The Law of Servants and the Servants of
Law: Enforcing Masters’ Rights
in Montreal, 1830-1845
Ian C. Pilarczyk
The law governing masters and servants offers a
unique point from which to examine the history of Mont-
real 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 re-
constructs the judicial and quasi-judicial processes that ac-
companied the manifold master-senrant disputes. He con-
cludes 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 adver-
tisements as tools for protecting masters! tights. Through
analysis of these advertisements the author paints a colour-
fil and animated portrait of master-servant relations at that
time. The article also focusses on the role of courts in in-
terpreting 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 signifti-
cant differences.
Le droit regissant les rebtions entre emp!oyou at
,art pon r l’d.ui
ouvriers constitue un excelMlnt point &e d
de I’histoire du droit du travail montradais au dabu du
XIX sikle. Uauteur cxamina les moycns xqls l,
employetrs avaient recours pour faire reTectr amrs droits
dans le district judiciaire &-e Montrd-l durart las anicles
1830-45. I! reconsmit Irs proccssus judiciaires ct quasi-
judlaires associrs arx diff&ents conflits cmp!qyeur-
ouvrier n analysant divarses sour#-s prim*_- pro-rnant
des dossiers dcs tribunamr montrialais. 11 arri’e a la con-
clusion que. bien que la lttre d la loi semb!z avoir &l4 en
grn ral plus favorable amx emp!oy,-urs Ics tribuna
dtaient relativement impartiaux dans la rLalution LL- cc
type da conflits. I1 examine le ra!a qu’onjouS Ics anron a s
titre dz moyens 0.- prorlgrr is
plaales dans les joumaux l
droits d;s cmployurs. A trav ranalyse &- cs annoncrv,
l’autcur pr,.sente un portrait colord et vivant des rlons
. Lartia mat
employeur-ouvtier au dbut du , XT’
dgalemrnt l’acent sur le r6!a d:s triburrx dans
l’interprtation des conflits. en partzrculrr cu rl”tant d:
rabandon de remploi par d&-s ouvrirrs li.s par contrat.
Bien que I’asteur s concentre princilralnmt sur lz rO!a
des tribunaux dans la ville &e Montr&L, il effetu- gaa-
ment una comparaison avee ?r ro!r qua jouatmt Irs tnbu-
naux en drhors des limites &e la villa pur cornlure qua.
malgr, d nombreux points da ressemblan.e. i existait a ce
niveau d’importantes diff&=-e
.
“B.A. (McGill); I.D. (Boston University); LL.M. McGill); D.C.L candidate and sessional lecturer,
Institute of Comparative Law, McGill University. I am indebted to Shauna Van Praagh for her invalu-
able guidance as my LL.M. thesis advisor and G. Blaine Baker for his incisive comments and encour-
agement. In addition, I wish to acknowledge Nicholas Kasirer of the McGill Faculty of Law; Jeremy
Webber, Dean of the Faculty of Law, University of Sydney, formerly of the McGill Faculty of La,;
Paul Craven of York University; and Brian Young of the McGill History Department. This is a com-
panion piece to Pilarczyk, infra note 2. The applicable master-servant law during this period is exam-
ined in the preceding article.
McGill Law Journal 2001
Revue de droit de McGill 2001
To be cited as: (2001) 46 McGill LJ. 779
Mode de rdfdrence: (2001) 46 R.D. McGill 779
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MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
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
Ill. 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
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L C. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
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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 McIn-
tosh’s term of imprisonment was over, he sought refuge with his mother, but was ar-
rested once again. In light of his previous conviction the court viewed him as incorri-
gible and sentenced him to two months in the Montreal Gaol.’
The story of Robert Bruce McIntosh is one thread in the rich tapestry of Mont-
real’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 la-
boured each day, employed in innumerable occupations but united by the commonal-
ity of contributing to the city’s economy. While most servants left behind no written
documentation of their lives, 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.”
The number and variety of cases clearly reflect that master-servant disputes-in-
stigated 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 en-
forced 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 or-
ders, 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
‘ See bhifa note 109 and accompanying text for a firher discussion of McIntosh’s court appear-
2For a discussion of sources consulted, see generally LC. Pilarczyk, “‘Too Well Used by His Mas-
ances.
ter’: Judicial Enforcement of Servants’ Rights in Montreal, 1830-1845″ (2001) 46 McGill L.J. 491.
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of the applicable master-servant law or request that a notary (or a court) cancel an in-
denture! He could also prosecute his servant in a court of law, advertise him as a de-
serter, or both. The case of an apprentice printer in Montreal in 1830 reflects a com-
mon approach. Following the apprentice’s desertion, his master filed a complaint
against him on 18 November 1830.” 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 Gan-
bling.” ‘ The apprentice was likely arrested or returned shortly afterwards, as Tracy
brought another proceeding against him later the same month.’
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 mas-
ter-servant law was a means of seeking justice and combatting desertion and delin-
quency. This section analyzes in detail the legal and quasi-legal options available to
masters to enforce their rights vis-h-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 advan-
tage 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 slave-
holding states during this period. In Montreal masters commonly placed notices that
employees had been discharged or had left employment,’ and fathers renounced
‘For discussion of cancellation of indentures, see ibid. at 507-509.
‘Daniel Tracy v. Jean Baptiste Bourtron dit Larochelle (18 November 1830), Archives nationales
du Quebec A Montr~ad [hereinafter A.N.Q.M.], Files of the Court of Quarter Sessions [hereinafter
Q.S.(F.)].
The Vindicator and Canadian Advertiser (14 December 1830).
6Daniel Tracy v. Jean Baptiste Bourtron dit Larochelle (23 December 1830), A.N.Q.M., Q.S,(F).
SHistorians appear to have given advertisements for runaway servants relatively short thrift. For dis-
cussion of such advertisements, see e.g. B.D. Palmer, Working Class Experience, The Rise and Re-
constitution of Canadian Labour, 1800-1980 (Toronto: Butterworths, 1983) at 28 (nineteenth-century
Upper Canada); S.V. Salinger, “To Serve Well and Faithfidly”: Labor and Indentured Servants in
Pennsylvania, 1682-1800 (Cambridge: Cambridge University Press, 1987) (seventeenth- and eight-
eenth-century Pennsylvania).
‘ These advertisements were typically short on detail, such as “NOTICE-ISAAC AARON is no
longer in the employ of the undersigned. JOHN JONES” As such, they do not allow for meaningful
analysis. This particular advertisement, however, triggered a response by Aaron and a rebuttal by
Jones (The Montreal Gazette (11 January 1834) (Aaron’s response); The Montreal Gazette (16 Janu-
ary 1834) (Jones’s rebuttal)).
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IC. PILARCZYK- ENFORCING MASTERS’RGHTS/NMONTREAL
783
claims against their sons’ earnings by publishing advertisements to that effect! 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.” Advertisements also
publicized employment opportunities,” and were placed by unemployed servants
seeking positions.’2 Most relevant for the purposes of this article, however, is the mul-
titude of advertisements placed by English and French masters pertaining to servants
who had fled from their service.”
Newspaper advertisements are an intriguing source of intelligence on labour rela-
tions 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
” An advertisement evidencing a strict concern for legal formality is found in The Montreal Tran-
script (23 June 1840):
NOTICE is hereby given, that I, John Vandike, do this day give my Son ISAAC his
time, and shall not ask of him, nor demand of others any of his earnings, or of moneys
due him from others, in any manner whatsoever, after this date. I also forbid all persons
harbouring or trusting him on my account, as I will pay no debts of his contracting, af-
ter this date.
See MJ. Childs, Labour’s Apprentices: lbrlng-Class Lads in Late Victorian and Edwardian
England (Montreal: McGill-Queen’s University Press, 1992) at 15.
” Such advertisements were not examined, as they are beyond the scope of this work. In theory,
however, these advertisements could be used to analyze demands for labour during this period, al-
though their utility seems limited. See G.L. Hogg, The Legal Rights of Masters, Mistresses and Do-
inestic Senants in Montreal 1816-1829 (MA. Thesis, McGill University, 1989) at 20 [unpublished,
describing them as “repetitive and uninformative”. While I have not discussed such advertisements,
an exceptional example appearing in The Montreal Gazette (30 May 1845) is worth noting, in which a
mistress sought employment for her servant ‘A LADY is desirous to procure Situation as COOK or
THOROUGH SERVANT for a GIRL, who has been some time with her, and perfectly understands
her business in either capacity … and can give most unexceptionable and satisfactory references:’
12 See ag. The Montreal Gazette (15 September 1840) (advertisement by woman seeking a position
as servant “to wait upon a Lady or a Family of Children about to cross the Atlantic”).
.’ But see RH. Audet Apprenticeship in Early Nineteenth Century Montreal, 1790-1812 (MA.
Thesis, Concordia University, 1975) at 157 [unpublished]. Audet states that “[djesertion from the
service of the master appears to have been a problem peculiar to British-Canadian masters. Ads in the
newspapers of Montreal were placed by British-Canadian masters:’ While advertisements during the
period examined here were placed much more often by British-Canadian masters, examination of a
greater range of newspapers indicates that they were also placed by French-Canadian masters in
French-language newspapers. See ag. infra notes 17, 21. It should be observed that a considerably
larger number of English newspapers existed in Montreal during this period, but that French-
Canadian masters were well represented in desertion prosecutions.
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the capacity in which the servant was employed; and third, they represent a quasi-
legal tool used by masters to enforce their interests.”
For the years 1830 to 1845, advertisements of this kind were found in seven of
the ten Montreal newspapers examined.” Analysis of these papers identified seventy-
two servants who had deserted their master’s service within the judicial district of
Montreal.” Of these advertisements, nearly two-thirds were for apprentices.” A vari-
1, E.g. Quimby concludes that the law in colonial Pennsylvania “was no great deterrent … (as evi-
denced by] numerous advertisments in the newspapers for runaways” (I.M.G. Quimby, Apprentice.
ship in Colonial Philadelphia (New York: Garland Publishing Inc., 1985) at 85). The insights offered
by these advertisements are not limited to the enumerated categories discussed here. While not perti-
nent here, the advertisements offer information on the attire worn by servants of the time. See Audet,
ibid. at 91-92. The advertisements also provide a glimpse into some of the disgust felt by masters to-
wards runaways, as servants were described as “good-for-nothing”, “of sulky aspect”, and “as shabby
in appearance as he has proved to be in character”. See also Salinger, supra note 7 (noting at 108-109
that in the context of colonial Pennsylvania the language of description used for runaway female ser-
vants was often insulting). Salinger suggests that this may have “allowed masters to underscore their
servants’ inferiority while legitimizing their own positions of authority” (ibid. at 109). Descriptions
used in Montreal were intended primarily to aid detection, such as “out-mouthed [with) large teeth”
(Canadian Courant (11 September 1833)), possessing a “large drooping nose” (Canadian Courant
(16 May 1832)), or “pock-pitted in the face” (The Montreal Gazette (3 October 1833)).
‘” Advertisements were located in L’Ami Du Peuple (1832-1840), The Canadian Courant (1830-
1834), La Minerve (1830-1837, 1842-1845), The Montreal Gazette (1830-1845), The Montreal Her-
ald (1836-1837), The Montreal Transcript (1837-1845), and The Vindicator and Canadian Advertiser
(1830-1837). The greater frequency of ads for 1830-1836 largely mirrors the greater number of issues
available for those years. Advertisements that concerned servants who had deserted for areas outside
the judicial district of Montreal were not included.
6 See fig. 1, below. As a point of comparison, see D.T. Ruddell, Apprenticeship in Early Nineteenth
Century Quebec, 1793-1815 (M.A. Thesis, Universit6 Laval, 1969) at 170-71 [unpublished] (ap-
proximately fifty deserting apprentices advertised in Quebec from 1790 to 1812); Audet, supra note
13 at 157 (twenty-three advertisements for deserting apprentices in Montreal from 1790 to 1812); G.
Hamilton, Contract Incentives and Apprenticeship: Montreal, 1791-1820 (Ph.D. Thesis, Queen’s
University, 1993) at 129 [unpublished] (ten advertisements in The Montreal Gazette for deserting ap-
prentices in Montreal from 1791 to 1807). Salinger’s research indicates that the Pennsylvania Gazette
ran advertisements for 87 urban servants (and 365 rural servants) for the period 1744 to 1751 (supra
note 7 at 105). The advertisements in Montreal newspapers were placed overwhelmingly by urban
masters. Montreal masters typically advertised runaways in only one newspaper, so missing issues
foreclose the opportunity of identifying other runaways.
” Apprentice printers were by far the most common servants identified in these advertisements,
While myriad explanations may account for this, many of these servants were apprenticed to the
newspapers in which these advertisements appeared, leading to the conclusion that such advertise-
ments were more frequent as printers had readier (and cheaper) access to this medium. Ludger Du-
vernay, proprietor of La Minerve, advertised five runaways in four separate advertisements between
January 1832 and August 1836: La Minerve (2 January 1832), The Vindicator and Canadian Adver.
tiser (20 August 1833), La Minerve (27 August 1835), and La Minerve (4 August 1836). Advertise-
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LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
785
ety of explanations may be forwarded as to why apprentices appeared so often. Ap-
prenticeship as a form of work-study meant that masters had (at least in theory) in-
vested 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.” 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.”” Other masters placed advertisements re-
plete with vivid graphics of runaways, using images apparently used in earlier years to
advertise runaway slaves? The most common reward, when one was offered, was one
or two pence.’ Occasionally other rewards were offered, such as a “Brummagem-
meats for runaway apprentice printers also ran for longer periods than typical advertisments. The last
of the advertisements mentioned above, for a “garqon-imprimeur”, appeared recurrently for an aston-
ishing eight months! Among the other most common occupations of runaways were apprentice and
journeyman painter, domestic servant, and apprentice joiner, tinsmith, and blacksmith.
‘s E.g. a tinsmith by the name of John George-a master who was uncommonly troubled by de-
serting servants-placed the following advertisement in 1836:
ONE PENNY REWARD-Run away from the Subscriber, oan 31st July, JOHN
WILLIAMS and ALEXANDER JOHNSTON, two indented apprentices to the Tm
Smith Trade. All persons are forbid employing or harbouring them on any account
whatever Whoever shall bring them back, will receive the above reward. JOHN
GEORGE. Montreal, August 9, 1836 (The Montreal Gazette (9 August 1836)).
‘9 The Canadian Courwit (6 March 1830). In other instances fathers placed advertisements as a
means of insulating themselves from any debts incurred by their runaway children or to ensure that
masters did not hold them liable for their children’s desertion.
‘ See The Vmdicator and Caadian Advertiser (27 June 1834). Such a graphic appeared frequently
in this paper (along with the other graphics of runaways), which is the more intriguing considering
this was a pro-labour newspapen Perhaps it was a matter of convenience, or even a subtle comment on
the state of master-servant relations.
See e-g. La Miner’e (17 August 1835):
Deux Sols de Rdcompense. DESERTI7, du service du sos-sign., vendredi dewier, le
nomme LOUIS GABOURIE, apprenti peintre, dftment engag6. La sus dite rcompnse
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halfpenny”.’ 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”.? ‘
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 mas-
ter’s property, thus implicating both desertion and theft. ‘ 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.’
Another variety of advertisement simply announced that the servant had been dis-
charged, without offering any explanation. John George advertised one of his numer-
ous 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:’ 6
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
sera pay6e A ceux qui lui donneront des nouvelles; defense est faite t personne de loger
ou employer le dit apprenti. MICHEL MOSES, peintre, Montreal, 17 a6ut.
2 The Montreal Gazette (10 January 1835). A variety of coinage was legal tender in Montreal dur-
ing this period, including English, American, French, Spanish, and local or Halifax currency, of which
the above is an example. In the context of this article, the currency units referred to in indentures,
court judgments, and colonial legislation were primarily local currency (often referred to as “the cur-
rent money of the province” or “cours courant”), or British currency (explicitly referred to as “pounds
Sterling”). See D. Fyson, The Court Structure of Quebec and Lower Canada 1764 to 1864 (Montreal:
Montreal History Group, 1994) at 5. Local newspapers routinely published valuations for the numer-
ous types of currency in common use.
The Montreal Gazette (30 September 1830). She was likely an apprentice domestic.
2,See e.g. The Vindicator and Canadian Advertiser (29 January 1836):
TEN POUNDS REWARD. The Subscriber having been robbed on the night of the
15th November last, of about one hundred and five pounds in silver and gold; and
whereas he has good grounds of suspicion that the aforesaid robbery was committed by
one ANTHONY BYRNES, a carpenter by trade, who when last seen, was on his way
to New York, in company with GEORGE CARROLL, a runaway apprentice to the
Printing Business. Whoever will arrest the said BYRNES and CARROLL, will be en-
titled to the above reward. JOHN MORGAN. Bleury Street, 29th Jan. 1836.
The Canadian Courant (21 April 1832).
26 The Montreal Gazette (10 June 1834).
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LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
787
way of announcing that the particular servant in question was no longer in the mas-
ter’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 pro-
vided for the right to prosecute third parties for harbouring, enticing, or forcibly de-
taining servants; advertisements served as notice to potential employers that the ser-
vant in question was still legally in another’s service.’
Third, advertisements–especially those which make it clear that the master was
not seeking return of his wayward servant-likely served a social function.:- Masters
faced with intransigent servants, an insatiable demand for skilled labour, and the
knowledge that many servants could readily re-establish themselves in other commu-
nities may have sought to warn potential employers of the untrustworthy or peripatetic
nature of these runaways.’ Masters may also have sought to take a stand against the
For examples of third party prosecutions, see Parts ILC, lI.C, below.
For instance, The Montreal Transcript of 2 December 1837 noted that “[a] cart load of shavings
and no thanks are offered by a man in Illinois for the apprehension of a nunaway apprentice!” Some
advertisements, however, suggest that the master was actively seeking apprehension of his runaway
servant. See e.g. The Canadian Courant (20 July 1831), where a reward was offered “to any Person or
Persons, who will apprehend and lodge the Runaway in the Jail of Montreal or Quebec”; The Undi-
cator and Canadian Advertiser (3 April 1835), stating that “[a]ny communication respcting [the run-
away apprentice] … will be thankfully received:’
‘ Some advertisements were explicit negative character references. See e.g. The Vndicator and Ca-
nadian Advertiser (14 December 1830), which published an advertisement for an apprentice printer
stating that “the sole cause for his absconding arises from the contagion of Idle and Dissolute Com-
pany, and a Propensity to Gambling ..:’; The Canadian Courant (31 December 1830) published an
advertisement that stated: “I CAUTION any person from hiring a man of the name of DANIEL
DEEGAN … without enquireing [sic] his character from MAJOR COLCLOUGH, Dorvillier” An in-
teresting variant appeared in The Vindicator and Canadian Advertiser (13 August 1830), which stated
that a journeyman printer “having returned to his duty, has given such an explanation of his late con-
duct towards ourselves and others as tends greatly to remove the unfavorable impression previously
entertained of him.” One apprentice even went so far as to advertise to refute a charge of desertion:
NOTICE. WHEREAS, MR JAMES ROBB … has advertised me as an absconded ap-
prentice, threatening prosecution if found in anothers [sic] employ. This is therefore to
announce that I left the said JAMES ROBB’S employ, because he failed to pay me my
stipulated wages, neglected to instruct me, and from his being too often incapable of
doing so, owing to habits of intoxication. I have not absconded; but may be found by
Mrk ROBB or any other person, at the residence of my parents…
While the advertisement placed by Robb was not located, the rejoinder above is particularly illumi-
nating as publicly casting aspersions on a master’s character was no doubt a courageous act. It seems
equally clear, however, that the apprentice felt legally justified in leaving his service. Such “duelling
ads” were not uncommon in eighteenth- and nineteenth-century America. See WJ. Rorabaugh, The
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pernicious phenomenon of desertion, as the language of some advertisements explic-
itly states. Masters may even have been prompted by a desire to exact retribution.”
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.” Offering token re-
wards was most probably reflective of the fact that an unwilling servant who had de-
serted 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 par-
ticularly 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 pros-
pects, they were not always driven, however, by mere opportunism. Some servants
fled to escape domineering, exploitative, or abusive masters, or were motivated by
Craft Apprentice: From Franklin to the Machine Age in America (New York: Oxford University Press,
1986) 49-50; see also supra note 8.
3 See e.g. The Vindicator and Canadian Advertiser (7 October 1836), which advertised two run-
away printer apprentices, stating “we would caution Printers not to harbour them, as they thereby en-
courage similar conduct for others; besides that they know very little of the Printing Business”; The
Montreal Transcript (25 August 1838) (warning the public not to harbour or employ a runaway ap-
prentice, “as much for example as respect to justice”). Jeremy Webber reached similar conclusions
regarding the purpose of such advertisements in the context of nineteenth-century Ontario. See J
Webber, “Labour and the Law” in P. Craven, ed., Labouring Lives: Work & Workers in Nineteenth
Century Ontario (Toronto: University of Toronto Press, 1995) 105 at 148-49.
3″ To put this amount into perspective, The Montreal Transcript and General Advertiser, Lower
Canada’s first penny newspaper, appeared on 4 October 1836. For an amusing reference to a miserly
reward offered for a runaway apprentice in Toronto, see The Montreal Gazette (26 March 1844):
Mrs. Dunlop … advertises, under the heading “Catch the Thief,” the absquatulation of
her apprentice, James Wilkie by name, and offers the sum of one farthing for the dis-
covery of his whereabouts. Fie, Mrs. Dunlop! … We know several ladies who would
give a much larger sum for a worse specimen of the genus homo than James Wilkie
can possibly be, even were he a perfect Caliban. … Pray, how old may you be, if you
will allow us to ask so bold a question?
Note, nevertheless, that offering rewards for runaway apprentices was also largely unnecessary, as in-
formers in successful prosecutions would be awarded one-half of the fine levied by the court. See in-
fra note 85 and accompanying text.
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LC. PLARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
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homesickness or a desire to be closer to loved ones.” In so doing, runaways may have
sought to escape via outbound ships or enlisted in the armed forces.” 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,” and munici-
pal bylaws for the city known as the Police Regulations.” 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 re-
fusal to obey masters’ commands.” 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 prose-
n See eg. Salinger, supra note 7 at 103-104. Salinger notes that women were far more likely to des-
ert to join spouses or lovers than were men (ibid at 108).
‘3 See e.g. ibid at 103. Opportunities to join the armed forces would likely have been most frequent
during the rebellions of 1837-38. For a discussion of arrest rates regarding runaways, see text follow-
ing note 57; fig. 4, below, which suggests that senants were not often successful in deserting their
masters.
‘An Act More Effectually to Provide for the Regulation of the Police in the Cities of Quebec and
Montreal and the Town of Three-Rivers, 1817 (Qc.), 57 Geo. U1, c. 16 [hereinafter Statute of 1817].
See generally Pilarczyk, supra note 2.
‘ Compilation of the Bye-Laws and Police Regulations in Force in the City of Montreal (Montreal:
James Starke & Company, 1842) at 117-20 [hereinafter Police Regulations]. See Pilarezyk, ibid.
“Police Regulations, ibid at 118, para. 10. Analysis of judicial records suggests that the above of-
fences were often subsumed under the general rubric of “desertion”.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
cuted, 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.”
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.”
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.” It is irrefuta-
ble, 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.’
3″ Besides prosecutions and newspaper advertisements, the terms of indentures could themselves
play a part in combatting desertion, although legal proceedings were often needed to enforce them.
See generally Hamilton, supra note 16. The number of cases found before lower courts in Montreal is
in marked contrast to the observations Craven has made about the sparsity of such suits in nineteenth-
century Ontario. See P. Craven, “The Law of Master and Servant in Mid-Nineteenth-Century Ontario”
in D.H. Flaherty, ed., Essays in the History of Canadian Law, vol. 1 (Toronto: University of Toronto
Press, 1981) 175 at 181 [hereinafter “Law of Master and Servant”]. For discussions of apprentice
misbehaviour and prosecutions for employment offences, see e.g. Audet, supra note 13 at 101-103;
Ruddell, supra note 16 at 164-69.
” See e.g. Salinger, supra note 7 at 108. There were other disadvantages and risks to desertion,
among them the risk of unemployment, mobility loss, the possibility of having to repeat training, loss
of reputation, and the like (Hamilton, ibid. at 143-44).
39 In addition, prosecutions could antagonize neighbours and other members of the community. See
Webber, supra note 30 at 131.
‘ Due to the difficulty in dividing advertisements between the city of Montreal proper and the
greater district of Montreal, all relevant advertisements have been included in this figure, rather than
attempting to ascertain how many pertained specifically to masters and servants outside city limits.
Likewise, the number of imprisoned servants found within the records of the Montreal Gaol who
were employed outside city limits is not ascertainable. These figures are for separate prosecutions,
cross-indexed to prevent misidentification. Undoubtedly these figures are far from complete, due to
the vagaries of the records. As a point of comparison, in Quebec City 202 apprentices were identified
as having deserted during the period 1800 to 1815, not including other varieties of servants. See gen-
erally J.-P. Hardy & D.-T. Ruddell, Les apprentis artisans a Quibec 1660-1815 (Montreal: Presses de
l’universit6 du Quebec, 1977). In Massachusetts the criminal provisions of state labour statutes were
invoked against apprentices and minor servants before the Boston Police Court sixty-one times for de-
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LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
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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’ impris-
onment, under the less-than-subtle admonition “A WARNING TO SERVANTS!”
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, con-
victed of having deserted the service of the prosecutor, whose indented Ap-
prentice 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 deser-
tion varied widely. However much a fifteen-shilling fine may have stung, a two-month
term of imprisonment was infinitely worse.” The records of the proceedings before
sertion, and nineteen times for disobedience, during the period 1822 to 1859. Furthermore, a few am-
biguous cases were found that suggest courts were willing to use criminal sanctions against adult ser-
vants. See CL. Tomlins, ‘The Ties That Bind. Master and Servant in Massachusetts, 1800-1850″
(1989) 30 Labor Hist. 193 at 212. Adult servants in Massachusetts (except for seamen, African and
Native Americans, and indentured servants) were disciplined through civil suits (ibid. at 217).
” The Montreal Gazette (22 January 1835). Newspapers did occasionally publish dispositions of
desertion cases, most commonly in French-language newspapers, although these were far from fre-
quent. See e.g. La Miner’e, infra note 76; LAnd Dui Peuple, infra note 140.
2 77e Montreal Transcript (15 February 1842) (citing the Morning Courier and Commercial Mes-
senger).
” While this observation would be true under virtually any circumstances, prison conditions in
Montreal at this time were abysmal: overcrowding, vermin, inadequate heat, and diets of bread and
water (except on Sundays and holidays, when meat was provided) were common fare See e.g. MA
Poutanen, “Reflections of Montreal Prostitution in the Records of the Lower Courts, 1810-1842” in
D. Fyson, C.M. Coates & K. Harvey, eds., Class, Gender and the Lm%- in Eighteenth- and Nineteenth-
Century Quebec: Sources and Perspectires (Montreal: Montreal History Group, 1993) 99 at 109.
Frequent reference to the appalling prison conditions were made in newspapers of this period. For an
example of the conditions, see e.g. L’Ami Du Peuple (12 December 1835) (coroner’s inquest of pris-
oner incarcerated for vagabondage disclosed that “il est mort de froid, d’inanition et mUre. I1 n’avait
792
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
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 infor-
mation on the prevalence of breach of service cases among different categories of ser-
vants. With respect to the Court of Quarter Sessions, journeymen, labourers, and ap-
prentices made up the preponderance of servants prosecuted during this period, ac-
counting for over 80 percent of total prosecutions as shown in Figure 2. Figure 3 indi-
cates 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 iden-
tification of servants’ occupations may account for this difference.
Similarly in both courts, domestic servants comprised between 8 and 10 percent
of all prosecutions. Miscellaneous servants, however, made up four times as many de-
fendants before the Court of Weekly Sessions as before justices of the Court of Quar-
ter 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.” Once servants were arrested, the magistrate would release them on
dans sa prison ni hardes pour se vetir, ni lit pour se coucher, ni couverture pour se preserver du froid,
pas meme de paifle sur son plancher pour s’y reposer”); The Montreal Gazette (29 October 1845) (de-
scribing conditions in the prison as “shocking to humanity”). Despite the harsh conditions, prostitutes
and the homeless often sought imprisonment to escape exposure to the harsh winter, intentionally
committing or threatening to commit crimes so as to be arrested. See e.g. Poutanen, ibid. at 108-109.
” Many arrests were based on “suspicion of desertion”, and in all likelihood this pertained almost
exclusively to seamen. Such cases are therefore excluded from analysis unless clearly identified as in-
volving non-seamen.
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LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
793
bail or jail them pending appearances before the Court of Weekly and Special Ses-
sions or the justices of the Court of Quarter Sessions!’
The Police Court records occasionally offer picturesque glimpses into the world
of master-servant relations that are otherwise unavailable. For example, on 2 Decem-
ber 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.” These records are more
valuable, however, by virtue of the information they provide on desertion prosecu-
tions. It is clear from these records that successful prosecutions were frequently labo-
rious processes, especially if defendants or their masters or both were not entirely co-
operative 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.” On 9 October Mailloux and his master both de-
faulted on their scheduled court appearance and the police magistrate issued another
arrest warrant. ‘ Mailloux was arrested and released on bail for his appearance at the
following week’s Court of Weekly Sessions.”‘ On 16 October both parties again de-
41 It is unclear why a small minority of cases were sent directly to the petty sessions of the Court of
Quarter Sessions rather than to other courts, although it is likely that these cases were sent to courts
based on the timing of their next session. The records (and the jurisdiction) of the Police Court essen-
tially overlapped with the Court of Weekly and Special Sessions. As the newspaper account accom-
panying note 42 indicates, police magistrates also sat as members of the Court of Weekly and Special
Sessions, and had essentially the same jurisdiction as justices of the peace. Thus, on many occasions a
defendant was arrested and brought before a police magistrate and the case was heard the same day
before the Court of Weekly or Special Sessions. The dispositions of many cases before these courts
appear in the records of the Police Court. Records on cases sent before these courts and the Court of
Quarter Sessions that have not otherwise survived can therefore be gleaned from the Police Court
registers. These cases have been compiled in fig. 5, below. It is important to note that justices had the
power to act alone to “resolve” cases by virtue of their ministerial function, even though they would
not have had the authority to impose formal judgments. In some instances this made little difference,
as justices could require defendants to provide bail or surety, and could summarily imprison them for
default. See D. Fyson, Crinzinal Justic Civil Society and the Local State: The Justices of the Peace in
the District of MontreaL 1764-1830 (Ph.D. Thesis, Universit6 de Montrl, 1995) at 34-35 [unpub-
lished, hereinafter Justices of the Peace in the District of fontreal].
Donina Regina v. Join Snith (2 December 1840), A.N.Q.M,, Registers of the Police Court
[hereinafter RC.(R.)] 34.
‘ Queen v. Olivier Mailloux (25 September 1838), A.N.Q.M., P..(R.) 120. It is a striking element
of the judicial processes of this period that courts often issued arrest warrants for obdurate servants,
rather than summonses to appear in court. See eg. Justices of the Peace in the District of Montreal,
supra note 45 at 313.
‘John Fuliw v. Olivier Mailloux (9 October 1838), A.N.Q.M., Registers of the Court of Weekly
Sessions [hereinafterW.S.S.(R.)] 247 [hereinafter OlivierMailloux (9 October 1838)].
41 Queen v. OlivierMailloux (9 October 1838), A.N.Q.M., P.C.(R.) 138.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
the police magistrate therefore issued another ar-
faulted on their court appearance;’
rest warrant for Mailloux.’ Mailloux was finally tried on 23 October and fined twenty
shillings and costs.”
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.” As a result, some servants who were later acquitted
spent lengthy times in prison. By way of example, in the summer of 1841 a journey-
man carriage maker was arrested and bound over to the Court of Special Sessions,
spending four days in prison before charges were dismissed against him.’ Another
servant was incarcerated for a week before being acquitted on the grounds that he had
not entered into the prosecutor’s service.” 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 re-
ferred 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 bail
in July 1838 to appear at the Court of Quarter Sessions.’ Curiously, the records of this
court contain a recognizance in the servant’s name, but dated eight months later, per-
haps for a separate offence or as the case had been postponed.”
During the period July 1838 to January 1842, the police magistrate issued 134 ar-
rest warrants for servants. While the registers of the Police Court suffer from limita-
tions, they allow for some extrapolation on the efficacy of the Montreal police at ar-
‘John Fullum v. OlivierMailloux (16 October 1838), A.N.Q.M., W.S.S.(R.) 254 [hereinafter Oliv-
ierMailloux (16 October 1838)].
‘,Queen v. OlivierMailloux (16 October 1838), A.N.Q.M., P.C.(R.) 143.
“John Fullum v. OlivierMailloux (23 October 1838), A.N.Q.M., W.S.S.(R.) 257. Unfortunately, no
information exists on why Fullum defaulted on his court appearance on two occasions, or why the
police magistrate continued to issue arrest warrants for Mailloux.
” One such example involved a servant charged with assaulting his master before the Police Court,
who was “committed for want of bail” (Domina Regina v. William Griffits (11 May 1840), A.N.Q.M.,
P.C.(R.) 152 at 152).
‘4Domina Regina v. Andre Moses (7 June 1841), A.N.Q.M., P.C.(R.) 200; Hypolite St. Amour v.
Andr6 Moses (11 June 1841), A.N.Q.M., W.S.S.(R.) 153 (dismissed with costs).
” Domina Regina v. Charles Requg dit Lalonde (29 October 1839), A.N.Q.M., P.C.(R.) 288; Isidore
Charlebois v. Charles Rique dit Lalonde (5 November 1839), A.N.Q.M., W.S.S.(R.) 617 [hereinafter
Isidore Charlebois].
Queen v. Etienne Beneche dit Lavictoire (20 July 1838), A.N.Q.M., P.C.(R.) 29.
“Augustin Lamorte v. Etienne B. Lavictoire (28 March 1839), A.N.Q.M., Q.S.(F.).
2001]
LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
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resting runaway servants. Figure 4 indicates that approximately 72 percent of wanants
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 an-
other 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 re-
cords, 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 disposi-
tions of these cases, as well as the distribution by year of the warrants issued for ser-
vants 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 pro-
ceeding having commenced,:’ such as the case brought by Thomas Albert Martin
against one of his apprentice painters.” A disproportionately large number of these
settled cases occurred in 1841, suggesting that during that time the presiding police
magistrate took greater pains to encourage the parties to settle rather than to continue
with the adversarial (and often protracted) process of litigation.
Once formal proceedings had progressed further, while courts still freely gave
leave to parties to settle out of court, settlement may have been less likely. This was
perhaps because the nature of adversarial proceedings tended to cement each side’s
stance towards its antagonist. Nonetheless, 2 out of 133 suits before the Court of
Weekly and Special Sessions were explicitly settled, such as the case in which a mas-
ter and his servant appeared before the court and requested permission to drop pro-
ceedings, to which the court acceded.’
These cases and others like them illustrate that courts saw one of their functions
as facilitating amicable resolution of disputes, rather than automatically interposing
the heavy hand of the law between what were essentially personal relationships. In-
” As fig. 5 illustrates, 35.8 percent of the cases identified solely within the records of the Police
Court were settled.
“Domina Regina v. Samuel Jackson (30 March 1842), A.N.Q.M., P.C.(R.) 45. This was one of only
three desertion cases, found at the very beginning of this particular register, most likely as the pre-
ceding register was fulL As mentioned, Thomas Albert Martin also twice prosecuted another of his
apprentices, Robert Bruce McIntosh, a year prior to this proceeding. See text accompanying note 1;
infra notes 109-15.
‘ Andri Giguere v. Pierre Delisle (19 April 1834), A.N.Q.M., W.S.S.(R.) 838. See fig. 6, belm. It
is likely that this result is artificially low, especially as nearly 10 percent of the judgments in these
cases were not identifiable. It is reasonable to conclude that a significant number of these unidentifi-
able judgments consisted of settlements, especially as information on convictions was often retriev-
able from multiple sources.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
deed, settling disputes in a non-adversarial manner was a common juridical function,
especially in rural areas where such a resolution was infinitely preferable to the possi-
ble negative repercussions that a court judgment might engender.” Unfortunately, it is
not possible to know the conditions under which cases such as these were settled.
In other instances masters requested that their servants be discharged from prison
prior to trial, perhaps as they felt pretrial incarceration had been sufficient punish-
ment. A house servant was arrested and committed to trial for desertion in 1838, but
was discharged from prison at his master’s request.”2 Another servant was arrested for
desertion and discharged at his master’s bidding, yet was rearrested the following
day.’ What accounts for this change of heart cannot be ascertained, but one possible
explanation is that the servant was discharged from prison with the understanding that
he return to service and yet failed to do so. In all instances involving imprisonment of
servants, the servants could be released at any time prior to trial or expiration of their
sentence, if they consented to return.’
b. The Court of Weekly and Special Sessions
As previously mentioned, desertion prosecutions commenced in the Police Court
were primarily adjudicated by the Court of Weekly and Special Sessions. The Weekly
and Special Sessions, in fact, disposed of the preponderance of desertion cases during
this period. The records of these courts indicate that dispositions of desertion cases
encompassed every conceivable judgment from acquittal to lengthy incarceration. To
61 See e.g. S. Lewthwaite, “Violence, Law and Community in Rural Upper Canada” in J. Phillips, T.
Loo & S. Lewthwaite, eds., Essays in the History of Canadian Law, vol. 5 (Toronto: University of To-
ronto Press, 1994) 353 at 368-69.
62 Queen v. Levis Wicknan (6 October 1838), A.N.Q.M., P.C.(R.) 135; Queen v. Lewis Wickman (8
October 1838), A.N.Q.M., P.C.(R.) 137 at 137 (“the prisoner was discharged from the Common Gaol,
at the request of the private prosecutor Henry Walmsley”).
‘ Queen v. Theophile Lafontaine (8 February 1839), Montreal, A.Q.N.M., P.C.(R.) 283 at 283 (ar-
rested for desertion, “discharged by consent of his Master”); Queen v. Theophile Lafontaine (9 Febru-
ary 1839), A.N.Q.M., EC.(R.) 284 at 284 (“on charge of desertion on the affidavit of [his master]
committed for trial”).
‘ This point is made in Justices of the Peace in the District of Montreal, supra note 45 at 358, n.
794. The number of cases in which servants were discharged from prison before their sentences were
completed can be ascertained only by examination of the relevant registers of the Montreal Gaol. My
examination of the registers for 1830 to 1845 indicates that this happened fairly frequently. See e.g.
Commitment of Mary Rudd (incarcerated 10 April 1831), A.N.Q.M., Register of the Montreal Gaol
[hereinafter M.G.(R.)] (“condemned to pay a fine of one pound and one week imprisonment from 10
April”, but discharged on 11 April). In exceptional cases, servants could even be pardoned after con-
viction, as was the case with Robert Bruce McIntosh. See text accompanying note 115.
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LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
797
illustrate the scope of the judgments rendered, a few representative examples of sen-
tences imposed upon conviction will be discussed.”
Servants appearing before the Court of Weekly and Special Sessions were con-
victed in approximately 60 percent of the cases. In three cases defendants were con-
victed in absentia by virtue of their having defaulted in making their scheduled court
appearances. These records also suggest that the overall conviction rate for the years
1838 to 1843 (despite the unusually high rate in 1840) was markedly lower than that
for the years 1832 to 1835, with a concomitant rise in the rate of dismissed cases.
Sentences upon conviction exhibited considerable variety. The Court of Weekly
and Special Sessions most often imposed costs, imprisoned the defendants, ordered
them to return, or imposed a fine. Over 40 percent of defendants were explicitly or-
dered to return to service within a specified time upon pain of imprisonment. As
shown in Figure 7, servants were incarcerated outright in approximately one-sixth of
those cases that resulted in conviction. Costs were assessed against servants in 78.3
percent of cases, while fines were imposed in nearly 50 percent. The length of threat-
ened prison terms in the case of default differed dramatically. An apprentice shoe-
maker was ordered to return within three days or face fifteen days in prison,”‘ while an
apprentice tailor faced one month’s imprisonment, but was ordered to pay only half
costs, implying that the court felt both parties shared fault
One of the many servants who appeared within the annals of employment prose-
cutions for having deserted the service of Henry Talon dit Lesperance, shipwright and
boat builder, was fined twenty shillings and costs in 1835. The justices postponed
further judgment, however, to decide whether they could order the servant to return to
service. They concluded that they could, and imposed the sentence of one month in
jail for default.’9 Likewise, an apprentice to Workman and Bowman Printers faced two
‘Fg. 6, below, shows the overall disposition rates for all prosecutions before the Court of Weekly
and Special Sessions. The dispositions found are as follows: conviction; dismissed prosecutions;
prosecutor’s default; defendant’s default; prosecution settled; servant discharged by pros~cutor’s re-
quest; defendant defaulted but acquitted; and dispositions that could not ba identified.
6′ Cases in which there were more than one defendant are categorized as separate prosecutions.
Prosecutions involving multiple defendants were virtually always those in which the defendants were
sailors, and are excluded from consideration.
Elie Chassi v. Joseph Lacroix (25 August 1835), A.N.Q.M., W.S.S.(RL) 251; see also John and
Williwn Molson v. Thomas Hodges (26 May 1835), A.N.Q.M., NV.S.S.(IL) 121 (maltster employed by
Molson’s Brewery ordered to return “immediately to accomplish his time”, in default of which to
serve fifteen days’ imprisonment, and fined twenty shillings and costs).
6 Charles Mudford v. John Carroll (3 November 1835), A.N.Q.M., W.S.S.(R.) 331.
‘Henry Lesperance v. Joseph Graton (31 March, 7 April 1835), A.N.Qt., V.S.S.(R.) 81, 87. Un-
fortunately, the particular circumstances of Gratton’s case are not recorded.
798
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
months’ incarceration if he failed to “forthwith return” to his master’s service.70 In a
few instances, however, courts ordered servants to return to service or face paying a
fine, rather than on pain of imprisonment. In 1833 an apprentice tailor was ordered to
pay costs and return to service or pay a penalty of ten pounds-an unusually large
potential fine, especially for an apprentice. One possible explanation for the heavy
fine was the testimony of another apprentice, who testified that the defendant had
sought a discharge as he was offered the sum of ten pounds to enter another master’s
service.7′ Alternatively, for other unknown reasons, the court or the master may have
been reluctant to threaten imprisonment. It is unlikely that this sum was stipulated in
the apprentice’s indenture as a penalty clause, both as it was not mentioned in the
court’s judgment, and as the clause would presumably have been triggered by the act
of desertion itself.’
Courts also sporadically ordered servants back to service without the threat of a
fine or imprisonment in the case of default. In these cases they frequently assessed a
fine of five, ten, or twenty shillings. For example, a journeyman to Henry Talon dit
Lesperance alleged that he was not provided “good and sufficient board and lodg-
ing”” and claimed a shortage of food, “[e]specially of bread”,” but was nevertheless
ordered to return and fined twenty shillings and costs. Other servants were merely
sent back to service upon paying the costs of the prosecution, as was the case with an
apprentice baker.” Examples were also found in which courts released servants from
prison at their master’s entreaty or at such time as they agreed to return to service.7
70 Benjamin Workman v. John Edmundstone (21, 28 August 1832, 4, 11 September 1832),
A.N.Q.M., W.S.S.(R.). See also La Minerve (30 August 1832), which contained an account of Fran-
qois Xavier Beauchamp’s trial before the Court of Weekly Sessions: “Convaincu d’avoir laiss6, sans
permission, le service de son maitre condamn6 A retourner sous trois jours au service de son maitre,
faute de quoi, A 8tre confin6 dans la prison durant deux mois” (Charles Couvrette v. FranFois X.
Beauchamp (28 August 1832), A.N.Q.M., W.S.S.(R.) 321).
“George Fax v. John Riley (23 July 1833), A.N.Q.M., W.S.S.(R.) 374 [hereinafter George Fax].
7 See infra notes 192, 193 and accompanying text for examples of a justice of the peace enforcing
such a provision. It should be noted that default of payment of fines could result in imprisonment, so
that some dispositions did not explicitly mention imprisonment for default does not preclude the pos-
sibility that these servants could nevertheless have been jailed. That in some cases courts did not
mention penalties for defaulting on payment of fines, however, suggests that the prosecutor or the
court itself was loath to have the servant in question imprisoned.
7″Henry Talon dit Lesperance v. Joseph Sanford (15 April 1834), A.N.Q.M., W.S.S.(R.) 834 at 834.
71bid at 836.
” AlexanderBoure v. Henry Popham (17 June 1839), A.N.Q.M., W.S.S.(R.) 453.
76This manner of release occurred most often before the Police Court or justices of the peace out-
side the city. See La Minerve (22 November 1832), stating that before the Court of Weekly Sessions,
“Michel Bourgouin, pour avoir quitt6 et abandon6 le service de son maitre, condann6 h 6tre em-
prisonn6 jusqu’ ce qu’il retourne au service de son dit maitre’ The corresponding judicial record
was not found.
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That so many servants were returned to service is powerful evidence that one of the
primary reasons driving prosecutions was to ensure that delinquent servants com-
pleted their terms of employment.
In some instances a master had to pursue legal action on more than one occasion
to effectuate a servant’s return. For example, Alexander McPherson, a labourer bound
for one year, deserted from his master’s service, was convicted by the Court of
Weekly Sessions, and ordered to return within twenty-four hours or face one month in
prison and to pay costs.’ Two days later McPherson still failed to return, prompting
his master to seek his arrest.
In a handful of cases defendants were explicitly ordered to make up the time lost
through their desertion. While the reasons for this disposition were seldom discussed
in the records, it is possible that the terms of the contract contained such a stipulation,
that the disposition was specifically requested by the master, or that it was required by
the nature of the service itself. For example, the Court of Weekly Sessions condemned
a journeyman furrier to pay ten shillings in fines and costs, return to service or face
two months in jail, and make up the time.’ Similarly, an apprentice tinsmith who
pleaded guilty was ordered to return, pay costs, and “endemnify [sic] [his master] for
his time lost ‘ ‘ I
A considerable number of servants were fined but not explicitly sent back to
service, perhaps as they had already entered the service of another or as their em-
ployer did not request it. These fines ranged from one shilling to ten pounds, and de-
fault commonly subjected the servants to imprisonment. In giving representative ex-
amples of the fines imposed, it should be emphasized that there was seemingly no re-
lationship between the fine and the length of the prison term imposed for default on
payment A servant who admitted his engagement but denied he was ever actually in
the prosecutor’s service was convicted and fined five shillings and costs or one month
in prison.’ Another indentured servant was fined one shilling and costs or two months
Alexander Grant v. Alexanuer McPherson (23 June 1835), A.N.Q.M., N.S.S.(R.) 144.
7Alexander Grant v. Alexauder McPherson (25 June 1835), A.N.Q.M., Q.S.(F.).
9 E.g. in colonial New York courts usually ordered runaway apprentices to serve twice the time they
missed, if the absence was of at least a day’s duration and registered with local authorities, in keeping
with legislative enactments. See Hamilton, supra note 16 at 20. For discussion of courts’ ordering ser-
vants to make up lost time beforejustices of the peace, see infra note 192 and accompanying teXt.
Samuel Davis v. Franfois Xavier Dufresne (11 December 1832), A.N.Q.M., W.S.S.(R.) 517.
“Jean Baptiste Asselin v. Jean Pensier (18 September 1840), A.N.Q.M., N.S.S.(R.) 907.
2Arthur Webster v. Johm Dredge (18 December 1838), A.N.Q.M., W.S.S.(R.) 281 (half the fine to
prosecutor and half to road treasurer). As mentioned, many servants were bound by verbal rather than
written contract. As an example of a case involving a verbally bound servant, a servant hired for one
year to a Montreal trader and coal merchant was convicted of desertion in 1834. During the proceed-
ings two witnesses for the prosecution testified that they had first-hand knowledge of the servants
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in jail for default,’ while an identical term of imprisonment was faced by a servant
fined five pounds and costs.’
Analysis of these prosecutions also indicates that informers occasionally played a
part in suits for breach of service. Placing advertisements had obvious utility as a
means of identifying runaways, but the token rewards offered by masters (when they
were offered at all) could not have been a powerful inducement for third parties not
already inclined to apprehend runaways. The provincial statute, however, provided
that informers would be awarded one-half the fines collected in any prosecutions in
which they were involved, and informers appear intermittently in desertion suits dur-
ing this period.’ For example, in one case in which a labourer was fined five pounds
on pain of two months in prison, the fine was remitted equally to both an informant
and the road treasurer.’
As these sentences make clear, imprisonment was commonly used as a means of
ensuring obedience to judicial rulings. Courts were also not adverse to imprisoning
servants outright, but the nature of the records leaves no explicit indication as to why
they chose to do so in some cases and not in others. Analysis suggests that imprison-
ment was generally imposed when defendants were recidivists, or against those whose
desertion posed the greatest pecuniary loss or inconvenience to their masters. The ex-
treme heterogeneity of sentences also indicates that no standardized guidelines were
used, other than those imposed by legislative parameters and the general principle that
defendants who pleaded guilty received lesser sentences.
In fact, the range of sentences imposed was dramatic. A misbehaving servant
sentenced before the Court of Special Sessions received eight days in prison,’ while a
female domestic convicted of disobeying orders was imprisoned for ten days.” Sen-
tences of approximately two weeks’ imprisonment appear to have been the norm, as
experienced by a servant in 1841 who defaulted on his court appearance and was con-
being bound to the prosecutor’s service and that he had subsequently left without permission (Wllian
Manuel v. William Haldenby (13 May 1834), A.N.Q.M., W.S.S.(R.) 863).
8 3 George Gray v. Joseph Wanvick (25,27 June 1839), A.N.Q.M.,
84Charles Grant v. George Sweeny (2 June 1840), A.N.Q.M., W.S.S.(R.) 803; see also L’Ami Du
.S.S.(R.) 463,471.
Peuple (10 June 1840).
” Statute of 1817, supra note 34, s. 13. For a discussion of the role of informers in apprenticeship
prosecutions in sixteenth- and seventeenth-century England, see M.G. Davies, The Enforcement of
English Apprenticeship: A Study in Applied Mercantilism 1563-1642 (Cambridge, Mass.: Harvard
University Press, 1956) at 40-76.
‘ Supra note 84. See also Edward Maitland v. Samuel Williamson (5 June 1840), A.N.Q.M.,
W.S.S.(R.) 805 (fine of two pounds and costs, half to informer and half to road treasurer).
” Bartholomew Conrad [Gugy] v. Oliver Purvis (27 November 1843), A.N.Q.M., Court of Weekly
and Special Sessions, Criminal Matters [hereinafter W.S.S.(C.M.)].
u John Richard Fraser v. Mary Kennedy (21 July 1840), A.N.Q.M., W.S.S.(R.) 844 [hereinafter
Mary Kennedy).
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victed in absentia.’ In contrast, another servant was convicted, also in absentia, but
sentenced to two months’ incarceration.?
As these cases demonstrate, courts often imposed the weight of the law to enforce
masters’ interests. Discussion of judicial responses to employment breaches would be
incomplete without at least a cursory examination of the defences proffered by ser-
vants and rejected by courts, as analysis of these defences offers a penetrating glimpse
into social mores and judicial attitudes of this period. In discussing such offences it
must be noted that servants often pleaded “justification”, but what form this took in
individual cases was recorded only infrequently. Of the defences raised by servants,
the three most common were ill-treatment, unlawful withholding of wages due, and
violation of the terms of employment. Of these three, the cases that discuss ill-
treatment are not only the most frequent, but also the most comprehensive.
Ill-treatment as alleged by servants encompassed treatment that ranged from sim-
ple neglect to physical abuse. While it is difficult to extrapolate with certainty from
these records, it appears that while courts looked into allegations of mistreatment,
they tended to take a narrow view of the contractual relationship. Failure of the master
to abide by the financial terms of the agreement was more readily seen as grounds for
desertion than was neglect, for instance, and while allegations of poor food and mis-
treatment appear throughout the court records, they were not successful as defences.
Such was the experience of a labourer in 1840, indentured for one year, who pleaded
justification based on improper treatment and “want of proper nourishment”, but was
nevertheless fined five pounds and costs’ Cases involving more explicit instances of
physical abuse were far from infrequent, and they indicate that beating or whipping a
servant was generally viewed as a natural extension of a master’s authority. Two such
examples are given in their substantial entirety so as to illustrate the nature of the evi-
dence presented before these courts, as well as to depict the interplay between the
prosecution and the defence. It should be noted that defendants often did not call wit-
nesses on their behalf.
Hezekial Rice Cushing v. Joseph Allarie (2 December 1840), A.N.Q.M., W.S.S.(R.) 1001.
9′ Robert Handyside v. Thomas Higgens (11 June 1839), A.N.Q.., W.S.S.(R.) 443. See also John
Molson v. Michael Doran (15 August 1839), A.N.Q.M., W.S.S.(R.) 516, in which an iron caster vas
sentenced upon pleading guilty to two months’ imprisonment, five pounds’ fine, and costs. In light of
the defendant’s guilty plea and the heavy sentence imposed, this case suggests that his desertion may
have had an adverse impact on his master’s business. Of course his master’s social status may also
have been a factor.
9′ Supra note 84 at 804.
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The first such example is that of John Edmundstone, apprentice printer to the firm
of Workman and Bowman, who in 1832 was prosecuted for desertion.’ Edmund-
stone’s trial is intriguing for many reasons, not the least of which is that it was one of
the lengthiest breach of service trials of this period. Over the course of four days’ tes-
timony, nine witnesses were called before the court. Edmundstone, a minor, appeared
in court with an attorney, thereby giving him an implicit advantage over countless
others who appeared without counsel or were represented (in the case of minors) by
male relatives untrained in the law. His attorney answered the complaint by alleging
that Edmundstone was a minor and hence “not bound to answer this complaint, and
that he is not legally before this Court.”3 These arguments were overruled, however,
and he proceeded to enter a plea of not guilty.
Edmundstone alleged, inter alia, that he had been mistreated, served inadequate
food, and made to sleep with a boy suffering from typhus fever.’ Another employee
testified that he lived with the prosecutor for six years, was always well fed, and “saw
beds put up after the boy had got the Typhus fever “.’ On cross-examination he further
stated that he “never complained of the food served to him, except of its being too
fat[ty] “” It was the testimony of two other apprentices, however, that provided the
most detail of the method of correction that the defendant had endured. One of Bow-
man’s apprentices testified on direct examination that he did not see Mr. Bowman beat
the said defendant.’ Similarly, another of Bowman’s apprentices testified that “once
‘ Benjamin Workman v. John Edmundstone (21, 28 August, 4, 11 September 1832), A.N.Q.M.,
W.S.S.(R.) 309, 313, 322, 329. As the dates of this prosecution attest, courts that met weekly were ill
suited for lengthier cases.
9’ Minority could be a successful defence if it were shown that the employment contract was not
entered into with the aid of an adult parent or guardian. See infra note 140 and accompanying text.
‘ The first witness to confirm that Edmundstone had been subjected to corporal punishment was an
employee who testified on cross-examination that
there was some difficulty between the Complainants and said Deft. saw ML Workman
push said Defend[ant] and that in consequence whereof his head came in contact with
the partition that said Def[endant] slept at his mothers in consequence of another boy
having the Typhus fever, that he saw one dish of victuals served three times succes-
sively that he beat the Defendant, which was done till the Def[endant’s] Arms ached,
saw the Def[endant] beat chiefly on the head (supra note 92 at 329-34).
95 Ibid.
9I1bid.
The apprentice continued
that a sick boy was placed in the Defend[ant’s] bed; that he the deponent left the Com-
plainant’s also, that he knows that the Def[endant] slept at his mother’s, that bad food
was given to the boys, can’t say how often, that said food once smelt bad, that he has
seen the foreman at Complainant’s beat the Defend[ant]; cannot say whether this Oc-
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LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
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he heard the said Mr. Bowman give directions to the foreman, to beat the Defen-
dant” On cross-examination he admitted to having been present when the foreman
beat Edmundstone, but did not hear the latter “[p]ut the foreman to defiance’ He also
noted that “when the boys could not get sufficient food, they used to procure bread
and butter.” This evidence was further supported by yet another employee, who “saw
the foreman give the Def[endant] a thrashing’ and testified that he saw the foreman
kick the defendant and that the food served was sometimes wholesome and some-
times “middling”.”‘ A previous witness for the prosecution, Mr. Milholland, was re-
called to bolster the prosecution’s case and emphasized that “[o]ccasionally it was ab-
solutely necessary to correct the Def[endant]; the whip was used as a father might le-
gally correct his children with:”‘ This last assertion, while not comforting from a
modem perspective, apparently swayed the court, as it ordered Edmundstone to return
to service and pay costs or face two months’ imprisonment. Edmundstone’s life evi-
dently did not improve; two months later he chose the most viable option remaining
to him and deserted again, as evidenced by an advertisement placed by his master.’
The saga of John Edmundstone is not unique, being merely one of many similar
stories during this period. Servants often deserted to escape abusive working envi-
ronments, and a considerable number were prosecuted by their masters and convicted.
Even in the face of this, many servants persisted in their belief that the benefits of de-
sertion outweighed the hazards of uncertain justice-even if they themselves had been
previously convicted. One such servant, an apprentice named Regis Villeneuve, was
prosecuted in 1833 along wvith a fellow apprentice, Michel Racicot.'” Racicot admit-
ted the existence of his indenture, but convinced the court that it had been cancelled
by a subsequent written agreement and charges against him were dismissed. Ville-
neuve, for his part, admitted to having deserted his master’s service, but nonetheless
cured from Mr Bowman’s Orders, that the Def[endant] %vas flogged with a Whip
(ibi).
This apprentice
heard the foreman say to Mr Bowman that he had effectively followed the Orders
given so much that the [foreman’s] Arms Ached, that a Whip was used to effect this.
That Mr Bowman at times gave the boys good food and sometimes to the Contraiy
that he [had] seen bad food served several times, that he was not there when some diffi-
culty took place (ibid).
99Ibid
“‘i3bid
“‘i1bid
‘ The Canadian Courant (1 December 1832). Edmundstone’s second attempt may have been sue-
cessful, as his name was found in no subsequent desertion prosecutions.
‘3Pierre Alexander Trudeau v. Midiel Racicot & Regis Villeneuve (13 August 1833), A.N.Q.M.,
W.S.S.(R-) 424 [hereinafter Midcel Racicot].
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entered a plea of not guilty.”4 The court register reflects a similar litany of complaints
about inadequate nourishment and ill-treatment:
Jean B[aptis]te Parent de Montreal aprbs serment duement pr~t6 depose et dit
qu’a sa connaissance le poursuivant a battu et maltrait6 le Defendeur Regis
Villeneuve, Qu’il l’a frapp6 a Coup de pieds et qu’il a pris le dit Defendeur Re-
gis Villeneuve par le bras et l’ajett6 au moins a douze pieds de distance dans la
rue[.] Que cinq ou six fois ils ont eu de trs mauvais nourriture[;] Quelque
point de pain ou trbs peu.04
The court then called Michel Racicot to the stand:
Michel Racicot apr~s serment duement pret6 depose et dit que Samedi demier
en sa presence le poursuivant a battu et maltrait6 Regis Villeneuve son appren-
tif-a coup de pieds-dit que le poursuivant a pour habitude de boire des bois-
sons fortes[.] Que le poursuivant est souvent absent de sa maison.”
These two witnesses were the only witnesses heard by the court, and at least ostensi-
bly, seemed to buttress Villeneuve’s defence. Yet the court ordered that Villeneuve
“retourne immediatement au service du Poursuivant pour parachever son Engage-
ment”‘ ” Thus, if the facts as alleged were accurate, Villeneuve faced a veritable Hob-
son’s choice: return to service, or be fined six pounds or spend three months in prison
(although the statutory maximum was only two months). Villeneuve chose to return,
but deserted again the following year.'”
Robert McIntosh, it may be remembered, had also run afoul of the law. McIntosh
had deserted his master’s service early in 1841, two months after the start of his serv-
ice, prompting Thomas Albert Martin to secure an arrest warrant before a police
magistrate.’0 McIntosh was promptly arrested and tried the next day upon his plea of
guilty. The court sentenced him to fifteen days in prison, and apparently required he
return to service immediately afterwards.”‘
McIntosh, however, found the possibility of further prosecution less odious than
the prospect of returning to service. On the day of his release from prison, McIntosh’s
.. As was evidenced by numerous prosecutions during this period, confessing to an offence did not
foreclose the option of pleading not guilty in court, as this was apparently akin to raising a defence of
“justification”.
Michel Racicot, supra note 103 at 426.
10 Ibid
07 The court continued: “[A] drfaut de ce faire que le dit Regis Villeneuve payer une Amende de six
‘
Livres Courant. Autrement que le dit Regis Villeneuve soit confin6 dans la prison Commune de ce
District durant l’espace de trois mois. En Outre la Cour condamne le dit Regis Villeneuve le de-
fendeur en cette cause a payer les frais encourrus dans cette poursuite” (ibid. at 427).
‘. Pierre Alexander Trudeau v. Regis Villeneuve (22 July 1834), A.N.Q.M., W.S.S.(C.M.).
’09 [Thomas] Albert Martin v. Robert Bnice McIntosh (10 January 1841), A.N.Q.M., P.C.(R.) 85.
“o Thomas Albert Martin v. Robert Bnce McIntosh (11 January 1841), A.N.Q.M., W.S.S.(R.) 3.
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LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
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master again obtained an arrest warrant on the grounds that he had failed to return to
service.”‘ McIntosh was apprehended and brought before the Court of Weekly Ses-
sions. On this occasion McIntosh attempted a more elaborate defence, first claiming
that his indenture “though signed by … his mother is null because she was not author-
ised [legally] to bind him””2 The court rejected this claim, and McIntosh asserted ill-
treatment as an alternative defence. Among the testimony given was that of another of
Martin’s apprentices, Samuel Jackson, who asserted that Martin had struck McIntosh
“five or six times” but that he “was not stunned by the blows.””‘ The court once again
found for the master, and McIntosh was sentenced to two months’ incarceration with
hard labour.”‘ Perhaps because of his age or the circumstances of the case, he was ac-
corded the unusual privilege of receiving a governor’s pardon, and was released on 23
March 1841, approximately three weeks early.”‘
As accounts such as these demonstrate, courts were not overly sympathetic to al-
legations of ill-treatment. They assumed that masters had the right to inflict moderate
chastisement on unruly servants. While claims of ill-treatment did not avail servants
like Robert McIntosh, it is nevertheless an intriguing reality that desertion cases in
which ill-treatment was alleged tended to be among the most thorough and lengthy
proceedings. This suggests that while courts exhibited considerable deference to
masters with respect to their modes of discipline, the courts nonetheless deemed such
claims worthy of careful inquiry. Courts likely felt that ill-treatment did not justify de-
sertion, as the law provided mechanisms for servants to seek legal redress specifically
on that ground.”‘
2. Suspended and Variant Dispositions
Even in those cases resulting in convictions, it was not infrequent that sentences
were suspended or were variant dispositions (i.e. sentences that did not impose fines,
imprisonment, or costs). Suspended sentences were imposed in circumstances where
servants were explicitly employed on a probationary basis. On occasion courts even
.. 77ze Queen v. Robert Bruce McIntosh, Desertion, Affidavit of Thomas Albert Martin (26 January
1841 ), A.N.Q.M, W.S.S.(C.M.).
“ThonasAlbert Martin v. RobertBruce Mcintosh (8 February 1841), A.N.Q.M., V.S.S.(C.M.).
” ThoimnasAlbertMarthz v. Robert Bruce Mclniosh (17 February 1841), A.N.Q.M., W.S.S.(R.) 39 at
39.
“” No fhrther information on McIntosh was found within the judicial archives. Another apprentice,
Samuel Jackson, charged Thomas Albert Martin with assault and battery the following year, see Pi-
larczyk, supra note 2 at 523, n. 134.
… Robert Bruce Mclntosh (incarcerated 17 February 1841), Montreal, A.N.Q.M., M.G.(R.) (sen-
tenced to “2 months h[ard] l[abour] from date; discharged March 21 “by G[overnor’s] Pfardon]”).
,’ As discussed below, servants did bring these types of suits, and were often successful. See Pi-
larczyk, supra note 2 at 523-25 (within city limits), 526-27 (outside city limits).
806
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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went so far as to construe terms of employment as including probationary periods,
even if the terms of employment had not provided for such.
In 1841 the Court of Special Sessions heard a suit against a defendant who ad-
mitted to being engaged for one month on a trial basis ending the following week. At
the prosecutor’s request the court discharged him from service with no other recrimi-
nations.’ 7 In another lawsuit, after an apprentice rope maker pleaded guilty to having
“desert[ed] and secreted himself from the Complainant’s house, without permission or
justifiable cause “‘” the court postponed judgment with the master’s consent “until the
said plaintiff ascertains if the defendant will behave better than he has … done hereto-
fore.”‘ A comparable case involved a servant sentenced to two months’ incarceration
and costs in which “on motion of the Prosecutor the court takes off the emprisonment
[sic] and merely condemns the defendant to pay the costs of this suit”‘ 1′
These cases are somewhat unusual in that they involve situations where the mas-
ter either explicitly or tacitly supported suspending the sentence. While the vast ma-
jority of cases during this period were brought by private prosecution, courts were not
bound to adhere to masters’ preferences in desertion prosecutions. It is therefore not
surprising that most prosecutions which exhibit variant dispositions make no mention
of masters’ preferences at all.
Many judgments included variant dispositions upon the conviction of defendants
for breaches of service. Servants were frequently allowed to return to work without
fines, prison terms, or even court costs being imposed. For example, the court records
of a servant convicted of refusing to obey orders noted that he “agrees to go [back]
and accordingly he is delivered”‘ 1′ Such cases occurred in 15.1 percent of proceedings
before the Police Court, and in over one-third of the proceedings before justices of the
peace outside the city.” In other instances servants were convicted of or pleaded
guilty to desertion and were allowed to return to service with costs being imposed.’
A handful of cases were found in which courts did little more than scold unruly
servants. A servant named George Black, employed on a trial basis for one month in
1841, was prosecuted before” the Court of Special Sessions for desertion one day be-
fore his period of service was to end. The court register noted that the “prosecutor
.. Francis Rasco v. George Black (30 April 1841), A.N.Q.M., W.S.S.(R.) 87.
.John Adams v. Edward Lunnie (1 August 1842), A.N.Q.M., W.S.S.(R.) 621 at 621.
“‘ IbiL at 621-22.
’20 John Jones v. Edouard LaBrie (28 March 1835), A.N.Q.M., W.S.S.(R.) 79 at 79.
1 Charles
i1lliamson v. Thomas Clarke (22 September 1841), A.N.Q.M., W.S.S.(R.) 281 at 281.
See fig. 5, below (Police Court); fig. 8, below (justices of the peace).
‘ AlexanderBoure v. Henry Popham (17 June 1839), Montreal, A.N.Q.M., W.S.S.(R.) 453.
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LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
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prays that the Court may reprimand the said defendant, and that afterwards he may be
discharged and in consequence the said George Black is discharged:””
One of the most intriguing dispositions rendered by a court was a prosecution
brought by John George, the Montreal tinsmith from whom so many apprentices fled
during this period.'” The apprentice in question, Antoine Charbonneau, appeared with
his attorney before the Court of Special Sessions in December 1834. Charbonneau’s
attorney entered a plea of not guilty and admitted that the defendant was engaged to
the prosecutor. The court clerk recorded his defence as follows:
[Le nomm6 David George frre du Poursuivant demeurant comme pension-
naire chez le dit Poursuivant a sans aucune cause ni provocation assailli etjettd
par tere le dit d~fendeur et lui a donn6 plusieurs coups do pied dans le corps,
qu’en cons&tuence se ceci le d6fendeur qui est mineur s’est tmnsportd chez son
pare pour lui faire rapport de ce qui s’est passd, que le trois du courant au matin
le p re du drfendeur s’est transport6 avec son fils chez I Poursuivant pour
s’enqurir de ce qui s’6tait pass6 chez lui la veille et remettre son ils a son
bourgeois, sur l’expos6 que fit le pire a et effet de Poursuivant lui ordonna de
se retirer, sur quoi le phre lui dit qu’il ne lui laisserait pas son fils; le pire et le
d~fendeur lui mime sont tous deux consentant que le dtfendeur retoume au
service du Plaignant, en par lui dormant caution pour le dit David George qu’il
ne commettait plus d’assaut et Batterie sur le drfendeur et quo cette poursuite
soit renvoy&e sans frais.'”
In response George offered to take Charbonneau back into his service and pay the
costs of the prosecution. For unspecified reasons the court continued with the pro-
ceedings, calling four witnesses.” Another apprentice to John George testified on
cross-examination that he observed George’s brother “beat the defendant with his
fists”‘” for abusive language directed at the prosecutor’s wife. The apprentice further
‘2Francis Rusco v. George Black (30 April 1841), A.N.Q.M., W.S.S.(C.M.).
‘”George was involved in at least six desertion proceedings between 1834 and 1842.
‘”John George v. Antoine Clharbomeau (4 December 1834), A.N.QM., NV.S.S.(R.) 1241 at 1241-
42.
“The first of these, Marie Morrin, testified
qu’elle 6tait chez le Poursuivant le deux du courant au soi, quand I dfendeur est parti
de la maison, et depuis le temps M. Il n’est revenu qu’hier au matin, Mr. George a trois
apprentifs… dans sa maison, na jamais entendu ]e d~fendeur so plaindre du Poursui-
vant, a toujours vu que le d~fendeur dtait bien chez Mr. George le Poursuivant n’etait
pas chez lui quand le d~fendeur est Patti.
[Cross Examination]: A travaill6 chez Mc George depuis environ cinq ans, Mnr George
a un fre qui reste chez lui, qu’il 6tait dans le haut de la maison le soir ea question eta
entendu des coups se donner, ne sait pas si le defendeur est patti pour aller so plaindre a
son pre- le d~fendeur avait insult6 tous les gens de ]a maison (ibid. at 1242-43).
=Ibid at 1243.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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testified that the initial cause of argument was the defendant’s intransigence when
asked to attend to the store. For the defence one witness testified that he saw George’s
brother strike and knock down the defendant, prompting the defendant’s father to
come to the house the following day and enter into a heated discussion with George.
The court’s disposition in this case was extremely unusual. After having “mflrement
ddlib6r”,”‘
the court chose to order Charbonneau back to service, but also required
that George’s brother provide surety for his good behaviour towards the defendant.”‘
It is therefore apparent that many judgments-even those which resulted in con-
victions of servants-were essentially benign. One may even point to evidence that
occasional prosecutions were driven by beneficent motives. A particularly riveting
case is that of Sarah Stenson, against whom the superintendent of the Ladies’ Be-
nevolent Society filed a complaint on 31 July 1838.'”‘ This particular case illustrates
that before means of mass communication, resorting to the police force by filing a
complaint may have been the most fruitful means of locating a missing servant. Sten-
son’s case also suggests that some masters may have been prompted by strongly pa-
ternalistic, or even benevolent, motivations when using the legal mechanisms in place
for regulating master-servant relations.
It is not clear from the records what circumstances distinguished these cases from
others of this period. It is possible that these servants appeared particularly contrite or
willing to continue their employment. Some servants, for example, may have been
satisfied with the opportunity of airing their grievances in a forum where there was at
“9 Ibid at 1244.
30 This unusual disposition reads as follows:
‘
[La Cour] condamne le drfendeur a retoumer au Service du Poursuivant sous le delai
de vingt quatre heures de cette date, et le condamne en outre a payer les frais, ou donne
queles [sic] Poursuivant donne caution que le d~fendeur ne sera pas maltrait6 par son
fr;re ni aucun autre de la maison, le Principal en la somme de dix livres Cours actuel
de cette Province et deux cautions en la somme de cinq livres et ce pour le temps et es-
pace de six mois et A defaut par le drfendeur de retoumer au service du Poursuivant
qu’il soit confin6 dans la prison commune du District pendant l’espace d’un mois (ibid.
at 1244).
The superintendent’s affidavit to the Court of Quarter Sessions reads, in pertinent part:
William Scoles of the City of Montreal … being duly sworn doth depose and say, that
Sarah Stenson an apprentice duly indentured unto Mrs. Anne Ogden of the said City of
Montreal one of the Ladies [sic] directresses of the said Society, and residing in the
house of the Said institution, did on the Evening of the twenty-seventh instant abscond
from the service of the said Mrs. Anne Ogden, and hath not since been heard of. That
the said Sarah Stenson, is both deaf and dumb, and a minor, and deponent doth verily
believe that unless the said apprentice is arrested and brought back to her employer She
will suffer harm (William Scoles v. Sarah Stenson (31 July 1838), A.N.Q.M., Q.S.(F.)).
No further information on Stenson was found.
2001]
LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
809
least the appearance of neutrality and fairness, and were not overly intimidated by re-
turning to the master from whom they had eloped. It is also possible that there were
other mitigating factors which lessened the perceived gravity of the offences commit-
ted in these particular cases. The nature of these proceedings suggests that masters on
some occasions may have used courts as a means of humbling intransigent servants
without actually having them imprisoned or fined. This was a particularly effective
means, considering that some servants were liable to be imprisoned prior to trial if
unable to make bail. Through these variant dispositions, masters (and courts) could
send messages about their mercy, power, and authority. Whatever the explanation, the
paramount reason many masters in Montreal brought breach of service suits was to
compel servants to complete their terms of employment. This was reflected both by
the cases in which servants returned to service voluntarily and by those in which they
were ordered to do so.
3. Acquittals
While one can ascertain the rate with which desertion cases were dismissed, it is
much more problematic to determine the reasons behind the courts’ rulings. Many-
indeed the majority-of the judicial records that have survived offer no explicit infor-
mation other than the final disposition of cases. This is particularly so when the pro-
ceedings were conducted before a court of summary jurisdiction. As such, these rec-
ords preclude any possibility of compiling qualitative data on the grounds for dis-
missal. These sources suggest that among the most common reasons for finding in fa-
vour of a defendant were failure to pay wages, absence of a legal employment con-
tract, prior dismissal, defect in legal notification of the complaint, and violation of the
terms of service.
Under the traditional common law rule as applied in Canada, a servant forfeited
his right to wages due if his employment was terminated for misconduct or if he
chose to leave of his own accord. Whatever the reason for the departure, a serant’s
failure to conclude the agreed-upon term of service was generally a bar to recovery of
wages due.”2 The corollary to this rule was that a master’s failure to pay wages due
did not exonerate a servant should he leave his master’s service. The law considered
that the remedy available to servants-suing for wages lawfully due-was sufficient.
Accordingly, servants were subject to prosecution for desertion should they fail to
complete the terms of their employment.”3
‘” See eg. Webber, supra note 30 at 140; “Law of Master and Servant’ supra note 37 at 179;
Tomlins, supra note 40 at 219-20 (nineteenth-century Massachusetts).
” See eg. “Law of Master and Servant’
ibid. at 181. Unlike their counterparts in Upp-r Canada,
servants in this jurisdiction did have recourse to summary wrage recovery under master-servant law.
For discussion of Montreal wage suits, see generally G.L. Hogg & G. Shulman, “Wage Disputes and
810
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Interestingly, this rule was not generally observed in Montreal during this period,
as numerous servants were exculpated on the grounds of nonpayment of wages. For
example, a domestic servant by the month was acquitted of desertion based on this de-
fence and was awarded 10s. 9d. in wages due, and 5s. for costs.’ Similarly, an ap-
prentice who alleged mistreatment and nonpayment of wages as justification for de-
sertion was successful on the grounds of nonpayment.” The master admitted to being
four months in arrears for half the wages owed his apprentice. The court therefore
dismissed the suit solely “in [c]onsequence of the nonpayment of the wages payable
as per agreement.”” Cases such as this were not unusual. In fact, court records sug-
gest that evidence of nonpayment of wages due was seen as a fundamental breach of
the master’s obligations towards his servant, which justified a servant’s premature de-
parture.
Another successful tactic employed by servants was to plead that the employment
agreement was invalid. An apprentice shoemaker in 1834 successfully argued through
his attorney that his “engagement est nulle [sic] ayant 6t6 fait par une personne qui
n’en avoit pas le droit, et que le d6fendeur n’est pas tenu d’y repondre A la present
poursuite, dont il demande le renvoie.” One master was unable to prove a contract
existed with his cook, and the prosecution was accordingly dismissed.’3′ Another ser-
the Courts in Montreal, 1816-1835″ in Fyson, Coates & Harvey, supra note 43, 127; see also Pi-
larczyk, supra note 2 at 520-22.
“4Joseph A. Gagnon v. Julie Lacombe (21, 23 October 1843), A.N.Q.M., W.S.S.(C.M.).
‘”As the court register reveals:
[The] father to the said apprentice appears and says that he took him away from the
said Prosecutor, about the 12[th] instant as far as he recollects having met him in the
street, having found his clothes so torn as to render his appearance in the street indecent
and likewise because the said complainant did not furnish the apprentice shoes or
aprons as he was bound to do, and likewise because the complainant has not paid the
sum of two pounds ten shillings payable on the third of March last, by the written
agreement of apprenticeship and likewise because the apprentice works so late on Sat-
urday night that on Sunday morning there is no persons [sic] at the Prosecutors up
early enough to give him his breakfast so as to enable him to go to church and from
that inconvenience witness is obliged to give him his breakfast every Sunday morn-
ing-and finally that the complainant permits his (complainant’s) father to abuse and
strike the apprentice and are his clothes (Charles Davis v. Alexis Verdon (21 July 1841),
A.N.Q.M., W.S.S.(C.M.)).
‘ Such defences were not always successful. E.g. James Roddam, a servant to Henry Talon dit
Lesperance, alleged that he was unpaid for the week prior to his desertion and that his family suffered
by reason of the nonpayment. He was ordered to return to service and pay costs or face two months in
prison (Henry Lesperance v. James Roddam (19 March 1833), A.N.Q.M., W.S.S.(R.) 116). In my
opinion it is likely that unsuccessful cases were often those in which nonpayment was not proven or
where the fifteen-day notice period invoked in the Police Regulations had not passed.
,’ Jean Baptiste Choquette v. Joseph Lafrance (31 May 1834), A.N.Q.M., W.S.S.(R.) 899 at 899.
… Patrick Svords v. Mary Stewart (9 June 1841), A.N.Q.M., W.S.S.(R.) 150.
20011
LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
811
vant was acquitted on similar grounds by arguing that he had not entered the prose-
cutor’s service and therefore there was no right of action.”
Furthermore, while servants under the age of majority could be legally bound by
an adult parent or guardian, minor-aged servants did not have legal standing to bind
themselves to an employment agreement. To take an example, in 1842 a journeyman
named John Ddsormier was acquitted as he was a minor and consequently unable to
enter into an employment agreement without the aid of an adult guardian or”tutor”. ”
Servants could also prevail when prosecuted for misconduct if they could demon-
strate that their employer had altered the terms and conditions of their employment or
had previously dismissed them from service prior to bringing suit. A cart driver ar-
gued in 1841 that he was employed only to deliver metal within the city limits, but
had been required to make deliveries outside the city-albeit for only one day-to re-
place a sick employee. As the master admitted the allegation, the court dismissed the
suit with costs levied against the prosecutor.”‘ Proceedings against a physician’s ser-
vant were unsuccessful after evidence was produced indicating that the fickle master
had earlier discharged the defendant from his service.”‘
Servants periodically claimed medical reasons as a defence to desertion, arguing
that injury or illness prevented them from fulfilling the terms of their employment.
When servants received room and board from their masters, the law generally ex-
’39 Isidore Charlebois, supra note 55.
‘4 See John Fullum v. John Dasonnier “The Court having heard the evidence adduced in this
cause, and the parties therein; Dismiss the said action, on the grounds that the defendant being a mi-
nor, he could not enter into an agreement with the said Prosecutor, without being assisted in so doing
by a Tutor duly elected to him” ((3 June 1842), A.N.Q.M., W.S.S.(R.) 541 at 541). For a case in
which minority was not a successful claim, see L’Ani Du Peuple (31 July 1839) (discussing Hypolite
Guy v. Marcelin Courville before the Court of Special Sessions on 30 July 1839):
La plainte porte contre le d~fendeur 6tait pour avoir refusd de remplir des devoirs
comme domestique, s’8tre absentd sans permission, et avoir quittd le service de son
maitre avant 1’expiration du temps pour lequel il 6tait en engagd. Le dtfendeur, par ex-
ception, avait plaid6 minoritd, reals n’avait pas allgud la l6sion. La coui, apr~s avoir
delibr6, rejeta cette exception, sur le principe qu’un mineur paut valablement contrac-
ter pour son avantage, et que lorsque son 6tat est celui de domestique, apprenti, etc. ay-
ant pour habitude de s’engager comme tel, son engagement, quoique fait verbalement,
est aussi valable que si le mineur eut 6t6 assist6 de son pie ou tuteur. Sur ]a preuve des
faits allgu6s par le poursuivant, la cour, vu la gravit6 de l’offense, condamna I
d6fendeur, h payer une amende de 5.0.0 courant, ou de subir deux mois
d’emprisonnement, et aux dep6ns de raction.
T1 7h7omas Lecompte v. Jean Lanbert (11 June 1841), AN.Q.M., W.S.S.(C.M.).
142 Peter Buchanan v. Edmund Hackett (17 February 1835), A.N.Q.M., W.S.S.(R.) 42. For an exam-
ple of an apprentice who was successful in proving that his indenture had been cancelled by subse-
quent written agreement, see Midel Racicot, supra note 103 and accompanying text.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
pected that the master would provide necessary medical attention should the servant
fall sick-this was especially true of apprentices. As such, an apprentice or live-in
domestic was unlikely to contest a desertion suit successfully on medical grounds.
Other servants could absolve themselves if they were able to produce a medical cer-
tificate or convincing evidence of a medical condition, but a reading of these cases
suggests that courts were reluctant to recognize this as a valid defence. In all likeli-
hood servants would have had to satisfy the court that the affliction was serious and
that the master was not responsible for providing medical care. These prerequisites
were likely met in the singular case of John Lewis, a hired servant, who was acquitted
of absenteeism during the summer of 1841 on the grounds that he was “ruptured” and
therefore “unable to work”.4 3
Courts also recognized changes in legal status as a defence. In November 1833 an
apprentice milliner and dressmaker was acquitted on grounds of marriage. This case
is of interest for numerous reasons, but particularly as this was the only desertion case
of this period discussed at length in contemporary newspapers.” In court the appren-
tice and bride’s attorney admitted the existence of his client’s indenture and that she
had left her service, and produced the marriage certificate. He then cited various
French authorities “to prove the nullity and illegality of the particular stipulation, that
the apprentice should not enter upon the happy state of matrimony when a desirable
offer was made” Williams’s attorney argued that his client was emancipated by virtue
of marriage as much as if she had been indentured beyond the age of majority.” The
court concurred, and dismissed the charges.
“3John Russell v. John Lewis (23 June 1841), A.N.Q.M., W.S.S.(R.) 173 at 174.
zThe Montreal Gazette reported:
A case has recently been brought before our Magistrates, of rather a singular nature,
and we believe, rather unprecedented in the history of our legal tribunals. The question
involved in it is, “whether a father can engage that his minor daughter shall not contract
marriage during her apprenticeship:’ Mr. Williams, late postmaster in this city, inden-
tured … his daughter for a term of two years and a half, to Miss Bourne, a milliner, and
in consideration of being taught her business, engaged to board, lodge and clothe his
daughter. By a clause in the indenture, however, the young daughter was not to contract
marriage during her apprenticeship. Last week Miss Williams was married … [She was
then arrested and sued for damages by Miss Bourne] as an apprentice who had aban-
doned or deserted from her mistress (23 November 1833).
This case is also noteworthy insofar as it is a rare example of a breach of service case brought by a
prosecutrix.
” The judicial register records the attorney’s argument before the court as follows:
[E]le n’est point coupable en la manire et forme mentionnis en ]a poursuite et ad-
mettant qu’elle a quitt6 le service de ]a Poursuivante[;] elle plaide plus sp&ialement
qu’elle 6tait justifiable de ]a faire en autant que c’6tait pour 6pouser le dit Robert Dea-
kin parti Avantageux. … Que le clause dans l’engagement d’apprentissage que produit
2001]
LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
813
While considering the court’s judgment to be “just, legal and equitable”, The
Montreal Gazette nevertheless lamented the lack of redress available to the mistress.
This decision, it argued, would have the probable effect of “warning milliners gener-
ally against taking apprentices into their service, whose good looks, qualifications, or
thus
accomplishments render it likely that they will be sought after in marriage’
driving milliners “to the necessity of engaging old and antiquated dames: ‘ :
From an historical perspective, Williams’s case is engaging for a variety of rea-
sons. Unlike the vast majority of non-violent master-servant disputes, it elicited con-
siderable public attention. That Williams’s attorney successfully cited French authori-
ties to support the view that she was emancipated by virtue of being married also of-
fers an example of the bijuridical nature of the Montreal legal system. The court’s deci-
sion and ensuing commentary also indicate that anti-marriage provisions were viewed
by many as vestigial elements of master-servant law, contrary to public policy.”
Last, defects in legal process could also be grounds for dismissal. This is not sur-
prising given the often-Byzantine complexity of the common law rules with respect to
form and procedure that endured throughout this period. Defendants-even those not
assisted by counsel-repeatedly argued procedural irregularities as a first line of de-
fence before entering a formal plea. While this approach was often unavailing, some
defendants clearly had nothing to lose by so doing.”‘ In other instances this stratagem
proved successful, as was the case with a Scottish labourer brought before the Court
par la Poursuivante stipulant que la defenderesse ne pourroit contracter mariage avant
l’expiration du temps fixd[;] au dit est une clause nulle en autant qu’elle affecte le bon
sens, lajustice et les bonnes moeurs, et que le mariage qu’elle a contractl avec le dd-
fendeur l’ayant 6mancip6e elle n’est plus sous le Puissance paternelle et que… la Pour-
suite de ladite Poursuivante sont cons~quemment ildgales et vexatoires ayant Ct faites
postdrieurement a son mariage avec le Deakin. La Defenderesse ayant producd son
certificate de mariage (Sophia Bourne v. Louisa Williams (19 Novemb2r 1833).
A.N.Q.M., W.S.S.(R.) 604,610).
The Montreal Gazette (26 November 1833).
The Montreal Gazette (23 November 1833), in describing this non-marriage provision, surmised
that
[it was] probably one of these relies which are still to be found in old legal form books;
a legacy of the days of old, vhen it was considered as necessary to stipulate in articles
of apprenticeship, that “matrimony he shall not commit, alehouses and gambling
houses he shall not frequent, his master’s secrets he shall not divulge, &e. &c” as to
have the several sheets of the document properly “indentured:’ the seals of the parties
affixed, or any other of those ridiculous formalities, with which every agreement bz-
tween parties was encumbered.
,, See g. George Fax, supra note 71 at 375, in which an apprentice tailor “pleads by xception
that the Defendant is not brought before this Court regularly inasmuch that he has not been sum-
moned.” This exception was overruled.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
of Weekly Sessions who was acquitted and awarded costs, having demonstrated that
the prosecution was not “instituted as required by law”.”‘ By way of another example,
a master named Peter Lawless was adjudged in 1835 to have instituted a prosecution
which itself was lawless, although regrettably the records do not elaborate.”” An ap-
prentice saddler charged with “refus[al] to obey the lawful commands and orders” of
his master demonstrated that his master’s complaint failed to specify whether his en-
gagement was written or verbal. The court dismissed the suit and imposed costs of
five shillings against the prosecutor.”‘
The outcomes of many of these lawsuits are among the strongest evidence that
courts viewed and enforced master-servant relationships as constituting a mutually
binding compact. Desertion prosecutions are particularly illuminating, as they were
unique to servile relationships.”‘ One might reasonably conclude that if master-
servant law were truly an organ of employers at the expense of employees, this would
best be reflected in desertion prosecutions. Yet a significant percentage of such prose-
cutions were unsuccessful. Other elements of such lawsuits, such as settlements and
suspended or variant dispositions, provide additional substantiation of this contention.
Included within the approximately 30 percent of identified cases before the Court
of Weekly and Special Sessions that did not result in conviction were cases in which
prosecutors defaulted (4 percent) or discontinued the lawsuit (two), or in which the
parties settled (two). Under court procedures of the time, failure by the prosecutor to
appear constituted default and the case was dismissed. Should a defendant have failed
to appear, he was likewise adjudged to be in default and was summoned for a second
trial date. If he then appeared in the interim, he was normally ordered to pay costs in-
curred in the previous court hearing. The case would then be heard and decided. If the
defendant failed to appear for the second trial date, the case was heard in his absence
and judgment entered.”‘ For instance, in 1833 a servant was discharged from prison
and proceedings dismissed when his master failed to appear in court-a not-
uncommon occurrence.” Proceedings against another servant were dismissed after
both parties failed to appear, perhaps as they had settled their dispute prior to the
case as it was “illegal and unfounded”).
“‘ Robert Woody. 7-mothyDonahue (29 September 1841), A.N.Q.M., W.S.S.(R.) 288 at 288.
“. Desertion was de facto possible only by those who were of subordinate status within the confines
of a hierarchal institution or relationship, whether servants, sailors, or members of the armed forces.
“‘Donald McDonald v. William Black (3 March 1835), A.N.Q.M., W.S.S.(R.) 62 at 62.
“4 Peter Lawless v. Daniel Crawley (5, 12 May 1835), A.N.Q.M., W.S.S.(R.) 110 (dismissing the
See e.g. Hogg, supra note 11 at 69-70.
” Francis Metzler v. John Kelly (16 July 1833), A.N.Q.M., W.S.S.(R.) 350.
2001]
L C. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
815
scheduled court date.’-” Indeed, the cases in which both parties failed to appear were
surely not always the product of coincidence; mutual default was probably indicative
of the parties’ having unofficially settled the case without leave of the court.
B. Refusal to Obey Orders, Refusal to Work or Enter Service, and
Negligence
While desertion was the most flagrant manifestation of disobedience on the part
of servants, courts also imposed sentences for offences that encompassed other varie-
ties of misbehaviour such as refusal to obey a master’s lawful commands, refusal to
work or to enter a master’s service, and misconduct or neglect of duty. These offences
all possessed the commonality of implicating a failure on the part of servants to com-
ply with the accepted norms of service during this period. As many prosecutions were
brought under the general nomenclature of “desertion” rather than specifying exactly
what type of misbehaviour was implicated, it is not always obvious what employment
infraction was at the crux of the lawsuiL”
Of those related offences mentioned in breach of service cases, refusal to obey the
lawful commands of one’s master was the most common, and conviction often re-
sulted in imprisonment. In 1835 a cook sought to defend herself against this charge by
claiming that her time of service had expired and therefore “she was not bound to
obey the orders of the complainant.” The court record discloses that her husband
was moving to the United States, and in her words, it would be “a hard case to sepa-
rate husband and wife.”‘ Her master testified that she had acted belligerently, refused
to work, and demanded her wages. The justices, perhaps cognizant that sending her
back to service would have been futile, imprisoned her for one month and fined her
twenty shillings. A domestic servant was sentenced to ten days in prison for the iden-
tical infraction in 1840,'”‘ while another servant was sentenced to three days’ impris-
onment for refusal to obey his master and the unusual misdeed of attempted deser-
tion.”w In one prosecution brought in 1832, a hired servant was charged with “ne-
glecting and refusing to enter the service and employ of the … Prosecutor to whom he
is engaged before witnesses in the capacity of a servant and a milk man, for and dur-
‘ See e.g. Joseph N. Pacau v. Louis Bourdoin (24 July 1838), A.N.Q.M., V.S.S.(Rt)
190. See also
Olivier Mailloux (9 October 1838), supra note 48; Olivier Maillotr (16 October 1838), supra note
50.
‘1 Because of the variety of offences that could lead to legal recourse under master-servant law, I
have elected to refer to these infractions as “breach of service” rather than “desertion”.
‘ EdwardA. Clarke v. Mary Rudd (10 April 1835), A.N.Q.M., W.S.S.(R.) 89 at 89.
: Ibid
159 Mary Kennedy, supra note 88.
‘”DanielRylandv. Charles Cation (5 June 1841), A.N.Q.M., W.S.S.(RL) 136.
816
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
ing the space of One Year.”” Cases such as this illustrate that servants could be
charged with failing to commence their terms of service, as well as failing to complete
them.
One of the most picturesque prosecutions of this period was that of Mary Ann
McDonough, a wet nurse, servant, and chambermaid, who was convicted in 1842 of a
veritable laundry list of faults. McDonough was accused of having
refused and neglected to perform her just duties and to obey the lawful com-
mands of the said Prosecutor and his wife her Master and Mistress and further
having been guilty of divers faults and misdemeanors in the service of the said
Prosecutor by illegally taking in her possession and wearing divers articles of
wearing apparel belonging to her said Mistress.’
Following her conviction the Court of Special Sessions ordered her to pay a fine of
fifteen shillings and costs.'” McDonough’s is a particularly interesting case in light of
the number of employment offences enumerated. Furthermore, it also vividly illus-
trates the quasi-criminal nature of such prosecutions, insofar as “illegally taking in her
possession and wearing” her mistress’s clothing was subsumed under the rubric of
breach of service rather than, for example, a criminal prosecution for larceny. The
charge of committing “divers faults and misdemeanors” also reflects the manner in
which employment offences are best thought of as hybrid offences-that is, neither
purely civil nor criminal in the modem conception of these terms.'”
Another discernible category was that of misconduct or negligence. One servant
convicted of having “got[ten] drunk and misbehaved himself as a servant in the Em-
ploy of the said Prosecutor” was sentenced to eight days in prison,'” while a boy ser-
vant in 1841 received the identical sentence for misconduct and negligence upon evi-
dence that he was a habitual inebriate and had allowed his master’s horse to escape.”
While desertion prosecutions were common during the early nineteenth century in
Montreal, it must be stressed that their utility to masters was often limited, particularly
as a significant percentage of cases brought by masters were unavailing. The convic-
tion rate before the Court of Weekly and Special Sessions was approximately 60 per-
161 John Kemp v. William Eamon (1 May 1832), A.N.Q.M., W.S.S.(R.) 197 at 197.
2 Charles Lindsay v. MaryAnn MeDonough (27 May 1842), A.N.Q.M., W.S.S.(R.) 536 at 536.
163 Ibid.
‘6 For discussion, see Pilarczyk, supra note 2 at 517, n. 112. The phrase “fault and misdemeanor” is
found within the Police Regulations, supra note 35 at 118, para. 10.
’65Bartholomew C. Gugy v. OlivierPurvis (27 November 1843), A.N.Q.M., W.S.S.(R.) 170 at 170.
‘ John Trimble v. Charles Lunn (12 February 1841), A.N.Q.M., W.S.S.(C.M.); see also Domina
Regina v. Charles Lunn, Misdemeanor, “Affidavit of John Trimble” (12 February 1841), A.N.Q.M.,
W.S.S.(C.M.).
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cent, with 20.3 percent of prosecutions dismissed outright. ” If one assumes that such
prosecutions were brought with the avowed purpose of punishing servants, compel-
ling them to complete their terms of service, or both, then it is evident that masters
were unsuccessful with significant frequency, saddled with court costs, and perhaps
humbled by the experience. Within the confines of a system that afforded greater fa-
cial legal protection to masters than to servants, and which lacked a rigorous burden
of proof, this acquittal rate is stark evidence that masters could not assume that suc-
cess was virtually ensured.'”
Servants were also discharged from service by courts, presumably (but not neces-
sarily) at their masters’ behest. Fifteen percent of the cases before the Police Court
were either dismissed or resulted in the servant being discharged from prison or serv-
ice. For example, a warrant of arrest was issued against a domestic servant for “re-
fusing to enter [her master’s] service after being duly engaged:’ but following her ar-
rest and examination the case was dismissed.’ The police magistrate also dismissed
several servants from service without any sanction. One notation states simply that
“Denis Carty, being absent since yesterday morning without leave is dismissed from
the tenth instant inclusive.” 1-”
C. Third Party Employment Offences
Given the nature of the contractual rights that masters possessed, it is scarcely
surprising that the law offered redress against third parties who interfered with labour
relationships. During the first half of the nineteenth century, legal recourse was avail-
able against third parties for forcibly detaining a servant, enticing a servant to desert,
or harbouring a runaway.” Given the delicate nature of such situations, and perhaps
’67See fig. 6, below. Fyson’s work shows that before the Court of Quarter Sessions for the years
1824 to 1830 there was an overall acquittal rate of 28 percent for all defendants (Justices of the Peace
in the District of Montreal, supra note 45 at 332). The overall acquittal rate before the Court of
Weekly and Special Sessions was probably between 40 and 70 percent (ibid. at 335).
‘ Analogously, Lewthvaite’s work on nural justice in Upper Canada of this time shows that con-
stables often brought prosecutions against individuals for assaulting them in the official performance
of their duties, but success was far from certain (supra note 61 at 368-69). Juries then, like now, could
be fiercely independent and performed powerfiul “social levelling” functions. See also M.S. Cross,
“‘The Laws Are Like Cobwebs’: Popular Resistance to Authority in Mid-Nineteenth Century British
North America” (1984) 8 Dal. LJ. 103, vho states at 115 that “the jury system … could be used by
communities to frustrate authority.” While breach of service prosecutions were not heard before ju-
ries, it is clear that justices did not automatically convict servants charged with such offences.
‘6 Donina Regina v. Elizabeth Bissette (16 December 1840), A.N.Q.M., P.C.(R.) 49 at 49.
’70 Queen v. Denis Carry (11 July 1838), A.N.Q.M., P.C.(R.) 15 at 15.
“‘t Police Regulations, supra note 35 at 120, para. 13. See also An Act for the MAore Easy and Less
Expensive Decision of Differences beneen Masters and Mistresses and 77teir Senants Apprentices,
and Labourers, in the Country Parts of 77Tis Province, 1836 (Qo.), 6 Will. IV, c. 27 [hereinafter Parish
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also more practical and evidentiary obstacles, it is not surprising that such prosecu-
tions appear only sporadically within the annals of lower courts in Montreal.”‘
With respect to harbouring runaways, it is a truism that a servant’s desertion
would often have necessitated obtaining the aid of sympathetic third parties. John
Edmundstone’s attempt to flee is a case in point. In addition to prosecuting Edmund-
stone, his master filed suit against Margaret Cathers before the Court of Weekly Ses-
sions for having
received and harboured in her house in the City of Montreal and for still con-
tinuing to harbour in her said house … One John Edmundstone, she well
knowing that the said John Edmundstone was and is an Indented Apprentice
Printer to the said Benjamin Workman and Ariel Bowman and has deserted
their service in Contravention to the Provincial Statute and to the Rules and
Regulations of Police in such case made and provided.”‘
The action was dismissed by the court with costs, a particularly interesting result in
that Edmundstone had earlier been convicted of desertion, and perhaps was even ap-
prehended at Cather’s house.'” Unfortunately, the evidence presented was not re-
corded, so Cather’s identity and the court’s reasons for the dismissal remain purely
conjectural.
When such prosecutions were initiated, more than one charge could be brought
simultaneously. A third party who lured away an apprentice could legitimately be
charged with, for example, enticing the apprentice as well as harbouring him. In an
interesting variant, a master bookbinder prosecuted a defendant before the Court of
Special Sessions for having induced his apprentice to desert and for having forcibly
detained him. The defendant denied the existence of such a right of action in law, but
was overruled. Following entry of the defendant’s plea of not guilty, the court dis-
missed the action with costs, as the defendant’s testimony suggested the forcible de-
tainment was merely a poorly conceived jest.’7
Statute of 1836]; Webber, supra note 30 at 148. It is worth noting that, at least in Montreal, the of-
fence of “enticing desertion” most often involved encouraging members of the armed forces to desert.
Such prosecutions are, of course, excluded from this discussion.
‘”Such cases were more common in the rural areas outside Montreal. See Part III.C, below.
,,3Benjamin Workman v. Margaret Cathers (21, 28 August 1832), Montreal, A.N.Q.M., W.S.S.(R.)
309, 313. Note the reference to the sources of relevant master-servant law.
” For discussion of this case, see supra note 92 and accompanying text. See e.g. Donina Regina v.
Joseph Rondeau (14 January 1841), A.N.Q.M., P.C.(R.) 75, where a similar unsuccessful prosecution
was also found within the records of the Police Court, involving a defendant who was arrested and
brought before the police magistrate.
“‘ Charles P Leprohon v. Daniel Trudelle (8 February 1841), Montreal, A.N.Q.M., W.S.S.(R.) 28.
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LC. PILARCZYK- ENFORCING MASTERS’ RIGHTS IN MONTREAL
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Ill. The Role of Courts outside City Limits
One of the motivating factors behind the promulgation of the Parisha Statute of
18366 was to provide for a more effective system of justice that would be equipped to
grapple with such matters as master-servant disputes.” Justices were authorized to
hear a variety of infractions and minor criminal matters, and could bind defendants to
trial before city courts for offences over which they lacked jurisdiction. During this
period justices outside the city limits were required to submit quarterly returns to the
clerk of the court in Montreal that provided basic information on any cases they adju-
dicated, as well as to report and remit all fines collected. Analysis of the few surviving
quarterly returns (which offer only abridged information) nevertheless indicates that
master-servant disputes accounted for a significant number of the cases heard before
these jurists. The only years coinciding with the period under examination for which
records have survived were 1839 to 1843, and the surviving records are especially
spotty for the years 1839 and 1843. Even so, within those records Il1 breach of
service cases were recorded.
A. Desertion Prosecutions
1. Convictions
Labour shortages were endemic in the rural areas of Lower Canada during this
period, and the judicial district of Montreal was no exception.'” As has been men-
tioned, the quarterly returns for the years 1839 to 1843 reveal that master-servant dis-
putes were among the most common cases that justices of the peace were called upon
to adjudicate outside the city of Montreal. Justices were the most convenient, regu-
lar-and for all intents and purposes, sometimes the only–real organ of justice that
functioned for townships and parishes outside the city. While the surviving records
suffer from a variety of lacunae, they are nevertheless a valuable tool in evaluating the
administration of master-servant law outside the city limits during this period.
While the sample upon which this analysis is based is small, Figure 8 suggests
that the number of acquittals and settled cases (as a percentage of the total prosecu-
tions) appeared to increase over the course of this period, whereas the number of fines
levied against unsuccessful defendants appeared to decrease substantially. While fines
can generally be expected to decrease as acquittals and settlements rise, examination
‘ 6Supra note 171.
” See the Preamble to the Parish Statute qf1836, ibid., noting that it was promulgated to avoid “the
great expenses attendant on the decision of causes of [master-servant disputes] … in the To,,ns.”
‘7 See e.g. “Law of Master and Servant”, supra note 37 at 191-93; Webb.r, supra note 30 at 115,
131.
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of the entries for these years suggests that, for the years 1841 to 1843 in particular, the
justices of the peace imposed fines upon conviction less often than in previous years.
For the years 1839 and 1840, the records indicate that justices frequently imposed
fines, usually in the amount of five or ten shillings. Thereafter, the records suggest
that the justices imposed fines (most frequently in the amount of fifty shillings) to be
paid in the event that the defendant did not return to service. This may indicate a shift
in the use of fines from a strictly punitive to a persuasive tool, or it may indicate that
the court used these elevated fines as an inducement for a certain narrow class of de-
fendants (such as journeymen). This class of defendants, perhaps coincidentally, ap-
peared in more lawsuits in the later years of this sample.
The records filed by justices of the peace also indicate that nearly 5 percent of
proceedings held before them resulted in settlement. Many more master-servant con-
flicts, however, were undoubtedly settled well before they progressed beyond the ini-
tial stages of litigation.'” For example, while George Wehr may have prosecuted his
servant for leaving his employ without permission, both parties requested to settle the
case before a justice of the peace in Stanbridge.w In another instance a justice of the
peace noted that he “admonished the Prisoner and the Parties settled their differences
with … permission” suggesting that the settlement may have been at the justice’s in-
stigation.”‘
Justices of the peace outside the city appear often to have ordered servants to re-
turn to service, as one-third of the cases contained this explicit provision.”‘ The quar-
terly returns suggest that, typically, apprentices or other servants indentured for sub-
stantial periods were ordered to return, while journeyman or labourers were not so or-
dered. For example, an apprentice in 1841, “having no sufficient reason to leave the
service of the Plaintiff,” was ordered to return and finish his time. ‘” Justices frequently
“‘ This is especially true when examining the records of justices of the peace, as the quarterly re-
tums they were required to file reflect only suits actually heard before the justice in his judicial role.
Disputes resolved prior to the time the justice sat in judgment of the suit were likely not recorded, and
few other related documents (such as complaints, arrest warrants, and summonses) were found.
“‘ George A.E Wehr v. Oliver Gallipo (4 January 1840), Stanbridge, A.N.Q.M., Quarterly Returns
for Justices of the Peace [hereinafter J.P.(Q.R.)]. In one ambiguous case the records state that the par-
ties settled the “Absence from Service without leave”, leaving it unclear whether the parties settled
without asking the court’s permission, or whether the servant was charged with being absent without
leave. The latter seems more probable, although settlement notations sometime use the phrase “settled
with leave of the court” (see e.g. Alexis Brinotier [?] v. David Bouthellier (4 July 1842), A.N.Q.M.,
J.P.(Q.R.)).
” Andr6 Cognac v. Joseph L’Amousian (11 October 1841), St. Joseph de Chambly, A.N.Q.M.,
J.P.(Q.R.) [hereinafter Cognac] (defendant ordered to pay costs of five shillings).
82 Cases which stipulated that servants “make up” their time required de facto that servants return.
“3 Francois Couzineau v. Micheal [sic] Cdiot, fils (2 January 1841), Vaudreuil, A.N.Q.M.,
J.P.(Q.R.).
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used the prospect of weighty fines, incarceration, or both to encourage servants to re-
turn. In Terrebonne a justice of the peace sentenced a servant to a fine of 10s. and
costs of 16s. 9d., plus “15 jours de travail ou huit jours de prison”,'” while another
was condemned to pay costs of 17s. plus an additional penalty of2 10s. if he failed
to finish his term of engagement. ‘ In another 6 percent of cases servants apparently
returned voluntarily to service. The prosecution of one servant resulted in no formal
disposition, as he consented to return to his master,” as did the lawsuit in which the
court “arrang6 le [d6fendeur] retournant au service””
Analysis of these primary sources reveals striking differences between breach of
service prosecutions heard before justices of the peace outside city limits and those
heard before city courts. One conspicuous divergence is reflected in the rates of ac-
quittals and dismissals of court cases. While fully 20 percent of breach of service
cases resulted in dismissals or acquittals within the city, the rate before justices of the
peace was only 3.6 percent, as shown in Figure 8.'” Given the dearth of information
found within the primary sources of these justices, coupled with the fact that many of
these returns did not survive, it is problematic to draw defensible conclusions as to
what would account for this discrepancy. It might reflect, for example, a greater rigid-
ity on the part of justices, different evidentiary approaches, a greater need to enforce
employment contracts, or merely the vagaries of surviving records.
Justices of the peace, however, also seemed considerably more reluctant to jail of-
fenders for breach of service offences. Whereas nearly 17 percent of servants were
jailed before the Court of Weekly and Special Sessions, only three were jailed out-
right by justices.’ Two of these three servants jailed outright were incarcerated by or-
der of the same justice of the peace in St. Martin Isle Jesus in 1841; a female domestic
was committed for twenty-four hours, while another servant was incarcerated for ten
‘”Jean Baptiste Gadbois v. Gilbert Guindon (15 October 1840), Terrebonne, A.N.QAM., J.P.(Q.I.).
The most probable explanation underlying this unusual disposition is that the court ordered the defen-
dant to complete the fifteen days remaining in his term of service. For the case of a servant before the
Court of Weekly Sessions who was explicitly imprisoned until he returned to service, see La Minerve,
supra note 76.
R. v. T1hophile Chartier (30 June 1843), St. Hyacinthe, A.N.Q.M., J.P.(Q.RL).
Antoine Paradis v. Joseph Granger (12 October 1842), St. Jean L’Evang~liste, A.N.Q.M.,
J..(Q.R); see also Alexander Newnan % gaiter O’Ryan (12 October 1840), Lachine, A.N.Q.M.,
J.P.(Q.R.).
‘ LaReinev. PierreBarron (30 September 1841), St. Hyacinthe, A.N.Q.M., J.P.(Q.RL).
,’ For discussion of cases before the Court of Weekly and Special Sessions, see Part lA.l.b,
above; fig. 7, below.
,’ See fig. 8, below. Arguably, some justices may not have included prosecutions that resulted in
acquittal or dismissal in these quarterly returns.
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days.'” All other servants imprisoned by justices of the peace-likewise amounting to
three servants-had previously defaulted on fines.’9′
Justices were also more likely explicitly to require convicted defendants to in-
demnify their masters for time lost through their misconduct, doing so in one out of
eight cases. One servant in 1842 was “admonished, sentenced to make up his time to
his said master and to pay the costs” of five shillings,'” while another hireling con-
victed of “having deserted his service and employ without leave and without giving
notice” was ordered to “return to his employ and to make good the time lost and con-
tinue for one month if required ” “‘9 This mirrored a provision found in the Parish Stat-
ute of 1836 which stated that servants could be “condemned to make such time good
to his Master.”” That this provision did not exist in the relevant statute and bylaws for
the city of Montreal-coupled with the possibility that labour shortages in the country
might have made masters more likely to demand that their servants complete their
term of service-might well account for the greater frequency of such recorded dis-
positions outside the city than was the case within the city limits.”5
In a few instances the terms of servants’ contracts impacted markedly on the sen-
tence imposed following conviction. Charges against one servant were dismissed, but
he was ordered to pay costs of 8s. 9d. as he had “undertaken to pay a penalty of ten
‘ Michel Brunette v. Anasthea Armand (11 October 1841), St. Martin Isle Jesus, A.N.Q.M,,
J.P.(Q.R.) (twenty-four hours’ imprisonment); Jean Baptiste Cousineau v. Jocqeline Bigneau [2] (11
October 1841), St. Martin Isle Jesus, A.N.Q.M., J.P,(Q.R.) (ten days’ imprisonment). See also James
Thompson v. Christopher Hill (12 January 1842), Grenville, A.N.Q.M., J.P.(Q.R.) (labourer sentenced
to fifteen days’ incarceration and costs of 7s. 6d.).
‘”‘ James Liddell v. George Carty (15 April 1840), St. Armand, A.N.Q.M., J.P.(Q.R.) (servant con-
victed of absenteeism and refusing to work defaulted on fine of 1 5s. and imprisoned for fifteen
days); Reverend Joseph Braithwaite v. Charles Cox (15 April 1841), Chambly, A.N.Q.M., J.P.(Q.R.)
(servant convicted of absenteeism defaulted on fine of2 10s. and costs of 8s. 9d. and imprisoned for
unspecified duration); Alanson Cooke v. Joseph Lipine (4 July 1841), Petite Nation, A.N.Q.M.,
J.P.(Q.R.) (servant defaulted on fine ofE2 10s. and imprisoned fifteen days).
“” Queen v. Joseph Perron (10 April 1842), St. Joseph de Chambly, A.N.Q.M., J.P.(Q.R.). Simi-
larly, see Cognac, supra note 181 (servant admonished and parties settled).
‘9’ George Tail v. Louis Harpie (15 October 1841), Sorel, A.N.Q.M., J.P(Q.R.).
‘ Supra note 171, Preamble.
,9 All such cases discussed are ones in which courts explicitly made a servant’s return an element of
the judgment. It is of course possible that in some number of cases it was expected that servants
would return and therefore this was not recorded as a formal element of the judgments. This would
coincide with a general rule throughout the British Empire that punishment usually did not intermpt
the agreed-upon term of service. Given the level of specificity of many recorded dispositions, how-
ever, especially within the Court of Weekly and Special Sessions, it seems unlikely that crucial ele-
ments of the judgment (e.g. “make up time lost” or “return to service”) would not have been formally
recorded. As such, I believe it is more likely that cases which make no mention of returning to service
did not require it.
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LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
823
dollars to his master according to a previous private agreement between them for such
breach of contract” ‘ This essentially amounted to a liquidated damages provision,
included by some masters in indentures both to dissuade servants from deserting and
as a means of reimbursing them for their losses. Whether the master in this case also
accepted his wayward servant back into service or merely sought “satisfaction” is not
known. Another servant in Stanbridge was ordered to “return and make good the time
lost according to contract” plus pay costs, indicating that the disposition was likely
based on the language of his indenture.”” These are superb examples of the interplay
between master-servant lav and the terms of employment as stipulated in notarial
contracts.
2. Suspended and Variant Dispositions
It should also be noted that “variant” dispositions were relatively more frequent
before justices of the peace, perhaps as rural life required that certain local realities be
taken into account. This miscellany of variant cases usually involved justices sus-
pending fines or jail terms due to the individual circumstances of the case. In Terre-
bonne, for example, the justice of the peace ordered a convicted servant to pay costs
in the amount of 14s. 9d. but suspended the fine. ‘ Another servant who received a
significant fine failed to pay but was “not committed in consequence of the probabil-
ity of payment and his (defendant’s) ill health:”‘ In a case brought against a manser-
vant for desertion in 1840, he was fined 20s. plus 14s. 9d. in costs, but the “[p]enalty
[was] not Paid, the defendant not pos[s]essing the means of paying” and the court
took no further action. ‘ An apprentice cobbler was ordered “Ii aller continuer im-
mdiatement son apprentissage … et
rendre le temps qu’il a perdu,’ but his master
was not awarded costs.: Cases such as these reflect the discretionary ability of jus-
tices to temper the harsher elements that enforcement of master-servant law entailed.
Such actions could have served several purposes, such as to emphasize the mercy of
masters, courts, or both and to facilitate the reconstruction of frayed employment re-
” Queen v. Seguien Demess dit Ch~ieville (4 July 1842), St. Joseph de Chambly, A.N.QAM.,
J.P.(Q.R-).
” Edward B. Ross v. William Snyder (14 October 1S42), Stanbridge, A.N.Q.M., J.P.(Q.R.). Of
course the court could have decided to require the defendant to make up lost time even in the absence
of such a contractual provision.
” Joseph Oct Alfred Turgeon v. Gidgon Barrette (31 December 1839), Terrebonne, A.N.Q.M.,
J.P.(Q.R.) (noting simply “decharg6 de l’amende mais condamn6 aux frais”).
‘ Alanson Cooke v. Oliver Bousexour (4 July 1841), Petite Nation, A.N.Q.M., J.P.(Q.R. (fined 2
10s. and 8s. costs).
Micheal [sic] McLean v. Basil De[s] ardin (22 April 1840), Petite Nation, A.N.Q.M., J.P.Q.R.).
Frangois Dubour v. Anibroise Phaneuf (ll October 1842), Ste. Marie de Monnoir, A.N.Q.M.,
J.P.(Q.Rt)
[hereinafter Dubour].
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lations, but also may have reflected the reality that justices were frequently neigh-
bours of the parties that appeared before them. While it would appear that master-
servant disputes before justices of the peace resulted overwhelmingly in conviction,
the seemingly perennial labour shortages faced by employers in the country, as well
as other local realities, might have caused justices often to feel the necessity of mak-
ing use of variant dispositions.
The high conviction rates, however, also suggest that justices favoured stability in
labour relations and consequently expected acquiescence on the part of servants.
While justices certainly had the ability to enforce master-servant law in a relatively
benign manner, they were by no means required to do so. The fact that courts held by
justices of the peace were eminently local and informal institutions could have far less
beneficent repercussions. Higher court review of their decisions was a decided rarity,
and therefore justices reigned supreme in the realm of master-servant law. Not only
could they rule on cases in which they had a personal interest, but justices would often
have had a natural inclination to side with masters by virtue of their social standing.”
These realities are vividly depicted through a published letter to the editor of The
Montreal Gazette in 1841, which painted a poignant picture of an unfortunate female
servant caught up within the machinations of an unsympathetic judicial system. This
singular account of the administration of master-servant law outside the city limits of-
fers a penetrating, if prolix, account of the draconian enforcement of labour laws by
some justices:
A case came before the Magistrates of Sorel, on the 27th January, brought by
one of the Magistrates there, against his servant girl, for leaving his service on
the 25th of said month. He depo[s]ed that she had left his service, and had not
since returned, “and further this deponent saith not:’ The girl admitted the fact
of her having left her service, but offered to prove that her mistress had told her
three weeks before she left, that she would get another to do her work. On that
account, the girl gave her mistress a fortnight’s warning to get another servant,
as she could stop no longer with her, on account of the bad usage she had re-
ceived from both master and mistress-her master having threatened her se-
verely, struck her in the face with his clenched fist, and otherwise abused her.
2o2 See e.g. Webber, supra note 30 at 112-13:
Many complaints concerned partiality or arbitrary behaviour…. It was virtually inevita-
ble that magistrates would rule in matters affecting their friends. Occasionally they
even acted on matters in which they themselves had an interest. And the simple fact
that they were men of standing in the community-often merchants, almost always
employers-meant that they had a natural inclination to value discipline and obedi-
ence, especially in employment relations.
For futher discussion of conflicts of interest among justices of the peace, see generally Justices of the
Peace in the District of Montreal, supra note 45.
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All this, on the Justices asking her if she would go back to her service, she of-
fered to prove by sufficient evidence, but the poor girl’s evidence could not be
taken, nor the proof admitted, because the Justices said they had nothing to do
with her statement, and would not hear the evidence in her favour, telling her
they would fine her ten dollars, if she did not return to her service. The girl, in
answer, said she was afraid of her life to go back. She was, accordingly, fined
the sum of 2 10s. and 3s.9d. of expenses, or fifteen days in [prison] … A par-
son present told the girl to crave appeal to a higher Court, but was told by the
Justices of the borough of Sorel, that there was no appeal from their decision.
The girl has an excellent character, she is respectable but poor, and her master
keeping her wages from her, deprived her of the means to pay the fine imposed
on hen This induced a number of respectable inhabitants to look into the case,
when they raised a subscription at once, and paid the fine and expeses.: ‘Y
This account not only offers a trenchant, contemporary criticism of labour law
during this period, but also demonstrates the “incestuousness” that could pervade
these courts. In this example a suit brought by a justice of the peace was tried before
his colleagues, who were naturally more inclined to commiserate with him than with
his servant. A master who was also a justice of the peace could have virtual carte
blanche to treat his servants as he saw fit, using the law as a robust weapon while si-
multaneously enjoying virtual immunity from its coercive powers. Some masters who
were prominent members of the community would likewise have enjoyed the legal
benefits that their social standing would bring, as the justices hearing such cases
would have shared similar concerns over intemperate or undisciplined servants.::’ Jus-
tices may have been “servants of the law”, but they could also dictate what the law
was and use it to their own benefit.
2″ The Montreal Gazette (6 March 1841). This account is confirmed by analysis of the quarterly
returns of the justices of the peace for William Henry in 1841. Edward NV. Carter brought suit against
his hired servant, Sarah Wright, on charges that she had absented herself without permission and had
not returned (Edward W Carter v. Sarah Wight (3 June 1841), \illiam Henry, A.N.Q.M.,
J.P(Q.R.)). She was condemned to pay the identical fine and costs mentioned above. Furthermore,
Carter was indeed ajustice of the peace for Sorel during this time, as I ascertained through examina-
tion of a list of justices serendipitously discovered among the court records of the Court of Weekly
Sessions. As this account also shows, members of communities who felt a defendant was unjustly
convicted and fined often took up collections for their benefit. See e.g. Lewihwaite, supra note 61 at
369-70. It is noteworthy that the justices apparently stated “there was no appeal from their decision.”
This was, for all intents and purposes, de facto true in almost all cases, although a right to appeal ex-
isted formally. For another example of a suit brought against a servant by a justice of the peace, see
Judge Burton v. Levi Larrivierre (9 January 1841), St. John the Evangelist, A.N.Q.M., J.P.(Q.I.)
(servant ordered to pay fine of 6d. and costs of 1 Is. 3d.).
For a contemporary example of this phenomenon, see Pilarz-,k, supra note 2 at 519, n. 117.
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3. Acquittals
In contrast to the number of acquittals before city courts, the number of acquittals
of servants before justices of the peace, as they appear in the surviving quarterly re-
turns, was extremely low.’ The paucity of detail in these sources prevents any real
analysis of the reasons that caused these cases to result in acquittal. A typical example
is that of a servant in Petit Nation in 1841, who was acquitted of leaving his master’s
employ and awarded costs of six shillings.’ The solitary exception is a notation by
one justice of the peace in Lachine, who discharged a servant charged with desertion
“in consequence of [the master’s] exacting more work than agreed upon” 2
B. Refusal to Obey Orders, Refusal to Work or Enter Service, and
Negligence
As was the case within the city of Montreal, justices of the peace within the
greater judicial district of Montreal also grappled with employment offences related to
desertion. The Parish Statute of 1836, it will be remembered, included offences such
as “ill behaviour, refractory conduct, idleness, absence without leave, or dissipating
his or her Master’s, Mistresses [sic] or Employer’s effects, or of any unlawful act that
may affect the interest, or disturb the domestic arrangements of such Master, Mistress,
or such employer.” ‘
Refusal to work was an accusation made most often against seamen, but servants
were also charged with this offence. In the town of St. Charles, for instance, a servant
was fined, made to pay costs, and ordered to continue working for his master for six
In St. Edouard, meanwhile, a
months following his conviction for refusal to work.’
servant was punished for having “n6glig6 et refus6 de faire faire les travaux” ‘ ‘ Like-
wise, another servant was fined ten shillings for refusal to obey his master’s lawful
orders.”‘ A discemable but related category was that of misconduct or negligence. A
servant outside the city was convicted of “refractory conduct” and fined 5s. and costs
See fig. 8, below.
James L. Gray v. John Graves (13 April 1841), Petite Nation, A.N.Q.M., J.P.(Q.R.).
“‘Joseph Aimond v. Charles Gauthier (11 October 1843), Lachine, A.N.Q.M., J.P.(Q.R.).
= Supra note 171, Preamble.
Louis Chicou Duvert v. Antoine Chaume (20 August 1839), St. Charles, A.N.Q.M., J.P.(Q.R.).
“‘ Larence McGhee v. Camille Pinsounault (24 October 1839), St. Edouard, A.N.Q.M., J.P.(Q.R.)
(fine of five shillings and costs of fourteen shillings). See also Larence McGhee v. Jean Baptiste La-
porte (8 November 1839), St. Edouard, A.N.Q.M., J.P.(Q.R.) (fine of five shillings and costs of fif-
teen shillings).
… Queen v. Frangois Gagnon (1 July 1842), St. Hyacinthe, A.N.Q.M., J.P.(Q.R.).
2001]
I. C. PLARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
827
of 8s. 9d. in 1841,” ‘4 while another was convicted for “mauvaise conduite, lui avoir
manqu6 de respect, et s’&re absentd frdquemment le soir-Sans sa permission:”‘
One difference between the law as applied in Montreal proper and in the outlying
townships was the charge of dissipating property. This offence was explicitly included
in the Parish Statute of 1836,2” whereas equivalent terminology was found neither in
the Statute of 1817 nor the Police Regulations. Only one prosecution, however, was
found for this offence. In 1842 in the town of Laprairie, a servant was arrested and
convicted for having “dissip6 les effets de son maitre:’ The defendant was fined fif-
teen shillings, and costs of eighteen shillings were also imposed.”‘
C. Third Party Employment Offences
As was the case within the city limits, third parties outside the city limits could be
held liable for interfering with the master-servant relationship. These types of prose-
cutions appear most often within the records of justices of the peace, rather than
within those of the city courts.”4’ This may reflect the differing social realities of these
jurisdictions, including more tightly knit (even if more dispersed) communities than
existed in the cities, as well as more acute labour shortages. Masters were known to
entice servants away from other masters, and were not adverse to cajoling servants to
leave by using threats against their employers. In Lachine in 1839, for example, a de-
fendant was bound to the peace for twelve months as he had threatened that “[i]f [the]
Prosecutor did not turn out a Girl … who was in his service defendant would do him
harm .,217
The Parish Statute of 1836 explicitly provided for prosecutions against third par-
ties for interfering with the master-servant relationship:
… Jilliam Gonnan v. Louis Cameron (15 October 1841), St. John the Evangelist, A.N.Q.M.,
J.P.(Q.R.).
2″ Jewi Baptiste Beautron dit Major v. Antoine St. Jean dit Lagarde (11 March 1840), St. Eustache,
A.N.Q.M., J.P.(Q.R-) (fined ten shillings and costs).
2 4 Supra note 171, Preamble,
” Richard Phoepoe [sic] v. Toussaint La Fontaine (15 October 1842), Laprairie, A.N.Q.M,
J.P.(Q.R). While unfortunately no more information is available as to this prosecution, it should b2
noted that the offence of dissipation was a nebulous one. Embezzlement cases were fairly num-rous
(at least in Montreal proper), and larceny and other cases were commonplace during this period. Un-
like this case, however, embezzlement and larceny could be more cleanly categorized as “criminal”
offences, rather than breaches of service. It seems possible–and indeed even likely-that dissipation
could include actions which did not explicitly include theft, such as negligence or w,,aste, or allowing
others to benefit from use of a master’s property.
216 For discussion of third party prosecutions within the city limits, see Part II.C, above.
217 Pierre Grulot v. Louis [?] Lafont (9 July 1839), Lachine, A.N.Q.M., J.R(Q.R.). This case was not
included within the statistics, as it was not a prosecution for an employment offence.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Eighthly, that if any person shall knowingly entice, by any means whatever, any
such Apprentice, Servant, or Journeyman … to depart from the service of his or
her Master, or Mistress, or employer, and that in consequence such Apprentice,
Servant, or Journeyman shall depart from such service, any person or persons
so offending shall be liable to a penalty not exceeding two pounds ten shillings
currency, to be recovered as aforesaid, or in default of payment, shall be im-
prisoned in the common gaol of the District, or in the house of correction, for a
time not exceeding one month.”‘
The language used in court cases of this type was broader than the statutory lan-
guage above might imply. Similar to the situation in the city of Montreal, cases were
brought for such related offences as harbouring or employing deserters. For example,
in Sorel a defendant was fined ten shillings for “having advised the Plaintiff’s Ap-
prentice to leave his Service, and having harboured and lodged him in his House.”
Likewise, in Ste. Marie de Monnoir a cobbler was fined five shillings for having
lodged and employed a deserting apprentice.’ The apprentice himself was ordered ”
aller continuer imm6diatement son apprentissage … et t rendre le temps qu’il a
perdu,” but the master was not awarded costs.”‘
Many of these cases obviously had implications of unfair competition, as they in-
volved one employer inveigling a servant from another employer’s service. In 1839 a
defendant was convicted of the colourful offence of “having knowingly seduced and
enticed Antoine Menancon, Baker duly engaged to the Plaintiff to quit and abandon
his service, and for having harboured and engaged the said Antoine Menancon.” After
finding him guilty, the court ordered the defendant to pay a fine of 2 10s., as well as
costs of lls. 3d.’
In other instances it is unclear whether defendants were con-
sciously employing runaways or merely secreting them. In 1842 Jacques Pepin was
convicted of “harbouring [a] servant knowingly” before a justice of the peace in La-
prairie, and was ordered to pay a fine of 10s. and rather hefty court costs amounting to
1 5s. 9d.’
2 ‘Supra note 171, Preamble.
“9 Louis Boivin v. Louis Barcier (11 July 1842), Sorel, A.N.Q.M., J.P.(Q.R.).
2 Franqois Dubour v. Isaac Maillette (11 October 1842), Ste. Marie de Monnoir, A.N.Q.M.,
J.P.(Q.R.).
2, Dubour, supra note 201. For an example in which a suit was withdrawn by the prosecutor, al-
though the prosecutor also successfully sued his servant for desertion, see Caleb R. Free v. Baptiste
Lapre (5 July 1841), Stanbridge, A.N.Q.M., J.P.(Q.R.) (hired servant convicted of desertion, ordered
to return and complete his term of service and pay costs of ten shillings); Caleb R. Free v. Richard
Gage (5 July 1841), Stanbridge, A.N.Q.M., J.P.(Q.R.) (suit for harbouring servant withdrawn, with
costs of 2s. 6d. imposed against prosecutor).
… Peter McNie v. Ambroise Peloquin dit Flix (2 July 1839), William Henry, A.N.Q.M., J.P.(Q.R.).
tm Pierre Bourassa v. Jacques Pepin (4 January 1842), Laprairie, A.N.Q.M., J.P.(Q.R.).
2001]
L C. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
829
Given the acute labour shortages in the country parishes, it is not surprising that
luring away a master’s servant would be a fairly common offence before justices of
the peace. Enticement cases, however, did not exclusively involve apprentices, jour-
neymen, or other “skilled help”. Given a strong demand for servants of all kinds, in-
cluding domestic servants, some masters undoubtedly attempted to coax away other
servants before their terms of employment had legally concluded. In 1843, for exam-
ple, two enticement cases involved domestics. In Shefford a defendant was convicted
of enticing a maid to leave the prosecutor’s service,–‘ while in Stanbridge a defendant
was convicted of doing the same to a neighbour’s domestic.’
Lawsuits such as these reflect the procedures used to protect masters’ contractual
rights in their servants, the same rights alluded to in advertisements that prohibited
“harbouring or crediting” runaways. While the number of such identified suits is
fairly limited (as are the records of justices of the peace in general), they demonstrate
that courts accorded remedies to masters against third parties. Given a scarcity of
available labour, masters had incentives to combat “raiding” of their servants, and so-
cial and economic stability demanded that steps be taken to curtail desertion. If prose-
cuting runaway servants was the primary (albeit imperfect) means of keeping cut-
throat labour competition in check, the law recognized that masters who harboured,
enticed, or employed runaways were also a crucial part of the equation.
Conclusion
Master-servant relationships played an integral part in the economy of Montreal
during the period 1830 to 1845. Nevertheless, the inexorable encroachment of indus-
trialization brought with it fundamental changes to labour relationships in Montreal,
as it did throughout North America. Masters increasingly viewed their servants
merely as wage labour, freed from the paternalistic ties that had historically bound
them together. This transition was most prevalent among apprentices, who became in-
creasingly dissatisfied with an institution that, in a way favouring masters, seemingly
retained only the vestiges of its past.
Master-servant legislation in Montreal exhibited the approach common to many
Anglo-American jurisdictions of this period, characterizing employment offences as
crimes punishable by fines and lengthy terms of incarceration. These laws were
promulgated, in large part, as a means of protecting masters’ economic and social in-
terests. While in earlier eras masters had been content to discipline servants them-
2- Nahum
lliams v. Jared Biyant (5 July 1843), Shefford, A.N.Q.M., J.P.(Q.R.) (fed twenty-
five shillings).
25 H.N. Witman v. Nathan M. Bliz (29 December 1843), Stanbridge, A.N.Q.M., J.P.(Q.R.) (fined
15s. and costs of 19s. 6d.).
830
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
selves, the gradual breakdown of the labour relationship led to a concomitant dimin-
ishment in masters’ authority, and they increasingly turned to courts to discipline re-
calcitrant servants.
When hearing these disputes, courts not infrequently disregarded servants’ com-
plaints about mistreatment and malnourishment, and did not hesitate to incarcerate
servants viewed as incorrigible or whose acts of delinquency were particularly grave.
Yet the number of cases in which servants consented or were ordered to return to
service indicate that many masters sought legal recourse primarily to compel servants
to complete their service, rather than merely to punish them for violations of master-
servant law. The courts, for their part, attempted to facilitate the completion of em-
ployment agreements when servants breached their terms of service.
While courts were a powerful tool available to masters, these tribunals did not
view the master-servant relationship as entailing duties only on the part of servants.
Courts tended to focus on the reciprocal nature of responsibilities owed to both par-
ties, and frequently acquitted servants charged with breach of service. Several reasons
may be forwarded for this phenomenon. To begin with, as labour relationships con-
tinued to break down, the economic importance of individual servants to their masters
waned, and hence the threat posed by derelict servants abated as well. It was also
equally evident to courts that masters were often seeking to renege on the responsi-
bilities which traditionally constituted the master-servant relationship.
During this period servants began to advance their interests more aggressively,
bolstered by shortages of skilled labour and a growing ethos of resistance to masters’
authority. Servants often used various non-legal means to their advantage, such as de-
serting in large numbers when dissatisfied with working conditions. As analysis of
servants’ suits indicates, however, servants also sought redress before courts against
their masters, bringing lawsuits alleging nonpayment of wages, ill-treatment, and non-
performance of the duties owed to servants by masters. That so many members of the
servile class brought legal proceedings indicates that they generally viewed courts as
accessible, and moreover, that they had considerable confidence in the willingness of
courts to decide cases in a fundamentally fair manner. The success rates enjoyed by
servants appeared to have been comparable to those of masters, providing further evi-
dence that courts provided relatively impartial forums for the resolution of employ-
ment disputes.
Labour relations during this period were therefore characterized by constant flux.
While they retained vestiges of their more hierarchical, patriarchal, and rigorously en-
forced predecessors, master-servant relationships during this time were rapidly de-
volving into loosely bound, purely economic affiliations. Masters decried the growing
mercenary nature of servants, but simultaneously wished to absolve themselves of the
non-economic responsibilities that had traditionally characterized these relationships.
Servants likewise exhibited a heightened tendency to demand satisfying employment
relationships, and used the mechanisms of the law to considerable advantage. Faced
with such fundamental and pervasive alterations to the very fabric of master-servant
relationships, the legal system evolved to reflect these changes, and in so doing, it also
assisted in cementing them.
2001]
LC. PILARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
831
Appendix: Figures
Year
1830
1831
1832
1833
1834
1835
1836
1837
1838
1839
1840
1841
1842
1843
1844
1845
Total
% of Total
Advertisements for Delinquent Ser-ants
in Montreal Newspapers, 1830-1845
Apprentices
Misc. Serants
Jort_:nxn
-it
4
2
3
6
2
8
8
2
3
–
2
1
2
1
2
46
63.8
–
1
1
–
1
–
1
–
–
1
1
–
–
6
8.3
–
–
–
Figure 1
2
–
1
–
1
–
1
–
1
–
-2
6
8.3
–
–
–
–
2
3
1
2
1
3
2
–
–
14
19.4
WA
9
6
5
9
4
12
11
2
3
2
3
0
I
2
1
72
832
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Breach of Service Complaints Filed for Summary Resolution before
Justices of the Court of Quarter Sessions, 1830-1840
Year
1830
1831
1832
1833
1834
1835
1836
1837
1838
1839
1840
Total
% of Total
Journeymen
& Labourers
Apprentices
Domestic
Servants
3
3
3
1
4
3
2
5
2
6
–
32
42.1
3
4
3
2
3
1
6
3
5
1
–
31
40.8
–
1
1
–
1
3
–
–
–
6
7.9
Figure 2
Misc.
Servants
1
Nil
1
–
–
–
–
–
–
1
-1
3
3.9
1
1
–
4
5.3
Total
8
8
6
4
8
7
11
8
8
7
1
76
2001]
LC. PILAROZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
833
Breach of Serice Prosecutions before the Court of
Weekly and Special Sessions, 1832-1835 and 183.S1843
Year
ApprenticeN
JUmym
Mn
D -, D
1832
1833
1834
1835
1838
1839
1840
1841
1842
1843
Total
% of Total
1
5
4
8
5
5
1
6
5
–
40
30.1
4
4
1
4
4
5
3
5
4
–
34
25.6
2
1
1
5
1
4
3
6
–
1
24
18.0
2
2
4
4
2
4
–
–
22
16.5
1
2
2
2
2
2
2
13
9.8
Figure 3
Total Number of Breach of Serice Proceedings
before the Police Court, 1838-1842
Wrrantb Lsucd
Am , X t : 1.,
15
25
33
56
5
134
Figure 4
9
19
26
38
5
97
Year
1838
1839
1840
1841
1842
Total
‘1
8
10
8
23
16
20
11
23
11
3
133
NIA
60.0
76.0
78.8
67.9
100.0
72.4
834
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Breach of Service Prosecutions in the Records
of the Police Court, 1838-1842
Year
Warrant
Settle
Held for
Trial
Return
to
Service
Jail
1838 n=5
1839 n=16
2
6
1840 n= 27
11
1841 n=37
1842 n=4
TOTAL n=89
17
–
36
-1
1
3
13
2
19
–
1
5
2
–
8
–
6
–
6
7
4
3
2
17
% of arrests
N/A
35.8
32.1
15.1
11.3
Disc.
from
Service
1
2
3
5.7
Dimi’.
Dismi .
from Jail
1
2
3.8
I
2
3
5.7
Figure 5
Dispositions of Breach of Service Prosecutions by Percentage before the
Court of Weekly and Special Sessions, 1832-1835 and 1838-1843
Year
Convict
Dismiss
Pros.
Default
Def. De-
fault &
Con,.
Settle
Servant
Disc by
Prosecutor
Def, Dc-
fault &
Acquit.
Nil
1832 n=8
100.0
–
1833 n=10
1834 n= 8
1835 n=23
1838 n=16
1839 n=20
1840 n= 1
1841 n=23
1842 n=1 1
1843 n=3
TOTALn=133
% of total
70.0
50.0
65.2
31.3
70.0
90.9
39.1
54.5
66.6
80
60.2
20.0
25.0
17.4
18.8
10.0
–
39.1
36.4
33.3
27
20.3
–
10.0
–
4.3
18.8
–
–
–
–
5
3.8
–
–
–
–
6.3
5.0
9.1
–
–
–
3
–
12.5
–
4.3
–
–
2
2.3
1.5
Figure 6
–
4.3
–
5.0
–
–
–
2
1.5
–
4.3
–
–
I
12.5
4.3
25.0
10.0
17.4
9.1
–
13
0.08
9.8
2001]
LC. PLARCZYK- ENFORCING MASTERS’RIGHTS IN MONTREAL
835
Dispositions of Breach of Service Convictions by Percentage before the
Court of Weekly and Special Sessions, 1832-1835 and 1833-1843
Year
Costs
Fina
Return to
JazIA
Scn~
1832
1833
1834
1835
1838
1839
1840
1841
1842
1843
Total No.
85.7
85.7
100.0
100.0
85.7
80.0
34.5
44.5
833
50.0
65
% of Total
783
57.1
57.1
50.0
333
85.7
40.0
36.4
33.3
66.7
1
50.0
39
47.0
57.1
71.4
75.0
73.3
14.3
33.3
36.4
22-2
35
42.2
14.3
–
–
6.7
–
26.7
36.4
44.4
16.7
50.0
14
16.9
Figure 7
U’ , p
1:ILI-
14.3
–
–
9.1
–
–
2
2.4
V ‘”
. ” .
6.7
–
11.1
–
2
2.4
–
16.7
1
1.2
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Disposition of Breach of Service Prosecutions by Percentage before
Justices of the Peace for the District of Montreal, 1839-1843
Year
Costs
Fine
Return
Make
Up
Time
Return-
Volun.
Settle
Acquit
or
Dismins
Jailed
for
Delault
Jailed
Otitright
1839
n=9
1840
n=38
1841
n=31
1842
n=26
1843
n=7
Total
n=lll
% of
Total
100.0
66.0
55.6
–
73.7
57.9
35.9
15.8
45.2
32.3
19.4
9.7
57.7
19.2
42.3
26.9
57.1
67
–
43
71.4
14.3
41
14
–
5.3
9.7
3.8
–
7
–
–
2.6
2.6
2.6
6.5
3.2
7.7
–
7.7
14.3
14.3
5
4
3
60.4
38.7
36.9
12.6
6.3
4.5
3.6
2.7
3.2
3.9
3
2.7
Figure 8