3. WITH regard to the privileges conferred on failors, they are pretty much the fame with those conferred on foldiers; with regard to relief when maimed, or wounded, or fuperannuated, either by county rates, or the royal hospital at Greenwich; with regard alfo to the exercife of trades, and the power of making nuncupative teftaments: and farther", no feaman aboard his majesty's fhips can be arrested for any debt, unless the fame be fworn to amount to at least twenty pounds; though, by the annual mutiny acts, a foldier may be arrested for a debt which extends to half that value, but not to a lefs amount. w Stat. 31 Geo. II. c. 10. CHAPTER THE FOURTEENTH. OF MASTER AND SERVANT. HA AVING thus commented on the rights and duties of perfons, as ftanding in the public relations of magiftrates and people, the method I have marked out now leads me to confider their rights and duties in private oeconomical relations. THE three great relations in private life are, 1. That of mafter and fervant; which is founded in convenience, whereby a man is directed to call in the affiftance of others, where his own skill and labour will not be fufficient 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 fpecies, the other preferibing the manner in which that natural impuife must be confined and regulated. 3. That of parent and child, which is confequential to that of marriage, being it's principal end and defign: and it is by virtue of this relation that infants are protected, maintained, and educated. But, fince the parents, on whom this care is primarily incumbent, may be snatched away by death 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 thefe relations in their order. IN difcuffing the relation of maler and fervant, I fhall, firft, confider the feveral forts of fervants, and how this relation is created and deftroyed: fecondly, the effect of this relation with regard to the parties themfelves: and, lastly, it's effect with regard to other perfons. 1. As to the feveral forts of fervants: I have formerly obferved that pure and proper flavery does not, nay cannot, fubfift in England: fuch I mean, whereby an abfolute and unlimited power is given to the mafter over the life and fortune of the flave. And indeed it is repugnant to reafon, and the principles of natural law, that fuch a ftate fhould subsist any where. The three origins of the right of flavery, affigned by Juftinian, are all of them built upon false foundations. As, firft, flavery is held to arife "jure gentium," from a state of captivity in war; whence flaves are called sxancipia, quafi manu capti. The conqueror, fay the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleafes. 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 cafes; in cafes of abfolute neceflity, for felf-defence; and it is plain this abfolute neceffity did not fubfift, since the victor did not actually kill him, but made him prifoner. War is itself justifiable only on principles of felfprefervation; and therefore it gives no other right over prifoners but merely to disable them from doing harm to us, by confining their perfons: much less can it give a right to kill, torture, abuse, plunder, or even to enflave, an enemy, when the war is over. Since therefore the right of making flaves by captivity depends on a fuppofed right of flaughter, that foundation failing, the confequence drawn from it muft fail likewife. But, fecondly, it is faid that flavery may begin "jure "civili," when one man fells himself to another. This, if only meant of contracts to ferve or work for another, is very a Pag. 127. Servi aut fiunt,aut nafcuntur i fiunt jure gentium, aut jure civili ; nafcuntur ex ancillis noftris. Inft. 1. 3. 4. just: juft but when applied to ftrict flavery, in the fenfe of the laws of old Rome or modern Barbary, is alfo impoffible. Every fale implies a price, a quid pro quo, an equivalent given to the feller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which (in abfolute slavery) are held to be in the master's difpofal? His property also, the very price he seems to receive, devolves ipfo facto to his mafter, the instant he becomes his flave. In this case therefore the buyer gives nothing, and the feller receives nothing of what validity then can a fale be, which destroys the very principles upon which all fales are founded? Lastly, we are told, that besides these two ways by which flaves "fiunt," or are acquired, they may also be hereditary: "fervi nafcuntur;" the children of acquired flaves are jure naturae, by a negative kind of birthright, flaves alfo. But this, being built on the two former rights, muft fall together with them. If neither captivity, nor the fale of one's felf, can by the law of nature and reason reduce the parent to flavery, much less can they reduce the offspring. UPON thefe principles the law of England abhors, and will not endure the existence of, flavery within this nation: fo that when an attempt was made to introduce it, by ftatute 1 Edw. VI. c. 3. which ordained, that all idle vagabonds fhould be made flaves, and fed upon bread and water, or fmall drink, and refufe meat; fhould wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwife, to perform the work affigned them, were it never fo vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this ftatute was repealed in two years afterwards. And now it is laid down, that a flave or negro, the inftant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, and his property. Yet, with regard to any right which the mafmay have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the fame state as be ter Stat. 3 & 4 Edw. VI. c. 16. e Salk. 666. fore: fore: for this is no more than the fame state of fubjection for life, which every apprentice submits to for the space of seven years, or fometimes for a longer term. Hence too it follows, that the infamous and unchriftian practice of withholding baptifm from negro fervants, left they should thereby gain their liberty, is totally without foundation, as well as without excufe. The law of England acts upon general and extenfive 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 diffolve a civil obligation between mafter and fervant, on account of the alteration of faith in either of the parties: but the flave is entitled to the fame protection in England before, as after, baptifm; and, whatever fervice the heathen negro owed of right to his American master, by general not by local law, the fame (whatever it be) is he bound to render when brought to England and made a christian. 1. THE first fort of fervants therefore, acknowleged by the laws of England, are menial fervants; fo called from being intra moenia, or domeftics. The contract between them and their masters arifes upon the hiring. If the hiring be general without any particular time limited, the law conftrues it to be a hiring for a year; upon a principle of natural equity, that the fervant fhall ferve, and the mafter maintain him, throughout all the revolutions of the refpective seasons; as well when there is work to be done, as when there is not : but the contract may be made for any larger or fmaller term. All fingle men between twelve years old and fixty, and married ones under thirty years of age, and all fingle women between twelve and forty, not having any vifible livelihood, are compellable by two juftices to go out to service in husbandry or certain specific trades, for the promotion of honest industry : and no mafter can put away his fervant, or fervant leave his mafter, after being fo retained, either before or at the end of his term, without a quarter's warning; unlefs upon reafon f Co. Litt. 42. I g F. N. B. 168. able |