- Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840-1865
This book's title sounds quite conventional and not particularly innovative, but its subtitle indicates the dramas the text reveals. Master and Servant Law does not deal directly with the worn-out question of the transition from status to contract or the belated passage of master and servant law into the freedom of contract era that arguably dominated Victorian England. It does not focus on the doctrinal legal questions [End Page 740] dealt with by many legal historians. It does not content itself with the question that preoccupied social historians—was Victorian labor "free" or "unfree"? Nor is it satisfied with one that interested economic historians—was the labor market at all affected by restrictive legal regulation?
The subtitle reflects the advances Christopher Frank has made. Frank, like Douglas Hay, his mentor at York University, goes beyond the history of legal doctrine and into social and labor law. The book relies on a variety of rich sources, including newspapers, parliamentary papers, and archival sources, which allow Frank to present fascinating micronarratives on court cases, their employer initiators, their consequences for prosecuted workers, the intervention of radical lawyers, the unfolding of the proceedings, and their wider political implications. The agents of change in the book are not high court judges, as legal histories might assert, but justices of peace on the one hand and radical cause lawyers on the other.
The basic narrative proceeds as follows: with the advance of industrialization in the first half of the nineteenth century, labor regulation required adjustments because older master and servant regulation did not cover new sectors, occupations, and modes of employment. Industrialists lobbied Parliament, which provided the requested adjustments and made master and servant law even more legally complex than it was in the eighteenth century. The growing regulatory maze made its application, traditionally and statutorily in the hands of magistrates, even more liable to mistakes. By the mid-nineteenth century, this group of local officials was composed of more industrialists and fewer landed gentry than in previous generations. Major employers themselves, they were more one-sided than their predecessors and aimed to rule against workers and in favor of employers. They were less professional than earlier magistrates who were better prepared for the job educationally and politically.
Lawyers committed to Chartism, radicalism, and the trade unions—the most prominent of whom was William P. Roberts—defended workers in legal proceedings. Although they realized that they didn't stand much chance in the petty and quarter session levels, which were controlled by the biased magistrates, they anticipated mistakes by these lay and unprofessional magistrates who struggled to navigate the growing complexity of the law. They resorted to prerogative writs of habeas corpus and certiorari and moved cases to the high court where they revealed the magistrates' mistakes and utilized them to the utmost. These lawyers felt at home in the high courts. They and the professional judges of these courts shared the same vocabulary, mode of thought, and legalistic values. Both lawyers and judges resented summary judgments by magistrates and expected the latter to meet high formal standards. Once mistakes in magistrates' decisions were revealed, Roberts and his fellow radical lawyers targeted the magistrates personally, suing them for illegal imprisonment and filing damage claims. They also litigated to voice the grievances of workers and to increase class consciousness among the working classes.
The next stage in the narrative involves the backlash by justices of peace and industrialists, who pushed amendments through Parliament known as the Jervis Acts of 1848. These acts increased the powers of magistrates, providing them with simpler procedural rules and personal immunity. Unlike legal historians who view the Jarvis Acts as a modernized restatement of the ancient magistracy system designed to instill best practice, Frank views them as emerging from the struggle between pro-employer [End Page 741] magistrates and radical lawyers. In other words, for Frank, Roberts unintentionally...