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PART I.

COMMON LAW.

CHAPTER I.

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 (6). Chief Justice Holt (c) and Lord Chancellor Northington (d) had given expression to dicta hostile to the rights of the slave-owner; but there were decisions of a contrary character from 1677 (@) 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 York, 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). The question in Sommersett's Case arose on the return to a writ of

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(d) Stanley 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

habeas corpus, which stated that Sommersett was the negro slave of Charles 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 still further qualified the effect of the Sommersett Case (i). 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 ; be goes back to a place where slavery awaits him, and where experience has taught him slavery is not to be avoided " ().

slaves in London when Sommersett's the slave, so long as the slave is in Case was decided, Burge, Com. i. 740. the country by the law of which the (h) (1785), 4 Doug. 301.

owner's right is upheld, or in the (i) (1827), 2 Hag. Ad. 94.

possession of the owner in a ship of a (k) The chief subsequent decisions nation in which slavery is lawful ; are : Madrazo v. Willes (1820), 3 B. and that if the property in the slave & Ald. 354; Buron v. Denman is interfered with by a British sub(1848), 2 Ex. 167; Santos v. Illidge ject, to the injury of the owner, an (1860), 8 C. B., N. S. 861 ; 29 L. J. action for damages will lie to the C. P. 348. The effect of these extent of the loss sustained." The decisions is thus stated by Cockburn, dictum of Best, C.J., in Forbes v. C.J., in his memorandum on the Cochrane (1824), 2 B. & C. 468, subject, to be found in the report of that “no action founded upon a the Royal Commission on Fugitive right arising out of slavery,” could Slaves, p. xxvii. :

6. These cases

be maintained in English courts, establish beyond controversy that the must therefore be taken with resertribunals of this country recognise vation. The proposition at the the right of property of the owner of head of this chapter must be read

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 (1); but here a contract to serve for life is valid, provided 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). The Common Law would not even recognise the

in the light of the above de. cisions.

(1) 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, Si même le temps stipulé était tellement long qu' il pût équivaloir à une aliénation de la liberté, bien qu'il ne comprit pas la rie entière du locateur, les juges pour. raient 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 be fatal to all contracts of hiring and service, what. ever might be their duration. Allen v. Shene, Morrison's Dictionary of Decisions, 23, 9454, a contract to serve three terms of nineteen years was "reduced," as being in restraint of trade. As to other Scotch deci. sions, 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. f. 14, p. 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, i. 424; Chitty on Contracts, 10th ed., 532.

(n) Clarke v. Gape (1596), 5 Reports, 129. It turns on the doctrine of Magna Charta, c. 9, Nullus liber homo imprisonetur ; Foster v. Jackson, (no date; but in time of Charles II.), Hob. 61. See the protest of Ellenborough, C.J., in Rex v. Stormarket (1808), 9 East, 211, against the idea that a parish apprentice could be transferred as if a parish slave.

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