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. 10 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, (j) that the practice of impressing and granting powers to the admiralty for that purpose is of very ancient date, and 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. (k) 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 the port to which she belongs, according to the directions of that statute, the 27 Geo. III. c. 19. and the 34 Geo. III. c. 68. By 45 Geo. III. c. 32. regulations are made for registering foreign ships surrendered to his majesty. (10) See the history of the ancient and modern navigation acts, 1 Chitty's Commercial Law, 169 to 257.; and as to their policy, id. 6. and 258 to 264. The 34 Geo. III. c. 68. (extended to Irish ships by 42 Geo. III. c. 61.) enacts that, after the expiration of six months from the conclusion of the existing war, no goods or merchandise shall be imported into, or exported from, the kingdom of Great Britain, or the islands of Guernsey, Jersey, Alderney, Sark, or Man, on board any ship which is not navigated by a master and three-fourths at least of the mariners British subjects. And ships or vessels sailing from one place to another within the kingdom, or in the aforesaid islands, must be manned wholly with British subjects. The wilful violation of these regulations subject the owners to a forfeiture of the ship and all the goods on board. See this statute fully observed upon by Reeves, 2ed 459. 462. One of the consequences, and not the least important, of the peace which this country has now enjoyed for ten years, and is apparently too firmly established to be broken within any assignable period, is the leisure which it has given to statesmen and the legislature for the general improvement of the laws relating to foreign commerce and the shipping interests of the empire. Formerly, when the principles of political economy were but imperfectly understood, a desire of national aggrandizement dictated a selfish policy, which modern discoveries have shewn to be unwise, and destructive of the ends proposed. But the former system extended so deeply into every branch of foreign commerce, that it would be imprudent to carry the better principles fully into operation throughout the whole system at once. The legislature, however, have begun to make a practical use of them; and the result of the experiment will doubtless lead to further improvements in our commercial code. The old navigation acts, and the ship registry acts, are, with some minor exceptions, repealed, and enactments more extended and liberal substituted, by several acts of the 4 Geo. IV., viz. chapters 42, 43, 44, & 45. The principle of securing a preference to British ships, British owned, manned by British seamen, is however still preserved; for by these recent acts, no ship is entitled to the privileges of a British vessel, that is not registered according to the form prescribed by 4 Geo. IV. c. 41.; and no ship can be so registered, unless she be wholly of the built of the United Kingdom, the Isle of Man, Guernsey, or Jersey, or some one of the colonies, plantations, islands, or territories of the British empire, or unless she be a vessel condemned as prize, or for illegal slave trading; and unless, in either case, she wholly belongs to his majesty's subjects, duly entitled to be owners of such vessel. And no person who has taken an oath of allegiance to a foreign power, can be an owner, unless afterwards naturalized, or made a denizen; nor any one who usually resides out of his majesty's dominions, unless he be a member of some British factory, or be a partner in, or agent for, some mercantile house, actually carrying on trade in Great Britain or Ireland. The acts above enumerated still left the old navigation act of Charles II. in force, with respect to the coasting trade of the United Kingdom, and her trade with the colonies. It is probable, that no alteration will be found expedient in respect to the former; but the colonial trade is in a great degree thrown open to foreign nations, upon the same principles as the trade with the mother country is open to them by recent enactment, a measure highly beneficial to the colonies. Chitty. practised without dispute and provides a remedy against their running away. By a later statute, () 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, (m) 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 sea-coast where the mariners are to be taken, to the intent that the 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, (n) especial protections are allowed to seamen in [420] particular circumstances, to prevent them from being impressed. And ferrymen are also said to be privileged from being impressed, at common law. (0) All which do most evidently imply a power of impressing to reside somewhere; and, if any where, 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. "1 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; (p) great advantages in point of wages are given to volunteer seamen, in order to induce them to enter into his majesty's service; (9) and every foreign seaman who during a war shall serve two years in any man of war, merchantman, or privateer, is naturalized ipso facto. (r) About the middle of king William's reign a scheme was set on foot (s) 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 12 m Stat. 5 Eliz. c. 5. 13 Geo. II. c. 17. 2 Geo. III. c. 15. 11 p Stat. 2 Ann. c. 6. s Stat. 7 & 8 W. III. c. 21. (11) The legality of pressing is so fully established, that it will not now admit of a doubt in any court of justice. In the case of the King v. Jubbs, lord Mansfield says, "the power of pressing is founded upon immemorial usage, allowed for ages. If it be so founded and allowed for ages, it can have no ground to stand upon, nor can it be vindicated or justified by any reason, but the safety of the state. And the practice is deduced from that trite maxim of the constitutional law of England, that private mischief had better be submitted to, than public detriment and inconvenience should ensue.' And though it be a legal power, it may, like many others, be abused in the exercise of it." Cowp. 517. In that case the defendant was brought up by habeas corpus, upon the ground that he was entitled to an exemption; but the court held that the exemption was no made out, and he was remanded to the ship from which he had been brought. Lord Kenyon has also declared in a similar case, that the right of pressing is founded on the common law, and extends to all persons exercising employments in the seafaring line. Any exemptions, therefore, which such persons may claim, must depend upon the positive provisions of statutes. 5 T. R. 276. In addition to these authorities, many more are collected by Barrington (in his Observations on Ancient Statutes, p 334. 5 ed.), who shews, that the crown anciently exercised a similar power of impressing men for the land service, not only for the army, but for the king's pleasure; and instances are given in the case of Goldsmith's (Aurifrabros) impress pro apparatibus personæ regis. 14 Edw. IV. The freemen and livery of London are not exempted from being impressed for the sea service, if in other respects fit subjects for the service, 9 East. 466; nor are seamen serving in the merchant service, though a freeholder, 5 East, 477.; nor is the master of any vessel, merely as such, exempt, especially if his appointment appear to be collusive. 14 East, 346. If a sailor on board a merchant-ship be pressed by a king's ship, he is not entitled to any proportion of wages from the former, unless she complete her voyage. 2 Camb. 320. Chitty. (12, And serving three years may be employed as a British mariner. 34 Geo. III. c. 68. 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, " 13 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 [421] Restoration; (t) but since new-modelled and altered, after the peace of Aix la Chapelle, (u) to remedy some defects which were of fatal In these articles of the naconsequence in conducting the preceding war. vy 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 parYet liament, but framed from time to time at the pleasure of the crown. 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 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 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 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 noncupative testaments: and farther, (w) no seaman on board 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 mutiny acts, a soldier may be arrested for a debt which extends to half that value, but not to a less amount. t Stat. 13 Car. II. st. 1. c. 9. 14 u Stat. 22 Geo. II. c. 23. amended by 19 Geo. III. c. 17. w Stat. 31 Geo. II. c. 10. (13) By various acts, private militia men, having served in the navy, are allowed to be discharged from the militia, in order to re-enter into the navy, to a certain extent. See the 43 Geo. III. c. 62. and c 76. By 43 Geo. III. c. 50. s. 7. no seaman shall be a militia man. (14) But, by the late mutiny acts, a soldier, like a seaman, cannot be arrested or taken in execution for any debt less than 201 The statutes except any criminal matter, and thereupon it has been decided, that a soldier may be committed for refusing to indemnify the parish against a bastard child; or for disobeying an order of justices to pay a weekly allowance for it. 5 T. R. 156. 2T. R. 270. The 44 Geo. III. c. 18, enacts, that if any petty officer or seaman, belonging to his majesty's navy, shall be arrested or apprehended for any debt or criminal charge, after he shall be entitled to his discharge, he shall be re-conveyed by the sheriff, gaoler, or other officer, to some officer of his majesty's fleet empowered to receive seamen. And if he wilfully or negligently per mits him to escape, he shall forfeit 100%. It may not be improper to add in this place, that, since the reign of queen Anne, the legisla ture has encouraged attempts to discover the longitude at sea, and a northern passage between the Atlantic and Pacific oceans, by the offer of various rewards. The former acts on the subject were repealed by the 58 Geo. III. c. 20., and their principal provisions re-enacted and amended, which last statute has been still further amended by the 1 & 2 Geo. IV. c. 2. These acts appoint commissioners, who shall propose from time to time, by memorial to his majesty in council, to establish three scales of proportionate rewards, to be paid to persons who shall by any prin CHAP. 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 œconomical 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 [423] and destroyed; secondly, the effect of this relation with regard to the parties themselves: and, lastly, its effects 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 principles of natural law, that such a state should subsist any where. 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 a Page 127. b Servi aut fiunt aut nascuntur : fiunt jure gentium, aut ́jure civili z nascuntur ex ancillis nostris. Inst c Montesq. Sp. L. xv. 2. 1. 3. 4. ciple not already made public ascertain the longitude within three corresponding scales of limit and condition, such rewards not exceeding 5000l., 7500l., and 10.0002.; and, if approved, the same shall be published in the London Gazette; and if, on reasonable experiment, to be certified by such commissioners, it shall be found that the longitude has been so ascertained, they may then pay the proportionate reward assigned to the scale. 58 Geo. III. c. 20. s. 5. They may also expend 1000%. in making and publishing experiments for the improvement of navigation, s. 6. By the 10 sect. of the same act, 20,000l. may be given to the British ship which first finds out and sails through a passage between the Atlantic and Pacific oceans in the northern hemisphere. By the 11 sect. 5000l. is to be given to any British ship which shall approach within one degree of the north pole. And his majesty in council may order any proportion of the above sums to be paid for attempts to accomplish either of these objects, so that the whole sum to be paid for the final disco veries do not exceed the sums stated in the acts Chitty. (1) As to the law respecting master and servant in general, see Bac. Ab. Master and Servant Burn. J. Servant, Apprentice, Manufacturers; 2 Chitty's Com. L. 379 to 417. As to Principal and Agent, Factors & Brokers, id. 3 vol. ch. 3. 41 VOL. I. 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 [424] meant of contracts to 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 seller 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 naturae, by a negative kind of birthright, slaves also. But this, being built on the two former rights, must fall together with them. If 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. Úpon 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 on / Thomas, this will remain exactly in the same state as before: for [425] this is no more than the same state of subjection for life, which d Stat. 3 & 4 Edw. VI. c. 16. e Salk. 666. (2) So if a slave escape to any island belonging to England, or to an English ship not lying with in those parts where slavery is allowed, as in our West India islands, East Florida, &c. he be comes a freeman, and no action is sustainable by the person to whom he belonged against the person who barbours trim. 2 B. & Cres. 448, 3 B. & A. 353. and see post next note. Chitty |