Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955
608
Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955
608eBook
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Overview
Sweeping in its geographic and temporal scope, this volume tests the relationship between enacted law and enforced law in varied settings, with different social and racial structures, different economies, and different constitutional relationships to Britain. Investigations of the enforcement of master and servant law in England, the British Caribbean, India, Africa, Hong Kong, Canada, Australia, and colonial America shed new light on the nature of law and legal institutions, the role of inferior courts in compelling performance, and the definition of "free labor" within a multiracial empire.
Contributors:
David M. Anderson, St. Antony's College, Oxford
Michael Anderson, London School of Economics
Jerry Bannister, Dalhousie University, Nova Scotia
M. K. Banton, National Archives of the United Kingdom, London
Martin Chanock, La Trobe University, Australia
Paul Craven, York University
Juanita De Barros, McMaster University
Christopher Frank, University of Manitoba
Douglas Hay, York University
Prabhu P. Mohapatra, Delhi University, India
Christopher Munn, University of Hong Kong
Michael Quinlan, University of New South Wales
Richard Rathbone, University of Wales, Aberystwyth
Christopher Tomlins, American Bar Foundation, Chicago
Mary Turner, London University
Product Details
| ISBN-13: | 9780807875865 |
|---|---|
| Publisher: | The University of North Carolina Press |
| Publication date: | 10/12/2005 |
| Series: | Studies in Legal History |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 608 |
| File size: | 4 MB |
About the Author
Paul Craven is associate professor of labor studies at York University. He is editor of Labouring Lives: Work and Workers in Nineteenth-Century Ontario and author of An Impartial Umpire: Industrial Relations and the Canadian State, 1900-1911.
Read an Excerpt
Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955
The University of North Carolina Press
Copyright © 2005 The University of North Carolina PressAll right reserved.
ISBN: 0-8078-2877-7
Chapter One
IntroductionDouglas Hay and Paul Craven
... all the statutes heretofore made, and every branch of them, as touch or concern the hiring, keeping, departing, working, wages, or order of servants, workmen, artificers, apprentices and labourers, or any of them, and the penalties and forfeitures concerning the same ... -(Engl.) 5 Eliz. c.4 (1562)
For more than 500 years, the law of master and servant fixed the boundaries of "free labor" in Britain and throughout the British Empire. Compounded of statutory enactments, judicial doctrine, and social practice, it defined and controlled employment relations for almost a quarter of the world's population in more than 100 colonial and postcolonial jurisdictions. Variant forms governed servants and masters in Tudor England, seventeenth-century Virginia, eighteenth-century Barbados, nineteenth-century Assam, and twentieth-century Kenya. Immensely varied, it was also often strikingly similar in different times and places, and always had three defining characteristics. The first was the idea that the employment relation was a matter of private contract or agreement for work and wages between an employer who thereby acquired the right to command and an employee who undertook to obey. The second was the provision for summary enforcement of these private agreements by lay justices of the peace or other magistrates, largely unsupervised by the senior courts. The third was punishment of the uncooperative worker: not damages to remedy the breach of contract, but whipping, imprisonment, forced labor, fines, the forfeit of all wages earned. This distinctive conjuncture of civil contract, informal justice, and effective criminalization of the worker's breach was enacted in thousands of statutes, enforced around the globe in a web of closely related language, doctrine, and social practice. Its commands and particularly its penalties provoked resistance, political conflict, and ultimately repeal.
This book considers together both British and colonial master and servant law to explore its commonalities and differences and, in particular, to consider how it was used and enforced. Master and servant was one of the many legal ligaments that helped make the British Empire a thinkable whole by the eighteenth century. To the limited degree that it has been described by historians and lawyers, rather than simply evoked, the general law of empire usually has been treated as the common law. Yet master and servant was in its essentials statute law. Because it was the business of lay justices and other magistrates at the lowest level of the judicial hierarchy, whose decisions were not matters of formal record, the law and its enforcement remained largely unexamined by the senior courts, especially before the nineteenth century. Master and servant preoccupied the legislatures. An enormous volume of employment legislation was produced by 100-odd imperial jurisdictions. The sheer bulk of these statutes, together with the deliberate exclusion of master and servant from the lawcourts (by privative provisions, judicial deference, and other means), forces us to reconsider the characterization of imperial legal regimes as simply common-law or mixed common-law-with-civilian-or-other regimes (Quebec, South Africa, Mauritius, Scotland, Sri Lanka, etc.). Instead, we argue here, the law of master and servant existed in large measure as a separate body of imperial law that had remarkably little contact, over long periods, with the high legal regimes in which it was everywhere nested.
Master and servant law emerged in an immense diversity of settings: in rural and industrial Britain; in the tobacco fields of colonial America and the sugar plantations of the West Indies; in Canadian forests and Australian sheep stations; in African diamond mines and Indian tea gardens; in merchant ships on the high seas, and in the warehouses and workshops of a thousand towns. The details of its variation in these different settings, including huge differences in the rate and severity of enforcement, invite us to examine how law changes, how it is adapted, and how it shapes and is shaped by the societies in which it is embedded. This volume examines the law and particularly its enforcement after 1600 in Britain, colonial America, Newfoundland, Canada, Australia, the British Caribbean, Africa, India, and Hong Kong, in fourteen case studies. This introduction and a chapter on the Colonial Office explore the economic, ideological, and political dimensions, and the regional differences and distinct chronologies, of what became an immense structure of imperial law. The use or disuse of the law in any given jurisdiction, and its specific terms, illuminate the experience of labor and the profitability of capital. Comparisons among these many jurisdictions, over several centuries, raise important questions about the nature of high and low law, about freedom, about markets, about empire.
While there has been considerable historical writing about particular employment regimes-master and servant in England, indentured labor in early America, postslavery "apprenticeship," nineteenth-century industrial immigration, among the most familiar-these areas of scholarship have remained largely insulated within their regional or national histories. The main exceptions have been literatures on "apprenticeship" and on the massive nineteenth-century migration of Indian, Chinese, and Melanesian labor under indenture, both of which have had to come to terms with direct imperial regulation of these regimes. Yet the details of the statutes, their significance, and their enforcement have been insufficiently explored. Little attention has been paid to their similarities to English master and servant law, or even to the other earlier or coincident employment law regimes in the same colonies.
For example, in the Caribbean white indentured servitude preceded slavery. Following abolition, freed slaves were subject to the compulsory bound labor of "apprenticeship." When it ended in 1838, new penal statutes were enacted to govern the ex-apprentices. But these laws failed to keep ex-slaves and their descendants on the plantations, so British Guiana and Trinidad (and, to a much lesser extent, Jamaica) began in the mid-nineteenth century to import indentured Indian labor, generating in the process a thick statute book and stunningly high rates of penal enforcement. Moreover, Jamaica continued to legislate for masters and servants during the period of slavery, while British Guiana enacted regulations governing casual laborers in Georgetown during the period of indentured Indian plantation labor. In these jurisdictions there were as many as four or five distinct and partially overlapping regimes, each based in its own set of statutes. All were variations on the larger theme of master and servant law, sharing in its common characteristics. Other colonies that experienced neither "apprenticeship" nor industrial immigration nevertheless had coincident varieties of employment contracts regulated by different statutes, with the same common characteristics, as did England itself.
Here we explore some of the issues raised by the large existing literature and by the contributors to the volume, who have shared a comprehensive database of some 2,000 master and servant statutes. This chapter summarizes the origins and proliferation of statutory master and servant law, considers the importance of the statutes themselves as evidence, and gives an abbreviated chronology of the spread of their provisions throughout the empire. Analysis of these provisions undermines the conventional categories of "free" and "unfree" labor found in most of the economic and historical literature. This introduction also demonstrates the immense range of uses of master and servant law; summarizes the ways in which it interacted with vagrancy laws, dispossession, and policing through the example of southern Africa; compares enforcement levels in different economies and societies; and suggests an approach to the large question of what constitutes an imperial system of law.
English Origins
From the beginnings of the common law, but especially from the Ordinance of Labourers and Statute of Labourers, England's central state took a sharp interest in the terms of employment. The fourteenth-century legislation was a response to demands for and by labor attributed to the enormous demographic consequences of the Black Death. In the words of the Statute of Cambridge (1388), "Servants and labourers will not, nor by a long season would, serve and labour without outrageous and excessive hire." The magistrate, often a layman, first appears as the rural justice of the peace in fourteenth-century England; indeed, it has been argued that the master and servant law, the justices of the peace, and the gentry class from which they were drawn were three aspects of one momentous transformation. From that point until the twentieth century the enforcement of employment contracts was almost entirely in the hands of these men and their urban counterparts. They were only on rare occasions required to account for their actions to high-court judges, who in most periods before the mid-nineteenth century rarely questioned their decisions. Unlike the high courts and quarter sessions, the magistrate's summary hearing was not a court of record. Often his actions were not recorded in any sense. As a result, there was often a triple disjuncture between the law as enacted by statute, the law as applied by magistrates, and the law as interpreted by the high courts.
Almost all the elements of the early legislation (compulsory service, apprenticeship, penalties for leaving work, attempts to tie workers to particular status and employers) were recapitulated in the forty-eight sections of the Statute of Artificers (1562), whose categories dominated the law until the nineteenth century. Over the next four centuries, legislation and judicial decisions elaborated these statuses, rights, and duties, in several distinct models of nonslave labor. Although their exact contours changed over time, these were the elements that colonial governments adopted, modified, or rejected in creating labor regimes throughout the empire. Quite different models of coercion and remedy from those of England were invented in colonies that relied extensively on imported or indigenous workers who were not of European origin, but even there the English (and probably some Scottish) models provided crucial elements, and invite comparisons.
The English hierarchy of employment statuses was based on age, terms of engagement, financial standing, and often specific occupation, for different trades were subject (by statute and case law) to different obligations. There were also some geographically and occupationally distinctive forms of contracts. In this sense there was no one law of employment common to most or all workers in early modern England: there were important common elements, but much difference in detail. Abstraction and innovative generalization took place only in the nineteenth century, when the project of theorizing the English law of contract included descriptions of the principles of employment (which nonetheless retained its distinctive character within the larger body of contract law). From the mid-nineteenth century, a general theory of contract informed new legislative activity, which quickly drew nearly all workers into a common legal regime. The statutes in Britain, and in some parts of the empire, were partly purged of penal sanctions and recast in neutral language that purported to balance the duties and remedies of both parties.
Until then, the law provided most of the content for a large and diverse set of employment relations. For young people, mainly boys but also a very few girls, apprenticeship took several forms, from carefully drawn agreements for the children of wealthy parents to the coercive parish apprenticeships of the poor. This status rested on medieval and Tudor law that required apprenticeship to practice enumerated trades, but it was eroding badly by the eighteenth century, and its compulsory clauses were repealed in 1814. Among adults, the medieval and Tudor law distinguished several kinds of workers, all generically termed servants. There were servants in husbandry (agriculture), hired by the year; artificers and workmen (who in towns were also subject to the rules of their guilds or companies), who might be hired by the year, for other periods, or for specific tasks; and day laborers, whose muscle power was called upon in every area of agricultural and artisanal practice. All are mentioned in medieval legislation, and by 1600 the contracts of these groups, comprising most adult workers, fell within the jurisdiction of the magistrates. Confusingly, from the late eighteenth century domestic servants were excluded by judicial decision from the scope of master and servant statutes in England, although they usually were included in the colonies. There was also the legal category of covenant servant, often a highly skilled worker who had entered into articles of agreement to serve under specified conditions for a specified term, which might be longer than a year. Special varieties of written contracts existed in a number of trades, particularly mining, where an annual "bond" was in use in some coalfields by the early eighteenth century, and in merchant shipping, where seamen's labor agreements embodied in written articles were found throughout the empire as a matter of imperial policy. Indentured servants for labor in the colonies also entered into written articles with elements drawn from apprenticeship and/or adult covenant agreements.
The balance of this body of law, the degree to which it favored employer or worker, shifted over the centuries, sometimes between decades, trades, places. Its coexistence with other changing legal provisions was also important. Besides master and servant law in the sense discussed here (the individual contract and its summary enforcement), a large number of civil and criminal statutes and doctrines governed collective labor relations and labor standards. Best known are combination acts and criminal conspiracy (making trade unions and strikes illegal), fixing of maximum and occasionally minimum wages (medieval and Tudor provisions still enforced at least occasionally as late as the eighteenth century), and, increasingly in the nineteenth century, new civil and criminal liabilities of trade unions and the growth of protective legislation around mines and factory employment. These are not our subjects. However, the law of master and servant also was used against strikers, who almost always offended against the laws governing the individual contract by stopping work or by persuading others to leave or refuse employment.
Continues...
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What People are Saying About This
A growing amount of attention has been paid to the question of master and servant legislation in England. . . . Masters, Servants, and Magistrates is the most important work so far and significantly extends our knowledge and understanding of this body of law.—Historical Studies in Industrial Relations
Aptly . . . demonstrates the ways a group of medieval laws, created to serve the needs of a small country, could be reworked into a flexible system of employment procedures across a vast empire. . . . A valuable contribution to the areas of social history, legal history, and economic history.—Itinerario
A rich and varied volume. . . . Turns the history of employment on its head.—Law and History Review
The planning, organization and scope of the book are impressive. . . . [Masters, Servants and Magistrates in Britain and the Empire] is a seminal work which current and future scholars in the field will quarry and remain heavily indebted to for many years to come.—Labour History
Masters, Servants, and Magistrates is a monumental achievement that contributes immeasurably to our understanding of several important subjects, including the history of employment law, the process of statutory 'borrowing,' and the practices of low-level magistrates.—Comparative Labor Law & Policy Journal
This is a big and important book that should prove invaluable reading for historians of both law and empire.—H-Albion
An excellent background of nearly four hundred years of master/servant law in Britain and its Empire. In addition to presenting fundamental legal principles that afford insight into British and colonial statutory law, the book provides an excellent historical description of employment issues during the time period.—Canadian Journal of History
This eagerly awaited and important volume is a boon to historians, lawyers, and social scientists. It enables them to view the history of their own national legal cultures in the light of others, providing rich and detailed materials and first attempts at conceptualization for future comparisons.—David Sugarman, Lancaster University