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Commentaries on American Law (1826-30)
Chancellor James Kent
Of Master and Servant
THE last relation in domestic life, which remains to be examined, is that of master and servant. The several kinds of persons who come within the description of servants, may be subdivided into (1) slaves, (2) hired servants and (3) apprentices.
1. Of Slaves.
Slavery, according to Mr. Paley1 may, consistently with the law of nature, arise from three causes, viz.: from crimes, captivity, and debt. In the institutes of Justinian,2 slaves are said to become such in three ways, viz.: by birth, when the mother was a slave; by captivity in war; and by the voluntary sale of himself as a slave, by a freeman of the age of twenty. Sir William Blackstone3 examines these causes of slavery, by the civil law, and shows them all to rest on unsound foundations; and he insists, that a state of slavery is repugnant to reason, and the principles of natural law. The civil law4 admitted it to be contrary to natural right, though it was conformable to the usage of nations. The law of England will not endure the existence of slavery within the realm of England. The instant a slave touches the soil, he becomes free, so as to be entitled to be protected in the enjoyment of his person and property, though he may still continue bound to service as a servant.5 There has been much dispute in the English books, whether trover would lie for a negro slave; and the better opinion is, that it will not lie, because the owner has not an absolute property in the negro; and by the common law, it was said, one man could not have a property in another, for men were not the subject of property.6 In the case of Somersett, in 1772, who was a negro slave, carried by his master from America to England, and there confined, in order to be sent to the West Indies; he was discharged by the K. B. upon habeas corpus, after a very elaborate discussions.7 The Scotch lawyers8 mention the case of Knight, a negro slave brought from the West Indies to Scotland, by his master in 1778; and as the slave refused to continue in his service, he applied to the courts in Scotland for assistance to compel his slave to return to him. It was held, that slavery was not recognized by the law of Scotland, and that the claim of the master to the perpetual service of any negro, was inadmissible; for the law of Jamaica did not apply to Scotland, and the master’s claim was consequently repelled by the Sheriff’s Court, and by the Court of Session.
But though personal slavery be unknown in England, so that one man cannot sell, or confine and export another, as his property, yet the claim of imported slaves for wages, without a special promise, does not seem to receive the same protection and support as that of freemen.9 Mr. Barrington, who has given a very strong picture of the degradation and oppression of the tenants, under the old English tenure of pure villenage,10 is of opinion, that predial servitude really existed in England, so late as the reign of Elizabeth; and that the observation of Lilburn, that the air of England was, at that time, too pure for a slave to breathe in, was not true in point of fact. Be that as it may, there is no such thing now as the admission of slaves, or slavery, in the sense of the civil law, or of the laws and usages in the West Indies, either in England, or in any part of Europe; and it is very generally agreed, that the African slave trade is unjust and cruel.
It is no less true than singular, that domestic, slavery prevailed with uncommon rigor in the free states of antiquity; and it cannot but diminish very considerably our sympathy with their spirit, and our reverence for their institutions. A vast majority of the people of ancient Greece, were in a state of absolute and severe slavery. The disproportion between freemen and slaves, was in the ratio of 80 to 400.11 At Athens, they were treated with more humanity than in Thessaly, Crete, Argos, or Sparta. They were entitled to sue their master for excessive ill-usage, and compel him to sell them; and they had also the privilege of purchasing their freedom.12 In the Roman republic, the practice of domestic slavery was equally countenanced and abused. There were instances of private persons owning singly no less than four thousand slaves;13 and by the Roman law, slaves were considered in the light of goods and chattels, and could be sold or pawned. They could be tortured, and even put to death, at the discretion of their masters. By a succession of edicts, which humanity, reason, and policy dictated, and which were enacted by Claudius, Hadrian, Antoninus Pius, and Constantine, the jurisdiction of life and death over slaves was taken from their masters, and referred to the magistrate; and the Ergastula, or dungeons of cruelty, were abolished.14
The personal servitude which grew out of the abuses of the feudal system, and to which the Germans had been accustomed even in their primitive settlements, was exceedingly grievous; but it is not supposed to have equaled in severity, or degradation, the domestic slavery of the ancients, or among the European colonies on this side of the Atlantic. The feudal villein of the lowest order was unprotected as to property, and subjected to the most ignoble services; but his circumstances distinguished him materially from the Greek, Roman, or West India slave. No person in England was a villein in the eye of the law, except as to his master. To all other persons he was a freeman; and for excessive injuries his master was answerable at the king’s suit. So, also, the life and chastity of the female vassal, even of the lowest degree, were protected, (feebly, probably, in point of fact, but effectually in point of law,) by the right of prosecution of the lord, by appeal, by, or on behalf of the injured vassal.15
Domestic slavery existed throughout these United States when they were colonies of Great Britain. It exists to this day in all the southern states of the Union; but it has become entirely extinct in this and the eastern states, and probably it is in a course of abatement and extinction in some others. In Pennsylvania, by an act of March, 1780, passed for the gradual extinction of slavery, this great evil must shortly be removed from them, if it has not already, with the aid of some other provisions, ceased. In Massachusetts, it was judicially declared, soon after the revolution, that slavery was virtually abolished by their constitution, and that the issue of a female slave, though born prior to their constitution, was born free.16 But though this be the case, yet the effect of the former legal distinctions is still perceived, for it is said,17 that by statute, a marriage between a white person and a negro, indian, or mulatto, is absolutely void. In Connecticut, statutes were passed in 1784 and 1797, which have, in their operation, totally extinguished slavery in that state.18 I shall not attempt, nor have I at hand the means, to collect and review the laws of the southern states on this subject of domestic slavery. They are, doubtless, as just and mild as is compatible with the public safety, or with the existence and preservation of that species of property. We will close this division of the subject, with a brief historical detail of our own laws concerning the origin, progress, and final extinction of domestic slavery in this state. Our domestic annals afford sufficient matter for alternate humiliation and pride, for painful and for exulting contemplation.
The system of domestic slavery, under the colony laws of New York, was as firmly and as rigorously established, as in any part of this country; and, as it would seem, with more severity than in either Massachusetts or Connecticut. In the year 1706, it was declared by statute,19 that no slave should be a witness for or against any freeman, in any matter civil or criminal. The consequence of this was, that a slave found alone, could be beaten with impunity by any freeman, without cause. It was shortly after enacted,20 that if any slave talked impudently to any Christian, he should be publicly whipped, at the discretion of any justice of the peace, not exceeding forty stripes. An act in 1730,21 declared, that slaves were in possession of too great liberty, and the debasement of their civil condition was greatly augmented. The master and mistress were authorized to punish their slaves at discretion, not extending to life or limb, and each town was authorized to appoint a common whipper to their slaves, to whom a salary was to be allowed. 1f guilty of any of the numerous capital offenses of that day, they were to be tried by three justices of the peace, and five freeholders, and were denied the benefit of the testimony of their associates, if in their favor, though it might be used against them; and they were to be put to death in such manner as this formidable tribunal thought proper.22
In the year 1740, it was observed by the legislature, that all due encouragement ought to be given to the direct importation of slaves, and all smuggling of slaves condemned as “an eminent discouragement to the fair trader.”23
Such were the tone and policy of our statute law on the subject of domestic slavery, during the whole period of the colony history; but after the era of our independence, the principles of natural right and civil liberty were better known and obeyed, and domestic slavery speedily and sensibly felt the genial influence of the revolution. The first act that went to relax the system, was passed in 1781, and it gave freedom to all slaves who should serve in the American army for the term of three years, or until regularly discharged.24 A more liberal provision was made in 1786, by which all slaves becoming public property by attainder, or confiscation of their master’s estates, were immediately set free; and if unable to maintain themselves, they were to be supported by the state.25 These were only partial alleviations of a great public evil. In 1788, a more extensive and effectual stroke was aimed at the practice of domestic slavery. It put an absolute stop to all further importation of slaves after the 1st of June, 1785, by prohibiting future sales of such slaves. Facilities were also given to the manumission of slaves. The penal code was greatly meliorated in respect to slaves. In capital cases they were to be tried by jury according to the course of the common law, and the testimony of slaves was made admissible for, as well as against each other, in criminal cases.26 In one single case, the punishment of slaves was made different from that of whites. If convicted of crimes under capital, and the court should certify transportation to be a proper punishment, they might be transported to foreign parts by the master.27 In 1799, the legislature took a step towards the final removal, as well as the intermediate mitigation of this evil. They commenced a system of laws for the gradual abolition of slavery.28 It was declared, that every child born of a slave within this state, after the 4th of July, 1799, should be born free, though liable to be held as the servant of the proprietor of the mother, until the age of twenty-eight years in a male, and twenty-five in a female, in like manner as if such persons had been bound by the overseers of the poor-service for that period. This law was further enlarged and improved in 1810, and it was then ordained,29 that the importation of slaves, except by the owner, coming into the state for a residence short of nine months, should be absolutely prohibited, and every slave imported contrary to the act was declared free. All contracts for personal service, by any person held or possessed as a slave, out of this state, were declared to be void; and to entitle a person to claim the services of a person born of a slave, after, the 4th of July, 1799, he must have used all reasonable means to teach the child to read, or, in default, the child would be released from servitude after the age of twenty-one.
These provisions were all incorporated into the act of the 9th of April, 1813, which contained a digest of the existing laws on the subject of slavery. Under the operation of those provisions, slavery very rapidly diminished, and appearances indicated, that, in the course of the present generation, it would be totally extinguished. Those that were slaves on the 4th of July, 1799, and not manumitted, were the only persons that were slaves for life, except those that were imported prior to the 1st of May, 1810, and remained with their former owners unsold. No slave imported since the 1st of June, 1785, could be sold; and no slave imported since the 1st of May, 1810, could be held as a slave; and no person born within this state since the 4th of July, 1799, was born a slave. At last, by the act of 31st of March, 1817,30 which digested anew all the former laws on the subject, provision was made for the complete annihilation of slavery in about ten years thereafter, by the section which declared, “that every negro; mulatto, or mustee, within this state, born before the 4th of July, 1799, should, from and after the 4th day of July, 1827, be free.” After the arrival of that period, domestic slavery may be considered as extinguished in this state, and unknown to our law, except in the case of slaves brought here by persons as travelers, and who do not reside, or continue in this state, more than nine months.31 But though slavery be practically abolished, the amended constitution of 1821, art. 2, placed people of color, who were the former victims of the slave laws, under permanent disabilities as electors, by requiring a special qualification as to property, and peculiar to their case, to entitle them to vote.
II. Of hired Servants.
The next class of servants which I mentioned, are hired servants, and this relation of master and servant rests altogether upon contract. The one is bound to render the service, and the other to pay the stipulated consideration.
There are many important legal consequences which flow from this relation of master and servant.
The master is bound by the act of his servant, either in respect to contracts or injuries, when the act is done by authority of the master. If the servant does an injury fraudulently, while in the immediate employment of his master, the master, as well as the servant, is liable in damages; and he is also liable if the injury proceeds from negligence, or want of skill in the servant, for it is the duty of the master to employ servants who are honest, skillful,32 and careful. But the master is only answerable for the fraud of his servant, while he is acting in his business, and not for fraudulent or tortious acts, or misconduct in those things which do not concern his duty to his master, and which, when he commits, he steps out of the course of the service.33 It was considered, in McManus v. Crickett,34 to be a question of great concern, and of much doubt and uncertainty, whether the master was answerable in damages for an injury wilfully committed by his servant, while in the performance of his master’s business, but without the direction or assent of the master. The Court of K. B. went into an examination of all the authorities, and, after much discussion, and great consideration, with a view to put the question at rest, it was decided, that the master was not liable in trespass for the wilful act of his servant, in driving his master’s carriage against another, without his master’s direction or assent. The court considered, that when the servant quitted sight of the object for which he was employed, and without having in view his master’s orders, pursued the object which his own malice suggested, he no longer acted in pursuance of the authority given him, and it was deemed, so far, a wilful abandonment of his master’s business. This, case has received the sanction of the Supreme Court of Massachusetts,35 on the ground, that there was no authority from the master, express or implied, and the servant, in that act, was not in the employment of his master.
If a servant employs another servant to do his business, and in doing it, the servant so employed is guilty of an injury, the master is liable. Thus, in Bush v. Steinman,36 A. contracted with B. to repair a house, and B. contracted with, C. to do the work, and C. contracted with D. to furnish the materials; and the servant of D. brought a quantity of lime, to the house, and placed it in the road, by which the plaintiff’s carriage was overturned; it was held, that A. was answerable for the damage, on the ground, that all the subcontracting parties were in the employment of A. But to render this principle applicable, the nature of the business must be such as to require the agency of subordinate persons, and then there is an implied authority to employ such persons.
It is said, that the master may give moderate corporal correction to his servant, while employed in his service, for negligence or misbehavior.37 But this power does not grow out of the contract of hiring; and Doctor Taylor38 justly questions its lawfulness, for it is not agreeable to the genius and spirit of the contract. It may safely be confined to apprentices and menial servants, while under age, for then the master is to be considered as standing in loco parentis. It is likewise understood, that a servant may justify a battery in the necessary defense of his master. The books do not admit of a doubt on this point; but it is questioned whether the master can in like manner justify a battery in defense of his servant. In the case of Leward v. Basely,39 it was adjudged that he could not, because he had his remedy for his part of the injury by the action per quod servitium amisit. It is, however, hesitatingly admitted in Hawkins, and explicitly by other authorities, that he may, and the weight of argument is on that side.40
III. Of Apprentices.
Another class of servants are apprentices, who are bound to service for a term of years, to learn some profession or trade. The temptations to imposition and abuse to which this contract is liable, have rendered legislative regulations particularly necessary.
It is declared,41 that no apprentice or journeyman shall be laid under restrictions, as to the exercise of his trade or calling, after his term of service has expired. Infants may be bound by indenture of their own free will, and by their own act, and with the consent of their father, mother, or guardian, or testamentary executors; or by the overseers of the poor, or two justices, or a judge, as the case may be, to a term of service, during infancy. In all indentures, by the officers of the city or town, binding poor children as apprentices or servants, a covenant must be inserted to teach the apprentice to read and write, and the overseers of the poor are constituted the guardians of every such indented servant. The age of the infant must be inserted in the indenture, and the consent of the father or guardian must be signified in the indenture, and by their signing and scaling the same. For refusal to serve and’ work, infants are liable to be imprisoned in jail, until they shall be willing to serve as such apprentice or servant; and: also to serve double the time they had wrongfully withdrawn themselves from service, infants coming from beyond sea, may bind themselves to service, until the age of twenty-one, and even until the age of twenty-four, provided it be to raise money for the payment of their passage, and the whole term of such service does not exceed four years. Grievances of the apprentice or servant, arising from ill usage on the part of the master, are to be redressed in t he general sessions of the peace, or by any three justices of the peace, who have power to annul the con. tract, and discharge the apprentice, or imprison him, if he should be in the wrong.
The statute of this state, (of which I have here given the material provisions,) contains the substance of the English statute law on the subject, and the English decisions are applicable. Under our statute, the infant himself must be a party to the indenture, except in the special case of an apprentice who is chargeable as a pauper. The father has ne authority under the statute, and the latter English cases say, he has no authority. even at common law,) to bind his infant son an apprentice, without his assent; and the infant cannot be bound by an set merely in pail, and if he be not a party to the deed, he is not bound.42 The English statute law as to binding out minors as apprentices, to learn some useful art, trade, or calling, has probably been very generally adopted in this country, with considerable local variations. In the State of Maine, male infants may be bound till the age of twenty-one; but females only till their arrival to the age of eighteen.43 In Pennsylvania,44 it has been held, that an infant could not be bound by his father or guardian, as a servant to another; while in Massachusetts, their statute law concerning apprentices, does not make void all contracts binding the minor to service, that are not made in conformity to the statute. It has been held,45 that the father may, at Common law, bind his infant son to service, and the contract will be good, independent of the statute. This doctrine is contrary to the English law, and to the construction of the statute of this state, and to the rule in Pennsylvania; and it has been questioned in the case of the United States v. Bainbridge.46 It has been decided in that last case, that the father could not bind his infant son, without his consent, to military service, and that where his enlistment has been held valid, it was by force of the statute authority of the United States. Whether an indented apprentice can be assigned by one master to another, is a question which does not seem to have been definitively settled. It was concluded, in the case of Nickerson v. Howard,47 that such an assignment might be good, by way of covenant between the masters, though not as an assignment to pass an interest in the apprentice. As was observed by Lord Mansfield,48 though an apprentice be not strictly assignable, nor transmissible, yet if he continue with his new master, with the consent of all parties, and his own, it is a continuation of the apprenticeship.
The master is entitled to the wages and fruit of the personal labor of the apprentice, while the relationship continues, and the apprentice is in his service; and there are cases which give the master a right to the wages or earnings of the apprentice, while in another’s service, and with or without his master’s license, and even though the trade or service be different from that to which the apprentice is bound.49 But Lord Hardwicke declared in the case before him, that if the master had not done his duty with the apprentice, and had been the unjustifiable cause of his pursuing a different course of life, he would grant relief in equity against the master’s legal claim to his earnings.50
1. Principles of Moral Philosophy, p. 158, 159.
2. Inst. 1. 3. 4.
3. Com. vol. i. 423.
4. Instit. 1. 3. 2.
5. 1 Blacks. Com. 424.
6. Smith v. Gould, 2 Salk. 666. 2 Ld. Raym. 1274. contra Butts v. Penny, 2 Lev. 201 and Lord Hardwicke, in Pearne v. Lisle, Amb. 75.
7. Loft’s Reports, l. Harg. State Trials, vol. xi. p. 339.
8. l Ersk. Inst. 158. Kaimes’ Principles of Equity, vol. ii. p. 134.
9. Alfred v. Marquis of Fitz James, 3 Esp. Cases, 3.
10. Observations on the Statutes, chiefly the more ancient, p. 232-241.
11. 1 Mitf. Hist. 355.
12. 1 Potter’s Antiq. of Greece, 57-67-72.
13. 1 Gibbon’s Hist. 66-68.
14. 1 Gibbon, ubi supra. Taylor’s Elem. of the Civil Law. 433-436. The horrible excesses and cruelty inflicted upon slaves, in ancient times, and particularly by the Romans, and the barbarous manners, and loss of moral taste and just feeling, which were the consequence, are strikingly shown and illustrated from passages in the classics, by Mr. Hume, in his very learned Essay on the Populousness of Ancient Nations
15. Littleton’s Ten. sec. 189, 190. Hallam’s View of the Middle Ages, vol. i. 122, 124. vol. ii. 199.
16. See cases cited in Winchendon v. Hatfield, 4 Mass. Rep. 128.
17. Dane’s Abr. ch. 46. art. 2. s. 3.
18. Reeve’s Domestic Relations, p. 340.
19. Colony Laws, Smith’s edit. vol. i. 62.
20. Colony Laws, vol. i. 72.
21. Colony Laws, vol. i. 193-199.
22. They were occasionally adjudged to the stake, and an execution of this kind, and probably the last of this kind, was witnessed at Poughkeepsie shortly before the commencement of the revolutionary war.
23. Colony Laws, vol. i. 283, 284,
24. Act of 20th of March, 1731, ch. 32. s. 6.
25. Act of 1st of May, 1786, ch. 58. s. 29, 30.
26. Act of 22d of February, 1788, ch. 40.
27. Act of 22d of March, 1790, ch. 28.
28. Art of 29th of March, 1799, ch. 62.
29. Act of 30th of March, 1810, ch. 115.
30. Laws of N.Y. sess. 40. ch. 137.
31. Act supra, s. 15., and act sess. 42. ch. 141. s. 3.
32. 1 Blacks. Com. 431. Dy. 161, pl. 45. Ibid. 238. b. pl. 38. Grammer v. Nixon, Str. 653. Sly v. Edgley, 6 Esp. N.P. Cas. 6.
33. Lord Kenyon, in Ellis v. Turner,8 Term Rep. 533. Parker, Ch. J in Foster v. The Essex Bank, 17 Mass. Rep. 508-510.
34. 1 East, 106.
35. 17 Mass. Rep. 508-510. Croft v. Alison, 4 B. & Ald. 590. S.P.
36. 1 Bos. & Pul. 404.
37. 1 Blacks. Com. 428. 1 Hawk. P. C. b. 1. ch. 29. sect. 5. b. 1. ch. 60. sect. 23.
38. Elements of the Civil Law, 413.
39. 1 Ld. Raym. 62. 1 Salk. 407.
40. 2 Rol. Abr. 546. D. 1 Blacks. Com. 429. 1 Hawk. P. C. b. 1. c. 60. sect. 23, 24. Reeve’s Domestic Relations, p. 378.
41. L. N.Y. act of Feb. 1810, ch. 11.
42. The King v. Inhabitants of Cromford, 8 East, 25. The King v. Inhabitants of Arnesby, 3 Barn. & A1d. 584. In the matter of McDowles, 8 Johns. Rep. 328.
43. 4 Greenleaf, 36, 40.
44. Respublica v. Keppell, 2 Dallas, 197.
45. Day v. Everett, 7 Mass. Rep. 145.
46. 1 Mason, 71.
47. 19 Johns. Rep. 113.
48. The King v. The Inhabitants of Stockland, Doug. 70.
49. Hill v. Allen, 1 Vesey, 83. Barber v. Dennis, 6 Mod. 69.
50. In taking leave of the extensive subject of the domestic relations, I cannot refrain from acknowledging the assistance I have received from the work of the late Chief Justice Reeve on that title. That excellent lawyer and venerable man, has discussed every branch of the subject in a copious manner; and though there is some want of precision and accuracy in his references to authority, and sometimes in his deductions, yet he every where displays the vigor, freedom, and acuteness of a sound and liberal mind.
I would here further observe, that since the preceding sheets were put to the press, I have met with the late case of Lewis v. Lee, in the English Court of K. B., reported in 3 Barn. & Cress. 291, in which it is adjudged, upon demurrer, that though a woman be divorced a mensa et thoro. and lives separate and apart from her husband, with an ample allowance as and for her separate maintenance, she cannot be sued as a feme sole. This decision had not been seen when the observations were made at pages 132 and 136 of this volume; whether it is to be received as law in this country, in preference to the opinions of the Editor of Bacon, and of Lord Loughborough, there referred to, must be left for future judicial discussion.