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ever was apprehended at the firft 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 fingularly fortunate circumftance, 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 failors, they are pretty much the fame with thofe conferred on foldiers; with regard to relief, when maimed, or wounded, or fuperannuate, 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", no feaman aboard his majefty'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.
w Stat. 1 Geo. II. ft. 2. c. 14.
CHAPTER THE FOURTEENTH.
OF MASTER AND SERVANT.
AVING thus commented on the rights and duties of perfons, as ftanding in the public relations of magistrates and people, the method I have marked out now leads me to confider their rights and duties in private oeconomical relations.
THE three great relations in private life are, 1. That of master and fervant; which is founded in convenience, whereby a man is directed to call in the affiftance of others, where his own fkill 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 prescribing 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 design 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 snatched away by death or otherwise, 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.
IN difcuffing the relation of master and fervant, I shall, first, confider the feveral forts of servants, and how this relation is created and destroyed: fecondly, the effect of this relation with regard to the parties themselves: and, laftly, it's effect with regard to other perfons.
I. As to the several forts of fervants: I have formerly obferved that pure and proper slavery does not, nay cannot, subsist 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 such a state should subfift any where. The three origins of the right of flavery, affigned by Justinian, are all of them built upon false foundations. As, first, flavery is held to arise "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 pleafes. 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 fubfift, fince the victor did not actually kill him, but made him prisoner. War is itself juftifiable only on principles of self-prefervation; 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 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 serve or
jure gentium, aut jure civili:
a pag. 127.
↳ Serve aut fiunt, aut nafcuntur: fiunt ancillis noftris.
work for another, is very juft: but when applied to strict slavery, in the fenfe of the laws of old Rome or modern Barbary, is alfo mpoffible. 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 disposal? His property alfo, the very price he feems to receive, devolves ipfo facto to his mafter, the inftant 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 these two ways by which flaves "fiunt," or are acquired, they may also be hereditary: "fervi nafcuntur;" the children of acquired slaves are, juri naturae, by a negative kind of birthright, flaves also. But this being built on the two former rights, muft fall together with them. If neither captivity, nor the fale of one's felf, can by the law of nature and reafon 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 exiftence 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 fhould be made flaves, and fed upon bread, water, or small drink, and refuse meat; fhould wear a ring of iron round their necks, arms, or legs; and fhould be compelled by beating, chaining, or otherwise, 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 if two years afterward. And now it is laid down, that a flave 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 acquired to the perpetual fervice of John or Thomas, this will remain exactly in the fame ftate as before: for this is no
more than the same 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 witholding baptifm from negro fervants, left they should thereby gain their liberty, is totally without foundation, as well as without excufe. The law of England acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a jew, a turk, or a heathen, as well as to those who profefs the true religion of Chrift; and it will not diffolve a civil obligation between master 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 fervice the heathen. negro owed to his American mafter, the fame is he bound to render when brought to England and made a chriftian.
1. THE first fort of fervants therefore, acknowleged by the laws of England are menial fervants; so called from being entra moenia, or domeftics. The contract between them and their mafters 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; upon a principle of natural equity, that the fervant thall serve, and the master maintain him, throughout all the revolutions of the refpective feafons; as well when there is work to be done, as when there is not: but the contract may be made for any larger or finaller 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 juices to go out to fervice in husbandry or certain specific trades, for the promotion of honcft 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; unlefs upon Fff reafonable
e Co. Litt. 42.
f F. N. B. 169