As to the objection, which was frequently urged, that imprisonment should not be awarded for the breach of a contract, it was said there were two modes of dealing with it, either of which took away from the objectors all ground for speaking of the law in the strong terms sometimes made use of. In the first place, there is, it was urged, a breach of contract, but there is something more when a workman wilfully leaves his work unfinished ; there is something of a public wrong, considering how many persons, often fellow-workmen in the same class of life, suffer from the sudden neglect of work. In the second place, imprisonment may be viewed as a mode of compelling the performance of contracts. The law of England in a variety of cases allows imprisonment as the mode of compelling the performance of contracts and duties, quite apart from imprisonment for debt. In many instances the law no doubt considers the payment of damages as an equivalent for performance, but in other cases, where damages are not an equivalent, absolute performance is enforced. An agreement to sell an estate is a familiar illustration, where the law of this country will compel actual performance, and will not allow the owner of the estate to keep it and merely pay damages for the breach of his contract; and although, in general, compensation may be substituted for the performance of personal engagements, there are cases where the doing of definite work will be enforced by the Court of Chancery on the pain of imprisonment. In some cases, damages might recompense a master for the breach of a contract by his servant, but the latter is seldom in a condition to pay damages, and therefore, in the absence of any other remedy, he might set his employer at defiance. Has not the master a just right to say, "Satisfy me either in damages, or by performance of your engagement. The former you cannot do, therefore the latter you must do, even on the pain of imprisonment for refusal"? (f).

(f) In Scotland attempts were frequently made to enforce contracts

of service in formâ specifica, by compelling the service. Proceed

This argument is, however, open to the observation that, in the instances referred to of enforcing performance of contracts by imprisonment, it is only in the shape of attachment for disobedience to the order of a court that imprisonment is inflicted; whereas, in the case of neglect by a workman, imprisonment might under the former state of the law follow without an opportunity given to him to comply with the decision of the magistrate (g).

The extensive alterations in the law of England as to arrest for debt no doubt made the direct imprisonment of workmen and labourers stand out in greater contrast. As long as the first step in an ordinary action to enforce payment of a debt was taking the debtor into custody, there was no great practical distinction felt between that arrest and the imprisonment under a magistrate's order, although in law standing on a totally different footing. But when imprisonment for debt under mesne process was got rid of, and this step was followed by the abolition of direct imprisonment in almost all cases, even after judgment obtained, the exceptional nature of a law which punished the neglect to perform a contract for work became apparent to the popular eye.

Another ground of objection to the former law, strongly urged, was the power to issue a warrant against men in the first instance without any previous summons, and various

ings for this purpose might be taken before justices, with an appeal to the Court of Session, but they were usually taken before the sheriffs' substitute by citation and written proofs. But the delay was so great, that frequently before the cause was finished the term of service was done. If completed, however, before the expiration of the service, the servant, if unable to find caution (bail) to return to service, was committed to prison and remained there to the end of his term, at the cost of

the master, who had to maintain him in prison. (See the evidence of Mr. Sheriff Barclay before the Select Committee of the House of Commons on Master and Servant, 1865.)

(g) The above and some subsequent observations on the then state of the law are to be found in my letter to Lord Elcho in 1866, printed in the Appendix to the Report of the Committee of the House of Commons of that year on Master and Servant.

cases of alleged hardship were brought forward. On the other side of the question, it was said, that without this discretionary power, men would be enabled to avoid all punishment by removing from one place to another.

A distinct ground of complaint was founded on the power given to one justice to deal with most cases of master and servant, and on the fact that many of these cases were dealt with in a private manner, before a magistrate at his own house and without any publicity, notwithstanding the provisions of Jervis's Act, 11 & 12 Vict. c. 43, making all courts of petty sessions, for hearing cases determinable on summary conviction, public courts and open to all persons as a matter of right.

Whatever might be the view taken of the power of imprisonment and other matters, the former state of the law was objectionable in some important respects. In a claim for wages, the master as well as the servant could be examined upon oath as to the facts; but on a complaint for neglect of work, the servant was not a competent witness. The distinction arose in consequence of proceedings to compel payment of wages being by way of "order," whereas the determination of the magistrate against a servant was termed "a conviction:" and by the existing general law of the country a defendant is a competent witness in the case of proceedings for an "order," but he is not a competent witness in the case of proceedings for a "conviction."

Another objection to the law, as it stood before the Act of 1867, was the inability of the magistrate to deal with cases of complaints by masters against servants, by the infliction of a fine. Direct imprisonment, or abatement of wages, or discharge from the contract, were the three modes of dealing with these cases. Discharge, although at first sight a desirable course to adopt, was impracticable as a punishment (and therefore impracticable as a remedy), owing to the demand for labour in many branches of manufacture and the ability of men to get.

work elsewhere. In fact the neglect of work not unfrequently arose from the desire to be discharged. Direct imprisonment is obviously undesirable, until other methods have failed.

Abatement of wages worked, in some branches of manufacture at least, better than might be expected; but in many cases it was not a desirable remedy. In the first place, it was open to the observation, that, as the effect of the order is to allow the master to stop wages, it was putting so much money in the master's pocket. A second objection to the abatement of wages was, that it made the punishment depend on the return to work, and therefore held out an inducement to the servant not to return, but to go and work elsewhere, where his wages would not be subject to deduction or to abatement.

In Ireland, the jurisdiction of justices extended to all claims for wages to any apprentice, artificer, labourer, servant or other person to the amount of 107., enforceable by distress; and, on the other hand, artificers, labourers and servants absenting themselves, or neglecting to perform their contracts, or guilty of any misconduct or misdemeanor, or, having signed a written agreement, not commencing or entering on the service, might be punished by a fine not exceeding 51., enforceable by imprisonment not exceeding three months. The justices could also abate wages and discharge the servant from his service if they thought fit.

Masters were punishable by fine not exceeding 40s. for ill-usage of their apprentices.

Cases of wilful damage by artificers, workmen, journeymen, apprentices, servants or labourers to goods, wares, work or materials committed to their care were also punishable summarily, if the damage was under 57., by compensation, and a fine not exceeding 40s., or imprisonment not exceeding one month.

The procedure in any of these cases might be by summons or warrant, and the cases might be heard in general by one or more justices in or out of petty sessions.

With respect to Scotland, the cases in which justices exercised jurisdiction were substantially the same as in England (h), and the process against a servant might be a citation (summons) or warrant of apprehension in the first instance.

The power to issue a warrant in the first instance against a servant instead of a summons was, however, more generally exercised in Scotland than in England, and apparently for this reason :

Jervis's Act (11 & 12 Vict. c. 43), which gave the option to issue a summons under the Master and Servant Act, applied only to England, and it was not until the passing of the Summary Procedure Act, 1864, for Scotland (27 & 28 Vict. c. 53), that the corresponding option was given; and in 1865 the general course still followed was to grant a warrant for the apprehension and interim. detention of the respondent.

The Scotch procedure was therefore subject to the

(h) As to the application of the statutes to Scotland, Mr. Sheriff Barclay (sheriff substitute of Perthshire, eastern district), in giving his evidence before the committee of the House of Commons on master and servant, in 1865, said :-" I may mention to the committee, as being well worth noting, the three statutes which I have taken note of, namely, 20 Geo. 2, c. 19, passed in the year 1747; the 6 Geo. 3, c. 25, passed in the year 1776; and the 4 Geo. 4, c. 34, passed in the year 1823 (extended to some other trades by the 10 Geo. 4). 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 thoroughly believe that they were never intended to be applicable to it. I never knew a case under the 20 Geo. 2, or the 6 Geo. 3. The

statute of Geo. 4 is the one that we act upon; and it is a remarkable fact, that although convictions without number have gone up to our high criminal Court of Justiciary, there never yet has been taken that objection that they do not apply to Scotland; but I think any Scotch lawyer, reading the statute of the 4 Geo. 4, would say that was never intended to apply to Scotland. Of course the committee know better than I that an act is considered to be a British act unless it is said that it does not apply to Scotland negatively, or unless affirmatively it is said that it does apply only to England and Ireland, or some particular locality." Chairman: -"As far as Scotland was concerned, the only law that you had was the common law in these matters until the 4 Geo. 4; was it not?" "That is so."