CHAPTER THE FOURTEENTH. OF MASTER AND SERVANT. HAV 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 occonomical 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 fociety : the one directing man to continue and multiply his fpecies, the other prefcribing the manner in which that natural impulfe 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 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 these relations in their order. 13 IN IN difcuffing the relation of mafter and fervant, I fhall, firft, confider the feveral forts of fervants, and how this relation is created and destroyed: fecondly, the effect of this relation with regard to the parties themfelves: and, laftly, it's effect with regard to other perfons. I. As to the feveral forts of servants: 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 reason, and the principles of natural law, that fuch a ftate fhould fubfift any where. The three origins of the right of flavery, asfigned by Juftinian, are all of them built upon falfe foundations. As, firft, flavery is held to arife "jure gentium," from a state 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 spared 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 particular cafes; in cafes of abfolute neceffity, for felf-defence; and it is plain this abfolute neceffity did not subsist, since the victor did not actually kill him, but made him prifoner. War is itself justifiable only on principles of felfpreservation; 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, abufe, 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 confequence drawn from it must 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. b Servi aut fiunt, aut nafcuntur: fiunt jure gentium, aut jure civili: nafcuntur . ex ancillis noftris. Inft. 1. 3. 4. just: just: but when applied to strict slavery, in the fense 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 i but what equivalent can be given for life, and liberty, both of which (in abfolute slavery) are held to be in the mafter's difpofal? His property alfo, the very price he feems to receive, devolves ipfo facto to his mafter, the instant he becomes his flave. In this cafe therefore the buyer gives nothing, and the feller receives nothing of what validity then can a fale be, which deftroys the very principles upon which all fales are founded? Lastly, we are told, that befides thefe 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, 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 less can they reduce the offspring. : UPON these 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 statute 1 Edw. VI. c. 3. which ordained, that all idle vagabonds should be made flaves, and fed upon bread and water, or small drink, and refuse meat; should 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 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 instant 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 lawfully acquired to the perpetual fervice of John or Thomas, this will remain exactly in the fame ftate as be d Stat. 3 & 4 Edw. VI. c. 16. * Salk. 666. fore: fore: for this is no more than the fame state of subjection 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 unchriftian practice of withholding baptism from negro servants, 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 Chrift; 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 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. : I. THE first fort of fervants therefore, acknowleged by the laws of England, are menial fervants; so 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 f; upon a principle of natural equity, that the fervant fhall ferve, and the mafter maintain him, throughout all the revolutions of the respective seasons; as well when there is work to be done, as when there is not g 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 visible livelihood, are compellable by two justices 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; unless upon reafon f Co. Litt. 42. F. N. B. 168. able caufe to be allowed by a juftice of the peace : but they may part by confent, or make a fpecial bargain. 2. ANOTHER fpecies of fervants are called apprentices (from apprendre, to learn) and are usually bound for a term of years, by deed indented or indentures, to ferve their masters, and be maintained and inftructed by them. This is usually done to perfons of trade, in order to learn their art and mystery; and fometimes very large fums are given with them, as a premium for fuch their inftruction: but it may be done to hufbandmen, nay to gentlemen, and others. And children of poor perfons may be apprenticed out by the overfeers, with confent of two juftices, till twenty-one years of age, to fuch perfons as are thought fitting; who are alfo compellable to take them; and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to fuch compulfion for which purposes our statutes have made the indentures obligatory, even though fuch parish-apprentice be a minor. Apprentices to trades may be discharged on reafonable caufe, either at the request of themselves or masters, at the quarter-feffions, or by one juftice, with appeal to the feffions"; who may, by the equity of the ftatute, if they think it reafonable, direct reftitution of a ratable share of the money given with the apprentice": and parish-apprentices may discharged in the fame manner, by two juftices. But if an apprentice, with whom lefs than ten pounds hath been given, runs away from his mafter, he is compellable to ferve out his time of abfence, or make fatisfaction for the fame, at any time within feven years after the expiration of his original contract P. : be 3. A THIRD fpecies of fervants are labourers, who are only hired by the day or the week, and do not live intra moenia, as h Stat. 5 Eliz. c. 4. 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 G. II. c. 5. 18 G. III. c. 47. k Salk. 57. 491. 1 Stat. 5 Eliz. c. 4. 43 Eliz. c. 2, Cro. Car. 179. m Stat. 5 Eliz. c. 4. Stat. 20 Geo. II. c. 19. part |