‘Too Well Used by His Master”: Judicial
Enforcement of Servants’ Rights
in Montreal, 1830-1845
Ian C. Pilarczyk”
The nineteenth century in Montreal was a formative era
in the development of modem labour relations. In particular.
from 1830 to 1845 the contractual nature of master-servant re-
lations became increasingly apparent, and resort to the local
courts as a mechanism for resolving master-servant disputes
became commonplace. Master-senant law was comprised of
sometimes-competing sources such as notarial contracts and
oral agreements, provincial statutes, and municipal bylaws, as
well as common law principles and judicial discretion. Other
complexities resulted from the discord between the relevant
laws governing such relations within the city of Montreal and
beyond its limits. Through analysis of primary sources, the
author examines the nature and extent of servants rights in the
judicial district of Montreal during this period. He devotes par-
ticular attention to both the constituent elements of master-
servant relations and the most common types of disputes. He
begins with an overview of the various forms of nineteenth-
century labour relations in the Montreal area. Next, he under-
takes to elucidate the legal nature of these relations, the roles
performed by notaries, and the use of indentures to record the
reciprocal contractual obligations of masters and servants. He
also considers the differences in master-ser%ant law in the two
principal areas of the judicial district of Montreal. Specifically.
he considers thoroughly the types of suits brought within the
city of Montreal and beyond its limits and the impact of the dif-
ferent governing laws on their chances of success. Ultimately.
servants, through the courts, were generally able to protect their
rights by bringing suits against their masters for various forms
of misconducL
d&coulait d’un
6erdnail &i svctrce
Le XIW s!-c A Mfoatr.al a W Lw-. priod: tr s
d– travail
formatrice pour le ddveoppcamvrt dcs rc-lttea
modaes. Entre 1830 et 1845, Ia natmre contr=tu_
des
relations emp!oyicur-ouvricr est davenuz tLa p.Ls en p~us
manifeste et le recours aux Eribuiax t.aux paim rds-.zre I
dirfends Emit courant. Le droit ds rebltitm 3 enp! ocur.
ouvrier
par&cts
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verbalm les lois provin es et Ins r
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judiciaire. D’autres prob! r,= r,.alta t d
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limites de la villa. A tra er
l’ateur ivalue la nature et l’ dzr’ua d
da ouvrzrs
dans le district judiciaire d M&ontrM durant Ia p.hiada en
question. II accorda un attention rcraculiror
cmx dUrerits
constitutifs d la relation emp!aycur-ouvrirr ei mixrnipami.
type de conflis L’aricle dbut: par ten ur l n diffrennan
formes da relations i
.borda encmuia la eiure
juridique da ces rdations, l rC!e jz.-u i rd –
et
lirtilisation des contests s)Tn~alti
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pour fom=ralia Ia
obligations r.ciproques dt emp!ao yurrs ct d- o.-ars. II
ju.qun ermu-e L-3 dnvc
aborde 6galemant ls diffrenc
principalcsn regons dui district jud~cizir d,- MmT~L L’zueur
analyse Ins types & danidas prgfesi
Montreal et aillrs et I’inmp=c des diffl’&r= cs a p!iml!an
str les chances d r&ssite du dtm-a-rktr. I! c zlut qa In
ouviera E nt g’nral ement en n—rrr da faire re-p.ctar Lrui
droits ‘h traver Ic proceess jttl ciaire.
day arA las tribtzamr
tine cnalyse dzs sources pirrni ,.
ds
t
traal et
r1:5 c mz r
.BA (McGill); J.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 advisor for my LL1M. thesis, from which this article is derived, as vell as G.
Blaine Baker for his incisive comments and encouragement. In addition, I wish to achnowledge
Nicholas Kasirer of the McGill Faculty of Law; Jeremy Webber, Dean of the Faculty of Law, Univer-
sity of Sydney, formerly of the McGill Faculty of Law; Paul Craven of York University; and Brian
Young of the McGill History Department.
McGill Law Journal 2001
Revue de droit de McGill 2001
To be cited as: (2001) 46 McGill LJ. 491
Mode de rfdrence: (2001) 46 R.D. McGill 491
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Introduction
I. The Nature of Labour Relations in Nineteenth-Century Montreal
A. Apprentices and Journeymen
B. Domestic and Miscellaneous Servants
II. The Law of Master and Servant
A. The Role of Notaries
B.
Indentures
1. Language
2. Transfer and Continuance
3. Termination and Cancellation
Ill. Master-Servant Law for the Judicial District of Montreal
A.
In the City of Montreal
B. Outside the City Limits
IV. The Master in Montreal Court: Judicial Protection of Servants’ Rights
A. The Master as Defendant in the City of Montreal
1. Unlawful Withholding of Wages
2. Wrongful Termination
3. Physical Mistreatment
B. The Master as Defendant outside the City Limits
1. Unlawful Withholding of Wages
2. Physical Mistreatment
3. Non-performance of Duty
4. Wrongful Termination
Conclusion
2001]
L C. PLARCZYK- SERVANTS’ RIGHTS IN MONTREAL, 1830-1845
493
Introduction
On 13 April 1843, a young apprentice hatter named Cornelius Kelly deserted the
service of William Gettes, a prominent hatter and furrier in Montreal. Kelly was not
the first apprentice to abscond from Gettes’s service; in fact, Gettes was no stranger to
labour discord or to the court processes designed to adjudicate master-servant dis-
putes. Shortly after the new year began in 1838, for example, he was forced to sue an
apprentice for desertion.’ Six months later two more of his apprentices absconded.
Besides filing suit against them, Gettes also resorted to advertising one of the run-
aways in the local newspaper. He warned the public not to “harbour or employ” his
apprentice “as much for example as respect to justice,’ and forwarded the curious
supposition that “[h]is parents can assign no other reason for his running away, than
for being too well used by his Master.’ A year later Gettes sued another deserting ap-
prentice but settled out of court.’
While having apprentices flee from his service was therefore not unusual, it is
likely that nothing in his previous experience had prepared Gettes for the events that
were to transpire following Kelly’s departure. Kelly, no doubt feeling entirely “too
well used” by his master, sued Gettes for mistreatment, and Gettes was forced to post
bail for his court appearance the following week. Gettes countersued for desertion,
and Kelly was arrested and bound to trial. Before the Court of Weekly and Special
Sessions in October of 1843, Kelly’s indenture-and by extension, his legal connec-
tion to Gettes-was formally terminated.”
The lawsuits by Gettes and Kelly are vivid examples of the complexity of master-
servant law in the judicial district of Montreal during the early nineteenth century. The
complaint filed by Kelly initiated an adversarial process designed to enforce the law
of master and servant, and led to the eventual severance of these two parties’ bonds of
employment. Through the use of primary sources, this article seeks to ascertain the
‘ Wlliam Gettes v. 77tomas Kenan (9 January 1838), Archives nationales du Qudbec a Monrdal
[hereinafter A.N.Q.M.], Registers of the Court of Weekly and Special Sessions [hereinafter
W.S.S.(R.)] 10, 14 (no disposition). The variant spellings of the furrier’s last name found in the
sources—“Gettes”, “Gettess”, and “Geddes”–illustrate some of the attendant difficulties in analyzLing
primary sources of this period. I have used “Gettes” throughout this work as he signed it as such on
Kelly’s indenture. See bifra note 138.
2 William Gettess v. John Brayer (18 July 1838), A.N.Q.M., Files of the Court of Quarter Sessions
[hereinafter Q.S.(F.)]; William Gettess v. Louis Maxwell (18 July 1838), A.N.Q.M., Q.S.(F.). See also
The Montreal Transcript (25 August 1838) (advertising Louis Maxwell as a runaway apprentice).
‘ William Gettess v. Samuel Brazier (1 December 1840), A.N.Q.M., Registers of the Police Court
[hereinafter PC.(R.)]) 33.
‘ Cornelius Kelley v. William Geddes (20 October 1843), A.N.Q.M., W.S.S.(R.) [hereinafter Kelle
v. Geddes]. See Part IVA, below, for a discussion of this case.
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nature and extent of judicial protection of servants’ rights in the district of Montreal
from 1830 to 1845. That said, this work has four primary objectives. First, and most
broadly, it seeks to complement the limited body of scholarship on early-nineteenth-
century Canadian master-servant law. Second, this article aims meaningfully to ana-
lyze a neglected, but crucial, aspect of the legal regime during this period: the role of
the lower courts and justices of the peace who, as “servants of the law”, functioned as
the main arbiters of labour disputes.’ Third, while not a comparative study, this article
seeks to permit a fuller understanding of the rich complexity of master-servant law in
Montreal-a city which was a point of intersection between the French civil law and
the English common law. Last, it is the objective of this work, through the analysis of
earlier records, to determine whether the numerous assumptions about labour law in
pre-industrial Montreal are accurate.
For ease of analysis, this article will set out the relevant master-servant law as ap-
plied in the judicial district of Montreal from 1830 to 1845. Then it will explore the
nature of court cases brought by servants against their masters. As the judicial district
of Montreal encompassed both the city proper and certain outlying townships, and as
the applicable laws differed within the city and beyond its limits, these will be dis-
cussed separately.’
I. The Nature of Labour Relations in Nineteenth-Century Montreal
When examining labour relations in Montreal, distinctions must first be drawn
between the various forms of employment relationships existing during this period.
The term “servant” had much broader social and legal connotations than those inher-
ent in its narrower, present-day usage. As such, positions as diverse as domestic ser-
‘ Little effort has previously been expended to analyze comprehensively the nature of the disputes
and judgments rendered by these nineteenth-century courts in this field.
6 Two observations are warranted about the relationship between this topic and the sources con-
sulted. While this article concentrates heavily on apprentices, journeymen, and domestic servants, the
sources often precluded identification of the precise status of the parties involved, other than to make
the general observation that one was a subordinate and the other an employer. Accordingly, unless
specific identification was possible, apprentices, domestic and hired servants, journeymen, and la-
bourers have been subsumed under the general rubric of “servant”. This has the added advantage of
mirroring the more expansive sense in which this term was used during this period than is connoted
by its modem usage. Masculine pronouns and the designation “master” have also been used through-
out, as the preponderance of servants and employers were male. Most domestics, however, were fe-
male. For analyses of domestic servants in nineteenth-century Canada, see e.g. the companion article
to this piece, I.C. Pilarczyk, “The Law of Servants and the Servants of Law: Enforcing Masters’
Rights in Montreal, 1830-1845” (2001) 46 McGill LJ. [forthcoming]; C. Lacelle, Urban Domestic
Servants in Nineteenth Century Canada (Ottawa: Environment Canada, 1987); G.L. Hogg, The Legal
Rights of Masters, Mistresses and Domestic Servants in Montreal, 1816-1829 (M.A. Thesis, McGill
University, 1989) [unpublished].
2001]
LC. PILARCZYK- SERVANTS’RIGHTS IN MONTREAL, 1830-1845
495
vant, apprentice, journeyman, hired servant and employee (e.g. store clerk, cart driver,
milkman), and day labourer were subsumed under this rubric.’ Other categories, such
as seamen, voyagers, and canoemen, are important elements of the labour landscape,
but are usually specifically identified as such in period sources. All servants of the
first half of the nineteenth century, however, shared the distinction of serving a supe-
rior, usually referred to as “master” or “mistress”. To remain faithful to contemporary
language these terms have been retained as they appeared in the primary sources,
rather than be replaced with the generic terminology of “employer” and “employee”.’
As all these relationships were governed by master-servant law, the term “servant” as
used here encompasses apprentices, domestics, hired servants, labourers, and jour-
neymen.
It must also be emphasized that early Victorian society was deeply stratified, and
as such there were important conceptual and socio-economic differences between the
various categories of servants. There were also pronounced hierarchies within the ser-
vile class. For our purposes, it is sufficient to illustrate by way of example that a
skilled journeyman had little in common with a common labourer or farmhand, and a
governess’s social standing was often far removed from that of an ordinary kitchen
maid.”‘
7 This division mirrors that of William Blackstone, who divided servants into four categories under
the common law: domestic servants, apprentices, hired labourers, and sergants pro tempore. See NV.
Blackstone, Conunentaries on the Lavs of England, vol. 1 (London: Revised Apollo Press, 1813) at
429-31. See also Hogg, ibi
at 25-26; C.L. Tomlins, ‘”rhe Ties That Bind: Master and Servant in
Massachusetts, 1800-1850″ (1989) 30 Labor Hist. 193 at 211. “Servants pro tempore” refers to indi-
viduals who served others voluntarily, often temporarily, in a “superior … [or] ministerial, capacity;
such as stewards, factors, and bailiffs” and will not be addressed in this article (see Blackstone, ibid. at
431). The civil law also implied a distinction between classifications of senants (see M. Bugnet,
Oeuvres de Pothier, voL 2, 3d ed. (Paris: Marchal et Billard, 1890) at 441, para. 827). This system of
classification was similar, but perhaps even more expansive, in the United States. As one nineteenth-
century American law text on the law of master and servant stated, “[All who are in the employ of
anotherin whatever capacity, are regarded in law as servants” (Tomlins, ibid at 196, n. 10).
‘ Seamen, voyagers, canoemen, and the like performed functions largely dissimilar from those of
other servants and were governed by different legislative enactments. All those employed in nautical
pursuits, including apprentice seamen, are therefore excluded from this analysis.
9 See eg. G.L. Hogg & G. Shulman, “Wage Disputes and the Courts in Montreal, 1816-1835″ in D.
Fyson, C.M. Coates & K. Harvey, eds., Class, Gender and the Lawv in Eighteenth- and Nineteenth-
Century Quebec: Sources and Perspectives (Montreal: Montreal History Group, 1993) 127. Re-
specting the usage of these historic terms makes the reading of this text more difficult, but their use
underscores important cultural distinctions of the society which used them” (ibid. at 127, n. 1).
,0 For a discussion of hierarchies in nineteenth-century London, see J.R. Gillis, “Senrants, Sexual
Relations and the Risks of Illegitimacy in London, 1801-1900″ in J.L Newton, M.P. Ryan & J.R.
Walkowitz, eds., Sex and Class in Wbnen’s Histor, (London: Routledge and Kegan Paul, 1983) 115
at 140. See also G.S. Jones, Outcast London: A Study in the Relationship between Classes in Victo-
496
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A. Apprentices and Journeymen
Among the most visible servants of this period were apprentices and journeymen.
Journeymen-individuals who successfully completed their terms of apprentice-
ship-represented the largest part of the skilled freelance labour of the time, enjoying
the highest wages, the most social respectability, and the most opportunity for social
mobility. Prior to the widespread industrialization of English and North American
cities, apprenticeship was a prevalent form of job training. Apprenticeship was an in-
stitutionalized form of work-study in which the apprentice provided services for a
specified time to acquire professional skills. The length of the apprenticeship, as well
as the obligations of both the master and apprentice, were commonly specified in no-
tarized indentures.”
The institution of apprenticeship in Lower Canada generally, and Montreal more
specifically, may be said to have its roots in the Custom of Paris and the laws of Great
Britain, borrowing both their traditions and basic structures. 2 A standard three-tiered
system was followed, in which an individual began as an apprentice, graduated to
journeyman, and culminated with recognition as a master (maitre). The European tra-
dition, and that of the early colonial periods in New France and British North Amer-
ica, was that a journeyman had to complete a “masterpiece” (chef d’atvre), or pay an
induction fee (droit d’entrie) to a guild, to be officially recognized as a master.” Some
scholars have argued that in Quebec during this time, a journeyman (at least in some
crafts) was merely required to complete a specified term of employment in his area of
speciality to be accorded the right to call himself a master.”
rian Society (Oxford: Clarendon Press, 1971) at 350-57. For discussion of master-servant relation-
ships in other jurisdictions, see e.g. L.W. Towner, A Good Master Well Served: Masters and Servants
in Colonial Massachusetts, 1620-1750 (New York: Garland Publishing, 1998); S.C. Maza, Servants
and Masters in Eighteenth-Century France (Princeton: Princeton University Press, 1983).
” For a discussion of indentures, see Part II.B, below. Seven-year terms of apprenticeship, while
standard in England, were not common in colonial America or in Quebec during this period. See G.
Hamilton, Contract Incentives and Apprenticeship: Montreal 1791-1820 (Ph.D. Thesis, Queen’s Uni-
versity, 1993) at 18 [unpublished]. Interestingly, justices of the peace had the statutory power to bind
any children above the age of five as apprentices if they were found begging in the street, by virtue of
An Act to Amend an Act Passed in the Ninth Year of His Majesty’s Reign, Intitled [sic], “An Act for
the More Speedy Remedy of Divers Abuses Prejudicial to Agricultural Improvement in This Prov-
ince”, 1830 (Qc.), 10 & 11 Geo. IV, c. 1, s. 49 [hereinafter 1830 Amendment Act]. Discussion of this
issue, however, is beyond the scope of this article.
12 See generally Hamilton, ibid.; see also PH. Audet, Apprenticeship in Early Nineteenth Century
Montreal, 1790-1812 (M.A. Thesis, Concordia University, 1975) at 15 [unpublished].
” See generally D.T. Ruddell, Apprenticeship in Early Nineteenth Century Quebec, 1793-1815
(M.A. Thesis, Universit Laval, 1969) at 10-15 [unpublished]; Audet, ibid. at 6-8.
“See e.g. Ruddell, ibid. at 15. Others have argued that the sole impediment preventing most jour-
neymen from holding themselves out as masters and hiring servants of their own was a shortage of
2001]
LC. PILARCZYK- SERVANTS’RIGHTS IN MONTREAL, 1830-1845
497
Scholars have shown that apprenticeship in Canada began to change radically by
the beginning of the nineteenth century, with apprenticeship devolving from a person-
alized form of work-study to an indistinguishable form of servitude.” As labour histo-
rian Bryan Palmer has written,
As masters accumulated capital, stepped up production demands because of
market considerations, and hired increasing numbers of apprentices to do the
heavy and often unskilled labour needed in the shop, apprentices began to see
only the tyranny of their obligations and grew resentful of the master’s failure
or refusal to fulfill his responsibilities adequately.”
While indentures stipulated responsibilities on the part of masters, the quality of
life and education received by apprentices was determined primarily by the masters
themselves.” The breakdown of the institution of apprenticeship was already visible
by the turn of the eighteenth century, manifesting itself in an appreciable upturn in the
frequency of desertions.” By the second half of the nineteenth century, the traditional
vestiges of servitude (most profoundly in apprenticeship) had largely given way to a
capital. See e-g. M.A. Poutanen, For the Benefit of the Master: The Montreal Needle Trades during
the Transition 1820-1842 (M.A. Thesis, McGill University, 1985) at 96-98 [unpublished, hereinafter
For the Benefit of the Master].
For the sake of simplicity, I use the present name Quebec to refer to the colony.
See generally Ruddell, supra note 13 (Quebec City); Audet, supra note 12 (Montreal). See also
B.D. Palmer, Working-Class Experienc the Rise and Reconstitution of Canadian Labour, 1800- 980
(Toronto: McClelland & Stewart, 1992) at 28; For the Benefit of the Master, ibid. at 2-3. The trans-
formation of American apprenticeship began earlier, but the institution was essentially lifeless by the
middle part of the nineteenth century. See WJ. Rorabaugh, The Craft Apprentice, From Franklin to
the Machine Age in America (New YorLk: Oxford University Press, 1986) at 57-75.
16 Palmer, ibkL at 29.
‘7Ruddell, supra note 13 at 3.
“See generally Audet, supra note 12. See also Palmer, supra note 15 at 28. Hamilton axplains that
apprentices were paid “more than the value of their marginal product during the early years of their
contract and less during the latter years. It was this divergence … that gave rise to the incentive to run
away” (supra note 11 at 121). For experiences in other jurisdictions, see generally Ruddell, ibid.
(Quebec City); Rorabaugh, supra note 15 at 48-49 (United States). Indeed, the number of runaway
servants seems to have increased in North America from century to century. See e.g. S.V. Salinger,
“To Serve Well and Faithfilly”, Labor and Indentured Servants in Pennsylvania, 1682-1800 (Cam-
bridge: Cambridge University Press, 1987) at 103 (detailing the rise in deserting servants in colonial
Pennsylvania). Not all scholars who have analyzed Montreal labour issues have agreed that desertion
in this jurisdiction was an endemic problem. See eg. Hogg, supra note 6. stating at 19, n. 8, that the
“‘problem’ of desertion [of domestics] is somewhat exaggerated in Lower Canadian newspapers and
documents” Both Hogg and Hamilton view indentures as a successful means of combatting deser-
tion. Hamilton states that “[i]f the runaway problem was indeed chronic it suggests that masters and
apprentices were unable to construct contracts which apprentices would not breach by running avay”
(ibid at 128). Hamilton’s analysis of indentures is valuable, but fails to take into account that even if
financial inducement were the primary motivation for apprentices to desert, it was by no means the
only one. Furthermore, many apprentices, like other servants, were not bound by written agreements.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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more market-driven variant, which encompassed fewer responsibilities on the part of
masters while retaining some degree of the customary paternalistic and proprietary
attributes.” Along with spreading dissatisfaction on the part of servants, growing in-
subordination, and the formation of collective organizations came an erosion of mas-
ters’ authority.’ Masters therefore turned increasingly to the courts to deal with recal-
citrant apprentices and other servants as the century progressed.2′
B. Domestic and Miscellaneous Servants
The single most striking difference between journeymen and apprentices, on the
one hand, and domestic and other servants, on the other, was that apprentices had the
possibility of advancing to journeyman and eventually master status, while the status
of domestics and other servants tended to remain static.’ Largely for this reason, this
latter group of servants was commonly conceived of as inhabiting a lower social stra-
tum. Domestic servants in particular, however, were far from homogeneous. While a
majority of domestics were female, were employed to provide household or profes-
sional assistance, and lived under their master’s roof, the similarities often ended
there.’ The term “domestic servant” encompassed a multiplicity of job descriptions
and social statuses. At the lowest rung of the social ladder were included the “maid-
of-all-work”, “kitchen skivvy”, and “child servant”. In contrast, ladies’ maids, nurses,
and governesses inhabited a markedly different social orbit from that of the less gen-
9 Palmer, supra note 15 at 29. But see J. Burgess, Work, Family and Community. Montreal Leather
Craftsmen, 1790-1831 (Ph.D. Thesis, Universit6 du Quebec A Montrdal, 1987) [unpublished]. Bur-
gess, in her examination of the leather trade in Montreal, concluded that the master-servant relation-
ship within this group of artisans was not disintegrating.
2 In the United States, masters in the post-Revolutionary period complained that each successive
generation of apprentices was increasingly insolent (Rorabaugh, supra note 15 at 42-56). For discus-
sion of illegal collective organizations in nineteenth-century Canada, see Palmer, ibid. at 30-31. Ex-
amples of such early Montreal unions included tailors and shoemakers (1830), printers (1833), and
bakers, firemen, and mechanics (1834) (ibid).
2 Audet, supra note 12 at 157; Rorabaugh, ibid. at 45 (United States). See also Ruddell, supra note
13 at 168-69 (citing the decline on the part of masters in training and guiding apprentices as responsi-
ble for the courts’ increasing influence).
‘ While this was generally true, Hogg points out that some domestics (most notably boys) were
later apprenticed to skilled crafts (supra note 6 at 56-57).
‘ For discussion of domestic servants in Montreal during the 1810s and 1820s, see generally Hogg,
ibid.; Lacelle, supra note 6. Hogg defines domestic servants as “anyone who served in a menial ca-
pacity, performing work and labour in and about his or her master’s … home, or business, where the
work and labour performed were particular to the maintenance of the master … or to the master’s …
home, or place of business” (ibid. at 23). For discussion of domestics in other jurisdictions, see e.g.
T.M. McBride, The Domestic Revolution: The Modernization of Household Service in England and
France, 1820-1920 (London: Croom-Helm, 1976); P. Hom, The Rise and Fall of the Victorian Ser-
vant (New York. St. Martin’s Press, 1975).
2001]
LC. PLARCZYK- SERVANTS’RIGHTS IN MONTREAL, 1830-1845
499
teel members of the household help.” While domestic servants typically performed
functions related to the master’s home or business, other servants were employed as
hired hands of every description. This subclass encompassed canal workers and
ditchdiggers, farmhands, cart drivers, and innumerable similar unskilled servants.
II. The Law of Master and Servant
A. The Role of Notaries
The involvement of notaries in master-servant law, a legacy of Quebec’s civil law
system, is undoubtedly one of the most striking differences between this jurisdiction
and other areas of the British Empire during the nineteenth century. A notary-not to
be confused with a notary public in common law systems-is a civil law jurist who
specializes in matters related to immovable property.? Among their other functions,
nineteenth-century notaries prepared and witnessed a host of contracts that defined the
terms of the master-servant relationship. These notarial contracts were known by a
multiplicity of names: in English, they were commonly referred to as “indentures”,
“engagements”, “agreements”, or “articles of apprenticeship”; in French, they were
referred to as “brevets”, “brevets d’apprentissage’, or “engagements .’ Most com-
monly they were two to three pages in length and usually handwritten by the notary,
but occasionally printed.’ Indentures identified the contracting parties and their occu-
pations and residence and then set out the duties of the parties (usually standardized).
The document was then signed or marked by the parties in the presence of the notary.
As such, notaries essentially translated the language and intentions of the contracting
parties into a legal contract couched in the legal phraseology common to the time, but
reflecting any individual stipulations required by the parties.? After a servant was
bound by such a document, he or she was commonly referred to as “indentured”.’
2′ See eg. Gillis, supra note 10 at 117.
‘ In their modem-day function in Quebec, notaries specialize in providing legal counsel, negotiat-
ing contracts, drafting documents, and representing clients in non-advesaial proceedings before
courts or administrative agencies. In addition, notaries employed as public officers draft and receive
authenticated deeds and acts. See R1P. Kouri et aL, eds., Private Lav Dictionary and Bilingual Lexi-
cons, 2d ed. (Cowansville, Qc.: Yvon Blais, 1991) s.v: “notary”.
Other variants include contracts for apprentices to notaries, commonly referred to as “brevets de
c/ricature”. For the sake of simplicity, the term “indenture” is used below.
27 See Hogg, supra note 6 at 17.
” Ibld at 17-18.
9 It should be noted that servants bound by indentures were often referred to by the rather more
painful-sounding nomenclature “indented”. This latter term was commonly in use in Montreal in the
1830s, but was largely replaced with “indentured” by the 1840s.
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While the personal relationships existing between masters and servants may have
been extremely varied, they were, above all, legal relationships involving mutual re-
sponsibilities. Many master-servant contracts were informal verbal agreements, as be-
fitted associations based on social, religious, ethnic, and other connections. By con-
trast, the institution of apprenticeship, a particularly formal type of labour relation-
ship, was usually based on an indenture entered into by both parties. Variants, how-
ever, were also common for many other forms of master-servant relationships. The
most obvious examples are those involving long-term or specialized occupations or
both (e.g. maltsters hired by Molson’s Brewery, or journeymen in any number of dif-
ferent trades). While the process was not nearly as ubiquitous as for apprentices,
other servants were also indentured before notaries. Indentures were found for occu-
pations as diverse as farmhand, ditchdigger, domestic servant, deliveryman, and shop
clerk.”
The reasons why some of these servants were indentured while others were not is
best explained by the individual circumstances surrounding the parties.” Indentures
for non-skilled servants were probably dictated largely by demands for unusual du-
ties, quasi-adoptions, or by a lack of, or in preferment to, traditional community links
between master and servant.3 The social position of the master, his previous experi-
ences with servants, or the relative inconvenience of replacing a wayward servant
might also have been contributing factors that determined whether a master insisted
that a servant be formally indentured?’
* For discussion of journeyman tailors and foremen bound by indentures, see generally For the
Benefit of the Master, supra note 14 at 78-104.
” The demarcation between an apprentice and another variety of servant was sometimes blurred, as
apprentices often performed household tasks. Moreover, some indentures explicitly characterized the
servant as having more than one formal role; for example, in 1833 Joseph Cropper was bound as an
apprentice “pastry cook and confectioner, and as … household and domestick [sic] servant for and
during … five years to be reckoned from and after the day of the date hereof’ (Indenture of Joseph
Cropper to Henry Meissen [?] and Elizabeth Shepherd (12 March 1830), A.N.Q.M., Notarial File of
George Dorland Arnoldi). For discussion of the intersection between apprenticeship and domestic
duties, see Part I.B, above.
2 For a discussion of indentures for domestic servants, see generally Lacelle, supra note 6; Hogg,
supra note 6 at 37-66; Palmer, supra note 15 at 28. For a discussion of indentures in general in Mont-
real, see generally Hamilton, supra note 11.
” See e.g. Hogg, ibid. at 18-19; R. Sweeny, Internal Dynamics and the International Cycle: Ques-
tions of the Transition in Montreal, 1821-1828 (Ph.D. Thesis, McGill University, 1985) at 98-102
[unpublished]. Further discussion of quasi-adoptions will be found at infra note 58 and accompanying
text.
‘ For example, Lacelle has suggested that indentures were used to ensure that domestic servants did
not quit service prematurely (supra note 6 at 46). But see Hogg, ibid. at 19, n. 8. With respect to ser-
vants, there is little or no information on their attitudes towards indentures. As will be argued here, in-
dentures, from servants’ perspective, could be seen as a mixed blessing. One of the positive attributes
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By drafting these indentures, notaries played an integral role in master-servant
law during this period. Notaries retained copies of these indentures in their personal
files-thereby functioning as a form of registry office-and made amendments to in-
dentures as well as facilitated and recorded transfers, cancellations, and terminations.
Furthermore, as shall be discussed, indentures offered an additional source of protec-
tion for both parties by explicitly demarcating the terms of employment at the outset.
An important, if not readily apparent, corollary to this observation is that notaries
were undoubtedly called on to perform remedial and dispute-settlement functions in
at least some circumstances. In the absence of any exhaustive examination of the
thousands of extant notarial documents (a daunting task which, in any event, would be
exacerbated by the vagaries of the primary sources themselves), the precise extent of
notaries’ participation in labour relations following the drafting of indentures must
remain speculative; nonetheless, their importance to Montreal master-servant law
should be emphasized.
B. Indentures
1. Language
The language and clauses of typical indentures blended elements common to
those found in England and France.” The servant was generally obliged to serve and
obey his master and avoid any damage to his master’s interests during his service.” To
limit the risks to masters, indentures occasionally provided explicitly for a probation-
ary period of service, during which the master could freely dismiss the servant from
his service if he found the quality of his work to be lacking.” In the case of appren-
of indentures is that they often implied a long-term, reasonably secure position of employment for
skilled workers (or for workers who would acquire skills during their terms of indenture). This is, of
course, a vicious generalization, but one that holds true insofar as common labourers and other types
of unskilled servants were much less likely to be bound by indentures. The distinction is somewhat
comparable, in modem parlance, to that between an “at-will” employee and an employee hired on the
basis of an employment contract.
“_ Hamilton, supra note 11 at 1; Ruddell, supra note 13 at 16. For a comparative analysis of these
documents and those found in England, France, and colonial America, see generally Hamilton, ibid.
In England, for instance, municipal laws ensured that indentures were legally binding, and negligent
apprentices as well as masters were subject to legal sanction. In colonial America, indentures were
often registered in mayoral offices, so that a record would be available in the event of legal proceed-
ings (ibid. at 19). Notarial offices in Montreal, while not as centralized as mayoral offices, could have
performed a similar function.
See e-g. Ruddell, ibid. at 17. The period of service for Montreal apprentices vs typically four to
six years, and apprentices were usually between fourteen and sixteen years of age when indentured
(Hamilton, ibid. at 33).
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ticeship indentures, they tended more than other types of indenture to contain detailed
stipulations of responsibilities on both sides. For example, the indenture binding Cor-
nelius Kelly as an apprentice hatter stated:
Mary Haron promises that her said Son shall apply himself and work day by
day … without loss of time, Shall do all and every such work as shall be given
him to do by his said master … relative to said art and trade, shall attend and
work without loss of time … also shall colour wash and clean skins, obey the
lawful commands of his said master … shall not absent himself from the em-
ployment of his said master either by day or by night without leave[,] not waste
or lend his masters goods or bring in any spirituous liquors in any part of the
said W[illia]m Gettes [sic] premises or see it done by others without giving him
notice thereof, [and] shall not divulge the secrets of any of the affairs and trans-
actions of his said master.
As is the case in Kelly’s indenture, these documents commonly stipulated specific
employment obligations (e.g. the colouring and washing of skins), as well as general
obligations common to virtually all indentured servants (e.g. working without loss of
time).
Indentures could also contain provisions that appear, on their face, to be circum-
ventions or modifications of established tenets of master-servant law during this pe-
riod. Some indentures explicitly gave masters the right to withhold payment if the
servant was dismissed prematurely. One such indenture accorded a master the right to
dismiss his boy domestic servant and withhold the twenty pounds payment due to him
after five years’ service if he proved “‘to be debauched or addicted to liquor, [or] lazy
or careless.’.9 This was in conflict with the municipal bylaws, which stipulated that
wages due were to be paid at the time of termination.’ Indentures-most notably for
female domestics-not infrequently contained clauses that prohibited the servant
from becoming married prior to the completion of the stipulated term of service.”
Such a provision was the subject of a court case in Montreal in 1833, in which the
court expressly rejected the legality of this prohibition. 2
While facially similar, indentures entered into during this period evinced numer-
ous English- and French-language variations. In mentioning the parties to the agree-
ment, French-language indentures usually placed the father’s name first with a state-
ment that the father had bound his minor son for the child’s “advantage and profit”, or
3 Hamilton, ibid. at 78-81. For discussion of probationary periods in the context of desertion prose-
cutions, see Pilarczyk, supra note 6 at text accompanying note 117.
‘ It should be noted that Kelly’s indenture appears within the files of the court only because it was
cancelled during the court proceedings, as discussed here; see text accompanying note 140.
39Hogg, supra note 6 at 65 ×..
See infra note 91 and accompanying text.
,’ See e.g. Hogg, supra note 6 at 55-56.
See Pilarczyk, supra note 6 at n. 146.
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that the son (with his father’s assistance) had voluntarily engaged himself. English in-
dentures most often stated that the minor son, with his father’s assistance, had volun-
tarily entered into the agreement. ‘ Furthermore, they tended to list specific rules of
conduct that servants were to obey. Among the most common requirements, usually
in the case of apprentices, was that they were to make up time lost or to “return all the
time … los[t] by his fault and negligence.” Such indentures also tended to show a
great concern for moral behaviour, requiring servants not to absent themselves or to
frequent taverns and houses of ill repute.” French-language indentures also frequently
required that servants (other than domestics) assist with household chores after nor-
mal working hours.”
In French-Canadian apprenticeship indentures, parents or tutors vere also gener-
ally obligated to return runaway servants to their master if they deserted.’ Punitive
clauses were often included, by which the apprentice or a relative was responsible for
the payment of a substantial sum should the term of service not be fulfilled. It was
also much more common for these apprenticeship indentures to make allowances
should the master die before the term of service was formally concluded.”
In both English- and French-language apprentice indentures, masters were re-
quired to provide instruction in all the mysteries of the craft, and usually to provide
” Under the civil law, consent by both the father and child was necessary as well as presumed
(Ruddell, supra note 13 at 17).
” Indenture of Cornelius Kelly to William Geddess (18 February 1841), A.N.QA., Files of the
Court of Weekly and Special Sessions. See also Ruddell, ibid. at 18.
, Kelly’s indenture obligated him to “not play at cards[,] dice, or any other unlawful games:’ in ad-
dition to the prohibitions against desertion or consuming liquor (Indenture of Cornelius Kelly to Wil-
liam Geddess, ibid.). See also Audet, supra note 12 at 17; Hamilton, supra note 11 at 19.
See ag. Ruddell, supra note 13 at 18. Hogg points out that indentures occasionally forbade as-
signing domestic chores to apprentices, presumably as such work was beneath their social station (su-
pra note 6 at 24-25). Hamilton suggests, however, that fewv apprentice indentures prohibited work un-
related to the master’s craft, implying that such work was often a required part of an apprentice’s du-
ties (ibid at 90).
Ruddell, ibid at 18; see also Hamilton, ibid. at 151-52. Hamilton states that a majority of inden-
tures in Montreal obligated parents to search for and return runaway apprentices, in marked contrast
to indentures in colonial America (ibid at 166-67).
4′ See eg. Audet, supra note 12 at 155; Hamilton, ibid. at 95. Audet also maintains that indentures
“with a punitive clause … allowed master and apprentices a certain amount of freedom, and perhaps
accounts for the lack of disputes between French-Canadian masters and French-Canadian appren-
tices” (ibid). The apprenticeship indenture of Terrance Duffy called for a penalty of ten pounds if the
agreement was not fulfilled, payable by the apprentice’s brother and a third party (Indenture of Ter-
rance Duffy to James Herecourt (2 June 1832), kN.Q.NL, Notarial File of George Darland Arnoldi).
For an example of a prosecution in which a servant was condemned to pay ten dollars to his master
under such a clause in his indenture, see Pilarczyk, supra note 6 at note 196 and accompan)ing text.
9 Ruddell, supra note 13 at 19-20.
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board, lodging, bedding, and clothing. If clothing was not provided, a clothing allow-
ance was often specified. Mistresses were sometimes obligated to wash and mend an
apprentice’s clothing.” Domestic servant indentures often stipulated that the necessi-
ties servants were to receive were to be “‘suivant I’usage de ce pays… or similar lan-
guage which indicated that they were to be appropriate to the servant’s social station;
a representative clause was that the servant was to receive ‘good and wholesome
boarding, lodging, [and] clothing befitting a person in the capacity of an indentured
servant.'”. At the end of the term of employment, the servant (most often an appren-
tice) might have received a sum of money, a suit of clothes, or the tools of the trade.”
One striking difference between English and French indentures was that French
Canadians often included explicit provisions for servants’ religious instruction in the
Catholic Church and their first communion, allowing servants to attend mass and ob-
serve religious holidays, or both.” Given the number of French-Canadian (Catholic)
servants indentured to English-Canadian (Protestant) masters, there were obvious
concerns that Protestant masters would otherwise impede the practice of, or instruc-
tion in, servants’ Catholic faith. In contrast, English indentures emphasized formal
education, such as instruction in reading and writing or ciphering provided either by
masters or through enrolment in night school, and rarely mentioned religion at all.”
0 For example, James Clarke’s apprenticeship indenture to Joseph Page, brush manufacturer, pro-
vided, in lieu of clothing, for a clothing allowance of three, five, six, seven, eight, and nine pounds, re-
spectively, for the seven years of his term. The indenture continued:
[I]t being, however understood and agreed that should it appear to the said Joseph Page
that the said James Clarke is not sufficiently and properly clothed, he the said Joseph
Page shall have the right and be at liberty to furnish such clothing as may be requisite
for the said James Clarke and to deduct whatever Sums he may advance for that pur-
pose, from the said Sums so to be annually allowed as aforesaid (Indenture of James
Clarke to Joseph Page (27 June 1836), A.N.Q.M., Notarial File of George Dorland Ar-
noldi [hereinafter Clarke indenture]).
“Hogg, supra note 6 at 60 ×..
5, See e.g. Ruddell, supra note 13 at 18. These payments to apprentices, often referred to as “free-
dom dues”, were dictated by municipal law in colonial America (Hamilton, supra note 11 at 17). The
converse of this was that some masters or mistresses demanded apprentice fees, although such fees
were far from the norm. Fees were usually demanded for highly sought-after professions, such as
medicine or law. For example, an apprentice milliner was to pay “Ten Pounds currency as a remu-
neration fee for the trouble she may have in instructing the said [apprentice] in her said Trade” (In-
denture of Ellen Gannon to Mrs. Maetzler (18 October 1830), A.N.Q.M., Notarial File of George
Dorland Arnoldi).
” See e.g. Ruddell, ibid. at 19; Audet, supra note 12 at 17-18. For a comprehensive discussion of
these ethnic and religious differences, see generally Ruddell, ibid. at 144-57.
‘,A
rare contrary example was the indenture of a domestic which stipulated that she be “taught the
Catechism of the Church of England and confirmed in the same as soon as can be” (Indenture of
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In agreements made between French-Canadian servants and English-Canadian
masters, specific prohibitions against removing the servant from Montreal were much
more likely to be included 5 Perhaps most interestingly, French-language indentures
frequently contained obligations to treat servants “doucement et humainement”, or
similar language.’5 English-language indentures rarely contained such language,
leaving open the question as to whether French-Canadian parents were more con-
cerned about possible ill-treatment. Cornelius Kelly, an apprentice who sued his mas-
ter for ill-treatment during this period, was bound by an indenture that contained no
such language.”
The indenturing of a minor-aged servant often served a dual function, namely, to
provide life skills as well as care and upkeep. Parents in financial straits frequently re-
sorted to apprenticeship as a form of de facto foster care or adoption.” A similar prac-
Letitia Gass to William Lindsay (12 March 1830), A.N.Q.M., Notarial File of George Dortand Ar-
noldi).
m Ruddell, supra note 13 at 20-21. The reasons why these prohibitions did not appear in French-
language indentures are not clear. Ruddell suggests that it may be because English masters were more
likely to leave the city or because French Canadians operated under an unwritten assumption against
such removals and felt the need to articulate such clauses only when English-Canadians were in-
volved. English-Canadian indentures rarely prohibited removal outside the city, but frequently pro-
hibited transfers outside the Province of Quebec (ibid at 22). A note on the language of indentures
and their signatories is also in order. English-Canadian servants were much more likely to be bound to
English-Canadian masters, although the converse was not true. Interestingly, in nineteenth-century in-
dentures involving English-Canadian masters and French-Canadian servants, the contracts were usu-
ally written in French (see ibid. at 158-59). This may reflect a desire on the part of masters to ensure
that the terms of employment were unquestionably understood by their servants.
Ibid at 19. An excellent example is an indenture binding Pierre Giroux to a Montreal farmer,
which carefully spelled out a long list of obligations on the master’s part, stressing that he vas to treat
him as a good father would treat his own son: “[Lie dit Etienne Guillot s’oblige traiter ct entre tenir
[sic] le dit Pierre Giroux en bon p~re de famille suivant sa condition, et comme n de ses propres en-
fants, le nouir it sa table et lui fournir raisonnablement et g6nralement tousles hardes et chaussures
qu’exige la condition de Cultivateur …” (Engagement par David Giroux 4t Etienne Guillot (18 No-
vember 1833), AN.Q.M., Notarial File of Antoine-Eus~be Bardy [hereinafter Giroux indenturel).
‘ For discussion of this case, see htia note 131 and accompanying text.
‘See Engagement par John Sulivan et son dpouse Pierre Pr&court (6 February 1832), A.N.Q.M.,
Notarial File of Antoine-Eusbe Bardy [hereinafter Sulivan indenture]; J. Webber, “Labour and the
Law” in P. Craven, ed., Labouring Lives: Wbrk and Workers in Nineteenth Century Ontario (Toronto:
University of Toronto Press, 1995) 105 at 127. In such agreements, parents contracted for their child
at a very young age ostensibly to be apprenticed until the age of majority. Unlike apprenticeship in-
dentures, these documents frequently did not specify skills or crafts in which the child was to be
trained, and the child was usually bound for much longer periods. Some indentures also contained
language not commonly used in other indentures, such as guarantees to treat the child as part of the
master’s family. The language of one such indenture reads as follows:
Lesquels ont par ces pr6sentes engag6 a Pierre Pricourt de St. Athanas Michel Sullivan
leur enfant fig6 de quatre am et demis [sic] pour et jusqu’a sa majoritd ct promettent
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tice was the indenturing of minors as domestic servants until they reached the age of
majority. 9
2. Transfer and Continuance
The very existence of indentures demonstrates that masters had a strong interest
in securing a steady and co-operative source of labour. Traditionally masters were
largely unhampered in their ability to transfer indentures (and by extension, servants)
to other masters as they saw fit. To many servants, this would have been particularly
inconvenient. By this period, however, many indentures allowed for transfer only if
the servant or guardian consented, while other indentures categorically prohibited it.
Similarly, many contained provisions governing a master’s move to another locale.’
In certain situations the parties agreed to continue the terms of service, despite the oc-
currence of events that would normally lead to cancellation. Henry Moore, son to a
paymaster of His Majesty’s Thirty-Second Regiment of Foot, was bound as a student
and apprentice to a regimental surgeon for a five-year term. Four years later the sur-
geon was sent out of the province, and the parties transferred the indenture to another
regimental surgeon so as to allow Moore to continue his studies.” The existence of
prohibitions against transfers is but one example of the legal protection that indentures
could afford servants during this period.
aujourd’hui le jamais inqui6ter A cet effet, et sa part le dit Pierre Precourt promet
nourrir, entretenir le dit Michel Sullivan dans la religion Catholique et g~ndralement se
comporter avec lui censure il le ferait pour son propre fait enfant le so prendre ct
coriger quand il sera n6cessaire, ce A quoi les dits premiers comparaissant promis [sic]
acquiescer car a fin et mais dans le cas oit le petit enfant lorsqu’il aura un certain
moment laisser sa maison ou qu’iI la laisserait At son absence a lors le dit Pierre
Precourt n’entend pas 8tre responsable mais promet faire son possible pour la ramener
(Sulivan indenture, ibid.).
‘9 See Hogg, supra note 6 at 48-50. While beyond the scope of this article, these “quasi-adoption”
indentures would appear to present a fruitful area for further study.
‘ See e.g. Indenture of Patrick Dunn to James Wilson (6 January 1832), A.N.Q.M., Notarial File of
George Dorland Amoldi (prohibiting the master from taking his apprentice brush maker with him in
the event he left the province, without first obtaining the permission of the apprentice’s father). See
also Ruddell, supra note 13 at 20; Audet, supra note 12 at 147-49; Hamilton, supra note 11 at 94.
” Indenture of Henry Moore to Richard Poole (23 October 1835), A.N.Q.M., Notarial File of
George Dorland Amoldi. Moore was transfered to Duncan McGregor on 14 August 1839. Another
intriguing example is that of John Lander, apprentice engraver, indentured to John Rannie in Ireland
in 1829. Two years later, Lander accompanied his master to Montreal, and they signed another in-
denture, agreeing to continue the apprenticeship on the same terms (Indenture of John Lander to John
Rannie (4 November 1831), A.N.Q.M., Notarial File of George Dorland Amoldi).
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3. Termination and Cancellation
A common feature of indentures, particularly those drafted in French, was provi-
sion for termination. If the master died prior to the end of the term of service, some
indentures were automatically terminated, while others required the master’s family to
reimburse some portion of monies received as apprentice fees.a When the term of
service had expired, masters were occasionally required to grant proof of discharge or
good conduct. An example of an indenture containing such a stipulation is that of
William Lang, bound to Joseph Shuter, a Montreal merchant. The notation on the
agreement stated that “whereas the said Engagement terminated and was completed …
to the entire satisfaction of the said Joseph Shuter, they the said appearers do now
therefore cancel the same and mutually discharge each other of all claims which either
party may or can have the one upon the other.’
Indentures could also be cancelled,
usually at the master’s behest.’ Cancellation was commonly recorded by the notary
with the original indenture, either by notation on the document itself or by affixing an
appendix. Most frequently no explanations were recorded, leaving some uncertainty
as to the most common grounds for cancellation. ‘ For instance, in January 1835 a
See e-g. Ruddell, supra note 13 at 19-20.
See e-g. Audet, supra note 12 at 145. Audet, in his work on apprenticeship in Montreal between
1790 and 1812, identified only one apprentice who received certification of completion of his service.
Certification does not appear to have been quite so rare during the period examined here. For discus-
sion of proof of discharge in other jurisdictions, see Ruddell, ibid at 19; Hamilton, supra note 11 at
73.
“Indenture of William Lang to Joseph Shuter (12 March 1830), A.N.Q.M., Notarial File of George
Dorland Amoldi. The importance put on certificates of good conduct and the like, however, suggests
that such certification was probably more prevalent (if less formal) than these indentures suggest. It is
likely, as Hamilton posits, that notation of successful completion may have been entered on sermants’
copies of their indentures (ibid at 163). This would also account for why so few notations are found
on indentures in the notarial files.
‘ Hamilton finds a 15 percent cancellation rate of Montreal apprenticeship indentures during the
period covered by her thesis (ibid at 97). For discussion of annulment and abrogation of indentures,
see generally ibid at 169-208. Indentures that provided for probationary periods were less likely to be
annulled, suggesting that masters were frequently uncertain about the productivity they could expect
from their apprentices, and accordingly dismissed those that did not meet their expectations (ibid. at
207).
Ruddell has provided an example of a clause in an indenture that allows for cancellation in case of
ill-treatment: “en cas de mauvais traitment, de sa part, le present engagement demeura nut et resilie de
plein droit et sera le dit apprentif decharg6 de pr&ent engagement sans depeans [ou] dommages ..:’
(supra note 13 at 30-31). Pierre Giroux’s indenture, as another example, stated that “[slera libre
6galement au dit David Giroux de retirer son enfant d’entre les mains du Etienne Guillot, seulement
dans le cas qu’il serait notoire que le dit Pierre Giroux serait maltraitd dans la maison du dit Etienne
Guillof’ (Giroux indenture, supra note 56). Audet identified the following as among the most com-
mon grounds for cancellation: illness, accident, or insanity;, disputes between the parties; parents’
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domestic servant was indentured to a Montreal shoemaker for a period of three years.
Five weeks later, the notary recorded on the indenture that “for certain good causes
they [the parties] have agreed to cancel and by these presents do cancel the said En-
gagement and release each other of and from all obligations resulting therefrom”‘
While a master’s dissatisfaction was the most obvious reason for cancellation, myriad
cancellations appear to have been induced by mutual displeasure.’ Servants indubita-
bly had less leeway to seek nullification of indentures, but they could do so before a
court of law, as the case of Cornelius Kelly exemplifies. ‘ Servants-most notably ap-
prentices–could also terminate their terms of employment upon payment of an
agreed-upon sum of money to their master.”
Indentures could be galling chains of bondage that tied servants to their masters
for substantial periods, and there is little doubt that their original purpose was to pro-
tect the socio-economic interests of masters.” But it must be emphasized that inden-
tures, by their very nature, provided for reciprocal responsibilities. By setting out the
obligations of the principal party to the labour relationship, indentures afforded ser-
vants legally cognizable claims against their superiors. This was particularly impor-
tant in cases of servants who traditionally had the least economic and social leverage,
such as domestics. Indentures were proof of the mutually binding, contractual nature
of these relationships, and hence heightened the ability of servants to protect their in-
buying time remaining on the contract; damages to master’s property by the servant; and desertion
(supra note 12 at 151). See also Ruddell, ibid. at 25-31.
67Indenture of Margaret Hutson to Richard Adams (9 January 1835), A.N.Q.M., Notarial File of
George Dorland Arnoldi.
6’ For example, the cancellation of James Clarke’s indenture as an apprentice brush maker to Joseph
Page was apparently due to mutual dissatisfaction. While no explicit reasons were given, the notarial
file contains a terse note from Page, dated less than two months after the contract date: “I am Agree-
able to Break[ing] James Clark[‘s] indenter [sic] with pleasure therefore you will [do] what is re-
quested.” This suggests that Page was responding to a request by Clarke that his indenture be can-
celled (Clarke indenture, supra note 50).
,’ See Part IVA, below, for discussion of this case and others in which servants sought cancellation
of their indentures in the city of Montreal; see Part IV.B, below, for discussion of the same issue out-
side the city limits.
70 See e.g. Ruddell, supra note 13 at 27-28.
“‘ For examination of the role of apprenticeship indentures in protecting masters’ interests in Mont-
real, see generally Hamilton, supra note 11. Hamilton notes that there were several contractual en-
forcement mechanisms available to masters to dissuade apprentices from deserting, including contin-
gent end payments, clauses requiring parents or guardians to return runaways, and increasing com-
pensation over the term of their apprenticeship. Lengthy discussion of Hamilton’s work is not possible
within the confines of this article, but it is worth emphasizing that regardless of the enforcement
mechanisms available to masters, servants (including many apprentices) clearly deserted in impres-
sive numbers during this period. A clearer understanding of the efficacy of such enforcement mecha-
nisms would entail the Byzantine task of comparing indentures against judicial records.
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terests before courts of law.’ Indentures also set out the social parameters of the rela-
tionship, especially important when the servants were orphans or emigrants.” For
multiple reasons, therefore, indentures provided tangible and legally enforceable
benefits to servants.
Ill. Master-Servant Law for the Judicial District of Montreal
A. In the City of Montreal
Meaningful discussion of labour relations during this period necessitates at least a
cursory exposition of the nature and sources of master-servant law. It should be
stressed, however, that such an exposition poses considerable challenges. First, debate
over whether French or English law was controlling in Quebec raged from the time of
the Conquest to the second half of the nineteenth century.” Second, no definitive or
comprehensive source detailing Canadian master-servant law exists for this period.
Third (and related to the previous point), most labour disputes were heard before jus-
tices of the peace sitting singly or in pairs, and as was mentioned earlier, these were
not generally courts of record.s Existing judicial records were virtually silent on
which specific legal principles were implicated. Discussions of relevant evidentiary or
procedural rules were extremely summary, and appear exclusively in statutes govern-
ing master-servant law. Fourth, it must be stressed that this article seeks to analyze
master-servant law for the greater district of Montreal. As shall be discussed, there
were fundamental differences in the corpus of master-servant law applied vAthin the
7 See e.g. Lacelle, supra note 6, arguing at 82-83 that domestic servants circa 1820 were in a posi-
tion of greater equality than otherwise might have been the case due to the existence of indentures and
labour shortages.
See eg. J. Parr, Labouring Children: British Immigrant Apprentices to Canada, 1869-1924
(Montreal: McGill-Queens University Press, 1980) at 84-91. Parr notes that “formal apprenticeship
indentures did more to define the rights of British immigrant children than to extinguish their liber-
ties’ Indentures were legally binding on masters, set the market value of the child’s services, and pro-
vided potential legal redress against the master (ibid at 84). But these contracts were not without cost:
Parr notes that in the process they “destroyed the illusion, the warm and welcome illusion of being
‘like family’, which every child immigrant must have at some time entertained’ (ibid. at 91).
74 For discussion of the conflicts during the eighteenth and nineteenth centuries over vhether French
or English law should be controlling in Lower Canada (the “reception debate”), see generally Webber,
supra note 58; Hogg, supra note 6 at 22-36.
7- A similar situation existed in nineteenth-century Upper Canada and Ontario. See D. Hay & P.
Craven, “Master and Servant in England and the Empire: A Comparative Study” (1993) 31 La-
bour/Le Travail 175 at 180. Hay & Craven observe that the informal nature of these proceedings ac-
counts for why “the striking recurrence of this policy in widely dispersed times and places has not re-
ceived the attention it deserves from lawyers or historians” (ibid.). See also Webber, ibid. at 107.
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city limits as opposed to that outside the city.’ Accordingly, only general observations
about the law of this period can be made, and even then with some trepidation.”
The term “master-servant law” refers to the corpus of primarily statutory law that
pertained to employment relationships. English-based labour law differed from juris-
diction to jurisdiction, but shared three common attributes: it applied to contractual
employment relationships; it imposed sanctions for contractual breach; and it was en-
forced and administered at the local level by magistrates and justices of the peace.”8
Statutory law was often supplemented by other local legislative enactments, as was
the case in Montreal. Thus, it has been said that throughout the British Empire master-
servant law was everywhere the same, and yet everywhere distinctive.”
Even in light of this truism, however, the interplay between English common law
and French civil law makes Quebec a particularly interesting jurisdiction to examine.
Montreal, by virtue of being a heavily English city in a predominantly French milieu,
was even more singularly distinctive. Master-servant law in Montreal was strictly the
offspring of neither the English common law nor the Custom of Paris (which was
virtually silent on contractual relationships). Rather, it developed as a m6lange influ-
enced heavily by English and French law, but exhibiting local variations. The corpus
of master-servant law, then, shared a common genesis, but was a uniquely local crea-
tion.
Analysis of judicial records indicates that two main sources of written law were
applied: provincial statutory enactments and local legislative enactments, referred to
in Montreal as the “Police Regulations”. ‘ A third source must also be mentioned: le-
6 The judicial district of Montreal-as opposed to the judicial districts of Quebec City and Trois-
Rivires-encompassed the city proper, as well as specified townships outside the city limits. As the
law within the city itself differed from that in the outlying townships, they have been treated sepa-
rately within this article and the companion piece, Pilarczyk, supra note 6.
‘ I have attempted to recreate the law in this area as far as possible. I emphasize, though, that our
modem conceptions of an ordered judicial system and systematic codification or compilation of
statutory authority and precedent did not exist meaningfully during this period. Most prosecutions
were brought privately, and the historical or legal value of preserving and compiling them for poster-
ity was largely unappreciated. If for no other reason, I hope this article will prove helpful by providing
the impetus for future work on this subject.
7 Hay & Craven, supra note 75 at 180. For discussion of master-servant law in nineteenth-century
Ontario, see generally Palmer, supra note 15; Webber, supra note 58; P Craven, “The Law of Master
and Servant in Mid-Nineteenth-Century Ontario” in D.H. Flaherty, ed., Essays in the History of Ca-
nadian Law, vol. 1 (Toronto: University of Toronto Press, 1981) 175.
I am indebted to Paul Craven for this observation.
Explicit reference to these bodies of law sometimes appear in the records of the lower courts. See
e.g. John Kemp v. William Eamon (1 May 1832), A.N.Q.M., WS.S.(R.) 197. The court made a find-
ing as follows: “neglecting and refusing to enter the service and employ of … the Prosecutor to whom
he is engaged … the whole in contravention to the Provincial Statute passed in the 57th Geo. III chap.
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L C. PILARCZYK- SERVANTS’RIGHTS IN MONTREAL, 1830-1845
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gal principles applied by justices of the peace, “justice-made” law. Morever, there
were different legislative enactments that were controlling for the city itself versus the
district of Montreal. These will be addressed in turn.
Numerous statutory enactments concerning disputes in master-servant relations
were promulgated in Quebec during the eighteenth and nineteenth centuries,”- From
1830 to 1845, the main legislative enactment was a provincial statute enacted by the
Assembly on 22 March 1817, applicable in Montreal, Quebec City, and Trois-
Rivi~res.n For present purposes, the most important aspect of the Statute of 1817 was
that it authorized justices of the peace in the Court of Quarter Sessions (upon approval
by the Court of King’s Bench) to make regulations respecting master-servant rela-
tions, subject to certain limitations: neither masters nor mistresses could be subjected
to a fine exceeding ten pounds current money of the province, nor could servants be
fined in excess of the same amount or given prison terms longer than two months for
any violations.” The statute accorded justices of the peace the authority to hear com-
plaints that servants had deserted or secreted themselves, or were preparing to desert
or secrete themselves, and to hold them in prison for up to forty-eight hours until the
matter was heard. In addition, the statute provided fines of five to twenty shillings for
16 and to the Rules and Regulations respecting apprentices and hired or Indentured serants in such
case made and provided” (ibid. at 197-98); Benjamin 1briman v. Margaret Cathers (21, 28 August
1832), A.N.Q.M., W.S.S.(R.) 309, 313 at 309 (alleging defendant acted “in contravention to the Pro-
vincial Statute and to the Rules and Regulations of Police in such case made and provided”). These
references, however, were few and far between. The majority of breach of service cases made no ex-
plicit reference to relevant legislation, as was common for many offences during this period in other
Canadian jurisdictions. See eg. BJ. Price, “‘Raised in Rockhead. Died in the Poor House’: Female
Petty Criminals in Halifax, 1864-1890” in R Girard & . Phillips, eds., Essays in the History of Cana-
dian Lau, vol. 3 (Toronto: University of Toronto Press, 1990) 200. Price notes, “Convicting authori-
ties did not bother to state which law [governing petty crime] was being applied; offenses were de-
scribed by reference to the defendant’s actions alone, unaccompanied by any mention of statutory
provisions”(ibid at 204).
” As these statutory enactments were frequently superceded by later enactments, only those statutes
in force during the period covered by this article will be discussed.
2 An Act More Effectually to Provide for the Regulation of the Police in the Cities of Quebec and
Montreal amid the Town of Three-Rivers, 1817 (Qc.), 57 Geo. Il, c. 16 [hereinafter Statute of 1817].
This statute was renewed by successive statutory enactments. See e.g. An Act for the More Speedy
Remedy of Divers Abuses, Prejudicial to Agricultural Improvement and Industy in This Province,
1824 (Qc.), 4 Geo. IV, c. 33, s. 23; An Act for the More Speedy Remedy of Divers Abuses, Prejudicial
to Agricultural Improvement in This Province, 1829 (Qe.), 9 Geo. IV, c. 37, s. 30; 1830 Amendment
Act, supra note 11, s. 48.
Statute of 1817, ibid, s. 6.
Ibid., s. 7. Defendants were often in prison while awaiting trial, hovever, for considerably longer
periods than forty-eight hours.
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servants who engaged in “gaming”, in default of which they were subject to impris-
onment for eight days.”
Eventually the justices of the peace enacted a more comprehensive set of regula-
tions, entitled Regulations Respecting Apprentices and Hired or Indented Servants
and appearing in the Montreal Police Regulations.’ These regulations gave two or
more justices of the peace, sitting in weekly or special sessions, the authority to de-
termine all master-servant disputes in the city of Montreal, in proceedings conform-
able with the Statute of 1817.” Further, they explicated the varieties of possible of-
fences committed by servants: desertion; refusal or neglect of their lawful duties; re-
fusal to obey their master’s commands; or any “fault or misdemeanor” while in serv-
ice.’* Moreover, the regulations required that all servants by the month or longer give
fifteen days’ advance notice of their intention to leave their master’s service, or else be
adjudged to have deserted. 9 Masters were likewise bound to the same period. Masters,
though, could summarily discharge a servant, provided they paid all wages that would
have been due if the servant finished his term. The regulations also provided fines of
up to five pounds for parties who harboured runaways or enticed servants to desert?
In addition, the regulations also regulated a master’s ability to discharge his servant
prior to the contracted termination of the employment contract.”‘
83Ibid., s. 10.
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 also The Canadian
Courant (4 September 1833). Following the incorporation of the city of Montreal in 1841, the power
to make rules and regulations with respect to servants was transferred to the corporation. See An Or-
dinance to Incorporate the City and Town of Quebec, 1840 (Qc.), 4 Vict., c. 35, s. 43 (also applicable
to Montreal). For the period under inquiry, however, the Statute of 1817 and the Police Regulations
remained the applicable laws.
Police Regulations, ibid. at 118, para. 9.
Ibid., para. 10.
SIbid., para. 11.
‘Ibid. at 118-20, paras. 11-13.
9tIbid. at 119, para. 11; the regulations stipulate:
[E]very master, mistress, or employer, shall give to his or her servants, journeymen, or
labourers [fifteen days’ advance] … notice of his or her intention no longer to keep or
employ them, after the expiration of their time of service. Provided always, that every
domestic, servant, journeyman and labourer, engaged for a time, may be discharged by
his or her master, mistress or employer, at or before the expiration of his or her en-
gagement, without notice, upon full payment of the wages which he or she would have
received for all the time of his or her service; if the time shall be expired, the person so
discharged without notice, shall be entitled to wages for the full time included between
the day when such notice should have been given, and the day of his or her discharge
as aforesaid (ibid.).
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LC. PLARCZYK- SERVANTS’RIGHTS IN MONTREAL, 1830-1845
513
While it is clear that the Police Regulations were an important tool for governing
master-servant relations, the interplay between the provincial statute and the Police
Regulations is not clearly discemable. For example, the provincial statute provided
that all apprentices, domestics, hired servants, and journeymen were subject to fines
of up to ten pounds currency or two months’ imprisonment in the House of Correc-
tionsI The Police Regulations, in turn, stipulated that “[all apprentices to any trade or
mechanical art whatever, engaged by written agreement, or servants verbally engaged
before witnesses” shall be subject to the “fine and punishment” set out in the provin-
cial statute.” The Police Regulations then continued by stating that “[a]ny domestic,
servant, journeyman or labourer engaged … by the month or longer” was subject to
fines no greater than twenty shillings.” The careful distinctions drawn among these
groups of servants in the Police Regulations therefore suggested that all indentured
apprentices or servants bound verbally could be imprisoned up to two months and
fined ten pounds, while other servants (e.g. domestics, servants, journeymen, and la-
bourers) were subject to fines of up to twenty shillings. At first glance, these distinc-
tions seem counterintuitive!’ It may have been felt, however, that indentured appren-
tices and verbally bound servants needed greater dissuasion, as these two categories
of servants were perhaps most likely to desert.
B. Outside the City Limits
Given that the justice system’s apparatus was centred within the city of Montreal,
there were obvious attendant difficulties for parties to legal suits who resided outside
the city. Attendance at court for days on end while miles from home, for example,
was often a great hardship to both prosecutors and defendants alike. Largely for these
reasons, in 1836 another statute was passed that was intended to ameliorate many of
these difficulties.7 As the Parish Statute of 1836 itself stated, the cities of Quebec,
” Statute of 1817, supra note 82, s. 6.
9′ Supra note 86 at 118, para. 10.
kIbid at 119, para. 12.
Analysis of the dispositions from the judicial records consulted does not contradict the existence
of this dichotomy. The sparsity of detail, however, about the exact status of servants appearing in these
records (ie. whether they were verbally bound, journeymen, etc.) prevents a determination with any
degree of certainty. See generally Pilarczyk, supra note 6.
It may be that, as noted, apprentices bound by indentures were more likely to flea from service to
seek employment as journeymen, and hence posed a greater economic loss to the typical master.
Conversely, this may merely reflect that verbally bound servants were surdy more common than
those bound by indentures, or may have been more likely to deny the existence of an employment
agreement if it served their interests to do so.
7 An Act for the More Easy and Less Erpensive Decision of Differences Betieen Masters and Mis-
tresses amd Their Servants, Apprentices, and Labourers, in the Country Parts of This Prarince, 6 ‘/dl.
IV, c. 27 [hereinafter Parish Statute of 1836]. Taylor’s justice of the peace manual outlines the princi-
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Montreal, and Trois-Rivi~res were specifically excepted from the statute’s reach.” Ef-
fectively, this meant that the Parish Statute of 1836 was binding on justices of the
peace outside the city limits, but that the law as set out in the Statute of 1817 and the
Police Regulations was to govern within the city itself.
The Parish Statute of 1836, which applied to apprentices, male or female ser-
vants, and journeymen, provided more detail than the Statute of 1817 and the Police
Regulations combined, although the specific provisions were dissimilar. It listed ap-
plicable offences on the part of servants as “ill behaviour, refractory conduct, idleness,
absence without leave, or dissipating his or her Master’s, Mistresses [sic] or Em-
ployer’s effects, or of any unlawful act that may affect the interest, or disturb the do-
mestic arrangements” of a servant’s superior Unlike the Statute of 1817 and the Po-
lice Regulations, the Parish Statute of 1836 also specified that fines could not exceed
2 lOs. or fifteen days’ imprisonment for default of payment.” Furthermore, servants
who deserted could be “condemned to make such time good to his Master.””‘ Third
parties remained liable for employment offences: harbouring a runaway was punish-
able by a fine of up to 2 10s., while enticing an apprentice to desert was punishable
by the same fine or incarceration for up to one month.’02 Moreover, in comparison to
the provincial statute and municipal law in effect within the city of Montreal, this stat-
ute contained much more explicit provisions protecting servants.”1
pies of master-servant law as applicable in the “country parishes”, obviously referring to this statute
(H. Taylor, Manual of the Office, Duties, and Liabilities, of a Justice of the Peace (Montreal: Armour
& Ramsay, 1843) at 280-93). This statute was rendered permanent by An Ordinance to Render Per-
nanent Certain Acts Therein Mentioned, 1840 (Qc.), 3 Vict., c. 6, s. 14.
9 Parish Statute of 1836, ibid., Preamble.
9 Ibid.
1oI Ibid.
’01 Ibid.
’02 Ibid. While the language of the Parish Statute of 1836 suggests that masters too could be impris-
oned for default of payment of penalties imposed against them, it seems unlikely that this would oc-
cur, if for no other reason than that the Statute of 1817 explicitly foreclosed the possibility of subject-
ing masters to any penalty greater than a fine of ten pounds.
‘0 Parish Statute of 1836, ibid.; it read as follows:
Secondly, that if any such Apprentice, Servant, or Journeyman, bound or engaged as
aforesaid, has any just cause of complaint against his or her Master, Mistress, or em-
ployer, for any misusage, defect of sufficient and wholesome provisions, or for cruelty
or other ill-treatment, or other matter of the same kind, such Master … may be prose-
cuted before two Justices of the Peace; and if the complaint shall appear to be well
founded, such Justices of the Peace may condemn such Master … to pay a penalty not
exceeding two pounds ten shillings currency. … Thirdly, that on complaint made … by
any Apprentice, Servant, or Journeyman, against his or her Master … of continued mis-
usage, and repeated violations of the ordinary and established duties of the parties to-
wards each other, any Justice of the Peace, at a special sitting, may, on due proof of the
2001]
LC. PILARCZYK- SERVANTS’RIGHTS IN MONTREAL, 1830-1845
515
While the language of the Parish Statute of 1836 makes it evident that it was in-
applicable within city limits, this did not preclude the possibility that justices of the
peace in Montreal may nevertheless have chosen to apply it. For example, the records
of the lawsuit brought by Cornelius Kelly against his master on grounds of ill-
treatment clearly indicate that this legislation was used as a legal basis for the action.
This was so despite the fact that the case was heard before a Montreal court, involved
parties who were domiciled in Montreal, and was based on an indenture drafted be-
fore a Montreal notary.”‘ While justices of the peace were themselves “servants of the
law”, it is equally true that they had varying degrees of legal education, and higher
court review of master-servant disputes was a decided rarity.” It is little surprise that
justices used whatever legal sources were available, especially in situations like the
one just mentioned, as the Parish Statute of 1836 provided the most explicit legislative
language for allowing servants to prosecute masters for ill-treatment under master-
servant law.
While local and provincial legislative enactments were an integral element of
Montreal labour law of this period, “justice-made” law was an equally important
component. The legislative enactments were far from exhaustive, and justices (and by
extension, the courts they constituted) enjoyed wide latitude in their discretionary and
interpretive functions. In resolving disputes justices often applied basic legal princi-
ples, derived primarily from English common law and local law compiled injustice of
the peace manuals.” The common law precepts themselves often emerged from judi-
fact, annul the agreement or contract (whether verbal or written) … Seventhly, that no
such Master … shall take and cany out of the District in which they reside, any such
Apprentice or Servant, without the consent of such Apprentice or Servant, (or his or her
parents or guardians, if a minor), except such as may be bound to the sea service …
Ninthly, that in all verbal agreements between Masters … and the Servants and Jour-
neyman, for any longer period than a month, the party who shall not intend to continue
the engagement beyond the term so agreed upon, shall be bound to give the other party
fifteen days notice at least to that effect, otherwise the agreement shall be held to have
been continued for one month, from the date of such notice; the whole under a penalty
of two pounds ten shillings currency, and in default of payment of imprisonment in the
common gaol of the District, or in the house of correction, during a period not exceed-
ing fifteen days.
It also stipulated that every legal proceeding be commenced within three months after the commission
of the offence (ibid., s. 4).
“,For discussion, see infra notes 131, 137 and accompanying text.
“‘For discussion of the backgrounds of justices of the peace in Montreal, see generally D. Fyson,
Criminal Justice, Civil Society and the Local State: The Justices of the Peace in the District of Mont-
real, 1764-1830 (Ph.D. Thesis, Universitl de Montr.al, 1995) [unpublished, hereinafter Justices of the
Peace in the District of Montreal].
” It is a daunting task to recreate the sources used by justices of the peace or other jurists in any
part of British North America during this period. The Nahum Gelber Law Library at McGill Univer-
sity, however, contains a superlative collection of English, French, and American eighteenth- and
516
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
cial interpretation of earlier master-servant statutes, and in turn affected the enforce-
ment of successive master-servant provisions.
Examination of a number of these contemporary manuals used by justices in
Montreal during this time reveals a dizzying array of often-conflicting legal precepts
related to the law of masters and servants. An oft-cited principle in these works was
that deserting servants were to make up the time lost through their misbehaviour, al-
though there were several variants of this rule in these manuals.’ This principle mir-
rors the law as specified in the Parish Statute of 1836. This rule, however, was obvi-
ously not applied consistently. Few dispositions within the city limits explicitly re-
quired that truant servants make up their time, and those that did may have been based
on the language of the individual indentures in those cases. Outside the city of Mont-
real, justices of the peace apparently required that time be made up more frequently,
although the summary nature of the surviving records leaves some doubt as to the
actual frequency of such dispositions.’
Another principle set out in these manuals was that masters were deemed to have
taken their servants “in sickness and in health”, and therefore discharging an ill ser-
vant was impermissible.” These manuals also exhibit a number of regional variations
nineteenth-century (and older) legal materials in its Canadiana collection, many of which were owned
and used by local justices. See G.B. Baker et al., Sources in the Law Library of McGill University for
a Reconstruction of the Legal Culture of Quebec, 1760-1890 (Montreal: Faculty of Law and Montreal
Business History Project, McGill University, 1987). Among the relevant materials circa 1845 are J.F.
Archbold, The Justice of the Peace, 3d ed. (London: Shaw and Sons, 1845); E. Carter, A Treatise on
the Law and Practice on Summary Convictions and Orders by Justices of the Peace (Montreal: John
Lovell, 1856); W.C. Keele, The Provincial Justice, or Magistrate’s Manual, Being a Complete Digest
of the Criminal Law of Canada, 2d ed. (Toronto: H. & W. Rowsell, 1843); J.G. Marshall, The Justice
of the Peace, and County and Township Officer, in the Province of Nova Scotia (Halifax: Gossip &
Coade, 1837); Taylor, supra note 97; Acts Relating to the Powers, Duties and Protection of Justices of
the Peace in Lower Canada (Quebec: S. Derbishire & G. Desbarats, 1853). For a discussion of justice
of the peace manuals used in other jurisdictions, see e.g. J.A. Conley, “Doing It by the Book: Justice
of the Peace Manuals and English Law in Eighteenth Century America” (1985) 6 J. Legal Hist. 257.
For the related topic of early nineteenth-century Quebec law reporting, see e.g. E. Whan, T. Myers &
P. Gossage, “Stating the Case: Law Reporting in Nineteenth-Century Quebec” in Fyson, Coates &
Harvey, supra note 9, 55; R. Crete, S. Normand & T. Copeland, “Law Reporting in Nineteenth Cen-
tury Quebec” (1995) 16 J. Legal Hist. 147.
“o See Keele, ibid. at 28 (make up time lost or provide financial satisfaction, or face imprisonment
for a tern not to exceed three months); Marshall, ibid. at 444-45 (make up double time, or more at
magistrate’s discretion if during harvest time or the like); Archbold, ibid., vol. 1 at 108-109 (make up
time lost or provide financial satisfaction, or face imprisonment for up to three months); Taylor, ibid.
at 282 (make up time lost or face imprisonment of up to fifteen days).
10 Pilarczyk, supra note 6 at 65.
‘o’ For the rule that was no discharge for sickness, see e.g. Keele, supra note 106 at 29; Marshall,
supra note 106 at 443; Archbold, supra note 106 at 106.
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LC. PLARCZYK – SERVANTS’RIGHTS IN MONTREAL, 1830-1845
517
not likely to have been followed in Montreal. For example, Marshall’s Nova Scotia
manual required female servants to finish their term if they married while in service. “‘
Regardless of the efficacy of these manuals, however, the wide latitude given to jus-
tices undoubtedly accounts for aberrant dispositions that do not conform with legisla-
tive enactments.”‘
As mentioned earlier, master-servant law in Montreal during this period exhibited
a disparity between the remedies available to masters and servants. The remedies
available to servants were limited to fines, while servants themselves were subject to
imprisonment.” This incongruity was roundly attacked by reformers of the nineteenth
“‘ For an example of a Montreal case in which the former rule was emphatically rejected, see Pi-
larczyk, supra note 6 at note 144 and accompanying text. Marshall’s manual also stated that Nova
Scotia law required certificates of discharge for all servants bound for six months or longer, with
masters who hired servants without certificates liable to a ten-pound fine (Marshall, ibiL at 44748).
Conversely, Taylor’s manual for Montreal contains another seemingly regional variation, stating that
masters were not allowed to take their servants out of the district without the servant’s consent, or that
of their guardian or tutor (supra note 106 at 283). This principle was often reflected in indentures (see
Part ILB.2, above) and also appeared in the Parish Statute of 1836, supra note 97, Preamble.
‘ See eg. Pilarczyk, ibid at notes 103, 142 and accompanying text.
“‘ For a discussion of this dichotomy in nineteenth-century Upper Canada, see Webbe, supra note
58 at 137. Some social historians have conceptualized this division as meaning that masters could
choose to bring breach of contract claims before civil courts or claims of violations of labour regula-
tions before criminal courts. See e.g. Hogg & Shulman, supra note 9 at 129; Hogg, supra note 6 at 33.
I believe these conclusions are problematic. First, the lower courts retained the same mixed jurisdic-
tion inherent to justices of the peace, who had authority to try both civil and criminal matters in the
modem sense of those terms. A pronounced dichotomy between civil and criminal jurisdiction simply
did not exist in the courts where the vast majority of master-servant disputes were tried, and at any
rate, it is doubtful that such a dichotomy would have been recognized by jurists or lay people of the
period. See e-g. S. Lewthwaite, “Violence, Law and Community in Rural Upper Canada” in . Phil-
lips, T. Loo & S. Lewthwaite, eds., Essays in the History of Canadian Lims vol. 5 (Toronto: Univer-
sity of Toronto Press, 1994) 353 at 363-64. Second, and related to the first point, the notion of “breach
of contracf’ could only have existed at an abstract level. Prosecutions were generally worded in terms
such as “having left, quit and abandoned the service without just cause or permission, having been
duly engaged as a servant’ or as “having left the employ of the prosecutor to whom he is engaged in
the capacity of servant, in contravention to the Provincial Statute and the Rules and Regulations re-
specting apprentices and hired or indentured servants.” and I have found no evidence suggesting that
there was a tangible distinction between them. Indeed, all master-servant relationships were contrac-
tual, by virtue of indentures or oral agreements before witnesses, and the absence of either was an ab-
solute defence insofar as it refuted the existence of a master-servant relationship. The offences enu-
merated in the Police Regulations included behaviour typically proscribed by the indentures them-
selves. Third, the peculiar nature of master-servant relations also meant that the dispositions rendered
by courts were neither purely civil nor criminal as we understand those terms today. Indeed, the con-
cept of criminality was a fluid one during this period, although it seems clear that desertion would
have been considered a criminal offence in nineteenth-century parlance. See e.g. Justices of the Peace
hi the District of Montreal, supra note 105 at 43-46. If modem-day terminology needs to bz applied,
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol, 46
century and defended equally vociferously by its supporters, who argued “that mas-
ters had property to answer for their misdeeds, whereas servants had only their lib-
erty.’ 3 It is important to accentuate, however, that while there were implicit inequali-
ties built into the law, the law offered protections to both parties in the master-servant
relationship.
The existence of these legislative enactments indicates a concerted attempt at pro-
viding a coherent set of laws that contemplated local realities.”‘ This reservation, cou-
pled with the dispositions rendered by courts, suggests that master-servant law for the
district of Montreal during this period was fairly consistent.”‘ Earlier periods no doubt
exhibited a greater tension as to whether English or French legal precepts were con-
trolling. By the period under examination, however, one can say that master-servant
law was applied by justices of the peace (an eminently English institution) to regulate
labour relationships based primarily on English models. Furthermore, this was done
by applying procedural rules and remedies that were, in turn, largely English in ori-
gin. While Montreal master-servant law was a uniquely local creation, its structure
and application indicates that the paramountcy of English principles in the field was
well established by this period.
The very existence of these legislative enactments demonstrates that there was a
perceived need to regulate the master-servant relationship and to set out the parame-
ters of available remedies. During this period, both masters and servants sought legal
recourse before courts to enforce these provisions, and courts generally protected the
interests of both groups.
at the risk of presentism, I believe that the term “quasi-criminal” is more accurate than “tort”, the term
that Fyson employs in ibid. Tort or delict actions are private civil causes of action seeking damages
against a defendant for violation of a duty owed to the plaintiff. Courts did not award damages in de-
sertion prosecutions, and any fines imposed reverted to the treasury (or one half to informers). Fur-
thermore, having servants return to service was usually the paramount goal of desertion suits, and scr-
vants were subject to imprisonment for non-compliance.
,3 Webber, ibid. at 137.
‘ Hogg & Shulman, supra note 9, conclude at 129 that the law in this area was “deliberately en-
couraged to develop in this muddy fashion, because it suited the class aims of masters, mistresses and
employers.” I am unconvinced by the notion that the employing classes were best served by an am-
biguous system of law, and furthermore doubt that the employing classes had the foresight or the in-
clination to make an intentional effort to develop a haphazard system.
“‘ As stated, the law applied outside the city limits differed. Moreover, within this article and the
companion piece other dispositions are occasionally discussed that do not fit easily within the pa-
rameters stipulated in the relevant legislative enactments. This serves as a potent reminder that while
master-servant law may have been relatively consistent, it was far from uniform. Given a fairly unso-
phisticated legal system of mainly local justice, enforced by justices of the peace possessing consider-
able discretionary powers, without a limited system of precedent and higher court review-to men-
tion but a few of the characteristics–this is to be expected.
2001]
LC. PLARCZYK- SERVANTS’RIGHTS IN MONTREAL, 1830-1845
519
IV. The Master in Montreal Court: Judicial Protection of Servants’
Rights
Every lawsuit concerning master-servant law brought before a local court was in-
dicative to some degree of a working relationship that had effectively broken down in
the eyes of at least one of the parties involved. By the time under examination, Mont-
real courts recognized the reciprocal nature of responsibilities owed to masters and
servants, perhaps coinciding with the diminishing economic importance many ser-
vants-especially apprentices-had to their masters.”‘ While masters’ perceptions of
their legal rights were no doubt disparate from those of their servants, these concerns
reflect the increasingly contractual nature of master-servant relationships and the
manner in which they were enforced. This section will analyze the types of legal re-
course available to servants within the district of Montreal during the period 1830 to
1845.
A. The Master as Defendant in the City of Montreal
When examining lawsuits brought by servants against their masters, analysis must
be done with an appreciation of the many factors that would have militated against
servants suing their superiors, such as financial barriers, class structures, and igno-
rance of legal rights. Some servants who contemplated filing suits must have sus-
pected that the sympathies of justices, as members of the propertied class, would natu-
rally incline towards masters.”‘ These obstacles would have been even more pro-
nounced for certain categories of servants. Journeymen, as well as apprentices who
were at a well-advanced stage of apprenticeship, were often important resources to
their masters. As such, their premature departure could prove inconvenient or even
,, In the context of the United States, Rorabaugh observes that courts sided with apprentices more
frequently after 1800 as their economic value to masters decreased (supra note 15 at 52-53). In mid-
nineteenth-century America, for instance, courts enforced masters’ obligations toward their servants,
ensuring that masters properly fed and clothed their apprentices if required to do so by the terms of
their indenture (Hamilton, supra note 11 at 20). Courts also protected servants against brutal trat-
ment, unlawful withholding of wages due, and the like. In fact, contemporary American critics often
complained that the regime of master-servant law offered servants too much protection. A commen-
tator in New York in 1839–echoing sentiments that were undoubtedly shared by many Montreal
masters–stated that when apprentices “abscond from their proper service, it is not every employer
who now thinks it worth his while to take the legal measures for recovering their time” (ibid.).
,,7 For an example of the perceived importance of social status before the courts, see lewhwaite,
supra note 112 at 356-57 (recounting an example of a defendant, charged with assaulting his domes-
tic servant, who alleged in court that she was actually his apprentice, in the hopes of elevating his per-
ceived social station in the eyes of the justices and thereby obtaining favourable treatment). For dis-
cussion of justices and conflicts of interest, see Pilarczyk, supra note 6 at text accompanying note
204.
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economically devastating. Domestic servants and unskilled labourers, however, would
generally have had no such leverage, and would have been further hampered by their
gender, lowly social status, or both.”‘
Given the subordinate status inherent in servile positions of this time, even one
defined by labour shortages, the fact that servants prosecuted their masters so fre-
quently, and with considerable avail, provides vivid evidence of the reciprocal, con-
tractual manner in which courts came to view labour relations.”‘ Master-servant leg-
islation clearly contemplated that labour relationships entailed rights and duties on the
parts of both masters and servants. Servants brought suit against their masters for such
offences as unlawful withholding of wages, wrongful termination, and physical mis-
treatment, and moreover, were often successful.
1. Unlawful Withholding of Wages
As discussed, failure to pay a servant his lawful wages was a defence against de-
sertion. It is therefore eminently reasonable to predict that nonpayment could also
constitute grounds for legal proceedings, as indeed was the case.
Even cursory examination indicates that wage suits against masters were fre-
quent.'” Due to the enormous volume of such cases, detailed analysis of wage suits is
beyond the scope of this work, but they furnish compelling evidence that servants had
recourse to the law to protect their financial interests. For example, Grace Laing
Hogg, in her research on the legal rights of domestic servants in Montreal, uncovered
1,161 suits brought by servants and employees for unpaid wages before the inferior
term of the Court of King’s Bench between 1816 and 1835. ‘ Numerous such lawsuits
“‘ See e.g. Hogg, supra note 6 at 75.
“9 Members of socially subordinate classes in nineteenth-century Canada often pursued legal reme-
dies, although usually against members of the same socio-economic class. For example, prostitutes in
Montreal during this period used the lower courts to settle disputes and brought prosecutions for such
crimes as assault, rape, riot, and larceny. See M.A. Poutanen, “Reflections of Montreal Prostitution in
the Records of the Lower Courts, 1810-1842” in Fyson, Coates & Harvey, supra note 9, 99 at 109.
See also Justices of the Peace in the District of Montreal, supra note 105 at 394. Similarly, many
members of the poor and criminal classes did the same. See generally Price, supra note 80 (discussing
petty criminals in Halifax).
“0 A similar observation has been made about wage suits in the last quarter of the nineteenth cen-
tury in Ontario. See Webber, supra note 58 at 145.
121 Hogg, supra note 6 at 4. For the specific period covered by her thesis, 1816-29, there were 109
such cases. See also Hogg & Shulman, supra note 9. The inferior term of the Court of King’s Bench
heard cases involving ten pounds sterling or less, while the superior term dealt with cases involving
over ten pounds sterling. In 1834 the Commissioner’s Court was set up in Montreal to hear cases in-
volving four pounds, three shillings and four pence or less. See generally D. Fyson with the assistance
2001]
LC. PLARCZYK- SERVANTS’ RIGHTS IN MONTREAL, 1830-1845
521
were also brought before the superior term of the Court of King’s Bench during the
period examined here. For example, a labourer in 1830 brought suit against an inn-
keeper for the balance due him as wages, and was awarded wages of 14 14s. 7d., as
well as costs and interest on the amount until payment was received.”‘
Of the defences raised by masters against such suits, an allegation of misfeasance
on the part of their servants was the most common.'” Under the applicable regula-
tions, a servant who deserted before his term of service was expired could be fined up
to twenty shillings,’ and desertion was often considered to have voided a master’s
obligations.'” Masters frequently claimed that their servants had disobeyed their law-
ful commands or otherwise conducted themselves improperly during their term of
service,'” or that no agreement had been entered into.’
That servants sued for unpaid wages with such frequency suggests that they
viewed the courts as relatively impartial forums where their rights could be vindi-
cated. Mere judicial access, however, would have been largely meaningless if servrants
were rarely successful. Hogg and Shulman were able to trace the dispositions of 235
wage suits by servants for the years 1830 to 1835. Of these, 42 percent were won out-
right, 17 percent settled, and 7 percent lost outright. A further 13 percent were dis-
continued and 21 percent dismissed. Thus, 59 percent of these prosecutions were suc-
cessful in whole or in parL’
of E. Kolish & V. Schweitzer, The Court Structure of Quebec and Lower Canada 1764 to 1860
(Montreal: Montreal History Group, 1994).
‘ John O’Neill v. JB. Bellamy (17 April 1830), A.N.Q.M., Court of King’s Bench Registers
[hereinafter K.B.(R)], vol. 1, 329.
‘3 Hogg & Shulman, supra note 9 at 140.
‘ Police Regulations, supra note 86 at 119, para. 12.
See Hogg, supra note 6 at 85.
‘”6bid at 85-87. Hogg notes that, at least in some instances, it appears that masters merely used
such allegations as a means of avoiding contractual liability, as otherwise they wvould likely have
brought legal proceedings themselves for such misbehaviour (ibid at 87).
’27 !bi at 88.
‘2’ Hogg & Shulman, supra note 9 at 137. In addition, some proportion of the cases discontinued
were probably settled between the parties without the court’s kmowledge. Hogg & Shulman state, with
reference to these figures, that “[i]f the legal process was not discouraging enough, the possibility of
losing one’s case probably dissuaded many individuals from contemplating litigation” (ibid.). The
same may be said about masters who filed suit-notably for employment offences-but I believe that
Hogg & Shulman’s own figures show that servants were successful more often than not. Furthermore,
Hogg traces fifty-five wage cases brought by domestic servants in Montreal during the same period.
Of these fifty-five cases, in fourteen the servant was awarded the full amount sought as well as court
costs; in two the full amount, without costs; in ten a portion of the amount sought, plus costs; in five a
portion of the amount sought, without costs. Seven cases were settled, seven dismissed with costs, and
nine discontinued (Hogg, ibid at 77-78). Thus, thirty-one of these fifty-five cases were at least par-
tially successful, not counting those that were settled. Again, Hogg notes that “a significant group of
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While wage suits clearly were common during this period, it should also be em-
phasized that judicial records necessarily understate the extent of the phenomenon of
such disputes. Court proceedings are often evidence that other, non-adversarial means
of settlement had failed.’ Not only were many disputes likely settled outside the judi-
cial arena, but some disputed amounts were probably too insignificant to justify court
proceedings. The sheer number of wage cases before the courts of this period, how-
ever, indicates that when traditional forms of mediation were unavailing, servants had
ready access to courts to vindicate their economic interests.
2. Wrongful Termination
Servants were also able to bring suit against employers for what, in modem par-
lance, amounted to wrongful termination.'” In these cases servants alleged that they
were required to leave their master’s employment prior to the termination of their
term of service without legitimate cause. In the case of servants who obtained room
and board from their masters-most notably apprentices-termination would involve
a loss of lodgings as well as employment. This is best exemplified by the case in
which Cornelius Kelly sued his master for ill-treatment. While the original complaint
spoke only of mistreatment, Gettes’s summons specified that he was charged with
having repeatedly violated his duties as master by frequently abusing and mistreating
Cornelius Kelly. More particularly, it stated that Gettes “without legal cause, provoca-
tion or inducement whatsoever” discharged Kelly from service and subsequently re-
fused to house or support him.”‘
Besides the personal inconvenience that such premature termination could engen-
der, it could also strain family finances. A common strategy among families of limited
means was to bind out their children as apprentices or other servants so as to provide
them with both the necessities of life and (at least in theory) career instruction. In
1838 a widow sued a prominent Montreal merchant for damages caused by his having
unlawfully discharged her minor daughter from her position as a domestic servant,
thereby “occasion[ing] great expense and damages to the plaintiff who is now reduced
seven not only lost their cases but were saddled with court costs as well” (ibid. at 78). These seven
cases, however, do not represent a large proportion of the total sample. I believe that the success rate
indicated by these figures illustrates that servants were usually successful. Most tellingly, if servants
did not feel they had a substantial chance of prevailing, surely they would not have resorted to legal
proceedings nearly as often as they did. Financial and other barriers clearly did not foreclose legal ac-
tion for many servants.
“= See e.g. the remarks of Hogg: “The disputes over wages which eventually were settled through
the court system, were probably the exceptional cases, and should not be perceived necessarily as a
routine or normal situation … Each civil suit hints at the failure of all usual methods, such as appeal to
kinship, community, ethnic, social or religious ties, to resolve disputes” (ibid. at 71-72).
“‘ See e.g. ibid. at 92.
… Cornelius Kelly v. William Geddes (19 October 1843), A.N.Q.M., Q.S.(F.).
2001]
L C. PILARCZYK- SERVANTS’RIGHTS IN MONTREAL, 1830-1845
523
to the necessity of paying for board and lodging of said minor daughter who is vith-
out place.””
Such cases are closely related to wage suits, as a master’s failure to give his ser-
vant notice of termination at least fifteen days in advance rendered him liable for the
wages to which his servant would otherwise have been entitled.”‘ As such, a servant
who was bound for a designated term of service and was dismissed without proper
notice could seek to recover the wages due to him for the time remaining in his term.
3. Physical Mistreatment
Servants could also seek protection under the law for ill-treatment at the hands of
their masters. Unlike the Parish Statute of 1836 in operation outside the city limits,
both the Statute of 1817 and the Police Regulations were largely silent on the issue of
physical mistreatment. This does not mean, however, that servants within the city
limits were powerless to seek redress for this offence. Despite the limitations of the
relevant legislative enactments, servants were free to seek remedy under master-
servant law or criminal law.
The right of physical chastisement had traditionally been conceptualized as an in-
herent part of masters’ authority. Chastisement of servants that exceeded social norms
on what constituted “moderate’ as opposed to “immoderate” correction, however,
rendered masters susceptible to prosecution. The most obvious vehicle for use by ser-
vants was to charge abusive masters with assault and battery, and such prosecutions
were recurrent during this period. For instance, an apprentice chair maker took this
step in 1842, alleging that his master had “violently and without cause or provocation
assaulted and beat the said Deponent, striking him over the head with a broomstick
which he broke upon the head of the Deponent … [and] [t]hat Deponent suffered
much pain from the blow.”” His master appeared before the Court of Special Sessions
and was bound in the amount of twenty pounds to keep the peace toward his servants
for one year. -”
Hogg & Shulman, supra note 9 at 130 and n. 7 (citing Catherine McGuire v.A. Doyle (17 Janu-
ary 1835)). This case was brought before the Court of King’s Bench, inferior term.
‘ Police Regulations, supra note 86 at 119, para. 11. See also Parish Statute of 1836, sipra note 97.
Sanmuel Jackson v. Thonus Albert Martin (29 March 1842), A.N.Q.M., Q.S.(F.) 40.
‘ Ibid at 44, where initial complaint entered; Domina Regina v. Thonias Albert Martin (29 March
1842), AN.Q.M., P.C.(R.) 44, where a warrant of arrest vas granted and Martin vas bound to appear
at the Court of Special Sessions; Sanmuel Jackson v. Thomas Albert Martin (31 March 1842),
A.N.Q.M., W.S.S.(R.), where Jackson sought a recognizance to keep the peace. The day after Jackson
initially filed suit, Martin countersued for desertion, although the suit vas later settled out of court
(Thomas Albert Martin v. Samuel Jackson (30 March 1842), A.N.Q.M., PC.(RL) 45). Martin was the
same master who twice prosecuted Robert McIntosh for desertion in 1841. See Pilarczyk, supra note
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Master-servant law also had as one of its tenets that courts were empowered to
release abused servants from their terms of service, a disposition that would often
have been of most direct benefit to servants.” William Gettes, the hatter and furrier
who had such difficulty retaining apprentices during this time, was one example of a
master sued successfully by an apprentice. On 13 April 1843, Cornelius Kelly had
Gettes arrested for assault and battery, alleging that “yesterday the twelfth day of
April instant he was without any reasonable cause or provocation on his part violently
assaulted[,] beaten and struck by one William Geddess of the same place, hatter””
Gettes was required to post bail for his appearance the following week.”8
On 20 October 1843, Gettes was brought before the Court of Weekly Sessions on
the charge of “illtreating the def[endant] his apprentice by virtue of 611 Will[iam] 4″
ch. 27 page 230″”‘ As the court clerk recorded:
[The] def[endant appears] in person and pleads that he is not guilty of the alle-
gations set forth in this summons-and admits that he has discharged the
def[endant] from his service and that he will not allow him to enter into his
house-and moreover says that he is willing that the Indentures passed before
L. Guy Esquire between him and the said Pros[ecutor] and bearing date the 18
February 1841 be annulled and discharged. The Court having heard the said
deflendant] annul the said agreement or Contract between him the said defen-
dant and prosecutor and thereby discharges the said Pros[ecutor] from that said
agreement or contract, and orders that the said def[endant] do pay the costs of
this action.’
As indicated, the court discharged Kelly from his indenture and required Gettes to pay
costs of 9s. 3d. Since Gettes had consented to annul the indenture, the court was not
required to adjudicate the issue of whether Gettes had, in fact, mistreated his appren-
6 at notes 1, 59 and accompanying text. No attempt was made here to ascertain how often servants
brought suits for assault against their masters; however, even cursory examination of the files of the
lower courts during this time reveals that there were numerous assault cases brought by servants
against their masters.
‘” As Hamilton notes, while masters during this period were allowed to discipline apprentices (and
other servants), many jurisdictions commonly allowed courts to discharge apprentices from their
service or to fine masters for abuse (supra note 11 at 20).
‘ Queen v. William Geddes (13 April 1843) A.N.Q.M., Q.S.(F.) (arrest warant).
… Queen v. William Geddes (13 April 1843), A.N.Q.M., Q.S.(F.) (complaint); Queen v. William
Geddes (13 April 1843) A.N.Q.M., Q.S.(F.) (recognizance). Gettes countersued for desertion, alleging
that Kelly left his service on 12 April 1843 without cause, and Kelly was bound to appear at court on
17 April 1843 (Queen v. Cornelius Kelly (13 April 1843), A.N.Q.M., Q.S.(F.)).
,’ As was mentioned earlier, the Parish Statute of 1836 should not technically have been applicable
in this case.
’40 Kelly v. Geddes, supra note 4.
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L C. PILARCZYK- SERVANTS’RIGHTS IN MONTREAL, 1830-1845
525
tice.'” The Gettes case is of particular interest as it illustrates the fluidity of law during
this period, overlapping criminal law with master-servant law to achieve justice.
The analysis of Montreal court records thus reveals that servants could either seek
legal remedy under ordinary provisions of the law and prosecute their masters for as-
sault and battery or attempt to do so under the provisions of master-servant law. As
the case of Cornelius Kelly indicates, some courts even extended the reach of legisla-
tive enactments such as the Parish Statute of 1836 and used it as a legal basis for en-
forcing master-servant law. Thus, courts could be highly responsive towards enforcing
servants’ rights and remedies, using their discretionary powers to promote the mutu-
ality of obligations demanded by these contractual relationships.
B. The Master as Defendant outside the City Limits
Due to the dearth of information available on cases heard before justices of the
peace outside the city limits, as well as the fragmentary nature of the surviving rec-
ords themselves, one is necessarily hampered in analyzing the functioning of these
courts as they enforced master-servant law. Examination of the quarterly returns for
justices of the peace in the district of Montreal, however, indicates that master-servant
disputes were one of the most common types of matters heard by these jurists. Mas-
ters were sued by servants during this period for wages due, physical mistreatment,
non-performance of duty, and wrongful termination.
1. Unlawful Withholding of Wages
While the wage suits brought before the higher courts of Montreal far outnumber
those found within the records of the justices of the peace outside the city limits, jus-
tices of the peace did grapple with such disputes.'” The quarterly return filed by ajus-
tice of the peace in 1840 for Sorel contained three such lawsuits.'” In the first case, a
master was convicted of owing 8s. 9d., and was ordered also to pay costs of 6s. 6d.'”
More interesting, however, are the two other cases heard before this justice, brought
against different masters. In these cases the plaintiffs were unsuccessful, but the jus-
141 While neither the Statute of 1817 nor the Police Regulations contained explicit provision for the
cancellation of indentures due to ill-treatment, justices of the peace no doubt had the authority, real or
perceived, to do so.
1′ Further examination of wage suits is necessary before drawing inferences from this fact.
43 It is striking that this was the only quarterly return found that explicitly contained wage suits. As
mentioned, other wage disputes were likely classified as “non-performance of duty” cases (see Part
IVB.3, below) or were otherwise heard by higher courts in Montreal.
1
‘ Louis Carr ditLaroche v. Zeba [?] Wuzgborn (31 December 1839), Sorel, AN.Q.I., Quarterly
Returns for Justices of the Peace [hereinafter J.P.(Q.R.)].
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tice nevertheless awarded costs to both of them.”‘ It is intriguing to contemplate why
this occurred, as it suggests the presiding justice was sympathetic to their claims while
nevertheless dismissing their suits. Perhaps the justice felt bound to dismiss the com-
plaints, but also believed the defendants had acted in bad faith. Regardless of the rea-
son, these two cases in particular demonstrate that servants could occasionally bring
unsuccessful legal proceedings against their masters and not be penalized financially
for doing so.
2. Physical Mistreatment
While there is likewise a dearth of detail in cases of this kind, it is evident that the
justices hearing these prosecutions did not shy away from scrutinizing the behaviour
of the masters charged with ill-treatment. When a convincing argument was made,
justices demonstrated their disapprobation of masters’ conduct by releasing the prose-
cutors from service.
Just such a situation is recorded in the quarterly returns of the justices of the
peace for the county of Two Mountains in 1840. The records reveal that three justices
heard a suit brought by an adult (presumably not a relation) on behalf of Duncan
McDonald, an apprentice tailor under the age of majority, against his master on
charges of “[b]rutal Treatment to the apprentice:’ The court, upon hearing the evi-
dence, convicted McDonald’s master and fined him 2s. 6d. plus 10s. costs, while also
releasing McDonald from service.” Unfortunately, it is impossible to ascertain from
the records either the nature of the evidence presented or the relationship between the
adult prosecutor and McDonald. It is interesting to contemplate, however, that a third
party was willing to undertake the responsibility of prosecuting such a case in a local
court.
In 1843, a servant in Beauharnois likewise filed suit to “annull [sic] an engage-
ment”, probably on the grounds of ill-treatment. The suit was successful, and the
court annulled the indenture and imposed costs against the master of fourteen shil-
lings.”‘ J.A. Mathison, a justice of the peace in Vaudreuil, convicted another master
for “[i]ll usage to his Servant,’ fined him 15s. and costs of 8s. 10d., and released the
“, Benjamin Therien v. Olivier Arieneau (31 December 1839), Sorel, A.N.Q.M., J.P.(Q.R.) (suit
brought “[flor having refused to pay to his apprentice nine pounds, wages”; defendant acquitted but
unsuccessful party given costs of eight shillings); Sarah Gibbs v. Edward C. Allen (31 December
1839), Sorel, A.N.Q.M., J.P.(Q.R.) (suit brought for 15s. in wages; defendant acquitted but unsucccss-
ful party given costs of 5s. 6d.).
“, Robert McVicear for Duncan McDonald v. Benjamin Halebrook (1 September 1840), Two
Mountains/Argenteuil, A.N.Q.M., J.P.(Q.R.).
47AndriPrevost v. Julius P Colburn (21 October 1843), Beauhamois, A.N.Q.M., J.P.(Q.R.).
2001]
L C. PILARCZYK- SERVANTS’RIGHTS IN MONTREAL, 1830-1845
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servant from service.” These cases indicate that at least some servants were able to
obtain justice by having their indentures or terms of service cancelled, as stipulated in
the statutory enactments of the period. In all, four such cases were found for the years
1830 to 1845, three of which resulted in conviction.'”
From a modem perspective, these legal proceedings may be somewhat unsatisfy-
ing; one might wish that the masters had been heavily fined, imprisoned, or both. The
nature of these records regrettably precludes comprehensive analysis of the evidence
presented before these courts. The import of these cases brought before courts both
within and beyond the city limits should nevertheless be fully appreciated. During this
period, not only did legislative enactments stipulate that masters could be sued for ill-
treatment and their servants released from service, but also courts recognized the lim-
its of moderate chastisement at the hands of masters. The fact that such cases were
possible is even more striking when one considers that courts were generally consti-
tuted by employers and members of the monied class, that physical chastisement was
an accepted part of patemalistic relationships, and that various social and economic
factors would have limited servants’ flexibility of action. There is little doubt that
what many servants ultimately sought was freedom from their indentures, and by ex-
tension, freedom from the oppressive conduct of their masters. That servants were not
inhibited from seeking legal vindication is potent corroboration for the view that ser-
vants viewed the employment relationship as involving mutual duties, and that courts
enforced the mutuality of obligations entailed by these relationships.
3. Non-performance of Duty
Found within the records of the justices of the peace for the district of Montreal
were five prosecutions brought against masters for non-performance or negligence of
duty towards their servants. These suits reflect the language of the Parish Statute of
1836, which allowed for prosecutions of both masters and servants for “repeated vio-
lations of the ordinary and established duties of the parties towards each other.”‘ For
example, in 1842 two successful suits were brought by servants in Saint Malachie de
Ormstown. The quarterly return filed in July of that year discloses that a servant suc-
cessfully prosecuted his master for “nonperformance of established duty of Master to
servant:’ and was awarded 7s. 6d. plus court costs of 6s.”‘ Another master was con-
demned to pay “[o]ne months’ wages and twenty shillings of penalty” plus courts
“‘Jean Baptiste Adam v. Andrew Braddeur (15 October 1842), Vaudreuil, A.N.Q.M., J.P(Q.R.).
” The sole exception was a prosecution “pour mauvais traitement envers sa sexantc’ in which the
prosecutrix was unsuccessful and made to pay costs of 8s. 9d. (Pauline Touchette v. Eustadie Gratton
(30 June 1842), Ste. Marie de Monnoir, A.N.Q.M., J.P.(Q.R)).
‘ Supra note 97, Preamble.
5″‘Martin Neally v. John Carrie (11 October 1842), St. Malachie de Ormsto wfNorth Georgetom,
A.N.Q.MV, J.P(Q.R).
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costs of 18s. 6d. for “neglect of duty between Master and Servant”‘ 2 The reference to
wages in this latter case suggests that a dispute over nonpayment of monies due, pre-
mature termination, or both might have been at the forefront of this suit.
In all but the previous case, the sparsity of detail in these records leaves no indi-
cation as to whether they implicated a failure to provide adequate food and board, ill-
treatment, wage disputes, or the like. In contrast, surviving judicial records tended to
be overt about servants’ gravamina. This fact, coupled with the observation that the
only cases recorded as “non-performance of duty” prosecutions appear in the quar-
terly returns for Saint Malachie de Ormstown and Beauharnois, strongly suggests that
this nomenclature was used by the presiding justices as a general descriptive term
which may have encompassed any breach of a master’s obligations.” As such, non-
performance of duty is best seen not as encompassing a distinct offence, but rather as
a catch-all phrase. Regardless, what is evident is that unlike desertion cases, in which
fines were imposed by courts and reverted to the treasury (except shares awarded to
informants), these proceedings awarded damages as well as court costs to successful
prosecutors.
4. Wrongful Termination
Only one case for what explicitly amounted to wrongful termination was found in
the quarterly returns of the justices of the peace. On 15 April 1841, before a justice of
the peace residing in Chambly, a master was sued for “compelling Plaintiff to quit his
Domicile before the end of his term.’ and the case was settled out of court.'” Other
such cases may have been brought under the rubric of wage suits, non-performance of
duty between master and servant, or the like. In the absence of clarifying information
contained in these primary sources, it is impossible to extrapolate with any degree of
certainty from these records. Yet it is likely that in at least some instances of suits for
wages, servants were suing to recover wages due them by virtue of their premature
termination from employment.
‘sz Patrick Lynch v. James Grundage [U] (4 July 1842), St. Malachie de Ormstown, A.N.Q.M.,
J.P.(Q.R.).
S3 The other three such cases identified for this period were unavailing: John Currie v. Alexander
Steel (13 April 1843), Beauharnois, A.N.Q.M., J.R(Q.R.); Michael Costello v. James Cowan (13
April 1843), Beauharnois, A.N.Q.M., J.E(Q.R.) (master awarded costs of 6s. 3d.); Colin McFadden v.
George Cross (20 October 1841), St. Malachie de Ormstown/Beauhamois, A.N.Q.M., J.P.(Q.R.)
(master awarded costs of five shillings).
‘” 4Edward Coorney v. Samuel Whittaker (15 April 1841), Chambly, A.N.Q.M., J.P.(Q.R.).
2001]
L C. PILARCZYK – SERVANTS’RIGHTS IN MONTREAL, 1830-1845
529
Conclusion
Master-servant law in Montreal, like other jurisdictions throughout the British
Empire, shared certain common attributes, but was also a unique milange shaped by
the influences of French civil law and English common law. During the period from
1830 to 1845, master-servant law involved a multitude of sometimes-competing
sources, including notarial contracts and verbal agreements, legislative enactments
such as provincial statutes and municipal bylaws, and common law principles and the
interpretations of individual judges in their discretionary role as arbiters of master-
servant disputes.
While master-servant law traditionally favoured the rights and prerogatives of
masters, by this time courts were centrally involved in adjudicating employment dis-
putes that involved both parties to the employment relationship. Master-servant rela-
tionships had become largely contractual in nature, and as such entailed responsibili-
ties on both parties. Servants were able to use the forums of local courts to protect
their rights, and brought suit against their employers for unlawful withholding of
wages, wrongful treatment, and other breaches of a master’s duty. The number of ser-
vants who brought suit against their masters, as well as the variety of servants who
appear within the judicial records, is witness to servants’ access to courts during this
period. Further, that servants were often successful prosecutors before courts of law is
witness to the relative fairness of courts in adjudicating master-servant disputes.
Both legislative enactments and the disposition of cases for the judicial district of
Montreal indicate that the law provided for, and enforced, limits on masters’ behav-
iour. Municipal and provincial legislation provided remedies when servants were “too
well used” by their masters, or when masters otherwise reneged on their obligations.
During a time when the traditional elements that defined master-servant relationships
continued to erode and employment increasingly came to be defined in contractual
terms, servants frequently used the courts to enforce their contractual rights. While the
balance of power in master-servant relationships during this period remained asym-
metrical, the willingness of courts to enforce masters’ responsibilities contributed to
the gradual but inexorable trend towards a well-defined mutuality of obligations be-
tween master and servant.
