Montesquieu[u], it is requisite that the armies with which it is
entrusted should consist of the people, and have the same spirit with
the people; as was the case at Rome, till Marius new-modelled the
legions by enlisting the rabble of Italy, and laid the foundation of
all the military tyranny that ensued. Nothing then, according to these
principles, ought to be more guarded against in a free state, than
making the military power, when such a one is necessary to be kept on
foot, a body too distinct from the people. Like ours therefore, it
should wholly be composed of natural subjects; it ought only to be
enlisted for a short and limited time; the soldiers also should live
intermixed with the people; no separate camp, no barracks, no inland
fortresses should be allowed. And perhaps it might be still better,
if, by dismissing a stated number and enlisting others at every
renewal of their term, a circulation could be kept up between the
army and the people, and the citizen and the soldier be more
intimately connected together.
[Footnote u: Sp. L. 11. 6.]
TO keep this body of troops in order, an annual act of parliament
likewise passes, "to punish mutiny and desertion, and for the better
payment of the army and their quarters." This regulates the manner in
which they are to be dispersed among the several inn-keepers and
victuallers throughout the kingdom; and establishes a law martial for
their government. By this, among other things, it is enacted, that if
any officer and soldier shall excite, or join any mutiny, or, knowing
of it, shall not give notice to the commanding officer; or shall
defect, or list in any other regiment, or sleep upon his post, or
leave it before he is relieved, or hold correspondence with a rebel or
enemy, or strike or use violence to his superior officer, or shall
disobey his lawful commands; such offender shall suffer such
punishment as a court martial shall inflict, though it extend to death
itself.
HOWEVER expedient the most strict regulations may be in time of actual
war, yet, in times of profound peace, a little relaxation of military
rigour would not, one should hope, be productive of much
inconvenience. And, upon this principle, though by our standing
laws[w] (still remaining in force, though not attended to) desertion
in time of war is made felony, without benefit of clergy, and the
offence is triable by a jury and before the judges of the common law;
yet, by our militia laws beforementioned, a much lighter punishment is
inflicted for desertion in time of peace. So, by the Roman law also,
desertion in time of war was punished with death, but more mildly in
time of tranquillity[x]. But our mutiny act makes no such distinction:
for any of the faults therein mentioned are, equally at all times,
punishable with death itself, if a court martial shall think proper.
This discretionary power of the court martial is indeed to be guided
by the directions of the crown; which, with regard to military
offences, has almost an absolute legislative power. "His majesty, says
the act, may form articles of war, and constitute courts martial, with
power to try any crime by such articles, and inflict such penalties as
the articles direct." A vast and most important trust! an unlimited
power to create crimes, and annex to them any punishments, not
extending to life or limb! These are indeed forbidden to be inflicted,
except for crimes declared to be so punishable by this act; which
crimes we have just enumerated, and, among which, we may observe that
any disobedience to lawful commands is one. Perhaps in some future
revision of this act, which is in many respects hastily penned, it may
be thought worthy the wisdom of parliament to ascertain the limits of
military subjection, and to enact express articles of war for the
government of the army, as is done for the government of the navy:
especially as, by our present constitution, the nobility and gentry of
the kingdom, who serve their country as militia officers, are annually
subjected to the same arbitrary rule, during their time of exercise.
[Footnote w: Stat. 18 Hen. VI. c. 19. 2 & 3 Edw. VI. c. 2.]
[Footnote x: _Ff._ 49. 16. 5.]
ONE of the greatest advantages of our English law is, that not only
the crimes themselves which it punishes, but also the penalties which
it inflicts, are ascertained and notorious: nothing is left to
arbitrary discretion: the king by his judges dispenses what the law
has previously ordained; but is not himself the legislator. How much
therefore is it to be regretted that a set of men, whose bravery has
so often preserved the liberties of their country, should be reduced
to a state of servitude in the midst of a nation of freemen! for sir
Edward Coke will inform us[y], that it is one of the genuine marks of
servitude, to have the law, which is our rule of action, either
concealed or precarious: "_misera est servitus, ubi jus est vagum aut
incognitum_." Nor is this state of servitude quite consistent with the
maxims of sound policy observed by other free nations. For, the
greater the general liberty is which any state enjoys, the more
cautious has it usually been of introducing slavery in any particular
order or profession. These men, as baron Montesquieu observes[z],
seeing the liberty which others possess, and which they themselves
are excluded from, are apt (like eunuchs in the eastern seraglios) to
live in a state of perpetual envy and hatred towards the rest 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 states, by departing from this rule, been endangered by the
revolt of their slaves: while, in absolute and despotic governments
where there no real liberty exists, and consequently no invidious
comparisons can be formed, such incidents are extremely rare. Two
precautions are therefore advised to be observed in all prudent and
free governments; 1. To prevent the introduction of slavery at all:
or, 2. If it be already introduced, not to intrust those slaves with
arms; who will then find themselves an overmatch for the freemen. Much
less ought the soldiery to be an exception to the people in general,
and the only state of servitude in the nation.
[Footnote y: 4 Inst. 332.]
[Footnote z: Sp. L. 15. 12.]
BUT as soldiers, by this annual act, are thus put in a worse condition
than any other subjects, so, by the humanity of our standing laws,
they are in some cases put in a much better. By statute 43 Eliz. c. 3.
a weekly allowance is to be raised in every county for the relief of
soldiers that are sick, hurt, and maimed: not forgetting the royal
hospital at Chelsea for such as are worn out in their duty. Officers
and soldiers, that have been in the king's service, are by several
statutes, enacted at the close of several wars, at liberty to use 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 soldiers in actual military service may
make their wills, and dispose of their goods, wages, and other
personal chattels, without those forms, solemnities, and expenses,
which the law requires in other cases[a]. 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 soldier, in the
article of death, wrote any thing in bloody letters on his shield, or
in the dust of the field with his sword, it was a very good military
testament[b]. And thus much for the military state, as acknowleged by
the laws of England.
[Footnote a: Stat. 29 Car. II. c. 3. 5 W. III. c. 21. Sec. 6.]
[Footnote b: _Si milites quid in clypeo literis sanguine suo
rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo,
ipso tempore quo, in praelio, vitae sortem derelinquunt, hujusmodi
voluntatem stabilem esse oportet._ _Cod._ 6. 21. 15.]
THE _maritime_ state is nearly related to the former; though much more
agreeable to the principles of our free constitution. The royal navy
of England hath ever been it's greatest 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 assiduously
cultivated, even from the earliest ages. To so 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 substruction of all their
marine constitutions, was confessedly compiled 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[c]. 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[d] 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; 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[e], with a narrow
partial view: being intended to mortify the 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[f]; 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 licence from the
council of state. In 1651[g] the prohibition was extended also to the
mother country; and no goods were suffered to be imported into
England, or any of it's 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.
[Footnote c: 4 Inst. 144. _Coutumes de la mer._ 2.]
[Footnote d: 4 Inst. 50.]
[Footnote e: Scobell 132.]
[Footnote f: Mod. Un. Hist. xli. 289.]
[Footnote g: Scobell. 176.]
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 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[h], that the practise
of impressing, and granting powers to the admiralty for that purpose,
is of very antient 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[i]. 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[k],
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[l], 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 chuse out and return such a number of
ablebodied men, as in the commission are contained, to serve her
majesty. And, by others[m], especial protections are allowed to seamen
in particular circumstances, to prevent them from being impressed. 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.
[Footnote h: Rep. 154.]
[Footnote i: See also Comb. 245.]
[Footnote k: Stat. 2 & 3 Ph. & M. c. 16.]
[Footnote l: Stat. 5 Eliz. c. 5.]
[Footnote m: Stat. 7 & 8 W. III. c. 21. 2 Ann. c. 6. 4 & 5 Ann. c. 19.
13 Geo. II. c. 17. &c.]
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[n]: great advantages in point of wages are
given to volunteer seamen in order to induce them to enter into his
majesty's service[o]: and every foreign seaman, who during a war shall
serve two years in any man of war, merchantman, or privateer, is
naturalized _ipso facto_[p]. About the middle of king William's reign,
a scheme was set on foot[q] 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 rather a badge of slavery, was
abolished by statute 9 Ann. c. 21.
[Footnote n: Stat. 2 Ann. c. 6.]
[Footnote o: Stat. 1 Geo. II. st. 2. c. 14.]
[Footnote p: Stat. 13 Geo. II. c. 3.]
[Footnote q: Stat. 7 & 8 W. III. 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[r]; but since new-modelled and altered, after
the peace of Aix la Chapelle[s], to 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 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 it's legal existence, by
refusing to concur in it's continuance.
[Footnote r: Stat. 13 Car. II. st. 1. c. 9.]
[Footnote s: Stat. 22 Geo. II. c. 23.]
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 superannuate, either by county rates, or
the royal hospital at Greenwich; with regard also to the exercise of
trades, and the power of making informal testaments: and, farther[t],
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 mutiny acts, a soldier may be arrested for a debt which
extends to half that value, but not to a less amount.
[Footnote t: Stat. 1 Geo. II. st. 2. c. 14.]
CHAPTER THE FOURTEENTH.
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_ oeconomical 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 it's 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 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 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 destroyed: secondly, the effects of this relation with
regard to the parties themselves: and, lastly, it's 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 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. 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 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 oneself, can by the
law of nature and reason, reduce the parent to slavery, much less can
it reduce the offspring.
[Footnote a: pag. 123.]
[Footnote b: _Servi aut fiunt, aut nascuntur: fiunt jure gentium, aut
jure civili: nascuntur ex ancillis nostris._ _Inst._ 1. 3. 4.]
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,
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[c]. And now it is laid
down[d], 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, his liberty, and his property. Yet, with regard to any
right which the master may have acquired, by contract or the like, 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 every apprentice submits to for the space
of seven years, or sometimes for a longer term. 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 contract, either express or implied,
between master and servant, on account of the alteration of faith in
either of the contracting parties: but the slave is entitled to the
same liberty in England before, as after, baptism; and, whatever
service the heathen negro owed to his English master, the same is he
bound to render when a christian.
[Footnote c: Stat. 3 & 4 Edw. VI. c. 16.]
[Footnote d: Salk. 666.]