The relationship between masters and their domestics, which we must speak of here as one that belongs to the family, is in no way the common contractual relationship between a person who demands services, and another who provides the same in return for payment (or compensation), and whose content is expressed by the formula: “do, ut facias,” or “facio, ut des;” rather, it sets itself apart from it especially through two unique and essential characteristics. For one, domestics are not only bound to their master by specified (or unspecified) jobs or tasks, like a common wage-laborer or provider of services, but at the same time they have committed themselves to obedience, which means they have assumed a subordinate position towards the master and have given part of their personhood to him. Such obedience or subordination is an indispensable necessity to maintain the order of the house, that is, undisturbed family life, and it is therefore a self-evident (meaning, if not an explicitly then an implicitly established) article of the contract in question. A further factor is that many domestics are still under age when they enter upon their service and, because they are now separated from their parents, by entering into service they fall, in a sense, under the fatherly (house-fatherly) power of their master. In a simple, natural state of affairs, such a relationship easily turns into a kind of society, in so far as the domestics have close contact with the master, may also receive, for example, part of the common family earnings instead of pay, or are incorporated into the family circle proper by marrying the daughters or sons of their masters. Their relationship to the head of the family is then very much like that of the grown children, though it cannot be defined in general, but depends on special – explicit or tacit – contractual stipulations, and also on the prevailing customs and habits (to which those who do not stipulate otherwise tacitly submit). In any case, even if some social rights are in fact granted to the domestics, they nevertheless remain – like the children – subject to the supreme patriarchal authority of the head of the family.
The second peculiarity of this relationship of servitude is that, precisely because of the duty of submission and also because of the cohabitation, it establishes a kind of material (i.e., material-personal) right of the master, combined with a real right of ownership; a right which, while it leaves untouched the personhood of the servant in all matters that are outside the sphere of the above-mentioned obligation, expresses itself within that sphere, and especially towards outsiders, as a right resembling property. For the master himself can force the domestics in his service to remain in his house for the duration of the contractually agreed-upon time, and by virtue of this right that is clearly evident to all, he excludes all others in the sense that as long as the mentioned relationship lasts, nobody may entice these domestics away or take them into service, or hinder them, in whatever way, from performing a service. If someone does so nevertheless, he has truly insulted the master, that is, he has violated his material right, and what he has done is legally invalid.
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Source: Carl von Rotteck and Carl Welcker, eds., Das Staats-Lexikon: Encyklopädie der sämmtlichen Staatswissenschaften für alle Stände [The National-Lexicon: Encyclopedia of the Political Sciences for People of all Stations], 2nd ed., rev. and enl. Altona: Verlag von Johann Friedrich Hammerich, 1845-48, vol. 4, pp. 592-95, 598-99, 601, 606.
Translation: Thomas Dunlap
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