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had permitted him to be on a jury ; if he had brought an
action against his lord, or joined with him in suing ; if a lord
had entered into a contract with his serf — and the readiness
with which money rents were accepted in exchange for labour
services made this a frequent occurrence (/) — there was an
implied manumission, and the villain became free (g). The
circumstance that the same labour rent had to be collected
from an increasing number of persons may have often
helped to destroy this institution (h). But a stronger influence
in favour of freedom was a peculiarity of the law upon which
all the books insist. Freedom depended not on the nature of a
man's tenure, but on the quality of his stock or blood. Many
freemen held land on a servile tenure ; the tenement, as
Bracton observes, "neither confers nor detracts from the
status of a person " (i). Besides the serf proper, there was the
liher homo tenens in villenagio. A lord who sought to re-
claim a runaway had to prove that the ancestors of the man
whom he claimed had done service, and it was enough for a
fugitive to break one link in the chain and prove that some

(c) Glanvillc, 6. As to tlie great (;/) Cowcll {Imtitntionrs, p. 13),

inllueuce of this in promoting frue- broadly states tlu; rule thus :—"^«<

<lom in Germany, see Vou Maurcr, i. dcniqm aliquhl simUi illifcccrit quod

382. homilies lum nisi lihcris faccrc solcnt.'"

(f) Hale's Introduction to Domes- (h) Domesday of St. Paul's, xxii.

day of St. Paul's, Ivi., also Mirror, (?) I'.ook ii., c. 8, also i. c. 6. Mr.

c. 27. Pilgrimages afforded frecpient Pollock on Early English Land Law,

opportunities of escape, 3 Keeves, 172. Law Maga^tinc, May, 1882.



INTRODUCTION. 9

remote ancestor had Leon free. Multitudes probably escaped
from thraldom iu consequence of the adherence of tlie
Courts to the principle that time did not run against
freedom, and that villenage depended not on tenure, but on
descent.

In the time of Edward III., serfdom was distinctly
breaking up. A statute passed in the twenty-fifth year of his
reign bears testimony to the difficulty experienced by masters
in recovering their runaway serfs. When a writ de nativo
habendo was sued out by a lord with a view to recover a
fugitive, the latter might sue out a writ de lihertate pru-
handa (k). The case was then transmitted from the County
or Sheriff's Court to the Justices in Eyre or the King's Bench,
and the villain was protected in the meantime from seizure.
In the interest of the masters the law was altered iu 1350 ;
and a power of seizing a fugitive serf was given to a master
even when a writ de lihertate iwohanda had been pur-
chased {I). A succession of pestilences, culminating in
the Great Plague of 1349, which swept over Europe and
destroyed about half the population of England, affected in
an important way both the serfs and the free labourers who
liad much increased. Labour became scarce ; wages rose, first
among reapers and shepherds, and later generally ; vagrancy
increased. There was every temptation for bondmen to break
away from their thraldom, and for masters to tighten their
liold upon their own serfs, and to take fugitives into their
service. To arrest the natural rise of wages and to
prevent the migration of the labouring classes from place to
place — in other words, to restore the substance of villenage,
which, it was 2:»lain, was fast disappearing — the King and his
Council issued in 1349 an ordinance compelling every person
able in body and under the age of sixty " not living by
merchandise, nor exercising any craft, not having of his own
wherewith to live, nor land about whose tillage he might



{k) Pike's History of Crime, i. (?) Fitzherlu-rt, 77.

487.



]0 THE LAW OF MASTEK AND SERVANT.

employ himself, nor serving any other," to serve at the wages
customary six years before the famine. Refusal to enter into
service, or departure before the end of the term agreed upon,
■was to be punished with imprisonment. The ordinance seems,
to judge from the complaints of the Commons, to have been
inoperative ; and Parliament passed in the following year the
first (m) of a series of statutes, by which it sought to regulate
the rate of wages, and to take away the new power of the
labourers. Servants were enjoined to be content with the
liveries and wages whicli they had received in the twentieth
year of the king's reign. They were to be hired by the year
or other usual time, and not by the day. A servant was
not to ffo out of the town where he dwelt in the winter
to serve in another town in the summer, if he could get em-
ployment in the former. Artisans not specially mentioned
in the Act were required to take oaths that they would
practise their crafts as they had been wont to do in the
twentieth year of the king's reign. If servants escaped from
one county to another, it was the duty of the sheriflf to seize
them. Throughout the reign of Edward III. this struggle
continued. Manumissions were cancelled, and persons who
had believed themselves to be free Avere reduced to
bondage (n). Fugitive labourers might be outlawed, and " in
token of falsity " the letter F might be burnt on their fore-
heads (o). Alliances or confederations of workmen were
broken up (p) ; handicraftsmen were enjoined to practise
only one mystery (q) ; and to preserve the distinction of
classes, apparel was regulated by statute (r). There was

(hi) 25 Ed. III., St. 1. See Ureii- (w) Green's History of the English

taiio's account in preface to Mr. Toul- Peoiile, 242.

niin .Smith's English Guilds of the (o) :34 Ed. III., c. 10.

motives actuating Parliament. The (/)) 34 Ed. III., c. 9.

contemporary evidence of Finehden, {(]) :i7 Ed. III., c. U. To promote

J., (40 Ed. III., p. 39) is preferaMe. the execution of the laws, Parliament

"The statute was made for the (;3(; Ed. 111. c. 14), declared that the

advantage of the Lords that they lines imi>osed untler the Statute of

should not he in want of servants." Lahourers sliould not go to the Koyal

For enumeration of the laws regu- E.\che(iucr hut he distributed among

iating wages, see Eden's Histoiy of the Commons,

the Poor, i. 43. (r) 37 Ed. III., c. S-14.



INTRODUCTION. 11

an attempt to reduce agricultural labourers, and artisans
engaged in trades useful to agriculture to a state of villenage.
The villains resisted. Frequent mention is made of isolated
revolts. The story told in the Chronicon Monaaterii
de Meha of the litigation protracted for years between the
abbot and serfs of that monastery, and carried from Court to
Court with varying success and with obstinacy on either side,
is an instance of the perseverance of the villains in contending
against their masters (s). We find in the preamble to the
1 Richard II. c. 6 (1377) evidence that they had powerful aiders
and abettors in the struggle. "The villains," says Mr.
Stubbs, " ignored the statute (of labourers), and the landlords
fell back on their demesne rights over the villains. The old
rolls were searched, the pedigree of the labourer was tested
like the pedigree of a peer, and there was a dread of worse
things to come " (f). The imposing of a poll tax, which was
vexatiously collected, gave occasion to the peasants' revolt of
1:581. The hardships of villenage were not their only
grievances, and in fact the strength of the movement
was in Kent, where the villains had always held a
better position than elsewhere {ii). But the chief demand
of the insurgents was the abolition of bondage. After
about a fortnight of success the outbreak was quelled.
The charters of manumission granted by the king to the
peasants when in London were cancelled, and many of the
leaders were put to death. But in spite of the failure of the
insurrection — in spite of the vow of the king "You were and
are rustics, and shall remain in bondage ; not that of old, but
in one infinitely worse " — the work of enfranchisement went on.
The efforts made to prevent it were numerous but ineffectual.
In 1.388 a strict system of passports was established (a,-).
A servant or labourer who left the hundred, rape, or wapeu-

(fi) iii. 129. Kent, is not (juite correct. Fnrloy's

(/) Constitutional History, ii. 455. Historyof the Weald of Kent ; Elton's

See also Pike's History of Crime, Tenures of Kent, 38 : and Lappen-

i. 330. berg, ii. 321. See, however, Fitz-

(m) The statement, often broadly lierbert, 46.

made, that there were no serfs in {_x) 12 Rich. II. c. 3.



12 THE LAW OF MASTER AND SERVANT.

take in which he dwelt must carry " a letter patent contain-
ing the cause of his going and the time, if he is to re-
turn," on pain of being j>ut in the stocks. The Commons
petitioned in 131)1 that the sons of villains should not be
allowed to frequent the universities ; and from time to time
the Legislature interposed with various measures to prevent
the rural poiDidation from apprenticing their children to trades
in cities and boroughs, and so reducing the number of husband-
men (2/). Labourers were bound to take an oath annually at
the leet to observe the laws relating to wages and service (7 Hen.
IV. c. 17 (1405) ). The free labourers could not bargain as to
their hire ; if they were not bound to take the old rates, they
must accept the wages which the Justices proclaimed at
Easter and Michaelmas (0). Meanwhile villenage liad all but
died out. It is a significant fact that the rebels who were
led by Jack Cade in 1450 did not complain of the exac-
tions of their lords ; in the interval of sixty-nine years
between this popular rising and the earlier peasants' revolt,
the institution had lost its importance. Sir Thomas Smith,
who wrote in the reign of Edward VI,, says that he had
never known a villain in gross ; and villains regardant had
apparently been almost entirely merged in copyholders (a).
Yet villenage existed in the reis^n of Elizabeth. This is shown
by the case of Butler v. Crouch, in Dyer's Reports, {h) which
decided that a villain and his issue not having been claimed
for sixty years could not be seized by the lord, and also by the
fact that in 1574 Elizabeth issued a commission to compound
with her bondmen in Cornwall for their manumission. The
last case of villenage recorded in the law books is an action
of trespass, Pigg v. Calcy, in which a plea of villenage was
set up (c).

(y) 7 lien. IV., c. 17. See as to did away with tlio rate of wages as

exerrqitions enjoyed by London and fixed by statute of Ed. III.

Nonviuli, S Hen. VI., c. 11 ; 11 lien. {(i) Conimonwealtli, b. 2, c. 10.

VII., c. 11 ; 12 Hen. VII., e. 1. See See Scriven on Cojiyhold Tenure, p.

1> Richard II. c. 2, as to villains Hying 46, 3rd ed.,astooiigin oi'eui)yholders.

into cities and suing their lords. {b) 266a.

(z) 13 llich. II., c. 8. This Act (c) Koy's Reports (1618), 27.



INTRODUCTION. 13

Centuries before this, a large class of free artisans, crafts-
men, and labourers had sprung up, especially in towns.
Though nominally free, they did not in fact buy orcontract as
each thought fit. They were for most part members of
guilds or trade companies, by the rules and ordinances of
which they were bound. The principle of the Common Law
was that each man was free to trade as he thought fit (d) ; that
he might bind himself apprentice as he liked ; that he might
practise his trade anywhere, even if he had not been appren-
ticed to it — a principle often invoked against guilds or corpo-
rations which made ordinances creating monopolies (e).
Nevertheless the guilds obtained enormous power. In
London, for example, no one could be a freeman of the city
until he was free of one of those fraternities, and only free-
men might trade within the city or its liberties (/). Origi-
nally not incorporated, but mere voluntary associations, these
guilds received grants of incorporation, and acquired a dis-
tinct political and legal existence. They made bye-laws
regulating the use of tools, the quality of wares, the settle-
ment of disputes, the hours of work and the number of
servants or apprentices whom a master might employ. They
rigorously enforced the rule that no artificers who were not
free might be employed within the city. Parliament occasion-
ally interposed to lighten the burden of monopolies which
were, as the statutes said, " against the common profit of the
people," (g) and the validity of such bye-laws was sometimes
questioned with success in Courts of law. A series of deci-



(d) Case of Tailors of IiKivich attack upon them, vol. iii. ji. 333,

(1615), 11 Eepoi-ts, 55; Bacon's of English "Works.

Abiidg., V. 353. Kyd on Corpora- (/) Pulling on the Customs of

lions, i. 125. The principle was not London, 62, 66, referring to Wan-

adhered to very rigorously ; see 2 Rol. neVs Crt.sc (1739), 1 Str. 675. Cora-

Eep. 392. pare the clause in the charter of

(c) As to these guilds, see Report Hereford, " We have granted that no

of Municipal Commissioners of 1S35 ; one who is not of the guild shall buy

Mr. Black's History of the Leather- or sell in the city or its suburbs

sellers' Company; Brand's History without the consent of the citizens."

of Newcastle. Contrast Mr. Froudc's Pike's History of Crime, i. 184,

roseate account of the guilds (History 378.

of Eug., vol. i. 48), with AVicklif s (;y) 15 Hen. YL, c. 5, and 19 Hen.



14 THE LAW OF MASTER AND SERVANT.

sions, extending from the time of Elizabeth to the end of
last century, bears testimony to the efforts made to upset bye-
laws excluding from the practice of their trade persons who
had not been apprenticed in a certain town or were not free
of a particular cit}^ (It). The validity of such ordinances, when
founded on prescription or custom, was recognised (i). This con-
dition could generally be shown to exist, and hence in most
towns " foreigners," that is to say all Englishmen not belong-
ing to particular towns, were prevented practising their art or
trade. This state of things was not entirely destroyed until
the Municipal Corporation Act of 183o was passed (/i).

Here may be mentioned one of the momentous events in
the history of legislation with respect to labourers — the
passing of the 5 Eliz., c. 4 ; a statute which repealed all the
former laws on the subject, and which for some centuries
formed the principal part of the English law of master and
servant. The circumstances in which the Act was passed
are thus described by the Royal Commissioners who
reported upon the working of the Masters and Servants' Act
of 18G7 (0-

" In the meantime a great social evil had arisen, with wliich it was
necessary that the Legislatiu'e should <,'rap])h', and which it sought
to overcome by imposing rigorous restraints on tlie freechan of labour.
The great social revolution caused by the suppression of the monasteries,



VII c 7 ; 3 lli'n. YII. c. 9 ; 12Hen. vol. i. 131-156. Clfi/ of London

YIl. c. G, and 19 Hon. VII. c. 7. 6'((Ar; (1609), 8 licp. 1211). ; Wardai,

See Hallaiu's Constitutional History, <lc., of JFeatrrs v. Broicn (1609),

vol. i. 3.or> and 486, as to the debates Cro. YAv/.., 803 ; Ilex v. Harrison

on monopolies in tlie reigns of Eliza- (1762), 3 Www 1323, and 1 VA. W.

betli and James 1. 372; Woollnj \. Idlr (1766), 4 Bur.

{h) Uavcnant v. Jlurdis (1599), 1952 ; llrskith v. BraiUock (1770),

]^Ioorc, 576 ; City of London Case 3 15ur. 1846 ; Maiior of York v.

(1609), 8 Kep. 121 b. ; Tailor>< of Wclhank (1821), 4 15. ^: Aid. 438 ;

Ijjsvick (1615), 11 Hep. 53; (/raves v. CV;% (1S38), 9 A. & E.

Jlo'kcUi v. Braddovk (1766), 3 P.nr. 369.

1846. See also, Kyd on Corporations, (/.) 5 & 6 Will. lY. e. 76, s. 14.

i. 131. The.se nionoi)olies seem to (/) Second and liiud IJejiort, p. 13.

liavc been relaxed vlien fairs wen; For some excellent remarks on tho

"oin" on. dill'erence between the two Stiitutes

(tT Almost all the authorities are of Labourers, see I'die's History of

collected in Kyd on Corporations, Crime, ii. 78.



INTRODUCTION. 15

and by the conseciuent wiUidr;nval of tlie support which those institu-
tions aflbrded to the indi,L;ent, and too often to the idle, had led to the
dispersion of a multitude of people over the face of the country for the
])urpose of begging, under the pretence of which majiy persons of
strength and capacity to labour, but preferring a life of vagrancy and
idleness to earning their livelihood l)y industry, too often superadded
depredation and robbery. Under these circumstances Parliament set to
Avork to suppress vagrancy by comjielling every one wandering with(jut
employment to return to their furmer place of abode, to be there relieved
if unable to earn their living by labour, but if capable of labour there to
obtain employment. Above all, the strong and ableljodied vagrant, known
in the language of the time as the 'sturdy' or ' valiant beggar,' was to be
dealt Avith with a strong hand and restrained by merciless severity. The
primary object of this legislation being to suppress vagrancy, it was
thought that the best mode of effecting the purpose was to localise
poverty with reference to relief, and labour with reference to employ-
ment, in the parish or district to which each individual belonged, or, as
it was called, the place of his settlement, which was taken to l)e the
place where he was born, or had last resided for a certain period. The
misery and want occasioned by the sudden withdiawal of the assistance
to the poor, previously supplied by the bounty of the monastic institu-
tions, could not but be sensibly felt, and a sense of a duty of pre-
venting the needy, aged, and infirm, from perishing from want appears
to have been awakened. As yet, indeed, the idea of taxing the wealthier
portion of the community for the maintenance of the poor — afterwards
embodied in the statute of the 43rd of Elizabeth — had not occurred to the
Legislature ; but Statutes were passed calling upon those in authority tu
endeavour to induce persons having sufficient means to contribute to a
common fund, for the relief of the impotent, and the employment of
the ablebodied. To the latter, if he refused to accept employment and
to labour honestly, no mercy was to be shewn ; the scourge and j^rison
were the alternative of labour. And, while employment was thus to be
found at their place of their settlement, for those who had no other means
of living, all wandering in search of employment was rigorouslv inter-
dicted and punishable as vagrancy. Such, under a succession of harsli
and cruel Statutes, passed in the reigns of Henry VIII., Edward VI., and
Queen Elizabeth, continued to be the law to the commencement of the
last century."



The statute of Elizabeth admitted the imperfections and
failure of previous Acts controlling wages, and stated that
they could not be carried into effect without the great
grief and burden of the poor labourers and hired men.



16 THE LAW OF MASTER AND SERVANT.

Nevertheless, the Legislature proceeded to regulate the rela-
tions of master and servant in their minutest details.

The statute mentions the various sorts of artificers then
known, and provides that every person brought up in any
of the said arts, crafts, or sciences, or who has exercised any
of them for three years, unless he has an estate of the clear
yearly value of forty shillings, or has goods of his own to the
clear yearly value of ten pounds, or is retained with any
person in husbandry, or in any art or science, or lawfully
retained in the household, or in any office, with any nobleman,
gentleman, and others, or unless he has a farm or holding in
tillage whereupon he may employ his labour, shall, if re-
quired by any person using the art or mystery wherein he
has been exercised, be retained, and shall not refuse to serve
under the penalty of imprisonment. Section 5 enacts that
" no person which shall retain any servant shall put aAvay his
or her servant, and that no person retained according to this
statute shall depart from his master, mistress, or dame before
the end of his or her term, upon the pain hereafter mentioned,
unless it be for some reasonable and sufficient cause or matter,
to be allowed before two justices of peace, or one at the least
within the said county, or before the mayor or other chief
officer of the city, borough or town corporate wherein the
said master, mistress, or dame inbabitcth, to whom any of
the parties grieved shall complain ; which said justices or
justice, mayor, or chief officer shall have and take upon them
or him the hearing and ordering of the matter betwixt the
said master or mistress, or dame and servant, according to the
equity of the cause." Section G provides for one quarter's
warning or notice. Section 7 compels all persons l)etween the
ages of twelve and sixty, except certain classes, to serve in
husbandry. Section 8 enacts that " if any person after he hath
retained any servant, shall put away the same servant before
tlie end of his term, unless it be for some reasonable and
sufficient cause to be allowed as is aforesaid ; or if any such
master, mistress, or dame shall put away any such servant at
the end of his term, without one quarter's warning given



INTKODUCTIOX. 17

before the said end, as is above remembered, that then every
such master, mistress, or dame so offending," &c., shall forfeit
the sum of 40.s. A servant who departed from his master
before the end of his term might be committed to prison (sec-
tion 9). No servant within the statute might go from one
city, town, or parish to another, unless he first got a testi-
monial or licence to depart (section 10). The hours of work
were fixed (section 12) ; and the justices were empowered to
assess at the Easter Sessions the rates of wages (section 15).
To give or to take wages in excess of those proclaimed was
an offence punishable by imprisonment. Even more important
was the section which declared that " it shall not be lawful
to any person or persons, other than such as now do lawfully
use or exercise any art, mystery, or manual occupation, to set
up, occupy, use or exercise any craft, mystery or occupation
now used or occupied within the realm of England or Wales,
except he shall have been brought up therein seven years at
the least as an apprentice, in manner and form abovesaid."
To refuse to be an apprentice and to serve in husbandry
was an offence for which the offender might be committed
to prison (section 35). To the justices of the peace and
mayors was assigned the duty of hearing and determining
offences against the statute.

One indirect effect of this legislation was to prevent
labourers moving freely to and fro in search of employment.
This had also been the purpose of previous laws as far back
as the 23rd of Edward III. The 12 Kichard II. c. 7 (1388),
laid the foundation of a settlement law (m), for it ordained
that beggars should abide in the cities and towns where they
were dwelling at the time of the proclamation of the statute ;
if the people could not maintain them, they were to go to the
towns where they were born, within forty days after the pro-
clamation, and there abide during their lives. Other statutes
with a similar object, but of still greater severity, were

{m) The law of domicile before Removal (Parliamentary Papers,
llns, as is shown hy Jlr. Coode in his I60I), p. 7, restricted locomotion.
Report on Law of Settlement and



18 ■ THE LAW (»F MASTKU AND SERVANT.

enacted during the reigns of Henry A''II. and Henry VIII. (n).
The most remarkable of these was a statute passed in 1547.
It empowered the justices to cause a runaway servant to be
branded Avith a hot iron, and to be adjudged a " slave."
This extraordinary statute — apparently a deliberate attempt
to reintroduce slavery — was repealed in 1549. The 39
Elizabeth, c. 17, and 43 Elizabeth, c. 2, made provision
for the removal of vagrants to the place of their birth or
last legal settlement. Then came various acts of the time
of Charles IL, William and Mary, and Anne (o). Thus
was created a settlement system which lasted with few modi-
fications from IGOl to 1834, and which helped to tie the
labouring poor to their birth-places, no matter how little
their services might be there in demand. To clench this
policy, laws were passed to prevent English workmen going
abroad ; and as late as 17()(! they were put in force (see State
Papers, Domestic Series, 17G6 — 17(>J), xxxvi.).

The Statute of Labourers of Elizabeth gave justices power
to " limit, rate, and appoint" the wages of artificers. The
justices claimed jurisdiction to order payment of wages (jy) ;
and the provisions of the statute were extended by the Legis-



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