foldiers; with regard to relief when maimed, or wounded, or fuperannuated, either by county rates, or the royal hofpital at Greenwich; with regard also to the exercise of trades, and the power of making nuncupative teftaments: And farther w, no feaman aboard his majefty's fhips can be arrested for any debt, unless the same 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 less amount.

w Stat. 31. Geo. II. c. 19.

CHAPTER

CHAPTER THE FOURTEENTH:.

OF MASTER AND SERVANT.

HAVING thus commented on the rights

and duties of perfons, as standing in the publick relations of magiftrates and people, the method I have marked out now leads me to confider their rights and duties in private economical 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 hufband and wife; which is founded in nature, but modified by civil fociety: The one directing man to continue and multiply his fpecies, the other prefcribing the manner in which that natural impulse must be confined and regulated. 3. That of parent and child; which is confequential to that of marriage, being its 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 fnatched 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 fupply 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, first, confider the feveral forts of servants, and how this relation is created and deftroyed: Secondly, the effect of this relation with regard to the parties themselves: And, lastly, its effect with regard to other perfons.

I. As to the feveral forts of fervants: I have formerly observed a that pure and proper flavery does not, nay cannot, fubfist 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 such a state fhould fubfift any where. The three origins of the right of flavery, affigned by Juftinian b, are all of them built upon false foundations c. As, firft, flavery is held to arife "jure gentium," from a ftate of captivity in war; whence flaves are called mancipia, quafi manu capti. The conqueror, fay the civilians, had a right to the life of his captive; and, having fpared that, has a right to deal with him as he pleases. But it is an untrue pofition, 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 particu lar cafes; in cafes of abfolute neceffity, for felf defence; and it is plain this abfolute neceffity did not fubfist, fince the victor did not actually kill him, but made him prifoner. War is itself justifiable only on principles of felf preservation; 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 supposed right of flaughter, that foundation failing, the conlequence 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 juft: But when applied to strict slavery

a Pag. 127.

in

b Servi aut fiunt, aut nafcuntur: Fiunt jure gentium, aut jure civ ili: Nafcuntur ex ancillis noftris. Inft. L. 3. 4.

c Montefq. Sp. L. xv. 2.

in the fenfe of the laws of old Rome or modern Barbary, is also 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 flavery) are held to be in the master's difpofal ? His property alfo, the very price he seems to receive, devolves ipfo facto to his master, the inftant he becomes his flave. In this cafe, therefore, the buyer gives noth. ing, and the feller receives nothing: Of what validity then can a fale be, which deftroys the very principles upon which all fales are founded? Laftly, we are told, that befides these two ways by which flaves " fiunt," or are acquired, they may also be hereditary: "Servi nafcuntur" the children of acquired flaves are jure na turae, by a negative kind of birthright, slaves alfo. But this, being built on the two former rights must 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 lefs can they reduce the offspring.

Upon thefe principles the law of England abhors, and will not endure the existence of, flavery 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 fhould be made flaves, and fed upon bread, water, or small drink, and refufe meat; fhould wear a ring of iron round their necks, arms, or legs; and fhould be compelled by beating, chaining, or otherwife, to perform the work affigned them, were it never fo vile; the fpirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this ftatute was repealed in two years after. wards d. And now it is laid downe, that a slave or negro, the inftant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his perfon, and his property. Yet, with regard to any right which the mafter may have law fully acquired to the perpetual service of John or Thomas, this will remain exactly in the fame ftate as before: For this is

d Stat. 3 & 4 Edw. VI. c. 16.

e Salk. 666.

no

no more than the same state of fubjection for life, which every apprentice submits to for the space of feven years, or fometimes for a longer term. Hence too it follows, that the infamous and unchristian practice of withholding baptifm from negro fervants, left they fhould 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 Chrift; and it will not dissolve a civil obligation between master and servant, 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, baptism; and, whatever service the heathen negro owed of right to his American mafter, 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, acknowledged by the laws of England, are menial fervants; so called from being intra moenia, or domefticks. The contract between them and their masters arises upon the hiring. If the hiring be general without any particular time limited, the law conftrues it to be a hiring for a year f; upon a principle of natural equity, that the fervant fhall ferve, 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 : But the contract may be made for any larger or smaller 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 visible livelihood, are compellable by two juftices to go out to service in husbandry or certain specifick trades, for the promotion of honeft industry: And no mafter can put away his fervant, or fervant leave his master, after being fo retained, either before or at the end of his term, without a quarter's warning; unless upon reasonable

f Co. Litt. 42.

F. N. B. 168.

cause