every apprentice snbmits to for the space of seven years, or sometimes for a longer term. 3 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) Mr. Christian, in his note, observes, that "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. (4) It was formerly held, that trover is sustainable for a negro boy, because negroes are hea thens. 1 Ld. Raym. 147. But in the case of Somerset it was decided, that a heathen negro slave, when brought into England, owes no service to his master. 11 State Tr. 340. 20 Howell's State Trials, 79. Loft's Rep. 1. and see 1 Ld. Raym. 146. 2 B. & C. 448. The traffic in slaves was formerly a principal branch of commerce between our colonies and the coast of Africa, but was made illegal and abolished by the 47 Geo. III. sess. I. c. 36. which imposed severe penalties on those concerned in it; viz. a penalty of 1001. for every slave purchased, besides the forfeiture of the ship. This act not having the desired effect, the statute 51 Geo. III. c. 23. was afterwards passed, which makes it a felony for any subject of the realm, or a person being within any of his majesty's territories, to be concerned in the slave trade after the 1st June, 1811; the punishment being either for a term not exceeding fourteen years, or confinement and hard labour for a term not exceeding five years, nor less than three, at the discretion of the court before which the offender should be convicted. By the 54 Geo III. c. 59. vessels condemned for breach of laws relating to the slave trade, are entitled to the privilege of prize ships, and to be registered accordingly. By the statute 55 Geo. III. c. 172. provision is made for the support of captured slaves during the period of adjudication. By the 58 Geo. III. c. 59. some regulations are made as to importing slaves into certain British territories in South America from the Bahamas, &c. By the 59 Geo. III. c. 120. sess. 1. provisions are made for the establishing a registry of colonial slaves in Great Britain; and besides these acts. there are various others connected with treaties for the suppression of the slave trade carried on by foreign nations, viz. the 58 Geo. III. c. 36. 58 Geo. III. c. 85 (rep. as to sess. 10, 11. and amended by and to be construed as one act by the 59 Geo. III. c. 17.) 59 Geo. III. c. 16. 1 & 2 Geo. IV. c. 99. All the prior statutes were repealed, and the law consolidated, by 5 Geo. IV c. 113. It is to be observed, that in the West India islands, and parts of the South American settlcments, slavery is still allowed, and the right of property in such slaves is recognized by the laws of this country, see Dodson, 81. 91. ; and if a party detain or harbour a slave in a country where slavery is lawful, an action may be brought in this country for such detainer, 2 Lord Raym. 1274. 3 B. & A. 353; and where a British subject wrongfully seized a cargo of slaves, the property of a foreigner on board a ship then employed by him in carrying on the African slave trade, it was held the foreigner might sue here for such wrongful seizure. 3 B & A. $53. It lies upon the plaintiff to prove in such actions, that at the time when the injury was committed, the slaves were his by the positive law of the place where they then were. 2 Salk. 666. 3 B. & A. 353. 2 B. & C. 448. On the other hand, if a master brings his slave or the slave escape to a place where slavery is unlawful, no action is maintainable against another person for detaining or harbouring the slave, because the slave is not obliged to return to the service from which he has escaped, see Salk. 666.; and where certain persons who had been slaves in a foreign country where slavery was tolerated, escaped thence, and got on board a British ship of war on the high seas, it was held, that a British subject resident in that country, who claimed the slaves as his property, could not maintain an action against the commander of the ship for harbouring the slaves after notice. 2 B & C. 448. 1. The first sort of servants, therefore, acknowledged by the laws of England, are called menial servants; so called from being intra mœniu, 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) but the contract may be made for 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 5 servant leave his master, after being so retained, either before or at [426] 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. " 7 2. Another species of servants are called apprentices (from apprendre, f Co. Litt. 42 g F. N. B. 168. h Stat. 5 Eliz. c. 4. Though a person ceases to be a slave the instant be arrives in England, yet a servant who comes over from the West Indies, where he has been a slave, and continues in the service of his master in England without any agreement for wages, is not entitled to any on any implied promise. 3 Esp. Rep. 3. So where an infant slave in the West Indies executed an indenture, by which he covenanted to serve B. for a certain time as his servant, and B. covenanted to do certain things on his part, and B. then came to England with the slave, it was held, that a third person was liable to an action for seducing such servant from his master's employ. 2 Hen. Bla. 511. Chitty. (5) This doctrine does not apply to domestic servants in general. On the hiring of a menial servant, no particular time is limited for his remaining in the service, though there is an express contract to pay at the rate of a certain sum per annum; and yet, notwithstanding this, we find instances of servants engaged under such a hiring, recovering for wages before the expiration of the year, which could not be the case if the hiring was for an entire year; for if the contract were for a year's service, the year's service must be completed before the servant could sue for his wages. See 2 Stark. 257. 3 Mod. 153. Salk. 65. S. C. 6 T. R. 320. S. P. also the case of Writh v. Viner, in Viu. Abr. vol. 3. p. 8. tit. Apportionment, per Ashurst J. in Cutter v. Powell. 6 T. R. 326. "With regard to the common case of an hired servant, such a servant, though hired in a general way, is considered to be hired with reference to the general understanding upon the subject, that the servant shall be entitled to his wages for the time he serves, though he do not continue in the service during the whole year." Where there is an express contract that a month's warning shall be given, or a month's wages paid, such agreement is binding; and unless the master misconduct himself, or the servant be disobedient, must be observed. But where the hiring is general, there is no implication that any warning shall be given, and either party may determine the service at any time. It is however reported to have been decided by lord Kenyon at nisi prius, that if a servant be hired generally, and the master turn him away without warning, or previous notice, and there is no fault or misconduct in the servant to warrant it, he ought to have the allowance of a month's wages. 3 Esp. Rep. 235. Chitty. (6) Servants in husbandry are frequently hired by the year from Michaelmas, and this is an entire hiring. 2 Stark. 257. It should seem the master is justified in dismissing a servant of this description, if he disobey his orders, or be guilty of other misconduct, without going before a justice of the peace. 2 Stark. 256. Cald. 14.; as if the master, just before the servant's usual hour of dinner, order the servant to take his horses to a small distance before he dines, and the servant refuse, and afterwards does not subinit; and such servant cannot recover any proportion of his wages. 2 Stark. 256. So if a single female, yearly servant, at any time during the year appear with child, the master may turn her away. Cald. 11. 14 So if a servant repeatedly sleep out at night without leave. 3 Esp. R. 235, Chitty. (7 Besides this, the 5 & 9 sections of the act of Eliz. the 6 Geo. III. c. 25. s. 4. and the 4 Geo. IV. c. 34. s. 3. provide against such servants neglecting to enter into, or absenting from, service before the ends of their terms. The 13 & 14 sections of Eliz. provide against servants retained to work in the piece, task, or gross, departing from service before such work completed. Chitty. (8) As to apprentices in general, see Chitty on Apprentice Law, Burn J. tit. Apprentices, and Nolan's Poor Laws 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 twentyone 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) 10 for which purposes our statutes have made the 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 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. 1 Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. Cro. Car. 179. k Salk. 57. 491. It would be impracticable in a note to point out in detail the numerous legislative provisions, and the decisions of our courts, relative to apprentices; and we must therefore merely refer the reader to the former by shortly pointing out their general intent: and, first, as to apprentices in general; and, secondly, of parish apprentices. First, As to apprentices in general. At common law, no man was prohibited to work in any lawful trade, or in more trades than one, at his pleasure. 11 Coke, 53. 511. a Com. Dig. Trade, A. 5. So that, without an act of parliament, no man can be restrained either from working in any lawful trade, or using divers mysteries or trades; therefore an act made to restrain any person therein, must be taken strictly, and not favourably, as acts made in affirmance of the common law are. By the 5 Eliz. chap. 4. s. 31. it was enacted, that it should not be lawful to any person to set up, occupy, use, or exercise any craft, mystery, or occupation, then used or occupied within England or Wales, except he should have been brought up therein seven years at the least as an apprentice, nor to set any person on work in such mystery, art, or occupation, except he shall have been apprentice as aforesaid, or else having served as an apprentice as is aforesaid, become a journeyman, or hired by the year, under a penalty of 40s. a month. But this provision having been previously in many instances altered (see 15 Car II. c. 15. 24. Geo. III. sess. 2. c. 6. s. 4. 6 & 7 Wm. III. c. 17. 17 Geo. III. c. 33. 17 Geo. III. c. 55. s. 5 35 Geo. III. c. 124. 50 Geo. III. c. 41. s. 22.) is now repealed by the 54 Geo. III. c. 96. The justice's jurisdiction respecting apprentices, however, continues the same as under the 5 Eliz. c. 4.; and the 1, 3, & 4 sections of 54 Geo. III. contain a saving for the customs and bye-laws of London and other cities, and of corporations and companies lawfully constituted. And by the 1 sect. of this act (54 Geo. III c. 96.) persons not having been apprentices for se⚫ ven years may use manual occupation, and may get any other work, though not an apprentice; and the same with as to distillers of brandy from British malt (12 Ann. st. 2. c. 3. s. 9.) to hat and felt-makers (17 Geo III. c. 55. s. 5.) to soldiers exercising trades (22 Geo. II. c. 44.) and a late statute has been passed, viz. the 56 Geo. III. c. 67 to enable officers, mariners and soldiers, who have been in the land or sea service, or in the marines or militia, or any corps of fencible men, since the 42 Geo. III. to exercise trades, notwithstanding the customs and bye-laws of particular places. The humanity of the legislature has also given rise to the numerous laws for bettering the condition of the inferior orders of apprentices; as, for instance, the apprenticing poor children in London, 17 Geo III. c. 39. s 14.; the statute 42 Geo. III. c. 48. with respect to the binding poor children, if above eight years old, to chimney-sweepers; and the statutes 42 Geo. III. c. 73. 59 Geo. III. c. 66. 60 Geo. III. c. 5. and I Geo. IV. c. 5. which regard the health, comfort, and interest of these poor individuals Besides this act, there is the 4 & 5 W & M. c. 23. s. 10. prohibiting sporting by apprentices, &c.; the 33 Hen. VIII. c. 17. s. 16. prohibits gambling by them. The 20 Geo. II. c. 19. 6 Geo. III. c. 25 & 29, and 4 Geo. IV. c. 34. relate to the manner in which complaints between masters and servants, and between masters, apprentices, and others, are to be determined. Secondly, As to parish apprentices -The 43 Eliz. c. 2. s. 5. 18 Geo. III. c. 47. s. 1. 7 Geo. III. c. 39. s. 14. 56 Geo. III. c. 139. point out who may be bound as parish apprentices. Chitty. (9) And also apprentices, if they be bound for a longer time than when they arrive to the age of twenty-one years, can avoid their indentures as soon as they arrive at that age-Ed. 10) 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 occupies an estate in the parish. 3 T. R. 107. Or to partners, who reside out of the parish, though some of the partners are resident upon the partnership property within the parish. 7 T. R. 33. 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 rateable share of the money given with the apprentice: (") and parish apprentices 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) 11 3. A third species of servants are labourers, who are only hired by the day or the week, and do not live intra moenia, as part of the fami[427] ly; concerning whom the statutes before cited (9) 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: 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: 12 whom however the law considers as servants, protempore, with regard to such of their acts as effect 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 for a year, or apprentice. ship under indentures, a person gains a settlement in that parish wherein he last served forty days. (r) In the next place, persons serving seven years as apprentices to any trade have an exclusive right to exercise 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: 13 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. 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 trades is equally detrimental to the public, as monopolies. This reason indeed only extends to such trades, in the exercise whereof skill is [428] required: 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 m Stat. 5 Eliz c. 4. p Stat. 6 Geo. III. c. 26. n Salk. 67. r See page 364. o Stat. 20 Geo. II. c. 19. q Stat. 5 Eliz. c. 4. 6 Geo. III. c. 26. s Stat. 5 Eliz. c. 4. § 31. (11) 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. (12) As to agents, factors, and brokers in general, see 3 Chitty's Com. L. 193-224. ; as to gamekeepers, 1 Chitty's Game Law, 43.; a gamekeeper or bailiff guilty of misconduct may be discharged without previous warning, and he cannot retain possession of house incident to his service. Moore Rep. 8 & 9 Littleton's Rep. 139. 16 East, 33. (13) This act is repealed by 54 Geo. III. c. 96. See ante 426, note 8. Chitty. 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: (1) 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)" But if any servant, workman, or labourer assaults his master or dame, he shall suffer one year's imprisonment, and other open corporal punishment, not extending to life or limb. (2) 15 14 t Lard Raym. 514. u 1 Ventr. 51. 2 Keb. 583. w Lord Raym. 1179. Wallen qui tam v. Holton. Tr. 33 Geo. III. x 1 Hawk. P. C. 180. Lamb. Eiren. 127. Cro. Car. 179. y F. N. B. 168. Bro. Abr. t. Labourers, 51. Trespass, $49. 2 Stat. 5 Eliz. c. 4. s. 21. (14) But he cannot delegate that authority to another. 9 Co. 76. Where a master in correcting his servant happens to occasion his death, it shall be deemed homicide by misadventure; yet if in his correction he be so barbarous as to exceed all bounds of moderation, and thereby occasion the servant's death, it is manslaughter at least, and if he make use of an instrument improper for correction, and apparently endangering the servant's life, it is murder. Hawk. b. 1. c. 29. s. 5. And if the servant depart out of his master's service, and the master happen after to lay hold of him, yet the master in this case may not beat or forcibly compel his servant against his will to retain or tarry with him or do his service, but either he must complain to the justices of his servant's departure, or he may have an action of convenant against the third person who covenanted for his faithful services. Dalt. c. 121. p. 281. 282. These observations do not apply to domestic servants. It is an indictable offence in a master to neglect supplying Inecessaries to an infant servant, or apprentice, unable to provide for itself. Russell & R. Cro. C. 20. 2 Camp. 650. 1 Leach, 137. Chitty. (15) Servants murdering their masters are ousted of the benefit of clergy, 12 Hen. VII. c. 7. s. 21., and the same is deemed petty treason, 25 Ed. III. st. 5. c. 2. s. 2. To prevent masters being imposed upon by the giving of false characters, the 32 Geo. III. c. 56. was passed to punish servants and others obtaining and giving such characters. By this act a penalty is imposed on a person falsely personating his master or mistress, or his or her agent, or falsely asserting a servant to have been retained for other than the actual period or capacity, or falsely asserting that a servant left or was discharged from any service at other than the actual time, or falsely asserting that he had not been hired in any previous service, or offering as servant pretending to have served in any service in which he has not served, or offering as servant with a forged certificate of character, or falsely pretending not to have been hired in any previous service. See post 428. n. 16. We have already considered what time a servant is compelled to stay in service. See ante 425, 6. notes 5 & 6.; and the amount of the wages payable for such service will be found treated of in the next note. As a general rule, a servant who receives reward for his services, is bound to observe with care and diligence the interests of his master, and must exert the same vigilance and attention his master would have done. 5 B. & A. 820. 5 Rep. 14. 1 Leon. 88. Moore, 244. He must adhere to the reasonable orders and instructions of his master, and the neglect so to do will render him responsible for the consequence, and the mere intention of doing a benefit for his master will furnish him no excuse for any injury that may arise from a deviation from his specific instructions. Dyer. 161. 1 Hen. Bla. 159. Malyne, 154. Camp. 183. A servant acting without reward is bound only to take the same care in the management of his master's concerns as a reasonable attention to his own affairs would dictate to him in the management thereof; and a gratuitous servant without reward is not liable for a mere nonfeazance. 2 Lord Ray. 909. 5 T. R. 143. 1 Esp. Rep. 74. A servant is not liable for the loss of goods by robbery, if without his fault. 1 löst 9. At common law where goods are delivered to a servant for a specific purpose, he may commit larceny by appropriating them to his own use, for his possession is still in law that of his master. See 1 Leach, 251. 2 Leach, 699, 870. Besides this, by the 21 Hen. VIII. c. 7., servants withdrawing with goods of their master's, worth 40s. are deemed felons, if such goods have been intrusted with them to keep. In the 2d section there is a saving for apprentices during apprenticeship, and offenders not eighteen years old. Clergy is taken away from this offence by the 27 Hen. VIII. c. 17., and both these acts are made perpetual by the 28 Hen. VIII. c. 2., repealed by 1 Mary, sess. 1. c. 1. s. 5., and the 21 Heu. VIII. c. 7. is revised and made perpetual |