The Servile State by Hilaire Belloc (books under 200 pages .txt) 📕

degree or necessary in any degree, but it does not establish status in the place of contract, and it is not, therefore, servile.

Neither are those laws servile which in practice attach to the poor and not to the rich. Compulsory education is in legal theory required of every citizen for his children. The state of mind which goes with plutocracy exempts of course all above a certain standard of wealth from this law. But the law does apply to the universality of the commonwealth, and all families resident in Great Britain (not in Ireland) are subject to its provisions.

These are not origins. A true origin to servile and “status” legislation comes later. The first example of servile legislation to be discovered upon the statute book is that which establishes the present form of employer’s liability.

I am far from saying that that law was passed, as modern laws are beginning to be passed, with the direct object of establishing a new status; though it was passed with some consciousness on the part of the legislator that such a new status was in existence as a social fact. Its motive was merely humane, and the relief which it afforded seemed merely necessary at the time; but it is an instructive example of the way in which a small neglect of strict doctrine and a slight toleration of anomaly admit great changes into the state.

There had existed from all time in every community, and there was founded upon common sense, the legal doctrine that if one citizen was so placed with regard to another by contract that he must in the fulfilment of that contract perform certain services, and if those services accidentally involved damages to a third party, not the actual perpetrator of the damage, but he who designed the particular operation leading to it was responsible.

The point is subtle, but, as I say, fundamental. It involved no distinction of status between employer and employed.

Citizen A offered citizen B a sack of wheat down if citizen B would plough for him a piece of land which might or might not produce more than a sack of wheat.

Of course citizen A expected it would produce more, and was awaiting a surplus value, or he would not have made the contract with citizen B. But, at any rate, citizen B put his name to the agreement, and as a free man, capable of contracting, was correspondingly bound to fulfil it.

In fulfilling this contract the ploughshare B is driving destroys a pipe conveying water by agreement through A’s land to C. C suffers damage, and to recover the equivalent of that damage his action in justice and common sense can only be against A, for B was carrying out a plan and instruction of which A was the author. C is a third party who had nothing to do with such a contract and could not possibly have justice save by his chances of getting it from A, who was the true author of the unintentional loss inflicted, since he designed the course of work.

But when the damage is not done to C at all, but to B, who is concerned with a work the risks of which are known and willingly undertaken, it is quite another matter.

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 today. 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