2. THE method of ordering feamen in the royal fleet, and keeping up a regular discipline there, is directed by certain exprefs rules, articles, and orders, first enacted by the authority of parliament soon after the restoration; but fince newmodelled and altered, after the peace of Aix la Chapelle", to [ 421 ] remedy fome defects which were of fatal confequence in con ducting the preceding war. In these articles of the navy almost every poffible offence is fet down, and the punishment thereof annexed; in which respect the feamen 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, fhould be for extensive 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 fubjected to difcretionary government. But, whatever was apprehended at the firft formation of the mutiny act, the regular renewal of our ftanding force at the entrance of every year has made this diftinction idle. For, if from experience past we may judge of future events, the army is now laftingly ingrafted into the British conftitution; with this fingularly fortunate circumftance, that any branch of the legislature may annually put an end to it's legal exift ence, by refufing 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 fol diers; 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, and the power of making nuncupative teftaments and farther, no feaman aboard his majesty's fhips can be arrested Stat. 13 Car. II. ft. 1. c. 9. by 19 Geo. III. c. 17. for for any debt, unless the fame be sworn to amount to at least twenty pounds; though, by the annual mutiny acts, a foldier be arrested for a debt which extends to half that may value, but not to a less amount (12). (12) But by the late mutiny acts, a foldier, like a feaman, cannot be arrested or taken in execution for any debt less than 20% The ftatutes except any criminal matter, and thereupon it has been decided, that a foldier may be committed for refufing to indemnify the parish againft a baftard child; or for difobeying an order of juftices to pay a weekly allowance for it. 5 T. R. 156. 2 T. R. 270. Here it may not be improper to add, that fince the time of queen Anne, a variety of statutes 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 ufeful and practicable plan to discover the longitude at fea, 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 7500l. if within of a degree; and to 10,000/ if within a degree. And if any useful discovery shall be made respecting the longitude, though not entitled to those great rewards, or if any beneficial improvement shall be introduced into navigation, the commiffioners of the longitude may award fuch less fum as they may think the ingenuity or industry of the author deferves. And by 16 Geo. III. c. 6. if any fhip discovers a passage between the Atlantic and Pacific oceans, beyond the 52d degree North latitude, the owner or commander, if a king's fhip, fhall receive 20,000l.; and 5000l. fhall be given in like manner to the first ship that shall approach within one degree of the North pole. CHAPTER THE FOURTEENTH. OF MASTER AND SERVANT. HAVI AVING thus commented on the rights and duties of persons, as standing 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 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 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 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 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 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 fupply the deficiency, whenever it happens, of the natural, Of all these relations in their order. 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 themselves: and, lastly, it's effect with regard to other perfons. I. As to the several forts of fervants: 1 have formerly obferved that pure and proper flavery does not, nay cannot, fubfift in England: fuch I mean, whereby an absolute 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 fubfift any where. The three origins of the right of flavery, affigned by Justinian, are all of them built upon falfe foundations. As, first, 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 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, för felf-defence; and it is plain this abfolute neceffity did not fubfift, fince the victor did not actually kill him, but made him prifoner. War is itself justifiable only on principles of 'felfprefervation; and therefore it gives no other right over prifoners but merely to disable them from doing harm to us, by confining their perfons: much lefs 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 slaves by captivity depends on a supposed right of flaughter, that foundation failing, the confequence drawn from it must fail like. wife. 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: nascuntur 13 ex ancillis noftris. Inft. 1. 3. 4. just: juft: but when applied to strict slavery, in the fenfe of the laws of old Rome or modern Barbary, is also 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: but what equivalent can be given for life, and liberty, both of which (in abfolute flavery) are held to be in the master's difpofal? His property also, the very price he seems 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? Laftly, 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 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: 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 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 fpirit of the nation could not brook this condition, even in the moft abandoned rogues; and therefore this ftatute was repealed in two years afterwards. 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 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. VOL. I. e Salk. 666. fore: |