Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Master and Servant
HAVING thus commented on the rights and duties of persons, as standing in the public relations of magistrates and people; the method I have marked out now leads me to consider their rights and duties in private economical relations.
THE three great relations in private life are, 1. That of master and servant; which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labor will not be sufficient to answer the cares incumbent upon him. 2. That of husband and wife; which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. 3. That of parent and child, which is consequential to that of marriage, being its principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated. But, since the parents, on whom this care is primarily incumbent, may be snatched away by death or otherwise, 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 supply the deficiency, whenever it happens, of the natural. Of all these relations in their order.
IN discussing the relation of master and servant, I shall, first, consider the several sorts of servants, and how this relation is created and destroyed: secondly, the effects of this relation with regard to the parties themselves: and, lastly, its effect with regard to other persons.
1. As to the several sorts of servants: I have formerly observed1 that pure and proper slavery does not, nay cannot, subsist in England; such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where. The three origins of the right of slavery assigned by Justinian,2 are all of them built upon false foundation. As, first, slavery is held to arise “jure gentium” from a state of captivity in war; whence slaves are called mancipia, quasi manu capti. The conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is an untrue position, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defense; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. Since therefore the right of making slaves by captivity, depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said that slavery may begin “jure civili“; when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very just: but when applied to strict slavery, in the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a quid pro quo, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which (in absolute
slavery) are held to be in the master’s disposal? His property also, the very price he seems to receive, devolves ipso facto to his master, the instant he becomes his
slave. In this case therefore the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded? lastly, we are told, that besides these two ways by which slaves “siunt,” or are acquired, they may also be hereditary: “servi nascuntur;” the children of acquired slaves are, jure naturae, by a negative king of birthright, slaves also. But this being built on the two former rights must fall together with them. If neither captivity, nor the sale of oneself, can by the law of nature and reason, reduce the parent to slavery, much less can it reduce the offspring.
UPON these principles the law of England abhors, and will not endure the existence of, slavery within this nation: so that when an attempt was made to introduce it, by statute 1 Edw. VI. c. 3. which ordained, that all idle vagabonds should be made slaves, and fed upon bread, water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards.3 And now it is laid down,4 that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, his liberty, and his property., Yet, with regard to any right which the master may have acquired, by contract or the like, to the perpetual service of John or Thomas, this will remain exactly in the same state as before: for this is no more than the same state of subjection for life, which every apprentice submits so for the space of seven years, or sometimes for a longer term. Hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse. The law of England acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a Jew, a Turk, or a heathen, as well as to those who profess the true religion of Christ; and it will not dissolve a civil contract, either express or implied, between master and servant, on account of the alteration of faith in either of the contracting parties: but the slave is entitled to the same liberty in England before, as after, baptism; and, whatever service the heathen negro owed to his English master, the same is he bound to render when a Christian.
1. THE first sort of servants therefore, acknowledged by the laws of England, are menial servants; so called from being intra moenia, or domestics. The contract between them and their masters arises upon the hiring. If the hiring be general without any particular time limited, the law construes it to be a hiring for a year;5 upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons; as well when there is work to be done, as when there is not:6 but the contract may be made for any larger or smaller term. All single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service, for the promotion of honest industry: and no master can put away his servant, or servant leave his master, either before or at the end of his term, without a quarter’s warning; unless upon reasonable cause to be allowed by a justice of the peace:7 but they may part by consent, or make a special bargain.
2. ANOTHER species of servants are called apprentices (from apprendre, to learn) and are usually bound for a term of years, by deed indented or indentures, to serve their masters, and be maintained and instructed by them: for which purpose our statute law8 has made minors capable of binding themselves. This is usually done to persons of trade, in order to learn their art and mystery; and sometimes very large sums are given with them, as a premium for such their instruction: but it may be done to husbandmen, nay to gentlemen, and others. And9 children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty four years of age, to such persons as are thought fitting; who are also compellable to take them: and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to such compulsion.10 Apprentices to trades may be discharged on reasonable cause, either at request of themselves or masters, at the quarter sessions, or by one justice, with appeal to the sessions:11 who may, by the equity of the stature, if they think it reasonable, direct restitution of a ratable share of the money given with the apprentice.12 And parish apprentices may be discharged in the same manner, by two justices.13
3. A THIRD species of servants are laborers, who are only hired by the day or the week, and do not live intra moenia, as part of the family; concerning whom the statute so often cited14 has made many very good regulations; 1. Directing that all persons who have no visible effects may be compelled to work: 2. Defining how long they must continue at work in summer and winter: 3. Punishing such as leave or desert their work: 4. Empowering the justices at sessions, or the sheriff of the county, to settle their wages: and 5. Inflicting penalties on such as either give, or exact, more wages than are so settled.
4. THERE is yet a fourth species of servants, if they may be so called being rather in a superior, a ministerial, capacity; such as stewards, factors, and bailiffs: whom however the law considers as servants pro tempore, with regard to such of their acts, as affect their master’s or employer’s property. Which leads me to consider,
II. THE manner in which this relation, of service, affects either the master or servant. And, first, by hiring and service for a year, or apprenticeship under indentures, a person gains a settlement in that parish wherein he last served forty days.15 In the next place persons serving as apprentices to any trade have an exclusive right to exercise that trade in any part of England.16 This law, with regard to the exclusive part of it, has by turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humor of the times: which has occasioned a great variety of resolutions in the courts of law concerning it; and attempts have been frequently made for its repeal, though hitherto without success. At common law every man might use what trade he pleased; but this statute restrains that liberty to such as have served as apprentices: the adversaries to which provision say, that all restrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for it allege, that unskillfulness in trades is equally detrimental to the public, as monopolies. This reason indeed only extends to such trades, in the exercise whereof skill is required: but another of their arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by employing of youth, and learning them to be early industrious; but that no one would be induced to undergo a seven years servitude, if others, though equally skillful, were allowed the same advantages without having undergone the same discipline: and in this there seems to be much reason. However, the resolutions of the courts have in general rather confined than extended the restriction. No trades are held to be within the statute, but such as were in being at the making of it:17 for trading in a country village, apprenticeships are not requisite:18 and following the trade seven years is
sufficient without any binding; for the statute only says the person must serve as an apprentice, and does not require an actual apprenticeship to have existed.19
A MASTER may by law correct his apprentice or servant for negligence or other misbehavior, so it be done with moderation:20 though, if the master’s wife beats him, it is good cause of departure.21 But if any servant, workman, or laborer assaults his master or dame, he shall suffer one year’s imprisonment, and other open corporal punishment, not extending to life or limb.22
BY service all servants and laborers, except apprentices, become entitled to wages: according to their agreement, if menial servants: or according to the appointment of the sheriff or sessions, if laborers or servants in husbandry: for the statutes for regulation of wages extend to such servants only;23 it being impossible for any magistrate to be a judge of the employment of menial servants, or of course to assess their wages.
III. LET us, lastly, see how strangers may be affected by this relation of master and servant: or how a master may behave towards others on behalf of his servant; and what a servant may do on behalf of his master.
AND, first, the master may maintain, that is, abet and assist his servant in any action at law against a stranger: whereas, in general, it is an offense against public justice to encourage suits and animosities, by helping to bear the expense of them, and is called in law maintenance.24 A master also may bring an action against any man for beating or maiming his servant; but in such case he must assign, as a special reason for so doing, his own damage by the loss of his service; and this loss must be proved upon the trial.25 A master likewise may justify an assault in defense of his servant, and a servant in defense of his master:26 the master, because he has an interest in his servant, not to be deprived of his service; the servant, because it is part of his duty, for which he receives his wages, to stand by and defend his master.27 Also if any person do hire or retain my servant, being in my service, for which the servant departs from me and goes to serve the other, I may have an action for damages against both the new master and the servant, or either of them: but if the new master did not know that he is may servant, no action lies; unless he afterwards refuse to restore him upon information and demand.28 The reason and foundation upon which all this doctrine is built, seem to be the property that every man has in the service of his domestics; acquired by the contract of hiring, and purchased by giving them wages.
AS for those things which a servant may do on behalf of his master, they seem all to proceed upon this principle, that the master is answerable for the act of his servant, if done by his command, either expressly given, or implied: nam qui facit per alium, facit per se.29 Therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it: not that the servant is excused, for he is only to obey his master in matters that are honest and lawful. If an innkeeper’s servants rob his guests, the master is bound to restitutions:30 for as there is a confidence reposed in him, that he will take care to provide honest servants, his negligence is a kind of implied consent to the robbery; nam, qui non prohibet, cum prohibere possit, jubet. So likewise if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring an action against the master:31 for, although the master did not expressly order the servant to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedly a general command.
IN the same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. If I pay money to a banker’s servant, the banker is answerable for it: if I pay it to a clergyman’s or a physician’s servant, whose usual business it is not to receive money for his master, and he embezzles it, I must pay it over again. If a steward lets a lease of a farm, without the owner’s knowledge, the owner must stand to the bargain; for this is the steward’s business. A wife, a friend, a relation, that use to transact business for a man, are quoad hoc his servants; and the principal must answer for their conduct: for the law implies, that they act under a general command; and, without such a doctrine as this, no mutual intercourse between man and man could subsist with any tolerable convenience. If I usually deal with a tradesman by myself, or constantly pay him ready money, I am not answerable for what my servant takes up upon trust; for here is no implied order to the tradesman to trust my servant: but if I usually send him upon trust, or sometimes on trust, and sometimes with ready money, I am answerable for all he takes up; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority.32
IF a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his neglect: if a smith’s servant lames a horse while he is shoeing him, an action lies against the master, and not against the servant. But in these cases the damage must be done, while he is actually employed in the master’s service; otherwise the servant shall answer for his own misbehavior. Upon this principle, by the common law,33 if a servant kept his master’s fire negligently, so that his neighbor’s house was burned down thereby, an action lay against the master; because this negligence happened in his service: otherwise, if the servant, going along the street with a torch, by negligence sets fire to a house; for there he is not in his master’s immediate service, and must himself answer the damage personally. But now the common law is, in the former case, altered by statute 6 Ann. c. 3. which ordains that no action shall be maintained against any, in whose house or chamber any fire shall accidentally being; for their own loss is sufficient punishment for their own or their servants’ carelessness. But if such fine happens through the negligence of any servant (whose loss is commonly very little) such servant shall forfeit 100 £, to be distributed among the sufferers; and, in default of payment, shall be committed to some workhouse and there kept to hard labor for eighteen months.34 A master is, lastly, chargeable if any of his family lays or casts any thing out of his house into the street or common highway, to the damage of any individual, or the common nuisance of his majesty’s liege people:35 for the master has the superintendence and charge of all his household. And this also agrees with the civil law;36 which holds, that the pater familias, in this and similar cases, “ob alterius culpam tenetur, sive servi, sive liberi“.
WE may observe, that in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer: he may frequently be answerable for his servant’s misbehavior, but never can shelter himself from punishment by laying the blame on his agent. The reason of his is still uniform and the same; that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong.
1. pag. 123.
2. Servi aut fiunt, aut nascuntur; fiunt jure gentium, aut jure civili: nascuntur ex ancillis nostris. inst. 1. 3. 4.
3. Stat. 3 & 4 Edw. VI. c. 16.
4. Salk. 666.
5. Co. Litt. 42.
6. F. N. B. 168.
7. Stat. 5 Eliz. c. 4.
8. Stat. Eliz. c. 4.
9. 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.
10. Salk. 57. 491.
11. Stat. 5 Eliz. c. 4.
12. Salk. 67.
13. Stat. 20 Geo. II. c. 19.
14. Stat 5 Eliz. c. 4.
15. See page 352.
16. Stat. 5 Eliz. c. 4.
17. Lord Raym. 514.
18. 1 Ventr. 61. 2 Keb. 583.
19. Lord Raym. 1179.
20. 1 Hawk. P. C. 130. Lamb. Eiren. 127.
21. F. N. B. 168.
22. Stat. 5. Eliz. c. 4.
23. 2 Jones. 47.
24. 2 Roll. Abr. 115.
25. 9 Rep. 113.
26. 2 Roll. Abr. 546.
27. In like manner, by the laws of king Alfred, c. 38. a. servant was allowed to fight for his master, a parent for his child, and a husband or father for the chastity of his wife or daughter.
28. F. N. B. 167, 168.
29. 4 inst. 109.
30. Noy’s Max. c. 43.
31. 1 Roll. Abr. 95.
32. Dr & Stud. D. 2. c. 42. Noys max. c. 44.
33. Noy’s max. c. 44.
34. Upon a similar principle, by the law of the twelve tables at Rome, a person by whose negligence any fire began was bound to pay double to the sufferers; or if he was not able to pay, was to suffer a corporal punishment.
35. Noy’s max. c. 44.
36. Ff. 9. 3. 1. inst. 4. 5. 1.