[N]ot only is the contract of employment a more recent innovation than many have thought, but….its essential features owe as much to legislation as they do to the common law of contract. The widely-held belief that there was a coherent account of the employment relationship in private law prior to the growth of the social legislation of the welfare state is false, the result of viewing case-law of the eighteenth and nineteenth century through the lens of a later period.

From the standpoint of the 21st century, we look back at the history of work and see it in our own terms. But, although the feudal system disappeared relatively early in English history, the idea that workers were tied to a particular place and a particular lord was a long time dying. Where we think of employers and employees, our forebears thought of masters and servants. Nowadays, we use the word servant to refer to household staff but, until recently, it was a general term for a worker. It was still in common use in the late 19th century. The trade union in the famous Taff Vale case of 1901 was the Amalgamated Society of Railway Servants, which, nowadays, strikes us as a slightly odd name for a union,

From the 16th century until 1875, employment was government my Master and Servant laws dating from the Elizabethan Statute of Artificers but reinforced during the eighteenth and nineteenth centuries by further legislation. As Deakin notes, the original laws contained some degree of protection for workers but this was eroded by the subsequent legislation which, at the same time, increased the penalties for servants.

The important thing to understand about master and servant law, though, is that workers were subject to criminal sanctions for breaches of their contracts while masters were only subject to the civil law. You don’t need to think about that for too long to see the lop sidedness of it. Workers of limited means had to pursue employers through the courts, while employers had the entire law enforcement apparatus of the state at their disposal. As if that wasn’t enough, as Paul Johnson notes:

A master sued by a worker could be a witness in his own defence, but until 1867 a worker prosecuted by an employer could not give any evidence on his own behalf.

Hardly free and equal parties to a contract then. The deck was very much stacked against the employee.

The penalties for breach of contract were harsh. Imprisonment with hard labour, fines and even, on occasion, beatings. Criminal prosecutions under master and servant laws were common, says Johnson, averaging about 10,000 a year in the mid-nineteenth century. These were concentrated among the working classes in the industrial districts, so:

The annual chance of a working-class household suffering criminal prosecution for breach of labour contract lay between 1 in 150 and 1 in 200 – a sufficiently high rate for knowledge of the risk to be well known within working class communities.