Similar powers given England. clothing, or also for wages. Under voluntary servants may be included apprentices (from the French apprenti), who engage to serve under a merchant, artificer, or manufacturer for a determinate number of years, on condition that the master shall in that time instruct them in the knowledge of his particular art or profession" (1). In Scotland, in the absence of special stipulation, domestic servants are held to be hired by the half year, but agricultural servants by the year, unless other rules prevail by local custom. While in both countries justices of the peace were empowered to justices in to fix the price of labour, none of the statutes in England giving them jurisdiction in the case of wages extended to domestic servants, whose claims are left to be dealt with by the ordinary tribunals. Blackstone says (m), "A third species of servants are labourers, who are only hired by the day or the week, and do not live intra mania, as part of the family, concerning whom the statutes before cited (n) have made many very good regulations—1. Directing that all persons who have no visible effects may be compelled to work; 2. Defining how long they must continue at work in summer and winter; 3. Punishing such as leave or desert their work; 4. Empowering the justices at Sessions, or the sheriff of the county, to settle their wages; and 5. Inflicting penalties on such as either give or exact more wages than are so settled." In a note by Mr. Lee, the editor of the first volume of the eighteenth edition of the Commentaries (1829), he states—“ The statutes had in this respect long become virtually repealed. The condition of the labourer had been sufficiently deteriorated, by means which it is not necessary to mention in this place, to discourage the frequent interposition of a magistrate in respect of wages. That the labourer might bargain for what he could get, and that the market would always be supplied in proportion to the demand; that the question was best left to individual contract rather than maximums or minimums to be fixed by authority—were maxims beginning to gain ground. The enabling magistrates to interfere between man and man in these matters was seen to be as foolish as it was tyrannical. The acts of regulation enacting penalties, &c., disgraced the statute-book, (1) Ersk. Inst., b. i. t. 7, s. 62. (n) Stat. 5 Eliz. c. 4; 6 Geo. III. c. 26. and by statute 53 Geo. III. c. 40 (o) were expunged. Such acts could not lately be enforced without great injustice.' "The legislature has much vacillated in regard to labourers. At one time it should seem that between them and their employers there could be no general rule applicable to treating them save mere selfish power; at another time the legislature appeared to reflect that if authority were exerted at all on their behalf, it should be conservative, benign, and conciliating. Yet the most fearless and avowed advocate the poor ever had in this country amongst the nobility was Edward Seymour, duke of Somerset, temp. Edward II. The landed aristocracy beheaded the duke, Ed-VI ? impudently making it his most heinous offence that he had imputed the rising of the people to the avarice of the gentry, which had occasioned the then dearth" (p). Ed-vi? Menial ser law of Eng ed from Blackstone states again (9)—" By service all servants and vants by labourers, except apprentices, become entitled to wages according to land excepttheir agreement, if menial servants; or according to the apportion- jurisdiction ment of the sheriff or Sessions, if labourers or servants in hus- of justices. bandry, for the statutes for the regulation of wages extend to such servants only, it being impossible for any magistrate to be a judge of menial servants, or, of course, to assess their wages." This distinction has been preserved in the law of England until the present day, although many people are unable to perceive the impossibility which seems to be the foundation of it. The reason of the distinction, however, seems to be that the hours of farm labour are practically defined by the custom of the district, while the services of menials are regulated almost entirely by the will of the master. The remuneration, therefore, it is said, is in the one case capable of some adjustment by a third party, while in the other no fixed rule can be laid down so as to become positive law. Mr. Erskine, in his Institutes, also refers to this subject. He says, speaking of justices of the peace (r)-"They may compel servants and day-labourers to serve for a reasonable hire, under the pain of imprisonment, and condemn their masters or employers to pay their wages. 13. With regard to the power which masters could exercise over Black. Comm., vol. i. p. 427, note (r) Ersk. Inst., b. i. t. 4, s. 13. masters by land over servants. their servants, Blackstone states-"A master may by law correct Powers of his apprentice for negligence or other misbehaviour, so it be done law of Eng- with moderation, though if the master or master's wife beats any other servant of full age, it is a good cause of departure (s). Formerly, if any servant, workman, or labourer assaulted his master or dame, he was liable to a year's imprisonment and other corporal punishment not extending to life or limb" (t). The statute under which this penalty was incurred was, however, repealed by 9 Geo. IV. c. 31 (u). By the Act 14 Vict. c. 11 (v), it is a misdemeanor punishable by imprisonment not exceeding three years, with or without hard labour, if a master neglect to provide (when legally liable to do so) his servants or apprentices with necessary food and clothing, or if he assault them so as to endanger life or permanently injure their health. Corresponding powers of Scotland. Mr. Erskine lays down the broader doctrine that "All masters by the law have a power of moderate chastisement over their servants, whether voluntary or necessary; and the masters of public workhouses are, by 1672, c. 18 (w), allowed to go all lengths in correction, life and torture excepted" (x). Cases involving assault or personal injury are, in Scotland, left to be dealt with by the ordinary criminal tribunals. interposition questions between em ployers and employed. The vacillation referred to by Mr. Lee, writing in 1829, on the part of our legislators in their dealings with industrial legislation, has pervaded all attempts at law-making since then. Instead of Unnecessary the interposition of the magistrate in questions between employers of justices in and employed having been, as it ought to be, discouraged, the action of the justices has more or less been kept up in every Act of Parliament passed on the subject. It is only within the last year that, after one or two abortive attempts had been made to change the previous system, the experiment has been inaugurated of giving masters and workmen legal powers to form courts for the consideration and decision of their own disputes and differences; but even here the justice of the peace element crops up, by the machinery of that court being made the vehicle by means of which alone the judgments pronounced can receive legal effect. (8) Black. Comm., vol. i. p. 429. The term "correct" has been held to mean corporal punishment by whipping, 5 Burns' Justice, p. 540; but whipping of females is abolished by 1 Geo. IV. c. 57. (t) Stat. 5 Eliz., c. 4. (w) Scottish Act, 1672, c. 18. This Peace Courts mony with of the age. It would be productive of no good to conceal the fact that there Justice of exists a strong feeling in the country that Justice of Peace not in harCourts, both civil and criminal, are not in harmony with the the progress progress of the age. The prevalent idea is, that the proper functions of the justice himself are those which he possessed previous to the passing of the Act of the 34th of Edward III. (y), when he was simply a conservator, warden, or keeper of the peace. Act gave justices the right for the first time to try felonies. A Origin of French writer sees in the powers conferred upon them by that power in statute what he seems to think has been overlooked by English writers a deep design on the part of Edward against the rights of a certain class of his subjects, viz., "La suppression des legislations personelles, opérée sans que l'histoire en fasse mention, sans qu'aucun des auteurs qui ont écrit sur les lois anglaises s'en soit aperçu" (z). theirjudicial England. named by The breaking up of these personal jurisdictions, however, is not what Blackstone seems to deprecate. In referring to the statute 1 Edward III. stat. 2, c. 16, he says-" It was ordained in Parliament that for the better maintaining and keeping of the peace in every county, good men and lawful, which were no maintainers to evil, should be assigned to keep the peace.' He adds, however, in a tone of evident regret, "And in this Originally manner and upon this occasion was the election of the con- the people. servators of the peace taken from the people and given to the Crown" (a). Yet the 34th of Edward III. c. 1, made fair provision for the exercise of the new powers conferred upon the conservators, by enacting that "One lord and three or four most worthy men in the county, with some learned in the law, shall be made justices in every county." The statute 13 Richard II. st. 1, c. 7 (b), orders them to be of "the most sufficient knights, esquires, and gentlemen of the law." To secure further the Provisions appointment of men whose means would give some guarantee for as to their education and position, the statutes 5 Geo. II. c. 18, and 18 Geo. II. c. 20 (c), enact "That every justice acting for a county, (y) 34 Edward III. c. 1. (z) "The suppression of personal jurisdictions, effected without any mention being made of it in history, and without being observed by English writers."-Meyer, Esprit, Origine et Progrès des Institutions Judiciaires, vol. ii. p. 115. Londres, 1819. See also (b) 13 Richard II. stat. 1, c. 7. qualifications. pointment of quorum. except such privileged persons as are therein excepted, shall have £100 per annum clear of all deductions, or a reversion or remainder with reserved rents amounting to £300 per annum." Ancient ap- Formerly, besides, there was a quorum appointed on the commission, consisting of a select number of justices eminent for their skill and discretion; but this commendable custom has fallen into desuetude, and as if to deprive the court of any pretensions to legal knowledge or skill, the Act 5 Geo. II. c. 18, subExclusion of Stantially re-enacted by 6 and 7 Vict. c. 73 (d), provides "That and solici- no practising attorney, solicitor, or proctor shall be capable of acting as a justice of peace." A similar unmeaning and senseless exclusion was introduced by the late Mr. Joseph Hume into an Act applicable to Scotland, viz., the Small Debt Act, 6 Geo. IV. c. 48, s. 27 (e). attorneys tors. Introduction of justices of Scotland. The office of justice of the peace was attempted to be the peace in introduced into Scotland by the Act 1587, c. 82 (f); but it required repeated legislative enactments before it was permanently established. Mr. Erskine, in his "Principles of the Law of Scotland," says "Justices of the peace are magistrates named by the sovereign over the several counties of the kingdom for the special purpose of preserving the public peace. Their power by 1609, c. 7 (g), reaches little further than to bind over disorderly persons for their compearance before the Privy Council or Justiciary; but by 1617, c. 8, and 1661, c. 38 (h), they are specially directed to judge in breaches of the peace, and in most of the laws concerning public policy" (i). By the Articles of Union justices of the peace in Scotland are invested with similar powers to those possessed by their brethren in England in matters touching the customs and excise; and by the statute 6 Anne, Same powers C. 6, s. 2 (j), the same powers are given to justices in Scotland upon them which had formerly been enjoyed by justices of the peace in England in relation to and for the preservation of the peace, leaving the trials and judgments to be regulated by Scottish forms and customs. In Scotland, however, no particular qualification in rank or property is requisite to enable a person to act conferred as justices in England. (d) 6 & 7 Vict. c. 73. (e) 6 Geo. IV. c. 48, s. 27. By the Act 19 & 20 Vict. c. 48, s. 4, any attorney or solicitor who has been elected as a magistrate of any burgh of which the magistrates are ex officio justices of the peace, may act as such (g) 1609, c. 7. (h) 1617, c. 8; 1661, c. 38. (j) 6 Anne, c. 6, s. 2. |