introduced a long series of exceptions in favour of many classes (). The justices ceased to settle the rate of wages; and when journeymen weavers, with a view to keep up their remuneration, sought to compel the justices to fix a rate of wages, the Court of King's Bench declined to interfere by mandamus (a). The establishment of factories led to its disuse, and made it highly inconvenient in the woollen trade, which was excluded in 1809 from the operation of the statute (b). In 1814 the provisions of the Act of Elizabeth relative to apprenticeships were repealed (c). old industrial system of England.

Thus ended the

In the second part of this volume will be found the chief statutes which have been passed with reference to master and servant. They are numerous and important. Parliament has passed a series of Acts known as the Factory Acts, beginning with the 42 Geo. III., c. 73, in 1802, and ending with the Factory and Workshop Act of 1878, with a view to improve the lot of women and children labouring in factories. It has consolidated in the Merchant Shipping Act of 1854, and other measures the law relative to seamen. The evils produced by the practice of paying workmen in goods instead of money early attracted the attention of the Legislature, and led to the passing of various Acts, which were replaced by the measure now in force (d). The combination laws have been abolished. Trades-unions are no longer illegal associations in the sense in which they once were. The laws passed in the reigns of George I. and II. with a view to hinder artificers going abroad have long ceased to be put in operation, and they now do not exist (e). Breaches of contracts of service are treated in almost all respects as breaches of other contracts. The settlement laws are amended. The work

(2) The first of these was 15 Chas. II., c. 15, and one of the last 50 Geo. III., c, 41, s. 22.

(a) Rex v. Cumberland (1813), 1 M. & S. 190.

(b) 49 Geo. III. c. 109. 53 Geo. III. c. 40, repealed the 5 Eliz. c. 4,

and 1 James I. c. 6, in regard to the assessment and rating of wages by the justices.

(c) 54 Geo. III. c. 96.

(d) 1 & 2 Will. IV. c. 37.
(e) 5 Geo. IV. c. 97.

man of these days is thus immeasurably removed, not only from the villain as described by Bracton, but from the free workman of Tudor times, who was bound by the rules of his guild, who must often take what wages others had determined to be his due, and who could not move freely about.

APPENDIX A.

TRACES OF VILLENAGE.

It is often contended that several peculiarities of the law of master and servant may be traced to the time when the villain was the property of his lord (a). The following are some of the principles said to be borrowed from villenage :

(1.) There is authority, as will be seen, for the proposition that a master may justify an assault committed in defence of his servant. This may have originated in the notion that, to quote a phrase in one of the Year Books, le servant est en manner son chattel (b), or, to quote the language of Crook, J., in Seaman v. Cuppledick (c), that "The ford may justifie in defence of his villain for he is his inheritance." But the servant may also justify an assault in defence of his master (d); and these rights may be deduced from an obligation in the master and servant as members of the same household to render each other protection. In early decisions will be found many expressions which show that the relations of master and servant, father and children, husband and wife, were regarded as in many respects the same (e).

(2.) The liability of a master for the acts of his servant in the course of employment, which is treated of in Chapter XXVIII., is sometimes

(a) Mr. Willes's argument in Lumley v. Gye (1853), 2 E. & B. 216; Holland's Jurisprudence, 194.

(b) 19 Henry VI. fol. 31, 6, pl. 66. (c) (1614), Owen, 150.

(d) There is no doubt as to the right of the servant; and it has been held that a servant may justify an assault in order to obtain repossession of his master's property. Blade v. Higgs (1861), 10 C. B., N. S. 713. On the other hand, the right of the master to justify an assault in defence of his servant has been questioned, Leewerd v. Basilee (1696), 1 Salk. 407, and 1 Ld. Ray. 62, on the unsatisfactory ground that he could have an action for loss of service. But this was not followed in Tickell v. Read (1773), Loft. 215, where Lord Mansfield said, "I cannot tell them (the

jury) a master interposing when his servant is assailed is not justifiable under the circumstances of the case, as well as a servant interposing for his master it rests on the relation." See also Dalton's Justice, 121; Hawkins' P. of C. ii. 60, and Pulton, De Pace Regis, 13. There is authority for holding that a master may aid his servant in bringing an action without being liable for maintenance. Russell on Crimes, vol. i. 354; Blackstone, i. 428.

(e) See the curious passage in Hale's Pleas of the Crown, i. 483, where it is said, "The like law had been for a master killing, in the necessary defence of his servant, the husband in the defence of the wife, the wife of the husband, the child of the parent, the parent of the child

ascribed to the theory, once true of villains, that the servant was the property of the master, who ought to answer for the acts of a person who had no rights apart from his master. One objection to the accuracy of this view is, that the principle of liability, as now understood, was not clearly laid down until long after villenage was extinct, and that for some time after it was destroyed, a master's responsibility was often described as more limited than it is now admitted to be. While villenage disappeared about the beginning of the seventeenth century, no clear traces of the modern doctrine of the master's liability exist before the time of Holt, C.J. (f).

(3.) To the influence of villenage is sometimes ascribed the principle of the Common Law, that possession by servants of their masters' goods is regarded as possession of the master himself. Hereafter (g) it will be necessary to return to this principle, which is productive of important consequences, civil and criminal. In the oldest cases on the subject there is no reference to villenage (h). The distinction between property, possession, and mere detentio, exists in the nature of things, and must be more or less clearly recognised in all systems of jurisprudence. No doubt the English lawyers found in the Civil Law the distinction. The development of its consequences was different in the two systems, because the Roman lawyers were chiefly concerned with the cases in which possession existed without property according to the Jus Quiritium, while the English Common Law was mainly interested in the cases in which persons had bare detentio, and not possession, and could be indicted for larceny in the case of their converting chattels (i).

(4.) It has also been suggested that the action for enticing or harbouring a servant originated in the same way. According to the view put forward by Coleridge, J., in Lumley v. Gye (k), no action for enticing away or procuring a servant to depart lay before the Statute of Labourers, the 23rd Edward III. The objections to this view are neither few nor unimportant, and most of them are stated below (1).

(5.) At Common Law a master has the right to correct or chastise

for they are in a mutual relation to each other." He classes the relationship of master and servant amongst "relationships œconomical." Hale's Analysis, p. 33.

(f) See chapter xxviii. (g) Chapter iii.

(h) See, however, Bracton, f. 165. (2) Chapter iii.

(k) (1853), 2 E. & B. 216; 1 W. R. 432; Bowen v. Hall (1881), L. R. 6 Q. B. D. 333; 29 W. R.

(7) 1. It is not certain that at Common Law an action for the wrongful procuring of the violation of other contracts than hiring and service would not lie. See Crompton, J., Lumley v. Gye, 2 E. & B. 230, and especially the remarks of Brett, L. J., in Bowen v. Hall (1881), L. R. 6 Q. B. D. 333; Green v. Button (1835), 2 Cr. M. & R. 707; Wins

4.

more v. Greenbank (1745), Willes, 577. 2. The action for enticing away has survived the repeal of the Statute of Labourers. 3. As is pointed out in Smith's Master and Servant, referring to Lut. ii. 1548, the circumstance that the writ for enticing away recited the Statute did not necessarily show that the action did not lie at Common Law. Pulton, p. 3, citing a case in 22 Lib. Ass. Ed. III., p. 76, decided three years before the Statute, shows that an action lay against a person who by menaces drove away a servant. Pulton also states the law in the same manner with respect to the enticing away of servants and tenants and the references which he quotes from the Year Books, 20 Hen. VII., p. 5, and 9 Hen. VII., p. 7, support his view. 5. Such an action lay

moderately (m) his apprentice, and some of the old authorities state that the same right extends to the correction of servants. The question is discussed in chapter i.; and, if the right ever existed, it may have originated in villenage.

(6.) It is pointed out in Hargrave's Notes to Coke on Littleton (n), that the maxim, quicquid acquiritur servo acquiritur domino, "holds in some degree in respect to apprentices and servants, particularly the former, though with a great difference in point of extent and application." See as to this Morrison v. Thompson (0), and also chapter xix. So far as the cases recognise any right in a master to wages or prize money earned by his servant while in the employment of another, it is not readily deducible from the nature of the contract of hiring and service. Most of the decisions may be supported on the ground that a servant is an agent, and stands in a fiduciary capacity, and is bound to account for all earnings made in the course of his employment. But other cases, if rightly decided, can be supported only on the supposition that a master has a species of property in his servant (p).

according to the law of Scotland, though the Statute of Labourers was never in force there, Fraser's Master and Servant, Campbell's ed., p. 308. (m) p. 32.

(n) 117a.

(o) (1874), L. R. 9 Q. B. 480; 43 L. J. Q. B. 215; 30 L. T. 869; 22 W. R. 859.

(p) Blackstone, i. 429.