The case of

she might undoubtedly, in that case, disaffirm it. Slocombe v. Glubb, (d) admitted that a male infant may bar himself by agreement before marriage, either of his estate by the courtesy, or of his right to his wife's personal property; and both the male and female infant can settle their personal estate upon marriage. The cases of Strickland v. Coker, (e) and Warburton v. Lytton (f) are considered by Mr. Atherly (g) as favorable to the power of a male infant to settle his real estate upon marriage; and that seems to be decidedly his opinion. But since the decision of Lord Eldon, in Milner v. Lord Harewood, this conclusion * becomes questionable; for if a female infant can- 245 not settle her real estate without leaving with her the option, when twenty-one, to revoke it, why should not the male infant have the same option? 1

(6.) Suits in equity against them.

*

The law is so careful of the rights of infants, that if they be made defendants at the suit of creditors, the answer of the guardian ad litem, does not bind or conclude them. (a) 2 Such an answer in chancery, pro forma, leaves the plaintiff to prove his case, and throws the infant upon the protection of the court.3 It was the maxim of the Roman law, that an infant was never presumed to have done an act to his prejudice, pupillus pati posse non intelligitur. (b) In decrees of foreclosure against an infant, there is, according to the old and settled rule of practice in chancery, a

(d) 2 Bro. C. C. 545.

(e) 2 Cas. in Ch. 211.

(f) Cited in 4 Bro. C. C. 447.

(g) Treatise on Marriage Settlements, pp. 42-45.

(a) Eccleton v. Petty, Carthew, 79.

(b) Dig. 50, 17, 110.

1 By 18 & 19 Vict. c. 43, male infants at the age of twenty, and female infants at the age of seventeen years may, with the approbation of the Court of Chancery, make valid settlements, or contracts for the settlements of all their property, real or personal, and whether in possession, reversion, remainder, or expectancy. Upon a petition under this Act, to make a settlement on marriage, the court will not direct an inquiry as to the propriety of the proposed marriage. In re Dalton, 39 E. L. & Eq. 145.

* Crain v. Parker, 1 Carter (Ind.) 374; they are not bound by the guardian's waiver, of service of process. Robbins v. Robbins, 2 Carter, 74. Lenox v. Netrebe, 1 Hemp. 251. 2 The court will exercise its protective jurisdiction in behalf of infant parties to a suit, without waiting to be specially invoked so to do. Lefevre v. Laraway, 22 Barb. (N. Y.) 167.

day given him when he comes of age, usually six months, to show cause against the decree, and make a better defence; and he is entitled to be called in for that purpose by process of subpoena. (c) The decree in ordinary cases would be bad on the face of it, and ground for a bill of review, if it omitted to give the infant a day to show cause after he came of age; though Lord Redesdale held, in Bennett v. Hamill, (d) that such an error in the decree would not affect a bona fide purchase at a sale under it. (e) But in the case of decrees for the foreclosure and sale of mortgaged premises, or for the sale of lands under a devise to pay debts, the infant has no day, and the sale is absolute. (f) In the case of a strict foreclosure of the mortgagor's right without a sale, the infant has his day after he comes of age; but then he is confined to showing errors in the decree, and cannot unravel the accounts nor redeem. (g)

(c) Thomas v. Gyles, 2 Vern. 232. Lord Ch. in Cary v. Bertie, Ibid. 342. Sir Joseph Jekyll in Erye, v. Countess of Shaftesbury, 2 P. Wms. 120. Napier v. Effingham, Ibid. 401. Bennet v. Lee, 2 Atk. 529. Jackson v. Turner, 5 Leigh, 119. Mills v. Dennis, 3 Johns. Ch. 367. Kelsall v. Kelsall, 2 Myl. & Keen, 409. In England, since the demurrer of the parol has been abolished by the statutes of 11 Geo. IV. and 1 Wm. IV. ch. 47, an infant defendant is not entitled to have six months given to him, after attaining the age of 21, to show cause against a decree. Powys v. Mansfield, 6 Simons, 637. The distinction seems to be, that if the decree directs the estate to be sold, the infant has not his six months, but on a simple decree of foreclosure he is allowed the six months. Scholefield v. Heafield, 7 Simons, 667. Unless statutory regulations dispense with the rule in specific instances, as in partition and foreclosure, it is the rule in New York, that an infant is to have six months after coming of age, to show cause against a decree. This must be done whenever the inheritance is bound. The right of the parol to demur is abolished by statute in New York, in all cases of descent or devise. Harris v. Youman, 1 Hoffman Ch. 178.

(d) 2 Sch. & Lef. 566.

(e) Lord Eldon, in 17 Vesey, 173, 178.

(ƒ) Booth v. Rich, 1 Vern. 295. Cooke v. Parsons, 2 Vern. 429. Prec. in Ch. 184, S. C. Mills v. Dennis, 3 Johns. 367.

(g) Mallack v. Galton, 3 P. Wms. 352. Bishop of Winchester v. Beavor, 3 Vesey, 317. Williamson v. Gordon, 19 Vesey, 114.

LECTURE XXXII.

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. Paley, (a) may, consistently with the law of nature, arise from three causes, namely, from crimes, captivity, and debt. In the Institutes of Justinian, (b) slaves are said to become such in three ways, namely, 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 above the age of twenty, for the sake of sharing the price. Sir William Blackstone (c) 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 law (d) 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 the 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. (e) 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

(a) Principles of Moral Philosophy, pp. 158, 159.

(b) Inst. 1, 3, 4.

(c) Com. vol. i. p. 423.

(d) Inst. 1, 3, 2.

(e) 1 Blacks. Com. 424.

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. (f) In the case of Somerset, 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 discussion, and upon the ground that slavery did not and could not exist in England, under the English law. (g) The Scotch lawyers (h) mention the case of Knight, a negro slave, brought from the West Indies to Scotland by his master in 1773; 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. 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 the 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, nor confine and export another, as his

Contra, Butts v. Penny, 2
Mr. Justice Best, in Forbes

(f) Smith v. Gould, 2 Salk. 666. 2 Lord Raym. 1274. Lev. 201, and Lord Hardwicke, in Pearne v. Lisle, Amb. 75. v. Cochrane, 2 Barn. & Cress, 448, 3 Dowl. & Ryl. 679, S. C., said, that the judges were above the age in which they lived, and stood upon the high ground of natural right, when they declared that in England human beings could not be the subject-matter of property. He insisted that the moment a slave put his foot on board a British man-ofwar, out of the waters of colonial jurisdiction, he became free. This is the law now in France; and as soon as the slave lands on the French soil, he is free. The decision in the case last mentioned was, that if a slave from a slave-holding state or country gets out of the territory, and under the protection of British jurisdiction, without any wrongful act done by the party giving that protection, he becomes free, and the English law protects him from being reclaimed. The doctrine of the Supreme Court of the United States, in Prigg v. The Commonwealth of Pennsylvania, 16 Peters (U. S.) 539, was to the same effect; for it was declared that a state of slavery was a mere municipal regulation, and no nation was bound to recognize the state of slavery as to foreign slaves within its territory.1

(g) Loft, 1. Harg. State Trials, vol. xi. p. 339.

(h) 1 Ersk. Inst. 159. Kames's Principles of Equity, vol. ii. p. 134.

1 No action lies at common law for harboring runaway slaves, or for aiding them in escaping from their owners; and the states have no jurisdiction under the Act of Congress. Kauffman v. Oliver, 10 Barr (Penn.) 514. Jones v. Vanzandt, 2 McLean, 596. The whole subject belongs to Congress and the Courts of the United States. Prigg v. the Commonwealth of Penn. 16 Peters (U. S.) 539.

property, yet the claim of imported slaves for wages, *without a special promise, does not seem to receive the *249 same protection and support as that of a freeman. (a) Mr. Barrington, who has given a very strong picture of the degradation and oppression of the tenants under the English tenure of pure villenage, (b) 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. (c)

It is no less true than singular, that personal 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 nearly in the ratio of thirty thousand to four hundred thousand. (d) At Athens, they were treated with more humanity than in Thessaly, Crete, Argos, or Sparta; for at Athens the philosophers taught and recommended humanity to slaves as a sure test of virtue. They were entitled to sue their master for excessive ill

(a) Alfred v. Marquis of Fitzjames, 3 Esp. Cas. 3. The King v. The Inhabitants of Thames Ditton, 4 Doug. 300. Where a West India slave accompanied her master to England, and voluntarily returned back to the West Indies, it was held that the residence in England did not finally emancipate her, and she became a slave on her return, though no coercion could be exercised over her while in England. The Slave Grace, 2 Hagg. Adm. 94.

(b) Observations on the Statutes, chiefly the more Ancient, pp. 232–241. (c) See infra, p. 254, n. (a).

(d) 1 Mitf. Hist. 355. A small aristocracy governed Attica, while the soil was cultivated by a working class of 400,000 slaves, and a similar disproportion existed throughout Greece. The Island of Ægina is stated to have held, at one time, 470,000 slaves, a large proportion of whom were agricultural serfs. The slave population of Corinth, in her greatest prosperity, was rated at 460,000 slaves. According to a learned article on "the democracy of Athens," in the New York Review for July, 1840, the whole number of slaves in Attica was about 365,000, to 95,000 citizens and 45,000 resident foreigners. Even Aristotle considered the relation of master and slave just as indispensable, in every well-ordered state, as that of husband and wife. Arist. Pol. b. 1, ch. 1.