Contents of labour law

This context is markedly different from that of other European countries. In the English countryside wage regulation does not appear until the mid-fourteenth-century. English harvest bylaws from the thirteenth century already contain indications about the remuneration of harvest workers, but these bylaws cannot be equated to early forms of wage control because they do not set maximum wages. Importantly, the Ordinance of June 1349 did not introduce wage uniformity throughout the territory, as it instructed only that wages should be reduced to their pre-Black Death level. After 1388 England predominantly switched to a policy of national wage rates, but with the Statute of Artificers (1563) English wage policy reverted to the regional level:5 See Whittle in this volume. English magistrates set wages periodically taking into account the local demographic and economic context. As a result, maximum wages could differ substantially between regions in early modern England. The range of occupations and tasks targeted by these wage assessments was impressive and illustrates an ambition to subject large sections of the labouring population to wage control. In the early seventeenth century, for example, English wage assessments regulated the remuneration of some sixty different occupations and tasks.6 Roberts, ‘Wages and Wage-Earners’, p. 107.

The same principles guided German wage assessments (called Lohntaxen). The Reichstagordnung of 1530 instructed local and regional authorities (or so-called Obrigkeiten) to actively police the workforce in their jurisdictions. An important part of this policing consisted of curtailing labour costs through the setting of maximum wages. These top-down instructions were reissued in 1548 and 1577 and would become one of the institutional backbones of early modern labour law in German territories.7 Weber, Die Reichspolizeiordnungen, p. 152, 159, 201 and 255. Wage assessments were also issued periodically by states and regions and adjusted wages to new demographic and economic realities. During the seventeenth century in particular local magistrates issued numerous Lohntaxen as a response to the labour shortages during and after the Thirty Years War. The many and frequent complaints of farmers about the excessive wages demanded by servants in particular resulted in intensive wage supervision and control during the first half of the seventeenth century.8 Shortages of servants are frequently recorded in mid-seventeenth-century German farmers’ diaries and memorandum books. See the examples in J. Peters, ‘Dahingeflossen ins Meer der Zeiten. Über frühmoderne Zeitverständnis der Bauern’, in R. Vierhaus (ed.), Frühe Neuzeit-Frühe Moderne? Forschungen zur Vielsichtigkeit von Übergangsprozessen (Göttingen, 2012), p. 187; B. von Krusenstjern, ‘Der teure Frieden. Aus den Aufzeichnungen eines hessichen Bauern nach dem Dreissigjährigen Krieg, 1648–1651’, Sozialwissenschaftliche Information, 28 (1999), 253. As in England, German wage legislation targeted both servants and day labourers and introduced maximum wages for a range of rural occupations and tasks.

In contrast to England and German territories, French magistrates were not required to assess the wages of rural labourers in any structural and permanent way. In the early seventeenth century employers from the region of Troyes petitioned for the periodic setting of maximum wages by local magistrates, as was the case in English counties, but these demands were ultimately not met.9 Y. Durand, Cahiers de doléances des paroisses du bailliage de Troyes pour les Etats Généraux de 1614 (Paris, 1966), p. 63. During the first decades of the eighteenth century there were numerous complaints about labour shortages in the countryside and the ‘excessive’ wages demanded by rural labourers, but these did not translate into a policy of maximum wages.10 M. Marion, ‘Un essai de politique sociale en 1724’, Revue Du Dix-Huitième Siècle, 1 (1913), 31–2; J. Meuvret, Le problème des subsistances à l’époque Louis XIV. La production des céréales dans la France du XVIIe et du XVIIIe siècle (Paris, 1977), pp. 180–1. Only when discord between labourers and farmers resulted in violence and social upheaval did regional and national authorities step in to regulate wages. For example, during the eighteenth century magistrates intervened in northern France to set the wages of itinerant harvest workers following repeated conflicts and tensions between local labourers and employers.11 J.-M. Moriceau, ‘Les “Baccanals” ou grèves de moissonneurs en pays de France (seconde moitié du XVIIIe siècle)’, in J. Nicolas (ed.), Mouvements populaires et conscience sociale, XVIe–XIXe siècles (Paris, 1985), pp. 421–34; J. Bernet, ‘Les grèves de moissonneurs ou “bacchanals” dans les campagnes d’Ile-de-France et de Picardie au XVIIIe siècle’, Histoire et Sociétés Rurales, 11 (1999), pp. 153–86. The only region where wage assessments were issued in a more or less systematic way was Alsace. This region had inherited a labour policy inspired by the German tradition of Lohntaxen and continued this practice after incorporation into France in 1648.12 G. Livet, L’intendance d’Alsace sous Louis XIV, 1648–1715 (Strasbourg, 1956), pp. 321–5. Only at the end of the eighteenth century was nationwide wage control introduced in France to deal with galloping inflation and labour shortages (as a result of conscription) in the early 1790s. Throughout France, all districts were required to introduce maximum wages that also targeted rural labourers and servants. This nationwide wage control, however, was the result of exceptional circumstances and remained in effect for only a short period. This pattern was also characteristic for the early modern Low Countries. Following instructions from the central government in 1588, regional magistrates were ordered to introduce maximum wages in their territories to halt wage inflation and dampen labour costs. Some rural districts took action and drafted ordinances containing maximum wages for servants and labourers, but this did not lead to structural or long-term government intervention in assessing wage rates.13 C. Verlinden, ‘Economic Fluctuations and Government Policy in the Netherlands in the Late XVIth Century’, Journal of European Economic History, 10 (1981), pp. 201–6.

With the exception of England and German states structural wage control in the long term was rare in Europe. To some extent this can probably be explained by the state of the labour market. In regions where labour was allocated through other systems than the market, there was no need to intervene. In northern Italy, for example, wage control was gradually abandoned in the course of the fifteenth and sixteenth centuries as sharecropping expanded. As most farms in northern Italy ran almost exclusively on family labour, there was simply no market for waged work. In many sharecropping contracts, waged work by sharecroppers was explicitly forbidden.14 See the examples in P. Jones, ‘From Manor to Mezzadria: a Tuscan Case-Study in the Medieval Origins of Modern Agrarian Society’, in N. Rubinstein (ed.), Florentine Studies: Politics and Society in Renaissance Florence (London, 1966), pp. 193–241; F. McArdle, Altopascio. A Study in Tuscan Rural Society (Cambridge, 1978), pp. 72, 111; J. Laurent, ‘Patterns of Agrarian Control in Fourteenth-Century Ferrara’, Peasant Studies, 9 (1982), 190. Landlords calibrated the size of the family group with farm size so there were no labour shortages or surpluses at the level of the holding. In such a context, wage control was simply redundant.15 R. J. Emigh, ‘Labor Use and Landlord Control: Sharecropping and Household Structure in Fifteenth-Century Tuscany’, Journal of Historical Sociology, 11 (1998), 37–73. The absence of wage control cannot only be explained by the relative weakness of competitive labour markets, however. Regions that were highly dependent on wage labour were also characterised by the absence of market interventions. For example, in the Low Countries the coastal regions opposed wage control. The coastal provinces relied heavily on seasonal migrant workers that were recruited from more distant inland regions.16 J. Lucassen, Migrant Labour in Europe, 1600–1900 (London, 1987), pp. 131–70. Traditionally, these regions attracted workers by offering high wages to meet peak labour demands. Employers in the coastal regions opposed the introduction of maximum wages in the Low Countries because it would harm their economic interests.17 Verlinden and Craeybeckx, Prijzen- en lonenpolitiek, pp. 101–2. See also B. J. P. van Bavel, ‘Rural wage labour in the sixteenth-century Low Countries: an assessment of the importance and nature of wage labour in the countryside of Holland, Guelders and Flanders’, Continuity and Change, 21 (2006), 37–72. As in northern Italy, the specific dynamics of labour recruitment explain why the Low Countries did not resort to wage control.

Comparisons between the maximum wages prescribed by wage ordinances and actual wages paid to servants and labourers indicate that employers frequently paid wages in excess of what the statutes ordered. On the estates of the count of Hainaut, higher wages were paid than the maximum wages set by the ordinance from 1354.18 Sivery, Structures agraires, p. 430. Evidence for early modern England also shows that employers sometimes paid wages in excess of the official maximum national and regional rates.19 Tawney, ‘The Assessment’, p. 564; R. K. Kelsall, ‘Wage regulations under the Statutes of Artificers’, in W. Minchinton (ed.), Wage Regulation in Pre-Industrial England (Newton Abbot, 1972), pp. 116–17; A. Kussmaul, Servants in Husbanry in Early Modern England (Cambridge, 1981), p. 36; J. Whittle, ‘A Different Pattern of Employment: Servants in Rural England c.1500–1660’, in Whittle (ed.), Servants in Rural Europe, pp. 71–3. Moreover, there were ample opportunities to circumvent official wage rates. Most wage ordinances focused on the cash wages only and were silent about any additional recompenses for labourers. These could take different forms, from food and drink to clothing allowances and crops. Indeed, as the Statute of Artificers stated, it was not unlikely that employers and workers concocted ‘secret ways and meanes’ to pay and receive wages above the official rates.20 Roberts, ‘Wages and Wage-Earners’, p. 225. In theory, there were opportunities to navigate official maximum wage rates through various payments in kind that raised the overall compensation of workers. However, infringements and evasion of statutory wages should not be taken as firm evidence for the failure of wage assessments. To the extent that wage control managed to slow down and dampen wage inflation and rising labour costs they can be labelled successful from the viewpoint of the legislator and employers.

In contrast to maximum wage clauses, legal provisions about breach of contract were not necessarily detrimental to the interests of those working for wages. On the contrary, contract clauses could offer both workers and employers legal protection. Clauses on breach of contract protected employers against premature departure by workers or non-execution of work. If this breach of contract resulted in economic or financial damage, the employer could sue for damages in court. Equally, such clauses could safeguard workers against non-compliance by employers. In the case of labourers and servants, premature dismissal could result in loss of income, unemployment and in some cases even temporary homelessness. In regions where a large part of the work was executed by free wage labourers and based on contractual agreements, contract clauses were probably instrumental to guarantee the smooth operation of the labour market. However, as we will illustrate below, contract clauses in European labour laws were frequently skewed towards the interests of the employers. Importantly, laws did not consider all forms of contract breach as problematic. In many regions marriage constituted a valid reason to end service prematurely.22 This was the case in the Low Countries and Germany. See Lambrecht, ‘The Institution’, p. 51 and Könnecke, Rechtsgeschichte, pp. 751–5. Also, unjust treatment by the employer (for example the withholding of food) or the ‘scandalous’ lifestyle of the employer justified the premature rupture of the contact by the worker. Employers could sometimes invoke insubordination, sickness and lack of skills to justify the premature dismissal of a worker.

The labour laws that emerged throughout Europe from the second half of the fourteenth century introduced two important and significant changes in how rural societies dealt with breach of contract. First, breach of contract was no longer treated exclusively as a private dispute. Employers and workers could still claim damages and compensation in court, but those who reneged on their contractual obligations were also exposed to public prosecution. The penalisation of breach of contract from the late medieval periods onwards is illustrative of the growing interventions of European legislators in labour relations. What was considered a private conflict before the labour shortages of the fourteenth century was thereafter increasingly treated as an offence that could undermine the ‘orderly’ operation of the labour market and which required state intervention. The penalisation of breach of contract, however, was far from uniform throughout Europe. In the early modern Low Countries, for example, breach of contract was in most regions actively discouraged through fines.23 J. W. Bosch, ‘Rechtshistorische aanteekeningen betreffende de overeenkomst tot het huren van dienstpersoneel’, Themis, 92 (1931), 405–9. In England and large parts of Germany sanctions for breach of contract included harsher punishment such as imprisonment.24 Könnecke, Rechtsgeschichte, p. 770. In these latter labour laws, breach of contract was most radically transformed from a private conflict to a criminal offence.

Second, the contract clauses of labour legislation also introduced an important asymmetry in labour relations. As examples throughout Europe amply illustrate, workers in particular were subject to punishment in the case of contract breach. The English late medieval and early modern labour statutes punished unlawful and premature departure of servants and labourers with imprisonment. In contrast, English employers who laid off their workers before the end of their term risked only a fine of forty shillings at most.25 J. Whittle, The Development of Agrarian Capitalism. Land and Labour in Norfolk 1440–1580 (Oxford, 2000), p. 280; Kelsall, ‘Wage Regulations’, p. 132. These distinct and deliberate inequalities between employers and workers in the punishment of contract breach are also encountered in other European countries. In many German regions, workers found guilty of contract breach not only forfeited their wages but could also be imprisoned or subjected to corporal punishment. In some regions workers – servants in particular – could also be temporarily excluded from the labour market when found guilty of contract breach. In this particular case, local magistrates could order employers not to hire workers that had been found guilty of contract breach. Employers, by contrast, did not suffer such harsh punishment for breach of contract in German law. In most cases they were ordered to pay full (or partial) wages, but did not suffer any additional corrective measures.26 Könnecke, Rechtsgeschichte, pp. 769–805, 814–32. The unequal position occupied by employers and workers with respect to the punishment of contract breach indicates that labour laws were designed with the interests of employers in mind. Regions where contract clauses tended to treat workers and employers on an equal footing – such as parts of the late medieval Low Countries – were exceptional.

In many European countries, therefore, rules and regulations concerning breach of contract actively discouraged workers from reneging on their contractual obligations and leaving employment in search for higher wages or better remuneration. The penalisation, and in some cases criminalisation, of such behaviour would probably have deterred workers from breaching their contract. The asymmetric character of the penalties, however, indicates that these regulations were far from neutral labour market instruments. On the contrary, the penalties for employers who breached contract were low. This privileged position allowed employers to dismiss workers without great costs or consequences. For workers, the implications of breach of contract were often far more substantial, both in absolute and relative terms. The level of asymmetry and inequality in clauses concerning breach of contract, therefore, can reveal in a very direct way whose interests legislators had in mind when drafting such legislation.

However, the absence of specific regulations concerning the breach of contract in labour laws does not mean that employers were powerless when confronted with servants and workers who left – or threatened to leave – employment before the end of their contractual term. In early modern France control over the unwanted mobility of workers was achieved through work certificates. From 1565, servants – both in town and countryside – were expected to carry written documentation detailing their employment history. The legislation was enacted to prevent servants and workers leaving employment before the end of the contract and without the consent of the employer. Only a written and signed declaration of the employer could release them from their contractual obligations. Servants and workers that could not produce such written details about their employment history could also not be hired by new employers. Importantly, servants who failed to produce such documentation were considered vagabonds and were subsequently punished under the harsh vagabond laws.27 J. P. Gutton, Domestiques et serviteurs dan la France de l’ancien regime (Paris, 1981), pp. 136–7 and Heller, Labour, p. 151. The national regulations concerning work and employment certificates were integrated in local and regional labour laws. See the wage ordinance of the provost of Paris from 1601 in A. Miron de l’Espinay, François Miron et l’administration municipale de Paris sous Henri IV (Paris, 1885), p. 355. The certificate system, therefore, was intended to empower employers and weaken the legal and economic position of workers.28 Rural elites were aware of the power the certificate system gave them to control the unwanted mobility of their workers. See Durand, Les cahiers, pp. 107, 144.

Whereas compulsion was largely restricted to harvest work and casual labour in late medieval and early modern France, compulsory work could take different forms in other parts of Europe. The labour laws of late medieval and early modern England most notably contain specific provisions on compulsory service. The labour statute of 1349 compelled unemployed and able-bodied individuals under the age of sixty to find employment as a servant. These measures were largely repeated in the Statute of Artificers of 1563. The Elizabethan statute enabled magistrates to compel single persons between the age of twelve and sixty to serve in agriculture. These measures targeted the poorer sections of the population in particular, as they excluded those with property and work in trades. Importantly, those who were compelled to serve were entitled to compensation for their work. Research shows that these clauses did not remain dead letter. In the direct aftermath of the Black Death and during the sixteenth and seventeenth centuries employers and magistrates actively used the law to coerce young unmarried people into service.34 Bennett, ‘Compulsory Service’; Whittle, Development of Agrarian Capitalism, pp. 280–1; Wales, ‘Living’, 19–39. In particular, during periods characterized by mortality crises and slow population growth magistrates activated the compulsory service clauses of the English labour laws. Once population growth accelerated in the eighteenth century compulsory service gradually disappeared from the rural elite’s portfolio of disciplinary measures. Instead, the rural elite threatened to withhold welfare payments to parents whose children were deemed fit to serve.35 Wales, ‘Living’, 33. Although the means differed, the effect was the same: children of poor and non-propertied parents in particular could still be coerced into service.

The English measures concerning compulsory service bear a number of similarities with the so-called Gesindezwangsdienst that characterised large parts of eastern Europe.36 See, for example, W. Hagen, Ordinary Prussians. Brandenburg Junkers and Villagers, 1500–1840 (Cambridge, 2002), pp. 399–408. However, in contrast to Eastern Europe, early modern English labour laws were not designed within the context of a demesne economy but to meet the labour demands of farmers. This pattern is comparable to some parts of the Low Countries. Here, too, young people from humble backgrounds could be compelled to serve from the middle of the sixteenth century onwards.37 Lambrecht, ‘The Institution’, pp. 52–3. With the exception of Scandinavia, coercive measures elaborated through labour laws were scarce in other parts of early modern Europe. This does not mean that employers and rural elites lacked the instruments to compel young people in service. Throughout the German territories there was an obligation to serve included in the poor and vagrancy laws. Moreover, young people could be pressured into service through targeted fiscal strategies. Young people living outside service were liable to either weekly or monthly taxes that substantially reduced their net earnings. German servant ordinances were quite explicit about the aims of such taxes: fiscal pressure was exerted to discourage young people from living on their own and to ultimately force them into service.38 See the examples in Simon, Die Tagelöhner und ihr Recht, pp. 131–2; R. Dürr, ‘Der Dienstbothe ist kein Tagelöhner. Zum Gesinderecht, 16 bis 19 Jahrhundert’, in U. Gerard (ed.), Frauen in der Geschichte des Rechts: von der frühen Neuzeit bis zur Gegenwart (Munich, 1997), p. 127.

Whereas compulsory service in England waned after c.1700, coercive measures were still a signature mark of labour legislation in Scandinavian countries until the early nineteenth century.39 See the detailed and extensive discussion of compulsory service in Østhus, Uppenberg, Johnsson and Vilhelmsson in this volume. Although compulsory service has its origins in earlier periods, coercion became the preferred instrument of a number of Scandinavian regions between the seventeenth and nineteenth centuries. In Sweden and Finland, for example, servant ordinances from 1686, 1723 and 1739 contained measures that pressured young people into service. Young able-bodied men, for example, could be prosecuted and punished as vagrants if they did not enter service. Young able-bodied women outside service risked imprisonment if they failed to produce evidence that they were actively searching for employment as a servant. In Iceland, Norway and Denmark, too, young unmarried people were equally targeted by the law when they were living outside service and authorities resorted to various legal and penal measures to bring these adolescents under the control and authority of a head of a household. The primary motives to resort to compulsory service varied regionally. In some cases, these were designed to deal with structural labour shortages in the countryside resulting from rural–urban migration and international emigration. In other regions compulsory service was viewed as an instrument to ensure an adequate distribution of surplus family labour throughout the sparsely populated territories. As this section indicates, compulsory service and coercion in labour relations were not unfamiliar to western and northern European labour regimes. These examples from England, France, Germany, the Low Countries and Scandinavia challenge the traditional narrative on agrarian dualism in pre-industrial Europe. Both east and west of the river Elbe rural elites resorted to formal and informal coercion of labour.

As the previous sections have illustrated, many European regions resorted to some form of legal control over the lives of rural workers in pre-industrial times. Our overview has shown that there were actually few regions in Europe where elites and employers could not resort to labour, poor or vagrancy laws to bring labour under their control. Indeed, the absence of formal legal measures to control, discipline or coerce rural workers seems to be the anomaly. Labour, poor and vagrancy laws were part of the standard institutional toolkit of elites and employers throughout pre-industrial Europe and were also interlocked. These tools allowed elites to control and dominate a subservient workforce.40 As one historian observed: ‘it was the laws against vagrancy which gave much of the labour legislation its teeth’. C. Given-Wilson, ‘The Problem of Labour in the Context of English Government, c. 1350–1450’, in J. Bothwell, P. J. P. Goldberg and M. W. Ormrod (eds), The Problem of Labour in Fourteenth-Century England (York, 2000), p. 88. However, although legal labour regimes throughout Europe contained similar ingredients, their specific configuration and dynamics were always shaped by existing political, social, economic, demographic and agrarian structures.41 See also Lis and Soly, ‘Labor Laws’, pp. 319–21. There were significant national, regional and local differences in the solutions and responses to the – real or perceived – problems of labour shortages, excessive wage demands, unwanted mobility or work refusal of the rural workforce. Labour laws throughout Europe targeted different categories of workers, but in most cases, young, unmarried and unpropertied individuals were singled out as preferred targets of disciplinary actions.42 With particular reference to German labour laws see Keiser, ‘Between Status and Contract’, 44. Labour laws were also far from gender neutral. Although in theory they targeted both men and women, in practice unmarried women were disproportionately exposed to compulsory service, strict wage control and disciplinary action. Our overview has also shown that labour laws – in their design and enforcement – were not static but were characterised by dynamism in addressing the unwanted consequences of changing economic and social realities. Finally, although the existing historiography has certainly allowed us to identify a number of commonalities and differences in pre-industrial European labour laws and legal regimes, more research is required to expose and understand the actions and reactions of employers and workers to the ‘problem of labour’ in pre-industrial rural Europe.