Ad infant has a capacity to do many other acts valid in lay He may bind himself as an apprentice, it being an aff a manifestly for his benefit; but, when bound, he cannot dissolve the relation. The weight of opinion is, that he may make a testament of chattels, if a male, at the age of fourteen, and if a female, at the age of twelve years. He may convey real estate, held as a naked trustee, under an order in chancery. The equity jurisdiction in this case, is • grounded on the statute of 7 Ann, c 19. which has been re-enacted in this state, and extends only to plain and express trusts. Whatever an infant is bound to do by law, the general rule is, that the same will bind him, if he does it without suit at law. If, therefore, he be a tenant in common, he may make a reasonable partition. He may discharge a mortgage on due payment of the mortgage debt. His acts as executor, at the age of seventeen, will bind him, unless they be acts which would amount to a devastavit. There was no occasion, said Lord Mansfield,e to enumerate instances. The authorities are express, that if an infant does a right act, which he ought to do, and which he was compellable to do, it shall bind him. We have already seen, that an infant of fourteen, if a male, and twelve if a female, may enter into a valid contract of marriage; but he is not liable to an action, on his executory contract, to marry, though the infant may sue an adult on such a promise.

In consequence of the capacity of infants, at the

a 3 Barn. & Cress. 484.

age

b Harg. n. 83. to lib. 2 Co. Lilt. Mr. Hargrave has collected all the contradictory opinions on this point. The civil law gave this power to the infant at the age of seventeen years, and this period has been adopted by statute in Connecticut.

c Sess. 24. ch. 30.

d Co Litt. 172. a.

e3 Burr. 1801.

ƒ Hunt v. Peake, 6 Cowen, 475.

of consent, to contract marriage, their marriage settlements, when reasonable, have been held valid in chancer but it has long been an unsettled question, whether a male infant could bind her real estate by a settlement pon marriage. In Drury v. Drury,a Lord Ch. Northington decided, that the statute of 27 Hen. VIII. which introduced jointures, extended to adult women only, and that, notwithstanding a jointure on an infant, she might waive the jointure, 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 hus band's personal estate, in case of his dying intestate. This decree was reversed in the House of Lords, upon the strength of the opinions of Lord Hardwicke, Lord Mansfield, and the majority of the judges; and the great question finally settled in favour of the capacity of the female 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. The question still remained, whether she had the capacity to bind her own real estate by a marriage settlement. Mr. Atherley, after reviewing the cases, concludes, that the weight of the conflicting authorities was in favour of her capacity so to bind herself. But it seems he did not draw the correct conclusion for, in Milner v. Lord Harewood,4 Lord Eldon has subsequently held, that a female infant was not bound by agreement to settle her real estate upon marriage, if she did not, when of age, choose to ratify it; and that nothing but her own act, after the period of majority, could fetter or effect it. The case of Slocombe v. Glubb,e admits, that a male infant may bar

a 1 Eden, 39.

b | Eden, 60-75.

c Treatise on Marriage Settlements, p. 28-41.

d 18 Vesey, 259.

e 2 Bro. 545.

himself by agreement before marriage, either of his estate by the curtesy, or of his right to his wife's personal property; and both the male and female infant can settle their ersonal estate upon marriage. The cases of Strickland v. Croker,a and Warburton v. Lytton, are considered by Mr. Atherley as favourable to the power of a male infant to settle his real ettate 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 cannot 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 '

,

a Cas. in Ch. 211.

b Cited in 4 Bro. 440.

e Treatise on Marriage Settlements, p. 42-45

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, viz.: from crimes, captivity, and debt. In the institutes of Justinian,b slaves are said 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 of the age of twenty. Sir William Blackstonec 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 lawd 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 a 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." 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 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. 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. upon habeas corpus, after a very elaborate discussion. The Scotch lawyersd mention the case of Knight, a negro slave, brought from the West Indies to Scotland, by his master, in 1778; 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 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 consequently repelled by the Sheriff's Court, and by the Court of Session.

с

But though personal slavery be unknown in England, se that one man cannot sell, or confine and export another, as his property, yet the claim of imported slaves for wages, without a special promise, does not seem to receive the same protection and support as that of freemen.e Mr. Barrington, who has given a very strong picture of the degradation and oppression of the tenants, under the old Eng

a1 Blacks. Com. 424.

Smith v. Gould, 2 Salk. 666. 2 Ld. Raym. 1274. contra Butts ▼ Penny, 2 Lev. 201 and Lord Hardwicke, in Pearne v. Lisle, Amb. 75. e Loft's Reports, 1. Harg. State Trials, vol. xi. p. 339. di Ersk. Inst. 158. Kaimes' Principles of Equity, vol. ii. p. 134. ✔ Alfred v. Marquis of Fitz James, 3 Esp. Cases, 3r