or servant leave his master, after being so retained, either before or at the end of his term, without a quarter's warning [426] (except in London, &c.); unless upon reasonable cause, to be allowed by a justice of the peacek but they may part by consent, or make a special bargain. However the jurisdiction of the justice only extends to servants in husbandry, and the trades mentioned in the different statutes.1 2. Apprentices. 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. 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. And children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty-one 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:" for which purposes our statutes have made the indentures obligatory, even though such parish-apprentice be a minor;o and by the new poor law act,P the commissioners are authorized to make rules for the administration of the laws for apprentices, the children of poor persons. Apprentices to trades may be discharged on reasonable cause, either at the request of themselves or masters, at the quarter-sessions, or by one justice, with appeal to the sesions ; who may, by the equity of the statute, if they think it reasonable, direct restitution of a rateable share of the money given with the apprentice ; and parish-apprentices may be discharged in the same manner, by two justices. But if an apprentice, with whom less than ten pounds hath been given, runs away from his master, he is compellable to serve out his time of absence, or make satisfaction for the same, at any time within seven years after the expiration of his original contract.t ers. [ 427 ] 3. A third species of servants are labourers, who are only 3. Labourhired by the day or the week, and do not live intra mænia as part of the family, concerning whom the statutes before cited" have 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 in winter: 3. Punishing such as leave or desert their work: 4. Inflicting penalties on such as either give, or exact, more wages than are so settled: and, formerly, empowered the justices of the peace at session, or the sheriff to settle their wages, but this power is taken away by the 53 Geo. III. c. 40. factors, and 4. There is yet a fourth species of servants, if they may 4. Stewards, be so called, being rather in a superior, or ministerial, capa- bailiffs. city; 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 ef relation. II. The manner in which this relation of service, affects either the master or servant. And, first, by hiring and fect of the service for a year, according to the former law, a person gained a settlement in that parish wherein he last served forty days. But settlement by hiring and service is now abolished, but apprenticeship still gains a settlement, unless it be to the sea service. In the next place persons, serving seven years as apprentices to any trade, had an exclusive right to exercise that trade in any part of England. But this law, with regard to the exclusive part of it, has by * Salk. 67. W Stat. 20 Geo. II. c. 19. t Stat. 6 Geo. III. c. 26. "Stat 5 Eliz. c. 4. 6 Geo. III. c. 26. See page 364. w 4 & 5 Wm. IV. c. 76, s. 66. turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times: which occasioned a great variety of resolutions in the courts of law concerning it; and attempts were frequently made for its repeal, which have at last been successful. At common law every man might use what trade he pleased; but the statute of Elizabeth restrained that liberty to such as had served as apprentices: the adversaries to which provision said, that all restrictions (which tend to introduce monopolies) were pernicious to trade; the advocates for it alleged that unskilfulness in trades was equally detrimental to the public, as monopolies. This reason indeed only extended to such [428] trades, in the exercise whereof skill may be required: but another of their arguments went much farther; viz. that apprenticeships were 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 skilful, were allowed the same advantages without having undergone the same discipline and in this there seemed to be much reason. However, the resolutions of the courts in general rather confined than extended the restriction. No trades were held to be within the statute, but such as were in being at the making of it: for trading in a country village, apprenticeships were not requisite: a and following the trade seven years without any effectual prosecution (either as a master or a servant) was sufficient without an actual apprenticeship. And at last the penal part of the statute of Elizabeth was repealed by the 54 Geo. III. c. 96, and very recently by the Municipal Corporation Act, all persons may use every lawful trade, occupation, mystery, or handicraft, for hire, gain, sale, or otherwise, within any borough, any custom or bye-law to the contrary notwithstanding. In what instances a d A master may by law correct his apprentice for negligence master may or other misbehaviour, so it be done with moderation: though, if the master or master's wife beats any other ser correct his servants. z Lord Raym. 514. a 1 Ventr. 51. 2 Keb. 583. all the judges. 127. 5 & 6 Wm. IV. c. 76, s. 14. 1 Hawk. P. C. 130. Lamb. Eiren. Cro. Car. 179. 2 Show. 289. vant of full age, it is good cause of departure. But if any servant, workman, or labourer assaults his master or dame, he shall suffer one year's imprisonment, and other open corporal punishment, not extending to life or limb.f entitled to By service all servants and labourers, except apprentices, Servants are become entitled to wages: according to their agreement, if wages. menial servants; or according to the appointment of the sheriff or sessions, if labourers or servants in husbandry: for the statutes for regulation of wages extend to such servants only; it being impossible for any magistrate to be a judge of the employment of menial servants, or of course to assess their wages. A strangers may be ef the master tain with re servant. III. Let us, lastly, see how strangers may be affected by III. How this relation of master and servant: or how a master may need by behave towards others on behalf of his servant; and what this relation. a servant may do on behalf of his master. [ 429 ] And, first, the master may maintain, that is, abet and what action assist his servant in any action at law against a stranger: may mainwhereas, in general, it is an offence against public justice spect to his to encourage suits and animosities, by helping to bear the expense of them, and is called in law maintenance.h 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.i A master likewise may justify an assault in defence of his servant, and a servant in defence of his master:j 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. Also if any person do hire or retain my servant, being in my service, for which the servant departeth from me and goeth to serve the other, I may have an action for What things a servant behalf of his master, damages against both the new master and the servant, or either of them: but if the new master did not know that he is my servant, no action lies; unless he afterwards refuse to restore him upon information and demand. 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 may do on 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. Therefore, if the the master is : [430] servant commit a trespass by the command or encourageand where ment of his master, the master shall be guilty of it: though responsible, the servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful. If an innkeeper's servant rob his guests, the master is bound to restitution 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: P 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, |