k 426 perfons as are thought fitting; who are alío compellable to take them; and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to fuch compulfion (4): for which purposes our statutes have made the indentures obligatory, even though fuch parish-apprentice be a minor. Apprentices to trades may be discharged on reasonable caufe, either at the request of themselves or masters, at the quarter-feflions, or by one justice, with appeal to the fef fions; who may, by the equity of the ftatute, if they think it reasonable, direct reftitution of a ratable share of the money given with the apprentice": and parish-apprentices may be discharged in the fame manner, by two justices (5). But if an apprentice, with whom less than ten pounds hath been given, runs away from his mafter, he is compellable to ferve out his time of absence, or make fatisfaction for the fame, at any time within feven years after the expiration of his original contract P. 3. A THIRD fpecies of fervants are labourers, who are only hired by the day or the week, and do not live intra moenia, as part of the family; concerning whom the ftatutes before [427] cited have made many very good regulations: 1. Directing that all perfons who have no visible effects may be compelled to work: 2. Defining how long they muft continue at work k Salk. 57-491. I Stat. 5 Eiiz. c. 4. 43 Eliz. c. 2. Cro. Car. 179. m Stat. 5 Eliz. c. 4. n Salk. 67. • Stat. 20 Geo. II. c. 19. 'P Stat. 6 Geo. III. c. 26. 9 Stat. 5 Eliz. c. 4. 6 Geo. III. c. 26. (4) The parish officers, with the affent of two juftices, may bind a parish apprentice to a perfon who refides out of their parish, if he has an eftate in the parish. 3 T. R. 107. (5) By 32 Geo. III. c. 57. where a parish apprentice is dif charged from a master on account of the misconduct of the master, the juices may order the master to deliver up his clothes, and to pay a fum not exceeding 10l. to place him with another master. See the other pfovifions of this ftatute, and the subject stated at large, in Burn, tit. Apprentice. in fummer and in winter: 3. Punishing fuch as leave or defert their work: 4. Empowering the juftices at fellions, or the fheriff of the county, to fettle their wages: and 5. Inflicting penalties on fuch as either give, or exact, more wages than are fo fettled. 4. THERE is yet a fourth fpecies of fervants, if they may be fo called, being rather in a fuperior, a minifterial, capacity; fuch as frewards, factors, and bailiffs: whom however the law confiders as fervants pro tempore, with regard to fuch of their acts as affect their mafter's or employer's property. Which leads me to confider, II. THE manner in which this relation, of fervice, affects either the master or fervant. And, firft, by hiring and fer vice for a year, or apprenticeship under indentures, a perfon gains a fettlement in that parish wherein he laft ferved forty days. In the next place perfons ferving seven years as ap. prices to any trade, have an exclufive right to exercise that trade in any part of England. This law, with regard to the exclufive part of it, has by turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times: which has occafioned a great variety of refolutions in the courts of law concerning it; and attempts have been frequently made for it's repeal, though hitherto without fuccefs. At common law every man might ufe what trade he pleafed; but this ftatute restrains that liberty to fuch as have ferved as apprentices: the adverfaries to which provifion say, that all restrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for it allege, that unskilfulness in trades is equally detrimental to the public, as monoplies. This reafon indeed only extends to fuch trades, [428] in the exercife whereof skill is required: but another of their arguments goes much farther; viz. that apprenticeships are ufeful to the commonwealth, by employing of youth, and See page 364. S Stat. 5 Eliz. c. 4. §319 learning learning them to be early induftrious (6); but that no one would be induced to undergo a feven years fervitude, if others, though equally skilful, were allowed the fame advantages without having undergone the fame difcipline: and in this there feems to be much reafon. However, the refolutions of the courts have in general rather confined than extended the restriction. No trades are held to be within the statute, but fuch as were in being at the making of it: for trading in a country village, apprenticeships are not requifite": and following the trade seven years without any effectual profecution (either as a mafter or a fervant) is fufficient without an actual apprenticeship TM (7). W A MASTER may by law correct his apprentice for negli gence or other misbehaviour, so it be done with moderation*: though, if the mafter or master's wife beats any other fervant of full age, it is good caufe of departure (8). But if any fervant, workman, or labourer affaults his mafter or dame, he fhall fuffer one year's imprisonment, and other open corporal punishment, not extending to life or limb2. Lord Raym. 514. U I Ventr. 51. 2 Keb. 583. * 1 Hawk. P. C. 130. Lamb. Eiren. 127, Cro. Car. 179. 2 Show 89. y F. N. B. 168. Bro. Abr. t. Labourers 51. Trefjpass 349. z Stat. 5 Eliz. c. 4. (6) Lord Coke fays, this ftatute was not enacted only that workmen should be skilful, but also that youth fhould not be nourished in idlencfs, but brought up and educated in lawful fciences and trades. 11 Co. 54. (7) The penalty is 40s. a month, one half to the king, the other half to the profecutor. The words of the statute are, having ferved as an apprentice, and there can be no doubt but the legislaturẻ intended that the tradefman fhould have ferved an actual apprenticeship; but from the words, as an apprentice, this being a penal ftatute, the judges have determined that he ferves as an appren tice, who for seven years has been working as a master. 2 Wilf. 168; or as the mafter's wife. 1 Barnard. 367. (8) Or rather of complaint to a magiftrate to be discharged. Book I. By fervice all fervants and labourers, except apprentices, become entitled to wages: according to their agreement, if menial fervants; or according to the appointment of the fheriff or feffions, if labourers or fervants in husbandry: for the ftatutes for regulation of wages extend to such fervants only; it being impoffible for any magiftrate to be a judge of the employment of menial fervants, or of course to affefs their wages (9). III. LET us, laftly, fee how ftrangers may be affected by this relation of master and fervant: or how a mafter may be[429] have towards others on behalf of his fervant; and what a fervant may do on behalf of his mafter. AND, first, the mafter may maintain, that is, abet and aflift his fervant in any action at law against a stranger: whereas, in general, it is an offence against public juftice to encourage fuits and animofities, by helping to bear the expense of them, and is called in law maintenance. A master alfo may bring an action against any man for beating or maiming his fervant: but in fuch case he muft affign, as a fpecial reafon for fo doing, his own damage by the lofs of his fervice(10); and this lofs must be proved upon the trial. A mafter likewise may justify an affault in defence of his feryant, and a fervant in defence of his master: the mafter, because he has an intereft in his fervant, not to be deprived (9) But it is the practice of juftices, in difputed cafes, to affefs the wages of all fervants; a practice which I am inclined to think would be fupported under the zo Geo. II. c. 19. (10) This is an action upon the cafe, generally called a per quod fervitium amifit. This action by a matter for beating his feryant, has been contrived, by a fpecies of fiction, to be extended to a parent, to enable him to recover a pecuniary compenfation, under 'ome circumstances, for the feduction of his daughter, See 3 vol. P. 143, note, of tere. 429 of his service; the fervant, because it is part of his duty, for which he receives his wages, to ftand by and defend his mafAlfo if any perfon do hire or retain my fervant, being in my fervice, for which the fervant departeth from me and goeth to ferve the other, I may have an action for damages against both the new mafter and the fervant, or either of them but if the new mafter did not know that he is my fervant, no action lies; unlefs he afterwards refufe to restore him upon information and demand'. The reafon and foundation upon which all this doctrine is built, feem to be the property that every man has in the fervice of his domeftics: acquired by the contract of hiring, and purchased by giving them wages. As for those things which a fervant may do on behalf of his master, they feem all to proceed upon this principle, that the mafter is anfwerable for the act of his fervant, if done by his command, either expressly given, or implied: nam qui facit per alium, facit per fes. Therefore, if the fervant commit a trefpafs by the command or encouragement of his master, the mafter fhall be guilty of it: though the fer- [ 430 ] vant is not thereby excufed, for he is only to obey his master in matters that are honest and lawful. If an innkeeper's fervants rob his guests, the master is bound to restitution": for as there is a confidence repofed in him, that he will take care to provide honeft fervants, his negligence is a kind of implied consent to the robbery (11); nam, qui non prohibet, cum prohibere poffit, jubet. So likewife if the drawer at a tavern fells a man bad wine, whereby his health is injured, he may bring an action against the mafter: for although the mafter did not In like manner, by the laws of king Alfred, c. 38. a fervant was allowed to fight for his matter, a parent for his child, and a husband or father for the chastity of his wife or daughter. f F. N. B. 167, 168. h Noy's max. c. 43. i I Roll. Abr. 95. (11) But it has been long eftablished law, that the innkeeper is bound to reftitution if the guest is robbed in his houfe by any perfon whatever; unless it fhould appear that he was robbed by his own fervant, or by a companion whom he brought with him. 8 Co. 33. expressly |