The Law of Servants and the Servants of Law: Enforcing Masters' Rights in Montreal, 1830-1845

Pilarczyk, Ian C., McGill Law Journal

The law governing masters and servants offers a unique point from which to examine the history of Montreal labour law during the early nineteenth century. The author examines the methods by which masters attempted to enforce their employment rights in the judicial district of Montreal during the years 1830 to 1845. Using primary sources from various Montreal court records, the author reconstructs the judicial and quasi-judicial processes that accompanied the manifold master-servant disputes. He concludes that while the letter of the law may have favoured masters, courts were relatively even-handed in adjudicating such disputes. He examines the role of newspaper advertisements as tools for protecting masters' rights. Through analysis of these advertisements the author paints a colourful and animated portrait of master-servant relations at that time. The article also focusses on the role of courts in interpreting disputes--especially those involving desertions of indentured servants. While the author concentrates his attention on the role of courts within the city of Montreal, he also draws a comparison with the role of courts outside the city limits. Although many similarities existed between the respective courts, there nevertheless remained significant differences.

Le droit regissant les relations entre employeurs et ouvriers constitue un excellent point de depart pour l'etude de l'histoire du droit du travail montrealais au debut du XIXe siecle. L'auteur examine les moyens auxquels les employeurs avaient recours pour faire respecter leurs droits dans le district judiciaire de Montreal durant les annees 1830-45. Il reconstruit les processus judiciaires et quasi-judiciaires associes aux differents conflits employeur-ouvrier en analysant diverses sources primaires provenant des dossiers des tribunaux montrealais. Il arrive a la conclusion que, bien que la lettre de la loi semble avoir ete en general plus favorable aux employeurs, les tribunaux etaient relativement impartiaux dans la resolution de ce type de conflits. Il examine le role qu'ont joue les annonces placees dans les journaux a titre de moyens de proteger les droits des employeurs. A travers l'analyse de ces annonces, l'auteur presente un portrait colore et vivant des relations employeur-ouvrier au debut du XIXe siecle. L'article met egalement l'accent sur le role des tribunaux dans l'interpretation des conflits, en particulier ceux resultant de l'abandon de l'emploi par des ouvriers lies par contrat. Bien que l'auteur se concentre principalement sur le role des tribunaux dans la ville de Montreal, il effectue egalement une comparaison avec le role que jouaient les tribunaux en dehors des limites de la ville pour conclure que, malgre de nombreux points de ressemblance, il existait a ce niveau d'importantes differences.

Introduction

I.   Newspapers as Quasi-judicial Tools

II.  The Role of Courts within City Limits
     A. Desertion Prosecutions
        1. Convictions
           a. The Police Court
           b. The Court of Weekly and Special Sessions
        2. Suspended and Variant Dispositions
        3. Acquittals
     B. Refusal to Obey Orders, Refusal to Work or Enter Service, and
        Negligence
     C. Third Party Employment Offences

III. The Role of Courts outside City Limits
     A. Desertion Prosecutions
        1. Convictions
        2. Suspended and Variant Dispositions
        3. Acquittals
     B. Refusal to Obey Orders, Refusal to Work or Enter Service, and
        Negligence
     C. Third Party Employment Offences

Conclusion

Appendix: Figures

Introduction

On 26 January 1841, a seventeen-year-old apprentice painter and chair maker named Robert Bruce McIntosh stood before a Montreal court, charged with having deserted Thomas Albert Martin's service for the second time. McIntosh had earlier been convicted and sentenced to fifteen days' hard labour in the local prison, and was ordered to return to Martin's service immediately after his release. The day McIntosh's term of imprisonment was over, he sought refuge with his mother, but was arrested once again. In light of his previous conviction the court viewed him as incorrigible and sentenced him to two months in the Montreal Gaol. (1)

The story of Robert Bruce McIntosh is one thread in the rich tapestry of Montreal's labour history, illustrating the experiences of an apprentice who ran afoul of the law while bound to his master's service. Thousands of servants like McIntosh laboured each day, employed in innumerable occupations but united by the commonality of contributing to the city's economy. While most servants left behind no written documentation of their rives, a few are immortalized in contemporary judicial records and newspapers. Examination of the judicial archives for the courts that heard master-servant disputes within the city limits, as well as for the greater district of Montreal (which encompassed surrounding parishes outside the city), assists in reanimating the history of Montreal labour law during the early nineteenth century. (2)

The number and variety of cases clearly reflect that master-servant disputes--instigated by both parties--constituted a significant part of the legal business heard by the courts during this period. Through the use of primary sources, this article attempts to dissect the manner in which masters sought to enforce their employment rights in the judicial district of Montreal during the years 1830 to 1845. At a time when the contractual nature of these relationships was already well established and readily enforced by courts, analysis of the dispositions of these cases indicates that while the letter of the law favoured masters, courts were relatively even-handed in adjudicating such disputes.

I. Newspapers as Quasi-judicial Tools

When a servant absented himself from service, refused to obey his master's orders, or otherwise proved negligent or obdurate, a master had a variety of legal and quasi-legal tools at his disposal. He could discharge his servant within the parameters of the applicable master-servant law or request that a notary (or a court) cancel an indenture. (3) He could also prosecute his servant in a court of law, advertise him as a deserter, or both. The case of an apprentice printer in Montreal in 1830 reflects a common approach. Following the apprentice's deserdon, his master filed a complaint against him on 18 November 1830. (4) The following month he placed an advertisement in a local newspaper, stating that the "sole cause for his [apprentice's] absconding arises from the contagion of Idle and Dissolute Company, and a Propensity to Gambling." (5) The apprentice was likely arrested or returned shortly afterwards, as Tracy brought another proceeding against him later the same month. (6)

For many masters the issue of greatest immediacy would have been how to ensure that servants fulfilled the terms of their employment. For others, enforcement of master-servant law was a means of seeking justice and combatting desertion and delinquency. This section analyzes in detail the legal and quasi-legal options available to masters to enforce their rights vis-a-vis servants.

Masters who were unwilling to let their servants desert without recrimination, or who wished to protect themselves legally against liability, or both, often took advantage of newspaper advertisements. Desertion advertisements appeared in North American newspapers throughout the seventeenth and eighteenth centuries, and well into the nineteenth. (7) In earlier times in Canada similar advertisements were placed for runaway slaves, and unhappily, continued to appear in American newspapers in slaveholding states during this period. In Montreal masters commonly placed notices that employees had been discharged or had left employment, (8) and fathers renounced claims against their sons' earnings by publishing advertisements to that effect. (9) As such advertisements suggest, money earned by children in the nineteenth century was commonly considered to be familial property, and an ethic of children contributing to their family's upkeep strongly permeated Victorian society. (10) Advertisements also publicized employment opportunities, (11) and were placed by unemployed servants seeking positions. (12) Most relevant for the purposes of this article, however, is the multitude of advertisements placed by English and French masters pertaining to servants who had fled from their service. (13)

Newspaper advertisements are an intriguing source of intelligence on labour relations for several reasons. First, they provide an additional source of information on the prevalence of desertion, especially as few of the servants appearing in them were identified as later having been prosecuted; second, they often provide information on the capacity in which the servant was employed; and third, they represent a quasi-legal tool used by masters to enforce their interests. (14)

For the years 1830 to 1845, advertisements of this kind were found in seven of the ten Montreal newspapers examined. (15) Analysis of these papers identified seventy-two servants who had deserted their master's service within the judicial district of Montreal. (16) Of these advertisements, nearly two-thirds were for apprentices. (17) A variety of explanations may be forwarded as to why apprentices appeared so often. Apprenticeship as a form of work-study meant that masters had (at least in theory) invested considerable time and effort in teaching their apprentices the mysteries of their chosen craft, more so than would have been the case for domestic servants, labourers, or journeymen. As a result, many masters were unwilling to accept their apprentices' desertions without attempting to secure their return. Furthermore, apprentices often had a vested interest in terminating their periods of apprenticeship as soon as possible, so as to join the mobile and better-paid class of journeymen. Apprentices were also usually minors and hence more vulnerable to mistreatment and exploitation; desertion may have been their most immediate recourse.

Typically these advertisements provided the name and physical description of the runaway, the date of desertion, a claim that the master would not be responsible for any debts contracted by the servant from the date of this notice, and a reminder that it was illegal to aid or employ a runaway. Some advertisements offered rewards of varying amounts to those who apprehended the servants. (18) One unusual advertisement revealed a strained family or employment relationship or both, stating that as the son had "left my employ without any just provocation," he therefore "forbid[s] all persons harbouring or trusting him on my account." (19) Other masters placed advertisements replete with vivid graphics of runaways, using images apparently used in earlier years to advertise runaway slaves. (20) The most common reward, when one was offered, was one or two pence. (21) Occasionally other rewards were offered, such as a "Brummagem halfpenny". (22) On rare occasions, much higher rewards were advertised; one master in 1830 offered a reward of ten dollars for the arrest of his female "apprentice servant". (23) Such advertisements for women servants were exceedingly rare, and it can only be a matter of speculation as to why her master offered such a significant reward. In other advertisements of this sort, the servant was usually alleged to have left with his master's property, thus implicating both desertion and theft. (24) In one instance a concerned master offered ten pounds for information, unsure whether his servant had deserted or taken ill, and wishing to provide medical care if needed. (25)

Another variety of advertisement simply announced that the servant had been discharged, without offering any explanation. John George advertised one of his numerous deserting servants in this way: "CAUTION.--JOHN WILLIAMS, an indented Apprentice to the Tinsmith trade, is discharged from my employment. Persons are forbid crediting or harbouring him on any account." (26)

Several general conclusions may be drawn from desertion advertisements. First, these advertisements commonly forbade "crediting or harbouring" the servant or the like. Given the limited financial means of the average servant and the prevalence of credit transactions in the Montreal economy, masters had a double incentive to place such advertisements, both to protect themselves against any debts contracted in their name and to foreclose possible sources of credit. Since servants were often entrusted to secure goods or services for their masters on credit, these advertisements were a way of announcing that the particular servant in question was no longer in the master's employ, and therefore had no legal right to incur debts in the master's name.

Second, these advertisements were designed to impede a deserter's ability to flee the locale or obtain employment elsewhere, serving as a reminder to others that the master had a justiciable contractual interest in his servant. Master-servant law provided for the right to prosecute third parties for harbouring, enticing, or forcibly detaining servants; advertisements served as notice to potential employers that the servant in question was still legally in another's service. (27)

Third, advertisements--especially those which make it clear that the master was not seeking return of his wayward servant--likely served a social function. (28) Masters faced with intransigent servants, an insatiable demand for skilled labour, and the knowledge that many servants could readily re-establish themselves in other communities may have sought to warn potential employers of the untrustworthy or peripatetic nature of these runaways. (29) Masters may also have sought to take a stand against the pernicious phenomenon of desertion, as the language of some advertisements explicitly states. Masters may even have been prompted by a desire to exact retribution. (30) The "social function" aspect to these advertisements is further supported by the fact that a majority of them offered token rewards such as a penny. (31) Offering token rewards was most probably reflective of the fact that an unwilling servant who had deserted once would likely remain an uncooperative employee, and hence some masters would not have desired the return of runaway servants or the trouble of seeking legal redress.

II. The Role of Courts within City Limits

Perennial shortages of skilled labour ensured that many servants were in high demand. Servants thus had a powerful financial incentive to desert before expiry of their terms of employment and to seek more lucrative opportunities. This was particularly true of apprentices who stood to gain by learning the art of their trade as soon as possible and venturing out to pursue greater remuneration as journeymen. While servants deserted most commonly with the intent of improving their job prospects, they were not always driven, however, by mere opportunism. Some servants fled to escape domineering, exploitative, or abusive masters, or were motivated by homesickness or a desire to be closer to loved ones. (32) In so doing, runaways may have sought to escape via outbound ships or enlisted in the armed forces. (33) Most likely, though, the majority remained within their community and attempted to re-establish themselves with another master.

Should a master have sought legal redress for a refractory servant, he could prosecute before Montreal courts, as well as before justices of the peace residing in the outlying areas that encompassed the greater judicial district of Montreal. As the city proper was governed by different legislative enactments than that of the outlying towns and parishes, this article shall analyze separately the judicial remedies available to masters in these geographical areas.

Master-servant law within the city of Montreal was explicated in two primary legislative enactments during this period: the provincial Statute of 1817, (34) and municipal bylaws for the city known as the Police Regulations. (35) Essentially, the Statute of 1817 set out general procedural parameters concerning master-servant disputes, while the Police Regulations offered much more detailed provisions for their adjudication. As article 2 of the Police Regulations stipulated, the primary employment offences were desertion, absenteeism, negligence, refusal to perform one's job duties, and refusal to obey masters' commands. (36) Of these, desertion was the most common offence.

A. Desertion Prosecutions

1. Convictions

Masters always had the option of prosecuting wayward servants for violations of the relevant regulations if the absconded servant had been apprehended or his location otherwise ascertained, and advertisements no doubt played a part in this process. While it is safe to assume that a significant percentage of deserters were never prosecuted, judicial records reveal that employment offences constituted a large part of the business before lower courts. Indeed, prosecutions were the primary means available to masters to combat desertion or other breaches of the employment relationship. (37) Deserting servants ran risks by taking to their heels: if caught, they were subject to fines or imprisonment. Servants would often be returned to their masters to finish their terms of service, exacerbating already strained relationships. (38)

It should be emphasized that desertion prosecutions would generally have been inconvenient and uncertain. Their utility would also have been questionable in many instances, as a resolute servant would merely flee further the next time. (39) It is irrefutable, however, that servants deserted in large numbers in Montreal during this period, and that masters often used the machinery of the legal system to enforce their rights. Eighty-nine cases were identified before the Police Court, 133 cases before the Court of Weekly and Special Sessions, and 76 cases before justices of the Court of Quarter Sessions for the city of Montreal. Coupled with an additional 72 runaway servants identified only in newspaper advertisements, and 91 servants imprisoned for breach of service who were found within the records of the Montreal Gaol, a total of 461 breach of service cases were documented for the city of Montreal. (40)

While the dispositions of cases heard before courts were frequently published in local newspapers, desertion proceedings were sufficiently recurrent so as rarely to merit attention. Newspapers did occasionally, however, publish information on such proceedings in a manner which indicates that they were intended as a public service. The editor of The Montreal Gazette published the account of a servant convicted of desertion and condemned to pay fifteen shillings and costs, or face six weeks' imprisonment, under the less-than-subtle admonition "A WARNING TO SERVANTS!" (41) The Montreal Transcript included a similar account (reprinted from another local newspaper) which it published in an extremely eye-catching manner, stating that it "may prove of use to Masters and Apprentices in this city":

   SPECIAL SESSION,
   THURSDAY, February 10,
   BEFORE THE POLICE MAGISTRATES.

   Clarke Fitts & al. of Montreal, Baker,

   vs.

   Jean Baptiste Hupe, of the same place, Apprentice Baker. The
   defendant, convicted of having deserted the service of the
   prosecutor, whose indented Apprentice he is, and having
   absented himself therefrom for the last fifteen days, was
   condemned to two months imprisonment in the House of Correction,
   and to pay costs. (42)

As these newspaper accounts indicate, the sentences imposed by courts for desertion varied widely. However much a fifteen-shilling fine may have stung, a two-month term of imprisonment was infinitely worse. (43) The records of the proceedings before these courts allow for a systematic analysis of the variety of judicial dispositions used to enforce masters' interests in situations where servants breached the terms of their service. As the records for the Court of Weekly and Special Sessions were both the most voluminous and the most detailed, they constitute the primary source used for this analysis. Nevertheless, records from other courts also proved helpful. Analysis of the complaints filed before the Court of Weekly and Special Sessions, as well as of those disposed of summarily by justices of the Court of Quarter Sessions, offer information on the prevalence of breach of service cases among different categories of servants. With respect to the Court of Quarter Sessions, journeymen, labourers, and apprentices made up the preponderance of servants prosecuted during this period, accounting for over 80 percent of total prosecutions as shown in Figure 2. Figure 3 indicates that before the Court of Weekly and Special Sessions, they constituted nearly 60 percent. That three times as many cases before this latter court did not allow for identification of servants' occupations may account for this difference.

[FIGURES 2-3 OMITTED]

Similarly in both courts, domestic servants comprised between 8 and 10 percent of all prosecutions. Miscellaneous servants, however, made up four times as many defendants before the Court of Weekly Sessions as before justices of the Court of Quarter Sessions. Why this group of servants--which included such occupations as shop clerk, cart driver, and milkman--would have been so much more prevalent before one court than the other can only be a matter for speculation. It should be noted, however, that differences in nomenclature (e.g. whether a cart driver was identified as such, rather than simply as a "servant" or "labourer") could help explain this phenomenon.

a. The Police Court

Many desertion proceedings in Montreal were initiated before the Police Court. While the surviving records of the Police Court intersect with the period covered by this article for only a short time (July 1838 to January 1842), these records allow for another layer of analysis of how the law responded to breach of service cases. The police magistrate issued arrest warrants for deserters and processed arrests based on these warrants. (44) Once servants were arrested, the magistrate would release them on bail or jail them pending appearances before the Court of Weekly and Special Sessions or the justices of the Court of Quarter Sessions. (45)

The Police Court records occasionally offer picturesque glimpses into the world of master-servant relations that are otherwise unavailable. For example, on 2 December 1840 an apprentice was arrested by the police for "[f]orcing his master's door at midnight," most likely as he had skulked outdoors after hours. For this offence he was admonished by the police magistrate and then discharged. (46) These records are more valuable, however, by virtue of the information they provide on desertion prosecutions. It is clear from these records that successful prosecutions were frequently laborious processes, especially if defendants or their masters or both were not entirely cooperative in appearing in court. For example, on 25 September 1838 John Fullum swore an affidavit charging Olivier Mailloux with desertion, and the police magistrate accordingly issued an arrest warrant. (47) On 9 October Mailloux and his master both defaulted on their scheduled court appearance and the police magistrate issued another arrest warrant. (48) Mailloux was arrested and released on bail for his appearance at the following week's Court of Weekly Sessions. (49) On 16 October both parties again de faulted on their court appearance; (50) the police magistrate therefore issued another arrest warrant for Mailloux. (51) Mailloux was finally tried on 23 October and fined twenty shillings and costs. (52)

As Mailloux's case suggests, servants arrested for desertion were either released on bail or imprisoned to await trial. Although many were released on bail, insofar as many servants were of limited means, it is no surprise that a considerable number were imprisoned before trial. (53) As a result, some servants who were later acquitted spent lengthy times in prison. By way of example, in the summer of 1841 a journeyman carriage maker was arrested and bound over to the Court of Special Sessions, spending four days in prison before charges were dismissed against him. (54) Another servant was incarcerated for a week before being acquitted on the grounds that he had not entered into the prosecutor's service. (55) These cases were not unusual, and other servants endured even lengthier periods of pretrial incarceration.

For undisclosed reasons a small number of prosecutions were referred to the Court of Quarter Sessions for summary disposition. In all likelihood they were referred to that court as the timing of the prosecution coincided with the court's sitting. Only four such cases were identified, three of which clearly intersected with a session of that court. The one ambiguous case involved a servant arrested and admitted to ball in July 1838 to appear at the Court of Quarter Sessions. (56) Curiously, the records of this court contain a recognizance in the servant's name, but dated eight months later, perhaps for a separate offence or as the case had been postponed. (57)

During the period July 1838 to January 1842, the police magistrate issued 134 arrest warrants for servants. While the registers of the Police Court suffer from limitations, they allow for some extrapolation on the efficacy of the Montreal police at arresting runaway servants. Figure 4 indicates that approximately 72 percent of warrants resulted in arrests, suggesting that, for whatever reason, many servants who deserted did not leave the city. In all likelihood most deserters sought employment with another master in the city. Thirty-six of these warrants concerned servants for which no other records were found. In addition, records of fifty-three other prosecutions were found within the annals of the Police Court that have not survived in other judicial records, for a total of eighty-nine cases. The majority of these cases were most likely heard before the Court of Weekly and Special Sessions. Figure 5 sets out the dispositions of these cases, as well as the distribution by year of the warrants issued for servants who do not appear elsewhere in Montreal court records. Nearly one-third of these fifty-three prosecutions resulted in the defendant's being held for trial, although no other information was found on what disposition, if any, resulted. Another one-third of the cases were settled before the police magistrate prior to a formal court proceeding having commenced, (58) such as the case brought by Thomas Albert Martin against …

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Publication information: Article title: The Law of Servants and the Servants of Law: Enforcing Masters' Rights in Montreal, 1830-1845. Contributors: Pilarczyk, Ian C. - Author. Journal title: McGill Law Journal. Volume: 46. Issue: 3 Publication date: May 2001. Page number: 779+. © 2009 McGill Law Journal (Canada). COPYRIGHT 2001 Gale Group.

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