CHAPTER THE FOURTEENTH. OF MASTER AND SERVANT.

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The RIGHTS of PERSONS.

BOOK I.

 

CHAPTER THE FOURTEENTH.

OF MASTER AND SERVANT.

 

HAVING thus commented on the rights and duties of perfons, as ftanding in the public relations of magiftrates and people; the method I have marked out now leads me to confider their rights and duties in private occonomical relations.

 

THE three great relations in private life are, 1. That of mafter and fervant; which is founded in convenience, whereby a man is directed to call in the affiftance of others, where his own fkill and labour will not be fufficeint to anfwer the cares incumbent upon him. 2. That of bufband and wife; which is founded in nature, but modified by civil fociety: the one directing man to continue and mulpiply his fpecies, the other prefcribing the manner in which that natural impulfe muft be confined and regulated. 3. That of parent and child, which is confequential to that ofmarriage, being it’s principal end and defign: and it is by virtue of this relation that infants are protected, maintained, and educated. But, fince the parents, on whom this care is primarily incumbent, may be fnatched away by death or otherwife, before they have completed their duty, the law has therefore provided a fourth relation; 4. That of guardian and ward, which is a kind of artificial parentage, in order to fupply the deficiency, whenever it happens, of the natual. Of all thefe relations in their order.

IN

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IN difcuffing the realtion of mafter and fervant, I fhall, firft, confider the fevral forts of fervants, and how this relation is created and deftroyed: fecondly, the effects of this realtion with regard to the parties themfelves: and, laftly, it’s effect with regard to other perfons.

 

1. As to the feveral forts of fervants: I have formerly obfervedthat pure and proper flavery does not, nay cannot, fubfift in England; fuch I mean, whereby an abfolute and unlimited power is given to the mafter over the life and fortune of the flave. And indeed it is repugnant to reafon, and the principles of natural law, that fuch a ftate fhould fubfift any where. The three origins of the right of flavery affigned by Juftinian, are all of them built upon falfe foundation. As, firft, flavery is held to arife “jure gentium,” from a ftate of captivity in war; whence flaves are called mancipia, quafi manu capti. The conqueror, fay the civilians, had a right to the life of his captive; and, having fpared that, has a right to deal with him as he pleafes. But it is an untrue pofition, a man may kill his enemy: he has only a right to kill him, in particular cafes; in cafes of abfolute neceffity, for felf-defence; and it is plain this abfolute neceffity did not fubfift, fince the victor did not actually kill him, but made him prifoner. War is itfelf juftifiable only on principles of felf-prefervation; and therefore it gives no other right over prifoners, but merely to difable them from doing harm to us, by confining their perfons: much lefs can it give a right to kill, torture, abufe, plunder, or even to enflave, an enemy, when the war is over. Since therefore the right of making flaves by captivity, depends on a fuppofed right of flaughter, that foundation failing, the confequence drawn from it muft fail likewife. But, fecondly, it is faid that flavery may begin “jure civili;” when one man fells himfelf to another. This, if only meant of contracts to ferve or

 

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pag. 123.

Servi aut fiunt, aut nafcuntur; fiunt jure gentium, aut jure civili: nafcuntur ex ancillis noftris. Inft. 1. 3. 4.

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D d d 2

work

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work for another, is very juft: but when applied to ftrict flavery, in the fenfe of the laws of olf Rome or modern Barbary, is alfo impoffible. Every fale implies a price, a quid pro quo, an equivalent given to the feller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which (in abfolute flavery) are held to be in the mafter’s difpofal? His property alfo, the very price he feems to receive, devolves ipfo facto to his mafter, the inftant he becomes his flave. In this cafe therefore the buyer gives nothing, and the feller revceives nothing: of what validity then can a fale be, which deftroys the very principles upon which all fales are founded? Laftly, we are told, that befides thefe two ways by which flaves “fiunt,” or are acquired, they may alfo be hereditary: “fervi nafcuntur;” the children of acquired flaves are, jure naturae, by a negative king of birthright, flaves alfo. But this being built on the two former rights muft fall together with them. If neither captivity, nor the fale of onefelf, can by the law of nature and reafon, reduce the parent to flavery, much lefs can it reduce the offspring.

 

UPON thefe principles the law of England abhors, and will not endure the exiftence of, flavery within this nation: fo that when an attempt was made to introduce it, by ftatute 1 Edw. VI. c. 3. which ordianed, that all idle vagabonds fhould be made flaves, and fed upon bread, water, or fmall drink, and refufe meat; fhould wear a ring of iron round their necks, arms, or legs; and fhould be compelled by beating, chaining, or otherwife, to perform the work affigned them, were it never fo vile; the fpirit of the nation could not brook this condition, even in the moft abandoned rogues; and therefore this ftatute was repealed in two years afterwards. And now it is laid down, that a flave or negro, the inftant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his perfon, his liberty, and his property., Yet, with regard to any right which the mafter may have acquired, by contract or the like, to the perpetual fervice of John or Thomas, this will remain exactly in the fame

 

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Stat. 3 & 4 Edw. VI. c. 16.

Salk. 666.

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ftate

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BOOK I.

Ch. 14

 

ftate as before: for this is no more than the fame ftate of fubjection for life, which every apprentice fubmits fo for the fpeace of feven years, or fometimes for a longer term. Hence too it follows, that the infamous and unchriftian practice of withholding bapfifm from negro fervants, left they fould thereby gain their liberty, is totally without foundation, as well as without excufe. The law of England acts upon general and extenfive principles: it gives liberty, rightly underftood, that is, protection, to a jew, a turk, or a heathen, as well as to thofe who profefs the true religion of Chrift; and it will not diffolve a civil contract, either exprefs or implied, between mafter and fervant, on account of the alteration of faith in either of the contracting parties: but the flave is entitled to the fame liberty in England before, as after, baptifm; and, whatever fervice the heathen negro owed to his Englifh mafter, the fame is he bound to render when a chriftian.

 

1. THE firft fort of fervants therefore, acknowleged by the laws of England, are menial fervants; fo called from being intra moenia, or domeftics. The contract between them and their mafters arifes upon the hiring. If the hiring be general without any particular time limited, the law conftrues it to be a hiring for a year; upon a principle of natural equity, that the fervant fhall ferve, and the mafter maintain him, throughout all the revolutions of the refpective feafons; as well when there is work to be done, as when there is not: but the contract may be made for any larger or fmaller term. All fingle men between twelve years old and fixty, and married ones under thirty years of age, and all fingle women between twelve and forty, not having nay vifible livelihood, are compellable by two juftices to go out to fervice, for the promotion of honeft induftry: and no mafter can put away his fervant, or fervant leave his mafter, either before or at the end of his term, without a quarter’s warning; unlefs upon reafonable caufe to be allowed by a juftice of the peace: but they may part by confent, or make a fpecial bargain.

 

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Co. Litt. 42.

F. N. B. 168.

Stat. 5 Eliz. c. 4.

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2. ANOTHER

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2. ANOTHER fpecies of fervants are called appreantices (from apprendre, to learn) and are ufually bound for a term of years, by deed indented or indentures, to ferve their mafters, and be maintained and inftructed by them: for which purpofe our ftatute lawhas made minors capable of binding themfelves. This is ufually done to perfons of trade, in order to learn their art and myftery; and fometimes very large fums are given with them, as a premium for fuch their inftruction: but it may be done to hufbadmen, nay to gentlemen, and others. Andchildren of poor perfons may be apprenticed out by the overfeers, with confent of two juftices, till twenty four years of age, to fuch perfons as are thought fitting; who are alfo compellable to take them: and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to fuch compulfion. Apprentices to trades may be difcharged on reafonable caufe, either at requeft of themfelves or mafters, at the quarter feffions, or by one juftice, with appeal to the feffions: who may, by the equity of the ftature, if they think it reafonable, direct reftitution of a ratabel fhare of the money given with the appreantice. And parifh apprentices may be difcharged in the fame manner, by two juftices.

 

3. A THIRD fpecies of fervants are labourers, who are only hired by the day or the week, and do not live intra moenia, as part of the family; concerning whom the ftatute fo often citedhas made many very good regulatons; 1. Directing that all perfons who have no vifible effects may be compelled to work: 2. Defining how long they muft continue at work in fummer and winter: 3. Punifhing fuch as leave or defert their work: 4. Empowering the juftices at feffions, or the fheriff of the county, to fettle their wages: and 5. Inflicting penalties on fuch as either give, or exact, more wages than are fo fettled.

 

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Stat. Eliz. c. 4.

Stat. 5 Eliz. c. 4. 43 Eliz. c.2 1 Jac. I. c. 25. 7. Jac. I. c. 3. 8 & 9 W. & M. c. 30. 2 & 3 Ann. c. 6. 4. Ann. c. 19. 17 Geo. II. c. 5.

Salk. 57. 491.

Stat. 5 Eliz. c. 4.

Salk. 67.

Stat. 20 Geo. II. c. 19.

Stat 5 Eliz. c. 4.

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4. THERE

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4. THERE is yet a fourth fpecies of fervants, if they may be fo called being rather in a fuperior, a minifterial, capacity; fuch as ftewards, factors, and bailiffs: whom however the law confiders as fervants pro tempore, with regard to fuch of their acts, as affect their mafter’s or employer’s property. Which leads me to confider,

 

II. THE manner in which this relation, of fervice, affects either the mafter or fervant. And, firft, by hiring and fervice for a year, or apprenticefhip under indentures, a perfon gains a fettlement in that parifh wherein he laft ferved forty days. In the next place perfons ferving as apprentices to any trade have an exclufive right to exercife that trade in any part of England. This law, with regard to the exclufive part of it, has by turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times: which has occafioned a great variety of refolutions in the courts of law concerning it; and attempts have been frequently made for it’s repeal, though hitherto without fuccefs. At common law every man might ufe what trade he pleafed; but this fttute reftrains that liberty to fuch as have ferved as apprentices: the adverfaries to which provifion fay, that all reftrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for it alledge, that unfkilfulnefs in trades is equally detrimental to the public, as monopolies. This reafon indeed only extends to fuch trades, in the exercife whereof fkill is required: but another of their arguments goes much farther; viz. that apprenticefhips are ufeful to the commonwealth, by employing of youth, and learning them to be early induftrious; but that no one would be induced to undergo a feven years fervitude, if others, though equally fkilful, were allowed the fame advantages without having undergone the fame difcipline: and in this there feems to be much reafon. However, the refolutions of the courts have in general rather confined than extended the reftriction. No trades are held to be within the fta-

 

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See page 352.

Stat. 5 Eliz. c. 4.

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tute,

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The RIGHTS of PERSONS.

BOOK I.

Ch. 14

 

tute, but fuch as were in being at the making of it: for trading in a country village, apprenticefhips are not requifite: and following the trade feven yeras is fufficient without any binding; for the ftatute only fays the perfon muft ferve as an apprentice, and does not require an actual apprenticefhip to have exifted.

 

A MASTER may by law correct his apprentice or fervant for negligence or other mifbehaviour, fo it be done with moderation: though, if the mafter’s wife beats him, it is good caufe of departure. But if any fervant, workman, or labourer affaults his mafter or dame, he fhall fuffer one year’s imprifonment, and other open corporal punifhment, not extending to life or limb.

 

BY fervice all fervants and labourers, except apprentices, become entitled to wages: according to their agreement, if menial fervants: or according to the appointment of the fheriff or feffions, if labourers or fevants in hufbandry: for the ftatutes for regulation of wages extend to fuch fervants only; it being impoffible for any magiftrate to be a judge of the employment of menial fervants, or of courfe to affefs their wages.

 

III. LET us, laftly, fee how ftrangers may be affected by this relation of mafter and fervant: or how a mafter may behave towards others on behalf of his fervant; and what a fervant may do on behalf of his mafter.

 

AND, firft, the mafter may maintain, that is, abet and affift his fervant in any action at law againft a tranger: whereas , in general, it is an offence againft public juftice to encourage fuits and animofities, by helping to bear the expenfe of them, and is called in law maintenance. A mafter alfo may bring an action againft any man for beating or maiming his fervant; but in fuch

 

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Lord Raym. 514.

1 Ventr. 61. 2 Keb. 583.

Lord Raym. 1179.

1 Hawk. P. C. 130. Lamb. Eiren. 127.

F. N. B. 168.

Stat. 5. Eliz. c. 4.

2 Jones. 47.

2 Roll. Abr. 115.

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cafe

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Ch. 14

 

cafe he muft affign, as a fpecial reafon for fo doing, his own damage by the lofs of his fervice; and this lofs muft be proved upon the trial. A mafter likewife may juftify an affault in defence of his fervant, and a fervant in defence of his mafter: the mafter, becaufe he has an intereft in his fervant, not to be deprived of his fervice; the fervant, becaufe it is part of his duty, for which he receives his wages, to ftand by and defend his mafter. Alfo if any perfon do hire or retain my fervant, being in my fervice, for which the fervant departeth from me and goeth to ferve the other, I may have an action for damges againft both the new mafter and the fervant, or either of them: but if the new mafter did not know that he is may fervant, no action lies; unlefs he afterwards refufe to reftore him upon information and demand. The reafon and foundation upon which all this doctrine is built, feem to be the property that every man has in the fervice of his domeftics; acquired by the contract of hiring, and purchafed by giving them wages.

 

AS for thofe things which a fervant may do on behalf of his mafter, they feem all to proceed upon this principle, that the mafter is anfwerable for the act of his fervant, if done by his command, either expreffly given, or implied: nam qui facit per alium, facit per fe. Therefore, if the fervant commit a trefpafs by the command or encouragement of his mafter, the mafter fhall be guilty of it: not that the fervant is excufed, for he is only to obey his mafter in matters that are honeft and lawful. If an innkeeper’s fervants rob his guefts, the mafter is bound to reftitutions: for as there is a confidence repofed in him, that he will take care to provide honeft fervants, his negligence is a kind of implied confent to the robbery; nam, qui non prohibet, cum prohibere poffit, jubet. So likewife if the drawer at a tavern fells a man bad

 

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9 Rep. 113.

2 Roll. Abr. 546.

In like manner, by the laws of king Alfred, c. 38. a. fervant was allowed to fight for his mafter, a parent for his child, and a hufband or father for the chaftity of his wife or daugher.

F. N. B. 167, 168.

4 Inft. 109.

Noy’s Max. c. 43.

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E e e

wine,

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Ch. 14

 

wine,whereby his health is injured, he may bring an action againft the mafter: for, although the mafter did not expreffly order the fervant to fell it to that perfon in particular, yet his permitting him to draw and fell it at all is implidly a general command.

 

IN the fame manner, whatever a fervant is permitted to do in the ufual courfe of his bufinefs, is equvalent to a general command. If I pay money to a banker’s fervant, the banker is anfwerable for it: if I pay it to a clergyman’s or a phyfician’s fervant, whofe ufual bufinefs it is not to receive money for his mafter, and he imbezzles it, I muft pay it over again. If a fteward lets a leafe of a farm, without the woner’s knowleg, the owner muft ftand to the bargain; for this is the fteward’s bufinefs. A wife, a friend, a relation, that ufe to tranfact bufinefs for a man, are quoad hoc his fervants; and the principal muft anfwer for their conduct: for the law implies, that they act under a general command; and, without fuch a doctrine as this, no mutual intercourfe between man and man could fubfift with any tolerable convenience. If I ufually deal with a tradefman by myfelf, or conftantly pay him ready money, I am not anfwerable for what my fervant takes up upon truft; for here is no implied order to the tradefman to truft my fervant: but if I ufually fend him upon truft, or fometimes on truft, and fometimes with ready money, I am anfwerable for all he takes up; for the tradefman cannot poffibly diftinguifh when he comes by my order, and when upon his own authority.

 

IF a fervant, laftly, by his negligence does any damage to a ftranger, the mafter fhall anfwer for his neglect: if a fmith’s fervant lames a horfe while he is fhoing him, an action lies againft the mafter, and not againft the fervant. But in thefe cafes the damage muft be done, while he is actually employed in the mafter’s fervice; otherwife the fervant fhall anfwer for his own mif-

 

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1 Roll. Abr. 95.

Dr & Stud. D. 2. c. 42. Noys max. c. 44.

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behaviour.

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behaviour. Upon this principle, by the common law, if a fervant kept his mafter’s fire negligently, fo that his neighbour’s houfe was burned down thereby, an action lay againft the mafter; becaufe this negligence happened in his fervice: otherwife, if the fervant, going along the ftreet with a torch, by negligence fets fire to a houfe; for there he is not in his mafter’s immediate fervice, and muft himfelf anfwer the damage perfonally. But now the common law is, in the former cafe, altered by ftatute 6 Ann. c. 3. which ordains that no action fhall be maintained againft any, in whofe houfe or chamber any fire fhall accidentally being; for their own lofs is fufficeint punifhment for thier own or their fervants’ careleffnefs. But if fuch fine happens throught negligence of any fervant (whofe lofs is commonly very little) fuch fervant fhall forfeit 100 l, to be diftributed among the fufferers; and, in default of payment, fhall be committed to fome workhoufe and there kept to hard labour for eighteen months. A mafter is, flaftly, chargeable if any of his family layeth or cafteth any thing out of his houfe into the ftreet or common highway, to the damage of any individual, or the common nufance of his majefty’s liege people: for the mafter hath the fuperintendance and charge of all his houfhold. And this alfo agrees with the civil law; which holds, that the pater familias, in this and fimilar cafes, “ob alterius culpam tenetur, five “fervi, five liberi.”

 

WE may obferve, that in all the cafes here put, the mafter may be frequently a lofer by the truft repofed in his fervant, but never can be a gainer: he may frequently be anfwerable for his fervant’s mifbehaviour, but never can fhelter himfelf from punifhment by laying the balme on his agent. The reafon of his is ftill uniform and the fame; that the wrong done by the fer-

 

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Noy’s max. c. 44.

Upon a fimilar principle, by the law of the twelve tables at Rome, a perfon by whofe negligence any fire began was bound to pay double to the fufferers; or if he was not able to pay, was to fuffer a corporal punifhment.

Noy’s max. c. 44.

Ff. 9. 3. 1. Inft. 4. 5. 1.

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E e e 2 vant

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BOOK I.

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vant is looked upon in law as the wrong of the mafter himfelf; and it is a ftanding maxim, that no man fhall be allowed to make any advantage of his own wrong.

 

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