66 ław, which is our rule of action, either concealed or precarious : mifera eft fervitus, ubi jus eft vagum aut incognitum." Nor is this ftate of fervitude quite confiftent with the maxims of found policy obferved by other free nations. For, the greater the general liberty is which any ftate enjoys, the more cautious has it usually been of introducing flavery in any particular order or profeffion. These men, as baron Montefquieu observes, fecing the liberty which others poffefs, and which they themselves are excluded from, are apt (like enuchs in the eastern feraglios) to live in a state of perpetual envy and hatred towards the reft of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. Hence have many free ftates, by departing from this rule, been endangered by the revolt of their flaves: while, in abfolute and defpotic governments where no real liberty exists, and confequently no invidious comparisons can be formed, fuch incidents are extremely rare. Two precautions are therefore advised to be observed in all prudent and free governments: 1. To prevent the introduction of flavery at all: or, 2. If it be already introduced, not to intruft those flaves with arms; who will then find themselves an overmatch for the freemen. Much less ought the foldiery to be an exception to the people in general, and the only state of fervitude in the nation. BUT as foldiers, by this annual act, are thus put in a worfe condition than any other fubjects, fo, by the humanity of our ftanding laws, they are in fome cafes put in a much better. By ftatute 43 Eliz. c. 3. a weekly allowance is to be raised in every county for the relief of foldiers that are fick, hurt, and maimed: not forgetting the royal hofpital at Chelfea for fuch as are worn out in their duty. Officers and foldiers that have been in the king's fervice, are by feveral ftatutes, enacted at the clofe of feveral wars, at liberty to ufe any trade or occupation they are fit for, in any town in the kingdom (except the two universities) notwithstanding any statute, custom, or charter to the contrary. And foldiers in actual military service may make nuncupative wills, a Sp. L. 15. 12. and and dispose of their goods, wages, and other personal chattels, without those forms, folemnities, and expenfes, which the law requires in other cafes. Our law does not indeed extend this privilege so far as the civil law; which carried it to an extreme that borders upon the ridiculous. For if a foldier, in the article of death, wrote any thing in bloody letters on his shield, or in the duft of the field with his sword, it was a very good military teftament. And thus much for the military state, as acknowleged by the laws of England. THE maritime ftate is nearly related to the former; though much more agrecable to the principles of our free conftitution. The royal navy of England hath ever been it's greateft defence. and ornament; it is it's antient and natural strength; the floating 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 affiduoufly cultivated, even from the earliest ages. To fo 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 fubftruction of all their marine constitutions, was confeffedly compiled by our king Richard the firft, at the isle of Oleron on the coaft of France, then part of the poffeffions of the crown of England'. And yet, so vaftly inferior were our ancestors in this point to the present age, that even in the maritime reign of queen Elizabeth, fir Edward Coke thinks it matter of boast, that the royal navy of England then confifted of three and thirty fhips. The prefent condition of our marine is in great measure owing to the falutary provifions of the statutes, called the navigation-acts; whereby the conftant increase of English shipping and feamen was not only encouraged, but renEee dered b Stat. 29 Car. II. c. 3. 5 W. III. c. 21. §. 6. c Si milites quid in clypeo literis fanguine fuo rutilantibus adnotaverint, aut in pulvere infcripferint gladio fuo, ipfo tempore quo, in pracko, vitae fortem derelinquunt, hujufmodį, dered unavoidably neceffary. By the ftatute 5 Ric. II. c. 3. iq order to augment the navy of England, then greatly diminished, it was ordained, that none of the king's liege people should ship any merchandize out of or into the realm but only in ships of the king's ligeance, on pain of forfeiture. In the next year, by ftatute 6 Ric. II. c. 8. this wife provifion was enervated,by only obliging the merchants to give English fhips (if able and fufficient) the preference. But the the most beneficial ftatute for the trade and.commerce of these kingdoms is that navigation-act, the rudiments of which were first framed in 1659, with a narrow partial view: being intended to mortify the fugar islands, which were difaffected to the parliament and ftill held out for Charles II, by ftopping the gainful trade which they then carried on with the Dutch3; and at the fame time to clip the wings of those our opulent and aspiring neighbours. This prohibited all fhips of foreign nations from trading with any English plantations without licence from the council of ftate. In 1651 the prohibition was extended alfo to the mother country; and no goods were fuffered to be imported into England, or any of it's dependencies, in any other than English bottoms; or in the fhips of that European nation of which the merchandize imparted was the genuine growth or mapufacture. At the reftoration, the former provifions were continued, by ftatute 12 Car. II. c. 18. with this very material improvement, that the mafter and three fourths of the mariners fhall alfo be English fubjects, MANY laws have been made for the fupply of the royal navy with feamen; for their regulation when on board; and to confer privileges and rewards on them during and after their service. 1. FIRST, for their fupply. The power of impreffing men for the fea service by the king's commiffion, has been a matter of fome difpute, and submitted to with great reluctance; though it hath very clearly and learnedly been fhewn, by fir Michael Fofter', Fofter', 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 feries of precedents to the present time: whence he concludes it to be part of the common law*. The difficulty arifes from hence, that no statute has exprefsly declared this power to be in the crown, though many of them very strongly imply it. The ftatute 2 Ric. II. c. 4. fpeaks of mariners being arrested and retained for the king's fervice, as of a thing well known, and practised without difpute; and provides a remedy against their running away. By a later statute', if any waterman, who uses the river Thames, fhall hide himself during the execution of any commiffion of preffing for the king's service, he is liable to heavy penalties. By another", no fisherman shall be taken by the queen's commiffion to ferve 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 juftices may chufe out and return fuch a number of ablebodied men, as in the commiffion are contained, to ferve her majefty. And, by others", especial protections are allowed to feamen in particular circumstances, to prevent them from being impreffed. 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 constitution, as well as from the frequent mention of the king's commiffion, refide in the crown alone. BUT, befides this method of impreffing, (which is only defenfible from public neceffity, to which all private considerations muft 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 mafters of merchantmen, who shall be proEee 2 tected i Rep. 154. k See alfo Comb. 245. 1 Stat. 2 & 3 Ph. & M. c. 16. m Stat. Eliz. c. s. n Stat. 7 & 8 W. III. c. 21. 2 Ann. c. 6. Ann. c. 19. 13 Geo. II. c. 17. &c. o Sav. 14. 4 & tected from impreffing for the first three years; and if they are impreffed afterwards, the mafters fhall be allowed their wages?: great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty's fervice': and every foreign seaman, who during a war fhall 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 thoufand, for a conflant 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 registry, being judged to be rather a badge of flavery, was abolished by ftatute 9 Ann. c. 21. 2. THE method of ordering feamen in the royal fleet, and keeping up a regular difcipline there, is directed by certain exprefs rules, articles, and orders, first enacted by the authority of parliament foon after the restoration'; but fince new-modelled and altered, after the peace of Aix la Chapelle", to remedy fome defects which were of fatal confequence in conducting the preceding war. In thefe articles of the navy almoft every poffible offence is fet down, and the punishment thereof annexed: in which respect the seamen have much the advantage over their brethren in the land fervice; whofe articles of war are not enacted by parliament, but framed from time to time at the pleasure of the crown. Yet from whence this diftinction arofe, and why the executive power, which is limited fo properly with regard to the navy, should be so extensive with regard to the army, it is hard to affign a reafon : unlcfs it proceeded from the perpetual eftablishment 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 fubjected to discretionary government. But, what p Stat. 2 Ann. c. 6. Stat. 1 Geo. II. tt. 2. c. 14. † Stat. 13 Geo. II. c. 3. 5 Stat. 7 & 8 W. III. c. 2, ever |