Postscript.-Electoral Bribery and Corruption, 341. Proposed Alterations in the Law of Master and Servant, 1. Recent Legal Appointments, 127. Remarks on the Rank of Queen's Serjeant. By Humphrey W. Woolrych, 20. Sir Edmund Saunders and Mr. Serjeant Williams, 223. The Case of Mr. George William Gordon, 28. The Statute Book for 1866, 181. The late Lord Justice of Appeal, the Right Hon. Sir James The New Courts of Law and the Accommodation of the Bar, 332. Wheaton's International Law, 259. THE Law Magazine and Law Review: OR QUARTERLY JOURNAL OF JURISPRUDENCE. No. XLIII. ART. I.-PROPOSED ALTERATIONS IN THE LAW OF MASTER AND SERVANT. Report from the Select Committee on Master and Servant, together with the Proceedings of the Committee, Minutes of Evidence, Appendix, and Index. Ordered by the House of Commons to be printed, July 30, 1866. IT has often struck us that an interesting work might be written on the influence which the doctrines of political economy have produced in modern times on the law of England. We do not allude merely to the direct effects which they have had in leading to the repeal of various statutes conceived in the old spirit of protection, and to the passing of various measures tending to simplify the law with respect to procedure, the conveyance of real property, and many other subjects, but also to the indirect effects which they have produced in guiding the decisions of the courts in their efforts to mould the law so as to suit the wants and characteristics of the age, and in modifying the views of lawyers as to the relative importance of some parts of our legal system in reference to the ends of justice. Two obvious results we think have been brought about by the general tendency which VOL. XXII.-NO. XLIII. B political economy has in our day given to the minds of men. The first has been to deprive, as much as possible, all matters connected with the law of the character of non-productive labour; and the second, to extend, as far as may be, the sphere of contract at the expense of imperative law. Mr. Maine, in his admirable work on " Ancient Law," has touched on this latter result, and has stated, very justly, the influence which political economy has had in its production. He observes that "The bias of most persons trained in political economy is to consider the general truth on which their science reposes as entitled to become universal, and when they apply it as an art, their efforts are ordinarily directed to enlarging the province of contract and to curtailing that of imperative law, except so far as law is necessary to enforce the performance of contracts." p. 305. It is obvious, however, that in many parts of our system we have not yet come up to this ideal; and some provisions of our law with respect to master and servant are regarded by many persons as in direct contradiction to it. It is contended that a great deal too much of "imperative law" has been introduced to enforce the contract against the servant. The Report of the Select Committee of the House of Commons, presented at the end of the last session of Parliament, has drawn public attention to this subject, and, if we are not mistaken, the matter to which the Report relates is not likely to be disposed of without a considerable amount of discussion, and the display of no little feeling on both sides. Judging from the evidence taken before the Select Committee, very few persons profess to support the present law in its integrity, and the question will therefore be mainly as to the extent to which it ought to be modified. The subject is of great imprtance with reference to the social and economical issues which it involves. relates to the welfare of large classes of the community—it raises a very nice question of legislation, and the difficulties with which it is embarrassed, from the interests and sentiments with which it is mixed up, cannot justly be considered as It small. We offer, therefore, no apology to our readers for occupying a few of our pages in its discussion. The relation of master and servant is founded on the contract of hiring and service, and, as a general rule, that contract can only be enforced by the ordinary civil tribunals. Both parties, according to the wise and liberal principles of the common law, are treated as the parties to any other contract. But the legislature has given jurisdiction to justices of the peace, in a great variety of cases, to enforce the contract against the workman in a summary manner, and to treat its breach on his part as a criminal offence. By the statutes on this subject, which it is unnecessary for our present purpose to mention particularly, agricultural labourers and a variety of artificers engaged in the different manufactures of this country, if they have contracted in writing to serve any person for a fixed time, and do not enter on such service according to the contract, or if, having so contracted, whether in writing or not, and entered on the service, they absent themselves, before the term of service is completed, or neglect to fulfil the same, or be guilty of any other misconduct in the execution thereof, may be apprehended on the warrant of a justice, and on proof of not having fulfilled the contract, or of having been guilty of any such misconduct, may be committed to the house of correction for any period not exceeding three months. Nor does this imprisonment put an end to this very serious liability on the part of the unfortunate workman, it having been held by the Court of Queen's Bench in ex parte William Baker, 26 L. J., M. C. 193, that under 4 Geo. 4, c. 34, an artificer who has been convicted and imprisoned for absenting himself from his master's service, and who after his discharge from imprisonment refuses to return to the same service before the completion of the term, may be again convicted and imprisoned for the offence of absenting himself from such service. The case came before the court on an application for a habeas corpus. A similar application, however, was made in the Court of Exchequer (26 L. J., M. C. 153), where Martin, B. expressed a doubt on the point, and Pollock, C.B. took an opposite view to that of the Court of Queen's Bench; but the two other judges supported the latter decision, although the warrant of commitment was held bad on other grounds. Subsequently, on a case stated by magistrates, which came before the Court of Exchequer (Youle v. Mappin, 30 L. J., M. C. 264), it was held by Pollock, C.B., and Martin, B. that the second conviction was bad, on the ground that it appeared the first conviction was for leaving the service absolutely, and the appellant ought not, therefore, to be convicted a second time; and it was also held by Pollock, C.B., and Bramwell, B. that the facts did not establish a wilful absenting, and that therefore the conviction was improper on that ground also. Notwithstanding these decisions of the Court of Exchequer, the Court of Queen's Bench still adheres to the more rigid and, as we think, the more correct view of the law. In a recent case, a workman, after being convicted and committed for absenting himself from his master's service, refused, when the imprisonment had expired and while the term still continued, to return to the service. He was again summoned before the justices, when he stated that he considered his contract determined by the commitment, and the justices found that he boná fide believed that he could not be compelled to return to his employment, and dismissed the summons. A majority of the Court of Queen's Bench, however, held, that although the servant had not returned to the service, yet as the contract continued, he had been guilty of a fresh offence, for which, notwithstanding his conviction and imprisonment, he could be again convicted, and that his bond fide belief that he could not be compelled to return to his employment, did not constitute a lawful excuse for his absence. Unwin v. Clarke, Law Rep. 1, Q. B., 417. Whatever may be thought of such results, they appear to us to flow necessarily from the provisions of the statutes. Where the justices do not expressly discharge the servant from |