by Dr. Alice Krzanich, Lecturer in Law and Legal History, University of Aberdeen
The history of employment law in Scotland is an under-researched topic. While some aspects of law and labour in Scotland’s past have been examined, others have been barely touched at all. Moreover, while many elements of employment law in modern-day Scotland are similar or identical to those in England and Wales, Scots law has its own distinct history concerning labour and employment. This is due to Scotland’s unique legal institutions and juristic traditions. There is consequently a need to investigate the history of employment law in Scotland more fully and to tease out some of the themes of its development.
This blog entry illustrates some of that distinct legal heritage by examining the employment of domestic servants in early nineteenth-century Scotland. In particular, it shows how Scots contract law regulating domestic service shared certain analytical features with the law of leases in the period c. 1800–1850. This may seem surprising, as the employment of domestic servants may (outwardly at least) seem to have little directly in common with leases of property. Yet this analysis will reveal commonalities between the two, resulting from the influence of Roman law alongside customary practices. Moreover, the law of leases was not the only area of private law that the contract of domestic service shared connections with in the nineteenth century; it was also often conceived as part of the law of familial obligations. This raises further questions about the nature of historical Scottish master-servant law, which this analysis will highlight.
Domestic service and the law
But first, a little background to domestic service and the contract law that applied to it. Domestic servants, who were typically working-class women, comprised a significant workforce in nineteenth-century Scotland. They were found in homes across the country, doing chores such as cooking, dusting, lighting fires, looking after children, and washing clothes for the master or mistress of the household. They performed this work under a contract of service, which involved the servant trading their labour and judgment in return for payment from their master or mistress.[1] The contract was generally a verbal one, subject to legal rules that applied to service of all kinds, as well as rules that just applied to domestic servants (which were mainly drawn from case law and custom). These rules and principles governed how the contract was formed, the obligations of the parties, and termination of the contract. Some of these rules were very similar to those relating to leases of property, and it is these rules – and the reasons for these similarities – that this blog entry will consider.
Contract of hire
The overarching reason for why the contract of service shared similarities with leases of property is that both were classified as contracts of hire in the nineteenth century. The classification of service as a form of hire was acknowledged by George Joseph Bell, who discussed master-servant law (including contract law related to domestic service) in the section of his Principles dealing with the “contract of hiring”.[2] Leases were also conceived of as contracts of hire in the early nineteenth century, as this statement from an 1833 legal treatise illustrates: “A Lease is a contract of location, by which the use of land, or any other subject which yields profits, is given for a definite period, and in consideration of a certain return in money, produce, or services.” [3] This statement shows that, just like in relation to domestic service, where a maid agreed to trade her labour for wages, a lease involved an exchange of payment for use of land. An exchange of this nature constituted a hire.[4]
The reason that both leases and contracts of domestic service were seen as forms of hire was due to their general categorisation as contracts of location, as the quote above identifies. This categorisation reveals the lingering influence of Roman law in nineteenth-century Scotland. Under Roman law, the contract of location (locatio conductio) involved situations where, broadly, one party placed something at the disposal of the other to “carry along” (or to use, in other words).[5] It could be that one person placed their service at the disposal of another, or they allowed their property (such as land) to be used and worked by that other in return for payment. Scots law retained this legal taxonomy, meaning that both contracts for service and leases of property were conceived as related forms of contract. While this did not mean that contracts for service were seen as part of property law in Scotland, it does explain why both types of contracts were classified as forms of hire.
Similarities
Formal requirements
Given this common legal lineage, it is unsurprising that the legal principles applicable to leases and contracts of domestic service shared some clear similarities, including in the formalities required for constituting a contract. For example, a contract of domestic service could be verbal or in writing (although, as previously mentioned, they were usually verbal).[6] A verbal agreement was suitable for an engagement of 12 months or less, but if the parties wanted the service to be longer than a year then a written contract was needed.[7] This corresponded with the law of leases, where a verbal agreement for a lease of land was insufficient to bind the parties for longer than a year.[8] In this way there were analogies in how leases and contracts of service could be constituted that reflected their shared heritage.[9]
Term dates
Another similarity relates to the term dates that were used when entering or exiting a lease or period of engagement as a domestic service. Nineteenth-century jurist Baron Hume explained that the duration of a contract of service was usually expressly settled at the time of hiring but if it was not, then it would normally be “construed according to the custom of hyring in that line of business and that part of the country”.[10] Domestic servants were customarily hired for a period of six months, hence the verbal nature of the hire, starting at either Whitsunday or Martinmas. These were religious holidays falling almost exactly six months apart, in May and November respectively.[11] These hiring practices reflected longstanding customs, as female servants had been hired on contracts of six months ending at either Whitsunday or Martinmas since at least the sixteenth century in Scotland.[12]
Consequently, according to nineteenth-century legal writer George Tait, if the date of entry had not been expressly stipulated in a contract of domestic service, it was usually understood to be either Whitsunday or Martinmas.[13] Patrick Fraser, a nineteenth-century expert on master-servant law, had a slightly different view. He stated that there was no settled legal rule or general presumption that the term for a contract of domestic service started on either Whitsunday or Martinmas.[14] Yet he recognised that these two dates were generally used as the terms of entry for domestic servants,[15] as case law bears out.[16]
Whitsunday and Martinmas were also significant for the law of leases. Both dates were referred to as “term days”, given the fact they were often the day on which the tenant took entry or removed themselves from the subject leased.[17] Tenants’ rent in the form of money was also usually payable at Whitsunday or Martinmas.[18] The payment of rent at these dates reflects practices that originate as far back as the twelfth century.[19] Such practices may have emerged due to the fact that Martinmas and Whitsunday marked prominent points of the agricultural year in Scotland,[20] which may, in turn, have influenced custom in relation to domestic service. Whatever the exact root of these practices, it is nevertheless true that both Whitsunday and Martinmas were extremely important for both leases and contracts of domestic service during the nineteenth century.
Tacit relocation
In addition to the above, leases and contracts of domestic service were also both subject to legal rules concerning tacit relocation (which is a concept that still applies in Scots law concerning leases today). Tacit relocation is the automatic renewal or extension of the contract at the end of its term. In relation to nineteenth-century domestic service, it meant that even if the engagement was for a set term, the contract was presumed to renew itself, without writing, at the end of that period.[21] So if a servant was engaged to work for six months from Martinmas to Whitsunday, the contract would renew itself on the same terms at the end of that period. Tacit relocation also applied to leases of property.[22] William Bell, a nineteenth-century legal author, described tacit relocation as “the implied renewal of a lease, inferred where the landlord . . . has allowed [the tenant] to continue without making a new agreement”.[23]
The application of tacit relocation to contracts of hire, such as with a lease, had its roots in Roman law. Justinian’s Digest explained that a landlord was understood as renewing a lease if he allowed a tenant farmer to remain on the land at the end of the lease.[24] The application of tacit relocation to contracts of domestic service likely reflects the lingering influence of Roman law, as well as customary practices. This is indicated by the 1880 case of Lennox v Allan, where the Inner House of the Court of Session explained that tacit relocation applied to contracts of service as a matter of custom.[25] Tacit relocation was a principle that enabled continuity in the employment of servants and so it may have been maintained as a custom – and thereby retained in the law – for that very practical reason.
One further similarity between leases and contracts of domestic concerns was the way that tacit relocation could be negated. Automatic renewal would not occur if one of the parties gave notice that the contract or lease was to expire at the end of the term. If an employer wanted a domestic servant to leave at the end of the term, then – according to custom – they needed to warn the servant 40 days before Whitsunday or Martinmas.[26] If a landlord wanted a tenant to leave, then usually a notice also needed to be given 40 days before Whitsunday.[27] In this way there was a clear parallel in how either a lease or a contract of domestic service could be terminated, which reflects the close relationship between the two.
Other private law connections
Consequently, here were significant parallels between the law of leases and the contract of domestic service in the early nineteenth century. This reflects the intertwining influence of Roman law and customary practices, as discussed above. Yet leases were not the only area of law that contracts of domestic service were closely connected to. Despite the similarities with leases, Scottish legal writers often discussed master-servant law in the parts of their text that dealt with familial obligations, or they discussed it as part of the law of persons. For example, Patrick Fraser included discussion of master-servant law (including contract law relating to domestic servants) in his 1846 two-volume legal treatise on the “personal and domestic relations”, which included discussion of marriage law and law relating to children.[28] John Cairns has pointed out that discussing master-servant law among the law of persons was consistent with Civilian institutional writing in the early modern period.[29] He has also argued that it reflected the economic and social reality that servants formed part of the master’s household.[30] My own postdoctoral research has shown that patriarchal conceptions of family authority shaped contract law relating to domestic servants in the early 1800s.[31] This indicates that while contract law relating to domestic service had a close relationship with the law of hire, it was equally enmeshed with other areas of law – such as family law – in early nineteenth-century Scotland.
Conclusion
The contract of domestic service consequently presents a multifaceted history. It was a form of hire, sharing many parallels with the law of leases, but could also be grouped and discussed with familial obligations. This history prompts many questions, including: was domestic service primarily a contractual relationship or one involving status in nineteenth-century Scots law? Was this a change from how the contract of service was viewed in earlier centuries? What else – apart from custom and Roman law – shaped the law’s response to employment issues in the nineteenth century? And finally, how and why did employment law become a specialised branch of law, distinct from either family law or the law of leases, in modern-day Scotland? These are all questions that warrant further investigation – and which I hope future research will help uncover.
The author would like to thank the following people for their advice and feedback in relation to this contribution: Prof Alexandra Braun, Prof David Fox, Prof Rebecca Zahn and Dr Douglas Bain. Any errors are the author’s own.
[1] George Joseph Bell, Principles of the Law of Scotland (4th edn, Thomas Clark 1839) § 175; see also Thomas Baird, A Treatise on the Law of Scotland Relative to Master and Servant, and Master and Apprentice (Thomas Clark 1840) para 17.
[2] Bell, Principles § 133–193.
[3] Robert Hunter, Law of Landlord and Tenant (Bell & Bradfute 1833) 57 (footnotes omitted).
[4] Bell, Principles § 133–135.
[5] Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (OUP 1996) 338–339.
[6] Bell, Principles § 173.
[7] ibid § 173(2); Baird (n 1) paras 40 and 49; Patrick Fraser, A Treatise on the Law of Scotland, as Applicable to the Personal and Domestic Relations, vol 2 (T&T Clark 1846) 371.
[8] William Bell, A Dictionary and Digest of the Law of Scotland (Bell & Bradfute 1838) 581; Sellar v Aiton (1875) 2 R 381, 387. It is worth noting that a verbal lease or contract of service for longer than a year that had not been properly recorded in writing could nonetheless acquire validity through the doctrine of rei interventus. Hunter (n 3) 283; Fraser (n 7) 370.
[9] See David M Walker, A Legal History of Scotland: Volume VI – The Nineteenth Century (Butterworths 2001) 817.
[10] ‘Voluntary Servants’ in G Campbell H Paton (ed), Baron David Hume’s Lectures 1786-1822, Stair Society vol 5 (1939) 327.
[11] George Tait, A Summary of the Powers and Duties of a Justice of the Peace in Scotland (4th edn, 1828) 460; Baird (n 1) para 111; Fraser (n 7) 384.
[12] Elizabeth Ewan, ‘Mistresses of Themselves? Female Domestic Servants and By-Employments in Sixteenth-Century Scottish Towns’ in Antoinette Fauve-Chamoux (ed), Domestic Service and the Formation of European Identity: Understanding the Globalization of Domestic Work, 16th-21st Centuries (Peter Lang 2005) 416; Cathryn Spence, Women, Credit, and Debt in Early Modern Scotland (Manchester UP 2016) 169.
[13] Tait (n 11) 460.
[14] Fraser (n 7) 384.
[15] ibid.
[16] Wallace v Wishart (1800) Hume 383; Morrison v Allardyce (1823) 2 S 434; Hamilton v M’Lean (1824) 3 S 379.
[17] Scottish Law Commission, Report on the Scottish Term and Quarter Days (Scot Law Com No 108, 1987) para 1.2.
[18] Bell, Principles § 1204.
[19] William W Scott, ‘The Use of Money in Scotland, 1124–1230’ (1979) 58 Scottish Historical Review 105, 127–128.
[20] See ‘Anent Removings’ (1887) 32 Scottish Law Review 205, 206.
[21] Bell, Principles § 173(3).
[22] ibid § 1265.
[23] Bell, Dictionary and Digest (n 8) 846.
[24] Digest, 19.2.14
[25] Lennox v Allan (1880) 8 R 38, 40.
[26] Baird (n 1) para 140; see also Lennox v Allan (n 25) 40.
[27] Bell, Dictionary and Digest (n 8) 846, 848; Hunter (n 3) 418.
[28] See Fraser (n 7).
[29] John W Cairns, ‘Blackstone, Kahn-Freund and the Contract of Employment’ (1989) 105 L.Q.R. 300, 302–306.
[30] ibid 307, 311–313.
[31] Alice Krzanich, ‘Female Domestic Servants and the Law: An Analysis of Gender, Class and the Contract of Service in Early Nineteenth-Century Scotland’ (PhD thesis, University of Edinburgh 2022)< https://era.ed.ac.uk/handle/1842/39059>.
