and to confer privileges and rewards on them during and after their fervice. 1. FIRST, for their supply. The power of impressing seafaring men for the fea fervice by the king's commiffion, has been a matter of fome difpute, and fubmitted to with great reluctance; though it hath very clearly and learnedly been fhewn, by fir Michael Foster', that the practice of impreffing, and granting powers to the admiralty for that purpose, is of very antient date, and hath been uniformly continued by a regular series of precedents to the prefent time: whence he concludes it to be part of the common law *. The difficulty arifes from hence, that no ftatute has exprefsly declared this power to be in the crown, though many of them very strongly imply it. The statute 2 Ric. II. c. 4. fpeaks of mariners being arrested and retained for the king's fervice, as of a thing well known and practifed without difpute; and provides a remedy against their running away. By a later ftatute', if any waterman, who uses the river Thames, fhall hide himself during the execution of any commiffion of preffing for the king's fervice, 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 commiffion fhall be firft brought to two juftices of the peace, inhabiting near the fea coaft where the mariners are to be taken, to the intent that the justices may [420] chufe out and return such number of able-bodied men, as in the commission are contained, to serve her majesty. And, by others ", efpecial protections are allowed to seamen in particular circumftances, to prevent them from being im preffed. And ferrymen are also faid to be privileged from being impreffed, at common law °. All which do most evidently imply a power of impreffing to refide fomewhere; and, if any where, it must from the fpirit of our conftitution, as well as from the frequent mention of the king's commiffion, refide in the crown alone (11). j Rep. 154. See also Comb. 245. Barr. 334- Stat. 5 Eliz. c. 5. "See Stat. 7 & 8 W. III. c. 21. (11) The legality of preffing is fo fully established, that it will not now admit of a doubt in any court of juftice. In the cafe of PP 3 the BUT, befides this method of impreffing, (which is only defenfible from public neceffity, to which all private confiderations must give way,) there are other ways that tend to the increase of feamen, and manning the royal navy. Parishes may bind out poor boys apprentices to masters of merchantmen, who fhall be protected from impreffing for the first three years; and if they are impreffed afterwards, the masters shall be allowed their wages : great advantages in point of wages, are given to volunteer feamen in order to induce them to enter into his majefty's fervice?: and every foreign feaman, who during a war fhail ferve two years in any man of war, merchantman, or privateer, is naturalized ipfo facto. About the middle of king William's reign a scheme was fet on foot for a register of feamen to the number of thirty thousand, for a conftant and regular fupply of the king's fleet; with great privileges to the registered men, and, on the other hand, heavy penalties in cafe of their non-appearance when called for: but this re P Stat. 2 Aun. c. 6. Stat. 13 Geo. II. c. 3. * Stat. 7 & 8 W. III. c. 21. the King v, Jubbs, lord Mansfield fays, "the power of preffing is founded upon immemorial usage, allowed for ages. If it be "fo founded and allowed for ages, it can have no ground to stand upon, nor can it be vindicated or juftified by any reason, but the fafety of the ftate. And the practice is deduced from that "trite maxim of the constitutional law of England, that private ❝ mischief had better be fubmitted to, than public detriment and inconvenience fhould enfue.' And though it be a legal power, "it may, like many others, be abused in the exercise of it." Cowp. 517. In that cafe, the defendant was brought up by babeas corpus, upon the ground that he was entitled to an exemption; but the court held that the exemption was not made out, and he was remanded to the fhip from which he had been brought. Lord Kenyon has alfo declared in a fimilar cafe, that the right of preffing is founded on the common law, and extends to all perfons exercising employments in the feafaring line. Any exemp tions, therefore, which fuch perfons may claim, muft depend upon the pofitive provifions of ftatutes. 5 T. R. 276. A feaman ferving in the merchant fervice is not exempt from being impreffed becaufe he is a freeholder. 5 Eaft 477. giftry, giftry, being judged to be ineffectual as well as oppreflive, was abolished by statute 9 Ann. c. 21. 2. THE method of ordering feamen 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 foon after the restoration; but fince newmodelled and altered, after the peace of Aix la Chapelle ", [421] to remedy fome defects which were of fatal confequence in conducting the preceding war. In thefe articles of the navy almost every poffible offence is fet down, and the punishment thereof annexed: in which refpect the feamen have much the advantage over their brethren in the land-fervice; whofe articles of war are not enacted by parlia ment, but framed from time to time at the pleasure of the crown. Yet from whence this diftinction arose, and why the executive power, which is limited fo properly with regard to the navy, fhould be fo extenfive with regard to the army, it is hard to affign a reafon : 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 fubfifted only from year to year, and might therefore with lefs 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 diftinction idle. For, if from experience paft we may judge of future events, the army is now lastingly ingrafted into the British conftitution; with this fingularly fortunate circumftance, that any branch of the legiflature 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 failors, they are pretty much the fame with thofe 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, Stat. 13 Car. II. ft. 1. c. 9. "Stat. 22 Geo. II. c. 23. amended by 19 Geo. III. c. 17. PP 4 and and the power of making nuncupative teftaments: and farther, no feaman on board 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 (12). P Stat. 31 Geo. II. c. 10. (12) But by the late mutiny acts, a foldier, like a feaman, cannot be arrested or taken in execution for any debt lefs than 20%. The ftatutes except any criminal matter, and thereupon it has been decided, that a foldier may be committed for refusing to indemnify the parish against a bastard child; or for disobeying an order of juftices to pay a weekly allowance for it. 5 T. R. 156. 2 T. R. 270. The 44 Geo. III. c. 13. enacts, that if any petty officer or feaman belonging to his majefty's navy, shall be arrested or apprehended for any debt or criminal charge, after he shall be entitled to his difcharge, he fhall be re-conveyed by the fheriff, gaoler, or other officer, to fome officer of his majesty's fleet empowered to receive feamen. And if he wilfully or negligently permits him to efcape, he fhall forfeit one hundred pounds. Here it may not be improper to add, that fince the time of queen Anne, a variety of ftatutes have been paffed to encourage attempts to discover the longitude at fea; and by the 14 Geo. III. c. 66. which has repealed the former ftatutes, it is enacted, that the author of any useful and practicable plan to discover the lon gitude at sea, either by time keepers or aftronomical calculations, fhall be entitled to a reward of 5000l. if the longitude can be determined at fea within a degree of a great circle, or fixty geographical miles; to 7,500l. if within of a degree; and to 10,000l. if within a degree. And if any ufeful discovery shall be made refpecting the longitude, though not entitled to thofe great rewards, or if any beneficial improvement fhall be introduced into navigation, the commiffioners of the longitude may award fuch lefs fum as they think the ingenuity or induftry of the author deferves. And by 16 Geo. III. c. 6. if any fhip discovers a passage be tween the Atlantic and Pacific oceans, beyond the 52d degree North latitude, the owner or commander, if a king's ship, shall receive 20,000l.; and 5000l. fhall be given in like manner to the first ship that fhall approach within one degree of the North pole. 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 consider 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 prescribing the manner in which that natural impulfe must be confined and regulated. 3. That of parent and child, which is consequential 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. 1 |