Chapter 38

BUT as soldiers, by this annual act, are thus put in a worse condition than any other subjects, so, by the humanity of our standing laws, they are in some cases put in a much better. By statute 43 Eliz. c. 3. a weekly allowance is to be raised in every county for the relief of soldiers that are sick, hurt, and maimed: not forgetting the royal hospital at Chelsea for such as are worn out in their duty. Officers and soldiers, that have been in the king's service, are by several statutes, enacted at the close of several wars, at liberty to use any trade or occupation they are fit for, in any town in the kingdom (except the two universities) notwithstanding any statute, custom, or charter to the contrary. And soldiers in actual military service may make their wills, and dispose of their goods, wages, and other personal chattels, without those forms, solemnities, and expenses, which the law requires in other cases[a]. Our law does not indeed extend this privilege so far as the civil law; which carried it to an extreme that borders upon the ridiculous. For if a soldier, in the article of death, wrote any thing in bloody letters on his shield, or in the dust of the field with his sword, it was a very good military testament[b]. And thus much for the military state, as acknowleged by the laws of England.

[Footnote a: Stat. 29 Car. II. c. 3. 5 W. III. c. 21. §. 6.]

[Footnote b: _Si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso tempore quo, in praelio, vitae sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet._ _Cod._ 6. 21. 15.]

THE _maritime_ state is nearly related to the former; though much more agreeable to the principles of our free constitution. The royal navy of England hath ever been it's greatest defence and ornament: it is it's antient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can ever be apprehended to liberty: and accordingly it has been assiduously cultivated, even from the earliest ages. To so much perfection was our naval reputation arrived in the twelfth century, that the code of maritime laws, which are called the laws of Oleron, and are received by all nations in Europe as the ground and substruction of all their marine constitutions, was confessedly compiled by our king Richard the first, at the isle of Oleron on the coast of France, then part of the possessions of the crown of England[c]. And yet, so vastly inferior were our ancestors in this point to the present age, that even in the maritime reign of queen Elizabeth, sir Edward Coke[d] thinks it matter of boast, that the royal navy of England then consisted of _three and thirty_ ships. The present condition of our marine is in great measure owing to the salutary provisions of the statutes, called the navigation-acts; whereby the constant increase of English shipping and seamen was not only encouraged, but rendered unavoidably necessary. By the statute 5 Ric. II. c. 3. in order to augment the navy of England, then greatly diminished, it was ordained, that none of the king's liege people should ship any merchandize out of or into the realm but only in ships of the king's ligeance, on pain of forfeiture. In the next year, by statute 6 Ric. II. c. 8. this wise provision was enervated, by only obliging the merchants to give English ships, (if able and sufficient) the preference. But the most beneficial statute for the trade and commerce of these kingdoms is that navigation-act, the rudiments of which were first framed in 1650[e], with a narrow partial view: being intended to mortify the sugar islands, which were disaffected to the parliament and still held out for Charles II, by stopping the gainful trade which they then carried on with the Dutch[f]; and at the same time to clip the wings of those our opulent and aspiring neighbours. This prohibited all ships of foreign nations from trading with any English plantations without licence from the council of state. In 1651[g] the prohibition was extended also to the mother country; and no goods were suffered to be imported into England, or any of it's dependencies, in any other than English bottoms; or in the ships of that European nation of which the merchandize imported was the genuine growth or manufacture. At the restoration, the former provisions were continued, by statute 12 Car. II. c. 18. with this very material improvement, that the master and three fourths of the mariners shall also be English subjects.

[Footnote c: 4 Inst. 144. _Coutumes de la mer._ 2.]

[Footnote d: 4 Inst. 50.]

[Footnote e: Scobell 132.]

[Footnote f: Mod. Un. Hist. xli. 289.]

[Footnote g: Scobell. 176.]

MANY laws have been made for the supply of the royal navy with seamen; for their regulation when on board; and to confer privileges and rewards on them during and after their service.

1. FIRST, for their supply. The power of impressing men for the sea service by the king's commission, has been a matter of some dispute, and submitted to with great reluctance; though it hath very clearly and learnedly been shewn, by sir Michael Foster[h], that the practise of impressing, and granting powers to the admiralty for that purpose, is of very antient date, and hath been uniformly continued by a regular series of precedents to the present time: whence he concludes it to be part of the common law[i]. The difficulty arises from hence, that no statute has expressly declared this power to be in the crown, though many of them very strongly imply it. The statute 2 Ric. II. c. 4. speaks of mariners being arrested and retained for the king's service, as of a thing well known, and practised without dispute; and provides a remedy against their running away. By a later statute[k], if any waterman, who uses the river Thames, shall hide himself during the execution of any commission of pressing for the king's service, he is liable to heavy penalties. By another[l], no fisherman shall be taken by the queen's commission to serve as a mariner; but the commission shall be first brought to two justices of the peace, inhabiting near the sea coast where the mariners are to be taken, to the intent that the justices may chuse out and return such a number of ablebodied men, as in the commission are contained, to serve her majesty. And, by others[m], especial protections are allowed to seamen in particular circumstances, to prevent them from being impressed. All which do most evidently imply a power of impressing to reside somewhere; and, if any where, it must from the spirit of our constitution, as well as from the frequent mention of the king's commission, reside in the crown alone.

[Footnote h: Rep. 154.]

[Footnote i: See also Comb. 245.]

[Footnote k: Stat. 2 & 3 Ph. & M. c. 16.]

[Footnote l: Stat. 5 Eliz. c. 5.]

[Footnote m: Stat. 7 & 8 W. III. c. 21. 2 Ann. c. 6. 4 & 5 Ann. c. 19. 13 Geo. II. c. 17. &c.]

BUT, besides this method of impressing, (which is only defensible from public necessity, to which all private considerations must give way) there are other ways that tend to the increase of seamen, and manning the royal navy. Parishes may bind out poor boys apprentices to masters of merchantmen, who shall be protected from impressing for the first three years; and if they are impressed afterwards, the masters shall be allowed their wages[n]: great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty's service[o]: and every foreign seaman, who during a war shall serve two years in any man of war, merchantman, or privateer, is naturalized _ipso facto_[p]. About the middle of king William's reign, a scheme was set on foot[q] for a register of seamen to the number of thirty thousand, for a constant and regular supply of the king's fleet; with great privileges to the registered men, and, on the other hand, heavy penalties in case of their non-appearance when called for: but this registry, being judged to be rather a badge of slavery, was abolished by statute 9 Ann. c. 21.

[Footnote n: Stat. 2 Ann. c. 6.]

[Footnote o: Stat. 1 Geo. II. st. 2. c. 14.]

[Footnote p: Stat. 13 Geo. II. c. 3.]

[Footnote q: Stat. 7 & 8 W. III. c. 21.]

2. THE method of ordering seamen in the royal fleet, and keeping up a regular discipline there, is directed by certain express rules, articles and orders, first enacted by the authority of parliament soon after the restoration[r]; but since new-modelled and altered, after the peace of Aix la Chapelle[s], to remedy some defects which were of fatal consequence in conducting the preceding war. In these articles of the navy almost every possible offence is set down, and the punishment thereof annexed: in which respect the seamen have much the advantage over their brethren in the land service; whose articles of war are not enacted by parliament, but framed from time to time at the pleasure of the crown. Yet from whence this distinction arose, and why the executive power, which is limited so properly with regard to the navy, should be so extensive with regard to the army, it is hard to assign a reason: unless it proceeded from the perpetual establishment of the navy, which rendered a permanent law for their regulation expedient; and the temporary duration of the army, which subsisted only from year to year; and might therefore with less danger be subjected to discretionary government. But, whatever was apprehended at the first formation of the mutiny act, the regular renewal of our standing force at the entrance of every year has made this distinction idle. For, if from experience past we may judge of future events, the army is now lastingly ingrafted into the British constitution; with this singularly fortunate circumstance, that any branch of the legislature may annually put an end to it's legal existence, by refusing to concur in it's continuance.

[Footnote r: Stat. 13 Car. II. st. 1. c. 9.]

[Footnote s: Stat. 22 Geo. II. c. 23.]

3. WITH regard to the privileges conferred on sailors, they are pretty much the same with those conferred on soldiers; with regard to relief, when maimed, or wounded, or superannuate, either by county rates, or the royal hospital at Greenwich; with regard also to the exercise of trades, and the power of making informal testaments: and, farther[t], no seaman aboard his majesty's ships can be arrested for any debt, unless the same be sworn to amount to at least twenty pounds; though, by the annual mutiny acts, a soldier may be arrested for a debt which extends to half that value, but not to a less amount.

[Footnote t: Stat. 1 Geo. II. st. 2. c. 14.]

CHAPTER THE FOURTEENTH.

OF MASTER AND SERVANT.

HAVING thus commented on the rights and duties of persons, as standing in the _public_ relations of magistrates and people; the method I have marked out now leads me to consider their rights and duties in _private_ oeconomical relations.

THE three great relations in private life are, 1. 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. 2. 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. 3. That of _parent and child_, which is consequential to that of marriage, being it's principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated. But, since the parents, on whom this care is primarily incumbent, may be snatched away by death or otherwise, before they have completed their duty, the law has therefore provided a fourth relation; 4. That of _guardian and ward_, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. Of all these relations in their order.

IN discussing the relation of _master and servant_, I shall, first, consider the several sorts of servants, and how this relation is created and destroyed: secondly, the effects of this relation with regard to the parties themselves: and, lastly, it's effect with regard to other persons.

I. AS to the several sorts of servants: I have formerly observed[a] that pure and proper slavery does not, nay cannot, subsist in England; such I mean, 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 any where. The three origins of the right of slavery assigned by Justinian[b], are all of them built upon false foundations. As, first, slavery is held 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 did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to 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 likewise. 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 old Rome or modern Barbary, is also impossible. 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? His 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 acquired, they may also be hereditary: "_servi nascuntur_;" the children of acquired slaves are, _jure naturae_, 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 oneself, can by the law of nature and reason, reduce the parent to slavery, much less can it reduce the offspring.

[Footnote a: pag. 123.]

[Footnote b: _Servi aut fiunt, aut nascuntur: fiunt jure gentium, aut jure civili: nascuntur ex ancillis nostris._ _Inst._ 1. 3. 4.]

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 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 repealed in two years afterwards[c]. And now it is laid down[d], that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, his liberty, and his property. Yet, with regard to any right which the master may have acquired, by contract or the like, to the perpetual service of John or Thomas, this will remain exactly in the same state as before: for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term. Hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse. The law of England acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a jew, a turk, or a heathen, as well as to those who profess the true religion of Christ; and it will not dissolve a civil contract, either express or implied, between master and servant, on account of the alteration of faith in either of the contracting parties: but the slave is entitled to the same liberty in England before, as after, baptism; and, whatever service the heathen negro owed to his English master, the same is he bound to render when a christian.

[Footnote c: Stat. 3 & 4 Edw. VI. c. 16.]

[Footnote d: Salk. 666.]

1. THE first sort of servants therefore, acknowleged by the laws of England, are _menial servants_; so called from being _intra moenia_, or domestics. The contract between them and their masters arises upon the hiring. If the hiring be general without any particular time limited, the law construes it to be a hiring for a year[e]; upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons; as well when there is work to be done, as when there is not[f]: but the contract may be made for any larger or smaller term. All single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service, for the promotion of honest industry: and no master can put away his servant, or servant leave his master, either before or at the end of his term, without a quarter's warning; unless upon reasonable cause to be allowed by a justice of the peace[g]: but they may part by consent, or make a special bargain.

[Footnote e: Co. Litt. 42.]

[Footnote f: F.N.B. 168.]

[Footnote g: Stat. 5 Eliz. c. 4.]

2. ANOTHER species of servants are called _apprentices_ (from _apprendre_, to learn) and are usually bound for a term of years, by deed indented or indentures, to serve their masters, and be maintained and instructed by them: for which purpose our statute law[h] has made minors capable of binding themselves. This is usually done to persons of trade, in order to learn their art and mystery; and sometimes very large sums are given with them, as a premium for such their instruction: but it may be done to husbandmen, nay to gentlemen, and others. And[i] children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty four years of age, to such persons as are thought fitting; who are also compellable to take them: and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to such compulsion[k]. Apprentices to trades may be discharged on reasonable cause, either at request of themselves or masters, at the quarter sessions, or by one justice, with appeal to the sessions[l]: who may, by the equity of the statute, if they think it reasonable, direct restitution of a ratable share of the money given with the apprentice[m]. And parish apprentices may be discharged in the same manner, by two justices[n].

[Footnote h: Stat. 5 Eliz. c. 4.]

[Footnote i: Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. 1 Jac. I. c. 25. 7 Jac. I. c. 3. 8 & 9 W. & M. c. 30. 2 & 3 Ann. c. 6. 4 Ann. c. 19. 17 Geo. II. c. 5.]

[Footnote k: Salk. 57. 491.]

[Footnote l: Stat. 5 Eliz. c. 4.]

[Footnote m: Salk. 67.]

[Footnote n: Stat. 20 Geo. II. c. 19.]

3. A THIRD species of servants are _labourers_, who are only hired by the day or the week, and do not live _intra moenia_, as part of the family; concerning whom the statute so often cited[o] has made many very good regulations; 1. Directing that all persons who have no visible effects may be compelled to work: 2. Defining how long they must continue at work in summer and winter: 3. Punishing such as leave or desert their work: 4. Empowering the justices at sessions, or the sheriff of the county, to settle their wages: and 5. Inflicting penalties on such as either give, or exact, more wages than are so settled.

[Footnote o: Stat. 5 Eliz. c. 4.]

4. THERE is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as _stewards_, _factors_, and _bailiffs_: whom however the law considers as servants _pro tempore_, with regard to such of their acts, as affect their master's or employer's property. Which leads me to consider,

II. THE manner in which this relation, of service, affects either the master or servant. And, first, by hiring and service for a year, or apprenticeship under indentures, a person gains a settlement in that parish wherein he last served forty days[p]. In the next place persons serving as apprentices to any trade have an exclusive right to exercise that trade in any part of England[q]. This law, with regard to the exclusive part of it, has by turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times: which has occasioned a great variety of resolutions in the courts of law concerning it; and attempts have been frequently made for it's repeal, though hitherto without success. At common law every man might use what trade he pleased; but this statute restrains that liberty to such as have served as apprentices: the adversaries to which provision say, that all restrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for it alledge, that unskilfulness in trades is equally detrimental to the public, as monopolies. This reason indeed only extends to such trades, in the exercise whereof skill is required: but another of their arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by employing of youth, and learning them to be early industrious; but that no one would be induced to undergo a seven years servitude, if others, though equally skilful, were allowed the same advantages without having undergone the same discipline: and in this there seems to be much reason. However, the resolutions of the courts have in general rather confined than extended the restriction. No trades are held to be within the statute, but such as were in being at the making of it[r]: for trading in a country village, apprenticeships are not requisite[s]: and following the trade seven years is sufficient without any binding; for the statute only says, the person must serve _as_ an apprentice, and does not require an actual apprenticeship to have existed[t].

[Footnote p: See page 352.]

[Footnote q: Stat. 5 Eliz. c. 4.]

[Footnote r: Lord Raym. 514.]

[Footnote s: 1 Ventr. 51. 2 Keb. 583.]

[Footnote t: Lord Raym. 1179.]