subsisted only from year to year, and might therefore with less danger be subjected to discretionary government. But, whatever was apprehended at the first formation of the munity act, the regular renewal of our standing force at the entrance of every year has made this distinction idle. For, if from experience past we may judge of future events, the army is now lastingly ingrafted into the British constitution, with this singularly fortunate circumstance, that any branch of the legislature may annually put an end to its legal existence, by refusing to concur in its continuance.

3. With regard to the privileges conferred on sailors, they are pretty much the same with those conferred on soldiers; with regard to relief when maimed, or wounded, or superannuated, either by county rates, or the royal hospital at Greenwich; with regard also to the exercise of trades, and the power of making nuncupative testaments (14) and, farther, (a) no seaman aboard his majesty's ships can be arrested for any debt, unless the same be sworn to amount to at least twenty pounds; though, by the annual munity acts, a soldier may be arrested for a debt which extends to half that value, but not to a less amount.

CHAPTER XIV.

OF MASTER AND SERVANT.

HAVING thus commented on the rights and duties of persons, as standing in the public relations of magistrates and people, the method I have marked out now leads me to consider their rights and duties in private economical relations. The three great relations in private life are, 1. That of master and servant; which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him. 2. That of husband and wife; which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. 3. That of parent and child, which is consequential to that of marriage, being its principal end and design and it is by virtue of this relation that infants are protected, maintained, and educated. But, since the parents, on whom this care is primarily incumbent, may be snatched away by death before they have completed their duty, the law has therefore provided a fourth relation; 4. That of guardian and ward, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. Of all these relations in their order.

*In discussing the relation of master and servant, I shall, first, consider the several sorts of servants, and how this relation is created and [*423 ] destroyed; secondly, the effect of this relation with regard to the parties themselves; and lastly, its effect with regard to other persons.

I. As to the several sorts of servants: I have formerly observed (a) that pure and proper slavery does not, nay cannot, subsist in England: such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the princi

(14) See statutes 28 and 29 Vic. c. 73. The power to make nuncupative wills in the United States has been the subject of statutory regulation in the several states. Soldiers and sailors are allowed to make them, under restrictions imposed to guard against fraud, one of the chief of which respects the amount of property which may be thus disposed of.

ples of natural law, that such a state should subsist anywhere. (1) The three origins of the right of slavery, assigned by Justinian, (b) are all of them built. upon false foundations. (c) As, first, slavery is held to arise" jure gentium,” from a state of captivity in war; whence slaves are called mancipia, quasi manu capti. The conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that by the law of nature, or nations, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. Since therefore the right of making slaves by captivity depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said that slavery may begin "jure civili," when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very *just: but when applied to strict slavery [*424] in the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a quid pro quo, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which, in absolute slavery, are held to be in the master's disposal? His property also, the very price he seems to receive, devolves ipso facto to his master, the instant he becomes his slave. In this case therefore the buyer gives nothing, and the sellers receives nothing of what validity then can a sale be, which destroys the very principles upon which all sales are founded? Lastly, we are told, that besides these two ways by which slaves "fiunt," or are acquired, they may also be hereditary: "servi nascuntur;" the children of acquired slaves are jure naturæ, by a negative kind of birthright, slaves also. But this, being built on the two former rights must fall together with them. If

(b) Servi aut fiunt, aut nascuntur: fiunt jure gentium, aut jure civili; nascuntur ex ancillis nostris. Inst. 1, 3,4. (c)Montesq. Sp. L. xv. 2.

(1) This view of the learned commentator has finally become accepted in the laws of England and America. Slavery was entirely abolished throughout the British colonial possessions by an act of parliament which took effect on the first day of August, 1834.

When the constitution of the United States was adopted, slavery was tolerated by the local law almost everwhere. In Massachusetts, however, it had been abolished by the state constitution, and in the Northwest Territory, now comprising the states of Ohio, Indiana, Illinois, Michigan and Wisconsin, it was abolished by the congressional ordinance of 1787 for the government of that territory. Still, although the feeling against the institution of slavery found strong expression in some of the northern states where the number of slaves was few, the southern states supposed themselves strongly interested in maintaining it, and it became necessary to so frame the constitution as to leave this, like the rest of the domestic relations, to the regulation of the local law. The foreign slave trade, however, in the division of powers between the states and the nation, as a part of the foreign commerce of the country, would fall naturally under the control of congress. and one of the compromises of the constitution intended for the temporary protection of this traffic, was, that the migration or importation of such persons as any of the states then existing should think proper to admit, should not be prohibited prior to the year 1808. Const. art. 1, 9. This, however, did not prevent congress making it a penal offence for American citizens to engage in the foreign slave trade, and acts were passed to that end. In 1807 congress exercised the power permitted by the constitution, and made the importation of slaves, from and after January 1, 1808, highly penal. 2 Statutes at Large, 428. In 1820 the slave trade was made piracy. 3 Statutes at Large, 600. Still, with slavery existing and the domestic slave trade permitted in nearly half the Union, it is not surprising that it was found impossible to secure convictions for the capital offence under this fegislation, and the pecuniary profits were so much out of proportion to the risks, tha the slave trade continued until the breaking out of the American civil war. At the end of that war slavery was abolished throughout the United States by the thirteenth constitutional amendment, and congress was empowered to render the abolition effectual by adopting the necessary legislation to that end. And in the year 1871, Brazil followed this example by adopting a law for the gradual abolition of slavery.

neither captivity, nor the sale of one's self, can by the law of nature and reason reduce the parent to slavery, much less can they reduce the offspring.

Upon these principles the law of England abhors, and will not endure, the existence of slavery within this nation; so that when an attempt was made to introduce it, by statute 1 Edw. VI, c. 3, which ordained, that all idle vagabonds should be made slaves, and fed upon bread and water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards. (d) And now it is laid down, (e) that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, and his property. Yet, with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as *before; [*425] for this is no 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. (2) 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. (3)

(2) [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 one hundred 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.

It has however been decided, that a contract by a slave with a person to serve him, in consideration of his purchasing his freedom, is binding.]

(3) [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 apprised, that the court of common pleas, so late as the 5 W. and 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. Ray. 147. A strange principle to found a right of property upon!

But it was decided in 1772, in the celebrated case of James Sommersett, that a heathen negro, when brought to England, owes no service to an American or any other master. James Sommersett had been made a slave in Africa, 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 Jamaica to be sold as a slave. While he was thus confined, Lord Mansfield granted a habeas corpus, ordering the captain of the ship to bring up the body of James Sommersett, with the cause of his detainer. The above-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 Sommersett ought to be discharged. See Mr. Hargrave's learned argument for the negro in 11 St. Tr. 340; and the case reported in Lofft's Reports, 1.]

Upon the subject of slavery in general, the reader is referred to the elaborate treatise on the Law of Freedom and Bondage, by John Codman Hurd.

Since these commentaries were written, the civilized nations of Europe and America have made great exertions to put an end wholly to the exportation of slaves from Africa. The municipal laws of these nations now very generally make the traffic piracy, and there are treaties between them which are not only to the same effect, but they contain mutual stipulations designed to establish an efficient police on the African shores, with a view to detect

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; (f) 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) (4) but the contract may be made for any larger or smaller term. (5) 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

and punish any attempted violations of the penal laws on the subject. Their operations also extend into the interior of Africa, and seek through fear or interest to induce the native chieftains to abandon the trade in men, and the wars which are necessary to supply that trade. A very great advance has been made in that direction within a few years, and since the entire abolition of slavery in the United States, the slave trade has not only become less profitable, but it has also become exceedingly difficult to evade the vigilant watch which is kept upon the movements of suspected persons. Indeed, the traffic in slaves between Africa and America may be said to be substantially at an end, and the influences now at work promise very speedily to put an end altogether to the relation of slavery in all states professing the Christian religion.

(4) The distinction stated in the text between menial and other servants it is believed is not recognized in the common law of America, and there is no general presumption that a hiring with no particular time mentioned is a hiring for a year. Indeed in England the presumption is not one of law, but of fact: Baxter v. Nurse, 6 M. and G. 941; and it is therefore subject to be overcome by any thing in the terms of the contract indicating a different intent in the parties. See Bayley v. Rimmell, 1 M. and W. 506; Rex v. Christ Parish, 3 B. and C. 459. It does not apply to governesses: Todd v. Kerrich, 8 Exch. 151; nor to laborers in husbandry. See Nicoll v. Greaves, 17 C. B. N. S. 27. Nor does the English rule prevail here that such a servant discharged without cause is entitled to a month's notice or wages. Where the hiring is for a definite period, and the servant is discharged without cause before that period has expired, he is entitled, according to the weight of American authority, to wages for the whole period, provided he holds himself ready to perform the stipulated services if called upon; and the converse is equally true, that he forfeits all compensation under the contract if he abandons the service before the time is completed. Reab v. Moor, 19 Johns. 337; Marsh v. Rulesson, 1 Wend. 514; Costigan v. Mohawk and H. R. R. Co., 2 Denio, 609; Davis v. Maxwell, 12 Met. 286; Eldridge v. Rowe, 2 Gilm. 91; Cox v. Adams, 1 N. and McC. 284; Sherman v. Champlain Trans. Co., 31 Vt. 162; Miller v. Goddard, 34 Me. 102; Coe v. Smith, 1 Ind. 267; Hawkins v. Gilbert, 19 Ala. 54; Swanzey v. Moore, 22 Ill. 63; Rice v. Dwight Manuf. Co., 2 Cush. 80. A disposition has however been manifested of late to allow a party who has performed valuable services on an entire contract, of which the other party has received the benefit, to recover the value of such services, not exceeding the contract rate, deducting therefrom any damages which the other party has suffered from a breach of the contract. Britton v. Turner, 6 N. H. 481; Allen v. McKibben, 5 Mich. 449. And the courts which hold to the necessity of an entire performance before there can be any recovery, except from this principle the case of infants, who are allowed to recover the value of their services upon a quantum meruit: Judkins v. Walker, 17 Me. 38; Moses v. Stevens, 2 Pick. 332; Medbury v. Watrous, 7 Hill, 110; Thomas v. Dike, 11 Vt. 273; though some of the cases treat the contract as binding to the extent of holding the infant accountable for the failure in complete performance. Moses v. Stevens, 2 Pick. 332; Judkins v. Walker, 17 Me. 38; Contra, Whitmarsh v. Hall, 3 Denio, 375.

(5) So also either party may by the contract reserve the right to terminate it at his option; but if the right reserved is to put an end to it "if dissatisfied," it can only be exercised on this ground, and not for the purpose of engaging in some other business. Lantry v. Parks, 8 Cow. 63; Monell v. Burns, 4 Denio, 121.

What is reasonable cause for terminating an entire contract, must always depend upon the particular circumstances of each case. Rough words from the master are not: Marsh v. Rulesson, 1 Wend. 514; but abusive language from the servant has been held to be. Byrd v. Boyd, 4 McCord, 246. So any conduct affecting injuriously the employer's business. Lacy v. Osbaldiston, 8 C. and P. 80; Karney v. Holmes, 6 La. An. 373. Or, it would seem, any criminal offense. Libhart v. Wood, 1 W. and S. 265. Or any willful disobedience of a lawful order by the master. Spain v. Arnott, 2 Stark. 256; Amor v. Fearon, 9 A. and E. 548. And in one very hard case it was held that a female servant's absenting herself for the night against the command of the master, in order to visit a sick mother, justified her discharge. Turner v. Mason, 14 M. and W. 112.

husbandry or certain specific trades, for the promotion of honest industry, (6) and no master can put away his servant, or servant leave his master, after being so retained, either before or at the end of his term, without a quarter's warning; unless upon *reasonable cause, to be allowed by a justice of the peace, (h) but they may part by consent, or make a special bargain.

[*426] 2. Another species of servants are called apprentices, (from 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; 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 the sessions, (m) who may, by the equity of the statute, if they think it reasonable, direct restitution of a ratable share of the money given with the apprentice: (n) and parish-apprentices may be discharged in the same manner, by two justices. (0) 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) (7)

(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 and 9 W. and M. c. 30. 2 and 3 Ann. c. 6. 4 Ann. c. 19. 17 Geo. II, c. 5. 18 Geo. III, c. 47.

Apprentices enter into the enactments of numerous other statutes. The 32, c. 57; 53, c. 55; 42. cc. 46 and 73; 51, c. 80; 54, cc. 96 and 107; 56, c. 139; all G. III; and 1 and 2, c. 42; and 4, c. 31; statutes of his present majesty's reign. These, together with the cases, are amply abridged in Chetwynde's Burn's Justice. (k) Salk. 57, 491. (D) Stat. 5 Eliz. C. 4. 43 Eliz. c. 2. Cro. Čar. 179. (m) Stat. 5 Eliz. c. 4. (n) Salk. 67. (0) Stat. 20 Geo. II, c. 19. (p) Stat. 6 Geo. III, c. 26.

(6) The English law on this subject is now much changed. In the United States persons cannot be compelled to go out to service unless they become a public charge, nor is jurisdiction conferred upon justices to terminate the relation of master and servant.

(7) In the states of the American Union, apprenticeship is the subject of statutory regulation, and pains have been taken to make it accomplish its proper purpose in fitting the minor for some steady and suitable employment for life. Besides instruction in business, some opportunity to attend school is generally prescribed, and suitable clothing at the expiration of the period of service. The children of poor persons are not liable to be bound out to service, unless they have actually become a public charge; but if they have, the officers having charge of the support of the poor are permitted to bind them out under proper regulations. No person, however, is compellable to receive them as apprentices. In other cases minors are bound to service by consent of parents or guardians, and by an instrument in writing, which ought to specify some profession or trade which the minor is to be taught. It has been held, however, that such specification was not necessary, though in the absence of any such ruling we should have supposed the opposite doctrine the correct one. See Bowes v. Tibbets, 7 Greenl. 457; Fowler v. Hollenbeck, 9 Barb. 309; People v. Pillow, 1 Sand. S. C. 672. The master covenants with the apprentice to supply him with necessaries, and he must furnish him with proper medicine and attendance during sickness. Regina v. Smith, 8 C. and P. 153. The fegal relation between the parties is one resting upon personal trust and confidence, and the master cannot assign his interest in the articles to any third person without the consent of the minor and his proper guardian: Nickerson v. Howard, 19 Johns. 113; Tucker v. Magee, 18 Ala. 99; Haley v. Taylor. 3 Dana, 222; neither can he employ the apprentice in menial services not connected with the business he was to be taught: Commonwealth v. Hemperly, 12 Penn. St. 129; nor employ him in a business altogether different. Randall v. Rotch, 12 Pick. 108.

The parties to articles of apprenticeship are the minor on the one part and the master on the other; the father or other guardian signifying his assent thereto. The father, as such, has no power to bind his son an apprentice without his consent, and it is believed that the signing of the articles by the latter would not be sufficient unless by their terms he was a party to the deed. Matter of McDowle, 8 Johns. 328; Harney v. Owen, 4 Blackf. 337; Stringfield v. Heiskell, 2 Yerg. 546; Pierce v. Massenburgh, 4 Leigh, 493; Harper v. Gilbert, 5 Cush, 273

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