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 (b). 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 (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 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 (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. (ƒ) (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; he goes back to a place where slavery awaits him, and where experience has taught him slavery is not to be avoided" (k). slaves in London when Sommersett's (A) 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 C. B., N. S. 861; 29 L. J. C. P. 348. 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 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 decisions. (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 pút 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 be fatal to all contracts of hiring and service, whatever might be their duration. In 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 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. 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. Stowmarket (1808), 9 East, 211, against the idea that a parish apprentice could be transferred as if a parish slave. |