Popular Science Monthly/Volume 22/April 1883/The Legal Status of Servant-Girls
By OLIVER E. LYMAN.
SHORTLY after the Flood, as we are informed, Abram's wife turned her domestic, Hagar, out of the house on account of her arrogant conduct, which is perhaps the first authenticated instance on record of trouble between mistress and servant-girl. This sort of trouble, which began so early, still survives in forms so various and often so exasperating as to raise the impatient question whether the serving class is the only dark part of creation which improvement has failed to reach. The question is, no doubt, full of aggravation and discouragement, yet there has been improvement, but it has been of slow attainment, forming no exception to the great law of progressive social amelioration.
Social changes, it is to be remembered, especially of the alleviating and elevating kind, are always slow. We are beginning to talk about social evolution, and the new science of sociology which treats of it; but we have to take ages into account before we can realize any positive conception of advance. Much of the barbarism of early society clings tenaciously to the domestic relations, while the modification of human nature and the corresponding mitigation of social imperfections go on but very gradually, tardily, and partially.
A still further reason for the slowness of improvement in the present case arises from the peculiarity of the relations involved. In times of early violence, it is the weak that are subjugated and enslaved, and, as civilization advances, it is ever the lowest and most ignorant class of any society that falls into the condition of menial servitude. The feeblest, the least competent, the least provident, naturally sink to the bottom of the social scale, and become the helpers, the dependents, the drudges, and the servile appendages of the classes who have wealth, intelligence, and power. In domestic life these relations become organized with the abject class at the base of the social structure. Improving agencies will obviously not take effect alike upon the higher and lower elements. Many causes will operate powerfully to maintain separate interests, to favor the superior class, and to hinder their inferiors, so that servants will be the last to be reached by elevating agencies.
How slowly ameliorating changes in the domestic relations have proceeded, and how long their worst features have survived, are shown by the tenacity with which a vicious system of domestic servitude was clung to even in this country. Multitudes still remember the order of things in which half the country bought their servants from the auction-block. That primitive condition in which the menial was a merchantable chattel, with hardly more rights than a brute, continued down to these times, and has been got rid of only in the present generation. The slave system could have lasted as long as it did only in a form of society in which the menial class was low, degraded, and without influence. And that the slave system has in turn widely reacted to promote the social debasement of the working-class there can be no doubt. The slave system, of course, grew more and more anomalous as the sense of justice and humanity strengthened among the people i but we must not forget that slavery in this country was not destroyed by the moral reprobation of the community. It was defended as an historic and permanent order of society until it was incidentally terminated by revolution. It is now easy to execrate its atrocious forms, but we have by no means escaped from the baneful influence of many of its ideas. The idea of an abject menial class is still entertained as a part of the normal constitution of human society, while the associations of a degrading and but recently abandoned system are still potent for the debasement of those who continue in the relations of domestic service.
But, in spite of all this, the serving class, however disabled and degraded, will be found to have participated much in that general movement which we term the progress of society. Civilization may have been staggered by the "servant-girl problem," but it has not wholly broken down before it. The mistress can no longer kill her perverse domestic with impunity—although she may often think this is a step backward instead of forward. General tendencies have been at work which have put an end to the ancient order in this respect. In the early ages of domestic servitude, one of its incidents was the power of the master over the life of the servant. This prerogative has long since disappeared, though not because of the sixth commandment, or as a result of law reform, or the enactment of protective legislation. It was the culminating effect of a succession of natural causes, whose operation was gradual and extended over centuries. By captivity in time of war, or by the voluntary submission of the indigent, the prosperous and opulent became possessed of numerous servants, whom they chastised, sold, killed, and subjected to unlimited jurisdiction generally. In time the master possessed so many of these abject creatures that their numbers surpassed the accommodations of the household, and it became necessary to quarter them out upon the fields they cultivated. Here they lived in hamlets, and were called villagers, or villeins. Living apart from the master, it became less easy for him to keep a strict watch over their behavior, or to compel them to labor by chastisement. To incite them to work, gifts of money were made, and better results were obtained by making the pay proportionate to the results accomplished. Thus the master, using bribery instead of compulsion, and being removed from constant personal contact with his servants, had less occasion to become enraged at their short-comings, or to visit them with severe punishment. The exercise of dominion over life became less frequent, then ceased, and with a growing sense of justice the arbitrary power was forever lost, though it took centuries of the slow-working processes of evolution to accomplish this result. Potgresserus says that not till the twelfth century was the power lost.
But if progress has brought amelioration to the servile class and promises still more, it has brought also its disadvantages, some of which are the results of changed and improved relations. In the early ages masters and servants were more nearly alike in employments and manners of living than they are now. The acquirement of wealth and the luxurious habits which wealth introduced destroyed this degree of equality; the additional advantages inured to the benefit of the master alone; the servant remained indigent. The effect of social progress was thus to separate their lives as well as their interests. Servants constitute an isolated class. By an unwritten social law they are cut off from intimacy with their superiors, and consequently fail to reap the advantages which follow a community of interests with those above them. They fail to be leavened by the influences which act for the elevation of the community at large. This has operated to retard their progress and elevation, and produces aggravating effects which are more marked in our own republican country than in those countries where social gradations are more definitely established. Even in slavery there was a certain community of interest and responsibility on the part of the master, of which we see but little in the surviving forms of domestic servitude. This isolation drives servants to self-defense against the iron hand of control on the part of masters and mistresses, and results in a spirit of antagonism, leading to tacit conspiracy against those whom they regard as their enemies. Obligations sit lightly upon servants, and they habitually study to promote their own interests by unscrupulous arts and all kinds of dishonest practices. This may be deplored, but we may well ask, What are the servants to do? They are a disintegrated as well as an isolated class, and can gain but imperfectly the benefits which arise from combination. Equality is the universal theory; why, then, should they not demand increasing privileges, and rebel against the circumstances that keep them down?
But slow as has been the improvement of this class, and notwithstanding their humble social condition, and although they are too frequently regarded as a lower race of beings, with no rights except to obey, yet they have reached a stage of progress that entitles them to the protection of law, to which they are amenable also like all other people. The servant-girl has a legal status just as much as her mistress, and rights which ought to be held sacred, and, if they were so regarded, one important step toward the amelioration of the relations of lady and servant would be taken.
The relation of mistress or master, as the case may be, and servant is based upon contract only, and the two parties to the contract are upon an equal footing so far as rights are concerned. They differ only in what they agree to do one is to work, and the other to pay and thereon hang all the law and the prophets. It naturally follows that physical punishment can not lawfully be administered to a domestic. As Chancellor Kent said, "that is not an incident of the contract of hiring." It is hardly necessary to enlarge upon this right of servants, as the physical punishment of a domestic is rarely, if ever, heard of.
In the case of slavery, where the servant was owned, it was assumed to be for the interest of the master to provide medical attendance in time of sickness, but the free servant has no such claim. If a servant-girl falls sick, the mistress is not legally compelled to take steps to restore her to health. According to both Chancellor Kent and Mr. Story, the party hiring is not bound to provide a servant with medical attendance or medicines in case of sickness. If a gentleman at the servant's request sends for a physician, he is not liable to pay the doctor's bill unless he omits to make known who requests the services, or unless he exceeds his authority, or expressly or impliedly engages to be answerable, either by directly promising to pay for them, if rendered, or by doing or saying something which justifies the doctor supposing that he engages to pay him.
But if the gentleman has hired a doctor, and given him to understand that he will pay him, he is bound to pay what the services are reasonably worth; he can, however, at any time give him notice that he will not be liable for further services. If he calls the doctor in to attend the servant without the servant's request or consent, he must foot the bill; it being considered merely a generous act on his part. A lady, too, under the same circumstances becomes similarly liable provided she never had a husband or has buried him. If she is still fettered by one, there seems to be some doubt as to whether she can make a valid contract that will bind anybody at all to pay the doctor. The law is not well settled. It may be said, however, generally, that she can not bind her husband, because the obligation of a husband to furnish medical attendance does not extend beyond his wife and own children, and he is under no obligations to provide it for a servant. And, as such attendance for a servant can hardly be called a necessary which the husband must provide the wife, she can not be considered as his agent for the employment of the doctor. So, too, she can not, as a rule, bind herself, because her identity is merged in that of her husband. She is not sui juris, and has no right to contract. But, if she has separate property, the case may be different. In New York she can be held liable on her separate estate, if the intention to charge it is declared in the very contract, which is the foundation of the charges. The rule everywhere, however, is not the same. There is a conspicuous lack of uniformity on the subject of married women's rights. Some day uniformity may be obtained. If those ladies who cry for the right of suffrage would shed half of their tears for a settlement of the laws pertaining to married women, they would accomplish results worth striving for. But to return to the doctor. The poor man, at present, had better take care when a married woman comes to employ him for her servant, or he may be "left out in the cold."
Although not bound to furnish medical attendance and medicines, it seems the party hiring is bound to furnish proper food, and to support the servant during her sickness or disability, so long as she remains in his or her employ.
Another right which a servant-girl has, is a right to the enjoyment of a good character provided she has one and the law presumes she has it until the contrary appear. There is, unfortunately, a tendency on the part of a great many people to speak too freely, too thoughtlessly, and even maliciously, of the characters of others. The more marked the inferiority in social position of the person talked about, the greater the freedom with which the unbridled tongue wags; and just in proportion as the maligned person's station in life is lowlier, the injury done is the more irreparable. So it frequently happens that the character of one who has lived in a menial relation to us is spoken slightingly of, in a manner not justified by the facts. Thoughtlessness of the consequences of idle words, revenge for some act of the servant, or some other motive, may be at the bottom of it, but they afford no justification. The law protects her or will, if she has cash enough to invoke its protection, or can persuade a lawyer to take her case on speculation. If, however, the communication is made by a person acting honestly and without actual malice, then, even though it be defamatory, the law protects the one making it. Servants bear such a peculiar relation to society that it is deemed necessary, for the common protection and well-being of its members, that honest and proper communications in regard to servants should be freely made, and that those called upon to make such communications should not be hampered by the apprehension of vexatious litigation. The good of the many is not to be sacrificed to save the few from injury. We see the same principle of protection in regard to communications made respecting the solvency of traders, the skill of professional practitioners, the trustworthiness of persons in confidential positions. The welfare of society demands that they be made freely, faithfully, and truly, and to give a servant a good character that is undeserved is a grievous offense.
On the other hand, one who designedly gives a bad character not deserved, under the pretense of discharging some duty to herself or to society, offends against justice and humanity, and the law throws no protecting cloak around her words. On one occasion a gentleman unasked wrote a letter in regard to a servant's character to another party, with the result of injury to the servant. The man was sued, and the jury found that he had acted maliciously, and rendered a verdict against him. The judge remarked: "I do not mean to say that, in order to make libelous matter (written by a master) privileged, it is essential that the party who makes the communication should be put into action in consequence of a third party's putting questions to him. I am of opinion he may (when he thinks that another is about to take into his service one whom he knows ought not to be taken) set himself in motion and do some act to induce that other to seek information from and put questions to him. The answers to such questions, given bona fide with the intention of communicating such facts as the other party ought to know, will, although they contain slanderous matter, come within the scope of a privileged communication. But in such a case it will be a question for the jury whether the defendant has acted bona fide, intending honestly to discharge a duty, or whether he has acted maliciously, intending to do an injury to the servant."
In another case, a person told a servant girl's mistress that the girl was irregular in her conduct. The result was, she lost her place, and sued her defamer. The judge remarked: "If a neighbor make inquiry of another respecting his own servants, that other may state what he believes to be true; but the. case is different where the statement is a voluntary act; yet, even in this case, the jury is to consider whether the words were dictated by a sense of the duty which one neighbor owes to another."
Voluntary communications are looked upon askance. Stronger evidence is necessary to show that they were made in good faith than when the statements are made in response to inquiry. And if a lady unasked displays a forward and officious zeal in giving a character prejudicial to a former servant, it will be a material guide to the jury in ascertaining the real motive. The mere fact, however, that a communication is voluntarily made does not of necessity render it unprivileged, and, if the publication is warranted by an occasion apparently beneficial and honest, and there is no malice, it is not actionable. If, for instance, a lady who has given a servant a good character finds that she was not justified in so doing, it is her right and it becomes her duty to communicate the facts to the person to whom the other communication was made, in order to prevent that person's being misled by the previous recommendation, and such a communication is privileged. So, too, if a person to whom a servant has been recommended finds out that the character given was not justified by the servant's actions, and informs the lady who recommended her of the fact, and cautions her against giving recommendations for morality or honesty, this is, in the absence of malice, a privileged communication. Where a lady gives a character in response to an inquiry, she will not be presumed to have been actuated by malice. Even if what she says is untrue, she can not be successfully sued, unless the servant can prove that she spoke maliciously, and knew that what she said was untrue and injurious. And she need not prove the truth of her statement unless it is plain that she was actuated by malicious motives. If under such circumstances a prima facie case of falsehood be made out, she will be bound to show that the assertions were made under a belief in their truth. A lady once had a young woman in her employ, who was afterward dismissed. Having a chance to make another engagement, she referred to her former mistress, who wrote to the person making inquiry: "I parted with her on account of her incompetency, and not being lady-like nor good-tempered. P. S. May I trouble you to tell her that, this being the third time I have been referred to, I beg to decline any more applications?" The result could have been foreseen. The girl lost the engagement. Stung by the letter, she sued the writer, and general evidence was given of her competency, lady-like manners, and good temper, and that, in reply to the two previous applications which were made before her dismissal, the writer had recommended her. It did not appear in evidence why she was dismissed. The judge told the jury that they must decide whether there was sufficient proof that the defendant, in writing the letter, had been influenced by some improper-feeling toward the plaintiff to make a false statement knowingly. They found that there was, and the plaintiff got a verdict.
On another occasion a man was asked about the character of a servant who had been in his employ, and he replied that she was dishonest. Of course, she lost the prospective engagement. She sued. It appeared from the evidence that the charge of stealing was not made until after she had left the defendant's service; that he had told her he would say nothing about it if she would resume her employment at his house, and that he afterward said to her that, if she would admit the theft, he would give her a character. The jury concluded that he was not acting bona fide in the reply he gave to the inquiry as to the girl's character, and gave her a verdict.
In making a damaging statement to an inquiring person about a domestic, it is perhaps kinder to her to see that no one is present but the one interested in the inquiry. It may also turn out to be the safer course to pursue. It is true that such caution is not absolutely essential for the protection of the communication, but, if an opportunity is sought for making a charge before third persons when it might have been made in private, it affords strong evidence of a malicious intention, and thus deprives it of that immunity which the law allows to such a statement when made honestly; and, too, the fact that a third person is present is a circumstance which, taken in connection with others, such as the style and character of the language used, would have weight with a jury in determining whether the person making the statement had acted in good faith or had been influenced by malice, The same thing may be said of an accusation made to a servant in the presence of another. It is a question for the jury. If it is made at such a time, on such an occasion, and under such circumstances that the inference of malice prima facie arising from the accusation is rebutted, the burden of showing that it was actuated by malice or ill-will rests upon the servant. It must, for instance, be made in good faith and for a justifiable purpose, in the discharge of a duty, public or private, legal or moral, or in the prosecution of one's own rights and interests, and without any design to defame the person to whom it relates, even though it is all untrue. Thus, if a lady is about to discharge a servant, and calls in a third person to hear the reason therefor, and states the reason in that person's presence, the courts have held that such a communication made with honesty of purpose is privileged. It has been held, however, in Massachusetts, that a false charge made before a third person is libelous. If the statement is made in answer to inquiries, it must be to some person who has an interest in the inquiry, and not as mere matter of gossip.So, where a gentleman, having dismissed his servant for dishonesty, refused to give him a character, alleging to those who applied that he had dismissed him from his service for dishonesty, and the servant's brother afterward inquired of the master why he had so treated the servant, and was thus keeping him out of a situation, the gentleman replied, "He has robbed me, and I believe for years past." Only one instance of robbery had been charged or proved, but it was held, nevertheless, that the answer to the brother was privileged.
It seems, too, that it is within the scope of privileged communications to honestly protect one's interest by informing servants of the dishonesty of a fellow-servant. A man, having dismissed his servant, afterward remarked to two other servants: "I discharged that man for robbing me; he is a thief, and if ever you speak to him again or have anything to do with him I shall consider you as bad as him, and shall discharge you." This was held on a subsequent trial to be a privileged communication.
Let us now look at another right. Servants have well-defined rights in regard to wages. If they perform their part of the contract, they are entitled to a performance on the part of the party of the first part, to wit, the party hiring. Just what the servant has to do has been succinctly stated by Mr. Story: "A servant," says he, "is bound to obey all the just and reasonable commands of his master, to be careful and faithful as to all property committed to his charge, to do with diligence and care his proper and appointed work, and to behave with decency and in a manner consistent with his station as servant. . . .But the command must be just and reasonable, and within the fair scope of his employment."
The right to the wages is not affected by the fact that there is nothing for her to do, if she is on hand and holds herself ready to serve. The hiring being an accomplished fact, and the time of service begun, the right to wages exists. If there is nothing to do, so much the luckier for the servant. As a matter of fact, however, it may be safely said that such an easy state of affairs seldom occurs in the experience of most domestics.
The right to wages is unaffected also by damage done by the servant. For instance, if she injure articles or lose them in the course of the service, the party hiring can not without a specific agreement to such effect, deduct from the servant's wages their value, but must bring her cross-action against the servant for compensation. So that, if a lady deducts for some such cause a portion of her cook's wages, the cook would have a perfect right to sue for the sum deducted. Inasmuch, however, as the party hiring can bring a cross-action, or, as in New York practice, set up a counter-claim in the cook's action, for the lost articles, the cook's net recovery would be nil. In other words, the legal and illegal ways of settling for the damaged or lost articles end in similar results. "It is six of one and half a dozen of the other." As a matter of practice and advisability, the illegal method of deduction, although it overrides the servant's rights, is better for her, as it saves her the expense of a lawsuit merely for a principle. The wise cook will not grumble at it. She, if anybody, ought to know that the frying-pan is better than the fire.
Nor can the party hiring deduct from the servant's wages any sum paid a physician called in by the hirer for the servant without the request or consent of the latter, nor in this case can a cross-action be brought for such sum, as the act is considered as merely one of generosity.
If a servant hired for a specific time is wrongfully discharged before the expiration of the time for which she was hired, she can sue the party hiring for a breach of contract. She can bring an action either to recover for the services that she has actually rendered or for damages for the breach, in which latter case she can recover any amount already due her for services, and also compensation for damages sustained by the wrongful dismissal. She can not wait, however, until the expiration of the period for which she was hired, and then sue for the whole wages on the ground of a constructive service.! It is obligatory upon her to diligently try to find another place. She must make reasonable exertions to diminish the damages. This is an active duty which the law wisely imposes. "Public interest and sound morality accord with the law in demanding this, and if the injured party through negligence or willfulness allows the damages to be unnecessarily enhanced, the increased loss falls upon him, and he can recover nothing for damages which by reasonable diligence on his part could have been prevented." If the servant has been unable to find employment, and has been forced into involuntary idleness by circumstances, her damages will be an amount equal to the whole compensation agreed upon. This was held in a case where the action did not happen to be brought until the time of hiring had expired. In another case where a servant who had been hired for two months was discharged without cause at the end of five days, it was held that the servant was entitled to recover the wages for the whole two months, although there had been so few days' service.
If, now, on the other hand, the servant hired for a specific time is justly dismissed, or without reasonable cause leaves the service, what are her rights in regard to wages? Chancellor Kent says that in such case she loses her right to wages for the period she served. This is, undoubtedly, the rule where the full performance of the contract is a condition precedent to the right to wages, and through the servant's fault fulfillment becomes out of the question. Common sense and strict justice, however, lead to a different rule where the fulfillment of the contract is prevented or rendered impossible by the sickness or death of the servant. The law makes a distinction between the willful or negligent violation of a contract and where its fulfillment is prevented by the act of God. "In the one case, the application of the rule operates as a punishment to persons wantonly guilty of the breach, and tends to preserve the contract inviolable. In the other case, its exception is calculated to protect the right of the unfortunate and honest man who is providentially and without fault on his part prevented from a full performance." In general, the contract is subject to the implied condition of health and strength, and sickness will excuse a servant from liability, and justify her in rescinding the agreement.
Such are some of the rules regarding the rights to wages of servants who are hired for a specific time. With those who are not hired for any particular time, as is the case with the majority of domestic servants, the case is different. The servant is considered as hired with reference to the general understanding that she shall be entitled to her wages for the time she serves, and either party, in the absence of any agreement to the contrary, may determine the service at any time. The question most likely to arise on such termination is whether any notice must be given by the party terminating the service. In England, a month's notice is customary, and, if it is the hirer who ends the hiring, he can give a month's wages instead of the notice. If the dismissal is for misconduct, however, the servant is not entitled to the month's wages. The English rule has not been incorporated in the law of this country. As was stated by Chancellor Kent, there is no distinction between menial and other servants. Whether notice is to be given depends upon the contract between the parties, or, if that is silent on the subject, it depends upon the custom of the particular place. Where there is an express contract upon the subject, it is binding, and must be observed, except in case of the disobedience of the servant, or under some other such circumstances. If the parties have not seen fit to take the subject of notice into consideration, no notice is required unless a well-established custom to give notice exists.
Before closing the discussion of the right to wages, mention should be made of an exception to the rule that the servant who performs faithfully her contract without breach is entitled to wages. The exception is that of persons whom the law deems unable to contract. Take the case of a married woman, for example. Where the common law still controls the relation of husband and wife, all wages the wife earns belong absolutely to him, and any promise made to pay her is considered as a promise made to him. And the common-law rule prevails except where it has been modified or changed by statute. In New York State, before 1860, a married woman who contracted for her personal services with the knowledge and consent of her husband, and was promised by the party hiring what her services were reasonably worth, acquired no title to her earnings in her own right. It was hard upon a poor wife, and the Legislature gallantly enlarged the rights of married women, so as to enable them to contract for their services, and receive and keep the pay for them for their sole and separate use, and to invest the same.
Then take the case of minor servants. In general, a child's earnings belong to and are recoverable in the name of the parent. In the absence of an agreement, express or implied, that payment may be made to the child, the parent alone is entitled to the child's earnings. The father, if living, can claim his child's wages; but, if he be dead, they belong to the widow so long as she remains unmarried. The law puts upon her the support of the children, and so, if they go out to service while under age, gives her the right to their earnings, and to collect them. But if she marries again—presto!—her legal capacity is gone. She is no longer herself, but has merged her identity in another, and she can no longer control the property or earnings of her children.
If in general there is an express or implied agreement that the child may receive the wages, that agreement supersedes the common law rule. For instance, if a minor makes a contract for her services on her own account, and the father knows of it and makes no objection, there is an implied assent that she shall have her own earnings. If, again, the parent resides in the same place, and neither receives nor claims any wages for the daughter's services for a long period, the inference would be strong that he or she intended that the daughter should receive her own earnings. Or, if the parent is absent for several years, and leaves the child to shift for itself, the presumption is that there was an intention to emancipate the child. In New York State the Legislature has taken a hand in this matter, and provided that payment of wages to a minor in service shall be valid unless the parents or guardians of such child notify the party employing the minor within thirty days after the service begins that they claim the child's wages. And, under any circumstances, if it appears that the child at service has no parent or guardian entitled to her wages, the mistress must pay them to the servant.
Such are some of the rights of those who serve us. It would be a difficult task in the limits of a magazine article to treat of all their rights. Being human beings, and performing their lowly duties by contract only, the law clothes them with rights similar to those possessed by other persons, who are not compelled to undertake what we call menial work. Their property rights, for instance, are as sacred as those of princes. To steal a dollar from a cook is as wrong as to break open the safe of a banker. Their rights of life and limb also are just as inviolable as those of their employers. To kill a waitress is murder as well as when a queen is put to death violently. To chew up the thumb of a chamber-maid is mayhem just as surely as if it were the thumb of the President.
And so we might go on enumerating their rights in general, but the purpose of this article has been attained—to point out some of the rights of servants more or less peculiar to their calling in life, in the hope that a due recognition of them by those whom fortune has placed on a higher social pedestal will contribute a little to mitigate the worst evil of housekeeping. That it will eradicate the evil, or even be a panacea for half the attendant woes, is not for a moment claimed or expected. There are too many other independent elements at work to keep up the evil. But as each single drop of water falling on the stone helps to wear it away, so the observance of one form of relief will do its little toward wearing away the trouble which began with Hagar, and will end—Heaven only knows when.