the jury have been asked to say, from the whole circumstances connected with the employment, whether the prisoner was a servant. It has been decided that a person who is employed by more than one person may be "a clerk or servant" within the 24 & 25 Vict. c. 96, s. 68, and 7 & 8 Geo. IV. c. 29, s. 47. In Regina v. Batty (e), a clerk employed by A. to sell goods for him was convicted of embezzlement, though at the same time he was employed by other persons in other business; and in Rex v. Carr (f) it was also held that a traveller employed by several houses might be properly convicted of embezzlement. How it is employed in any statute can be known only by studying the language and object of the enactment. Take, for example, the phrase "servant or other person in the 32 & 33 Vict. c. 14, s. 11, and 41 Vict. c. 15, s. 13. Tenements occupied as a house for the purposes of trade only, or as a warehouse for the sole purpose of lodging goods, wares, or merchandise therein, or as a shop or counting-house, or being used as a shop or countinghouse, are exempted from inhabited house duties, "although a servant or other person may dwell in such tenement, or part of a tenement, for the protection thereof." Every species of servant does not come within this exception. The object of the Legislature in creating it must be considered. It was not intended that under this section a counting-house or warehouse should be used also as a dwelling-house. The respondent in Yewens v. Noakes (g) claimed exemption in respect of premises used for the purpose of his trade. A clerk in his employment at a salary of 150/. a year lived on the premises in order to take care of them; he and his wife, children, and servant occupied five rooms. The Court of Appeal thought that the clerk, though a servant, did not come within the Act. "It appears to me," said Lord Justice Thesiger, "that the Legislature, in using the term 'servant,' is using that term in the ordinary and popular sense of it; that is to say, not in the sense in which any clerk or manager is called the servant of his employer, or in the sense in which the judges might be said to be the servants of the Crown, but in the sense of the ordinary menial or domestic servant." Yet even in this case, Lord Justice Thesiger added, if the Commissioners had found as a fact that the clerk was a "servant or other person " within the Act, the Court would not have been (e) (1842), 2 Mood. C. C. 257; R. v. Leech (1821), 3 Star. 70; and Tite's Case (1861), 30 L. J. M. C. 142. See also remarks of Bayley, J., in Laugher v. Pointer (1826), 5 B. & C. 569, and in justified in interfering with their decision. On the other hand, in Rolfe v. Hyde (h), decided subsequently, the Court thought that the Income Tax Commissioners were justified in finding that a cashier with a salary of 2001. a year, who occupied a sitting-room and bedroom on the top storey of the respondent's warehouses and counting-houses, and who slept on the premises solely as caretaker and for their protection, was "a servant or other person within 41 Vict. c. 15, s. 13, sub-s. (2). (h) (1881), 6 Q. B. D. 673. CHAPTER III. MASTER AND SERVANT AND MASTER AND SLAVE. THE relation of Master and Slave cannot legally be created in England; and no rights arising out of that relation can be here enforced (a). The exact legal position of a slave in England was uncertain until the King's Bench, in 1772, in Lord Mansfield's time, decided Sommersett's Case (b). Holt, C. J. (c), and Lord Northington (d) had given expression to dicta hostile to the rights of the slaveowner; but there were decisions of a contrary character from 1677 (e) to the time of Lord Hardwicke's decision in Pearne v. Lisle (f), that a slave was as much property as any chattel. In 1729, Sir Philip Yorke, the Attorney-General, and Mr. Talbot, the Solicitor-General, gave it as their opinion that a slave, by coming from the West Indies to Great Britain or Ireland, did not become free; and in consequence of this opinion slaves were publicly sold in London, Bristol, and Liverpool (g). In the first edition of Blackstone's Commentaries, published in 1766, it is stated (vol. i. p. 425), that "whatever service the heathen negro owes to his American master by general, not by local law, the same, whatever it be, he is bound to render, when brought to England and made a Christian." The question in Sommersett's Case (b) arose on the return to a writ of habeas corpus, which stated that Sommersett was the negro slave of Charles (a) See note (k). (6)(1771-1772), 20 Howell's S. T. 1. See also Knight v. Wedderburn (1778), Morrison's Dictionary of Decisions, p. 14, 545 (hiring for life without wages held to be slavery). The English law Courts were long reluctant to decide the question: Wynne's Law Tracts (A.D. 1765), 27. (c) Smith v. Browne (1705), 2 Salk. 666. But see Forbes v. Cochrane (1824), 2 B. & C. 448; 2 St. Tr. N. S. 147. (d) Stanly v. Harvey (1762), 2 Eden, 125: "As soon as a man sets foot on English ground he is free; a negro may maintain an action against his master for ill-usage, and may have a habeas corpus if restrained of his liberty." (e) Butts v. Penny (1677), 2 Lev. 201; Gelly v. Cleves (1694), Ld. Raymond, 147. (f) (1749), 1 Ambler, 75. (g) There were, it is said, 14,000 slaves in London when Sommersett's Case was decided: Burge, Com. i. 740. Steuart, who had delivered him into the custody of Knowles, the captain of a ship lying in the Thames, in order to carry him to Jamaica, and there sell him as a slave. The Court decided that this was not a sufficient return. Slavery, said Lord Mansfield, "being an odious institution, could be introduced only by positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England, and therefore the black must be discharged." Speaking of this decision in Rex v. Thames Ditton (h), Lord Mansfield stated that the determinations went no further than that the master (Knowles) could not compel the slave to quit England. Lord Stowell in the Slave Grace Case (i) still further qualified the effect of the Sommersett Case. A slave had come to England with her master. Of her own accord she returned to the Island of Antigua, where slavery then existed. Lord Stowell decided that she had not become free by her temporary residence here, and that the owner's property in his slave had not been destroyed. "There is nothing that makes a liberation from slavery; he goes back to a place where slavery awaits him, and where experience has taught him slavery is not to be avoided" (k). Slavery being illegal in this country, it has often been contended that contracts of hiring and service for life are in substance slavery, and as such should be regarded as null and void. In some countries the maxim nemo potest locare opus in perpetuum is strictly applied (7); but here a contract to serve for life is valid, provided (h) (1785), 4 Doug. 301. (i) (1827), 2 Hag. Ad. 94; 2 St. Tr. N. S. 273. (k) The chief subsequent decisions are: Madrazo v. Willes (1820), 3 B. & Ald. 354; Buron v. Denman (1848), 2 Ex. 167; Santos v. Illidge (1860), 8 С. В. N. S. 861. The effect of these decisions is thus stated by Cockburn, C. J., in his memorandum on the subject, to be found in the report of the Royal Commission on Fugitive Slaves, p. xxvii.: "These cases establish beyond controversy that the tribunals of this country recognise the right of property of the owner of the slave, so long as the slave is in the country by the law of which the owner's right is upheld, or in the possession of the owner in a ship of a nation in which slavery is lawful; and that if the property in the slave is interfered with by a British subject, to the injury of the owner, an action for damages will lie to the extent of the loss sustained." The dictum of Best, C. J., in Forbes v. Cochrane (1824), 2 B. & C. 468, that "no action founded upon a right arising out of slavery" could be maintained in English courts, must therefore be taken with reservation. The proposition at the head of this chapter must be read in the light of the above decisions. Si (1) Information as to the provisions on this point in modern codes is collected in Cornil's Louage de Services, p. 42. On ne peut engager ses services qu'à temps ou pour entreprise déterminée : Art. 1780 of Code Civil. See M. Laurent's Principes de Droit Civil Français, 25, 542. même le temps stipulé était tellement long qu'il pût équivaloir à une aliénation de la liberté, bien qu'il ne comprit pas la vie entière du locateur, les juges pourraient rompre un tel engagement: Troplong's Louage, ii. 288. M. Laurent takes up the same position. So far, however, as his remarks do not relate to cases in which there is no consideration for the promise to serve for life, they would it be not open to the objection of fraud or duress, and provided there be consideration for the promise. This was first decided in 1837 by the Court of Exchequer in Wallis v. Day (m). The plaintiff sold his business as carrier to the defendants, and covenanted that he would henceforth during his life serve them as an assistant in the trade of carrier. The plaintiff's covenant to serve was held good. A contract of hiring must not be made a cover for the reality of slavery. Thus English law will not recognise in a master a right to imprison his servant for disobedience to orders or any other offence, even if a servant agreed to such terms of service (n). It was, however, lawful for a convict to consent in writing to a term of imprisonment on obtaining pardon and commutation of his sentence by the Crown (o). The common law would not even recognise the validity of an agreement by certain workmen or masters to work or not according to the decision of a majority (p). It is said, however, that there is one distinct exception to the principle that purely servile incidents cannot be attached to a contract of hiring; a master may, it is said, chastise a hired servant (q). Notwithstanding dicta to be found to this effect, such invalidate all contracts of hiring and service, whatever might be their duration. In Allen v. Shene, Morrison's Dictionary of Decisions, pp. 23, 9454, a contract to serve three terms of nineteen years was "reduced," as being in restraint of trade. As to other Scotch decisions, Campbell's edition of Fraser on Master and Servant, 3, 4. (m) (1837), 2 M. & W. 273. In Viner's Abridg., Master and Servant, N. 5, xv. 323, it is stated that a contract to serve for life must be by deed. The reference given is 2 H. 4, 15. The action, however, in this case was not by the master against the servant upon a contract to serve for life, but an action of simple debt against executors by a servant to recover arrears of wages for services actually performed. Such an action was not then maintainable: 3 & 4 Will. IV. c. 42, s. 14. The case, too, turned on the Statute of Labourers. See also Blackstone (1st edit.), i. 424; Chitty on Contracts (13th edit.), 524, 526; and the notes on Peter v. Compton, 1 Sm. L. C. (11th edit.), at p. 316. (n) Clarke v. Gape (1596), 5 Reports, 129. It turns on the doctrine of Magna Charta, c. 9, Nullus liber homo imprisonctur. See Foster v. Jackson (temp. Charles II.), Hob. 61; and the protest of Ellenborough, C. J., in Rex v. Stow (q) Bacon's Abridgment, Master and Servant, N. It is clear that Hale (History of Pleas of the Crown, 453) and Hawkins (Pleas of the Crown, i. 85) understood that such a power existed. See also Foster's Criminal Law, 262; and 3 Salk. 47. Such, too, seems to have been Holt, C. J.'s, ruling in Keat's Case, which was a case of master and servant: Skinner (1697), 668. Blackstone, i. c. 14, only goes so far as to say that "if the master or master's wife beat any other servant of full age, it is good cause of departure." In an anonymous case of the 28th and 29th Charles II., it was held a good answer to an action for assault and battery of one servant by another that the latter was ordered to bring the plaintiff from a conventicle. The Chief Justice and Scroggs, J., were of opinion that "a man may as well send for his servant from a conventicle as an alehouse, and may keep him from going to |