MR. CROSS AND THE LABOUR LAWS.
THE working of the Master and Servant Act of 1867
is entrusted to a Criminal Tribunal, using the machinery of the criminal law, which is empowered to treat the breach of a contract of service at its discretion as a civil wrong, or as a penal act, and which enforces its decisions by criminal punishments. When a workman has broken his contract, the Tribunal may order an abatement of the whole or any part of his wages ; or it may require him to fulfil his contract, and find security for so doing; or it may annul the contract, and determine the amount of wages due to him ; or it may award damages against him, whether it annul the contract or not. But instead of doing any of these things, it may, if it think fit, and this in addition to the annulling of the contract, fine him in any sum not exceeding £20. Where a fine or damages awarded by it have not been paid, and cannot be recovered, it may order a workman to be imprisoned without hard labour, but in the common gaol, for any period not exceeding three months (the imprisonment operating as a discharge of the sum awarded against him) ; and it may likewise send him to the common gaol, but without hard labour, for three months, in one or more terms of imprisonment, if he fail to find security for completing his contract after having been ordered so to do. If the circumstances attending his breach of conduct amount, in its opinion, to misconduct "of an aggravated character," its powers are greater still ; it may treat him unreservedly as a criminal, and sentence him to three months' imprisonment with hard labour. Assume the provisions of the statute to be in other respects unobjectionable, and it is plain that the Tri- bunal to which could fitly be assigned so difficult and delicate a task as that of determining without aid from Parliament when a workman's breach of contract should be regarded as a civil wrong, and when as a criminal act, should be of the highest character for judgment and impartiality. The deter- mination of that question was avoided by Parliament, not because it was easy, but because it was difficult ; and though it is often easier to deal rightly with particular cases than to lay down the principle on which such cases should be dealt with, this is likely to be done only by persons of a high order of discretion, and is sure not to be in all cases done even by such persons. As everybody knows, however, it is to Courts of summary jurisdiction that the working of the Master and Servant Act has been given ; and as everybody also knows, such Courts, when they are composed, as they most often are, of two or more Justices of the Peace, are less likely to deal successfully with any question too difficult for Parliament, than almost any authority that can be con- ceived of. If, then, the Master and Servant Act has been too much for the Justices, what wonder? The work- men are no doubt right in alleging that, as a rule, the sym- pathies of the Justices are with the class of employers, and they may be to some extent right in attributing to this the cases in which the Justices have improperly resorted to the more severe provisions of the Act. But it is explanation enough of such eases that Parliament has laid upon the Justices a duty too heavy for them, has given them a discretion which, in a considerable proportion of cases, was sure to be used in- discreetly. That they must be relieved from the duty to which they have proved unequal has long been apparent ; but what then ? At last we have got Mr. Cross's views as to this, and on the subsidiary, but not unimportant, and by no means simple questions which have been agitated in connection with the Master and Servant Act. It may be said at once that he proposes to do more for the workman than any Commission has ever recommended ; much more, we suspect, than the employers will approve ; as much perhaps as, with the utmost desire to meet the demands of the workman, it was possible for him to do. As regards the mere law which he proposes to establish for the breach of a contract of service, there is, we should say, nothing that workmen are likely to object to ; but he has thought it necessary to retain the jurisdiction of the Justices in connection with trade disputes—though greatly restricting it, and perhaps bringing it down to the level of their powers—and this, we greatly fear, the workmen will not willingly put up with. There is, indeed, some risk that his measures should fail, through failing to satisfy either of the sets of people interested in them—in any case they cannot be carried during the present Session—but they show courage and good intention, and they will certainly receive fair con- sideration from those whose only interest is that right should be done.
If Mr. Cross's proposals were to become law a breach of a contract of service would, except in two cases to be hereafter mentioned, be a civil wrong, to be prosecuted in a Court of civil jurisdiction, and involving no consequences that may not follow upon an ordinary debt. Except in the two cases referred to, there would be no more committals for breach of contract to the common gaol, either with or without hard labour. A workman against whom damages had been awarded would be liable to six weeks' imprisonment in a debtors' prison as he would be for an ordinary debt, and to repeated periods of such imprisonment, were he able to pay at once or by instalments and refused to do so ; but so long as the law as to debtors remains as it is, we do, not see how this could be objected to. The Court before which a dispute arising out of a contract of service was brought would be empowered to settle all questions between the employer and the workman arising out of their contract ; might rescind the contract, and either apportion wages or award damages ; or instead of awarding
damages, might accept the defendant's undertaking to fulfil his contract, subject on non-performance to the payment of a specified sum, and failing such payment, to a month's impri- sonment. In all this there would be nothing unfair to work- men, nothing that would not be just to and considerate for them. And what a change from the Master and Servant Act! They have never claimed the right to wrong their em- ployers with impunity, and they could not complain of being made to suffer for the wrongs they commit, as all people are made to suffer for the debts they have incurred. What the employers will maintain is, that there would be in practice no means of making them suffer at all ; but the power of imprisoning for debt, as it now exists, is by no means ineffective, and, at any rate, it could scarcely prove less deterrent than the law at present does. The workman's objection, as we have said already, will be not to the law as Mr. Cross proposes to make it—that he would gladly welcome—but to the machinery by which it will ordi- narily be worked. Of course a good law can be turned into an instrument of oppression by a bad Court ; and the Courts of summary jurisdiction to which Mr. Cross proposes to give cognisance of breaches of contract where no more than £10 is claimed, and which would have the decision of most such cases, are by workmen considered very bad Courts. If they could be dispensed with, this would be a reason for dispensing with them ; and it will be for Mr. Cross to consider whether it is not possible to make the County-Court machinery available for dealing with all the cases of breach of contract which occur. If this cannot be done, however, it does not follow that because the Justices have sometimes used the wide discretion given them by the Master and Servant Act unwisely, they would use Mr. Cross's measure oppressively. As a rule, they would desire not to do so ; where they have done wrong, they have been without guidance, and the practice of the County Court in administering the power of impri- sonment would afford them a standard which they could hardly fail to follow. In attaching criminality to breaches of contract, Mr. Cross has done much less than the recent Commission recommended, and it will by many be thought that he does not do enough. First, he proposes to make criminal a breach of contract by a servant or servants of any Company which, under the provisions of an Act of Parliament, supplies the public with gas or water, when committed with the know- ledge that the probable result of it will be to deprive the public of its supply of gas or water. This he proposes in the interest of the public, which undoubtedly should have the pro- tection it would give. Workmen can no more reasonably object to this than they could to the punishment of a policeman who quits his duty without notice ; and the question is, whether the provision should not be extended to one or two more cases,—for example, to breach of contract by the servant of a Railway Company. The other case in which he would make breach of contract criminal is where the probable result of it will be to expose valuable property to destruction or serious injury. "Valuable property" is almost as vague as "misconduct of an aggravated character," but in this case vagueness will be comparatively harmless. Wilfully, by a wrongful act, to expose property, valuable or not, to destruction or serious injury may be almost as bad as destroying or injuring it, and may fairly be made punish- able, and a little uncertainty as to what property a court may consider valuable is therefore not very material. This is all that Mr. Cross proposes in lieu of the arbitrary penal provisions of the Master and Servant Act. It will be said that he has dealt timidly with a difficult task, but if he has erred it is on the right side. The cognisance of the proposed offences is given to Courts of summary jurisdiction, and the maxi- mum punishment is three months' imprisonment with hard labour.
People are apt to think more about what they don't get than about what they get, and it is possible that Mr. Cross will get as much censure from workmen for his maintenance of the Criminal Law Amendment Act as praise for what he has proposed hi their favour in the matter of breach of contract. But this is not likely. The repeal of that Act has never seriously been looked for, and Mr. Cross after all proposes a not inconsiderable amendment of it. The picketing grievance will continue. The difficult question of coercion will still remain to test the good sense of judges and juries. But if Mr. Cross's Criminal Bill were adopted, conspiracy would lose most of its terrors, so far as trade disputes are concerned. He proposes that no agreement or combination to do any act in contemplation or furtherance of a trade dispute should be punishable as a conspiracy unless the act, when done by one person, is punishable as a crime ; and to limit the punishment for a conspiracy to do an act which, when done by one person is punishable only on summary con- viction, to the period of imprisonment prescribed when the act has been done by one person. The former branch of this pro- posal would free workmen in their trade combinations—which the Criminal Law Amendment Act did insufficiently—from the serious risk attaching to a law which resides in the breasts of Judges, and therefore every now and then takes some unexpected form ; the latter would not have saved the Gas-stokers from being tried for conspiracy, but it would have limited their punishment to three months' imprisonment. A proposal to limit the common-law power of a Judge in passing sentence for conspiracy is unprecedented, but it cannot be said that it is uncalled for. That it should have been made by a Con- servative Minister is, nevertheless, a strong acknowledgment of the position in the Commonwealth to which working-men have attained. Another change proposed by Mr. Cross is that persons charged under the Criminal Law Amendment Act, or under his Criminal Bill, should have as an alter- native to summary trial the power of claiming to be tried by jury. This looks well, and could do no harm; and though we doubt whether it would be of much value to accused persons, there can be no reason why it should not be adopted.
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