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the local or internal law of England, it was far from being so settled at the time of the establishment of the English colonies in America and of the grants of their respective charters. Villenage continued to exist in England until the year 1661; if, as Blackstone asserts, it may be taken to have been abolished by the act of that year, 12 Car. 2. c. 24, reducing all tenures to free and common socage.1 In some of its forms, villenage, in England, was nearly equivalent to chattel slavery: the villein in gross or at large being, according to Littleton, "annexed to the person of the lord, and transferable by deed from one owner to another, and if he ran away from his lord, or was purloined from him, he might be claimed and recovered by action, like beasts or other chattels."a
But villenage in England, after the time of the Norman invasion, had always the character of a feudal relation, and was connected with the tenure of land. The legal personality of the villein, and a capacity for rights in some degree, was also acknowledged. If under the Saxon government there had been a class of absolute slaves,' it is supposed by Wright, in his treatise on Tenures, that the Normans, carrying out the feudal constitution of a civil state, admitted such slaves to the oath of fealty, creating the legal obligations of a legal person, which conferred a right to protection under the law, and raised the serf to a kind of estate superior to downright slavery, though inferior to every other condition.' The law protected the per
1 2 BL Comm. 98. LoSt's Rep. 8. ■ 1 Co. Lit. § 181. •
• An historical Discourse of the Uniformity of the Government of England, by Nathaniel Bacon of Grab' Inne, (1647) p. 56. Speaking of villein* in the Saxon times,— "The most inferiour of all were those which were anciently called laezi or slaves; those were the dregs of the people, and wholly at the will of their lord to do any service, or undergo any punishment; and yet the magnanimity of the Saxons was such" &c —stating their merciful treatment of slaves; * * • "and though the insolency of the Danes much quelled this Saxon noblenesse, yet it was revived again by the Confessor's laws, which ordained that the lords should so demean themselves towards their men, that they should neither incurre guilt against God, nor offence against the king; or, which is all one, to respect them as Gods people and the king's subjects."
And see Wade's Hist, of the Middle and Working Classes, Part I., ch. 1. Turner's Anglo-Saxons, vol. iii., p. 91.
• Wrights Tenures, pp. 215-217. 2 Bl. Comm. 92. Wade's Hist. &c., p. 9: "In 1102 it was declared in the great council of the nation, held at Westminster, unlawful for any man to sell slaves openly in the market, which before had been the common custom of the country." The author does not give the authority: such a declaration would have been equivalent to a repudiation of absolute chattel slavery.
SERVICE BY CONTRACT. 137
eons of villeins, as the king's subjects, against atrocious injuries of the lord; for he might not kill or maim his villein: and the latter had a right of action against his lord for the mayhem of his own person, or the murder of his ancestor. Neifes had also an appeal of rape, in case the lord violated them by force.1
Even in the times of Littleton and Coke it was said that villenage could exist only by prescription, or by confession in open court. And when most opposite to a free condition it had something of a local character, relating to the land of the lord to whom the villein services were due.* It was therefore an incident of those relations of persons to things, or of the relations of persons to other persons, in respect to those things which were not transferable with the English colonists to America, and did not therefore exist there under the common law, i. e. feudal estates, which were not established in America.'
§ 142. The relation of master and servant, known under the modern common law of England and the same law operating in the British colonies, with personal extent for the inhabitants who are of British race or descent, is a relation exclusively founded on, or arising out of, the voluntary contract of the parties.4 The relation between a minor apprentice and his master, under the same law, is a substitute for, or a modification of, the paternal authority; and the reciprocal rights and obligations of the parties are derivative from the relation of parent and child. This relation, as an effect of the common law of England having personal extent, existed in all the colonies: being created under the administrative authority of the inferior courts, justices of the peace or other officers, to whom a ywawt-patemal authority of guardianship had been delegated by special statutes, or who, in
11 Co. Litt. §§ 189, 190. In respect to the community at large the villein was a legal person, as much as any liber homo. 2 Co. Litt. cap. 1, (7): "Conccssimus et dedimus omnibus liberis hominibus regni nostri, &c. These words in Magna Charta doe include all persons ecclesiastical] and temporall, incorporate, politique, or naturall; nay, they extend also to villeines, for they are accounted free against all men, saving against the lords." 2 Co. Litt. cap. 29, (1): "Xullus liber homo capiatur vel imj.risonetur. This extends to villeins, saving against their lord; for they are free against all men, saving against their lord"
* 2 BL Comm. 92-9& Wilkins's Leg. Saxon, p. 229, et cap. 65. Leg. GulieL L "Prohibemus ut nullus vendat hominem extra putriam."
'And see Neal v. Farmer, 9 Georg. B. 564.
'For a succinct account of the relation between master and servant after the extinction of villenage, see Wade's History die. Part I.
138 MA8TEB AND SERVANT.
being appointed for offices known to the common law of England, assumed it as an incident of office under that law: the rights and duties of the parties being determined by common law rules; though the establishment of the relation was, in most of the colonies, regulated by special statutes.
§ 143. Though the relation of master and servant, as thus recognized under the common law of England and the colonies, is one which may modify in many important respects their rights and obligations in respect to third persons, yet, so far as the obligation of service has depended on contract or the voluntary choice of the servant, it does not appear ever to have been taken to create a right to that service as against other persons; so that the act of decoying or inveigling that servant, from such service, would constitute a wrong which the law would remedy in maintaining the master's right. The right of the master being correlative to obligations on the part of the servant only, the law has given a remedy in such cases only against the servant. It is doubtful, too, whether even the forcible abduction of an adult servant could be resisted by the master, as possessing any specific right in respect to such servant, or as having any other capacity or right, in such case, than that of any third party aiding and assisting such servant in defence of his individual right to personal freedom.1 If, however, the servant should be under age, whether apprenticed or serving with or without wages, the master has been regarded as standing in loco parentis; * having a right, coupled with a duty, to resist such abduction. The right of the master, in the case of such minors, being also a right correlative to obligations on the part of third persons, or the community at large; and it would appear to have been a right of personal custody maintainable at common law, by the remedial writs of habeas corpus and personal replevin. The master in this case standing in a position, as to third parties, similar to that of a husband, parent or guardian.
So far as the relation of master and servant has been founded on contract between them, it has been governed by the common
1 In Hughes's Grand Abridg. p. 1299, it is held that a master may justify an assault in defence of his servant.
» 2 Kent's Comm. p. 261, (283 of 7th Ed.)
STATUS BY LAW OF NATIONS. 189
law rules applicable to contracts. The English common law, as it has been received in America, has never enforced the contract, as against the party contracting to serve, by compelling a specific performance. It has only given a remedy between the parties in pecuniary damages, as in case of a breach of any other contract.1
§ 144. It has been shown in the first chapter that the unwritten or common law, in England as well as in every other country, being derived by a judicial recognition of natural reason applied to the necessary conditions of human existence,— in determining what principles are to be received as rules of natural reason with the force of positive law, the tribunals of each country must refer to standards indicatory of the juridical will of the state from which they derive their authority. It was further shown that among these standards are those principles which are known from history to prevail generally among all nations, forming a general or universal jurisprudence—a historical law of nations—which must be received as part of the jurisprudence of the state; unless the local law of the state, derived from its own national usage and judicial precedent, or from positive legislation, contains principles promulgated with universal personal extent, having a contrary effect. Therefore in determining what that common law of England was which accompanied the British colonists in America as a personal law, it must be inquired whether, at the time of the settlement of the colonies, there were any principles of universal jurisprudence —historical law of nations—affecting the status or condition of natural persons, which could, in England, be judicially applied as part of the common law; and whether, at that time, the local law of England, or rather the law derived from its own several national usage, and its own judicial precedents or legislation (operating without reference to the existence of other states or nations), contained rules, having a contrary effect,
1 1 Blocltf. Ind. R. 122, (1821) case of Mary Clark, a woman of color. Marg. note. "It is a general rule that covenants for personal service cannot be specifically enforced either at common law or by statute. The case of apprentices depends on parental authority, that of soldiers and sailors on national policy." The condition of adult servants indentured under contract, which was common during the colonial period, depended on special statutes. Sec poet, ch. v.
140 EXTENT OF ENGLISH LIBERTIES.
which were so promulgated as to have universal personal extent in England, and therefore to prevent the judicial recognition and application of those principles of universal jurisprudence or the law of nations.1
§ 145. This inquiry into the principles of the law of nations, affecting personal condition, considered as part of the common law of England, will be examined in a separate chapter. But it is convenient here to remark, though actually by way of anticipation, that in the view of almost every historical writer who has treated of the establishment of laws in the American colonies, the private law of England, or the private law having territorial extent in England, during the period when the colonial patents and charters were granted, is taken to have attributed the individual and relative rights before spoken of as being called, in connection with their guarantees in the public law,—the liberties of Englishmen—the privileges and immunities of the free-born British subject,—without distinction of race, descent, or physical constitution, to all natural persons actually within the territorial limits of the British Isles; or at least to all native and domiciled inhabitants; subject only to the rights of others having the same general denomination, growing out of the relations of persons all equally privileged in respect to that law;—the relations of parent and child, husband and wife, master and servant, the relations of contract, those founded on the feudal tenure of land, and those incident to the punitive and remedial laws of the state. Personal liberty, in the sense of one of these rights, signifying the freedom to dispose of one's person and powers of body and of mind, without control by others who are not representatives of the ultimately supreme authority.
§ 146. When it is said that the law of nations is part of the common law of England,* it cannot be so said with propriety if by this it is intended that the international law,—meaning that rule of which states are the subjects, is part of that common law.
1 Compare ante, § 99.
* As in 1 Bla. Com. 273. 4, same, 67. 1 Kent's Com. p. 1. Triquet v. Bath, 3 Burr. 1478. Heathfield v. Chilton, 4 Burr. 2015. Case of Henfield, by Judge Wilson, Duponceau, p. 3, and note. 3 Dallas, R. 392.