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lature (q). By the beginning of last century justices had
ceased to assess wages regularly. About this time they re-
ceived a new kind of power from Parliament. From the reign
of George II. to that of George IV. a series of statutes was
passed with the object of giving the justices authority to
settle disputes and difficulties between masters and work-
men. The first of these was the 20 Geo. II. c. IJ).
It gave summary jurisdiction to the justices in disputes
between masters and servants. " All complaints, ditierences,

(*() Iicevcs' Hi.ston- of English toiii'iiiciit of the yearly value of ten

Law, iii. 6(i2. " IhhuhIs." Sue also tlie .'ith of Geo. I.,

(o) Of the chief of these Acts (14 c. 27, ami 23 Geo. II., c. 13, in-

(Jha.s. II., c. 12, l(i()2), Mr. Coode tciulcd to iirevent enticing ahroad of

.says, that it " destroyed tlie right artificers.

of locomotion and free choice of (]>) The King v. Popr (1699) ; r>

doniieil(! of tlie entire Englisii j)eoplc, Jlod. 419 ; iiV.r v. Govch [llOl) ; 2,

excepting only the comparatively Salk. 441.
small number who could hire a {q) 2 James I., c. 6.



JNTI{()I)U(TK»N'. 19

unJ disputes," says scctiuu I, "which shall happen or arise
between masters or mistresses, and servants in husbanchy, wlio
sliall be hired for one year or longer, or which shall hapj)en
or arise between masters or mistresses, and artificers, haudi-
craftsnien, miners, colliers, keelmen, pitmen, glassmen, potters
and other labourers employed for any certain time, or in any
other manner, shall be heard and determined l)y one or more
justice or justices of the peace of the county, riding, city,
liberty, town corporate or place, where such master or mistress
shall inhabit." The justices might make such order for pay-
ment of so much wages as seemed just and reasonable, provided
that the sum did not exceed ten pounds in the case of
any servant, and five pounds in case of an artificer or
labourer. Section 2 states " that it shall and may be law-
ful for such justice or justices upon application or complaint
made upon oath, by any master, mistress, or employer,"
" touching or concerning any misdemeanour, miscarriage, or
ill behaviour in such his or her service or employment, to hear,
examine, and determine the same ; and to punish the offender
by commitment to the House of Correction, there to remain
and be corrected, and hold to hard labour for a reasonable
time, not exceeding one calendar month, or otherwise by
abating some part of his or her wages, or by discharging such
servant, &c." Provision was also made for hearing the ser-
vant's application or complaint against his master, "touching
or concerning any misusage, refusal of necessary provision,
cruelty, or other ill treatment," and the justices were em-
powered to discharge the servant if matter of complaint were
proved. The Court lield that " there to be corrected " meant
corrected by whipping (r). This statute was extended
by .*U Geo. II. c. 11, to servants in husbandry hired for
less than a year, and by the 4 Geo. IV. c. 34 and
10 Geo. IV. c. 52, to persons engaged in manufactures.
Section .S of the former enacted that if any servant in
husbandry, Ovc, "shall contract with any person to serve

(/•) Jicvy. J{os-'C!son{lSn), UEixst, 605.



20 THE LAW OF MASTER AND SERVANT.

him, &c., and shall not enter into or commence his
service according to his or her contract (such contract being
in writing, and signed by the contracting parties), or having
entered into such service shall absent himself from his or her
service before the term of his or her contract shall be com-
pleted, or neglect to fulfil the same, or be guilty of any other
misconduct or misdemeanour in the execution thereof," any
nistice might issue his warrant for the apprehension of the
servant. Such a servant might be sent to the House of Cor-
rection for three months ; his wages might be abated ; or he
might be discharged. In Turner's Case (s), the Court of
Queen's Bench decided that though the words " lawful ex-
cuse " were not in the statute, it was to be read as if they
were, and that the offence contemplated by it was absenting
from service "without lawful excuse." A servant might be
punished under this statute more than once if he persisted
in absenting himself. In Ex iDarte Baker (t), and Unwin v.
Clarke {ii) the Court of Queen's Bench held that, as the con-
tract was still in force, he might be punished for a fresh
breach of it, and in the latter case it was also decided that
io?iayi(?e belief by the servant that he could not be com-
pelled to return was not "a lawful excuse."

A new departure in legislation with respect to differences
between workmen and employers took place in 18G7. A Select
Committee of the House of Commons having reported the
year before that the law relating to masters and servants
was objectionable in several respects, the 80 & 31 Vict.,
c. 141, was passed. The magistrate by whom disputes
between employers and employed were heard might order
an abatement of the whole or part of the wages, direct
that the contract be fulfilled, annul the contract, assess
the amount of compensation, or impose a fine in case of
simple breaches of contract. Imprisonment might be
inflicted as a consequence of disobedience to the orders of

(,s) (1816), 9 Q. B. 80. (") (ISOG), L. E., 1 Q. B 417 ;

(t) (1857), 7 E. & B. 697 ; 2G L. J. sec, liowevcr, Kx pnrtr liakn- (ISf)?),

M. C, 193. 26 L. J. M. C. 153, 2 H. & N. 219 ;



INTRODUCTION. 21

the Court, In cases, liowever, of breaches of " an aggravated
character," tl^e offender might at once be committed to prison
with or without hard labour. This statute has been repealed
by the Employers' and Workmen Act of 1875 (38 & .30 Vict.,
c. 90), the text of which will be found in the second part of
this volume. For the first time the Legislature in this Act
ceased to regard a breach of contract of hiring and service as
an offence punishable by imprisonment.

This sketch ought not to close without further refer-
ence to the 5 Ehz., c. 4, the corner stone of the labour
laws of England. In last century that Act ceased to be
rigorously applied. It was, however, still unrepealed. Any
single man between twelve and sixty, any married man under
thirty, any woman between twelve and forty, not having any
visible livelihood, might be compelled to go out to service
" for the promotion of honest industry." The regulations of
the 5 Elizabeth Avith respect to service in husbandry, the
necessity of a labourer procuring a testimonial before
quitting his parish, the hours of work, and the powers of
justices to settle the rates of wages were still part of the law
of the land. But the justices ceased to settle wages ; and
they were not compelled to do so. Both masters and servants
disregarded the law as to testimonials (see complaints as to
this in "Laws Concerning Masters and Servants," published
in 1767, p. 238). The Courts, too, had shown no favour to-
wards the Act. They had early confined its application, so
far as regards apprenticeship to trades, which had existed at
the passing of the Act, and which required skill for their
exercise (x). Economists condemned its operation ; judges
from the bench questioned its policy (y) ; and the Legislature

.andiJ. V. Youlr (ISGl), 30 L. J. M. C. Camp. 397 : see also 1 Bur. 2, and

234 ; 6 H. .V: N. 753. 4 Bur. 2450 ; and Adam Smith's

(.'•) (1613) 2 Bui. 18G. The dis- Wealth of Nations, Book i. c. x.
tinctions were curious. Thus bar- (y) Lord :\Ianstield, in l!>of)tard v.

bers were ^yithin the statute, Chitty Chase {17 o6),l Bur. 6; Lord Kenyon

on Apprentices, 117 ; Viner's Abridg., in Smith v. Company of Armourers,

Trade A. Coachmakers, on the other (1792), 1 Peake, 199; Dolben, J., in

hand, were not, because coaches were Hobbs v. Young (1690), 3 Mod. 317.
not introduced until about 1580, 2



2Z THE LAW OF MASTER AM) SEKVANT.

introduced a long series of exceptions in favour of many
classes (c). The justices ceased to settle the rate of wages ;
and Avhen journeymen weavers, with a view to keep up their
remuneration, sought to compel the justices to fix a rate of
wages, the Court of King's Bench declined to interfere by
mandamus {a). The establishment of factories led to its
disuse, and made it highly inconvenient in the woollen trade,
which was excluded in 1809 from the operation of the
statute (6). In 1814 the provisions of the Act of Elizabeth
relative to apprenticeships Avere repealed (c). Thus ended the
old industrial system of England.

In the second part of this volume will be found the chief
statutes which have been passed with reference to master
and servant. They are numerous and important. Parlia-
ment has passed a series of Acts known as the Factory Acts,
beginning with the 42 Geo. III., c. 73, in 1802, and ending
with the Factory and Workshop Act of 1878, with a view to
improve the lot of women and children labouring in factories.
It has consolidated in the Merchant Shipping Act of 1854,
and other measures tlie law relative to seamen. The evils
produced by the practice of jDaying workmen in goods instead
of money early attracted the attention of the Legislature, and
led to the passing of various Acts, which .were replaced by
the measure now in force {<l). The combination laws have
been abolished. Trades-imions are no longer illegal associa-
tions in the sense in which they once were. The laws passed
in the reigns of George I, and II. with a view to hinder
artificers going abroad have long ceased to be put in opera-
tion, and they now do not exist (c). Breaches of contracts of
service are treated in almost all respects as breaches of other
contracts. The settlement laws are amended. The work-



{z) The first of tlipse was \T> Chas. and 1 James I. o. 0, iu regard to the

II., c. If), and one of the last 50 Geo. assessment and rating of wages by tlio

III., c. 41, s. 22. justiecs.

(a) Era- v. Vumbrrhind (1S13), 1 ' («:) ^A Ceo. III. c. »6.

M. k S. 100. (d) 1 ic 2 Will. IV. c. 37.

(b) 49 Geo. III. c, 109. rr.i Ceo. (c) 5 Geo. IV. e. 'J7.
III. c. 40, repealed the .0 Eliz. c. 4,



INTRODUCTION. 23

man of these days is tliu.s iinmoas\iral)ly removed, not only
from the villain as described by Bracton, but from the free
workman of Tudor times, who was bound by the rules of liis
guild, who must often take what wages others had deter-
mined to be his duo, and who could not move freely about.



APPENDIX A.

Traces op Villenage.

It is often contended that several peculiarities of the law of master
and servant may be traced to tlie time wlien the villain was the pruperty
of his lord (a). The following are some of the principles said to be
borrowed from villena^'e :

(1.) There is authority, as will be seen, for the pro])osilion tliat a
master may justify an assault committed in defence of his servant.
This may liave oriij,inated in the notion that, toniiote a phrase in one of
the Year Books, le servant est en manner son chattel (b), or, to (piote the
language of Crook, J., in Seaman v. Cuppledick (c), that " The lord may
jusiifie in defence of his villain for he is his inheritance." But the
.servant may also justify an assault in defence of his master {d) ; and
these rights may be deduced from an obligation in the master and ser-
vant as members of the same household to render each other protection.
In early decisions will be found many expressions which show that the
relations of master and servant, fatlier and children, husband and wife,
were regarded as in many resjiects the same {e).

(2.) Tlie liability of a master for the acts of his servant in the course
of emjiloyment, which is treated of in Chapter XXVllL, is sometimes

(rt) Mr. Willes's arguTiient in Z»7;i.- jury) a master interposing when his

iey v. Gyc (1853), 2 E. & B. 216 ; servant is assailed is not justifiable

Holland's .lurisprndcnce, 194. under the cireuuistances of the case,

{b) 19 Henrj'-VI. I'd. 31, 6, pi. 66. as well as a servant interpo.sing for

((■) (1614), Owen, 150. liis nia.ster : it rests on tlie relation."

(f/) There is no doubt as to the right Sec also Dalton's .Justice, 121 ; Httw-

of the servant ; and it has been held kins' 1'. of C. ii. 60, and Pulton,

that a servant may justify an assault De Pace Regis, 13. There is authority

in order to obtain repossession of for holding that a master may aid liis

his master's property. Blade v. Higgx servant in bringing an action without

<1861), 10 C. P)., N. S. 713. On the being liable for maintenance. Russell

other hand, the right of the master to on Crimes, vol. i. 354 ; Blackstoue,

ju.stify an assault in defence of his i. 428.

servant has been questioned, Lcciccrd (e) See the curiotis i)assage in

V. BusUm (1696), 1 Salk. 407, and Hale's Pleas of the Crown, i. 483,

1 1^(1. Ray. 62, on the uusatislaetory where it is said, "The like law had

ground that he could have an action been for a master killing, in the

for loss of service. But this was necessary defence of his servant, the

not followed in Tkkcll v. Read husband in the defence of the wife,

(1773), Loft. 215, where Lord Mans- the wife of the hu.sband, the child of

field said. " 1 cannot tell them (the the parent, the parent of the child



24 THE LAW OF MASTER AND SERVANT.

ascribed to the theory, once true of villains, that the serA-ant was the pro-
perty of the master, wlio oii.L;ht to answer for tlieacts of a person Avho had
no rights apart from his masti-r. Unu nbjection to tho accuracy of this view
is, that the ]irinciple of liability, as now understoi.d, was not clearly
laid down until long after villenage was extinct, and that for some time
after it was destroyed, a master's responsil)ility was often described as
more limited than it is now ailmitted to be. "While villenage disap-
peared about the beginning of the seventeenth century, no clear traces
of the modern doctrine of the masters lialiilitv exist before the time of
Holt, C.J. (/).

(3.) To the influence of villenage is sometimes ascribed the principle
of the Common Law, that possession by servants of their masters' goods
is regarded as possession of the master himself. Hereafter (j/) it will
be necessary to return to this principle, which is productive of import-
ant conse([uences, civil and criminal. In the oldest cases on the sul)ject
there is no reference to villenage (/t). The distinction between pro-
pertj", possession, and mere ddcntio, exists in the nature of things, and
must be more or less clearly recognised in all systems of jurisprudence.
Ko doubt the English lawyers foimd in the Civil Law the distinction.
The development of its conse(iuences was dilferent in the two systems,
because the Roman lawyers were chiefly concerned with the cases in
which possession existed without property according to the Jus Quiritium,
while the English Common Law was mainly interested in the cases in
which persons had bare detcntio, and not possession, and could be indicted
for larceny in the case of their converting chattels (i).

(4.) It has also been suggested that the action for enticing or harbour-
ing a servant originated in the same way. According to the view put
forward by Coleridge, J., in Lumleij v. Gye {1-), no action for enticing
away or procuring a servant to depart lay before the Statute of Labourers,
the 2;3rd Edward III. The objections to this view are neither few nor
unimportant, and most of them are stated Ijelow (/).

(5.) At Common Law a master has the right to correct or chastise

. . . for they arc in a mutual relation more v. Grccnhanlc (174.')), "Willes,

to each other." He classes the rela- 577. 2. The action for enticing away

tionship of master and servant has survived the repeal of the Statute

amongst "relationships ojcononjical." of Labourers. C. As is jiointed out

Hale's Analysis, p. '66. in Smith's Master and Servant, re-

(/) See cliapter xxviii. Icning to Lut. ii. 1548, the

(;/) Chapter iii. ciicuinstaiice tliat the writ for

(h) See, however, Bracton, f. 1C5. enticing away lecited the Statute did

(i) Chajjter iii. not necessarily sliow that the action

\k) (1853), 2 E. & B. 216 ; 1 W. did not lie at (.'oniniou Law. 4.

K. 432 ; Bov-cn v. Hull (1881), L. 1{. Pulton, p. 3, citing a case in 22 Lib.

(; Q. B. D. 333 ; 29 W. II. Ass. Kd. III., p. 70, decided three

(/) 1. It is not certain tliat at years bel'ore tiie Staiute, shows that

Conmion Law an action for Iho an artion lay against a person who by

wrongful i>rocuring of the violaiiou menaces drove away a servant.

of other contracts than hi.ing and rnltun also states the law in the

service would not lie. See Cronipuon, same manner willi respect to the

J., Luiahy v. (hjc, 2 E. k. \). 230, enticing away of servants and <c«rtvite

and especially the remarks of Bntt, and tlie references which he (piotes

Ii. J., in Bowcn v. llall (1881), L. li. from the Year Books, 20 Hen. VI 1.,

6 Q. B. D. 333; Um:n v. llvl'un ji. 5, and 9 Hen. Vli., ji. 7, siip-

(1835), 2 Cr. M. & K. 707; Wins- port his view. 5. Siuh an action lay



INTRODUCTION. 25

moderately (//() liis apprentice, and some of the old authorities state that
the same right extends to the; correction of servants. The question is
discusseil in chapter i. ; and, if the right ever existed, it may have originated
in villenage.

(0.) It is pointed out in Hargrave's Notes to Coke on Littleton (n),
that the maxim, qaicquid acquiritur servo acqxiirilur domino, " holds in
some degree in respect to ajiprentices and servants, particularly the
former, though with a great difference in point of extent and applica-
tion." See as to this Morrison v. Thomjiaou (o), and also chapter xix. So
far as the cases recognise any right in a master to wages or prize money
earned by his servant while in the employment of another, it is not
readily deducible from the nature of the contract of hiring and service.
Most of the decisions may be supported on the ground that a servant is
an agent, and stands in a fiduciary capacity, and is bound to account for
all earnings made in the course of his employment. But other cases, if
rightly decided, can be supported only on the supposition that a master
has a species of property in liis servant (jj).

according to the law of Scotland, (?i) 117a.

though the Statute of Labourers was (o) (1874), L. K. 9 Q. B. 480 ; 43

never in force there, Eraser's Master L. J. Q. B. 215 ; 30 L. T. 869 ; 22

and Servant, Campbell's ed., p. 308. W. R. 859.

(m) p. 32. (2)} Blackstone, i. 429.



PART I.



COMMON LAW.



CHAPTER I.

MASTER AND SERVANT AND MASTER AND SLAVE.

The relation of Master and Slave cannot legally be
created in England ; and no rights arising ont of that
relation can be here enforced (a).

The exact legal position of a slave in England was un-
certain until the King's Bench, in 1772, in Lord Mansfield's
time, decided SommerseWs Case (b). Cliief Justice Holt (c)
and Lord Chancellor Northington (d) had given expression
to dicta hostile to the rights of the slave-owner ; but there
were decisions of a contrary character from 1677 (e) to the
time of Lord Hardwicke's decision in Peariie v. Lisle (/), that
a slave was as much property as any chattel. In 1729,
Sir Philip York, the Attorney-General, and Mr. Talbot, the
Solicitor General, gave it as their opinion that a slave, by
coming from the West Indies to Great Britain or Ireland did
not become free ; and in consequence of this opinion slaves
were publicly sold in London, Bristol, and Liverpool (g). The
question in SommerseWs Case arose on the return to a writ of

{a) See note {k). (d) Stanley v. Ilarvaj (1762), 2
{Jj) (1771-1772), 20 Howell's S. T. Eden, 12.x " As soon as a man .sets
1; see also Knight v. Wcddcrhiirn, foot on EuglLsh ground he is free;
Dictionary of Decisions (hiring for a negro may maintain an action
life without wages held to be slavery). against his master for ill-usage, and
The English law courts were long may have a habeas corpus if re-
reluctant to decide the question, strained of his liberty. "
Wynne's Law Tracts (a.d. 1765), (c) BiMs v. Penny (1677), 2 Lev.
27. 201 ; Gelhj v. Ckvcs (1694), Ld. Eay-

(c) Smithv. Browne (1705), 2 Salk. mond, 147.

666, but see Forbes v. Cochrane (/) (1749), 1 Ambler, 75.

(1824), 2 B. & C. 448. (g) There were, it is said, 14,000



30 THE LAW OF MASTER AND SERVANT.

habeas coi'pus, wliich stated tliat Sommersett was the negro
slave of Charles Steuart, who had delivered him into the
custody of Knowles, the captain of a ship lying in the
Thames, in order to cany him to Jamaica, and there sell him
as a slave. The Court decided that this was not a sufficient
return. Slavery, said Lord Mansfield, "being an odious
institution, could be introduced only by positive law. What-
ever inconveniences, therefore, may follow from the decision,
I cannot say this case is allowed or approved by the law
of England, and therefore the black must be discharged."
Speaking of this decision in Rex v. 'Thames Ditton (h), Lord
Mansfield stated that the determinations went no further
than that the master (Knowlcs) could not compel the slave
to quit England. Lord Stowell in the Slave Grace Case
still further qualified the effect of the Sommersett Case (i).
A slave had come to England with her master. Of her
own accord she returned to the Island of Antigua, where
slavery then existed. Lord Stowell decided that she
had not become free by her temporary residence here,
and that the owner's property in his slave had not been de-
stroyed. '' There is nothing that makes a liberation from
slavery ; he goes back to a place where slavery awaits him,
and where experience has taught him slavery is not to be
avoided" (h).



slaves in Loiulon wlicn Somvicrse/f's the slave, so loii<,f as the slave is in

Case was (lecidod, Ijuv^p, Com. i. 740. tlic country by tlie law of which the

(/() (US')), 4 Dong. :]0T. owner's right is nphclcl, or in thf

(/) (18*27), - Hiig. Ad. I'l. jiossession of the owner in a sliip of a

{k) The cliiel' snhse([uent decisions nation in which slavery is lawful;

are : Modrazo v. JFil/e.s (1820), 3 1>. and that if the jirojierty in the slave

& Aid. 354 ; BHroii v. JJcmudu is interfered witii hy a 15riti.sh sub-

(1848), 2 Ex. 167 ; Scmlon v. lIUilijc ject, to tlie injury of th(! owner, an

(I860), 8 (A B., N. S. 861; 29 L. .(. action for damages will lie to the

('. ]'. . 348. The effect of tlicse extent of the loss sustained." The

decisions is thus stated by Coekljurii. liictuiu of I'.est, C.J., in Forbes \.

<'..!., in his memorandum on tlie Cuflurnir (1824), 2 15. k C. 468,

subject, to be found in the rcjiort of that " no action founded upon a.

tlie lloyal Commission on Fugitive right aiising out of slavery," could

Maves, ]>. xxvii. : " 'i'he.se ca.scs be maintained in Kiiglisii courts,

establish beyoml controversy that the must therefore be takoi with reser-

tribunals of this country recog}iisi' vation. The iirojiositiou at the

the right of projierty of the owner of head of this chapter must be read



MASTER AND SERVANT AND MASTEI! AND SLAVH.



31



Slavery being illegal in this coimtrv, it lias often been
contended that contracts of hiring and service for liR- are in
substance slavery, and as such sliould Ije regarded as null
and void. In some countries the inaxim iierno potest locare
02)11^ In pevpctiiu'in is strictly applied (/) ; but licre a contract
to serve for life is valid, provided it be not open to the ob-
jection of fraud or duress, and provided there be considera-
tion for the promise. This was first decided in 1887 by the
Court of Exchequer in Wallis v. Day (m). The plaintiff,
sold his business as carrier to the defendants, and cove-
nanted that he would liencefortli during his life serve them
as an assistant in the trade of carrier. The plaintiff's cove-
nant to serve was held good.

A contract of hiring must not bo made a cover for the
reality of slavery. Thus English law will not recognise in a
master aright to imprison his servant for disobedience to orders
or any other offence, even if a servant agreed to such terms of
service {n). The Common Law wonld not even recognise the



in the light of the above de-
cisions.

{I) On nc pcul nigagcr scs services
qu' a temps on pour cnlreprise ilttcr-
ininic, Art. 1780 of Code Civil.
See JI. Laurent's Principcs clc Droit,
Civil Fran(;ais, 25, 542, Bi meme Ic
tcmps stipidi etait tellcment lonr/ qu'
il pM iquivaloir d une alienation de he
liberie, Men qu'il ne compril 2>(is Ic
vie cntierc clu locatcur, lcsjuges2>our-
raicnt roinpre Uit, tcl cii'jagciiicnf.



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