Employee Legal Rights and Duties

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The Legal Rights and Duties of Employers and Employed, as Affecting the Interests of thePublicAuthor(s): Richard C. McMurtrieReviewed work(s):Source: The American Law Register and Review, Vol. 41, No. 5, (First Series) Volume 32(Second Series, Volume 6) (May, 1893), pp. 421-437Published by: The University of Pennsylvania Law Review

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AMERICAN L A W REGISTERAND

REVIE W.MAY, I893.

THE LEGAL RIGHTS AND DUTIES OF EMPLOY-ERS AND EMPLOYED,AS AFFECTINGTHEINTERESTS OF THE PUBLIC.1BY RICHARD C. MCMURTRIE, ESQ.

THEwords usedin statingthe questionsuggestedbythetitleareunfortunate. They areadopted o avoidusingwordswhich are of the veryessence of the questionsin-volved-master and servant;apparentlybecause of therebeing something derogatoryo dignityto recognize he re-lation of masteror the positionas servant. Yet the wholeof thedoctrineofliabilityof the onefortheactsofthe other,as well as all the doctrineas to control,and of the effectof possession or occupation,depends on the relation ofmasterandservant,and has no place whatever n that ofemployedandemployer.The substance of this paperwas delivered in the formof an addressbefore the Law School of the University of Pennsylvania, in February,I893. In its present form the paper is published at the request of theEditors, who consider the topic as peculiarly timely.28


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THE LEGAL RIGHTS AND DUTIES OFA referenceto this, as matter of taste, would be out of

place. But is it not well to mark the subtle effect on reas-oning of the misuse of a word?Is it surprisingthat those who are unaware of the realessential distinction between master and employer, servantand employed, or the more common employee, should failto observe the distinctions in rights and duties growing outof the relations?All lawyers are very keenly alive to the distinc-tion between the independent contractor and the mereservant. While there is nothing servile imported by theword servant, it does mean that there is a right in oneman to direct the conduct of another, and consequentlythere is a liability for that conduct; the conduct or acts ofthe one are the conduct and acts of the other. Wheneverthe right of direction exists, there is the relation of masterand servant, and whenever this relation exists, the conse-quences stated must follow.This is not a rule of universaljurisprudence;it certainlywas not a rule in that nation which has given to the worldjurisprudence as a science, from whom all Europe hasderived its system of law as administered by lawyers-notthe statutory or merely arbitraryrules, but all that there isof law created by reasoning. But for us it is the samething as if this rule was one of the necessary conclusionsof the humainmind. There is not, as far as I can ascer-tain, a trace of any other rule in the common law at anyperiod. I think I have seen evidence of the consciousnessthat there is something defective in the reasoningon whichthis stands, in two of the greatest of our lawyers, LordWENSLEYDALE and Lord HOLT.There is a well-settled rule, applied in a large and im-portant class of cases,which it may be properto mention toillustrate the vital importance of this distinction betweenservant and employed. The master of a ship is the servantof the owner, and the latter is liable for the negligence ofthe former,while himself totally unable to form a judg-ment on the subject, or to give a direction, or even to

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EMPLOYERS AND EMPLOYED,tender rational advice. The passenger may be the em-ployer of the master, but there is not the faintest resem-blance to the relations of master and servant between them,or only so far as to make the employed the master of theemployer. But then master assumes a new meaning.Evidently, the question for discussion is the relationsof those species of the employed that, in the legal aspect,are servants of the employer.

Apparently, this relation is simple, and free from allthose things that are stigmatized as technicalities; andthis is true, but it is not everyone that has noticed theexistence of some very technical rules, nor that it is thepurest of technicalities that alone excluded domestic slaverybefore there was any legislation made necessary by theexistence of that institution among us. I mention thisbecause it is the cause of the most difficult question forsolution in the whole subject, and this is effected solely bythe law for the enforcement of contracts.The relation of master and servant (laying apprentice-ship and the contracts on behalf of infants out of the case)arises by contract, and cannot possibly arise otherwise.Even when the contract is implied, or not expressed, it isdifficult to suggest a case where the fact of the contract,and its terms, are not really as distinctly understood, aswhen everything on each side is clearly expressed. As ageneral rule, the only sanction for such contracts is anaction for the breach. Damages may be recovered fornon-performance;performance cannot be compelled. In-deed, the common law furnishes no other redress, eitheron contracts or for property, since the real actions wereabolished,saving that of ejectment. It is the equity courtsthat devised the remedy of specific performance,and thesehave never allowed the grounds for this remedy-theworthlessness of the legal remedy-to sustain a claim tothis kind of redresswhere personal service of any contin-uance would be necessary. It is a thing the Courts havenever dreamed of enforcing.' The fact that a man must

Jessel, M. R., 14 Ch., Div. 487, Rigby v. Connol.

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THE LEGAL RIGHTS AND DUTIES OF

personally do some act is of no moment. It is notany ridiculous regard for human dignity that excludesthe jurisdiction; the execution of a deed is as personal anact as the forging of a horseshoe. The latter is incapableof being compelled, the formeris compelled every day.The single instance where the remedy, as a matter ofpropriety, might be applied, is the case of an opera singer;and it will be recollected how this was dealt with.

What is the reason for this rule ? Precisely the samethat makes it impossible to pass the title to future earnings;it belongs to the region of politics. If equity permittedthis to come within its modification of the common-lawrule as to the assignability of choses in action, humanslavery would at once be established. Still more obviousis it, that if contractsfor labor could be specifically enforced,human slavery would be sanctioned, even though it wasconfined to cases of consent.'I do not think one can fail to see the important bear-ing on the problem, that I hope to discuss, that this facthas. Since the abolishment of imprisonment for debt, the

legal remedy for non-performanceof a contract to serve isso utterly futile that probablyno one ever heard of such anaction. Suits on contracts to employ are quite common.What an element it is in the discussion of rights createdby contracts that there is a remedy for one party only!The relation we are considering is one created by con-tract incapable of compulsory performance,and with noreal remedy for the failure of performance by the servantfurnished by the law, while none is more dreadedby themaster than the one that the common law impartiallyaffords to both. His case must be clear, or he pays fullwages, even for no services rendered. It is not very im-portant, therefore, whether time contracts are actuallymade or not, for there are probably no time contracts--none in which the servant may not leave the employment,or in which the master cannot discharge on ceasing to be

'See Lord MANSFIELD'S remark during the argument of Chippen-dale v. Tomlinson, 4 Doug., 32I.

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EMPLOYERS AND EMPLOYED.able to furnish work. This sort of contract, whether bythe day or for a term, ought to give rise to no vexed ques-tions, and as an abstraction it does not. It is a contractat will, from moment to moment, not even involving theterm of one working day. How can there arise any ques-tions of law about it ? Yet there have arisen questions sograve that in their solution there have been homicide andmutilation, and numberless acts of minor violence; whetherthese were criminal or praiseworthy, I have not the meansof forming an opinion, and will not discuss hypotheticalcases, even though they bear the marks of authority andcertainty of a printed and published statement.There has been one authoritative and authentic state-ment of the grounds on which these acts of violence arejustified in resistance of the right of the master to employothers. I may allude to it hereafter. At present I desireto deal with the questions, as far as possible, free from anyparticular instance. It is desirable, if possible, to gener-alize before considering particular cases.What difference is there between the purchaser oflabor, whether skilled or not, and any other person seekingto bargain for something he is to get ?

We are dealing with the legal aspect, not with the sen-timental nor with the moralquestions. As faras I am aware,there is no distinction between the employers of labor andany other species of employment other than the duty ofobedience to the command of the employer. This is in-volved in the relation with which we are dealing. Butthis is not a subject any one has ever disputed. No onehas ever supposed that the class of personswe arespeakingof has the right to insist on doing their work in their ownway, regardless of the command of the employer. Therate of wages has been the constant subject of differences.Hours of labor many years since were also the grounds ofserious disputes, and there is a general movement lookingto the regulation of this by statute. This belongs to polit-ical economy, not law. But, so far as the law is concerned,all rights and duties are regulated by contracts, including,

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THE LEGAL RIGHTS AND DUTIES OFof course, custom in defining the meaning of the wordsused. The contract when made is on the footing of allother contracts of purchase, the sanction of which is onlydamages for the breach. Anything like duty to continuethe contract, or to give the preference to those who havebeen employed over strangers,has never existed; it couldnot well be without a correlative duty to serve, and no onehas suggested the existence of such a duty. That wouldbe temporaryslavery. There is, however, in most States,a legislative license affecting a particular class of the em-ployed which deserves special attention. I need scarcelysay I disclaim all right and all intention to discuss the pru-dence or the wisdom of such statutes. It is impossible todoubt that there are very strong reasons for sanctioningcombinations of the employed to regulate the termsof theiremployment. Without it there can be no real fairness inrespect of capacity to discuss the terms of the bargain. Wewill take Pennsylvania as an example.The Act of Assembly in that commonwealth provides:(I) That a refusal to work by a laborer, workingman orjourneyman,for any one, when in his opinion the wages areinsufficient, or the treatment of the laborer,etc., is brutalor offensive, shall not be punishable. There is no meaningin this. The act never was punishable. (2) But coupledwith this is the same provision in the plural, and the rightis extended to the laborer,etc., as the member of any club,society or association; and then the refusal to work is justi-fiable, if the continued laborwould be contraryto the rules,regulations orby-laws of any club, etc., to which the laborer,etc., belongs. Then comes two provisos: one, that the Actshall not apply to a member of any club, etc., the constitu-tion, by-laws, rules and regulations of which are in strictconformity to the Constitution of this State and of theUnited States; the other, that retains the liability to prose-cution for hindering any one who desires to labor for theiremployer,and "their" refers to the combined persons whohinder.This certainly makes a vast change in the legal rela-

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EMPLOYERS AND EMPLOYED.tions of master and servant. But it is only the relation asit affects the State. The rights and liabilities of the par-ties between themselves are not changed. In this respectthe law is preciselyas it is in referenceto the violent enforc-ing of the right of possession. The statute of forciblyentryand detainer does not affect the rights of propertyunlessindirectly by the judgment of restitution, when possessionhas been obtained contraryto the provisions of the statute.It is impossible to dispute the importance of this enact-ment. The whole law of conspiracy, and the whole lawin relation to riots and unlawful assemblies, is involved.Their chief support rests on the notorious dangers result-ing from large gatherings of men with no supervision bygovernment, and the almost boundless consequences ofcombination. Whether the inevitable consequences wereforeseen, and are sufficiently guarded against, is, perhaps,useless to discuss. Steps like this are certainly advances,and cannot be easily retracted.It is difficult to suppose fhat the first branch of thelegislation could have been supposed to be necessary.Unless the breach of a contract was intended to be sanc-tioned, there never was a doubt as to the existence of theright to decline to work because the wages were insuffi-cient or because of ill treatment. But one cannot but besurprised that the clause that imposed the obligation towithdraw from work at the dictate of a secret societyshould have been permitted. True, it adds nothing to thelicense already conferred,but it appears to sanction, anddoes sanction, as far as it can, the surrender of one's lib-erty to the dictate of a club or society. Whether it is wiseto do this, or whether it would have been wise to attemptto battle with this evil of a voluntary surrenderof one'sright to labor, may well be questioned. But the sufferingthat has and must ensue until the evils are eliminated isenormous. It is curious to note the changes of a centuryin this respect. The power to license workmen-the con-trol of the capacity to use one's skill in a trade during thelast century-was a tyranny of the most oppressive kind,

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THE LEGAL RIGHTS AND DUTIES OFbut it was in the masters. It is now transferred to themen. But it is the power to contract that is thus affected,not the contract when made.Therefore,it is plain that there is no law affecting therights of master and servant, as such, other than the lawof the contract; its sanction being abundant to compeladherence by the master, and utterly worthless as affectingthe servant, unless he is possessed of propertywhich hecannot persuade a jury is worth less than three hundreddollars.I do not think any reasonableman will assert that itwas the intention of the legislature to tack on to everycontract a condition that it is to cease to be binding when-ever a club or society votes that it shall not be performed.I think it means that the people who, by a vote, preventmen from contracting to work cannot be indicted, and thatthis is all that it does mean.There are two points in the relation of master and ser-vant that may be supposed to be the natural outcome ofthis legislation. Singularly enough, the more unreasonableand extravagant of the two is expressly sanctioned by thelegislation, unless the capacity of the club to legislate hasbeen restricted by the Act itself.Everyone who has watched the papers must havenoticed the frequency of the issue of a command to with-draw from work, because material to be used has beenmade or worked upon by persons not belonging to a par-ticular club or society. Those who are not concerned inthe actual operationsof builders find it difficult to conceivehow any one can be bold enough to contractwhen the per-formance depends on the capacity of anybody to deprivehim of the power of performancein this way. Obviously,there is some way of escaping, or all building, indeed,all work, would stop. A reference to the statute showsthat this is sanctioned unless there is something in theConstitution that prevents. I am aware of nothing thatcan be tortured into this unless it be the platitude of theinalienable rights, which unfortunately works for the by-


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EMPLOYERS AND EMPLOYED.law as well as against it. There is no reference to the lawsof the State in the proviso. There is no requirement thatthe by-law shall conform to the existing laws of the Stateregulating conspiracy; quite the reverse. There is noteven the vague clause requiring that the regulations shallbe reasonable. The laborer may not only contract toabstain from work to remedy any grievance, but to bringabout consequences as remote as the quarrying of stone ina foreign State, to compel submission by the masters thereto their workmen; and we must admit that this, whichappearsto shock every sense of justice, is expressly sanc-tioned as the right of all laborers,workingmen andjourney-men; but the injustice is in the servant, not in the law.All that the law has done is to relieve the servant from thepenalty attached to a combination. But for the combina-tion there never was any legal objection to these acts.But as we would all feel that a master who agreed to dis-miss a servant for no other cause than to gratify the maliceof a friend was utterly contemptible, so one cannot fail toobserve the degradationof the moral character which canconsent to abandon the master in his hour of need at thedictate of another,and for no causewhatever affecting him-self. I myself cannot doubt that no such consequences asthese were foreseen. If we look at the statute we find thegrounds on which the men may combine to refuse to workare perfectly reasonable-insufficiency of wages and brutaltreatment. Could any reasonable man have supposed thatsuch a power as now exists and is exercised was coveredby the license to plead the rule of the club? This is cer-tainly a part of the law regulating the relation of masterand servant, though it is not possible to state it withoutseeming to trench upon the province of the legislature inforecasting the consequences of its conduct.There are,however, two things that cannot be omittedfrom the present discussion. One is a remedy that appearsto commend itself to a great number of persons-arbitra-tion; the other is the rights of the workmen resulting fromactual occupation of the premises on which the employ-ment is exercised.

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THE LEGAL RIGHTS AND DUTIES OFAs to the first. Everything depends on correctdefini-tions in these matters. If by arbitration is meant the

right to advise, and the duty to listen and comprehendtheadvice, I will say but little. If any one supposes thatbenefitscan result fromcalling in-thirdpersonsto advise, byall means let it be tried. Only we must not deceive our-selves by calling this arbitration. It has not one feature ofarbitration. That means, not advice, but command. Itrelates to existing rights and duties. It is a determinationby a tribunal other than the ordinarycourts of the country,as to what are the rights of disputants, and what must bedone by one or both.- These are fixed. Arbitration todetermine what shall be right is not arbitration. Thedifficulty here is, there are no rights and no duties. Noone can possibly say he has a right to the labor of anotherunless there is a contract that binds, and probably no in-stance can be produced of any differenceexisting on thatsubject. On the other hand, there cannot be conceived aright to be employed unless there is a contract, and themeaning of such a contract has probably never led to astrike. The grounds for striking have been hours, wages,the persons to be employed, for whom the work may bedone, and what materials may be used: BURNS' patheticlines are caricatured. The beggar for employment is afellow-servant or laborer; and the fellow-laborer is onewho refuses him permission to toil. The master is nowthe beggar for permission to employ. Arbitration ex vitermini means a sentence which is as binding and enforce-able as a judgment of a court. Obviously, there is no poweranywhere adequateto this. I do not dispute, as an abstrac-tion, the power of the legislature, though I think it ex-tremely doubtfulwhether compulsion to performa contractof the kind we are discussing is within the powers of thelegislature, It actually involves the power to subject oneto domestic slavery. But assuming all that can be asked,that the power is limited to what all will agree are usualand propercontracts, of what practicalvalue is compulsorylabor with a thousand intelligent minds bent on evasion ?

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EMPLOYERS AND EMPLOYED.The master's duties aredefinite,and can be readilyenforced;the servant's, never. What are the guaranties of all laborother than a conscientious sense of duty? Will any oneexist in the case of compulsory labor? What reliance isthere on the sense of duty in one who feels he is underunjust compulsion? Who would entrust the safety of amill to operatives thus coerced to work ?To my mind, the notion of settling such matters byarbitration, or anything of that nature, however modified,is utterly absurd, for the evil has no relation to the remedy.The power to control one's business, and the powerto deter-mine what obligations will be assumed, cannot be the sub-ject of arbitration; that would make the arbitrator themanager of the business on the one side and the owner ofthe men on the other. Anything short of this is not arbi-tration, though it may be the wisest of schemes, andthough it may solve all difficulties.The right of the employed to propertyentrusted tothem in the performanceof their work, their right to thehouses they are furnished with, and to the mills or build-ings they occupy when at work, is a most important branchof this subject. There has been some confusion and onemistake in this matter. It has even been supposed todepend on the sacredness of the horme; we have even seenthe old maxim quoted, "a man's house is his castle." Itwould be better to rest it on the rule in Taltarum's case, forthat could not mislead, and this misleads even those whoought to know better.The basis of the rule governing the relation is this-the possessionof the servant is the possessionof the master.It extends to the possessionof all kinds of property. Thereis no distinction between the character of the possession ofa body-servant of his master's clothes and watch and thepossession of a house or mill by one employed by theowner, if the possession is in the character of servant,even if it be that of one employed to hold the possession.This doctrine is based on another, that, so far as I know, isa universal proposition. It extends beyond the relation of

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THE LEGAL RIGHTS AND DUTIES OFmaster and servant. One who receives anything for a par-ticular purpose holds for that purpose only, and as theagent of the depositor, and can set up no antagonisticclaim.1 We see this in cases of remittances, coupled witha direction to apply the proceeds-the direction must beobeyed or the remittance returned; it cannot be retainedon any other pretence. A tenant cannot set up even hisown title as against his lessor. So the person entrusted asa servant, whether it be with one's food, clothing, house-hold goods, the key of the safe, or with a habitation, is nota possessoror in possession-he holds for and as the master.The rule is stated by the great authority, Lord COKE,in a case occurringin the Star Chamber,reportedin Moore.The chiefs of the three courts united in the judgment.Could the owner of a house be indicted for forcible entry,or for a riot, for violently entering the house and oustingthe person who held it as care-taker for the owner? Thepartieswere considerablepersons. A countess, who was theowner, and Dame Russell, who was the caretaker, and thehouse was a castle. The ruling was, there was no forcible:entry, because the person who entered, entered on himself,and there was no riot, because the violence was upon theperson at whose request it was employed. Possibly, wemight state the reasons differently to-day. Every genera-tion has its own mode of reasoning, at least among lawyers.We might explain it as Chief Justice GIBSONdid, that thestatute was not intended to protect the wrong-doer,but toprevent violence, and that it was not improperto use theforcenecessaryto repossessone's self of propertyconfessedlyentrusted to another as one's servant or caretaker,and theriot, if there was one, was that of the man who undertookto resist, by violence, the performance of his duty to sur-render possession. This is but a modern paraphrase ofLord COKE'S easoning, which, to the ignorant, may seemabsurd. In fact, there is no sort of difference between aservant and any intruder, saving that the servant, having

'Delany v. Fox, 2 C. B. N. S., 768; Williams v. Williams, 3 Merri-vale, I59.

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EMPLOYERS AND EMPLOYED.been invited to enter, must be given an opportunity toretire, without suffering violence, unless he refuses tocomply with the request to leave. In Massachusetts, Inotice that within a year the knocking down a man whohas entered after being asked to leave, is not recognized asa breach even of the public peace.It must be obvious that if actual occupancy, of itself,gives the right to insist on the use of that form of redress,which is assured to persons claiming title, it would beimpossible to furnish accommodationsto any servant; forwho could possibly assign a chamber to a domestic if eject-ment was the only remedy to obtain possession of the roomwhen the relation of servant ceased? Nor is there anypossible ground for making a distinction between separatedwellings, furnished as part of the wages, and the roomwithin the master's dwelling. It would be strange, indeed,if the law were otherwise. Whatever else we may say ofthe common law, it is a practical system. And can any-thing be more utterly incapable of being applied to humanaffairsthan a rule that a servant, if furnished with a houseor room by the master, cannot be removedfrom it otherwisethan by a process intended to determine the legal right ofpossession to land ?It will, therefore, be found that there is not any varia-tion or hesitation in applying the principle that the posses-sion of the servant is the possession of the master,and this,whether it is necessary to secure the right of the master ornot. It is applied to cases in which the relations of masterand servant are absolutely excluded from consideration. Iwill give you some examples, for there are some elementarypropositionsforwhich it is difficult to findexpress authority.I think it will be admitted that one who, as tenant, had theright of possession, has, after his tenancy expires, as muchof right to possession as any one can possibly have whoseonly right is that he was originally invited to enter, or placedin possession by the owner. What is the right of such aperson is exactly defined by GIBSON,C. J.1 It is that the1Overseerv. Lewis, I W. & S., 90.

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THE LEGAL RIGHTS AND DUTIES OFowner can forcibly dispossess him on the instant, by day orby night, and for motives of mere caprice; the only quali-fication is that he may not use any greater force than maybe necessary, and do no wanton damage. Is it necessary tosay this is the legal right ? Probablyno man ever acted insuch a spirit, but it is essential that the law shall clearlydefine legal rights, and not qualify them by any reference tolaws of courtesy, propriety,or even humanity, and for thisplain reason that any qualification is one of law, and, there-fore, universal, and introduces elements of uncertainty inthe application that render these plain rules for plain peopleutterly incapable of being used. A servant occupies theposition of all persons who are on the premises at therequestof the owner. The request being withdrawn,all aremere intruders, except possibly for the space of time that isrequiredfor them to remove their persons.The books are full of this, but generally by implication,for I am aware of but one who ever disputed it. Indirectlyit has been disputed in a multitude of cases, but the questionhas always been, What are the relations? Are they that ofmaster and servant? That being ascertained, the conse-quences follow. Hughes v. Derry,1 before PARKE, B., thedefendanthad been put in possessionof a house on the farmof which he was the manager, under a written agreementallowing him and his family to have the use of the dwelling

free of rent. Was this a lease? No. Was he entitled tonotice to quit? No; because the service (employment, wewould call it) had ended, and the occupation was a mode ofremunerating the bailiff. The other cases are collected inSmith's "Master and Servant." He says, page 80:" Where a servant occupies premises belonging to hismaster, and has, on that account, less wages, his occupationis that of the master."'He illustrates this by a coachman having rooms over astable, a gamekeeper with a lodge in the park, a gardenerliving in an out-house, a porterat a lodge at the park gate,and he adds, and such servants, when dismissed from theI9 C. & P., 494.

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EMPLOYERS AND EMPLOYED.4service, have no right to continue in the occupancy of thesehouses as tenants, nor are they entitled to notice to quit.Some cases that he cites deserve attention.1 A person wasput into possession of a building to carry on trade, andthere was a stipulation for a notice to quit. But as theoccupation was for the master, and as his servant, it washeld that he could be ejected summarilyandwithout notice.Such a person is not de jure even entitled to a reasonabletime to remove his furniture.2 The judgment is that ofLord TENTERDEN, the gentlest of men. The rule does notapply if the servant hires the house, though the masterpays the rent. An occupation as a servant does not givea settlement, nor make the servant liable to be rated, norqualify him for office, as being a substantial housekeeper,and what is meant by servant is shown by the decisions.A Wesleyan minister is such in respect of the house fur-nished him by his employers. The manager of booksociety, officers of government if compelled to reside,preachers at Canterbury Cathedral,and the hall-keeper fora borough-these are servants. The occupation is that ofthe master, not of the actual occupant, in an action for dis-turbance of a way,3and in an indictment forburglary, therestated by ELLENBOROtGH,C. J., and decided in 2 Taun-ton, 339, where MANSFIELD, . J., asks, as the test, Couldhe (the owner) not have turned him (the servant) out whenhe would ?I may here quote, in justification for what may seem soplain, the remark of ERLE,C. J.,4 in White v. Bailey, thatthis distinction is of extreme importance, for it is whatmakes the differencebetween an estate and no estate, whichis where one is put in possession by another to perform aduty he is employed to do.5The result of all this is, that there are no other rela--

1 Mahew v. Suttle, 4 E. & BI., 347.2 Nicholl v. McKaig, Io B. & Cr., 72I.3 Berlie v. Beaumont, I6 East., 33.4 3 L. J., C. P., 253.The cases is cited in Smith's " Master and Servant," 83.

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THE LEGAL RIGHTS AND DUTIES OFtions between the employed and the employer recognizedby law except those that arise by contract, and there is nomode of enforcing that contract that differs from the reme-dies for all contracts of hire or purchase.There is no possession or occupancyof land of the em-ployer saving at the will of and for the employed, and thisright and duty terminates at the employer's mere will, andthat instantly, and his motive cannot be inquired into-arule common to all matters of property.I have ventured to criticize the remedy of arbitration,which, to my mind, is absolutely misleading, because itappears to contain a remedy which it certainly does not.What it is supposed to contain is something that, if cor-rectly defined, no one has ever, or probably ever will,propose.If the foregoing contention is true, even substantially,it is obvious that the burning question of the day has nopossible beginning of a solution in anything furnishedby thelaw, any moreor further than those affecting the relation ofbuyer and seller, which are not varied because a faminehas occurred. I have listened to all and read much. Sin-gularly enough, the most affecting of all arguments andappeals on the side of labor that I have seen comes fromthe pen of a British peer.1 But he offers no solution,unless he intends to shadow forth a form of protection bythe legislative exclusion of the right to employ and to beemployed in favor of a class to the exclusion of anotherclass.

The arguments, orjustifications, or manifestoes, what-ever they may be, from the men or their leaders at Home-stead, where the language is not mere vituperation, hasconsisted in the suppression of the one and only difficultythat even tends to affect the employers' side. I do notpropose to consider these, which are questions of political

Earl of Dunraven in the Nineteenth Century for June. At themeeting of the State Federation of Labor at Chester, August I9, Mr.McVay proposed the same remedy. It was opposed by Mr. Boyle, butwhether there was anything more than a discussion the newspaperreport does not say.

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CONSTITUTIONALITY OF SUNDAY LAWS.ONSTITUTIONALITY OF SUNDAY LAWS.

economy and not of law. He who solves them, who sug-gests a mode of ascertaining what ought to be paid forwork to the satisfaction of master and man, above all, whowill suggest a rule by which all can find profitableemploy-ment, one for his capital and the other for his skill orlabor, will deserve a statute larger than WASHINGTON,apension for himself and his heirs forever, and the everlast-ing gratitude of all.

PHILADIELPHIA,A.

THE CONSTITUTIONALITY OF SUNDAY LAWS.1BY GEORGESTUART PATTERSON, ESQ.

IN a most interesting and able article in the Novembernumber of the AMERICAN LAW REGISTER AND REVIEW,Mr.James T. Ringgold argues that Sunday laws are uncon-stitutional, in that the design of the legislatures enactingthe same is to preferone religion over,another, in contra-vention of the Constitution of twenty-nine of the States,which constitutions declare in substance that no preferenceshall be given by law to one religious sect over another, andhe also asks the question, "Are the courts justified in sus-taining those statutes merely because some other purpose isincidentally effected at which the legislature might con-stitutionally have aimed?" Mr. Ringgold admits thatthe courtswill not inquire into the motive of the legislaturein passing any given statute, but he says if the legislatureintended by the passing of a statute to accomplish some-thing forbiddenby the constitution of that State, then thestatute is passed with an unconstitutional design and isunconstitutional; but can it not be said in reply that theonly way of testing the constitutionality of the legislativedesign is by the effect of the statute when put in operation,and not by the opinion of any particular court as to what

An answer to the article of Mr. James T. Ringgold in the AMERICANIAW REGISTER AND REVIEW,Vol. XXXT, p. 723.

economy and not of law. He who solves them, who sug-gests a mode of ascertaining what ought to be paid forwork to the satisfaction of master and man, above all, whowill suggest a rule by which all can find profitableemploy-ment, one for his capital and the other for his skill orlabor, will deserve a statute larger than WASHINGTON,apension for himself and his heirs forever, and the everlast-ing gratitude of all.

PHILADIELPHIA,A.

THE CONSTITUTIONALITY OF SUNDAY LAWS.1BY GEORGESTUART PATTERSON, ESQ.

IN a most interesting and able article in the Novembernumber of the AMERICAN LAW REGISTER AND REVIEW,Mr.James T. Ringgold argues that Sunday laws are uncon-stitutional, in that the design of the legislatures enactingthe same is to preferone religion over,another, in contra-vention of the Constitution of twenty-nine of the States,which constitutions declare in substance that no preferenceshall be given by law to one religious sect over another, andhe also asks the question, "Are the courts justified in sus-taining those statutes merely because some other purpose isincidentally effected at which the legislature might con-stitutionally have aimed?" Mr. Ringgold admits thatthe courtswill not inquire into the motive of the legislaturein passing any given statute, but he says if the legislatureintended by the passing of a statute to accomplish some-thing forbiddenby the constitution of that State, then thestatute is passed with an unconstitutional design and isunconstitutional; but can it not be said in reply that theonly way of testing the constitutionality of the legislativedesign is by the effect of the statute when put in operation,and not by the opinion of any particular court as to what

An answer to the article of Mr. James T. Ringgold in the AMERICANIAW REGISTER AND REVIEW,Vol. XXXT, p. 723.

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Employee Legal Rights and Duties

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Transcript of Employee Legal Rights and Duties