of these two classes, is only incidentally referred to in these pages. Passing by these classes of servants, we come to the numerous class who serve by placing at the service of their employers their labour, whether rude or skilled, according to the branch of productive industry or manufacture to which they belong. It is to this class, including labourers in husbandry, miners, quarrymen, and the like, and to manufacturers, artificers, and others employed in the various forms of creative industry, that statutory legislation has been directed (b). It may be well to state that those provisions which. relate to the prevention of crime (in its strict sense) are beyond the scope of the present inquiry; such, for example, as provide for the punishment of larceny and embezzlement by servants (c), and the substitution of a penalty for the former felonious appropriation by a servant of corn to feed his master's horses. So, provisions enforcing the contracts and duties of persons employed in the service of the state are not the subject of investigation here. An important class of statutes enforcing the performance of contracts for manual services, express or implied, between employer and employed, has for the chief object the public weal rather than the immediate advantage of the parties to the contract. To this class belong provisions to prevent the creation or permission of nuisances (such as the emission of smoke and deleterious gases). Another class of provisions has the health, education and physical comfort, and moral welfare of the employed as their object. The Factory Acts, and some provisions of the (b) Report of the Labour Laws Commissioners, 1875. (c) The fraudulent misappropriation of articles and materials of manufacture are, however, included in many statutes, some repealed, and some still remaining unrepealed, dealing with the summary jurisdiction of magistrates for breaches of contract. The unrepealed provisions of this description will be found in the Appendix, post. Metalli recent Coal and Metalliferous Mines Acts (35 & 36 Vict. cc. 76, 77), are leading illustrations of this class. The prohibition of the payment at public-houses of miners' wages may be put in this category, although capable of being referred to other grounds. Another class of statutes has for its object the personal safety of the employed in life and limb. Legislative provisions, contained in the acts already cited and others, as to the conduct of mining operations and the fencing of machinery and the sweeping of chimnies, are familiar examples. All these provisions stand on grounds distinct from statutes enforcing duties and obligations, and which, although founded on and only capable, if penal, of being maintained on public grounds, are put in operation in the immediate interests of the complaining person, whether employer or employed, and have reference to the performance of the terms of contracts, express or implied (d). Without attempting to give a history of this last branch of legislation, the law, as it existed immediately before the Master and Servant Act, 1867, may be concisely stated, so far as relates to the jurisdiction of magistrates. In England, servants, excepting domestic servants, might summon their masters for wages not exceeding 107. in the case of servants in husbandry, and 5l. in other cases; and the justices might order payment of the amount due, with or without costs. In case of nonpayment, the amount might be levied by distress; and in case of no available distress, the master might be imprisoned for a period not exceeding three months. When the master resided at a distance and employed agents, foremen or managers, the latter might be proceeded against instead of the master. (d) The Truck Act (1 & 2 Will. 4, c. 37), regulating labour contracts of many kinds, is not touched by the legislation of 1875. The statutes of the same class regu The lating the giving of tickets with If the master did not appear on a summons, a warrant might issue for his apprehension. Servants might be summoned by their masters for absenting themselves from service, or for any other misconduct or misdemeanor in the execution of the contract of service, or otherwise respecting it, or a warrant might be issued in the first instance on an information on oath, at the discretion of the magistrate. In the case also of a servant having entered into a written signed contract, and not entering upon the service in accordance with its terms, he might be summoned or arrested by warrant. If the offence were proved, the magistrate might adopt one of three courses. The servant might be committed to the house of correction for a period not exceeding three months (the wages, if any, being abated, i. e., not accruing due, during the imprisonment); or the whole or any part of the wages might be abated; or the magistrate might discharge the servant from his contract, i. e., put an end to the service. Various provisions existed in reference to particular trades and descriptions of employment, which it is unnecessary to particularize here. Some of these are still in force, and will be specially referred to hereafter. With respect to apprentices, the law in England stood thus: Apprentices could summon their masters before justices for ill-treatment or ill-usage; and upon such summons the apprentice might be discharged. Apprentices could also summon their masters for wages, provided the sum in question did not exceed 107.; and payment might be enforced by distress. Masters could proceed either by summons or by warrant against their apprentices for any misdemeanor, misconduct or ill-behaviour, or for absconding; the punishment being an abatement of wages or imprisonment. The jurisdiction of justices in the case of apprentices, whether on complaints by or against them, applied to parish apprentices, and to other apprentices, where either no premium was paid or where a premium was paid not exceeding 251. In order to constitute an offence by a servant, it was not only necessary for the master to prove that the absenting was wrongful (i. e., that the servant had no right to leave), but it must have also appeared that the act was a wilful or guilty act on the part of the servant. If, therefore, the servant acted bonâ fide under a fair and reasonable belief in his mind that he had a right to go away, he could not be convicted, although that belief might have been unfounded in point of fact; and the master had no remedy, except by action in a civil court, to recover damages, which was practically no remedy at all (e). As has been already stated, where a master complained against his servant, the magistrate had power to issue a warrant, instead of a summons, upon a statement of the facts on oath. The act in general operation relating to master and servant (the 4 Geo. 4, c. 34) gave no discretion. The master was served with a summons at the instance of the servant; the servant was arrested on a warrant issued on (e) Rider v. Wood, 2 E. & E. 338; 29 L. J. Rep. (N. S.), M. C. 1, was the first case in which this doctrine was applied to cases of master and servant. In that case the servant had given a notice to leave, but the justices thought it was insufficient, and convicted him for leaving the service. The Court of Q. B. directed the justices that unless the servant absented himself without lawful excuse, and was aware that he had no lawful excuse, he ought not to be convicted. This case, although acted upon ever since, was narrowed by Unwin v. Clarke, Law Rep. 1 Q. B. 417; 35 L. J. Rep. (N. S.), M. C. 193, where it was held (by Blackburn, J., and Mellor, J.; Shee, J., dissenting) that an absenting from the service under a bona fide but mistaken belief in law, as distinguished from a mistake of fact, was not within the rule laid down in Rider v. Wood. The decision in Unwin v. Clarke accords with Cooper v. Simmons, 7 H. & N. 707; 31 L. J. Rep. (N. S.), M. C. 138 (the case of an apprentice); but conflicts with the opinion of Pollock, C. B., and Bramwell, B., in Youle v. Mappin, 6 H. & N. 753; 30 L. J. Rep. (N. S.), M. C. 234. the complaint on oath of the master. After the passing of Jervis's Act (11 & 12 Vict. c. 43), which gave justices power to issue a summons in all cases in the first instance, the practice was gradually introduced in England of summoning servants instead of issuing warrants in the first instance; and the issuing of warrants was in general confined to cases where a defendant had absconded or was likely to abscond, or where he did not appear to a summons. It was a popular notion, and one strongly urged upon the attention of the legislature, that the law was very unequal in giving magistrates the power to inflict imprisonment as a punishment in the case of servants, when there was no direct power to imprison masters; and it was further urged that, independently of the inequality, the law made the mere breach of a contract the subject of proceedings which were in their nature criminal. In reference, if not in answer, to the first objection, on the ground of inequality, it has been observed that the servant had a right to an order for his wages, if due, although the master might have refused payment, honestly believing that he had a right to withhold them--and in almost all cases of claims for wages, there is a bonâ fide dispute between the parties. Very few cases come before a magistrate where the master is knowingly and wilfully withholding the amount. As it would be manifestly unjust to give even the power to send a man, whether master or servant, to prison, in the case of a bona fide dispute, the law merely provided for enforcing payment of the amount adjudged to be due from a master to his servant, in the first instance by distress; and then in default of distress, imprisonment might be awarded. In actual practice, therefore, servants had in one respect an advantage over their masters; that is to say, in being able to get a magistrate's order for payment of whatever might be due to them, no matter on what ground the wages were withheld; while the master had no relief before the magistrates unless the absence was wilful. |