Chapter Title: Blackstone, Kahn-Freund, and the Contract of Employment

Book Title: Law, Lawyers, and Humanism

Book Subtitle: Selected Essays on the History of Scots Law, Volume 1
Book Author(s): John W Cairns
Published by: Edinburgh University Press

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 17  Blackstone, ­Kahn-Freund,
and the Contract of
Employment*

In 1977 the late Sir Otto Kahn-Freund published the text of his important
1977 Blackstone Lecture delivered in the University of Oxford with the
title: “Blackstone’s neglected child: the contract of employment”.1 In it,
­Kahn-Freund writes that “[a]nyone handling Blackstone’s great work for
the first time and looking for what he has to say about employment, would,
I think, do what I did . . . and turn to his chapter on Contracts”. Kahn-
Freund notes that, though there is mention of a “contract of service or
­employment . . . we are told next to nothing about the mutual obligations to
which it gives rise”.2 He comments that there are allusions to public offices
in the third book on the Law of Private Wrongs, before stating:

And now, somewhat incredulously at first, we detect in the First Book, in the Law
of Persons, wedged between chapters on the Army and Navy and Husband and
Wife, one which bears the title “Of Master and Servant.” However did this get
into the Law of Persons, and this at the critical point where the public law, that is
the constitutional law, discussion ends, and the private law, that is the family law,
discussion begins?3

He then points out that, at the beginning of the chapter (XIV) on Master and
Servant, Blackstone explains that he is moving from rights and duties arising
from public relations to those of persons in “private œconomical relations”.4
The relation of master and servant is described by Blackstone as “founded
in convenience, whereby a man is directed to call in the assistance of others,
where his own skill and labour will not be sufficient to answer the cares

 
* I have benefited from the comments (on an earlier draft) of Beverley Brown, Mike Hoeflich,
Bob McCreadie, Hector MacQueen, David Sellar and Alan Watson.
  1 O Kahn-Freund, “Blackstone’s neglected child: the contract of employment” (1977) 93 LQR 508
(henceforth Kahn-Freund, “Blackstone’s neglected child”).
  2 Ibid at 509–510.
  3 Ibid at 510.
  4 Ibid at 510–511.

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 blackstone, ­kahn-freund, and the contract of employment 483

incumbent upon him”.5 The two other “great relations in private life” are
those of husband and wife “founded in nature, but modified by civil s­ ociety”,
and of parent and child “consequential to that of marriage, being it’s [sic]
principal end and design”. Blackstone adds that “the law” provided a fourth
relation “of guardian and ward, which is a kind of a­ rtificial parentage, in
order to supply the deficiency, whenever it happens, of the natural”.6 Kahn-
Freund focuses on the phrase “to call in the assistance” and asks “[w]hy, on
what basis, is a person liable to answer this call, to enter into the service of
another?”. He points to the fact that “a labourer’s duty to serve may be based
on legal compulsion” under the Statute of Artificers and Apprentices of
1562 and that under the Poor Law a parish apprentice could be compelled
to serve a master with whom he had not entered into c­ ontractual relations,
before commenting that “the duty to work for another is the essence of the
relationship”.7 He argues that “in the Master and Servant chapter the con-
tract is only an accidentale, not an essentiale of the relation. The foundation
of the servant’s claim to wages is the service”.8 He next comments that “in
connection with Blackstone, we are entitled to say that the master–servant
relation is based on status, and not on contract”.9
The main concern of Kahn-Freund’s lecture was to argue that Blackstone’s
classification of master and servant impeded the development in England
of a contractual approach to employment. In this short article, I shall not
address myself directly to this argument. What does seem important,
­however, to consider in Kahn-Freund’s discussion is the following opinion
on why Blackstone deals where he does with employment:
The reason was not, or at least not principally, that in the social conditions of his
day, the servant was often part of the familia. The reason was that, owing to the
more than 400-year-old tradition of the Statutes of Labourers and Statutes of
Artificers, and the more than 150-year-old tradition of the Poor Law, the law of
master and servant was largely – in theory, though to a rapidly decreasing extent
in practice – the law of the status of those liable to be directed to work at wages
fixed without their concurrence and liable to be punished for not accepting work
on demand and for not doing it in accordance with direction.10

 5 W Blackstone, Commentaries on the Laws of England, 4 vols, 1st edn (1765–1769) (henceforth
Blackstone, Commentaries) vol i, 410.
  6 Ibid; Kahn-Freund, “Blackstone’s neglected child” (n 1) at 511.
  7 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 511.
  8 Ibid at 512.
 9 Ibid. For Kahn-Freund’s views on the terms “status” and “contract”, see “A note on status
and contract in British Labour Law”, in his Selected Writings (1978) at 78 (henceforth, Kahn-
Freund, “British Labour Law”).
10 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 512–513.

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 484 law, lawyers, and humanism

On the basis of this, Kahn-Freund argues: first, that “we have here . . . a
specimen case to demonstrate the contrast between English legal t­ hinking
and the legal thinking of the continental nations of Western Europe
­traceable directly to the non-reception of Roman Law in this country”;11
and secondly, “that Blackstone’s legal analysis . . . was developed in the
light of an image of economic and social conditions [which] was completely
out of date in 1765”.12 I shall argue here that both of these are unfounded.
I shall do this by showing: first, that to treat the relationship of a serv-
ant with a master in the law of persons was found in countries which had
received Roman law; and secondly, that the most advanced social thought
of Blackstone’s day was in favour of such a classification. I shall then explain
the basis of Blackstone’s classification, suggesting that Kahn-Freund is
­mistaken in applying his s­ pecial notion of “status” to it, before providing a
brief ­concluding assessment.

A. AN INSTITUTIONAL APPROACH

Kahn-Freund bases his discussion of Civilian treatments of master and

servant in the eighteenth century solely on Pothier’s Traité du contrat de
louage.13 This is understandable. Pothier in retrospect has turned out to
be probably the most influential of the French jurists of the period.14 Yet,
to compare the discussion in Blackstone’s Commentaries with that in this
treatise is not to compare like with like: rather, it is to prejudge the issue
and assume that in France the relation of master to servant was dealt with
contractually. A more suitable comparison would have been with one of
the general accounts, written in the eighteenth century, of French law,
especially one written by the holder of one of the university chairs in that
subject.15
Kahn-Freund describes Pothier’s analysis as “equally defective” with
Blackstone’s, because the former has “overplayed” the contractual element,
so that “[t]he employment relation appears in Pothier as completely based

11 Ibid at 514.
12 Ibid at 523.
13 R-J Pothier, “Traité du contrat de louage”, in Oeuvres de Pothier, 10 vols, 2nd edn, ed M Bugnet
(1861) (henceforth Pothier, “Traité du contrat de louage”) vol iv, 1–170.
14 Certainly in England: A W B Simpson, “Innovation in nineteenth century contract law” (1975)
91 LQR 247.
15 See generally C Chêne, L’enseignement du droit français en pays de droit écrit (1679–1793)
(1982).

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 blackstone, ­kahn-freund, and the contract of employment 485

on the contract of hiring, the locatio conductio”.16 Kahn-Freund accuses

Pothier of ignoring “the guild rules, the strict regulation of the employ-
ment of apprentices and journeymen . . ., and the less strict rules imposed
by the metiers libres, and – one significant exception apart – . . . the police
regulations”.17 This seems rather beside the point. Pothier’s Traité is devoted
to lease and hire. He accordingly fits mention of master and servant into his
general scheme. The work is not specifically intended to be on master and
servant.
Kahn-Freund notes that Pothier divides lease and hire into lease and
hire of things and lease and hire of work, including contracts of personal
service in the discussion of lease and hire of things. He points to the view
that, in Roman law, locatio conductio operarum originally related to the
lease of the labour of slaves, and was later extended to the hiring out of his
labour by a free man, before commenting that “Pothier’s treatment of the
subject reflects that situation far more truthfully than the condition of
France 20 years before the Revolution”.18 While it is undoubtedly correct
that the Roman tradition influenced Pothier here, it is worth noting that,
in both lease of things and lease of personal service, he who paid was the
­conductor, whereas, in lease of work and labour, he who paid was the locator.
Analytically, Pothier was correct in his classification.19
Finally, does not the fact that Pothier says so little on lease of personal
service perhaps reflect the very existence of the guild and police r­ egulations
which Kahn-Freund accuses him of ignoring, and an account of which
would not fit easily into the section on lease of things in his treatise? There
is no way of knowing for certain; but this is a plausible suggestion which
would mean that Pothier’s discussion is relevant to the social conditions of
his day.20
Kahn-Freund’s claim that Blackstone’s “treatment of the employment
relationship . . . [is] a specimen case to demonstrate the contrast between
English legal thinking and the legal thinking of the continental nations of
Western Europe traceable directly to the non-reception of Roman Law”
is easily contradicted. First, he himself mentions that the French jurist
Etienne Pasquier classed the authority of the master with that of the father

16 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 514.

17 Ibid.
18 Ibid at 515–516.
19 Pothier, “Traité du contrat de louage” (n 13) 2 no 1; 133 no 392.
20 See J W Cairns, “Employment in the Civil Code of Lower Canada: tradition and political
economy in legal classification and reform” (1987) 32 McGillLJ 673 at 685–691.

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 486 law, lawyers, and humanism

and husband.21 Does the fact that this was in the sixteenth century make it
less Civilian? Second, Gabriel Pocquet de Livonnière, Professor of French
Law in the University of Angers in the first half of the eighteenth century,
published, in 1730, his Règles du droit françois, a work which went through
several editions. The second title of the first book is headed: “Of the persons
who are under the power of another.” Its first provision is as follows: “We
recognise in our law four types of powers: the paternal, the marital, that of
tutors and curators over their pupils and others confided to their care, and
that of masters over their servants.”22
The basis of a master’s authority is contractual; but the contract creates a
familial type of relationship. After discussing the position of black slaves in
France and serfdom under some of the coutumes, Pocquet writes:
That aside, all men are free in France; servants owe to their masters respect,
­obedience in reasonable things; they are obliged to take care for the ­preservation
of their masters’ lives, honour, and property; they are subject to moderate
­chastisement: for the rest, they are free both in person and property.23

This approach seems very similar to that of Blackstone.

Kahn-Freund is not the first to think that the Civilian approach to
­employment must be contractual: a view ultimately deriving (one may
­suspect) from considering the French code and German Pandektenrecht
of the nineteenth century as the paradigms of Civilianism. T W Tucker,
for example, has commented that “[t]he whole notion of a relationship
between a master and a free servant as two classes of persons is foreign
to the civil law”.24 I would suspect that, on the contrary, any legal system
which ­emphasises the study of Justinian’s Institutes might well discuss the
relationship between masters and servants as that between different classes
of persons. Professor Luig has shown that, in the development of insti-
tutes of national law, it was quite common to produce commentaries on
Justinian’s Institutes with notes on the local or national law.25 In comment-
ing on the third to seventh titles of the first book, it was obvious to refer
to the modern law, stating that slavery was generally forbidden by the laws

21 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 514 and 509; E Pasquier, L’interprétation

des Institutes de Justinien (1847) (henceforth Pasquier, Institutes de Justinien) 64–66.
22 G Pocquet de Livonnière, Règles du droit françois, 3rd edn (1737) 35 (1.2.1) (my translation).
23 Ibid 55–56 (1.2.40).
24 T W Tucker, “Sources of Lousiana’s law of persons: Blackstone, Domat, and the French Codes”
(1970) 44 TulLR 264 at 275.
25 K Luig, “The institutes of national law in the seventeenth and eighteenth centuries” (1972)
Juridical Review 193 at 196–197.

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 blackstone, ­kahn-freund, and the contract of employment 487

of Christianity, commenting on the position of black slaves in the colonies

when brought to Europe, while also making some remarks on the position
of serfs and those of apprentices and servants. This may be illustrated by
Harris’s English translation of the Institutes. In his note on Institutes 1.3.pr,
Harris describes villenage, and slavery in the colonies, while in those on
1.3.4 he writes:

Altho’ absolute slavery is now disused in Europe . . . yet a species of servitude is
allowed among us, which is justifiable: thus an apprentice is bound for a certain
time, and for particular purposes; and men of full age may also, by contract, bind
themselves for a maintenance either for years, or for life.26

Pasquier’s work is, it may be noted, a comparison of Justinian’s Institutes

with French law.27
If Scotland can be taken as a country more strongly influenced than England
by Roman law, it is instructive to examine the history of a developed institu-
tional work, Sir George Mackenzie’s Institutions of the Law of Scotland.28 At
the end of the final title of the first book, that on ­persons, Mackenzie wrote
that “[w]e have little use in Scotland, of what the Institutions of the Roman
Law teach, concerning slavarie [sic] . . . for we as Christians allow no Men
to be made Slaves, that being contrare to the Christian liberty”.29 For the
first half of the eighteenth century, Mackenzie’s Institutions was the most
important book for teaching Scots law.30 In the ­edition he published in 1723,
John Spottiswoode commented on this passage:

We have Houses of Correction . . . We have quasi Slaves, called among the
Romans, Ascriptitii Glebae, viz. Coalliers and Salters . . . We have hired Servants,
who are under a Kind of Compulsion . . . We have Apprentices subject to the
Laws of the Burgh, and their respective Corporations, who, during the Time
specified in their Indentures, are under the Lash of their Masters and Mistresses,
and sometime in a Condition worse than that of an Hireling, and little better than
that of a Slave.31

26 The Four Books of Justinian’s Institutions, Translated into English, With Notes, by G Harris,
LLD (1756) 12 and 13. See also R Eden, Jurisprudentia philologica, sive elementa juris civilis,
secundum methodum et seriem Institutionum Justiniani (1744) 26; S Hallifax, An analysis of the
Civil Law, new edn by J Geldart (1836) 8–10.
27 Pasquier, Institutes de Justinien (n 21).
28 2nd edn (1688).
29 Ibid 76.
30 See J W Cairns, “Mackenzie’s Institutions and law teaching in eighteenth century Scotland”,
unpublished paper delivered to the Scottish Legal History Group, 13 October 1984, abstract in
(1986) 7 JLH 86.
31 6th edn (1723) 69.

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 488 law, lawyers, and humanism

The work which succeeded Mackenzie’s Institutions as the main student

text on Scots law was Erskine’s Principles. While Erskine purported to follow
the order of Mackenzie, he in fact analysed persons thus:
Persons, when considered in a private capacity, are chiefly distinguished by their
mutual relations; as husband and wife, tutor and minor, father and child, master
and servant.32

He included two paragraphs on master and servant at the end of his title on
minors and their tutors and curators.33 The descent of Erskine’s passages
on master and servant can be traced through student notes of lectures on
Mackenzie’s Institutions.34
Alan Watson has shown that the structure of Blackstone’s Commentaries
is directly and powerfully influenced by Denis de Godefroy’s analysis of
that of the Institutes.35 While Kahn-Freund was aware of some influence
from the Institutes, he had not considered it deeply or thought it through.36
In fact, the Commentaries belong to the genre of institutional writings
found in both the Civil and Common Law traditions.37 As we have seen, an
­institutional approach might well lead to a discussion of master and servant
in the ­treatment of persons. In this respect Blackstone was also influenced
by the earlier English writers Hale and Wood; but they too were i­nfluenced
by the institutional scheme, which, in any case, is strongly ­reinforced by
Blackstone in the Commentaries.38 The place where Blackstone locates
his discussion of master and servant is not “traceable directly to the
­non-reception of Roman Law” in England – if anything, rather the reverse;
especially since he, in this differing from Hale, placed master and servant
before husband and wife, where Justinian placed slavery, the first division of
the law of persons in Roman law.39

32 [J Erskine], The Principles of the Law of Scotland: In the Order of Sir George Mackenzie’s
Institutions of that Law, 1st edn, 2 vols, continuously paginated (1754) vol i, 61 (1.6.1).
33 Ibid vol i, 102–103 (1.7.38–39).
34 See, e.g., National Library of Scotland MS 3412 132–133; MS 3862 68; Signet Library MS: 7
(Law), vol i, 179–183; Edinburgh University Library MS Do.8.131 133–138 (second sequence of
pagination).
35 A Watson, “The structure of Blackstone’s commentaries” (1988) 97 YaleLJ 795 (henceforth
Watson, “Blackstone’s commentaries”).
36 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 509.
37 J W Cairns, “Blackstone, an English Institutist: legal literature and the rise of the nation state”
(1984) 4 OJLS 318 (henceforth Cairns, “Blackstone, an English Institutist”); on Blackstone’s
methodology, see also M Lobban, “Blackstone and the science of law” (1987) 30 Historical
Journal 311.
38 Cairns, “Blackstone, an English Institutist” (n 37) at 348–350.
39 Watson, “Blackstone’s commentaries” (n 35) at 803.

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 blackstone, ­kahn-freund, and the contract of employment 489

B. ECONOMIC REALITIES AND CLASSIFICATION

Kahn-Freund suggests that Blackstone’s treatment of master and s­ervant

would have had a different “emphasis”, “if his image of the working
population had been more realistic, if his horizon had encompassed a
­
larger segment of the economic landscape”, before posing the rhetorical
­question: “[w]as Blackstone’s idea of employment perhaps inspired by the
conditions of the mid-fourteenth rather than by those of the mid-eighteenth
century?”.40 Kahn-Freund here is writing specifically in the context of the
compulsion to work and the fixing of wages; but he intends these remarks
to have a wider significance, since he has just said that “[w]hat was or was
rapidly ­becoming the most important industrial and commercial community
in the world appears in Blackstone as consisting of farmers, artisans, and
householders employing domestics, and the servants of these persons”.41
Moreover, since it is the compulsion to work which he claims as the reason
for Blackstone’s classification of master and servant in the law of persons, we
are justified in confronting these statements as broad generalisations about
Blackstone’s view of master and servant.
The first point I would make is that in 1765 England overwhelmingly did
in fact consist of “farmers, artisans, and householders employing d ­ omestics,
and the servants of these persons”. There was no large group of urban
­wage-labourers. England was not an industrial country. As late as 1860
the population was still predominantly agricultural, even though by then
England could be described as industrial. As J C D Clark puts it, “[n]ot
until the 1830s and 40s, when the railway and the steamship arrived, did
the output of iron and coal surge ahead. Not until then did mass-production
and powered machine tools spread to many industries . . . In 1832 Britain
was still essentially horse-drawn and sail-driven”.42 Talking of much later in
the eighteenth century than 1765, Clark points out that “[f]or most workers,
the unit of production was the workshop”, and that “[b]efore joint-stock
companies, the normal units of economic as well as political continuity were
families”.43 If we compare Clark’s views with those of J F C Harrison, we
find that though they differ on much, and Harrison thinks the period from

40 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 521.

41 Ibid at 520.
42 J C D Clark, English Society 1688–1832: Ideology, Social Structure and Political Practice during
the Ancien Regime (1985) (henceforth Clark, Ancien Regime) 65. The remarks in this paragraph
are drawn generally from this work at 64–71.
43 Ibid 67.

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 490 law, lawyers, and humanism

1760 to 1830 to be more significant than does Clark, it is obvious that, for
Harrison too, the emergence of anything resembling modern wage labour
long post-dates Blackstone’s writing.44 To represent the relations of master
and servant as essentially familial was for Blackstone totally realistic, and
encompassed virtually the entire economic landscape. Kahn-Freund has
projected an industrial England too far into the past.45
This is confirmed if we look beyond Blackstone at some of the foremost
writers of his day. Adam Smith was Professor, first of Logic and then of Moral
Philosophy, in the University of Glasgow from 1751 to 1764. We p ­ ossess
student reports of his lectures on Jurisprudence dated 1762–1763 and
1766 (though this last was probably of the academic session ­1763–1764).46
These lectures are thus contemporary with Blackstone’s lectures and with
­publication of the first volume of the Commentaries. Smith tells his students:
The end of justice is to secure from injury. A man may be injured in several
respects.
1st, as a man 2ndly, as a member of a family 3dly, as a member of a state. As a
man, he may be injured in his body, reputation, or estate.
As a member of a family, he may be injured as a father, as a son, as a husband
or wife, as a master or servant, as a guardian or pupil. For the two last are to be
considered in a family relation, till such time as the pupil can take care of himself.
As a member of a state, a magistrate may be injured by dissobedience [sic] or
a subject by oppression, etc.47

His overall classification of a servant as in a familial relationship with his

master corresponds to that of Blackstone. In his lecture on master and
­servant, Smith treats the topic historically. He discusses the circumstances
which gave rise to the institution of slavery, its abolition in Europe, and
­servants and apprentices.48 In the Wealth of Nations, Smith does seem to
treat servants, journeymen, labourers, and “manufacturers” more as a cost
to be considered in rational calculation in his chapter “Of the Wages of
Labour”.49 This is, however, generally compatible with his discussion in the

44 J F C Harrison, The Common People: A History from the Norman Conquest to the Present (1984)
(henceforth Harrison, Common People) 211–242.
45 For a lawyer’s view of these developments, see P S Atiyah, The Rise and Fall of Freedom of
Contract (1979) (henceforth Atiyah, Contract) 24–35. Atiyah points out at 34 that in 1770 there
was little industrialisation.
46 A Smith, Lectures on Jurisprudence, ed R L Meek, D D Raphael, and P G Stein (1978). On the
dating of the reports, see Introduction to this work at 5.
47 Ibid 399.
48 Ibid 450–456, esp at 455–456.
49 A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed R H Campbell,
A S Skinner and W B Todd, 2 vols (1976) vol i, 82–104.

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 blackstone, ­kahn-freund, and the contract of employment 491

lectures on jurisprudence, and he notes, in a telling phrase, that “[m]asters

of all sorts . . . frequently make better bargains with their servants in dear
than in cheap years, and find the more humble and dependent in the former
than in the latter”.50 The legal basis of the relationship might have been
­contractual, but socially the context was more complicated.
John Millar, Professor of Law in the University of Glasgow 1761–1801, is
a much less familiar figure than his teacher Adam Smith, but he ­undoubtedly
was the outstanding law teacher of his day, and an influential social t­ hinker.51
In the 1790s, Millar was regarded as such a dangerous radical that Francis
Jeffrey was not permitted by his father to attend his lectures.52 In both his
lectures on Scots law and on English law, he discusses master and ­servant
as part of the law of persons.53 It is in this respect particularly ­significant
that Millar first taught English law in the late 1790s.54 In 1771, he ­published
Observations Concerning the Distinction of Ranks in Society. This reached its
third edition in 1779 under the revised title of The Origin of the Distinction of
Ranks: or, An Enquiry into the Circumstances which Give Rise to Influence
and Authority in the Different Members of Society. Its sixth chapter is entitled
“The authority of a Master over his Servants”. The opening paragraph states:
In the foregoing chapters we have surveyed the principal distinctions of rank
which occur among the free inhabitants of a country, and have endeavoured to
mark the progress of society, with regard to the power of the husband, the father,
and the civil magistrate. It may now be proper to consider the state of servants,
and to observe the degrees of authority which the laws and customs of different
nations have bestowed upon the master.55

50 Ibid vol i, 101.

51 See W C Lehmann, John Millar of Glasgow 1735–1801: His Life and Thought and his
Contributions to Sociological Analysis (1960) (henceforth Lehmann, John Millar of Glasgow);
K Haakonssen, “John Millar and the science of a legislator” (1985) Juridical Review 41.
52 H Cockburn, Life of Lord Jeffrey, 2 vols (1852) vol i, 12.
53 See, on Scots law, Glasgow University Library, MS Gen 347, MS Gen 178, MS Gen 181 (1–3),
MS Murray 83–87, MS Gen 1078. Millar dealt with master and servant in his seventh lecture,
described thus in J Millar, Heads of the Lectures on the Law of Scotland, in the University of
Glasgow, MDCCLXXVII (1777) 5–6: “View of the circumstances which have contributed to limit
or abolish domestic slavery in Europe. – Condition of negro-slaves imported into Scotland. – Of
coaliers [sic] and salters. – Of ordinary domestic servants. – Of apprentices.” See also pamphlet
of same title dated 1789 (bound in Glasgow University Library, MS Gen 181(1) and MS Murray
83) at 6. See, on English law, Glasgow University Library, MS Gen 243, lecture 8 on poor law
and master and servant. On all these lectures, see J W Cairns, “John Millar’s lectures on Scots
criminal law” (1988) 8 OJLS 364; and “Eighteenth century professorial classification of English
common law” (1987) 33 McGillLJ 225 (henceforth Cairns, “English common law”) at 233–235.
54 W C Lehmann, “Some observations on the law lectures of Professor Millar at the University of
Glasgow (1761–1801)” (1970) Juridical Review 56 at 73–76.
55 J Millar, Origin of the Distinction of Ranks (1779) reprinted in full in Lehmann, John Millar of
Glasgow (n 51) 175 at 296.

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 492 law, lawyers, and humanism

The sequence of chapters is obviously influenced by Smith’s lectures on

jurisprudence, and by Millar’s own lectures; but the way this paragraph is
phrased, and Millar’s focus on the authority “bestowed upon the master”
­suggests he does not conceive of the relationship between master and
­servant in purely contractual terms.
Given the economic evidence marshalled by Clark, and the views of
Smith and Millar, it is difficult to escape the conclusion that it would have
been wrong for Blackstone to discuss master and servant otherwise than as
one of the great relations of private economical (that is, household) life.56
The relationship between master and servant was not purely contractual, but
was socially complex in a way best represented in law by a classification of it
as familial or domestic.

C. COMPULSION OR FAMILY

It is still necessary for me to deal with Kahn-Freund’s argument that

Blackstone classified the relationship of master and servant as essentially
one of status, based on the latter’s duty to work for the former, possibly
because of contract, but, more importantly for Kahn-Freund, also because
of ­statutory compulsion. For Kahn-Freund, “[i]t is this which explains the at
first sight incomprehensible arrangement of [Blackstone’s] work, and it is this
which explains the juxtaposition of family relations and labour relations”.57
This arrangement came about “not, or at least not principally [because] . . .
the servant was often part of the familia”. Rather, it was because “the law
of master and servant was largely . . . the law of the status of those liable
to be directed to work at wages fixed without their concurrence and liable
to be punished for not accepting work on demand and for not doing it in
­accordance with the direction”.58 Kahn-Freund must argue this, because he
adopts a meaning for “status” such that it cannot be a relationship which can
be created voluntarily: it must come into being by operation of law alone.59
I shall argue against this view of Kahn-Freund’s in two stages. First, I shall
argue that statutory compulsion is not so central to Blackstone’s conception

56 Clark, Ancien Regime (n 42) 64–73; see also the map of society in P Colquhoun, A Treatise on the
Wealth, Power, and Resources of the British Empire (1814), found quoted in Harrison, Common
People (n 44) at 232–234.
57 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 512.
58 Ibid at 512–513.
59 Kahn-Freund, “British Labour Law” (n 9); cf the interpretation of Kahn-Freund in Atiyah,
Contract (n 45) 141–142. At 523–544 Atiyah discusses the contract of employment.

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 blackstone, ­kahn-freund, and the contract of employment 493

of the relationship between master and servant as Kahn-Freund claims. I

shall then demonstrate that Blackstone’s classification of the law on master
and servant reflects a common familial notion of the relationship.
Chapter XIV of Blackstone’s first book, after introductory matter, has
three major divisions. The first of these deals with “the several sorts of
servants”; the second with “[t]he manner in which this relation, of ­service,
affects either the master or servant”; and the third with “how strangers may
be affected by this relation of master and servant”.60 The first ­division starts
with an account of slavery, and its rejection in England, before ­subdividing
­servants, first, into menial or domestic servants, “[t]he contract between
[whom] and their m ­ asters arises upon the hiring”.61 This subdivision is
­generally concerned with hired servants, except for a bald statement that
­justices can compel those of no visible livelihood in certain circumstances
“to go out to service”.62 The second subdivision deals with apprentices.
It gives as the norm the c­ reation of apprenticeship “by deed indented or
­indentures”, though adding that the children of poor persons “may be
apprenticed out by the overseers, with consent of two justices”.63 The third
subdivision deals with labourers: and the paragraph is in fact primarily
­concerned with ­compulsion.64 The fourth subdivision concerns only s­ uperior
types of servants.65 Since these statutes existed, Blackstone obviously has to
discuss them, and I should not be understood as minimising their general
significance; but it seems e­ xaggerated to describe them as “occupy[ing] a
central place”, and ­mistaken to interpret the words “call in the assistance of
others” as more likely ­importing compulsion than consent.66
That Blackstone considers the relationship of master and servant to be
essentially familial is shown in his own explanation of his classification, when
he describes it as one of “[t]he three great relations in private life”. These
are “private œconomical relations”, and Blackstone is using “oeconomi-
cal” in its root sense of “household”.67 It does seem somewhat p ­ erverse of
­Kahn-Freund to minimise this. That this, rather than compulsory labour
under law, is the essence of the relationship for Blackstone is further

60 Blackstone, Commentaries (n 5) vol i, 411, 415 and 416.

61 Ibid vol i, 413.
62 Ibid.
63 Ibid vol i, 414.
64 Ibid.
65 Ibid vol i, 415.
66 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 511, 521; Blackstone, Commentaries (n 5)
vol i, 410.
67 Blackstone, Commentaries (n 5) vol i, 410.

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 494 law, lawyers, and humanism

s­ uggested and confirmed by the lecture courses of his two immediate suc-
cessors, Sir Robert Chambers and Richard Wooddeson, Vinerian Professors
respectively from 1767 to 1773 and from 1777 to 1793.68
It is important to note that Chambers’ lectures have an overall structure
rather different from those of Blackstone. He divides his account of English
law into three parts: public law; criminal law; and private law.69 He divides
his account of private law into its two subjects of persons and property. He
describes thus his treatment of the first of these:

I shall treat of the personal rights of men and of the injuries by which those
rights are violated, whether man be considered simply as an individual subsisting
merely for himself unconnected and independent, or as head or member of that
small society supposed to be contained in a single house, and supported by a due
reciprocation of domestic offices, or as extending his connection wider through
other modes of dependence, and systems of relation.70

His second lecture on private law is entitled “Of Economical Relations,

and Private Civil Relations”. The first of these, “economical or domestic
relations”, were those of husband and wife, parent and child, and master
and servant; the second, “particular” or “private” civil relations, were those
of guardian and ward and landlord and tenant.71 This owes something to
Hale.72 When Chambers discusses servants, he says:

Servants with us are either first apprentices who are bound for a term of years in
order to learn some art or trade – second domestic servants or thirdly labourers.
I shall consider shortly those particulars which relate equally to them all under
the following heads.

1. The authority of the master over his servant.

2. What they may do in defence of each other.

And

3. What injuries a man may suffer in this relation and the remedies.73

68 See H G Hanbury, The Vinerian Chair and Legal Education (1958) 52–78; Cairns, “English
common law” (n 53) at 232–233 and 236–243.
69 A Course of Lectures on the English Law Delivered at the University of Oxford 1767–1773 by Sir
Robert Chambers Second Vinerian Professor of Law And Composed in Association with Samuel
Johnson, 2 vols, ed T M Curley (1986) (henceforth Chambers, Lectures) vol i, 89 and 122.
70 Ibid vol ii, 3.
71 Ibid vol ii, 18.
72 See Cairns, “English common law” (n 53) at 240.
73 Chambers, Lectures (n 69) vol ii, 27.

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 blackstone, ­kahn-freund, and the contract of employment 495

There is not a single mention in his discussion of the compulsory service

on which Kahn-Freund places such stress.74 Servants are discussed here
because they are members of the household.
Wooddeson adopts a consciously institutional structure for his lectures,
dividing them into the laws on persons, property, and actions.75 His ­division
of persons consists of material very similar to what is covered in the first book
of Blackstone’s Commentaries.76 In the class of persons are “persons in their
private, domestic relations”.77 These consist of: husband and wife; parent and
child; guardian and ward; and finally master and servant.78 Wooddeson states:
The last domestic relation, which I am to speak of, is that of master and s­ ervant. –
The laws of England, with wise beneficence, extend their common protection
to the wealthy and the indigent. No private subject, as such, exercises any kind
of dominion, except what arises from the relations before spoken of [i.e. the
other three domestic relations], or what is submitted to by voluntary compact
and agreement. It will not however be thought an unreasonable abridgement of
natural liberty, that by the st. 5 El. c.4.§ 7 [Statute of Artificers and Apprentices
1562], persons of the description therein contained should be compellable to be
retained by the year in husbandry, for the necessary purposes of agriculture, and
for avoiding the evil consequences of idle vagrancy.79

Wooddeson next has a general discussion of the nature of the contract,

mentioning that while “this engagement subsists”, applicable to the master
is “what has been said of a father’s legal power of correction, of ­maintaining
and abetting suits and actions, and of seeking reparation in a judicial mode
for any injury, whereby the plaintiff lost the services, servitium amisit, of
the person in question”. Wooddeson also discusses the master’s liability for
the action of his servant. He next mentions “a sort of menial or domestic
­servants, called apprentices” and discusses the law relating to them i­ ncluding
the “compulsory powers of the statute”. Lastly he deals very briefly with
superior types of servants such as clerks, stewards, attorneys, factors and the
like.80 Though Wooddeson mentions the possibility of compulsory labour
and apprenticeship, it is obvious that, as with Chambers, his inclusion of

74 Ibid vol ii, 27–28.

75 R Wooddeson, Elements of Jurisprudence Treated of in the Preliminary Part of a Course of
Lectures on the Laws of England (1783) (henceforth Wooddeson, Elements of Jurisprudence)
111.
76 Cairns, “English common law” (n 53) at 232–233.
77 Wooddeson, Elements of Jurisprudence (n 75) 112.
78 R Wooddeson, A Systematical View of the Laws of England; As Treated of in a Course of
Vinerian Lectures, Read at Oxford, During a Series of Years, Commencing in Michaelmas Term,
1777, 3 vols, 1st edn (1792–1793) vol i, 416.
79 Ibid vol i, 464.
80 Ibid vol i, 464–469.

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 496 law, lawyers, and humanism

servants in domestic relations has nothing to do with compulsory service.

They are dealt with where they are because they are considered members
of the household.
In 1795, in A Description of the Country from Thirty to Forty Miles
around Manchester, John Aiken considered an admirable feature of that
area’s textile industries the fact that masters had few journeymen and worked
alongside them, because this was “highly favourable to the p ­ aternal, filial,
81
and fraternal happiness”. This merely serves to confirm that, well beyond
1765, it was common to conceive of servants as members of the family
of their masters. Blackstone’s classification of the relationship has nothing
to do with compulsory service creating a “status”: it reflects the notion,
and – as we have seen  – the reality, that servants were members of the
family ­household. Kahn-Freund has been misled by his over-rigid typology
of “status” ­relationships and “contract” relationships, linked with his precon-
ception that contractual relations could not be classified in such a way as to
be relations between persons. This is, however, to ignore the complexity of
affairs. After all, are not the relations between husband and wife created by
a contract, even if of a very special kind? Kahn-Freund’s difficulty in under-
standing Blackstone’s classification simply disappears. The practical realities
of social life, legal tradition, and contemporary social theory all stressed the
familial nature of the relationship between master and ­servant: whether it
was created voluntarily (like that of husband and wife) or based on opera-
tion of the law (like that of parent and child) was ultimately unimportant.
Blackstone simply is not thinking in the discrete categories of “status” and
“contract” which Kahn-Freund attempts to impose on him, and has placed
master and servant before husband and wife under the influence of the
Institutes.

D. CONCLUSION

In conclusion, we may note that Kahn-Freund’s claim that Blackstone’s

analysis of master and servant “was completely out of date in 1765” is quite
unfounded.82 Whenever it did become obsolete, it was certainly well after
1765. It may have hindered the development of a contractual approach
to employment in nineteenth-century England, but that can scarcely be
­attributed to Blackstone. What hindered such development can only have

81 Found quoted in Clark, Ancien Regime (n 42) at 67.

82 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 523.

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 blackstone, ­kahn-freund, and the contract of employment 497

been the inability or disinclination of later scholars to overthrow Blackstone’s

­classification. We cannot expect writers to foresee social and economic
developments of which they can have had no inkling. Blackstone’s depiction
of England “as consisting of farmers, artisans, and householders employing
domestics, and the servants of these persons” was well suited to his day.

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