The nature of the contract between Masters and Servants, is
simple, and may be clearly defined by the existing laws; of which
the following are the most material points; and ought to be well
understood, both by masters and servants.
_Hiring Servants._
The contract between a master and his domestic servant is called
the _Hiring_, and may be made either in writing, or by verbal
agreement; but, in the latter case, there should be a witness.
_General Hiring._
If the hiring of a servant be _general_, without any particular
time specified, the law construes it to be a hiring _for a year
certain_. But, before the expiration of the year, three months’
notice, at least, _must_ be given by either party, or the service
is continued for another year, and so on; as under a general
hiring, the servant can never become a servant _at will_.
_Particular Hiring._
In London, and other great towns, the common mode of hiring is by
_a month’s warning, or a month’s wages_; that is, the parties agree
to separate on either of them giving to the other a month’s notice
of his intention; or, in lieu of that, the party requiring the
separation is to pay or give up a month’s wages: and this kind of
hiring is sanctioned by law. But the contract may be made for any
longer or shorter time; 5 Eliz. c. 4.
_A yearly Servant is intitled to his Wages for the time of
actual Service._
If a servant be hired in a general way, he is considered as hired
with reference to the general understanding on the subject, and
shall be entitled to his wages for the time he has served, though
he do not continue in the service during the whole year; and if
he die before the end of the year, his representatives will be
entitled to so much wages as was due to him at the time of his
death.
_Of Discharging Servants._
A yearly servant cannot leave his place, nor be discharged,
without a quarter’s warning, or wages, under the penalty of 40s.
If a servant be hired for a year certain, or for any indefinite
time, which is construed in law, to be for a year, his master
cannot discharge him either before, or at the end of the term, nor
afterwards, without giving a quarter of a year’s previous warning,
before a witness;—unless for some cause which shall be deemed
sufficient by a magistrate, under the forfeiture of 40s.
And, as a master cannot discharge a yearly servant without a
quarter’s warning, given previous to the expiration of the year;
neither can a servant leave his place without a similar notice,
under pain of imprisonment, and of losing all his wages.
A servant leaving his place without giving regular notice, or
neglecting his master’s business, or disobeying his orders,
(which is considered as a departure from his service,) or being
guilty of any other misconduct, may be punished by three months’
imprisonment, or in lieu thereof, with the loss of a part or the
whole of his wages, _at the discretion of a justice_.
_The Parties may part by mutual consent._
A master and his servant may part by mutual consent, without any
forfeiture on either part;—or, for a cause to be allowed by a
justice.
_A Servant may be discharged for any moral Crime._
If a servant be guilty of any moral infamy whilst in his master’s
service, he may discharge him without application to a justice.
Also, if he be taken into custody for any offence, and legally
detained, so that he cannot attend to his duties, the master is
authorized to discharge him. But, if the offence of which the
servant is accused was committed before the time of hiring, the
master cannot discharge him without the order of a justice.
_A yearly Servant cannot be discharged for any act of God._
A master cannot discharge his yearly servant within the year, by
reason of illness, or of any hurt by which he may be disabled from
doing his usual business, nor even for insanity, without an order
from a justice; nor can his wages be abated for such reason.
_A Servant may be discharged by a Justice if his Wages be
not paid, or sufficient Maintenance be denied him._
The master detaining a servant’s wages, or not allowing him
sufficient meat and drink, or otherwise ill-treating him, is a good
cause for a servant’s leaving his place; _but it must be allowed by
a justice_.
_Punishment for insolence after Warning given._
If, after warning given, a servant is insolent, or refuses to do
his duty, a magistrate may commit him to prison for the time he has
to serve; but the master must pay him his wages whilst there.
_Punishment for an assault on the Master or Mistress._
If a servant assault his master or mistress, or any other person
having charge over him, he may be bound to his good behaviour; or
be committed to prison, for a year or less, at the discretion of
two magistrates.
_Agreement by a Servant under age not to operate against him._
No agreement made by a servant, with his master, whilst he is under
the age of 21 years, can be made to operate against him.
_A married Woman must serve her term._
A woman who is married, or shall marry during her servitude, must,
in either case, serve out her time; nor can her husband take her
out of her master’s service.
_A Woman with Child may be discharged by a Justice._
Should a woman with child be hired for a term, and her master knew
not of it, or should she prove with child during her servitude, he
may discharge her, with the concurrence of a magistrate.
But if, when he knows it, he does not discharge her before a
magistrate, but keeps her on, he must provide for her till her
delivery, and for one month after; when she is to be sent to her
place of settlement.
_Servants must go to Church._
Masters can insist on their servants going to church; and every
person whose servant shall be absent from church, for one month,
at a time, without a reasonable excuse, forfeits 10_l._ for every
month he so keeps that servant.
_Punishment for gaming._
A servant gaming at a public house, with cards, dice, draughts, or
at any game, is liable to be taken before a magistrate, and fined
from 5_s._ to 20_s._ one-fourth of which goes to the informer; and
he may be committed to hard labour for a month, or till the penalty
is paid.
_Punishment for getting Drunk._
Every person convicted of having been drunk, within six months
previous to the information, before one justice, on the oath of
one witness, forfeits 5_s._ for the first offence, or may be set
in the stocks six hours; and for the second offence must give good
security not to offend again.
_Punishment for Cursing and Swearing._
Any servant who may be convicted of cursing and swearing, within
eight days of the offence, before one justice, shall forfeit 1_s._
for the first offence; 2_s._ for the second; and 3_s._ for the
third; or be committed to hard labour for ten days.
_The Interest a Master has in his Servant._
The master can maintain an action for injury done to his servant;
or for enticing him away, or for detaining him.
From the interest that a master acquires in his servant, by reason
of the wages he pays him, if the servant be maimed or disabled
in his master’s service through the fault of another, the master
may recover from that other, for loss of his service. Also, for
this reason, a man may maintain an action against another for
enticing away his servant; or for detaining him after demanded;—or
for retaining him with a knowledge of his having left him
clandestinely: for this latter offence an action is maintainable
against the servant also, or against both.
_A Master may protect his Servant, and may assist him to
prosecute a Stranger._
A master may be justified in assaulting another in protection
of his servant; or, he may assist his servant in supporting the
expense of an action at law against a stranger; though in general
it is deemed an offence against public justice to encourage
animosities by such assistance.
_A Servant is bound to defend his Master._
The master may demand the aid of his servant, and the servant may
stand up in his master’s or mistress’s defence without being liable
to punishment.
_The Master is liable for the Acts of his Servant._
The acts of servants are, in most instances, deemed the acts
of their masters. In fact, every man ought to transact his own
business; and though by the indulgence of the law, he can delegate
the power of acting for him to another, yet, it is with reason,
that the acts of his substitute, being pursuant to his authority,
should be considered as the acts of himself. It is, therefore, a
rule of law, that whatever trespass a servant commits by the order,
encouragement, or with the tacit consent of his master, the master
shall be answerable for it. Generally, a master is responsible
for all acts done by his servant in the course of his ordinary
and proper business, even though he has given him no express
commands. The master is also liable for any fault or neglect of his
servant whilst executing his _lawful_ commands. But, in all such
inexcusable cases, the servant is punishable by the criminal laws,
and is also liable to civil actions.
_Servants not answerable but for wilful Neglect, or Fraud._
A servant cannot be made answerable to his master for any loss that
may happen without his wilful neglect; but if he be guilty of fraud
or gross negligence, an action will lie against him by his master.
Therefore, if a master give money or other thing to a servant to
carry to a certain place, and he is robbed, the servant is not
answerable.—But if it be lost through his neglect he is punishable.
_Servants setting fire to a House._
A servant negligently setting fire to a house, shall, on the
oath of one witness, be made to pay one hundred pounds, to be
distributed among the sufferers; or be committed to hard labour, in
prison, for eighteen months.
_Embezzlement of a Master’s property is Felony._
If money, goods, bills, bonds, notes, bankers’-drafts, or other
valuable security, or effects, be delivered to a servant, or
clerk, to keep, and he go away with them, or embezzle, secrete, or
otherwise convert either, or any of them, to his own use, it is
felony; if he be more than 18 years of age.
If any servant shall purloin, or make away with his master’s goods
to the value of 40_s._ it is felony, and he shall, himself, his
aider, or abettor, on conviction, be transported for 14 years. Or,
if a master deliver the key of a room to a servant, and he steal
therein to the amount of 12_d._ it is felony.
_Servants pawning their Master’s property._
Servants pawning their master’s goods without orders, shall forfeit
40_s._ and the value of the goods so pawned; or be sent to the
House of Correction for three months, and be publickly whipped.
_Mode of settling disputes for Wages, and other matters._
Disputes with servants for wages under 10_l._ a year, and other
matters, may be referred to a magistrate, who is authorized to
redress such complaints. But magistrates in the metropolis can take
no cognizance of the wages of coachmen, grooms, &c. as they come
within the jurisdiction of the Commissioners of Hackney-Coaches, &c.