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
- 2 Kent, 298; 2 Story on Contr., § 1,298
- 41 How. Pr. (N.Y.), 370
- 1 Bosw., 441
- 2 Story on Contr., § 1,297