Oleron, and are received by all nations in Europe as the ground and substruction of all their maritime constitutions, was confessedly complied by our King Richard the First at the Isle of Oleron, on the coast of France, then part of the possessions of the crown of England. (i) (10) And yet, so vastly inferior were our ancestors in this point to the present age, that, even in the maritime reign of Queen Elizabeth, Sir Edward Coke (k) thinks it matter of boast that the royal navy of England then consisted of three and thirty ships. The present condition of our marine is in great measure owing to the salutary provisions of the statutes called the navigation acts, (11) whereby the constant increase of English shipping and seamen was not only encouraged, but rendered unavoidably necessary. By the statute 5 Ric. II, c. 3, in 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 statute 6 Ric. II. c. 8, this wise provision was enervated, by only obliging the merchants to give English ships, if able and sufficient, the preference. But the most beneficial statute for the trade and commerce of these kingdoms is that navigation act, the rudiments of which were first framed in 1650, (7) with a narrow, partial view: being intended to mortify our own sugar islands, which were disaffected to the parliament, and still held out for Charles II, by stopping the gainful trade which they then carried on with the Dutch; (m) and at the same time to clip the wings of those our opulent and aspiring neighbours. This prohibited all ships of foreign nations from trading with any English plantations *without license from the council of state. In 1651 (n) the prohibition was extended also to the mother country; and no goods were suffered to [ *419] be imported into England, or any of its dependencies, in any other than English bottoms; or in the ships of that European nation of which the merchandize imported was the genuine growth or manufacture. At the restoration, the former provisions were continued, by statute 12 Car. II, c. 18, with this very material improvement, that the master and three-fourths of the mariners shall also be English subjects.

Many laws have been made for the supply of the royal navy with seamen; for their regulation when on board; and to confer privileges and rewards on them during and after their service.

1. First, for their supply. The power of impressing seafaring men for the sea service by the king's commission, has been a matter of some dispute, and submitted to with great reluctance; though it hath very clearly and learnedly been shewn, by Sir Michael Foster, (o) that the practice of impressing, and granting powers to the admiralty for that purpose, is of very ancient date, and

(i) 4 Inst. 144. Coutumes de la Mer. 2. (m) Mod. Un. Hist. xli. 289.

(k) 4 Inst. 50. (n) Scobell, 176.

(1) Scobell, 132. (0) Rep. 154.

(10) [The French writers attribute these laws to Eleanor, duchess of Guienne, the king's mother. She had previously been the wife of Louis VII, king of France; but divorced from that monarch, she married Prince Henry, afterwards Henry II, Richard's father. She was a woman of considerable talent, and Oleron was a part of Guienne. The probability is, that these laws were compiled under the joint auspices of her husband and her son; at all events, the promulgating them was the act of Richard. For the learning upon this curious question, see Seld. Mare Cl. 2 and 24; and how oppugned by the French writers, see Mr. Justice Park's System of Marine Insurance, Introduction, p. 28.]

See also 1 Duer Mar. Ins., where that learned author declares, that, at whatever time or by whatever authority the laws of Oleron were first published, the internal evidence compels him to believe that they were intended to apply exclusively to French vessels and French navigation. And he further declares that while they contain some just and salutary regulations, yet, considered as a whole, his unfeigned surprise is created that learned jurists and enlightened scholars have deemed them worthy of their admiration and praise. Taken collectively they bear most evident traces of the rudeness and barbarism of the age in which they were compiled. Many provisions violate the plainest rules of natural justice; some by their positive absurdity provoke mirth, and some by their atrocity excite and merit detestation.

(11) The protective navigation acts are now repealed. See statutes 16 and 17 Vic. c. 107, and 17 and 18 Vic. c. 5.

hath been uniformly continued by a regular series of precedents to the present time; whence he concludes it to be part of the common law. (p) (12) The difficulty arises from hence, that no statute has expressly declared this power to be in the crown, though many of them very strongly imply it. The statute 2 Ric. II, c. 4, speaks of mariners being arrested and retained for the king's service as of a thing well known, and practised without dispute; and provides a remedy against their running away. By a later statute, (q) if any waterman who uses the river Thames shall hide himself during the execution of any commission of pressing for the king's service, he is liable to heavy penalties. By another, (r) no fisherman shall be taken by the queen's commission to serve as a mariner; but the commission shall be first brought to two justices of the peace, inhabiting near the seacoast where the mariners are to be taken, to the intent that the [*420] justices may choose out and return such a number of able-bodied men, as in the commission are contained, to serve her majesty. And by others (s) especial protections are allowed to seamen in particular circumstances, to prevent them from being impressed. And ferrymen are also said to be privileged from being impressed at common law. (t) ~ All which do most evidently imply a power of impressing to reside somewhere; and, if anywhere, it must, from the spirit of our constitution, as well as from the frequent mention of the king's commission, reside in the crown alone. (13)

But, besides this method of impressing, which is only defensible from public necessity, to which all private considerations must give way, there are other ways that tend to the increase of seamen, and manning the royal navy. Parishes may bind out poor boys apprentices to masters of merchantmen, who shall be protected from impressing for the first three years; and, if they are impressed afterwards, the masters shall be allowed their wages; (u) great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty's service; (v) and every foreign seamen, who during a war shall serve two years in any man of war, merchantman, or privateer, is naturalized ipso facto. (w) About the middle of King William's reign, a scheme was set on foot (x) 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 ineffectual as well as oppressive, was abolished by statute 9 Ann. c. 21.

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; (y) but since *new-modelled and altered, after the peace of Aix-la-Chapelle, (z) to [*421] 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 the 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 extensive 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

(p) See also Comb. 245. Barr. 344.

(g) Stat. 2 and 3 Ph. and M. c. 16.

(r) Stat. 5 Eliz. c. 5.

(8) See stat. 7 and 8 W. III, c. 21. 2 Ann. c. 6. 4 and 5 Ann. c. 19. 13 Geo. II, c. 17. 2 Geo. III, c. 15. 11 Geo. III, c. 38. 19 Geo. III, c. 75, &c. (t) Sav. 14. (u) Stat. 2 Ann. c. 6. (v) Stat. 31 Geo. II, c. 10. (a) Stat. 7 and 8 W. III, c, 21. (y) Stat. 13 Car. II, st. 1, c. 9. (z) Stat. 22 Geo. II, c. 23, amended by 19 Geo. III, c. 17.

(w) Stat. 13 Geo.II, c. 3.

(12) It is not a part of the common law of America, and would be illegal and unconstitutional in that country.

(13) As to the legality of impressment see also Cowp. 517; 5 T. R., 276; Comb. 245; Broom's Const. Law, 116-119.

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 munity 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 its legal existence, by refusing to concur in its 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 nuncupative testaments (14) and, farther, (a) 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 munity acts, a soldier may be arrested for a debt which extends to half that value, but not to a less amount.

CHAPTER XIV.

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 economical relations. The three great relations in private life are, 1. That of master and servant; 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 its 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.

*In discussing the relation of master and servant, I shall, first, consider the several sorts of servants, and how this relation is created and [*423 ] destroyed; secondly, the effect of this relation with regard to the parties themselves; and lastly, its 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 princi(a) Stat. 31 Geo. II, c. 10.

(a) Pa. 127.

(14) See statutes 28 and 29 Vic. c. 73. The power to make nuncupative wills in the United States has been the subject of statutory regulation in the several states. Soldiers and sailors are allowed to make them, under restrictions imposed to guard against fraud, one of the chief of which respects the amount of property which may be thus disposed of.

ples of natural law, that such a state should subsist anywhere. (1) The three origins of the right of slavery, assigned by Justinian, (b) 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 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 [ *424] serve or work for another, is very *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 quo, 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 sellers 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

(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.

(1) This view of the learned commentator has finally become accepted in the laws of England and America. Slavery was entirely abolished throughout the British colonial possessions by an act of parliament which took effect on the first day of August, 1834.

When the constitution of the United States was adopted, slavery was tolerated by the local law almost everwhere. In Massachusetts, however, it had been abolished by the state constitution, and in the Northwest Territory, now comprising the states of Ohio, Indiana, Illinois, Michigan and Wisconsin, it was abolished by the congressional ordinance of 1787 for the government of that territory. Still, although the feeling against the institution of slavery found strong expression in some of the northern states where the number of slaves was few, the southern states supposed themselves strongly interested in maintaining it, and it became necessary to so frame the constitution as to leave this, like the rest of the domestic relations, to the regulation of the local law. The foreign slave trade, however, in the division of powers between the states and the nation, as a part of the foreign commerce of the country, would fall naturally under the control of congress, and one of the compromises of the constitution intended for the temporary protection of this traffic, was, that the migration or importation of such persons as any of the states then existing should think proper to admit, should not be prohibited prior to the year 1808. Const. art. 1, 9. This, however, did not prevent congress making it a penal offence for American citizens to engage in the foreign slave trade, and acts were passed to that end. In 1807 congress exercised the power permitted by the constitution, and made the importation of slaves, from and after January 1, 1808, highly penal. 2 Statutes at Large, 428. In 1820 the slave trade was made piracy. 3 Statutes at Large, 600. Still, with slavery existing and the domestic slave trade permitted in nearly half the Union, it is not surprising that it was found impossible to secure convictions for the capital offence under this legislation, and the pecuniary profits were so much out of proportion to the risks, tha the slave trade continued until the breaking out of the American civil war. At the end of that war slavery was abolished throughout the United States by the thirteenth constitutional amendment, and congress was empowered to render the abolition effectual by adopting the necessary legislation to that end. And in the year 1871, Brazil followed this example by adopting a law for the gradual abolition of slavery.

Chap. 14.]

OF MASTER AND SERVANT.

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.

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 and water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards. (d) And now it is laid down, (e) that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, and his property. Yet, with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as *before; for this is no more than the same state of subjection for life, which [*425] every apprentice submits to for the space of seven years, or sometimes for a longer term. (2) Hence, too, it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse. 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 profess the true religion of Christ; and it will not dissolve a civil obligation between master and servant, on account of the alteration of faith in either of the parties: but the slave is entitled to the same protection in England before, as after, baptism; and, whatever service the heathen negro owed of right to his American master, by general not by local law, the same, whatever it be, is he bound to render when brought to England and made a Christian. (3)

(d) Stat. 3 and 4 Edw. VI, c. 16.

(e) Salk. 666.

(2) [The meaning of this sentence is not very intelligible. If a right to perpetual service can be acquired lawfully at all, it must be acquired by a contract with one who is free, who is sui juris, and competent to contract. Such a hiring may not perhaps be illegal and void. If a man can contract to serve for one year, there seems to be no reason to prevent his contracting to serve for one hundred years, if he should so long live: though, in general, the courts would be inclined to consider it an improvident engagement, and would not be very strict in enforcing it. But there could be no doubt but such a contract with a person in a state of slavery would be absolutely null and void.

It has however been decided, that a contract by a slave with a person to serve him, in consideration of his purchasing his freedom, is binding.]

(3) [We might have been surprised, that the learned commentator should condescend to treat this ridiculous notion and practice with so much seriousness, if we were not apprised, that the court of common pleas, so late as the 5 W. and M. held that a man might have a property in a negro boy, and might bring an action of trover for him, because negroes are heathens. 1 Ld. Ray. 147. A strange principle to found a right of property upon!

But it was decided in 1772, in the celebrated case of James Sommersett, that a heathen negro, when brought to England, owes no service to an American or any other master. James Sommersett had been made a slave in Africa, and was sold there; from thence he was carried to Virginia, where he was bought, and brought by his master to England; here he ran away from his master, who seized him and carried him on board a ship, where he was confined, in While he was thus confined, Lord Mansorder to be sent to Jamaica to be sold as a slave. field granted a habeas corpus, ordering the captain of the ship to bring up the body of James Sommersett, with the cause of his detainer. The above-mentioned circumstances being stated upon the return to the writ, after much learned discussion in the court of king's bench, the court were unanimously of opinion, that the return was insufficient, and that Sommersett ought to be discharged. See Mr. Hargrave's learned argument for the negro in 11 St. Tr. 340; and the case reported in Lofft's Reports, 1.]

Upon the subject of slavery in general, the reader is referred to the elaborate treatise on the Law of Freedom and Bondage, by John Codman Hurd.

Since these commentaries were written, the civilized nations of Europe and America have made great exertions to put an end wholly to the exportation of slaves from Africa. The municipal laws of these nations now very generally make the traffic piracy, and there are treaties between them which are not only to the same effect, but they contain mutual stipulations designed to establish an efficient police on the African shores, with a view to detect

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