| Book Review | Law and History Review, 25.2

Book Review

Douglas Hay and Paul Craven, editors, Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955, Chapel Hill: University of North Carolina Press, 2004. Pp. 656. $65 (ISBN 0-8078-2877-7).

Between 1857 and 1867, about 1500 ordinary British workers were imprisoned each year in England and Wales for violating their labor agreements. Imprisonment for breach of a labor contract was nothing new in Britain in the nineteenth century; the practice went back at least as far as the fourteenth century. In the nineteenth century, this venerable legal tradition was carried on primarily under a series of statutes titled Master and Servant Acts, the principal ones of which Parliament had enacted between the 1720s and the 1820s, although some prosecutions continued to be mounted under the older Elizabethan Statute of Artificers (1562–63). Only in 1875, under intense pressure from organized labor, many of whose members had only recently acquired the right to vote, did Parliament finally repeal the Master and Servant Acts, the laws under which literally thousands of British workers had been imprisoned over the years for violating labor contracts.

Following the repeal in 1875 of the Master and Servant Acts, however, historians and legal scholars seem to have developed a case of nearly total amnesia about this centuries old practice. This forgetfulness helped to buttress a master narrative that depicted the history of labor in terms of a stark opposition between free and unfree labor, between slavery, based on coerced service on the one hand, and free labor, based on service under voluntary agreements on the other. To be certain, this simple picture of the legally un-coerced character of labor serving under agreements came under attack from time to time over the years. In a ground-breaking article published in 1954, for example, Daphne Simon described in vivid detail just how widespread had been the use of penal compulsion to enforce labor agreements among ordinary wage workers in nineteenth-century England. But until the late 1970s and early 1980s her work was not much followed up on. Then, in a series of articles and several books, a number of authors extended the attack on the conventional wisdom by offering more elaborate accounts of the use of penal compulsion to enforce labor agreements under the English Master and Servant acts. But these were mainly piecemeal efforts and failed to dislodge completely the historical view that labor had long been divided into two opposite kinds, free contractual labor, and coerced slave labor, with only a small number of anomalous intermediate exceptions.

The publication of this volume of essays, edited by Douglas Hay and Paul Craven, should lay that historical view permanently to rest. In a series of fifteen essays by fifteen authors, and a long introduction by Hay and Craven, this volume comprehensively examines the history and operation of the Master and Servant acts in England where they originated and follows the complicated processes by which they came to be adopted, in a variety of forms, throughout the British empire. The volume establishes that, not only in Britain itself, but in the white settler colonies of Canada and Australia, as well as in South Africa, Kenya, West Africa and India, and throughout the British West Indies, in British Guiana and in Hong Kong, versions of the English Master and Servant acts came to govern employment relations. Rather than representing an exceptional state of affairs, the penal enforcement of "voluntary" labor agreements became the legal norm in employment throughout a vast area, and over a span of several centuries.

This is a rich and varied volume. There are essays on the operation and politics of the Master and Servant acts in England by Douglas Hay and Christopher Frank, on the distinctive pattern of their adoption in the North American colonies by Christopher Tomlins, on their origins and use in Canada by Paul Craven, and in Australia by Michael Quinlan, on their adoption in the British Caribbean following the abolition of slavery by Mary Turner, and many others (too numerous to mention in a short review) that deal with the history of these statutes in other British colonies in the Caribbean, in Africa, and in South and East Asia.

This volume raises a large number of fascinating issues. In their introduction, for instance, the editors weigh in on the side of those who advocate abandoning the conceptualization of labor in terms of a binary opposition between free and unfree, in favor of an understanding of coercion in labor relations as "a complex continuum of forms and practices" in which law, and not only Master and Servant law, plays a central constitutive role.

In a sense, this volume turns the history of employment on its head. What is aberrant, it now appears, and requires explanation, is the absence of penal compulsion in employment rather than its presence. In his chapter on the British North American colonies Christopher Tomlins attempts to explain why, after a limited number of desultory attempts in the first half of the seventeenth century, the American colonies did not apply the Master and Servant acts to employment relations at large, effectively restricting coverage to imported indentured servants, and even then, abandoning that practice by the 1830s. In the failure to apply the Master and Servant acts broadly, we find true American exceptionalism. In other British white settler colonies like Canada and Australia, versions of the Master and Servant acts were applied to employment relations more broadly and remained in effect until at least the last quarter of the nineteenth century, if not later.

Paul Craven and Michael Quinlan suggest a number of possible reasons for the longevity of the Master and Servant acts in Canada and Australia, but by focusing on these colonies individually, they may have overlooked certain wider patterns. In their introductory essay, Hay and Craven discuss the possible importance of suffrage regimes in maintaining the law of penal compulsion, but conclude that while suffrage reform played an important role in ending the practice in England, it was of less importance in Canada and Australia. The question of the suffrage, I think, bears further investigation. Can it have been purely coincidental that the suffrage in Canada and Australia, while broader than in England, was more restrictive longer than in the United States?

In British colonies in Africa and Asia in which a small white population governed a large native population, the Master and Servant acts often came to be applied along racial lines. In quite a number of British colonies, versions of the acts were first adopted upon the abolition of slavery, a pattern repeated in our own post-bellum South. Employers had solid economic grounds for wanting to use penal compulsion in employment relations under a wide variety of market conditions. Where and how they were able to may have had as much to do with the disposition of political and cultural power as with the play of economic interests. By providing a comprehensive picture of the widespread use of penal compulsion in "voluntary" labor agreements throughout Great Britain and its empire, this volume is certain to transform our understanding of the history of "free" labor.

Robert J. Steinfeld

State University of New York at Buffalo, School of Law

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