seem, in spite of opinions to the contrary, that martial law, thus understood, cannot exist in England(a); if, however, its exercise here were ever lawful, necessity alone could justify it(b). *CHAPTER XIV. MASTER AND SERVANT. [*505] HAVING thus commented on the rights and duties of persons as standing in the public relations of magistrates and people, the method originally marked out now leads us to consider their rights and duties in private economical relations. Rights and du ties as to rela tions in private life. The four great relations in private life are, 1st, That of master and servant: which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him(a). 2ndly, That of husband and wife: which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. 3rdly, That of parent and child: which is consequent on marriage, being its principal end and design. It is by virtue of this relation that infants are protected, maintained, and educated; though since the parents, on whom such care is primarily incumbent, may be snatched away by death before they have completed their duty, the law has provided another relation, viz., that of guardian and ward; which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. To the relation of guardian and ward allusion will occasionally be made in ensuing volumes, the three other relations mentioned shall here be treated of in order. *In discussing the relation of master and servant, we shall consider, I., the several sorts of servants, and how this relation is created and Master and servant. [ *506] destroyed; II., the incidents of service and the effect of this relation with regard to the parties themselves; and, III., its effects with regard to other persons. I. As to the several sorts of servants; it has been formerly observed (b) that pure and proper slavery does not, nay cannot, subsist in England; that is, such I. The several sorts of servants. Slavery. whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist anywhere.(126) The three origins of the right of (a) See per Lord Loughborough, Grant v. Gould, 2 H. Bla. 69, 99. (b) See the charge of Cockburn, C. J., to the Grand Jury in Reg. v. Nelson, pp. 84, 85, A. D. 1867. As to the kind of necessity which might avail to justify an act prima facie illegal, see Broom's Constitutional Law, p. 732. (a) See Puff. Lib. 6, cap. 3, s. 4. (b) Ante, p. 151. (126) In the United States, where slavery so long existed, there has been a great change effected, and slavery, as an institution, has been entirely abolished. "Neither slavery nor involuntary servitude, except as a punishment for crime whereof slavery, assigned by Justinian (c), are all of them built upon false foundations (d) As, first, slavery is said to arise "jure gentium," from a state of captivity in war; whence slaves are called mancipia, quasi manu capti. The conqueror, say the civilians, had a right to the life of his captive, and, having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that by the law of nature or nations a man may kill his enemy; he has only a right to kill him in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity could not have subsisted, where a person was reduced to the condition of a slave, since the capturing victor did not actually kill him, but made him prisoner. War, indeed, gives no other right over a prisoner, than merely to disable him from doing us harm, by (c) Servi autem aut nascuntur, aut fiunt; nascuntur ex ancillis nostris: fiunt aut jure gentium, id est, ex captivitate; aut jure civili, cum liber homo major xx annis ad pretium participandum sese venundari passus est. the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U. S. Const. Amendment, art. 13, § 1. “Congress shall have power to enforce this article by appropriate legislation." Ib., § 2. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.". U. S. Const. Amendment, art. 14, § 1. * * But neither the * United States, nor any state, shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slaves; but all such debts, obligations and claims shall be held illegal and void." Ib., § 4. "The congress shall have power to enforce, by appropriate legislation, the provisions of this article." Ib., § 5. "The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude." U. S. Const. Amendment, art. 15, § 1. "The congress shall have power to enforce this article by appropriate legislation." Ib., § 2. It may be useful to give, in this connection, some of the acts of congress which affect the condition and rights of those who were formerly slaves, or those of other colored persons. By act of congress of April 9, 1866, 14 Stat. at Large, 27, § 1, it is provided: "That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without any regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right, in every state and territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding." So by act of congress of May 31, 1870, 16 Stat. at Large, 140, § 1, it is provided: “That all citizens of the United States who are or shall be otherwise qualified by law to vote at any election by the people in any state, territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any state or territory, or by or under its authority, to the contrary notwithstanding." The enforcement of these statutes is duly provided for by penalties, punishments, and the use of the United States officers, army and navy, if needed for that purpose. confining his person; it does not give a right to kill, torture, abuse, plunder, or even enslave an enemy, when the war is over. Since, therefore, the right of making slaves by captivity *depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail like- [ *507] wise. But, secondly, it is said that slavery may begin "jure civili;" when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very just: but when applied to strict slavery, in the sense of the laws of ancient Rome, is also incorrect. Every sale implies a price, a quid pro quo, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life and liberty, both of which (in absolute slavery) are held to be in the master's disposal? The seller's property also, the very price he seems to receive, devolves ipso facto to his master the instant he becomes his slave. In this case, therefore, the buyer gives nothing, and the seller receives nothing; of what validity then can a sale be, which destroys the very principles upon which all sales are founded? Lastly, we are told, that besides these two ways by which slaves "fiunt," or are required, they may also be hereditary; "servi nascuntur;" the children of acquired slaves are jure naturæ, by a negative kind of birthright, slaves also. But this, being built on the two former rights, must fall together with them. If neither captivity, nor the sale of one's self, can by the law of nature and reason reduce the parent to slavery, much less can they reduce the offspring. Upon these principles the law of England abhors, and will not endure the existence of, slavery within this nation; so that when an attempt was made to introduce it by statute 1 Edw. VI. c. 3, which ordained that all idle vagabonds should be marked on the breast with a hot iron, should be made slaves, and fed upon bread, water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition even in the most *abandoned rogues; and therefore this statute was two years after[*508] wards repealed (e). And it is settled(f), that a slave, the instant he lands in England, becomes thus far a freeman; that our law will protect him in the enjoyment of his person and his property. Yet, as there must always be different ranks in society, and as the poor must always have recourse to labour as a means of obtaininy subsistence, the law recognizes a state of servitude founded on contract to be lawful. The duration of this contract must be regulated by the parties themselves, and however strictly the law may interpret, and however jealously it may look upon, a contract to serve for life, there is no reason for saying that it is necessarily illegal(g), at any rate, if it be entered into by one who is sui juris at the time(h). 1. The first sort of servants which we shall mention as acknowledged by the laws of England, are menial servants; so called from their being intra mania, or domestics; a definition which applies to gardeners, grooms, and others(i), if they reside within the curtilage or domain of their master, though not actually in his house. The contract between a menial ser Menial servants. (e) 3 & 4 Edw. 6, c. 16, ss. 1,9. (f) Sommersett's Case, 20 St. Tr. 1; Broom's Const. Law, 65. (g) Wallis v. Day, 2 M. & W. 273; Note to Sommersett's Case, Broom's Const. Law, 115. VOL. I. 42 (h) See Williams v. Brown, 3 B. & P. 69. (i) Nowlan v. Ablett, 2 Cr. M. & R. 54; also to a huntsman, though not residing within the curtilage. Nicoll v. Greaves, 17 C. B. N. S. 27. vant and his master arises upon the hiring, and may be either expressed in terms, or implied by custom(j).(127) If the hiring be general without any (j) Metzner v. Bolton, 9 Exch. 518. (127) In the United States there is no such distinction as that stated in the text in relation to contracts for personal services. By our law such contracts are all regarded as standing upon an equality as to construction and as to the rights of the employer and employee. There are cases of bailments, and of professional services, which stand upon the principles applicable to those cases. But with regard to personal services proper, the law speaks but one language for all parties. In relation to hiring, it is always a question of fact whether there was a hiring, and if so, for what length of time, and upon what terms; and the rights of the parties are then governed by the general rules of law applicable to all other contracts. The terms "master" and "servant" are frequently used in legal discussions, and they usually have a definite signification when used in reference to the rights and liabilities of the parties. And yet there are cases in which the question whether the employer was a "master," in such a sense as to render him liable for the negligence of the employed, has seriously perplexed the courts. In ordinary cases, if services are rendered by one person for another, at his request, the law will imply a promise to pay a reasonable compensation for such services as are rendered, in the absence of any express agreement upon the subject. But the circumstances of the case may be such that no such implied promise will arise. As an instance of this, it is held that a daughter who remains at home, after arriving at the age of twenty-one years, and continues to perform the same duties in the family as before that time, and receiving the same advantages, will not be entitled to wages upon any implied promise. Andrus v. Foster, 17 Vt. 556; Dye v. Kerr, 15 Barb. 444; Conger v. Van Aernum, 43 id. 602; Davis v. Goodenow, 27 Vt. 715; Ridgway v. English, 2 Zabr. 409; Munger v. Munger, 33 N. H. 581; Leidig v. Coover's Ex'rs, 47 Penn. St. 534. The rule is the same as to a son. Risor v. Johnson, 1 Cart. (Ind.) 100; Hussey v. Roundtree, 1 Busb. L. 110; Prickett v. Prickett's Ex'rs, 20 N. J. Eq. (5 C. E. Gr.) 478; Ridgway v. Engish, 2 Zabr. 409; Zerbe v. Miller, 16 Penn. St. 488. The law will not imply a promise to pay for board or services, as among the members of the same family and persons more or less intimately or remotely related, where they are living together as one household, and nothing else appears. A stepfather who assumes the relation to the infant son of his wife by a former husband, and who faithfully discharges the duties of that relation by receiving such child into his family, and educating and supporting him on the same footing as his own children by a former wife, is not liable for wages, unless upon an express promise to pay them, even though the infant's services were worth more than the cost of his education and support. Williams v. Hutchinson, 3 N. Y. (3 Comst.) 312; Mulhern v. McDavitt, 82 Mass. (16 Gray) 404. The rule is the same as to a stepdaughter. Lantz v. Frey, 14 Penn. St. 201. So where an infant nephew, who is out of a home, is received into a family, and is provided with food and clothing, and works in the same way as the children of the family, there will be no implied contract to pay wages. Defrance v. Austin, 9 Penn. St. 309; Weir v. Weir, 3 B. Monr. 647. See Partlow v. Cooke, 2 R. I. 451, as to services by a niece for an aunt. Adopted children have the same right to compensation that natural children have, and no other or greater. Lunay v. Vantyne, 40 Vt. 501. A minor who was indentured as an apprentice, and has served in that capacity, cannot recover wages, although the indentures are declared invalid, and the minor discharged from them, because it is evident that there was no intention to pay wages, and therefore no implied promise to pay can arise in such a case. Maltby v. Harwood, 12 Barb. 473. See, also, Griffin v. Potter, 14 Wend. 209. Whether there was an agreement to pay compensation is a question of fact in such cases. Hart v. Hart's Adm'r, 41 Mo. 441; Green v. Roberts, 47 Barb. 521; Adams v. Adams' Adm'r, 23 Ind. 50; Partlow v. Cooke, 2 R. I. 451. Services voluntarily performed for another person, without his knowledge or request, particular time either expressly or impliedly(k) limited, the law construes it to be a hiring for a year(1), subject however by custom to the condition that it may be determined by either party, on giving a month's notice or paying a month's wages(m). This *custom however is strictly confined to menial ser[ *509] vants, and does not apply to those occupying a superior position, such as that of governess(n), clerk (o), or warehouseman(p); nor to those whose situation is not domestic, such as a labourer in husbandry, or a farm bailiff(q). A menial servant is however not exempted from the general rule of being liable to though beneficial to the latter, will not furnish a ground of action. Bartholomew v. Jackson, 20 Johns. 28; Ehle v. Judson, 24 Wend. 97; Frear v. Hardenbergh, 5 Johns. 272; Allen's Adm'r v. Richmond College, 41 Mo. 302. Where services are rendered by one person for another, upon a mutual understanding that compensation therefor is to be made by will, and no such provision is made by will, an action to recover the value of the services will be sustained. Robinson v. Raynor, 28 N. Y. (1 Tiff.) 494. But if there is no such contract, express or implied, and the services are performed in the mere hope of a provision in a will for a compensation, no action will lie, although no such provision be made. Martin v. Wright's Adm'rs, 13 Wend. 460; Eaton v. Benton, 2 Hill, 578; Lee v. Lee, 6 Gill. & Johns. 309; Little v. Dawson, 4 Dall. 111. A woman who has lived with a man in the supposition that she was his wife, when she was not, because the marriage was void on account of his having a wife at the time of the second marriage, cannot recover of his executor for the services rendered while living with him. Cropsey v. Sweeney, 27 Barb. 310; S. C., 7 Abb. Pr. 129. So a woman who lives with a man in a state of concubinage cannot recover compensation for services performed for him, without proof of a contract of hiring. Swires v. Parsons, 5 Watts & Serg. 357. The length of time for which a hiring shall continue may be fixed by express contract, or may be implied from circumstances. If the contract is express, the time will be limited by that. In other cases the facts and circumstances will enable a court or jury to fix it according to the evidence. A contract to work for a specified sum per month, but not mentioning the term of service, is a hiring by the month. Beach v. Mullin, 34 N. J. L. 343. A continuance in the employment of the hirer, with his consent, and after the termination of the time specified in the agreement, is equivalent to a new hiring upon the same terms. Vail v. Jersey Little Falls Manuf'g Co., 32 Barb. 564; Grover, etc., Machine Co. v. Bulkley, 48 Ill. 189. If the contract is an oral one, and it is, by its terms, to continue for a term longer than one year, it will be void by the statute of frauds. Drummond v. Burrell, 13 Wend. 307; Shute v. Dorr, 5 id. 204; Jones v. Hay, 52 Barb. 501; Hinckley v. Southgate, 11 Vt. 428; Tuttle v. Swett, 31 Me. 555; Pitcher v. Wilson, 5 Mo. 46; Kelly v. Terrell, 26 Ga. 551; Hill v. Hooper, 1 Gray (Mass.), 131; Emery v. Smith, 46 N. H. 155. If, however, the terms of the contract are such that it may be performed within a year, it will be valid. Russell v. Slade, 12 Conn. 455; Roberts v. Rockbottom Co., 7 Metc. (Mass.) 46; Hill v. Jamieson, 16 Ind. 125; Bell v. Hewitt, 24 id. 280; Rogers v. Brightman, 10 Wis. 55; Foster v. McO'Blenis, 18 Mo. 88. See Peter v. Compton, 1 Smith's Lead. Cas. 432. Where services are rendered under an oral contract to work for three years, which is therefore void by the statute, yet no action can be maintained to recover their value, unless the employer refuses to go on with the contract; and if he is willing to perform on his part, there can be no implied promise by him to pay for the services rendered under the express oral contract. Galvin v. Prentice, 45 N. Y. (6 Hand) 162. |