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MASTERS, WORKMEN, SERVANTS,
INTRODUCTION. THE statutory law with regard to master and servant has been allowed for more than a century to grow up without any attempt having been made, except, perhaps, in one particular instance (a), to give it system or method. So much is this the case that, even governed as we are by one Parliament, dealing with matters of imperial application and national importance, it is often doubtful whether some of the Acts passed are intended to apply to the United Kingdom, or only to a part of it (6); while with regard to others it takes frequently all the knowledge and acumen of Westminster Hall, the Parliament House, and the Four Courts to determine how far, if at all, some statutes or portions of them have been repealed or superseded, and what effect, if any, should be given to provisions liable more or less to the common reproach of being a mere cento of immature legislation.
(a) The Merchant' Shipping Act, 17 & 18 Vict. c. 104, and subsequent Acts.
(6) Mr. Sheriff Barclay, in his evidence given before a Select Committee of the House of Commons, on 13th June, 1866, stated, “I may mention to the Committee, as being well worth noting, the three statutes I have taken note of; namely, the 20 Geo. II. c. 19, passed in tbe year 1747, the 6 Geo. III. c. 25, passed in the year 1776, and the 4 Geo. IV., passed in the year 1823, extended to some other trades by the 10 Geo. IV. It so happens that all these statutes are put down in our leading treatises on justices, which Sheriff Tait, of Edinburgh, published in the year 1828, as not being applicable to Scotland, and I strongly believe that they were never intended
to be applicable to it. I never knew
The Acts which have been passed since the Union with regard to the relations between employers and employed, from their mixed and, in many instances, confused character, furnish very indifferent materials for a systematic treatment of the law relating to this important subject; and there is consequently much need for some large and comprehensive measure, dealing with it as a whole, which could be worked uniformly in all parts of the kingdom. The great defect of our legislation consists in the readiness with which on all occasions we have recourse to make-shift remedies in dealing even with radical evils—a mode of proceeding which springs naturally from a state of things in which no change, however desirable, can be accomplished without incessant and clamorous demands, frequently perhaps peremptorily preferred, but always reluctantly conceded ; leading in many cases to results similar to that which one might suppose to be obtained from the action of some complex machine worked by two opposing forces, in which it would be the province of a certain class of operators to move it in one particular direction, while a second set, by a series of ingeniously devised grooves, contrived that every point as it presented itself should be morticed and tenoned in another; so that when at last, after having been planed, squared, and put together, the article comes from the hands of its manipulators, it is discovered, in too many instances, to be the embodiment of almost everything but what each of them expected, and they are astonished to find that their efforts have merely resulted in the creation of an image of "iron, clay, and brass," similar to that spoken of by the prophet Daniel, liable to be broken to pieces, and to become “like the chaff of the summer threshing-floors ” (c). Theoretically it is, no doubt, a very excel
(c) In course of the lively conversation of the bons vivants assembled at the celebrated dinner in London referred to by Boswell in his “Life of Johnson,” at which he and the doctor were guests, “in a company wbere were present sev
eral eminent men," whom he declines to name, and at which it may be remembered that the doctor insisted that the dog of Alcibiades had a docked tail, the following view is given by one of the interlocutors of the passage of an Act of Parliament through the House of Commons:-"Though an Act which has been ably opposed passes into a law, yet in its progress it is modelled, it is softened, in such a manner, that we see plainly the mini. ster has been told that the members attached to him are so sensible of its injustice or absurdity from what they have heard, that it must be altered.”
lent thing, this double impelling and repelling action—this socalled building up of the new, while you are pulling down the old—dovetailing the ancient into the modern parts of the structure-pruning the branches, instead of lopping them off or digging up the tree itself by the roots. Festinare lente* may be safe policy, and sure in the end; but there can be little doubt that the system has landed us in a mass of most heterogeneous laws, to codify and systematize which would almost require another Justinian to find us a second Tribonian, Theophilus, and the rest. The schools of Berytus and Constantinople would have ample employment and kindred work in expurgating, arranging, and codifying the multifarious enactments and antiquated customs which go to form the laws of the British empire.
Within the last few years general attention has been directed to the unsatisfactory nature of the legal relations between employers and employed to a state of things, in fact, which, to use the emphatic language of Lord Ormidale (d) in speaking of the condition of the Court of Session, amounts to a public scandal. The alarming extent, besides, to which disputes between masters and workmen have been carried in this country, naturally suggested the inquiry how far the evils resulting from them could be met by legislative enactment. Never, perhaps, in the annals of trade has there occurred such a number of strikes in almost every branch of it, as have taken place within the last two years; and seldom have they continued in individual cases for such lengthened periods. At no time were they so likely as they are now to cause the forfeiture of that remarkable pre-eminence in the world's industry, so nobly won for us by the skill and energy of our forefathers. Thousands of workmen and their families must have suffered privations of which we can never know the extent; while many employers have doubtless sustained losses which it may take years of exertion to repair. The inveterate character of these disputes would seem in a great measure to have arisen from the want of some adequate machinery in our judicial system, by which the questions involved could be fairly determined. Employers and employed have been hitherto in the position of litigants without a forum to decide their differences. Each blindly held particular views upon the subject of their contention, and in most cases lent a deaf ear to suggestions of compromise. The result of all their contests, however, has been that both suffered. One might eventually conquer through superior means of endurance; but, as in a well-contested prize fight, each combatant left the field considerably the worse for the encounter. It seems strange that in a country which prides itself upon the wisdom of its laws, the extent of its manufactures, and the strong common sense of its people, there should not have been devised some method by which these ruinous disputes could have been settled, except strikes and lock-outs. Our mercantile jurisprudence is as nearly perfect as any body of legal rules can reasonably be expected to be, and it readily adapts itself to the various changes required by an increasing trade and extending commerce. In social and political economy we have made remarkable progress; but the great field of industrial legislation has been as yet either neglected or mismanaged. We have, indeed, numerous Acts of Parliament, forming almost a penal code, with regard to the liabilities of workmen, servants, and apprentices for breach of contract, and others which, to some extent, relate to the obligations of employers; but they fail to constitute as a whole a comprehensive system by which the rights and interests of the parties can be satisfactorily determined. It is otherwise in France, where, for a considerable period, courts have been in existence, specially constituted and organized, for hearing and determining differences between workmen and their employers. These tribunals are called the “ Conseils des Prud'hommes." By the enlightened legislation of the first Napoleon and his successors, these have been remodelled, and adapted to meet the various exigencies of trade and manufacture in France. The members are elected by the masters and workmen, both sides being equally represented. They have been found to work admirably, and there can be no reason why they should not also do so in our own country, remarkable as it is for the facility with which it
-Life of Johnson. London: Routledge, 1856. Vol. iii. p. 157.
(d) One of the judges of the Supreme Courts of Scotland, and previous to his elevation to the Bench, sheriff of the county of Renfrew. The present movement for the reform of the Court of Session, resulting in the introduction of a parliamentary measure on the subject, is mainly owing to the uncompromising and decisive denunciation by Lord Ormidale of the evils of the existing system of procedure.
* Lit. “ To hasten slowly."