No. I.

and inhabiting in the same, or in any other city or town that now is or hereafter shall be and continue incorporate, to serve and be bound as an 5 Eliz. c. 4. apprentice after the custom and order of the city of London for seven years at the least, so as the term and years of such apprentice do not expire or determine afore such apprentice shall be of the age of twentyfour years at the least.

XXVII. Provided always, and be it enacted, That it shall not be lawful to any person dwelling in any city or town corporate, using or exercising any of the mysteries or crafts of a merchant, trafficking by traffic or trade into any the parts beyond the sea, mercer draper goldsmith ironmonger embroiderer or clothier, that doth or shall put cloth to making and sale, to take any apprentice or servant to be instructed or taught in any of the arts occupations crafts or mysteries which they or any of them do use or exercise, except such servant or apprentice shall be his son, or else that the father and mother of such apprentice or servant shall have, at the time of taking such apprentice or servant lands tenements or other hereditaments of the clear yearly value of forty shillings of one estate of inheritance or freehold at the least, to be certified under the hands and seals of three justices of the peace of the shire or shires where the said lands tenements or other hereditaments do or shall lie, to the mayor bailiff or other head officers of such city or town corporate, and to be inrolled among the records there.

XXVIII. And be it further enacted, That from and after the said Feast of St. John the Baptist next, it shall be lawful to every person being an housholder, and four and twenty years old at the least, and not occupying husbandry nor being a labourer dwelling or inhabiting, or that shall hereafter dwell or inhabit in any town not being incorporate, that now is or hereafter shall be a market-town, so long as the same shall be weekly used and kept as a market-town, and using or exercising any art mystery or manual occupation during the time of his abode there, and so using and exercising such art mystery or manual occupation as aforesaid, to have in like manner to apprentice or apprentices, the child or children of any other artificer or artificers not occupying husbandry nor being a labourer, which now do or hereafter shall inhabit or dwell in the same, or in any other such market-town within the same shire to serve as apprentice or apprentices as is aforesaid, to any such art mystery or manual occupation, as hath been usually exercised in any such markettown where such apprentice shall be bound in manner and form above. said.

XXIX. Provided always, and be it enacted, That it shall not be lawful to any person dwelling or inhabiting in any such market-town, using or exercising the feat mystery or art of a merchant, trafficking or trading into the parts beyond the seas, mercer draper goldsmith Ironmonger embroiderer or clothier that doth or shall put cloth to making and sale, to take any apprentice, or in any wise to teach or instruct any person in the arts sciences or mysteries last before recited, after the Feast of St. John Baptist aforesaid, except such servant or apprentice shall be his son, or else that the father or inother of such apprentice shall have lands teneinents or other hereditaments at the time of taking such apprentice of the clear yearly value of three pounds of one estate of inheritance or freehold at the least, to be certified under the hands and seals of three justices of the peace, of the shire or shires where the said lands tenements or other hereditaments do or shall lie, to the head officers or head officer of such market-town where such apprentice or servant shall be taken, there to be inrolled by such head officers always to remain of record.

XXX. And be it further enacted, That from and after the said Feast it shall be lawful to any person using or exercising the art or occupation of a smith wheel-wright plough-wright carpenter rough-mason plaisterer sawyer lime-burner brick-maker bricklayer tyler slater helier tyle-maker linnen-weaver turner cowper millers earthern-potters woollen-weaver weaving huswives or household cloth only and none other cloth-fuller otherwise called tucker or walker burner of oare and wood-ashes thatcher or shingler, wheresoever he or they shall dwell or inhabit, to have or

No. I.

receive the son of any person as apprentice in manner and form aforesaid, to be taught and instructed in these occupations only and none other, albeit the father and mother of any such apprentice have not any lands 5 Eliz. c. 4.

tenements or hereditaments.

XXXI. And be it further enacted by the authority aforesaid, That after None may use the first day of May next coming it shall not be lawful to any person or any Manual Ocpersons, other than such as now do lawfully use or exercise any art mys- cupation, except tery or manual occupation, to set up occupy use or exercise any craft he hath been mystery or occupation now used or occupied within the realm of England Apprentice to or Wales, except he shall have been brought up therein seven years at the same, &c. the least as an apprentice in manner and form abovesaid; nor to set any person on work in such mystery art or occupation being not a workman at this day, except he shall have been apprentice as is aforesaid; or else having served as an apprentice as is aforesaid shall or will become a journeyman or be hired by the year; upon pain that every person willingly Repealed offending or doing the contrary shall forfeit and lose for every default 54 G. 3. c. 96. forty shillings for every month. (4)

XXXII. Provided always, and be it further enacted by the authority What sort of aforesaid, That no person or persons using or exercising the art or Persons Woolmystery of a woollen cloth-weaver, other than such as be inhabiting len Weavers within the counties of Cumberland Westmoreland Lancaster and Wales, may take Apweaving frizes cottons or huswives cloth only, making and weaving prentices. woollen cloth commonly sold or to be sold by any clothman or clothier, shall take and have any apprentice, or shall teach or in any wise instruct any person or persons in the science art or occupation of weaving afore

said in any village town or place (cities towns corporate and market Repealed by towns only except) unless such person be his son, or else that the father 5 & 6 W. & M. or mother of such apprentice or servant shall at the time of the taking of c. 9. such person or persons to be an apprentice or servant or to be so instructed have lands or tenements or other hereditaments to the clear yearly value of three pounds at the least of an estate of inheritance or freehold, to be certified under the hands and seals of three justices of the peace of the shire or shires where the said lands tenements or other hereditaments do or shall lie; the effect of the indenture to be registred within three months in the parish where such master shall dwell, and to pay for such registring four pence; upon pain of forfeiture of twenty shillings for every month that any person shall otherwise take any apprentice, or set any such person on work contrary to the meaning of this article.

XXXIII. And be it further enacted by the authority aforesaid, That all He that hath and every person and persons that shall have three apprentices in any of Three Apprenthe said crafts mysteries or occupations of a cloth-maker fuller sheerman tices must keep weaver taylor or shoemaker shall retain and keep one journeyman, and One Journeyfor every other apprentice above the number of the said three apprentices one other journeyman, upon pain for every default therein ten pounds.

man.

of Worstedmakers in Nor

XXXIV. Provided always, That this Act nor any thing therein con- A Proviso for tained shall not extend to prejudice or hinder any liberties heretofore the Liberties granted by an Act of Parliament, to or for the company and occupation of worsted-makers and worsted-weavers within the city of Norwich and wich and Norelsewhere within the county of Norfolk, which liberties be in force until folk. 14 & 15 the beginning of this present Parliament; any thing herein contained to H. 8. c. 3. the contrary in any wise nowithstanding.

The Punish

XXXV. And be it further enacted, That if any person shall be required rent of him by any householder having and using half a plough-land at the least in that refuseth tillage to be an apprentice and to serve in husbandry or in any other kind to be an Apof art mystery or science before expressed and shall refuse so to do, That prentice.

(4) Quaere, Whether a person not having served as Apprentice to the trade of a Miller, who embarked his capital in a mill, which he superintends, and derives the profits of it, through the agency of a Foreman suitably qualified, to whom he gave directions as to the order in which the

Corn of the several Customers should be ground, but no otherwise interfered in the management, and never engaged in the manual exercise of the trade, be liable to the Penalty given by the stat 5 Eliz. c. 4. § 31. Kean v. Dormay, 15 E. R. 161.

No. I.

5 Eliz. c. 4.

tice which is

misused by his Master, and for

if

then upon the complaint of such housekeeper made to one justice of the peace of the county wherein the said refusal is or shall be made, or of such householder inhabiting in any city town corporate or market town, to the mayor bailiffs or head officer of the said city town corporate or market town if any such refusal shall there be, they shall have full power and authority by virtue hereof to send for the same person so refusing: And if the said justice or the said mayor or head officer shall think the said person meet and convenient to serve as an apprentice in that art labour science or mystery wherein he shall be so then required to serve: That then the said justice or the said mayor or head officer shall have power and authority by virtue hereof, if the said person refuse to be bound as an apprentice, to commit him unto ward, there to remain until he be contented and will be bounden to serve as an apprentice should serve according to the true intent and meaning of this present Act. And The Remedy any such (5) master shall misuse or evil entreat (6) his apprentice, or for the Appren- that the said apprentice shall have any just cause to complain or the apprentice do not his duty to his master, (7) then the said master or ap prentice being grieved and having cause to complain, shall repair unto one justice of peace within the said county or to the mayor or other head officer of the city town corporate market town or other place where the said master dwelleth, who shall by his wisdom and discretion take such order and direction between the said master and his apprentice as the equity of the cause shall require; and if for want of good conformity in the said master, the said justice of peace or the said mayor or other head officer cannot compound and agree the matter between him and his apprentice, then the said justice or the said mayor or other head officer shall take bond of the said master to appear at the next sessions (8) then to be holden in the said county or within the said city town corporate or market town, to be before the justices of the said county or the mayor or head officer of the said town corporate or market town if the said master dwell (9) within any such; and upon his appearance (10) and hearing of the matter before the said justices or the said mayor or other head officer, Where an Ap- if it be thought meet unto them to discharge (11) the said apprentice of prentice may be his apprenticehood, that then the said justices or four of them at the least discharged of whereof one to be of the quorum; or the said mayor or other head officer his Apprentice- with the assent of three other of his brethren or men of best reputation within the said city town corporate or market town shall have power by R. v. Collingbourne, Str. 663.

the Master

when the Apprentice doth not his Duty.

1 Mod. 287.

1 Salk. 67. 68.

2 Salk. 490.491.

hood.

(5) This was held in R. v. Gately, 2 Salk. 471. to relate only to the occupations mentioned in the Act; but was afterwards, in Rex v. Collingbourne, 2 Ld. Raym. 1410. 1 Str. 663. ruled to be gene. neral.

(6) This extends to neglect of instruction. R. v. Amies, 1 Bott. 574.-A discharge for using unkindly is too loose. R. v. Easman, 2 Str. 1014.

(7) Incurable sickness (viz. the King's Evil) in the apprentice held no ground of discharge. R. v. Inhabitants of Hales Owen, 1 Str. 99. [But Qu. How could this question arise with the inhabitants of a parish ?] A discharge of an apprentice, as being an ideot incapable of learning his trade, had been previously held good. Anon.

Skin. 114.

(8) The Sessions have original jurisdiction, without previous application to a Justice of Peace. R. v. Johnson, I Salk. 68.-R. v. Gill, 1 Str. 143. —R. v. Davis, 2 Str. 704.-R. v. Easman, Temp. Hard. 101. But it must be a General Sessions. 2 Skin. 98.

(9) The Sessions of Middlesex have jurisdiction, when the Master, being a Freeman of London, dwells there, although the indentures are inrolled in London, notwithstanding the saving of the privileges of the City of London, by Sec. 40.

(10) The order is good although the Master do not appear, being bound over to do so. Ditton's Case, 2 Salk. 490.-But the order must set forth that the party appeared or was summoned. R. v. Gill, 1 Str. 143. R. v. Easman, 2 Str. 1013.

(11) In Hawkesworth and Hillary's case, 1 Saund. 314. the Order directed part of the premium to be returned; but the right of doing so does not appear to have been brought before the Court. In Du Hamel's case, 2 Skin. 108. the Court held that the power to order money to be returned was incident to the power to discharge. So Rex v. Johnson, Salk. 67.-In R. v. Vandeleer, M. 4. Geo. I. Str. 69. the Order was to return the Premium, and also to pay 5. as a further provision. The Court said, that it was very hard that if the master misuse his apprentice he should pay nothing back if he is discharged, but the Statute being silent, the Order must be quashed. In Rex v. Amies, H. 6 Geo. II. 1 Bott. 574. Pl. 806. 2 Barn. K. B, 244. 296. Sess. W. 190, an opinion is expressed in favour of the power, by Probyn. I.; but the Order having been set aside on other grounds, this is merely a dictum, and the case of R. v. Vandeleer, against the power, is the latest actual authority upon the subject.

No. I.

authority hereof in writing under their hands and seals (12) to pronounce and declare, That they have discharged the said apprentice of his appren- 5 Eliz. c. 4. ticehood and the cause thereof; and the said writing so being made and enrolled by the clerk of the peace or town clerk amongst the records that he keepeth, shall be a sufficient discharge for the said apprentice against his master his executors and administrators; the indenture of the said apprenticehood or any law or custom to the contrary notwithstanding. And if the default shall be found to be in the apprentice, then the said justices or the said mayor or other head officer with the assistance aforesaid shall cause such due correction and punishment to be ministred unto him as by their wisdom and discretions shall be thought meet.

XXXVI. Provided always, and be it enacted by authority of this present None shall be Parliament, That no person shall by force or colour of this estatute be bound to be bounden to enter into any apprenticeship other than such as be under Apprentices but the age of twenty-one years. those which be under xxi years of age.

due Execution

XXXVII. And to the end that this estatute may from time to time be Assembly of carefully and diligently put in good execution according to the tenor and the Justices true meaning thereof, be it enacted by authority of this present Parliament, twice in the That the justices of peace of every county dividing themselves into several year for the limits, and likewise every mayor and head officer of any city or town corporate shall yearly between the Feast of St. Michael the Archangel and the of this Statute. Nativity of our Lord, and between the Feast of the Annunciation of our Dyer 265. Pl.3, Lady and the Nativity of St. John Baptist, by all such ways and means as to their wisdoms shall be thought most meet, make a special and diligent inquiry of the branches and articles of this estatute, and of the good execution of the same; and where they shall find any defaults to see the same severely corrected and punished without favour affection malice or displeasure.

XXXVIII. And in consideration of the pains and travel that the said The Justices' justices of peace and the said mayor and head officer shall take and sus- Allowance for tain in and about the execution of this estatute, it is further ordained their Pains. and enacted by authority of this present Parliament, That every justice of peace mayor or head officer for every day that he shall sit in about the execution of this estatute shall have allowed unto him five shillings, to be allowed and paid unto him or unto the said mayor or head officer, of the fines and forfeitures of the pains and penalties that shall be forfeited and due unto the Queen's Majesty her heirs and successors by force of this estatute, in such manner and form as the said justices have been heretofore commonly paid for their coming and charges at the quarter sessions; so that the sitting of the said justices or mayor or head officer be not at any one time above three days, and for the matters contained in this estatute.

XXXIX. And be it enacted by the authority aforesaid, That the one Who shall have half of all forfeitures and penalties expressed and mentioned in this esta- the Forfeitures tute, other than such as are expressly otherwise appointed, shall be to mentioned in our Sovereign Lady the Queen's Majesty her heirs and successors, and this Statute. the other moiety to him or them that shall sue for the same in any of the Moor 886. Queen's Majesty's courts of record, or before any of the justices of Oyer 1 Cro. 499. and Terminer, or before any other justices or president and council before remembered by action of debt information bill of complaint or otherwise; in which actions or suits, no protections wager of law or essoin shall be allowed; and that the said justices, or two of them, whereof Justices of one to be of the quorum, and the said presidents and council as is afore- Peace, Mayor, said, and the said mayors or other head officers of cities or towns corpo- &c. may hear rate shall have full power and authority to hear and determine all and and determine every offence and offences that shall be committed or done against this all Offences estatute or against any (branch thereof, as well upon indictment to be committed taken before them in the sessions of the peace, as upon information ac- against this Sta tute 31 El. c.5. 1 Salk. 370. 2 Ld. Raym. 767. 6 Mod. 220.

(12) It is a fatal defect if the order do not appear to be under hand and seal. Hawksworth and Hillary's case, 1 Saund. 314.—R. v. Gately,

Carth. 198. Comb. 344. (by the name of Gately v. Green) Anon. 2 Salk. 470.

No. I. tion of debt or bill of complaint to be sued or exhibited by any person; and shall and may by virtue hereof make process against the defendant 5 Eliz. c. 4. and award execution, as in any other case they lawfully may by any the

A Proviso for
the Cities of
London and
Norwich.

The Forfeiture of him that

taketh a Pren

laws and statutes of this realm; and shall yearly in Michaelmas Term certify by estreat the fines and forfeitures of every the offences contained in this estatute that shall be found before them into the Court of Exchequer, in like sort and form as they be bound to certify the estreats for other offences and forfeitures to be lost before them; any thing in this statute contained to the contrary notwithstanding,

XL. Provided always, That this Act or any thing therein contained or mentioned shall not be prejudicial or hurtful to the cities of London and Norwich, or to the lawful liberties usages customs or privileges of the same cities, for or concerning the having or taking of any apprentice or apprentices; but that the citizens and freemen of the same cities shall and may take have and retain apprentices there, in such manner and form as they might lawfully have done before the making of this statute; this Act or any thing therein contained to the contrary in any wise notwithstanding.

XLI. And be it also further enacted, That all indentures covenants promises and bargains of or for the having taking or keeping of any apprentice, otherwise hereafter to be made or taken than is by this statute than is limited limited ordained and appointed, shall be clearly void in the law to all inby this Statute. tents and purposes; (13) and that every person that shall from hence

tice otherwise

(13) It is fully settled that these words shall not be construed to render the Indenture of Apprenticeship absolutely void, and that it is only voidable; although a different construction is put upon the same words in Statutes 8 Ann, c. 9, 9 Ann, c. 21. imposing a duty on Premiums of Apprenticeship; as to which, see Jackson v. Warwick, 7 T. R. 121. The principle that Indentures not conformable to the Statute are only voidable, was first applied to Cases of Settlement; but in Rex. v. Evered, Cald. 26. cited 16 East. 2711, it was held that a person who, when an infant, had been bound an apprentice for six years, and, when of age, had run away, (alleging afterwards that he did so with intent to avoid the indentures) was subject to punishment. Aston I. said, “Supposing the Indentures voidable, I cannot conceive that the Apprentice's running away could avoid them; had he served regularly, and during such service declared his intention to depart, it might have been different: here he would make use of his offence in order to avoid the punishment that attends it; but it is too late to do it before a Justice when charged with a crime." And this case was admitted as authority in Gray v. Cookson, 16 East. 13. In Rex v. Windingham, 6 T. R. 557, (a settlement case,) an infant, bound for less than seven years with his master's consent, entered into the King's service; and this was held not to be such an avoidance of the Indenture as to enable him to acquire a settlement by service during the term. Lord Kenyon, after expressing his opinion that the Indenture had not been put an end to, added, "But I desire it may not be taken for granted, that an infant who binds himself apprentice, a contract so notoriously for his own benefit, may put an end to that contract at any time during his minority. I enter my protest against discussing that question now; it will be sufficient to determine it when it necessarily arises." And in Ashcroft v. Bertles, 6 T. R. 652, it was ruled, that an action lies for harbouring an

apprentice bound for six years, who left his master's service after attaining the age of 21, and the Court said, that, supposing the Indentures to be void, which they were not prepared to decide, the mere act of quitting the master's service was not an avoidance of them. See note to Section 43, infra.-It is very difficult to conceive how such strong words as those in the Statute respecting contracts being clearly void, could be reconciled to the doctrine, that such contracts were in any respect avoidable; or how the decisions in support of the validity of such contracts can be reconciled with numerous decisions respecting other subjects; or the same subject, as regulated by a different Act, in which similar words have received a construction according to their full and literal signification. Still less is the construction which has prevailed to be reconciled with the general scope and object of the Statute, in subjecting almost every occupation to minute, however injudicious, regulation. Neither can it be conceived, upon what legal principle words, which are so strong and positive in themselves, should not only be reduced in their construction below their matural and ordinary signification, but should be held to be so absolutely nugatory and inefficient as to admit of no possible operation, even with respect to the most solemn and formal avoidance of an instrument, which the law has declared to be absolutely void.-As to the supposition of a contract of apprenticeship being so notoriously for the benefit of the infant, it is a supposition which, when taken generally and indiscriminately, is absolutely and notoriously false; as the actual benefit must depend upon a great many adventitious circumstances, with respect to the kind of occupation, the variations in the course of trade, the skill, the character, and the disposition, of the respective parties. But of all the difficulties incident to the subject, the greatest will be, to reconcile the de-` cision in Ashcroft v. Bertles, to that in the case ex parte Davies, mentioned in the following Note.