Master and Servant Law

Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840–1865

Christopher Frank

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9780754668305
• eBook ISBN:
  9781317099574
• Topic: History
• Subtopic: World History
• Index: History

In recent years, social and legal historians have called into question the degree to which the labour that fuelled and sustained industrialization in England was actually 'free'. The corpus of statutes known as master and servant law has been a focal point of interest: throughout the eighteenth and nineteenth centuries, at the behest of employers, mine owners, and manufacturers, Parliament regularly supplemented and updated the provisions of these statutes with new legislation which contained increasingly harsh sanctions for workers who left work, performed it poorly, or committed acts of misbehaviour. The statutes were characterized by a double standard of sanctions, which treated workers' breach of contract as a criminal offence, but offered only civil remedies for the broken promises of employers. Surprisingly little scholarship has looked into resistance to the Master and Servant laws. This book examines the tactics, rhetoric and consequences of a sustained legal and political campaign by English and Welsh trade unions, Chartists, and a few radical solicitors against the penal sanctions of employment law during the mid-nineteenth century. By bringing together historical narratives that are all too frequently examined in isolation, Christopher Frank is able to draw new conclusions about the development of the English legal system, trade unionism and popular politics of the period. The author demonstrates how the use of imprisonment for breach of a labour contract under master and servant law, and its enforcement by local magistrates, played a significant role in shaping labour markets, disciplining workers and combating industrial action in many regions of England and Wales, and further into the British Empire. By combining social and legal history the book reveals the complex relationship between parliamentary legislation, its interpretation by the high courts, and its enforcement by local officials. This work marks an important contribution to legal

Chapter 1
The Introduction of the 1844 Master and Servant Bill: ‘The statutes relating to master and servant are nearly useless’

Introduction

During the spring of 1844, a large campaign of petitioning and public meetings by Chartists, trade unionists, and short-time committees throughout England and Wales forced Parliament to abandon a bill that would have greatly expanded the power of magistrates to determine disputes under master and servant law. This bill was actively promoted by the Home Secretary and had the enthusiastic support of the magistracy.1 Less than 40 days before the bill was abandoned it had its first two readings in the House of Commons without any sign of opposition. When Thomas Duncombe, W. P. Roberts and the Northern Star informed the miners’ and potters’ unions of the bill’s full implications, however, the response of labor was both rapid and intense.2 According to the Journal of the House of Commons, within a month 213 petitions opposing the bill originating from public meetings were presented to the Lower House. Dozens more arrived too late for consideration. Duncombe declared in Parliament that these petitions represented over two million signatures, twice the number that signed the first Chartist petition. Faced with this sudden and unexpected opposition, the bill’s supporters watched helplessly as Duncombe carried a proposal to postpone consideration of the bill for six months, a de facto death sentence.3 Its defeat was an important episode in the long campaign by workers against the penal characteristics of employment law.

This chapter examines the factors that made an expansion of master and servant law desirable to the bill’s supporters. Chapter 2 describes the movement of the bill through Parliament, as well as the strategies and language that labor used to mobilize opposition and secure its defeat. Together these chapters reveal the importance of labor’s tactics and arguments in politically and legally fighting master and servant law, which shaped popular understandings of the law and its legitimacy and contributed to the longstanding debate over summary jurisdiction and reform of the magistracy.4

The controversial bill, officially called, ‘A Bill for Enlarging the Powers of Justices in Determining Complaints between Masters, Servants, Artificers, and for the More Effectual Recovery of Wages Before Justices’, was introduced into the House of Commons in February 1844 by three career Tory backbenchers. Their stated purpose was to clarify what types of workers and employment relationships fell within the statutes by simply extending master and servant law to cover all employment relationships with the exception of domestic service.5

Magistrates, who usually lacked formal legal training, often had to administer statutes that were imprecisely written and defined by a complex and evolving body of case law. During the 1820s and 1830s the Court of King’s Bench made the deliberations of magistrates more difficult by ruling that individuals in trades not specifically enumerated in master and servant statutes, as well as those hired by the job or piece (not for a specific period of time), were outside the scope of these coercive laws.6 Many magistrates and employers felt that these rulings limited the usefulness of master and servant law, undermining both the legitimacy of magistrates and the authority of masters. During the 1840s, this problem was discussed in diverse publications by trade unionists, employers, justices of the peace and lawyers. Each articulated grievances with the law’s current operation, but proposed different solutions to the problem.

The rulings of King’s Bench had not always represented such an inconvenience for employers and magistrates because in the eighteenth and early nineteenth centuries workers rarely had legal representation in master and servant cases, and almost never challenged convictions. Knowing that their decisions were unlikely to come under scrutiny, magistrates, who were increasingly likely to be industrial employers themselves, often interpreted their jurisdiction to whatever fitted the needs of the moment.7 By 1843, W. P. Roberts and other solicitors at Petty Sessions gave workers charged under master and servant statutes a more rigorous defense, pressing magistrates into greater conformity with the rulings of the higher courts.8 In many important industrial regions of the country, these efforts temporarily made master and servant law a less convenient method of labor discipline. The reporting of these cases raised questions among workers (particularly miners and potters) about the reciprocity of their contracts with their employers, and whether one-sided agreements were, in fact, enforceable.9 In the 1840s it was not uncommon for employment agreements to bind an employee to work exclusively for an employer, but not necessarily oblige that employer to provide sufficient work and wages. The enforceability of such non-reciprocal agreements was a legal battle fought by Roberts with mixed results before Queen’s Bench. His efforts caused workers to loudly question validity of such contracts in journals such as the Potters’ Examiner and the Northern Star. Roberts’ ambitious work before Queen’s Bench between 1843 and 1848 helped to define and enforce the procedures, forms and limits of summary jurisdiction. It also had a lasting impact on the legitimacy of the magistrates’ judicial role among workers, making it easier to mobilize labor against the 1844 bill.10

Magistrates frequently petitioned Parliament for greater protection from the costs, damages and embarrassment that reversals of their rulings brought. Mine owners complained to the Inspector of the Mines about harassment from crafty attorneys and a loss of control over their enterprises. It is against this backdrop that the 1844 bill was introduced.

Interpreting Master and Servant Law in the Court of King’s Bench, 1747–1837

The 1844 proposal was intended to remedy two potential sources of confusion about the extent of magistrates’ jurisdiction under master and servant law. This jurisdiction, as settled by the higher courts, depended upon the existence of a relationship of service between the parties and employment in a trade specifically listed in one of the master and servant statutes. The precise definition of a relationship of service, however, was not self-evident to employers, workers or magistrates.11 Did an agreement to perform a specific task for an employer create a relationship of service? Were out-workers servants in the eyes of the law, even though they might accept work from a number of different masters? In the second quarter of the nineteenth century the Court of King’s Bench ruled that for a relationship of service to exist, a master had to be able to claim the exclusive service of his or her employee. This definition excluded many forms of piece, job or subcontracting work.12

The second source of confusion was the precise trades that were covered by these statutes. This question arose from confusing language in the clauses that defined their scope, as can be seen from three examples of ‘general’ master and servant acts.13 ‘An Act for the Better Adjusting and More Easy Recovery of the Wages of Certain Servants; and for the Better Regulation of Such Servants’, passed in 1747, contained a mixture of both precise and more open-ended language in the clause that defined its reach. The act gave magistrates the power to imprison a servant for up to one month, abate wages or issue a discharge when the servant neglected work, was absent without permission, absconded or committed any ‘misdemeanor, miscarriage, or ill-behavior in such his or her service’. It also allowed servants to apply to magistrates for the collection of unpaid wages below £5 or £10, depending upon their trade, and to be released from their agreement. Its provisions were said to apply to any servant in husbandry, ‘artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, and other labourer, employed for any certain time, or in any other manner’. Did the italicized phrase mean that the act applied merely to ‘other labourers’ in the previously mentioned trades, or to any other laborer in any trade? The higher courts offered conflicting answers to the question between 1796 and 1837.14

The 1766 statute, ‘An Act for the Better Regulating of Apprentices, and Persons Working Under Contract’, applied to the same trades as the 1747 Act, with the addition of calico printers.15 At the end of the listing of the trades covered by the statute, however, where the 1747 Act used the phrase ‘and other labourers’, the 1766 statute placed the words ‘labourers, and others’.16 This separation could have been interpreted by reasonable magistrates as inviting an even broader scope than the 1747 Act.

In 1801 a parliamentary committee acknowledged that magistrates were often confused about their jurisdiction to hear master and servant disputes, and employers would benefit from an interpretation of these laws which enlarged their reach. They concluded that the existing jurisdiction under these laws was deficient because of the strict reading the statutes were sometimes given by the higher courts. The committee recommended that Parliament explicitly grant magistrates the authority to hear cases involving job and piece workers as well as trades not mentioned in the statutes, particularly domestic servants and menial workers.17 Parliament took no action on the committee’s recommendations.

In 1823, as part of an effort by Joseph Hume to ease politically the repeal of the Combination Acts, another general Master and Servant Bill was enacted that consolidated a number of earlier statutes. This act probably provided the basis for most of the master and servant prosecutions in the nineteenth century. The statute borrowed the language of the 1766 Act to define the jurisdiction it conferred. In the third clause, after listing the trades the act covered, the drafters added the still broader phrase ‘or other labourer, or other person, [who], shall contract with any person or persons whomsoever, to serve him, her, or them, for any time or times whatsoever, or in any other manner’.18 The framers of this statute seem to have intended a very wide jurisdiction even though they retained the listing of specific trades.19

Because the two broad questions of the precise definition of the relationship of service, and the trades to which master and servant acts applied remained ambiguous in the legislation, an opening existed for the higher courts to participate in the law-making process.20 One important case on this subject was Lowther v. the Earl of Radnor (1806). In 1804, Mr Lowther of Wiltshire promised to pay two menial laborers to dig a well. When the men completed their job, Lowther refused to pay them. The disgruntled men sued Lowther in order to collect their unpaid wages under the 1747 Act. When Lowther failed to answer the summons, the two sitting magistrates awarded the plaintiffs £4 13s 6d in back wa...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• Abbreviations
• Acknowledgments
• Introduction: ‘Constitutional Law versus Justices’ Justice’
• 1 The Introduction of the 1844 Master and Servant Bill: ‘The statutes relating to master and servant are nearly useless’
• 2 The Defeat of the 1844 Master and Servant Bill: ‘Triumph for Labour! … The Damnable Bill Crushed!’
• 3 Trade Union Legal Challenges to Master and Servant Prosecutions: ‘The Value of the Law When Honestly Administered’
• 4 The Warrington Cases, 1846–1847: ‘He might almost as well be without trial’
• 5 Trades of Sheffield against Dr Wilson Overend, 1842–1847: ‘I hope his prescriptions are better than his law’
• 6 The Reform of Magistrates’ Summary Jurisdiction, 1843–1854: ‘The imperious necessity of affording greater protection to justices’
• 7 The Trades of Staffordshire against T. B. Rose, 1842–1851: ‘Let but one of them come before me and I’ll commit him’
• Conclusion: ‘We certainly ought not to let a mere technical slip … decide such a case’
• Appendix: Glossary of Key Terms
• Bibliography
• Index