170 LABOUR
directly to the subject of this article, and arriving at the middle of the 18th century, we find the legislature no longer employed in compelling labourers or artisans to enter into involuntary service, but regulating the summary jurisdiction of justices in the matter of disputes between employers and employed, in relation to contracts and agreements, express or implied, presumed to have been entered into voluntarily on both sides.
The statute 20 Geo. II. c. 19 (passed in 1746) provided that all complaints, differences, and disputes arising between masters and servants in husbandry hired for one year or longer (extended by a subsequent statute of the same reign, to those hired for less than a year), or arising between masters and artificers, handicraftsmen, and miners (applied in 1829 to labourers of every sort), were to be determined by one or more justices, who, upon complaint of the servant, might determine any dispute as to wages and order payment of any sum found to be due, not exceeding £10 in case of a servant in husbandry, and £5 in case of artificers and other labourers, and, in the event of non-payment, might levy the same by distress on the goods of the master. In case of complaint by the master, the authority of the justice was still larger. He had power to entertain a complaint of "any misdemeanour, miscarriage, or ill behaviour of the servant in his or her service or employment," and to hear, examine, and determine the same. If the decision was adverse to the servant, the justice might either abate some part of the wages due to such servant, or discharge him from the service, or he might punish the offender by committing him to the house of correction, "there to be corrected" which term was held to mean correction by whipping and holding to hard labour for a reasonable time, not exceeding a month.
A statute of 1823 (4 Geo. IV. c. 34), the next general statute on this subject, took a somewhat wider scope, dealing with breaches of contract on the part of the servant in not entering into the agreed service at all, as well as in quitting it before the term agreed on had expired, and subjecting these breaches as well as any misdemeanour or misconduct while in the service to the jurisdiction of the justice, who might adjudge the offender to be imprisoned in the house of correction for a term not exceeding three months (but without any power to order corporal punishment), abating a proportional part of his wages in the future, or adjudging him to lose the whole or part of his wages already earned; or, he might dismiss him from the service.
Thus stood the statute law until 1867. In consequence of considerable dissatisfaction on the part of workmen with the adjudication of justices, a select committee of the House of Commons was appointed in the previous year to inquire into the state of the law as regards contracts of service between master and servant, and as to the expediency of amending it. That committee reported –
1. That the law as it then existed was objectionable.
2. That all cases arising under the law of master and servant should be publicly tried in England and Ireland before two or more magistrates, or before a stipendiary magistrate, and in Scotland before two or more magistrates, or the sheriff.
3. That procedure should be by summons in England and Ireland, and warrant to cite in Scotland, and, failing appearance of defendant in answer to summons or citation, the court should have power to grant warrant to apprehend.
4. That punishment should be by fine, and failing payment by distress or imprisonment.
5. That the court should have power when such a course is deemed advisable to order the defendant to fulfil the contract, and also, if necessary, to compel him to find security that he will do so.
6. That in aggravated cases of breach of contract, causing injury to person or property, the magistrate or sheriff should have the power of awarding punishment by imprisonment instead of fine.
7. That the arrest of wages in Scotland in payment of fines should be abolished.
The Master and Servant Act 1867, sometimes called Lord Elcho's Act, was framed upon the report of the committee, and embodied most of the recommendations. As regards simple breaches of contract, the position of servants was considerably improved. Imprisonment, which, under the former Acts, the magistrate was authorized to impose in the first instance as a punishment for a breach of the contract, was taken away, except as auxiliary to the jurisdiction, as the consequence of disobedience to the order of the court; and wherever imprisonment might, under the former Acts, have been accompanied by hard labour, the power to order hard labour was taken away. Lord Elcho's Act did not, however, remove the dissatisfaction felt on the part of workmen, and the events of a few years rendered it desirable to reconsider the whole law, with reference not only to breaches of contract but to other special legislation of a criminal kind, and to the general law of conspiracy affecting the relation of employer and employed.
Commissioners reported in 1875 recommending, so far as relates to the scope of this article, that the proceedings should be altogether divested of a penal character and assume that of a civil proceeding for specific performance or recovery of damages, and that, to effect the main object, Lord Elcho's Act should be amended or a new Act framed in clearer language. Within a few months of the presentation of the report, Mr Cross, then secretary of state, introduced two bills, the one an "Employers and Workmen Bill," and the other a "Conspiracy and Protection of Property Bill," and these bills, after undergoing considerable discussion and alteration in their different stages, were passed and came into operation on the 1st September 1875. This article only deals with the former Act. While carrying out the recommendation of the commissioners regarding Lord Elcho's Act, and placing all provisions of a penal character in a separate Act ("Conspiracy and Protection of Property"), the legislature thought fit to go further and take away the right of enforcing performance of contracts of labour (although that is a very important branch of civil procedure in relation to various matters of contract), and make it a mere question of recovery of damages, unless both parties agree that security for performance of the contract shall be given instead of damages. Adjudication can be by courts of summary jurisdiction.[1]
Neither this Act nor its predecessor takes away the right of parties to sue in the ordinary civil tribunals of the country; but the Act puts county courts (in Scotland the ordinary sheriff court of the county, in Ireland the civil bill court) practically on the same footing with courts of summary jurisdiction, – the jurisdiction of magistrates being simply because the county courts in most places do not sit sufficiently often for the practical adjudication of these differences. The title of the Act, "to enlarge the powers of county courts in respect of disputes between employers and workmen, and to give other courts a limited civil jurisdiction in respect of such disputes," indicates its general scope, which is borne out by its provisions. It
- ↑ In England such courts are a police or stipendiary magistrate, or, where there is no such magistrate, two or more justices sitting at some place appointed for holding petty sessions, or, in the city of London, the lord mayor or an alderman sitting at the Mansion House or Guildhall. In Scotland the court of summary jurisdiction is the small debt court of the sheriff of the county. In Ireland the court is constituted of one or more of the divisional justices of the police district of Dublin metropolis, and elsewhere in Ireland of two or more justices of the peace in petty sessions, sitting at a place appointed for holding petty sessions. These courts are, for the purposes of the Act, civil courts.
