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ing 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. 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 Cokef 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 a great measure owing to the salutary provisions of the statutes called the The Naviga- 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 merchandise 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,g with a narrow, partial view; being intended to mortify our own sugar islands, which were disaffected to the Parliament, and still held [420] out for Charles II., by stopping the gainful trade which they

tion Acts.


• 4 Inst., 144; Coutumes de la Mer, 2.

(20) These acts, however, have been, by the more enlightened policy of modern times, in a great measure repealed; see 4 Geo. IV., c. 41, 42-45, and 6 Geo. IV., c. 105, 109, 110. For a concise and excellent sketch of the history and principles of our navigation laws, see M'Culloch's Dict. of Com., art. Navigation Laws. The statutes on the subject are, 3 & 4 Wm. IV., c. 50, 54, 55, & 59; 4 & 5 Wm. IV., c. 13, 89; 5 & 6 Wm. IV., c. 19, 66, and 3 & 4 Vict., c. 95. The object of these statutes is, first, to place our intercourse with all foreign nations at amity with us on the same footing; secondly, to permit the importation of enumerated goods in ships of the country from which they are imported, as well as in British ships, or in ships of the country of which such goods are the produce; and, thirdly, to allow British ships

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to take on board any goods, the importation of which is not prohibited, on meeting with them in any Asiatic, African, or American port. To these important changes must be added the general adoption of what is called "the reciproc ity system," the principle of which is, that the ships of any specified foreign ports shall be admitted into our ports on their paying the same charges as our own ships, on condition that British ships be admitted into such foreign ports on a similar footing; and that equal duties shall be laid upon all articles the produce of the one country imported into the other, whether such importation be effected in the ships of the one or of the other. Commercial treaties, based on this sound and liberal principle, have been entered into with the American and most of the European states.

then carried on with the Dutch, and at the same time to clip the wings of those our opulent and aspiring neighbors. This prohibited all ships of foreign nations from trading with any English plantations without license from the council of state. In 1651, the prohibition was extended, also, to the mother country; and no goods were suffered to be imported into England, or any of its dependencies, in any other than English bottoms; or in the ships of that European nation of which the merchandise 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.

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.

of supplying

1. First, for their supply. The power of impressing sea-faring The modes men for the sea service by the king's commission has been a the navy. matter of some dispute, and submitted to with great reluctance; though it hath very clearly and learnedly been shown by Sir Michael Foster that the practice of impressing and granting powers to the admiralty for that purpose is of very ancient 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. 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 practiced without dispute; and provides a remedy against their running away. By a later statute, if any waterman, who uses the River Thames, shall hide himself during the execution of [419*] any commission of pressing for the king's service, he is liable to heavy penalties. By another, 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 choose out and return such a number of able-bodied men as in the commission are contained to serve her majesty. And by others," especial protections are allowed to seamen in particular circumstances to prevent them from being impressed. And ferrymen are also said to be privileged from being impressed at common law.

h Mod. Un. Hist., xli., 289

i Scobell, 176. Rep., 154.

See, also, Comb., 245; Barr., 334. 1 Stat. 2 & 3 Ph. & M., c. 16.

m Stat. 5 Eliz., c. 5..


See stat. 7 & 8 Wm. III., c. 21; 2
Ann., c. 6; 4 & 5 Ann., c. 19; 13 Geo.
II., c. 17; 2 Geo. III., c. 15; 11 Geo.
III., c. 38; 19 Geo. III., c. 75, &c.
• Sav., 14.

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."1

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 afterward, the masters shall be allowed their wages ;p" great advantages in point of wages are given to volunteer seamen, in order to induce them to enter into his majesty's service; and every foreign seaman who, during a war, shall serve two years in any man-of-war, merchantman, or privateer, is naturalized ipso facto." About the middle of King William's reign, a scheme was set on foots for a register of seamen to the number of thirty thousand, for a constant and regular supply of the king's fleet; with great priv[420] ileges to the registered men, and, on the other hand, heavy

The articles

of the navy.

penalties in case of their non-appearance when called for; but this registry being judged to be ineffectual as well as oppressive, was abolished by statute 9 Anne, 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;t but since newmodeled and altered, after the peace of Aix la Chapelle," to remedy some defects which were of fatal consequence in conducting the preceding war. In these articles of the navy almost every possible offense 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 arti

P Stat. 2 & 3 Ann., c. 6.
Stat. 31 Geo. II., c. 10.
Stat. 13 Geo. II., c. 3.
Stat. 7 & 8 Wm. III., c. 21.

(21) The legality of impressment is now fully established; see Cowp., 512; 5 T. R., 276; and the custom seems also to have been recently recognized in 5 & 6 Wm. IV., c. 24, which enacts, that no person shall be detained on board ship in the king's service for more than five years without his own consent, except in cases of emergency.

(22) As to the voluntary enlistment of seamen to serve in her majesty's navy, see 5 & 6 Wm. IV., c. 24; and as to the pay of the navy, see 11 Geo. IV., and 1

t Stat. 13 Car. II., st. 1, c. 9. "Stat. 22 Geo. II. c., 33, amended by 19 Geo. III., c. 17.

Wm. IV., c. 20; 4 & 5 Wm. IV., c. 25, and 5 Vict., c. 3.

(23) By 5 & 6 Wm. IV., c. 19, s. 2639, further provisions are made for the apprenticing of boys, whose parents are owner of any ship registered in any port chargeable to the parish, to the master or of the United Kingdom.

(24) But has since been revived by 5 & 6 Wm. IV., c. 19, which makes various provisions for forming and maintaining a register of all seamen engaged in the merchant service.

cles 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 its legal existence, by refusing to concur in its continuance.



3. With regard to the privileges conferred on sailors, they Privileges o are pretty much the same with those conferred on soldiers; with regard to relief when maimed, or wounded, or superannuated, either by county rates, or the Royal Hospital at Greenwich; with regard, also, to the exercise of trades, and the power of making nuncupative testaments; and further, no seaman on board 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


w Stat. 31 Geo. II., c. 10.

(25) In the Mutiny Act of 1838 (1 & 2 Vict., c. 17, s. 3), it was provided, that no soldier should be taken out of her majesty's service by any process or execution for any debt less than £30 over and above all costs of suit; a section

which is re-enacted in the present Mu-
tiny Act, 6 & 7 Vict., c. 3. Soldiers and
sailors, like all other persons, are now
protected from arrest upon mesne pro-
cess for any amount; see 1 & 2 Vict., c.



Rights and duties as to

relations in

private life.

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 economical 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 labor 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 its 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 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

[423] created and destroyed; secondly, the effect of this relation with regard to the parties themselves; and, lastly, its effects with regard to other persons.


LAs to the several sorts of servants; I have formerly observed that pure and proper slavery does not, nay, can not, 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, are all of them built upon false foundations. As,

a Page 127.

jure gentium, aut jure civili; nascuntur Servi aut fiunt aut nascuntur: fiunt ex ancillis nostris.-Inst., 1, 3, 4. Montesq., Sp. L., xv., 2.


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