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 seamen, 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 foot 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 8 ineffectual as well as oppressive, was abolished by statute 9 Ann. c. 21. 8 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; but since [421] new-modelled 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 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 ihe 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 exten p Stat. 2 Ann. c. 6. q Stat. 831 Geo. II. c. 10.8 8 Previously, "1 Geo. II. st. 2. c. 14." r Stat. 13 Geo. II. c. 3. s Stat. 7 & 8 W. III. c. 21. t Stat. 13 Car. II. st. 1. c. 9. u Stat. 22 Geo. II. c. 23.9 9 Ninth edition adds, "amended by 19 Geo. III. c. 17" 8 Previously, "rather a badge of slavery." sive 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. 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 superannuated, either by county rates, or the royal hospital at Greenwich; with regard also to the exercise of trades, and the power of making 2 nuncupative testaments: and farther," 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. w Stat. 8 31 Geo. II. c. 10.8 8 Previously, "1 Geo. II. st. 2. c. 14." 2 First edition reads "informal." 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 œconomical relations. *The three great relations in private life are, 1. That of master and servant [see note 22, page 719]; 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 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.‡ [423] 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 effect of this relation with regard to the parties *- Quoted, 4 Me. 180, 181. * Quoted, 70 N. C. 613, 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 anywhere. The three origins of the right of slavery, assigned by Justinian, are all of them built upon false foundations.c 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 a Pag. 127. b Servi aut fiunt, aut nascuntur: fiunt jure gentium, aut jure civili: nascuntur ex ancillis nostris. Inst. 1. 3. 4. c Montesq. Sp. L. xv. 2,5 **Quoted, 6 Ohio St. 711, of comments upon Somerset Case, 6 Ohio St. 713. Cited, 8 Conn. 398. † Cited, 6 Ohio St. 628, 724; 1 Har. (Del.) 85 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 [424] 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 quc, 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 naturæ 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 one's self, can by the law of nature and reason reduce the parent to slavery, much less can they reduce the offspring.t 2 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 2 First edition reads "it." + Cited, 4 Har. & McH. 304. - Quoted, 12 Conn. 42. Cited, 8 Conn. 398. |