II. Of hired servants.

The next class of servants which I mentioned are hired servants, and this relation of master and servant rests altogether

mission of slaves is guarded in some, at least, of the slaveholding states, from abuse and public mischief, by legislative provisions. Thus, for instance, in Tennessee, a deed or will emancipating a slave is not void, but it communicates to the slave only an imperfect right, until the state has assented to the act. The statute of 1777, authorizing the county courts to give the assent of the government to the manumission of slaves, restricted the assent to cases where the slave had rendered meritorious services. The act of 1801 repealed that part of the act of 1777, requiring the slave to have rendered meritorious services as a condition of the emancipation, and the county courts were to exercise their sound discretion in giving or withholding the assent. The act of 1829 vested the same discretion in the chancellors of the state. The act of 1831 required that slaves, upon being emancipated, be removed beyond the limits of the state; and, in accordance with the policy of the act, the courts are bound to make it a condition of the assent to the manumission, that security be given that the emancipated slave be forthwith removed beyond the limits of the United States, and no free negro is permitted to enter that state or return to it. See Fisher v. Dabbs, 6 Yerger's Tenn. Rep. 119, where Ch. J. Catron gives a strong picture of the degradation of free negroes living among whites, without motive and without hope. In Virginia and Kentucky, it is understood that slaves can be set free by will, without the concurrence of the state. The amended constitution of Tennessee, of 1834, prohibits the legislalature from passing laws for the emancipation of slaves, without the consent of the owners. So, by the constitution of the territory of Arkansas, as made by a convention of delegates in 1835, there is the like prohibition, and a prohibition, also, of laws preventing emigrants from bringing their lawful slaves with them from other states, for their own use, and not as merchandise. In Alabama, by statute, (Aik. Dig. 452,) all negroes, mulattoes, Indians, and all persons of mixed blood, descended from negro or Indian ancestors, to the third generation inclusive, though one ancestor of each generation may have been a white person, whether bond or free, are declared incapable in law to be witnesses in any case whatever, except for and against each other. In Ohio, persons having more than one half white blood are entitled to the privileges of whites. Wright's Ohio Rep. 578. The rule in Virginia and Kentucky is, that a mulatto, or one having one fourth of African blood, is presumptive evidence of being a slave, and that an apparently white person or Indian is prima facie free, and is actually so, if having less than a fourth of African blood. 3 Dana's Ken. Rep. 385. The best test of the distinction between black and white persons is, says this case, autopsy, or the evidence of one's own senses, and personal inspection by a jury is therefore the best and highest evidence as to color. By the amended constitution of North Carolina, in 1835, no free negro, mulatto, or free person of mixed blood, descended from negro ancestors to the fourth generation inclusive, though one ancestor of each generation may have been a white person, shall vote for members of the legislature. The right of voting is confined to white freemen by the constitutions of Delaware, Virginia, Kentucky, Louisiana, Mississippi, Illinois, Indiana, Ohio, Missouri, South Carolina, and Georgia; and by law in Connecticut, none but free white persons can be naturalized. See supra, p. 72. In South Carolina, a free person of color is not a competent witness in the courts of record, although both the parties to the suit are of the same class with himself. Groning v. Devana, 2 Bailey's Rep. 192.

upon contract. The one is bound to render the service, and the other to pay the stipulated consideration.' But if the servant

The African race, even when free, are essentially a degraded caste, of inferior rank and condition in society. See the judicial sense of their inferior condition, as declared in the case of The State v. Harden, and The State v. Hill, 2 Spear's S. C. Eq. Rep. 150, 152. Marriages between them and whites are forbidden in some of the states where slavery does not exist, and they are prohibited in all the slaveholding states; and when not absolutely contrary to law, they are revolting, and regarded as an offence against public decorum. The statute of North Carolina, prohibiting marriages between whites and people of color, includes in the latter class all who are descended from negro ancestors, to the fourth generation inclusive, though one ancestor of each generation may have been a white person. State v. Watters, 3 Iredell, 455. By the Revised Statutes of Illinois, published in 1829, marriages between whites and negroes, or mulattoes, are declared void, and the persons so married are liable to be whipped, fined, and imprisoned. By an old statute of Massachusetts, in 1705, such marriages were declared void, and they were so under the statute of 1786. And the prohibition was continued under the Mass. R. S. of 1836, which declared that no white person shall intermarry with a negro, Indian, or mulatto. This prohibition, however, has since been repealed. A similar statute provision exists in Virginia and North Carolina. Marriages of whites and blacks were forbidden in Virginia, from the first introduction of blacks, under ignominious penalties. Hening's Statutes, vol. i. p. 146. Such connections, in France and Germany, constitute the degraded state of concubinage, which was known in the civil law as licita consuetudo semimatrimonium, but they are not legal marriages, because the parties want that equality of status or condition which is essential to the contract. Ohio and Indiana are not slaveholding states; and yet, by statute, a negro, mulatto, or Indian, is not a competent witness in civil cases, except where negroes, mulattoes, or Indians alone are parties, nor in pleas of the state, except against negroes, mulattoes, or Indians. In the act of Ohio of 1829, for the support and better regulation of common schools, the instruction in them is declared to be for the "white youth of every class and grade, without distinction." And in the act of Ohio of 1807, to regulate black and mulatto persons, it is declared that no black or mulatto person shall be permitted to settle or reside in the state, unless he first produce a fair certificate from some court within the United States, under the seal of the court, of his actual freedom. Nor is a negro or mulatto person permitted to emigrate into, and settle within that state, unless within twenty days thereafter he enter into a bond, with two or more freeholders, in $500, conditioned for his good behavior, and to pay for his support, if found unable to support himself. This act is still in force. See R. S. of Ohio, 1831, and of Indiana, 1838. These provisions have pretty effectually protected the people of Ohio and Indiana from the presence of any colored population. A statute provision of the

1 The relation of master and servant arises, where one suffers another to proceed in a service, in which the latter engages only as a volunteer. He who receives the benefit in such a case, is liable as master for the negligent acts of the other. Hill v. Morey, 26 Verm. 178. The hirer of a person of full age, by the year, can maintain an action for a loss of service against one who imprisons the servant. Woodward v. Washburn, 3 Denio's R. 369. So an action lies for enticing away a servant. Haight v. Badgeley, 15 Barbour, R. 499.

hired for a definite term, leaves the service before the end of it, without reasonable cause, or is dismissed for such misconduct

same import was passed in Michigan, April 13th, 1827, and in Illinois a like policy appears in several statutes between 1819 and 1833, prescribing the means requisite for a black or mulatto person to acquire a lawful residence. So, also, in Indiana, a similar policy prevails by act of 1831; but that state liberally secures to the master the right to pass through the state to any other state with his negro, or mulatto, or other servants.1 In Connecticut, by statute, in 1833, any colored person, not an inhabitant of the state, who shall come to reside there for the purpose of being instructed, may be removed, under the act for the admission and settlement of inhabitants; and it was made penal to set up or establish any school or literary institution in that state, for the instruction of colored persons not inhabitants of the state, or to instruct or teach in any such school or institution, or to board or harbor, for that purpose, any such persons, without the previous consent, in writing, of the civil authority of the town in which such school or institution might be. In an information under that provision against Prudence Crandall, filed by the public prosecutor, it was held, by Ch. J. Daggett, at the trial in 1833, that free blacks were not citizens within the meaning of the term, as used in the constitution of the United States. And in "An inquiry into the political grade of the free colored population under the constitution of the United States," and of which John F. Denney, Esq., of Pennsylvania, is the author, this same doctrine is elaborately sustained. The decision in Connecticut was brought up for review before the Supreme Court of Errors, and the great point fully and ably discussed; but the cause was decided on other ground, and the question touching the citizenship of free persons of color was left unsettled. Since that decision, William Jay, Esq., in "An inquiry into the character and tendency of the American Colonization and American Anti-Slavery Societies," (pp. 38-45,) has ably enforced the other side of the question, that free colored people, or black persons, born within the United States, are citizens, though under many disabilities. Perhaps, after all, the question depends more on a verbal than on an essential distinction. It is certain that the constitution and statute law of New York, (Const. art. 2, N. R. Revised Statutes, vol. i. p. 126, sec. 2,) speaks of men of color as being citizens, and capable of being freeholders, and entitled to vote. And if, at common law, all human beings born within the legiance of the king, and under the king's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to the United States, in all cases in which there is no express constitutional or statute declaration to the contrary. Blacks, whether born free or in bondage, if born under the jurisdiction and allegiance of the United States, are natives, and not aliens. They are what the common law terms natural-born subjects. Subjects and citizens are, in a degree, convertible terms as applied to natives; and though the term citizen seems to be appropriate to republican freemen, yet we are equally, with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land. The privilege of voting, and the legal capacity for office, are not essential to the character of a citizen, for women are citizens without either; and free people of color may enjoy the one, and may acquire, and hold, and

1 By the constitution of Indiana, of 1851, (art. 13, sec. 1,) it is provided that "no negro or mulatto shall come into or settle in the state after the adoption of this constitution."

as justifies it, he loses his right to wages for the period * 259 he has served. (a) A servant so hired * may be dismissed by the master before the expiration of the term, either for immoral conduct, wilful disobedience, or habitual neglect. (b)'

devise, and transmit, by hereditary descent, real and personal estates. The better opinion, I should think, was, that negroes or other slaves, born within and under the allegiance of the United States, are natural-born subjects, but not citizens. Citizens, under our constitution and laws, mean free inhabitants, born within the United States, or naturalized under the law of congress. If a slave born in the United States be manumitted, or otherwise lawfully discharged from bondage, or if a black man be born within the United States, and born free, he becomes thenceforward a citizen, but under such disabilities as the laws of the states respectively may deem it expedient to prescribe to free persons of color. It was adjudged by the Supreme Court of Pennsylvania, in 1837, that a negro or mulatto was not entitled to exercise the right of suffrage. Hobbs v. Fogg, 6 Watts, 553. And it has been adjudged in Tennessee, in 1838, in the case of The State v. Claiborne, Meigs, 331, that free blacks are not citizens within the provision of the constitution of U. S. art. 4, sec. 2; for free negroes are not in any of the states entitled to all the privileges and immunities of citizens, and a state may constitutionally prohibit free persons of color from removing into the state to reside therein. See, also, the official opinion of the attorney-general of the United States, that free persons of color in Virginia were not citizens within the intent and meaning of the act of congress regulating the foreign and coasting trade. Opinions of the Attorneys-General, Nov. 7th, 1821, vol. i. 382.

(a) Huttman v. Boulnois, 2 Carr. & Payne's N. P. Rep. 510. Turner v. Robinson, 6 ibid. 15. Libhart v. Wood, 1 Watts & Serg. 265. If the servant, according to this last cause, commits a criminal offence, though not immediately injurious to his master, he cannot recover his wages. A person hired by the year cannot quit the service without forfeiting his salary, nor can he be dismissed at pleasure, or without just cause, and thereby be deprived of it. Beckman v. N. O. Cotton Press Co. 12 Louis. Rep. 67. See, also, infra, 509. Covenants for personal service cannot be specifically enforced; but the excepted cases of apprentices depend upon parental authority, and of soldiers and sailors on national policy. Mary Clark's case, 1 Blackford's Ind. Rep. 122.

(b) Callo v. Brouncker, 4 Carr. & Payne's N. P. Rep. 518. Domestic or menial servants, though hired for a year, may, by the custom respecting them, be dismissed on a month's notice, or on the payment of a month's wages. 12 J. B. Moore's Rep. 556.2 If there be an entire and express contract that certain wages or compensation are to be paid, on condition of a service performed, the service is a condition precedent, and must be performed before suit brought. Cutter v. Powell, 6 Term Rep. 320. But if a servant be hired in the common way, with a reference to a general understanding, he is, said Lawrence, J., in that case, entitled to wages for the time he serves, though it be not for the whole year. If hired to labor for a specific time, and

1 The rule on the subject of wilful disobedience is very stern. See the case of Turner v. Mason, 14 Mees. & Wels. R. 112. No case in this country, it is believed, goes so far in upholding the authority of the master.

2 A governess is not within the rule. Todd v. Kerrich, 14 E. L. & Eq. 433.

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, has been held liable in damages; and he is also said to be liable if the injury proceeds from the negligence or want of skill in the servant, for it is the duty of the master to employ servants who were honest, skilful, and careful. (a) 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,

he serves part of the time, and is disabled by sickness from completing the service, he is entitled to be paid pro rata. Fenton v. Clark, 11 Vermont, Rep. 557. If the hired servant for a year leaves the service within the year without cause, it seems to have been conceded, in Hartwell v. Jewett, 9 N. H. Rep. 249, that after the expiration of the year the servant might maintain a suit on a quantum meruit for the time he served. Nolan v. Danks, 1 Rob. Louis. Rep. 332, it was held, under the Louisiana Code, that if a laborer, without just cause, before the expiration of his term of service, leaves his employer, he forfeits his wages. If his employer sends him away without just cause, before the end of the term, he is entitled to his full wages for the full term; and if he be discharged, for good cause, before the end of his term of service, he is entitled to his wages up to the time of his discharge. This last point is contrary to the rule as stated in the text, and seems to be not quite consistent with the first point in the decision, though it is supported by the court with some strong considerations. The rule in New York is, that if a person hired for a certain time, at a specified compensation, be discharged without cause within the time, he is entitled to his full wages for the whole time, but the question of compensation seems to be subject to reasonable qualifications.1 Costigan v. Mohawk R. R. Co. 2 Denio, 609. Mr. Sedgwick, in his Treatise on the Measure of Damages, p. 219, says, that it is a delicate and vexed question whether the party has any redress who fails to perform an agreement which is entire, and only performs part of it, though the doing of the thing is a condition precedent. See infra, p. 509, where the subject is further considered.

(a) 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. Penn. D. and M. Steam N. Co. v. Hungerford, 6 Gill & Johnson, 291. Cowen, J., in Wright v. Wilcox, 19 Wendell, 345. Pothier on Obligations, Nos. 453-456. Domat, 1, 16, 3, No. 1. Harriss v. Mabry, 1 Iredell, N. C. Rep. 240.

'But where a person who agreed to work for a given time, and had the privilege of leaving if dissatisfied, left without alleging any dissatisfaction, but merely to attend to other business, it was held he could not recover for what he had done. Monell v. Burns, 4 Denio's R. 121. Lantry v. Parks, 8 Cowen's R. 63.