just: but when applied to strict slavery, 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 seller 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 "funt,or are acquired, they may also be hereditary: “servi nascuntur;" the children of acquired slaves are jure naturae, by a negative kind of birthright, slaves also. But this, being built on the two former rights, must fall together with them. If 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rogues; and therefore this statute was repealed in two years afterwards d. And now it is laid downė, that a slave or negro, the instant he lands in England, becomes a freeman ; that is, the law will protect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 mas. ter may have lawfully acquired to the perpetual service of

e Salk. 666. 73

d Stat. 3 and 4 Edw. VI. c. 16.


John or Thomas, this will remain exactly in the same state as before : 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 (1). 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 (2).

(1) 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 pre vent 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 im. provident 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.

(2) 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 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. Ray. 147. A strange principle to found a right of property upon !

But it was decided in 1772, in the celebrated case of James Somer. sett, that a heathen negro, when brought to England, owes no service to an American or any other master. James Somersett had been made

1. The first sort of servants therefore, acknowledged by the laws of England, are menial servants ; so called from being intra moenia, 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 yearf; 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 nots: 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

f Co. Litt. 42.

6 F. N. B. 168.

a slave in Africa, and was sold there ; from thence he was carried to Virginia, where he was bought, and brought by bis master to England; here he ran away from his master, who seised 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. 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-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 discharged. See Mr. Hargrave's learned argument for the negro in 11 St. Tr. 340 ; and the case reported in Loft's Reports, 1. In consequence of this decision, if a ship loaden with slaves was obliged to put into an English harbor, 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 harbor, 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 substan. tially true, that the air of England is too pure for a slave to breathe in. 2 Rushw. 468.

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 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 (3): but they may part by consent, or make a special bargain.

2. ANOTHÉR 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. Andi 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 compulsionk (4): for which purposes our statutes have made the

h Stat 5 Eliz. e.

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 G. II. e. 5. 18 G. III. c. 47.

k Salk. 57. 491.

(3) But this relates only to servants employed in husbandry. It bæ been the practice for magistrates to exercise a jurisdiction over domestic servants, and it would be very useful to the public, that they should possess such a jurisdiction ; but it has lately been decided, that their authority, under the 5 Eliz. c. 4. is confined to servants employed in husbandry. 6 T. R. 583. But it has been held that a master may turn away a servant for incontinence, or moral turpitude, for such miscon. duct produces a dissolution of the contract. Cald. 14.

(4) The parish officers, with the assent of two justices, may bind a parish-apprentice to a person who resides out of their parish, if he occu. pies an estate in the parish. 3 T. R. 107. Or to partners, who reside indentures obligatory, even though such parish-apprentice be a minor!. 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 n; 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: and parish-apprentices may be discharged in the same manner, by two justiceso (5).

I Stat. 5 Eliz. C. 4. 43 Eliz c. 2. Cro. Car. 179, m Stat. 6 Eliz. c. 4.

n Salk. 67.
o Stat, 20 Geo. IL. c. 19.

out of the parish, though some of the partners are resident upon the partnership property within the parish. 7 T. R. 33.

(5) By 32 Geo. III. c. 57. where a parish-apprentice is discharged from a master on account of the misconduct of the master, the justices may order the master to deliver up his clothes, and to pay a sum not exceeding 101. to place him with another master. See the other provisions of this statute, and the subject stated at large, in Burn, tit. Apprentice.

And by the 33 Geo. III. c. 55. wherever a master or mistress has not received more than ten pounds with an apprentice, two or more jus. tices at a special or petty sessions may, upon complaint and proof of illusage of the apprentice, fine the master or mistress any sum not exceed. ing forty shillings; and the fine may, at the discretion of the justices, be applied to the use of the apprentice, as a compensation for the injury which he may have sustained.

By the 42 Geo. III. c. 46. the overseers of the poor shall keep a register, containing a full description of every child, bound out by them as a parish-apprentice, according to a form prescribed by the statute, which register shall be signed by the magistrates who assent to the indentures. Upon omission, the overseers shall forfeit five pounds. The magistrates of the county may inspect the register gratis ; and other persons, paying 6d. If the indentures are proved to be lost or destroyed, then the register shall be evidence of the binding.

The 42 Geo. III. c. 73. contains many salutary and excellent regulations for the preservation of the health and morals of apprentices and others employed in cotton and other factories.

« ElőzőTovább »