There is an omission of some importance in the new act which it is difficult to account for. The summary jurisdiction previous to Lord Elcho's Act recognized the great importance of permitting workmen to sue agents, managers and foremen for wages. The act 4 Geo. 4, c. 34, recited that "masters, mistresses, or employers reside at considerable distances from the parishes or places where their business is carried on, or are occasionally absent for long periods of time, either beyond the seas, or at considerable distances from such parishes or places, and during such residence or occasional absences intrust their business to the management and superintendence of stewards, agents, bailiffs, foremen, or managers, whereby such servants, artificers, handicraftsmen, miners, colliers, keelmen, pitmen, glassmen, potters, labourers, or other persons and apprentices, are or may be subjected to great difficulties and hardships, and put to great expense in recovering their wages," and provided the obvious remedy, by making the agent, &c., responsible. A corresponding provision was introduced into Lord Elcho's Act, by including the steward, agent, bailiff, foreman, manager or factor under the word employer. Notwithstanding these patent facts, there is now no provision of the kind, and it is clear that no such representative of an absent employer can be proceeded against under ordinary circumstances, for the general rule of law must prevail, that known agents are not responsible for the contracts entered into by them for their principals. little more trouble, but would have more completely separated the civil from the criminal aspect of these cases of employer and employed if the procedure were independent of Jervis' Act relating to summary convictions and orders. When the working man finds the blue-coated police constable visiting him at his workshop, or home, to serve the summons, he will think that Parliament has after all somewhat missed its object to put him entirely on the footing of an ordinary debtor. Jervis' Acts should be confined, as far as possible in their non-criminal process, to "State claims" (to borrow a term from American jurists), such as rates and taxes and public dues, and sanitary and educational matters. However, the Lord Chancellor's rules made under the act will to some extent remedy the otherwise great defect, for the rules allow of service at a defendant's house, or place of dwelling, or place of business (c). The question of apprentices has been dealt with in the new acts in a very satisfactory direction. The report under the Royal Commission made no reference to the subject, although contracts of apprenticeship were within the Master and Servant Act, 1867, and although the returns made from magistrates' courts to the Commissioners included cases of apprentices. Imprisonment appears to have been applied to breaches of contract by apprentices almost as frequently under the Act of 1867 as previously, although it is difficult to understand (apart from any misconstruction of the Act of 1867) on what principle a naughty tiresome boy or lad, who breaks an involuntary contract, should be dealt with more stringently by an imprisonment than an adult wilfully breaking his voluntary engagements. Probably those who have made the distinction would desire to justify it on the ground that discipline is involved in the one case more than in the other; but, even in that view, imprisonment, as an instrument of discipline, seems opposed to the modern, and so far successful, system of dealing with juvenile offenders. Be this as it may, it was urged before the Commissioners, that power should be given to the court dealing with apprentices, not only to require the attendance of parents and guardians, but to exercise jurisdiction over them by enforcing the performance of their contracts when covenanting parties to the indentures (d). (c) See the Rules (post). (d) Being asked my opinion whether the relation between master and apprentice and between master and workman ought to be dealt with under the same act, I said: "Yes, I think they ought; but I think the third person in the contract of apprenticeship ought to be brought within it. That is generally the father. The parent or next friend who covenants for the services of the apprentice ought to be within it. I felt a great difficulty in deal The government adopted this view, and it was unanimously confirmed by the legislature. A "court of summary jurisdiction" may not only adjudicate on disputes between a master and an apprentice and make an order directing the apprentice to perform his duties under the apprenticeship, but if there is any person liable, under the instrument of apprenticeship, for the good conduct of the apprentice, he may be summoned; and the court may, in addition to or in substitution for an ing with apprentices. Owing to the goodness of trade at Sheffield in 1872 and 1873, the cases of the apprentices I am quite satisfied have been more numerous, and for this reason: in regard to almost all the apprentices in Sheffield, and I believe elsewhere, the system is very different from what it used to be. Instead of a premium [by the father], wages are paid [by the master], but of a smaller amount [than in the case of an adult], and at the end of the first or second year the apprentice could, if free, earn higher wages if trade is brisk. Very often a father has been really the person who has seduced his son from his employment, and put him elsewhere, to get higher wages. The boy is brought before me. I have always insisted on the parent, or the person who has been a party to the indenture, being present in court, and have adjourned the case often for his presence, so as to hear what he had to say; and I have often had the case of a boy who has been placed in a difficulty between on the one hand obeying the parent and on the other hand his master, and I have endeavoured always in those cases to try and make an arrangement, in the absence of any power to enforce it as against the father, by explaining to the father that he was liable to an action by the master, and so on, and adjourning the case, and trying to get the boy to find some third person as surety for the performance of the contract, and in that way effecting an arrangement of some kind, so as to enforce the contract, at the same time without dealing harshly with the boy." (First Report of the Royal Commission on Labour Laws -Minutes of Evidence.) The evidence of Mr. Henry Bleckley was confirmatory of this view. Speaking, as a magistrate, of apprentices in the fustian cutting trade, he said: "They are generally bound for short times, say for two or three years, and in about six months, when they have learnt the trade, they could earn, of course if they were free, twice as much as they can during their apprenticeship; and there are a very great number of such persons brought up in Warrington before the magistrates to enforce the contract of apprenticeship. . . . Their parents will often send them away to another shop where instead of getting 48. or 58. they may get 6s. or 78. a week. . . . We always ask for the father or mother to be in court." (Id.) order against the apprentice, order that person to pay damages for any breach of the contract of apprenticeship, or may take security, if he is willing to give it, for the future performance of the contract by the apprentice. On a question of considerable importance a difference of opinion will no doubt exist as to the correctness of the view taken by the legislature, namely, as to the propriety of enforcing performance of uncompleted contracts for personal service as distinguished from the payment of damages for their breach. The capability and propriety of thus enforcing contracts of this description was suggested to Lord Elcho, and the suggestion was laid by him before the committee of the House of Commons in 1866, of which he was chairman, and was adopted (e). The committee unanimously resolved, "That the court shall have power, where such a course is deemed advisable, to order the defendant to fulfil contract, and also, if necessary, to compel him to find security that he will do so" (ƒ). This recommendation was carried into effect by the Act of 1867. An alternative mode given by that act of dealing with complaints, was power to direct the fulfilment of the contract of service, with a direction to the party complained against to find forthwith good and (e) The suggestion was made under these circumstances: As stipendiary magistrate at Stoke-uponTrent I had felt the want of some power to order the performance of contracts for the future, instead of sending workmen to prison for past breaches. In the absence of such a power I frequently, with beneficial results, adjourned cases for a fortnight or a month on the defendant entering into a recognizance with a surety for his appearance, with the understanding that if he returned to his work no further proceedings would be taken. I thought a power to attain this end directly, instead of indirectly, would be of great advantage to all parties. I availed myself of an opportunity of mentioning my views, and subsequently put them into writing, as already stated (see ante, p. 16). (f) See ante, p. 15. The committee comprised several lawyers of distinction, including Sir Robert Collier, the then Solicitor-General. It also included a member of the present cabinet. sufficient security, by recognizance or bond, with or without sureties, for such fulfilment (g). How did this power work? In many places it does not appear to have been tested; not by reason of any distaste for the principle involved, but from an inclination to adhere to old paths-fine and imprisonment. In several manufacturing centres, one of them Sheffield (probably the most important of any district on any question relating to employer and employed), the enforcement of contracts under Lord Elcho's Act was adopted almost exclusively of any other remedy, and continued to be applied down to the moment the new legislation took effect, with the greatest advantage to employers, who do not want damages but the work done (h), and also with general satisfaction to the employed, who, when held to have been in the wrong (and in most cases feeling themselves to be in the wrong), prefer performance to a money payment of fine or damages. How did the Royal Commission deal with the question? Attention was specially called to it, and to the effect of Lord Elcho's Act (i); and so far from condemning the principle, the conclusion arrived at by the Commissioners (g) See ante, p. 19. (h) See ante, p. 24, note (ƒ). (i) In giving my opinion on the working of Lord Elcho's Act, I said: "I mainly put in force the provision of the act enabling the magistrates to call upon the person summoned to perform his contract; in fact a rough specific performance of the contract by means of the defendant (generally of course the defendant was the employed) undertaking by recognizance to perform his contract, with or without a surety. The man would perhaps say at the moment, 'Well, I cannot find a surety, I am a stranger.' Then I have said, Will you undertake |