render the service, and the other to pay the stipulated consideration. But if the servant hired for a definite that state, unless within twenty days thereafter he enter into a bond, with two or more freeholders, in 500 dollars, conditioned for his good behaviour,. 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 coloured population. A statute provision of the 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. In Connecti cut, by statute, in 1833, any coloured 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 coloured persons not inhabitants of the state, or to instruct or teach in any such school or institution, or board or harbour, for that purpose, any such persons, without the previous con sent, 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. Dagget, 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 coloured 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 colour, 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," (p 3845,) has ably enforced the other side of the question, that free coloured 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. Y. Revised Statutes, vol. i. p. 126. sec. 2,) speak of men of colour as being citizens, and capable of being freeholders, and entitled to vote. And if, at common law, all human beings born within the ligeance 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 these United States, in all cases in which there is term, leaves the service before the end of it, without reasonable cause, or is dismissed for such misconduct as justifies it, he loses his right to wages for the period he has served. A servant so hired *may be dis- *259 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. Subject and citizen 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 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 constitutions 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 colour. 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, 1 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, vol. 1. 382, Washington, 1841. Huffman 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 case, 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 missed by the master before the expiration of the term, either for immoral conduct, wilful disobedience, or habitual neglect.a 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 thereby be deprived of it. Beekman 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 depends on parental authority, and of soldiers and sailors on national policy. Mary Clarke's case, 1 Blackford's Ind. Rep. 122. ■ 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 payment of a month's wages. 12 B. Moore's Rep. 556. 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 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 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. 259, 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. Lou. Rep. 332, it was held under the Louisianian Code, that if a labourer 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 term, and even if he be discharged, for good cause, before the end of his term of service, he is entitled to his wages up to the 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, or misconduct in those things which do not concern his duty to his master, and which, when he commits, he steps out of the course of the service.b But it was considered, in M'Manus v. Crickett,c to be a question of great concern, and of much doubt and uncertainty, whether the master was answerable in damages for an injury wilfully committed by his servant, while in the performance of his master's business, without the direction or assent of the master. The court of K. B. went into an examination of all the authorities, and, after much discussion, and great consideration, with a view to put the question at rest, it was decided, that the master was not liable in trespass for the wilful act of his servant in driving his master's carriage against another, without his master's direction or *assent. The *260 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. Costigan v. Mohawk R. R. Co. 2 Denio, 609. Mr. Sedwick 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. ■ 1 Blacks. Com. 431. Dy. 161. pl. 45. Ibid. 238. b. pl. 38. Grammer v. Nixon, Str. 653. Sly v. Edgeley, 6 Esq. 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, No. 453456. Domat. 1. 16. 3. No. 1. Harris v. Mabry, 1 Iredell, N. C. Rep. 240. b Lord Kenyon, in Ellis v. Turner, 8 Term Rep. 533. Parker, Ch. J., in Foster v. The Essex Bank, 17 Mass. Rep. 508-510. Richmond Turnpike Co. v. Vanderbilt, 1 Hill's N. Y. Rep. 480. • 1 East, 106. court considered that when the servant quitted sight of the object for which he was employed, and without having in view his master's orders, pursued the object which his own malice suggested, he no longer acted in pursuance of the authority given him, and it was deemed, so far, a wilful abandonment of his master's business. This case has received the sanction of the supreme courts of Massachusetts and New-York,a on the ground that there was no authority from the master, express or implied, and the servant, in that act, was not in the employment of his master.b 17 Mass. Rep. 508–510. Wright v. Wilcox, 19 Wendell, 343. Croft v. Alison, 4 Barnw. & Ald. 590. S. P. b In Brady v. Giles, 1 Moody & Robinson, 494, Lord Abinger held it to be a question of fact for a jury, whether the servant was acting as the servant of the party hiring, or of the owner. But in Chandler v. Broughton, 1 Crompton & Meeson, 29, it was held, that if the owner of a carriage is sitting aside of his servant who drives, and the horse runs away and injures others, trespass lies against the master as being his act. The master is liable as a co-trespasser, if he is perfectly passive without any interposition when the driver was doing the wrong. A passive acquiescence is inferrible. McLaughlin v. Pryor, 1 Carr. & Marshmen, 354. By the New-York R. Statutes, 3 edit. vol. 1. 874, the owners of every carriage running or travel. ling upon any turnpike road or public highway, for the conveyance of passengers, are made liable, jointly and severally for all injuries and damages done by any person in their employment as a driver, while driving such carriage whether the act occasioning such injury or damage be wilful, or negligent or otherwise, in the same manner as such driver would be liable. This stringent provision has a salutary tendency to se. cure the selection of competent and careful drivers. The dividing line, said Judge Cowen, between an act of the servant in the employment of his master, for which the master is or is not liable, is the wilfulness of the act. But though the master be liable for his servant's negligence to the injury of another when doing a lawful act in his service, he is not liable if the act be wilfully unlawful, unless shown to be done by the master's authority. Lyon v. Martin, 8 Adolp. & Ellis, 512. Nor is the master who uses due diligence in the selection of his servants, answerable to one of them for an injury received by him in consequence of another's carelessness while both were engaged in the same service. There is no express or implied contract or principle of policy applicable to the case as between two servants in the same service, and giving an action against the master |