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acquired to the perpetual service of John or Thomas, this will

remain exactly in the same state as before: for this is no [ *425 ] more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term (4). Hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse. The law of England acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection to a Jew, a Turk, or a Heathen, as well as to those who profess the true religion of Christ; and it will not dissolve a civil obligation between master and servant, on account of the alteration of faith in either of the parties: but the slave is entitled to the same protection in England before, as after, baptism; and, whatever service the heathen negro owed of right to his American master, by general not by local law, the same (whatever it be) is he bound to render when brought to England and made a Christian (5).

(4) The meaning of this sentence is not very intelligible. If a right to perpetual service can be acquired lawfully at all, it must be acquired by a contract with one who is free, who is sui juris, and competent to contract. Such a hiring may not perhaps be illegal and void. If a man can contract to serve for one year, there seems to be no reason to prevent his contracting to serve for 100 years, if he should so long live though, in general, the courts would be inclined to consider it an improvident engagement, and would not be very strict in enforcing it. But there could be no doubt, but such a contract with a person in a state of slavery, would be absolutely null and void.-CH.

(5) We might have been surprised that the learned commentator should condescend to treat this ridiculous notion and practice with so much seriousness, if we were not apprized, that the court of Common Pleas, so late as the

VOL. I.

5 W. & M. held, that a man might
have a property in a negro boy, and
might bring an action of trover for
him, because negroes are heathens. (1
Ld. Raym. 147). A strange principle
to found a right of property upon!

But it was decided in 1772, in the
celebrated case of James Somersett,
that a heathen negro, when brought to
England, owes no service to an Ame-
rican or any other master. James So-
mersett had been made a slave in Afri-
ca, and was sold there; from thence
he was carried to Virginia, where he
was bought, and brought by his master
to England; here he ran away from
his master, who seized him and carried
him on board a ship, where he was
confined, in order to be sent to Ja-
maica to be sold as a slave. Whilst
he was thus confined, Lord Mansfield
granted a habeas corpus, ordering the
captain of the ship to bring up the
body of James Somersett, with the
cause of his detainer. The above-

NN

Menial servants.

Of the contract of hiring.

1. The first sort of servants, therefore, acknowledged by the laws of England, are menial servants; so called from being intra mania, or domestics. The contract between them and their masters arises upon the hiring. If the hiring be general, without any particular time limited, the law construes it to be a hiring for a year (ƒ); upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons, as well when there is work to be done, as when there is not (g)(6), but the contract may be made for any larger or smaller term. All single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service in husbandry or certain specific trades, for the promotion of honest industry; and no master can put away his servant, or servant leave his

(f) Co. Lit. 42.

mentioned circumstances being stated
upon the return to the writ, after much
learned discussion in the court of King's
Bench, the court were unanimously of
opinion, that the return was insufficient,
and that Somersett ought to be dis-
charged. (See Mr. Hargrave's learned
argument for the negro in 11 St. Tr.
340; and the case reported in Lofft's
Reports, 1. In consequence of this de-
cision, if a ship loaden with slaves was
obliged to put into an English harbour,
all the slaves on board might and ought
to be set at liberty. Though there are
acts of parliament which recognise and
regulate the slavery of negroes, yet it
exists not in the contemplation of the
common law; and the reason that they
are not declared free before they reach
an English harbour, is only because
their complaints cannot sooner be heard
and redressed by the process of an
English court of justice.

Liberty, by the English law, depends
not upon the complexion; and what
was said even in the time of Queen
Elizabeth, is now substantially true,

(g) F. N. B. 168.

that the air of England is too pure for a slave to breathe in. (2 Rushw. 468). -CH.

(6) This principle can only apply to farming servants or labourers out of doors; not to domestic servants, with respect to whom the custom is, that they shall be entitled to a month's warning, or to a month's wages, if they are discharged without a cause; and this custom seems to be confirmed by judicial decisions. See Beeston v. Collyer, (2 Car. & Pul. 608). Of course the rights of masters to a due warning must be of a corresponding extent; and no master can be compelled to keep on a servant who refuses to obey his lawful orders, but may discharge him, whether he be an agricultural or a domestic servant, without warning, and certainly without payment of wages beyond the period of such discharge: it even appears, from a decision of Lord Ellenborough, that a servant who had so misconducted himself could not recover any wages. (Spain v. Abbott, 2 Starkie, 256).

master, after being so retained, either before or at the end of

his term, without a quarter's warning; unless upon reason [#426 ] able cause, to be allowed by a justice of the peace (h) (7): but they may part by consent, or make a special bargain.

2. Another species of servants are called apprentices, (from 2. Apprentices. apprendre, to learn), and are usually bound for a term of years, by deed indented, or indentures, to serve their masters, and be maintained and instructed by them. This is usually done to persons of trade, in order to learn their art and mystery; and sometimes very large sums are given with them, as a premium for such their instruction: but it may be done to husbandmen, nay to gentlemen, and others. And (i) children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty-one years of age, to such persons as are thought fitting (8), who are also compellable to take them; and it is held that gentlemen of fortune, and clergymen, are equally liable with others to such compulsion (k); for which purposes our statutes have made the indentures obligatory, even though such parish-apprentice be a minor (1). Apprentices to trades may be discharged on reasonable cause, either at the request of themselves, or masters, at the quarter-sessions, or by one justice, with appeal to

(h) Stat. 5 Eliz. c. 4.

(i) Stat. 5 Eliz. c.4; 43 Eliz. c. 2 ; 1 Jac. I. c. 25; 7 Jac. I. c. 3; 8 & 9 W. & M. c. 30; 2 & 3 Ann. c. 6; 4 Ann.

c. 19; 17 Geo. II. c. 5; 18 Geo. III. c. 47.
(k) Salk. 57, 491.

(2) Stat. 5 Eliz. c. 4; 43 Eliz. c. 2 ;
Cro. Car. 179.

(7) The statute of 5 Eliz. c. 4, has been in part repealed by the acts of 53 Geo. III. c. 40, and 54 Geo. III. c. 96; and there are other portions of the older statute which, though not formally repealed, have become obsolete. The modern acts on the subject of wages and apprenticeships are 20 Geo. II. c. 19, 1 Geo. IV. c. 93, 4 Geo. IV. cc. 29 & 34, 1 & 2 Gul. IV. cc. 36 & 37; and as to apprentices in the sea service, 5 & 6 Gul. IV. c. 19, ss. 2639.

(8) See post, p. 451. By the recent poor law bill, stat. 4 & 5 Gul. IV. c. 76, s. 15, the commissioners under that act are empowered to make rules

and regulations for the administration
of the laws for the apprenticing the
children of poor persons; and by the
71st section of the said act, the jus-
tices who give their assent to the ap-
prenticeship of pauper children are
required to ascertain whether the rules,
orders, and regulations of the said com-
missioners, then in force, for the bind-
ing of poor children apprentices have
been complied with, and to certify the
same at the foot of the indenture, in
such form as the commissioners may
direct with a proviso, reserving the
jurisdiction of justices of the peace over
any master or apprentice during the
period of apprenticeship.

3. Labourers.

the sessions (m), who may, by the equity of the statute, if they think it reasonable, direct restitution of a rateable share of the money given with the apprentice (n): and parishapprentices may be discharged in the same manner, by two justices (o). But if an apprentice, with whom less than ten pounds hath been given, runs away from his master, he is compellable to serve out his time of absence, or make satisfaction for the same, at any time within seven years after the expiration of his original contract (p).

3. A third species of servants are labourers, who are only hired by the day or the week, and do not live intra mœnia, as [ *427] *part of the family; concerning whom the statutes before

4. Stewards, factors, and bailiffs.

II Of the manner in which the

relation of service

affects either

cited (q) have made many very good regulations: 1, Directing that all persons who have no visible effects may be compelled to work. 2, Defining how long they must continue at work in summer and in winter. 3, Punishing such as leave or desert. their work. 4, Empowering the justices at sessions, or the sheriff of the county, to settle their wages (9); and, 5, Inflicting penalties on such as either give, or exact, more wages than are so settled.

4. There is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as stewards, factors, and bailiffs: whom, however, the law considers as servants pro tempore, with regard to such of their acts as affect their master's or employer's property. Which leads me to consider:

II. The manner in which this relation of service affects either the master or servant. And, first, by hiring and service master or servant. for a year, or apprenticeship under indentures, a person gains a settlement in that parish wherein he last served forty days (r) (10). In the next place, persons serving seven years as apprentices to any trade, have an exclusive right to exer

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OF MASTER AND SERVANT.

cise that trade in any part of England (s). This law, with regard to the exclusive part of it, has by turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times; which has occasioned a great variety of resolutions in the courts of law concerning it; and attempts have been frequently made for its repeal, though hitherto without success (11). At common law every man might use what trade he pleased; but this statute restrains that liberty to such as have served as apprentices; the adversaries to which provision say, that all restrictions, which tend to introduce monopolies, are pernicious to trade: the advocates for it allege, that unskilfulness in trade is equally detrimental to the public as monopolies. This reason indeed only extends to such trades, in the exercise whereof skill is re- [ 428 ] quired. But another of their arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by employing of youth, and learning them to be early industrious; but that no one would be induced to undergo a seven years' servitude, if others, though equally skilful, were allowed the same advantages without having undergone the same discipline: and in this there seems to be much reason. However, the resolutions of the courts have in general rather confined than extended the restriction. No trades are held to be within the statute but such as were in being at the making of it (t): for trading in a country village, apprenticeships are not requisite (u): and following the trade seven years without any effectual prosecution, either as a master or a servant, is sufficient without an actual apprenticeship (w).

A master may by law correct his apprentice for negligence or other misbehaviour, so it be done with moderation (x): though, if the master or master's wife beats any other servant of full age, it is good cause of departure (y) (12). But if any

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