William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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(d) Harrington v. Clarke, 2 Penn. Rep. 115.

(e) In New York, he is declared to be incompetent, and I think very prop-
erly, to act as an execntor or administrator. N. Y. Revised Sfatntes, vol. ii.
p. (8.9. Jbid. 75.

{g) 3 Burr. Rep. 1801.

" In Vermont, under statute of 1839 (R. R. 1839, p. 254), none but persons
of full age can make a will. In Massachusetts and Connecticut (Rev. Stat
Mass. 1835 ; Rev. Stat, of Conn. 1 821 ), they can at the age of eighteen. Und«^r
Rev. Stat. N. Y. vol. 2, p. 60, Laws of 1867, { 4, males can make a will at
eighteen and females at sixteen. In Virginia, under Rev. Code, 224, they can
make a will at eighteen.

" A will of lauds under the age prescribed by statute is absolutely void.
Swasey v. Vanderheyden's Administrator, 10 John. 33.

*• In New York, under Rev. Stat. (U Rev. Stat., p. 69), he cannot act as
executor or administrator. In Maryland he may. at the age of eighteen. In
Vermont, administration cum testamento annexo will be granted unless there
be a co-executor. R. S. 1 839. p. 260. A nd the same would seem to be the law
in Massachusetts, Maine, Pennsylvania. Oen. Stat. Mass. ch. 93, { 7; R.
S. Maine, ch. 64, { 15; Pardon's Digest (Pa.). See the statutes of the other



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action, on his execaiory contract, to marry, though the infant may
sue an adult on such a promise (a).

(5.) Their marriage settlements.

In consequence of the capacity of infants, at the age of consent*
to contract marriage, their marriage settlements, when reasonable
have been held valid in chancery; bat it has long been an unsettled
question* whether a female infant conld bind her real estate by a
settlement upon marriage.^ In Drury v. Drury (6), Lord Ch.
Nottingham decided, that the statute of 27 Hen. YIIL, which in-
trodaced jointures, extended to adult women only, and that, not-
withstanding a jointure on an infant, she might waive the join-
ture, and elect to take her dower; and that a female infant could
not, by any contract previous to her marriage, bar herself of a
distributive share of her husband's personal estate, in case of his
dying intestate. This decree was reversed in the house of lords
upon the strength of ihe opinions of Lord Hardwicke, Lord llaos-
field, and the majority of the judges (c) ; and the great question
finally settled in favour of the capacity of the fenuUe infant, to
bar herself, by her contract before marriage, of her right of dower
in her husband's lands, and to her distributive share of
her husband's personal estate. In New York, *in a [*244]
late case in chancery (d), the question whether an in-
fant could bind herself by an ante-nuptial contract, was discussed
at large, and it was held that a legal jointure settled upon an in-
fant before marriage, was a bar of her dower; and that an equit-
able provision settled upon an infant in bar of dower, and to take
effect immediately on the death of the husband, and to continue
during the life of the widow, and being a reasonable and (Compe-
tent livelihood for the wife under the circumstances, was also a
bar. The question still remains, whether she has the capacity to
bind her own real estate by a marriage settlement Mr. Ather-

(a) Hnnt v. Peakc, 5 Cowen^^ Rep. 475. In New York the court of chan-
cery is anthorized to decree and compel the specific performance of oontractA
bj the infant who is a representative of the party making them. N. Y. Re-
ti9ed SUaiuies, vol. ii. p. 194, sec. 169. As to the sale under the direction of
the conrt of chancery, of the real estates of infants, see preceding Lecture.

(6) 1 Edm'n Rep, 39.

{eS 1 Ibid, ea— 75. WUmoCn OpinioM, p. 177.

id) M'Cartee t». Teller, 2 Paige' t^ Rep. 611.

^ In support of the affirmative view, see Slooombe r. Olubb, 2 Brown, 545;
Strickland f. Croker, 2 Cas. in Ch. 211.



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* 245 OF THE RianTS of persons. [Put IV.

ley (a), after reyiewing the oases, conolodes, that the weight of
the conflioting aathorities was in favour of her eapocity so to bind
herself. But in Milner y. Lord Harewood (&), Lord Eldon has
subseqaently held, that a female infant was not bound by agree*
ment to settle her real estate npon marriage, if ehe did not, when
of age, choose to ratify it; and that nothing but her own act, after
the period of majority, could fetter or affect if The case of Slo-
combe v. Olubb (c), admitted that a male infant may bar himself
by agreement before marriage, either of his estate by the cortesyt
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 StiHckUxrui v. Croker (d), and Warburton v. Lyt-
ton (e)j are considered by Mr. Atherley (g) as favourable 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 deeisioa
of Lord Eldon, in Milner y. Lord Harewood^ this condn-
[ * 245 ] sion * becomes questionable; for if a female infant can-
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 ?

(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 guard-
ian ad litem, does not bind or conclade them {h). Such an
answer in chancery, %)to forma, leaves the plaintiff to prove fais
case, and throws the infant upon the protection of the court It
was the maxim of the Roman law, that an infant was never pre-
sumed to have done an act to his prejudice pupillus pati pos9e
non intelUgitur (i). In decrees of foreclosure against an in-
fant, there is according to the old and settled rule of practice in
chancery, a day given him when he comes of age, usually six
months, to show cause against the decree, and make a better de •

(a) Treafiae on Marriage Settlemenis^ p. 28—41.
(6) 18 Vesey, 259.

(c) 2 Bro. 545.

(d) 2 Cob, in Ch, 211.

(e) ated in 4 Bro. 440.

{g) TreaUae on Marriage SetilemeniSy p. 42—45.
(A) Eccleston «. Petty, Carthew*8 Bep. 79.
(i) Dig. 50, 17, 110.

** Contra Cape v. Adams, 1 Desaus. 567; Randolph v. Randolph, 3 Hen. A
Mnnf. 399.



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fence, and be is entitled to be called in for tbat porpose by pro-
cess of subpoena (a)." The decree in ordinary cases would be
bad on the face of tY, 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 Bedesdale held, in Bennett v. Hamill (6), that
such an error in the decree would not affect a bona fide purchase
at a sale under it (c). But in the case of decrees for the fore-
closure 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 (d). In the case of a strict foreclosure of the mort-
gagor'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 vhe accounts nor redeem (e).

(a) Tbomas r. Gyles, 2 Vem. Rep, 232. Lord Ch. in Cary r. Bertie, ihul.
342. Sir Joseph Jekyll, in Eyre v. Countess of Shaftebury, 2 P. Wma. 120.
Naoier v. Effingham, ibid. 401. Bennett v. Lee, 2 Atk. 529. Jackson v. Tor-
oef, 5 Leigh, 119. Miller v. Dennis, 3 Johns. Ch. Rep. 367. Kelsall v. Kel-
sail, 2 Mjfine <£ Keene, 409. In England, since the demurrer of the parol
has been abolished by the statutes of 11 Geo. IV. and 1 W. IV. c. 47, an
in(ant defendant is not entitled to have six month given to him, after at-
taining the age of 21, to show cause against a decree. Powys r. Mansfield,
6 Simons, 637. The distinction seems to be, that if the decree directs the
estate to be sold, the infant has npt his six months, but on a simple decree
of foreclosure he is allowed the six months. Scholefield v. Heafield, 7
SintOHS, 667.

{b) 2 8eh. dt Lef. 666.

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

(d) Booth V, Rich, 1 Vern. Bep, 395. Cooke p. -Parsons, 2 Vern. Rep. 429.
Free, in Ck, 184 8. C. Mills v. Duncan, 3 Johns. Ch. Rep 367.

(«) Mallack v. Galton, 3 P. Wtm, 352. Bishop of Winchester v. Beaver,
3 F«ey, 317. Williamson v. Gordon, 19 Fewy, 114.

"See, further, Matlock r. Galton, 3 P. Wms. 362. Williamson v. Gordon,
supra. Ab to the rule in New York, see Perine v. Dunn, 4 Johns. Ch. 140.
Wright 17. Miller, 4 Barb. 600. Mills v. Dennis, 3 John. Ch. 367.

21 VOL. II. KENT. 321


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The last relation in domestic life, which remains to be exam-
ined, is that of master and servant The several kinds of per-
sons who come within the description of servants, may be sab-
divided into (1) slaves, (2) hired servants, and (3) apprenticeB.

L Of slaves.^

Slavery, according to Mr. Paley (a), may, consistently with the
law of natnre, arise from three canses, viz: from crimes, captivity,
and debt. In the institutes of Justinian (&), slaves are safd to
become such in three ways, viz: 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 tbeas
canses of slavery, by the civil law, and shows them all to rest on
unsound foundations; and he insists, that a state of slavery is re-
pugnant to reason, and the principles of natural law. The civil
law (d) admitt-ed it to be contrary to natural right, though it was
conformable to the usage of nations. The ]aw of England will not
endure the existence of slavery within the realm of England. The
instant a slave touches the soil, he becomes free, so as to be en-

(a) Prineiptes of Moral Philosophy^ p. 158, 159.
(6) Inst, 1, 3, 4.

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

(d) Inst. 1, 3, 2.

* By the Civil Righta Bill, 13th amendment, it is provided that neither
slavery nor involantary servitude, except for punishment for crime, ehall
exist within the United States or their jnrisdiction, and that Congress shall
have power to enforce it by appropriate legislation.

The 14th amendment provides that all persons bom or natnralized in the
United States and subject to their jurisdiction are citizens of the TJnite<l
States and of the state wherein they reside. No state shall mak^ or enlbite
any law which shall abridj^ the privile^i^ or immunities of the citizens of
the United States, nor shall any state deprive any person of life, liberty or
property without due process of law, nor dony to any person within its ior-
ifldiction the equal protection of the laws. Adopted, 1665, 1868.



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Lee. XXXII.] . OP THE RI0HT8 OF PKR80N8. * 249

titled to be protected in the eDJoymeDt of bis person and pro
perty, though he may still oontinne bonnd to seryice as a ser-
vant (a). There has been much di^pnte in the English books,
whether trover woold lie for a negro slave; and the better opinion
is, that it will not lie, because the owner has not an absolute pro-
perty in the negro; and by the common law, it was said, one man
ooold not have a property in another, for men were not the sab-
ject of property (6). In the case of Somersett, 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. npon habeas corpus, after a very elabo-
rate diacossion, and upon the groand that slavery did not ' and
ooold not exist in England, under the English law (c). The
Scotch lawyers (d) 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 ap-
plied to the courts in Scotland for assistance, to compel his slave
to return to him. 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
ooosequently repelled by the sherifTs court, and by the court of

But though personal slavery be unknown in England, so that
one man cannot sell, or confine and export another, as his pro-
perty, 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 freemen (e).

(a) 1 Blacks, Om. 424.

ib) Smith V. Goold, 2 Salt. Rep, 666. 2 Lnrd Raym, 1274. Contra Baits
r. Penny, 2 Lev. Sep. 210, and Lord Hardwicke, in Peame r. Lisle. Amb, Rep.
75. Mr. Justice Best, in Forbes v. Cochrane, 2 Barmw. dt Ore*. 448. 3 Dcwi.
^ Byl, 679, 8. C, said, that the Jadges were above the age in which they
lived, and stood npon the high gronnd of natnral right, when they declared,
that in England human beings could not be the sn^ect matter of property.
He insisted, that the moment a slave put his foot on board a British man-of-
war, out of the waters of a colonial Jurisdiction, he became free. This is
the law now in France, and as soon as a slave lands on the French soil be is

(c) LofVs Reports, 1. Harg. Staie TriaU, vol. xi. p. 339.

(d) 1 Ernk. Inst. 156. Kames' Principles of Eipuiy, vol. ii. p. 134.

(«> AliVed f). Marquis of Fits James, 3 Eip. Cos. 3. The King v. The In-
habitants of Thames Ditton, 4 Dovig. Rep. 300. Where a West India slave ac-
eompanied her master to England, and voluntarily returned back to the
West Indies, it was held, that the residence in England did not finally



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* 250 OK THE RIGHTS OF PERS058. [Part IV.

Mr. Barringion, who has given a very strong picture of the de-
gradation and oppmssion of the tenants, nnder the English tennre
of pure villenage (a), is of opinion, that predial servitude reidiy
existed in England, so late as the reign of Elizabeth ; and that the
observation of Lilbnrn, 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 (&).

If is no less true than singular, that personal slavery prevailed
with uncommon rigour in the free states of antiquity; and it can-
not 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 freeman and slaves, was
nearly in the ratio of thirty thousand to four hundred thous-
and (c). At Athens they were treated with more humanity* than
in Thessaly, Crete, Argos, or Sparta; for at Athens the philoso-
phers taught and recommended humanity to slaves, as a sure test
of virtue. They were entitled to sue their master for excessive
ill-usage, and compel him to sell them; and they had also the privi-
lege of purchasing their freedom (d). In the Roman republic,
the practice of predial and domestic slavery was equally
[ * 250 ] * countenanced, and still more abused. There were in-
stances of private persons owning singly no less than
four thousand slaves (e); and by the Roman law, slaves were

emancipate her, and she became a slave on her return, though no coercion
conid be exercised over her while in England. The Slave Grace, 2 Hag^, Adm.

y. 94.

\a) Observations on the Statutes, chiefiy the more ancient ^ p. 232 — ^241.

(b) See Jnfra, p. 254, n. a.

(c) 1 Mitf. Hist. 355. A small aristocracy governed Attica, while the soil was
cultivated by a working class of 400,000 shhves, and a similar disproportioQ
existed throughout Greece. According to a learned article on ''tlie demo-
cracy of Athens," in the New York Review for July, 1840, the whole num-
ber of slaves in Attica was about 365,000 to 95,000 citizens, and 45.000 resi-
dent foreigners. Even Ari.stotle considered the relation of master and slave,
just as indispensable in every well-ordered state, as that of husband and

{(t) 1 Potter's Antiq. of Greece, 57—67—72.

{e) 1 Gibbon's Hist. p. 66 — 68. Hume, in his essay on the jh)pufou9me» «/
Ancient Nations says, that some great man among the Romans ponaesRed to
the number of 10,000 slaves, but this would seem to be an exaggeration. Mr.



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considered in the light of goods and chattels, and could be sold
or pawned. They conld be tortured, and even pat to death, at
the discretion of their masters (a). By a succession of edicts,
which humanity, reason, and policy dictated, and which were en-
acted by Claudius, Hadrian, and Antoninus Pius, tiie jurisdiction
of life and death over slaves was taken from their masters, and
referred to the magistrate; and the Ergaatula^ or dungeons of
cruelty, were abolished (b).

The personal servitude which grew out of the abuses of the
feudal system, and to which the Germans had been accustomed,
even in their primitive settlements, was exceedingly grievous (c) ;
but it is not supposed to have equalled, in severity or degreda-
tion, the domestic slavery of the ancients, or among the Euro-
pean colonies on this side of the Atlantic. The feudal villein
of the lowest order was unprotected in his property, as against
seizure by his master, and was subjected to the most ignoble
services ; but his circuiastances distinguished him materially
fronkthe Greek, Boman, or West India slave. No person, in
England, was a villein in the eye of the law, except in relation
to his master. As to him quicquid acquiritur servo acquiritur
domino. In villenage in gross, all acquisitions of property, real
and personal, made by the villein, belonged to his lord. Tp all

Blair, in his Inquiry mto (he State of Slavery among (he Romans, (1833,) assigiiA
as many as three slaves to every free person in Italy in the time of the Em-
peror Claudius. Almcwt all the agricultural, as well as domestic labour, was
performed by slaves, even from the time of Tiberius Gracchus. Plu(arch^s
Life of T. Gracchus, Hookers Roman History, h. 6, ch. 7.

[a) Jnsi. 1, 8, 1. Thylor's Elem. of the Civil Law, p. 429. By the lex Aqitilia,
paesed soon after the era of the twelve tables, the killing of a slave by a third
persoo, was put upon the same ground as the killing of a quadruped, and a
pecuniary recompense was to be made to the owner. When a master was
murdered by one of his domestic slaves, all the slaves of his household at the
time were to be put to death; and Tacitus gives a horrible instance, in the
time of Nero, of the application of this atrocious law in the case of the mur-
der of Pedanius Secundns, a man of consular rank, and who possessed 400
domestic slaves, who were all put to death, and with the approbation of the
senate. TaeiL Ann, lib. 14, sec. 41^-45. For the Roman law, see ibid.

(b) 1 Gibbon, ubi supra, p. 65. Inst, 1, 8, 2. Taylor^ s Elem, of the Civil Law,
433 - -43{>. The horrible cruelties inflicted upon the slaves, in ancient times,
and particularly by the Romans, and the barbarous manners, and loss of
moral taste and just feeling, which were the consequence, are strikingly
shown and illustrated from passages in the classics, by Mr. Hume, in his very
learned Emay on the Populousness of Ancient Nations,

(e) See a picture of the degradation and rigours of personal servitude
among the Gothic barbarians of Gaul. Gibbon's Hist. vol. vi. p. 359-362,
8yo. edit. Robertson's Charles K, vol. i. note 9.


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^ 251 ] other persons *he was n freeman, and as against
be had rights of property ; and his master, foi
ssive injuries committed upon the vassal, was answerab
e king's suit (a). So, also, the life and chastity of the fe
Lssal, even of the lowest degree, were protected, (feebly, pi
y, in point of fact, but effectually in point of law,) by the ;

prosecution of the lord, by appeal by or on behalf of tb
red vassal (&).

Las Casas, the Spanish bishop of Chiapa, with the view c
Bving the oppressed Indians from the most cruel and
Bvery, and after all other expedients had failed, propose
le Spanish government to substitute the hardy Africans fo
eble Indians. This was in 1517 ; and the Emperor Charl
ranted a patent to certain persons to supply the Spi
ilands with slaves. The importation of negro slaves int<
panish colonies had commenced as early as 1501; and was
nued under the sanction of the Spanish monarchs (c).
asas is said, therefore, to have chosen between two ezi
rils, and that he wished to eradicate the greater by reso
» the lesser (d). Soto, . the Dominician, and confess^

(a) Co. LULlXSy 117, 119. Villeins, says Lord Coke. 2 Inst. 45, ar
^inst all men, saving their lord. The lord was indictable for ma
IS villein, bat the Jatter was not entitled to his appeal of mayhem, 1
tald not hold his damages if he received any ; and for a similar reasn
llein could not have an appeal of robbery, for all his goods belonged
rd. Litt. sec. 194. Co. LiU. 123, b. In the Anglo-Saxon perio
>wer of lords over their slaves was not quite absolute. If the mastei
It a slave's eye or tooth, the slave recovered his liberty. If he kille
; paid a fine to the king. L. L. Alf. Lamb. Arch. p. 17. At the tii
le Norman conquest, the greater part of the land in England was
ited by slaves, and the free tenants were extremely few in compa
iirner^H HitU. of England Ihiring Uie Middle Ages. vol. i. 135. The 0(
le Visigoths in Spain was honourably distinguished from the Salic la
her codes of the barbarians in the moderation of its provisions resp(
nves. By the Visigothic code the slave was allowed to acquire pn
id purchase his freedom, and it provided for his personal security aj
le extreme violence of his master. See the Fuero Juzgo as cited b
rescott, in his History of the Reign ofFerdinand A Isabella^ vol. i. JnL

(6) LiUleUm's Ten. sec. 189, 190, 194. ffallatn'a View of the Middle
)1. i. p. 122, 124, vol. ii. p. 199.

(c) Bancroft's History of the United States, vol. i. p. 182, 183. The
rds and Portuguese dealt in the traffic of African negroes, as slaves
jfore the discovery of America. Ibid. vol. i. p. 178, 179.
(rf) Jrving's Life of Columbus, vol. iii. App. No. 26. Our learned ai
mious countryman endeavours to relieve the memory of this exc
an from reproach for this most reprehensible act, by showing the g
mevolence of his motive. Bryan Edwards, in his History of the BriU
esy vol. ii. ch. 2, spiritedly undertook the same task.


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Charles Y., ana professor in the aniyersity of Salamanca, was a '
mare consistent, if not a more illustrions opponent of slavery.
He boldly attacked the African slave trade, from the Terj begin-
ning of it, as iniquitous ; and by his inflnence with his master,
he procured an edict, in 1543, tending to mitigate slavery in the
colonies (a).

*Sir John Hawkins was the first Englishman who, in [ * 252 ]
1562, introduced the practice of buying or kidnapping
negroes in Africa, and transporting and selling them for slaves
in the West Indies. In 1620, a Dutch vessel carried a cargo of
skves from Africa to Virginia; and this, says Chalmers (6), was
the sad epoch of the introduction of African slaves into the Eng-
lish colonies on this continent The Dutch records of New Neth-
erlands allude to the existence of slaves in their settlements on
the Hudson, as early as 1626 (c); and slavery is mentioned in
the Massachusetts laws between 1630 and 1641 (d). Domestic
slavery having thus inauspicionsly commenced, it continued and
increased throughout Ihese United States when they were colo-
nies of Great Britain. It exists to this day in all the southern
states of the Union; but it has become extinct in New York and
Uie eastern states, and probably it is in a course of abatement and
extinction in some others. In PennsyWania, by an act of March
Ist, 1780, and in New Jersey, by acts of February 14th, 1784, and
of the 24th February, 1820, passed for the gradual extinction of
slavery, this great evil has been removed from them, and all chil-
dren born of a slave after the 4th day of July, 1804, were de-

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 40 of 108)