Cotton Arbitration Act. As in 1800, arbitration was encouraged as an expedient remedy to industrial disputes at the same time that the law relating to trade unionism was under consideration. ⁴⁷ The 1824 act tried to resuscitate the 1804 legislation and expand its purview by applying arbitration to all employment relations throughout the kingdom. Much of the regulatory power of the magistracy introduced in the 1804 act remained intact although arbitrators were given new authority to issue summons. Significant authority was also accorded to justices to enforce awards, including the attachment and sale of goods as well as imprisonment without bail. ⁴⁸ This later led one commentator to remark that by this act "English judges have been granted powers of compulsory arbitration." ⁴⁹ The prohibition against manufacturers acting as justices in industrial disputes was restored and even extended to include their agents. It is interesting that Francis Place, who advised the M.P. Joseph Hume on the repeal of the Combination Acts, suggested that the arbitration clauses were both excessive and restrictive. They were, he wrote, "unnecessary and making a plain familiar case, complex and difficult. Making in fact the most ordinary occurance [sic] of as much importance as one involving thousands of pounds.... People know very well that they may arbitrate without all this cursed Grim-Gribber." ⁵⁰
18

      Indeed this act fared no better than its predecessors. A parliamentary committee of the mid-1850s found it difficult to uncover examples of cases that had been arbitrated under its terms and attributed much of the resistance to implementing the act to the unwillingness of workers to bring their cases before the local magistrates. On the one hand, it was noted at the time, such an appearance bore too great a similarity to a criminal proceeding while, on the other, magistrates in manufacturing districts were not considered to be sufficiently impartial to arbitrate industrial disputes. Francis Place's estimation of the magistracy in this regard was probably not uncommon: "I never knew an instance of the Magistrates acting towards the men with any thing but insult and injustice." ⁵¹ Other than for some rare exceptions, the 1824 act was practically a dead letter. ⁵²
19

      Yet, through the succeeding years, Parliament's desire to encourage arbitration was marked although equally notable was the fact that these efforts were often directed at institutions whose social composition was largely lower-middle or working class. The Savings Banks Act (1828) and the Friendly Societies Act (1829) both bear witness to the legislature's efforts to promote arbitration among the "lower orders." ⁵³ Moreover, parliamentary acts in 1833 and thereafter reveal a pronounced trend toward placing arbitration agreements increasingly under the auspices of the courts. Thus, acts of 1833, 1845, 1846, and 1854 all expanded judicial oversight of arbitration agreements. The 1854 act made all arbitration agreements a de facto order of the court unless the parties specifically agreed otherwise. ⁵⁴ As H. W. Arthurs observed, by mid-century arbitration clauses were routinely appearing in many parliamentary acts including those as disparate as the Coal Mines Inspection Act of 1855 and most of the public railway acts of the period. ⁵⁵
20

      Not surprisingly, a prominent barrister's handbook of the mid-1830s lamented these developments. "However imperfect and objectionable may be the mode of deciding facts by a jury," Chitty's Practice argues, "it seems difficult to suggest a more satisfactory tribunal.... [W]e cannot ever anticipate a certain [,] just and correct decision upon any subject, by one or two individuals ... and hence, men naturally prefer an open trial by jury ... to a private decision by an arbitrator." Chitty's faith in trial by jury was further supported by his claim that arbitrators lacked knowledge of both the law and rules of evidence, an ignorance that frequently lead to errors and faulty judgments. Even when the arbitrators were barristers, Chitty insists, they most likely would have little experience because "those in great practice cannot spare the time to devote several continuous hours" and attend the numerous meetings that frequently characterized arbitration proceedings. "It is therefore a natural desire of litigating parties," Chitty noted, "not to trust their case to the decision of a single arbitrator, or even of three; for if Judges sometimes will doubt, and sometimes misapprehend the law or the facts, what confidence can be justly reposed in the opinions of men naturally supposed to be of inferior talent. As, therefore, trial by jury has long been considered every Englishman's birthright, it is not surprising that hitherto any attempt generally to take away that right, and force arbitration, even under the recommendation of a Judge, has been unsuccessful." Yet even under these circumstances, Chitty was forced to admit that arbitration was a form of legislative "mercy" for "persons little able to sustain the expense of formal litigation." ⁵⁶
21

III

The failure of the statutory expansion of arbitration into industrial relations during the early nineteenth century, however, was neither as complete as Chitty suggests nor should it be allowed to obscure arbitration's continuing influence among working-class Britons. As Francis Place noted, people knew very well that they could settle their disputes through arbitration and without recourse to the law. Yet labor and legal historians have often neglected this observation, preferring instead to trace the origins of industrial arbitration to A. J. Mundella's Nottingham Hosiery Board or Sir Rupert Kettle's Midlands schemes of the 1850s and 1860s. ⁵⁷ Such a view often reflects the assumption of a stadial maturation of industrialization, a learning of the "rules of the game," to use Eric Hobsbawm's famous description, whereby the defeat of working-class radicalism and the stabilization of industrial capitalism ushered in an era of pragmatism, reformism, and social compromise. ⁵⁸ Thus the advent of arbitration is frequently understood only as evidence of a mid-Victorian social reconciliation that was ultimately based upon progress and the advance of capitalism. ⁵⁹ However, such a view is seriously misleading. A wide variety of trades, some as distinctive as handloom weaving, carpentry, printing, and coal mining, elaborated or participated in forms of industrial arbitration before this period while still others eagerly sought to adopt it. Different formats for collective arbitration developed during the early nineteenth century, either across a trade or among work groups, at the same time that more traditional forms of individual arbitration were still being actively pursued within the context of labor relations. In some instances, individual arbitrations were undertaken as test cases, the results of which were meant to be applied to the trade generally.
22

      Certainly, both employers and workers perceived advantages to be gained from collective arbitration. For workers, several of these are obvious: the avoidance of strikes or lockouts, the legitimation of both their economic demands and their social standing, and the opportunity to receive a "fair" hearing. There is little reason to doubt that many employers, especially small-scale ones, construed the advantages of arbitration in a similar manner. A lengthy strike or lockout might easily threaten the livelihood of a small employer or disrupt production enough to cause significant pecuniary losses. Moreover, large-scale employers in highly competitive industries might hope to use arbitrated settlements as an indirect way of controlling competition. Especially when it was applied to large groups of workers, such as the Staffordshire potters or the London compositors of the 1830s, arbitration could have the effect of limiting competitive price cutting or controlling wage increases.
23

      Nevertheless, arbitration's abstract appeal to many workers lay fundamentally in the promise of fairness. Francis Place suggested that there was widespread acceptance of independent arbitrators' decisions among the working class. "I have arbitrated many cases," he wrote, "always without any written form of submission, always without any [umpire] and never knew the parties refusing to abide by my decision." ⁶⁰ In a different context, the London compositors' union justified the maintenance of their price list through an arbitration system by explaining that "your officers have invariably considered themselves as arbitrators—and thereby, acting in the true spirit of Justice." ⁶¹ A Scots handloom weaver in 1836 lauded the passage of the arbitration acts "for had it not been for legislative interference in passing [them], the weaver ... would be obliged to submit to the dictation of his employer." ⁶² The Articles and Regulations of the West Riding Fancy Union in 1824 sought to establish district committees with the power to settle disputes in an amicable way between workers and their employers through arbitration. ⁶³ A poor Leicester framework knitter pleaded for the creation of an "impartial body ... to arbitrate between the [masters and workmen], and before whom the merits of the subject in dispute can be fully and frankly debated." ⁶⁴ Finally, in 1856, Thomas Winters, secretary of the National Association of United Trades for the Protection of Industry, a national workers' union that promoted arbitration, testified to the working-class support for arbitration schemes. "I do not know one case," he told a parliamentary committee, "in which the lower classes have not respected the decisions given, whether they were for them or against them, or whether they took a middle course." ⁶⁵
24

      It is worth considering whether the equity promise of arbitration was ever actually fulfilled. The answer is not as simple as it may appear. When applied to industrial relations, arbitration is not solely a benign method to resolve disputes and harmonize divergent interests. It is, more importantly, a method by which working rules are ultimately established and precedents determined. In the language of industrial relations specialists, arbitration is a method of "job regulation." An intense debate took place among industrial relations experts during the 1960s and 1970s over the precise focus of the study of job regulation. The so-called "pluralists" argued that job regulation should comprise the study of both the written and customary rules circumscribing the employment relationship while the "radicals" stressed the study of the substantive degree of workers' control of the labor process and labor market. ⁶⁶ Both radicals and pluralists, however, implicitly agreed that, when studying the process of job regulation, the authorship of working rules could be an effective indicator of the balance of power within the industrial relations process. ⁶⁷ That is, the analysis of the procedural and substantive rules themselves does not fully reveal the relative distribution of power in industry or on the shop floor; instead, the study of who was actually responsible for authoring those rules may well be a more sensitive measure. The term "authority," therefore, needs to be understood in two senses: the first referring to the "authors" of the working rules, and the second to the moral suasion subsequently given to those "authors" to secure compliance to arbitrated settlements. ⁶⁸ Thus the question of fairness, while not wholly irrelevant, is often inappropriate. The promise of arbitration was likely to be fulfilled only to those who exercised both the authorship of the pledge to arbitrate and the authority to implement the process. Since both workers and employers could derive benefits from its adoption, the history of the early period of industrial arbitration is most notably marked not by the peaceful resolution of industrial disputes, which nonetheless cannot and should not be ignored, but by the conflicts over the authority to implement and control arbitration schemes.
25

      One of the most extensive and formalized systems of arbitration in the first half of the nineteenth century is found in the Durham and Northumberland coal industry, an industry certainly not noted for any claims to equity. Coal miners, it is well known, were among the earliest groups of workers to be employed under the terms of a formal written contract, called "the bond." By the early nineteenth century, bonds throughout the northern coalfield had become relatively standardized and by 1826 a uniform printed document for all collieries had been produced. The terms of employment commonly included the commitment to work for one full year, a detailed description of wages and allowances, a list of fines and penalties for substandard workmanship, the amount of compensation to be provided in the event of temporary pit closures, and the provision of housing as well as several other articles. ⁶⁹ The colliery's "viewer," a person who acted as both mining engineer and colliery manager, was responsible for industrial relations at the site and thus negotiated the signing of the bonds on the part of the owner.
26

      As early as 1808, bonds began to include an article providing for the settlement of some disputes by arbitration. ⁷⁰ The pertinent section from an 1812 bond for the miners at Washington Colliery, County Durham, reads as follows: ⁷¹
27

AND LASTLY, it is hereby agreed that in case any dispute or difference shall arise between the said hereby contracting parties relative to any matter or thing not hereby provided for, such dispute or difference shall be submitted to the decision of two viewers of collieries, one to be appointed by the said owners, etc. and the other by the said hereby hired parties of the other part, and in case of their disagreement, to the decision of a third person chosen by such two viewers, and the judgment and decision of such two viewers or umpire as the case may happen shall be conclusive between the parties on the matters referred to them....

Although the bonds referred in a vague way to the use of arbitration to resolve any dispute, it was most common for these provisions to be applied to disputes concerning the piecework prices offered to miners to work different coal seams under a variety of working conditions. Disputes over these prices could occur quite frequently because conditions at the coal face, where the coal was being dug out, could and did change often. ⁷² A few bonds, such as the 1830-31 bond from Black Boy Colliery in south Durham, also included arbitration clauses specifically covering disputes over the size of the tubs used to transport coal to the surface, although this does not appear to have been common in the Tyneside area. ⁷³ The important point about the standard piecework arbitration clause is that, despite the fact that the miners could select a viewer to represent them, it provided for a process that proceeded solely under the auspices of the viewers who were, of course, interested parties in the dispute itself.

      Many miners naturally found this distinctly "unfair." An 1826 pamphlet published by the United Association of Colliers suggested that this particular form of arbitration violated an Englishman's right to a jury of his peers. It proposed instead to revise the bond so that new arbitration panels would be staffed equally by two viewers appointed by the owners and two miners by workmen. ⁷⁴ In 1832, a "grand assemblage" of miners at Hetton Colliery in Durham complained to the owners about a number of the terms of their bond, including the arbitration clause. But the owners "remained firm to hold them to the terms of their Bond, viz. Reference in case of Dispute," the viewer recorded in his diary, and the miners "went away completely worsted—and of Course grumbling hugely." ⁷⁵
28

      Without widespread support from the pitmen, the arbitration clauses of the bond may have been only fitfully invoked. Michael Flinn reported evidence of one dispute in Lord Durham's collieries that was successfully arbitrated. ⁷⁶ At Black Boy Colliery, near Bishop Auckland, a dispute over the measurement of tubs was settled by reference to two justices of the peace in June 1831. The JPs found in favor of the miners and ordered the mine's viewer to compensate them accordingly. ⁷⁷ However, a more flexible approach to arbitration procedures is also evident from some incidental testimony given in the 1832 trial of several pitmen for rioting at Waldridge Colliery in Durham. The so-called Waldridge Outrage, when striking miners dumped various gear down the mine shaft, stopped the pumping engines, and threatened the lives of several nonunion workers at work down the pits, was the culmination of a series of disputes dating back to the opening of the colliery in 1830. ⁷⁸ In the autumn of 1831, several months after the initially successful strike led by Thomas Hepburn, disputes arose over the piecework prices being paid there. ⁷⁹ Whether because the colliery was relatively new or the viewer, Anthony Seymour, was unfamiliar with arbitration practices, Seymour at first proposed that the wage dispute be arbitrated by a panel of sixteen men, not necessarily viewers, from eight surrounding collieries. According to Seymour's testimony before the Durham Assizes, the miners were to select one man from each of the neighboring collieries as arbiters and the colliery masters were to do the same. The miners initially accepted this proposal but it was abandoned shortly thereafter, perhaps because it was so unusual.
29

      Subsequently, Seymour adopted the standard form of arbitration and two viewers were chosen, one by the miners and the other by the colliery owners, to arbitrate the dispute. The arbitrators met and agreed upon a wage settlement. Although the testimony is somewhat confused on this point, at least some of the miners refused to accept the settlement and left the colliery. Because the prosecution hoped to establish the fact that the colliery owners had undertaken all reasonable attempts to settle the dispute, Seymour was led to insist that, despite the initial confusion, he had properly adhered to the standard arbitration procedures. "The wages were settled by 2 men, and not by 16 men," he persistently maintained. "Two viewers were appointed, one by the men and one by the masters, to arbitrate between them. The arbitrators did not differ. He still has the decision of the viewers in his pocket." As if to emphasize the miners' responsibility for the failure of arbitration, Seymour concluded that the pitmen even refused to ask for an umpire, which was one of their prerogatives under the terms of arbitration in the bonds.
30

      Therefore, the northern miners appear to have harbored no great affinity for arbitration, at least so long as the viewers monopolized it. When the Hetton Colliery banksmen, who supervised the unloading of coal at the pit head, demanded an increase in piece rates, the viewer there first offered to "leave their Agreement to the decision of any Magistrate or Gentlemen in the neighbourhood." However, on second thought, he next offered them half of what they originally demanded or the option "to go to reference," that is, arbitration. The banksmen rejected both offers, went off to try to bargain directly with one of the owners of the colliery, but eventually were forced back to work when the viewer swore out warrants against them for breaking their bonds. ⁸⁰
31

      After the failure of the 1844 miners' strike and the introduction of a monthly instead of an annual contract, the arbitration section apparently disappeared from the bonds, although it is not certain whether it disappeared in practice as well. ⁸¹ The equity promise of arbitration, however, certainly persisted into the next half of the nineteenth century. In 1871, William Crawford, head of the Durham Miners' Association revived the process in the form of the so-called Joint Committee, a now formal board of arbitration comprised of both miners' and owners' representatives. ⁸² Even though the Joint Committee soon came under attack for its failure to protect miners' earnings and was replaced by the sliding scale (a type of arbitration based upon reference to the market price of coal), both forms of dispute resolution were introduced under decidedly different terms of authority. Jointly authored (and authorized), the Joint Committee and the sliding scale mark a temporary renegotiation of industrial relations in the industry that gave to these forms of arbitration a much wider aura of legitimacy, if not a great deal of long-term success.
32

      The introduction of a long-term written contract, such as the miners' bond, may have greatly facilitated the adoption of arbitration, if only because commercial contracts regularly included such clauses and local attorneys were familiar with these provisions. ⁸³ The Staffordshire potters of the 1830s provide another example of such a development. This may appear surprising at first since the potters of this era are known to historians primarily for their attachment to Owenite socialism. ⁸⁴ But, like the northern miners, the early existence of contractual forms of individual arbitration provides a link to the more widely recognized adoption and acceptance of the industry's Board of Conciliation and Arbitration in the latter half of the nineteenth century. Indeed, the similarities in the pattern of industrial relations exhibited by the Durham and Northumberland coal miners and the North Staffordshire potters are too striking to ignore. Both groups operated within the context of an annual contract; both were faced with highly organized combinations of masters; both worked on a complicated piece-rate system; and both maintained a tradition of sporadic industrywide attempts at collective bargaining that overlay a more or less continuous stream of small-scale individual or work group bargaining. ⁸⁵
33

       As with the northern coal industry, arbitration was apparently introduced into the potters' annual contract by the manufacturers at the end of a prolonged rise in wages that coincided with a period of intense union activity. Whereas for the miners these developments were precipitated by the labor shortages caused by the Napoleonic Wars, potters' wages appear to have been steadily rising for much of the decade following the collapse of their union in 1826. ⁸⁶ In 1833 there was an initial attempt to construct a type of arbitration board. Composed of an equal number of workmen and manufacturers, this "joint committee" worked to equalize wages throughout the district by elaborating a list of prices for pottery work and then met weekly to resolve further disputes as they arose. ⁸⁷ However, the apparently "fair" composition of the committee did not obscure its purpose and effect, for it disbanded shortly thereafter amidst mutual recriminations. Part of the blame for the committee's collapse was attributed to the fact that some branches of the potters' union had become dissatisfied with the agreements reached by arbitration, apparently because they had limited potential wage increases and refused to sanction the deals entered into by their delegates. ⁸⁸
34

      But while the potters were becoming less sanguine about arbitration, it continued to capture the imagination of the pottery manufacturers as a way to control rising wages. In 1834, when potters in Burslem and Tunstall struck for a wage rise, the manufacturers responded by suggesting the creation of a new arbitration board, this time composed of five manufacturers, three of whom would be appointed by the potters and two others by the manufacturers. ⁸⁹ When the potters rejected this proposal, the manufacturers then offered to expand the board to twelve members and include six working potters. ⁹⁰ However, the potters steadfastly refused both offers, not only because they believed that their strike demands were just but more importantly because they believed that arbitration had worked against them. Thus they announced that "having duly considered the resolutions of the manufacturers' meeting ... [the union's executive committee] find that, notwithstanding all its efforts to bring such meeting to acknowledge a fair principle to legislate upon, has hitherto failed in such efforts." ⁹¹ The potters' strike eventually succeeded and gained for the workmen wage increases estimated at between 30 and 35 percent.
35

      Chastened by their defeat, the manufacturers formed a Chamber of Commerce in 1836 with the intent of turning the terms of the annual contract against the potters. Another strike and corresponding lockout occurred at the annual hiring time in 1836. While the results of these actions were initially equivocal, the potters' union subsequently failed under the burden of its strike debts. Under these circumstances, the manufacturers inserted an arbitration clause into the contract that stipulated the resolution of wage or price disputes through arbitration boards composed of three manufacturers and three workmen. ⁹² The intent of the arbitration clause in the potters' contract, it may be surmised, was to apply a brake to the long-term rise in potters' wages and not to share authority over wage setting. Despite the plaudits the trade later received for its pioneering efforts in industrial arbitration, workers remained suspicious of it while employers continually sought to reinvigorate it. ⁹³ In 1845, for example, William Evans, editor of the Potters' Examiner, spoke out against the creation of regional arbitration boards at the National Conference of Trades. ⁹⁴ During the next decade, a new arbitration system instituted by the Chamber of Commerce was described by one working potter as a "proposition of the masters themselves" and "not so mutual that it might not be improved." ⁹⁵ Indeed the establishment of the more well-known Board of Arbitration and Conciliation in 1868 was due largely to the efforts of M. D. Hollins, who was chairman of the Potteries Chamber of Commerce. ⁹⁶
36

      The early nineteenth-century northern coal and pottery industries represent arbitration systems largely regulated by owners and management. By contrast, the London compositors of the same period offer a glimpse of arbitration devised and regulated by employees. The London master printers and the compositors had been searching for a way to resolve industrial disputes since at least the late eighteenth century. ⁹⁷ A trade price list for compositors' piece rates had first been produced as early as 1785 and subsequent revisions to this list were often the result of joint negotiations between the master printers and journeymen compositors. The lists produced in 1805 and 1810 ultimately became the basis for industrial relations in the trade throughout much of the nineteenth century. ⁹⁸ By the mid-1820s, however, the compositors' union had begun to draw opposition from a small group of rank-and-file dissidents who broke off to form the London General Trade Society of Compositors (LGTSC) in 1826. The LGTSC sought to open itself to a much wider pool of workers in the printing trade by both lowering weekly dues and eliminating the requirement that all members serve a full seven-year apprenticeship. ⁹⁹ Not only did the LGTSC assert that it wanted to be open to "every individual ... who wishes to be considered a fair workman and an honourable member of Society," but it also expressed the belief "that the trade can boast of hundreds of public-spirited men, who will cheerfully contribute their mite to advance the general good; but whose circumstances will not permit them to expend fourteen shillings a year for that purpose." ¹⁰⁰
37

      The LGTSC also distinguished itself from the parent union by its desire to improve industrial relations between the printing masters and the compositors. Therefore, it created a committee of eight union members to arbitrate disputes over piecework prices, working conditions, and other related matters whose explicit goal was to elicit from the masters a feeling of respect and interest in the Society that would help "to ensure a compliance with all fair and reasonable demands." ¹⁰¹ Indeed the success of the LGTSC arbitration committee was ultimately recognized by the parent union, the London Trade Society of Compositors. A so-called Union Committee comprised of arbitrators from both unions was formed five years later in 1831 and, when the two unions merged once again to form the London Union of Compositors in 1834, the arbitration committee emerged once again as the Trade Council. ¹⁰² For many leaders, the arbitration committee was the essence of the union. "Let not the utility and importance of your Society be questioned," a union publication proclaimed. "The usefulness of an institution which arbitrates between two adverse parties, where one is inclined to have, and the other to withhold, must be so apparent to all reasonable men, as to render any observations from your committee wholly unnecessary." ¹⁰³
38

      The compositors' arbitration committee functioned only after disputes in individual workshops were referred to them for settlement. In fact, LGTSC members were ineligible to make a claim on union funds if they had quit their employment without first presenting their complaint to the committee. ¹⁰⁴ Most cases heard before the committee concerned questions of whether the prices being offered by master printers accorded to the 1810 scale. In the simplest of them, the committee might review the disputed printed matter and pronounce a judgment that was then presented to both parties. For example, in December 1829 a deputation of two compositors from Littlewood's printing house submitted a dispute over the charges to be assessed for reprinting a number of the Law Magazine. After viewing the material, the arbitration committee drafted a note to be delivered to the master printer that read: "The Committee of the L.G.T.S.C. are of the opinion that the number of the Law Magazine submitted to them comes strictly within the meaning of Article 7. of scale and ought to be paid two shillings and six-pence, independent of the charge for the bottom notes." ¹⁰⁵
39

      When disputes could not be satisfactorily resolved by reference to the scale, the arbitration committee often invoked other ad hoc forms of arbitration, frequently by encouraging master printers to arbitrate the dispute themselves. For example, when the LGTSC arbitration committee appeared unsure about the resolution of a dispute over the payment for composing a broadside, it simultaneously delivered its decision to the master and offered to submit the case to a "reference," that is, arbitration. In response, the master printer agreed to submit the case to the arbitration of three other masters. This particular attempt at arbitration nearly failed when one of the arbiters refused to give an opinion on the matter. Not to be dissuaded, however, the union committee appointed a deputation of compositors to call upon the masters and overseers of thirteen leading printing houses and poll their opinions of the matter. In less than a week, twelve printing houses had responded, eight of which supported the committee's pricing of the job while four opposed it. Even this did not secure the master's immediate compliance. He subsequently undertook a series of his own enquiries only to offer in the end to send the matter back to the arbitration of the three master printers initially agreed upon. This time, however, the referees were unanimous in their support of the union committee's decision, and the master printer finally accepted their verdict. The arbitration committee was obviously proud of this achievement and reported to the union members that "the long-disputed broadside was at length settled—on the basis first directed by them, viz. a reference to two or three respectable master printers." ¹⁰⁶
40

      By the mid-1830s, London master printers were becoming uneasy about the union's control of their system of dispute resolution through arbitration. Increasingly aware of this, the new London Union of Compositors, formed in 1834, sought to bring the masters onto these councils of arbitration. Article Seven of the union's Rules and Regulations adopted in that year stated that "to avoid the injustice frequently arising from acting on exparte statements, in all cases of disputes, wherever practicable, the trade-council shall hear the statement of the employer on the subject, either from himself, his overseer, or agent; and whenever desired by masters, the price for disputed works shall be decided by arbitration. The arbitrators to consist of an equal number of masters and members of the trade-council." ¹⁰⁷ And it does appear that the union sought to resolve especially difficult issues in this manner. ¹⁰⁸ For instance, the question of "wrappers," the paper covers of periodicals, which precipitated numerous complaints during the mid-1830s, was arbitrated in this way. ¹⁰⁹ During a dispute at the Penny National Library office in 1834, the union proposed to resolve the impasse by creating a joint arbitration committee of five masters and five journeymen compositors. The union even volunteered to return any extra money that the compositors may have earned if the decision went against them. When the arbitration committee eventually ruled in favor of the compositors, the employers complained bitterly but nonetheless accepted the award. ¹¹⁰
41

      These union actions, however, could not stem the growing unwillingness of the master printers to allow the authority of the union arbitration committee to go unchallenged. In 1837, the employers combined to form their own Association of Master Printers and immediately established their own arbitration committee to hear disputes. Under such circumstances, the union began to work even more diligently for an arbitration system that was jointly authored. In 1837 and 1838, the union suggested that "whenever the decision of the Committee of Masters shall be contrary to the decision of the Trade Council, the employer in whose house the dispute originated shall be at liberty to refer it to arbitration: the arbitrators to consist of an equal number of the Committee of Masters and members of the Trade Council, whose decision shall be binding on both parties." ¹¹¹ Rejecting such an offer, the masters continually sought to appeal to their own arbitration committee or to construct a joint committee that would be distinctly more favorable to their own authority in the trade. Thus in 1847 a so-called general Arbitration Committee of master printers and compositors proposed the creation of a "Committee of Reference" that was similar in many ways to the practices in the Durham and Northumberland coal industry and the Staffordshire potteries. Like those arbitration schemes, this new committee of reference was to be comprised of a dozen master printers, six of whom were selected by the masters themselves and six others by the compositors. ¹¹²
42

      However, such a blatant attempt to alter the balance of authority ultimately failed. In 1856, a journeyman compositor testified before a parliamentary committee that a rather awkward modus vivendi had been established whereby the union's committee operated simultaneously with the masters' committee. If and when the decisions of the two committees failed to coincide, recourse was then had to the courts of law. "We have always had our disputes referred to our own committee," he stated, "but owing to their decisions being sometimes adverse to the committee of master printers, there have been disputes arising which they could not finally settle, and they have been taken to courts of law; sometimes one has been the victor, and sometimes the other.... " ¹¹³
43

IV

These forms of collective arbitration did not develop in all trades, and during this period they may not have been present in very many. Yet arbitration in its more traditional individual form often exerted an important influence upon industrial relations in many other sectors. We have already noted the parliamentary attempts to expand the scope of individual arbitration, but both the courts and individuals frequently settled complex trade disputes between masters and workers through arbitration. In some of these circumstances, arbitration hearings came to be perceived as test cases and the award was intended to apply to the entire trade. This certainly seems to have been the understanding in the arbitration case of Messrs. Bevans & Sons, master carpenters, and Benjamin Walrond, one of their journeymen, in 1803. The proceedings were apparently initiated in response to an attempt to secure a rise in piece rates for the London journeyman carpenters during the difficult war years. The dispute was arbitrated under the terms of the 1800 Combination Act and was initially heard before two arbitrators. Upon the failure of the arbitrators to agree on an award, the dispute was then referred to an umpire, in this instance a Middlesex JP named Joseph Moser, for final determination or, to use the modern term, binding arbitration. It is likely that both sides were represented by legal counsel at the final hearing, but it is certain that the magistrate understood this individual submission to apply to the trade generally. He spoke of the impact of the case in the broadest possible language. For example, he applauded "the Masters, who certainly, both collectively and individually, are of the highest respectability ... " and he said that "it gave me great pleasure to find (in the course of this ardent and important disquisition) no single instance which indicated a desire in them to withhold from the men a proper, just, and let me add, a generous remuneration." He similarly commended the "other class of applicants, the Journeymen Carpenters" whose "conduct, as far as it has come to my knowledge, has been quiet, regular, and orderly." After considering the effect of contemporary price rises on both masters and journeymen, as well as the potential effect of a rise in wages on "that spirit of enterprize in the masters," the magistrate pointedly awarded a modest rise in wages to the journeymen carpenters as a whole and not the individual claimant. "Founded upon a full consideration of the evidence adduced on both sides," the final order read, "and combining it with collateral circumstances, I am of the opinion that the wages of Journeymen Carpenters ought to be in future rated at the sum of TWENTY-FIVE SHILLINGS PER WEEK, PER MAN, which standard in this case I accordingly order." Thus, what had been initially adjudicated in the form of the umpirage of an individual arbitration case had been elided into a general settlement of a trade dispute incorporating the magistracy's summary jurisdiction over wages. ¹¹⁴
44

      Even when the application of arbitration awards was not specifically directed at the general trade, workers often circulated the results of arbitration cases precisely because they were understood to act as precedents in future disputes. A letter in The Trades' Newspaper, and Mechanics' Weekly Journal from one of the arbitrators in an 1826 case announced the award of nearly £2 to a Macclesfield silkweaver who was forced to go without work because the silk masters could not provide him with weft for his loom. ¹¹⁵ More than a decade later, a pamphlet appeared in Macclesfield publicizing a similar arbitration case, Gent v. Broome, and reprinting the testimonies and evidence of over thirty witnesses as well as the final decision. ¹¹⁶ In 1837, the arbitration case of Poyton v. Robinson was reported at length in The Spitalfields Weavers' Journal. As in the Macclesfield dispute, this case involved a weaver whose employers had failed to provide work for him. The initial arbitrators could not agree on an award and the matter was referred to a London alderman who found in favor of the weaver. The masters appealed, however, and won on the ground that the City magistrates had no jurisdiction over the weaver who was a resident of Bethnal Green. The weavers immediately recognized that such a decision would effectively render arbitration useless and they mounted a persistent and successful campaign to amend the 1836 Master and Workmen's Bill. ¹¹⁷
45

      Without doubt, workers' interest in arbitration also was sometimes born out of desperation. Several failing unionization efforts sought to establish arbitration tribunals in the desperate hope of defending workers against the effects of falling wages and unemployment. Perhaps it was these difficult circumstances that most strongly evoked the equity promise of arbitration among workers. John Doherty's plea to local magistrates, and then later to churchwardens, to arbitrate the 1828-29 Manchester cotton spinners' strike was made at a time when the union's solidarity was crumbling and the employers' resolve was stiffening. ¹¹⁸ In 1823, Gravener Henson published his approval of the arbitration clauses of the Combination Acts and implied that they might help save not only the troubled Nottingham framework knitters but the British working class generally. ¹¹⁹ In 1853, the Preston cotton operatives offered to refer their dispute to arbitration about a week and a half after the masters announced their plan for an indefinite lockout. ¹²⁰ In all of these cases, the equity promise of arbitration stemmed from the belief that, as Gravener Henson put it, people of good faith would not let the Devil take the hindmost. ¹²¹
46

Conclusion

Arbitration was well known to the British working class long before the craze for such systems in industry was begun by A. J. Mundella's Nottingham Hosiery Board and other so-called experiments. Arbitration commonly interceded in everyday commercial transactions and was a typical remedy for family and community disagreements. By the end of the eighteenth century, Parliament had begun to take an increasing interest in the adoption of systems of arbitration to resolve industrial disputes, even though the application of arbitration by statute to an entire industry or trade was apparently at odds with a more profound defense of the individuality of the employment contract. The Cotton Arbitration Act, for example, foundered on this contradiction. Nonetheless there appears to have been significant legislative effort toward expanding the scope of arbitration among the working class in particular in order to provide at least a simulacrum of access to a justice system that was otherwise denied them.
47

      More important, however, arbitration systems began to appear autonomously in several industrial sectors during the first third of the nineteenth century. By 1850, many of the principal features of the role of arbitration in British industrial relations were alr