Now! Then! On appeal in London, one Mr Clark is jailed for a second time for refusing to honour his employment contract with Unwin & Rogers, Sheffield cutlers

28 April 1866: On appeal in London, one Mr Clark is jailed for a second time for refusing to honour his employment contract with Unwin & Rogers, Sheffield cutlers

Karl Marx. 1887. Capital, Vol. 1. Ed. Frederick Engels. Moscow: Progress Publishers. Get it:

Excerpt

Engels: “The slavery in which the bourgeoisie has bound the proletariat, comes nowhere more plainly into daylight than in the factory system. In it all freedom comes to an end both at law and in fact. The workman must be in the factory at half past five. If he come a few minutes late, he is punished; if he come 10 minutes late, he is not allowed to enter until after breakfast, and thus loses a quarter of a day’s wage. He must eat, drink and sleep at word of command. The despotic bell calls him from his bed, calls him from breakfast and dinner. And how does he fare in the mill? There the master is the absolute law-giver. He makes what regulations he pleases; he alters and makes additions to his code at pleasure; and if he insert the veriest nonsense, the courts say to the workman: Since you have entered into this contract voluntarily, you must now carry it out. These workmen are condemned to live, from their ninth year till their death, under this mental and bodily torture” What “the courts say,” I will illustrate by two examples. One occurs at Sheffield at the end of 1866. In that town a workman had engaged himself for two years in a steelworks. In consequence of a quarrel with his employer he left the works, and declared that under no circumstances would he work for that master any more. He was prosecuted for breach of contract, and condemned to two months’ imprisonment [actually three weeks]. (If the master break the contract, he can be proceeded against only in a civil action, and risks nothing but money damages.) After the workman has served his two months, the master invites him to return to the works, pursuant to the contract. Workman says: No, he has already been punished for the breach. The master prosecutes again, the court condemns again, although one of the judges, Mr. Shee, publicly denounces this as a legal monstrosity, by which a man can periodically, as long as he lives, be punished over and over again for the same offence or crime. This judgment was given not by the “Great Unpaid,” the provincial Dogberries, but by one of the highest courts of justice in London. [Engels: This has now been done away with. With few exceptions, e.g., when public gasworks are involved, the worker in England is now put on an equal footing with the employer in case of breach of contract and can be sued only civilly.]

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To facilitate reading, the spelling and punctuation of elderly excerpts have generally been modernised, and distracting excision scars concealed. My selections, translations, and editions are copyright.
Abbreviations:

ER: East Riding
GM: Greater Manchester
NR: North Riding
NY: North Yorkshire
SY: South Yorkshire
WR: West Riding
WY: West Yorkshire

Comment

What happened to Mr Clark?

The Times report:

UNWIN AND ANOTHER V. CLARK.
This case raised an important question between workman and employer. It was an appeal by Messrs. Unwin and Rogers, cutlery manufacturers of Sheffield, from a decision of magistrates, dismissing a complaint of theirs (the second arising out of the same contract) against a workman in their employ for refusing to perform his contract to work for them. The question raised was whether when a workman has been once convicted of breaking his contract by refusing to work, and has suffered the punishment for so doing, he can be again convicted for another breach, in a continued or reiterated refusal to work. It appeared that the respondent, the workman, had entered into a contract with Messrs. Unwin and Rogers, the cutlers, of Sheffield, to work for them at certain rates of wages for the period of two years. In November last, however, he wilfully absented himself and refused to work, and was committed, under the 4th of George IV., cap. 34, for so doing. When called upon for his defence on that occasion he said that he had applied for an advance of wages, equal to that which he alleged the majority of workmen in the trade (not under contract) had obtained, and that this advance had been refused, and on this ground he declared that he would not work, and would rather go to prison. It was pointed out that under the contract he had this advantage of having the same rate of wages, however much the general rate of wages might have fallen. He remained, however, obstinate in his refusal, and declared he would never return to his master, and he was accordingly convicted and committed to prison for 21 days. In December last he came out, and was called upon by his employers to fulfil his contract, but this he refused to do, declaring that he considered the former conviction had discharged him from the contract. He was again summoned upon another information for his renewed refusal to work under his contract. A case was cited before the magistrates in which the Courts had been divided upon the point, and they accordingly declined to convict, and stated a case for the opinion of the Court, stating that it was contended on the part of the workman that the contract could not be enforced a second time, and that he bona fide believed that this was so,and that he could not be compelled to return to his employment. The magistrates further stated that they were of opinion “that the contract still existed, and had not been destroyed by the conviction; but they doubted whether the workman could be criminally convicted a second time; and the question for this Court was whether the man could be convicted a second time, as the magistrates declared they thought he ought to be, supposing he legally could be.

Mr. PRICE, Q.C. (with him Mr. Waddy), argued the case for the employers-the appellants. The question, he said, was one of vast importance, especially in trades like those of Sheffield, where the workmen constantly tried to enforce increase of wages. There was a mutuality of benefit in such contracts, which were obviously beneficial to both sides. On the one hand, no doubt the employer got the benefit of securing the services of a skilful workman for some fixed period at fixed wages. But, on the other hand, the workman got the benefit of continued and certain employment at a fixed rate of wages. Why should not such contracts be enforced as often as they were broken? And why should a workman be allowed to profit by his own wrong and to get rid of his contract by wilfully absenting himself from his work? As to the decision, no doubt the Judges had differed somewhat, and the men were shrewd enough to find that out; but the weight of judicial authority and of sound legal reasoning was in favour of the conviction for the second absenting which was a separate and distinct offence. As to bona fides, it had nothing to do with the question.

Mr. Justice BLACKBURN pointed out that it could hardly be said that the man had not ground for bona fide belief, because two Judges took the view he did. And was a man to be criminally convicted for acting on a bona fide belief, supported by judicial authority? No doubt one Judge had said it was not material, but another had said it was most material.

Mr. Justice MELLOR remarked that there was great difficulty on that question of bona fides. These men often had a kind of Attorney-General to advise them, and night choose to think his opinion better than that of the Judges. But was that to excuse them for wilfully breaking their
contracts?

Mr. Justice BLACKBURN said, certainly, in this case they had some judicial authority on their side.

Mr. Justice SHEE said the man might, according to the view taken for the prosecution, be in prison for the whole of the two years, excepting the few days during which he was absenting himself from his work and being prosecuted for thus absenting himself.

Mr. QUAIN, in arguing for the defendant, the workman, urged that these statutes imposing imprisonment as the penalty for mere breach of contract were harsh, one-sided, and severely penal, and were to be construed strictly against the masters. The masters were not liable to criminal penalties and process if they broke their side of the contract, and it was one-sided and unjust to impose penalties on the workmen for breach of contract on their part. This was a civil matter, a mere breach of contract, and the well-known rule of common law was that a contract could only be sued upon once, and once for all, and the object of the statute was to make it a criminal offence and create a misdemeanour. In like manner, therefore, there was only one misdemeanour and one completo offence. The man declared that he would never return to his work again; so that the absenting himself was penal and one complete offence for which he was punishable once for all, and so he could not be convicted again.

Mr. Justice BLACKBURN said he saw no reason or sense of justice why a man should not be convicted again and again as often as he offended. When a statute said that a man should be punished seriously for beating his wife, and was punished once for a wife beating, did it follow that he could not be punished for beating his wife again? If, indeed, the man had, in fact, been punished for a total and final absenting, it might be otherwise; but that did not appear.

Mr. Justice MELLOR pointed out that the statute gave the magistrates express power, if they thought proper, to discharge the man from his contract, which seems to imply that unless they did so discharge him he was not discharged, and that the imprisonment per se did not so discharge him.

Mr. Justice SHEE observed, on the other hand, that it was clear that the man, if he did not enter the service at all, could only be convicted once and once punished by imprisonment for a reasonable time, which the statute said should not exceed three months. Why, then, should the man be punishable again and again during the whole two years for absenting himself, the offence and its consequences being exactly the same whether the man refused to enter or refused to return, the offence in each case being that he re- mains absent from the service.

Mr. Justice BLACKBURN observed that the absenting might be in the middle of work, and so far more injurious than the not entering. Besides, the not entering was in its nature one act; but there might be many absentings.

Mr. Justice SHEE said the absence in this case was one and the same, and as continuous as in the case of not entering, and the damages (which could not, however, affect the legal offence) might be just as great in one case as in the other. The man did not return to his service and then ab- sent himself again, but he simply remained away.

After considerable discussion, the learned Judges consulted together, and then judgment was given in favour of the employers.

Mr. Justice BLACKBURN said he was of opinion in their favour on his own view of the law, and so he believed was his brother Mellor; but his brother Shee so far doubted, that he rather deferred to the weight of authority than was himself satisfied as to the right view of the law. It all turned, of course, upon the construction of the statute: was it an “absenting from the service that the man the second time refused to return to it.” He thought that it was. The contract was in force, and he staid away from the work. There had been, no doubt, a prior absenting, for which he had been already punished; but that did not put an end to the contract; for the wrongdoer could not rescind it. The master could have sued more than once on the contract; and he could proceed again and again on the statute for distinct and repeated absentings. It did not appear that the man had been punished for more than a temporary absenting. This Court had in the case in which the Exchequer were divided (in Lord Campbell’s time) unanimously decided in accordance with this view, that the men might be punished for fresh absentings, and therefore the weight of judicial authority was in favour of that view. Then, as to the point as to bona fides, there might be a lawful excuse for the absenting, as if the man was ill, &c.; so where the man had made a mistake in fact, as where he had given a notice, thinking it was sufficient when it was not so. But the present was a different case. There was no mistake as to the facts, and he merely chose to take the wrong view of the law-that is, the view that had been taken by two judges in one court against the unanimous judgment of another. That might be a reason for a nominal or lenient sentence, but it was no sufficient legal ground for not con- victing. The decision, therefore, of this Court on this appeal must be in favour of the employers.

Mr. Justice MELLOR was of the same opinion. It was, he thought, a mistake to suppose that only one offence could be committed by a man absenting himself from the service. The man could not thus put an end to the contract, and it was only the former absenting for which he had been punished. He remained, therefore, liable to be punished for continued absenting. It might be deemed hard, but he could not enter into considerations of hardship, which were only for the Legislature to consider.

Mr. Justice SHEE said he certainly should not have arrived at the same conclusion if it had not been that a majority of judges in former cases had adopted it. In his view, the workman could not in this case be convicted. The statute said that if the workman did not enter into the service he should be punished by imprisonment for a reasonable time not exceeding three months; and it was clear that for not entering into the service he could only be once punished, and by imprisonment for not more than three months. Then the statute went on to impose a similar penalty on the offence of absenting from the service; and in this case the man absented himself once and for all, totally and finally, and the case, therefore, was parallel to that of not entering into the service; and so, in his opinion, the man could not be punished more than once for that absence. It had been thrown out, indeed, that it was not reasonable that a man who absented himself twice should not be punished twice; but then a man did not and could not absent himself from the service if he was not in the service. Absenting meant leaving or departing from the service. If, indeed, the man had returned to the service, and had absented himself again, of course he could be punished again; but here he had never returned, and, therefore, could not have again absented himself. And, further, the magistrates found that he was bona fide under the belief that the contract was satisfied by the former conviction. On these grounds, therefore, he was of opinion that the man could not be convicted a second time for his absence from the service. If he could, then he might be convicted again and again until the end of the period of the contract, and thus be kept continually in prison for two years. Such a consequence seemed to him too monstrous to. be upheld, and he, therefore, could not adopt a construction which involved it. However, as his learned brethren were of the opposite opinion and had the weight of authority in their favour, he would not differ.

Mr. Justice BLACKBURN said if any future case occurred on the point it would be better that it should be taken to the Court of Common Pleas, which had not yet decided on the question.

Judgment for the appellants, the employers.

(Times 1866/04/30)

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Original

“The slavery in which the bourgeoisie has bound the proletariat, comes nowhere more plainly into daylight than in the factory system. In it all freedom comes to an end both at law and in fact. The workman must be in the factory at half past five. If he come a few minutes late, he is punished; if he come 10 minutes late, he is not allowed to enter until after breakfast, and thus loses a quarter of a day’s wage. He must eat, drink and sleep at word of command…. The despotic bell calls him from his bed, calls him from breakfast and dinner. And how does he fare in the mill? There the master is the absolute law-giver. He makes what regulations he pleases; he alters and makes additions to his code at pleasure; and if he insert the veriest nonsense, the courts say to the workman: Since you have entered into this contract voluntarily, you must now carry it out …. These workmen are condemned to live, from their ninth year till their death, under this mental and bodily torture.” (F. Engels, l.c., p. 217, sq.) What, “the courts say,” I will illustrate by two examples. One occurs at Sheffield at the end of 1866. In that town a workman had engaged himself for 2 years in a steelworks. In consequence of a quarrel with his employer he left the works, and declared that under no circumstances would he work for that master any more. He was prosecuted for breach of contract, and condemned to two months’ imprisonment. (If the master break the contract, he can be proceeded against only in a civil action, and risks nothing but money damages.) After the workman has served his two months, the master invites him to return to the works, pursuant to the contract. Workman says: No, he has already been punished for the breach. The master prosecutes again, the court condemns again, although one of the judges, Mr. Shee, publicly denounces this as a legal monstrosity, by which a man can periodically, as long as he lives, be punished over and over again for the same offence or crime. This judgment was given not by the “Great Unpaid,” the provincial Dogberries, but by one of the highest courts of justice in London. — [Added in the 4th German edition. — This has now been done away with. With few exceptions, e.g., when public gas-works are involved, the worker in England is now put on an equal footing with the employer in case of breach of contract and can be sued only civilly. — F. E.]

432 words.