| Reviews / Comptes Rendus | Labour/Le Travail, 56

Reviews / Comptes Rendus

Douglas Hay and Paul Craven, eds., Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955 (Chapel Hill and London: University of North Carolina Press 2004)

IN OCTOBER 1910, fifteen men were charged with a breach of the Master and Servant Act in Alberta. They had been hired by the firm of Foley, Welch, and Stewart in Wolf Creek to work as teamsters and labourers on a section of the Grand Truck Pacific Railway then under construction. The accused were part of a contingent of 140 men who had come west from Winnipeg, but on arrival in Alberta they refused to work on the terms specified by the contract they had signed. In court, each man was charged with "neglect[ing] to perform his duties when requested to do so by the command of his master," and upon being found guilty was offered the option of a ten-dollar fine or fourteen days in jail.

I gave this small episode little consideration when I came across it a few years ago while researching vagrancy in Alberta. In this respect I was in good company, for any mention of the Master and Servant Act is notably absent in most Canadian reference books, survey texts, or even more specialized works on labour or legal history in Canada. Judy Fudge and Eric Tucker's recent Labour Before the Law, for example, contains a solitary reference to the legislation. Indeed, as Bryan Palmer notes in Working Class Experience: Rethinking the History of Canadian Labour, 1800–1991 (1992), by the time that trade unions were formally legalized in 1872, the Master and Servant Act was already "an anachronistic Act, and the class relations it tried to keep alive were a thing of the past." (109)

That might be so, but as the sixteen essays in Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955 clearly demonstrate, for almost half a millennium the Master and Servant Act — in its numerous and various incarnations — was at the heart of the origins, rise, and eventual decline of the British Empire. First enacted in the wake of the Black Death in the mid-14th century as a reaction to the resulting labour shortage and upward trend in wages, the Master and Servant Act went on to become one of the cornerstones of the greatest movement, colonization, and regulation of labour that the world has ever seen. "From that point until the twentieth century," note editors Douglas Hay and Paul Craven in their introductory essay, "the enforcement of employment contracts was almost entirely in the hands of the [gentry class] and their urban counterparts." (5)

Three enduring features of the Act, they explain, were enshrined in thousands of separate statutes passed both in metropolitan London and more than a hundred imperial jurisdictions between the 16th and 20th centuries. First, employment relations were a private agreement or contract for work and wages; second, the legislation provided for summary enforcement of those agreements by local magistrates and JPs; and third, a worker's breach of his or her agreement became a criminal rather than civil offence, with punishments including (depending on time and place) whipping, imprisonment, forced labour, fines, and the forfeit of wages earned. "Although their exact contours changed over time," conclude Hay and Craven, "these were the elements that colonial governments adopted, modified, or rejected in creating labor regimes throughout the empire." (6)

The essays that follow more than bear out this contention. Hay provides a sweeping but tightly structured overview of the evolution of the Master and Servant Act in Britain between 1562 (the date of the Elizabethean Statute of Artificers) and 1875 (the Employers and Workmen Act, which effectively decriminalized employment offences). Christopher Tomlins, Jerry Bannister, and Paul Craven discuss the enactment and enforcement of Master and Servant legislation in its North American context, from the late 16th to early 20th centuries, while Michael Quinlan offers a useful contrasting and comparative study of similar legislation in the penal colony of Australia. Mandy Banton's essay on how the Colonial Office attempted to manage "native" labour in the "tropical colonies" appears, aptly and symbolically, at the heart of the book, before the remainder of the contributions focus on those same colonies. Beginning with Mary Turner's analysis of the transition from slave to "free" labour status in the Caribbean between 1823 and 1838 (possibly the pick of the book's essays), we are introduced to the significance of labour legislation in British Guiana, South Africa, Hong Kong, Assam and the West Indies, West Africa, and Kenya.

"Master and servant statutes were everywhere the same, and everywhere different," Hay and Craven contend. "This somewhat paradoxical statement is true at every level — applied, conceptual, even linguistic." (14) The essays bear out this belief, too, spanning as they do not only a vast geographic territory over several centuries, but also the application of such legislation to different forms of employment, from chattel slavery to indentured service and apprenticeships to "free" labour. Added to this is the fact that not all the authors approach the subject with a similar goal or emphasis in mind. That said, however, there is a core consistency to the essays in that they, more or less, share three main concerns.

First is the development of Master and Servant legislation itself in each particular jurisdiction, and the degree to which it was directed more by the perceptions and interests of legislators in London or by those of local legislatures. By focusing on this point of tension, the essays throw new light on the ties that bound the empire together.

Second, the contributors distinguish between the enactment of such legislation and its actual enforcement. After all, statute books may tell us much about the concerns of officials, but little of how effectively those concerns were met. In the case of Canada, for example, Craven notes that there was an apparent paradox between the state's eagerness to "pass a great deal of legislation," on the one hand, and the fact that "enforcement was sporadic, conviction relatively few, and punishments rarely harsh," on the other. This contradiction is resolved, Craven suggests, by the fact that "occasional exemplary" prosecutions served as a "useful reminder of superordination and subordination in a British society bordering the American republic." (175)

Finally, the essays share the belief that the law is "contested terrain," and that while Master and Servant legislation might have been used to prosecute and punish workers (as well as the unemployed, too), it also provided them with the means by which to challenge their employers' authority on occasion. Petitions against employers for their own breach of contract (primarily related to wages) appear throughout the book. However, these instances only serve to underline the fact that the law was weighted against labour in that employers, even when found guilty, did not face incarceration or physical punishment, but only an order to compensate their workers with the wages that were theirs by right, anyway. Yet it was this very imbalance of the Master and Servant Act, perhaps, that led to its eventual demise. Quinlan's essay on Australia, for example, underlines how the legislation served to aid political and organized resistance by workers in the 19th century.

Is all this enough? Does focused attention to the Master and Servant Act throw the rise and fall of the British Empire into new relief? "Distinctions of class, race, age, and gender were coded into the legislation," Hay and Craven acknowledge, "and reified in differential rates of prosecution, conviction, and punishment." (36) Do the differences in experience, expectation, and response among the Empire's labour force — and these essays clearly confirm that there was a marked difference between, say, the life of an employee of the Hudson's Bay Company and a plantation worker in the West Indies — outweigh the basic commonalty of life as a "servant" in the emergent empire of capital? If the essays here do not quite provide any clear answers, they nevertheless demonstrate why such questions are important and deserve our attention. They also serve to remind that the broad transition from slave to free labour, against the workings of the Master and Servant Act, was not an unmixed gain. "Free status," notes Turner, "introduced slaves to a differently calibrated but not less rigorous system." (322) Or as Hay and Craven conclude, "Freedom to choose one's employer did not imply the freedom to remain unemployed; if the master and servant acts did not themselves compel engagement and the whip of hunger did not suffice, then the head tax, land laws, or the law about vagrancy took up the burden." (33)


David Bright Brock University

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