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, that it is one of the genuine marks of servitude, to have the law, which is our rule of action, either concealad 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 in introducing slavery in any particular order or profession. These men, as baron Montesquieu observes, 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 [417] where 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.

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,

a 4 Inst, 332,

b Sp. L. 15. 12.

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 (7). And soldiers in actual military service may make nuncupative wills, and dispose of their goods, wages, and other personal chattels, without those forms, solemnities, and expenses, which the law requires in other cases. 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 testamentd. And thus much for the military state, as acknowledged by the laws of England (8).

c Stat. 29 Car. II. c. 3. 5 W. III. c. 21. see. 6.

d Si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere

inscripserint gladio suo, ipso tempore quo, in praelio, vitiae sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet. Cod.

6. 21. 15.

(7) By the 42 Geo. III. c. 69. all officers, soldiers, and mariners, who have been employed in the king's service since 1784, and have not deserted, and their wives and children, may exercise any trade in any town in the kingdom, and shall not be removed till they are actually chargeable. The same privilege is extended to all officers and soldiers, who have served in the militia or the fencible regiments, and have been honorably discharged.

But any two justices of the county or place may examine any such person with regard to his legal settlement, who shall make oath thereof; and the justices shall give such person an attested copy of his affidavit, which shall afterwards be admitted as evidence of such settlement.

(8) It is now fully established, that both the full pay and half pay of an officer, or any person in a military or naval character, cannot in any instance be assigned before it is due; as the object of such pay is to enable those who receive it always to be ready to serve their country with that decency and dignity which their respective characters and stations require. 4 T. R. 258. H. Bl. 628.

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 its [418] greatest defence and ornament; it is its ancient 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 Englande. 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 Cokef 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 merchandise 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 16508, 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 g Scobell, 132.

e 4 Inst. 144. Coutumes de la mer, 2. VOL. I. 72

f 4 Inst. 50.

stopping the gainful trade which they then carried on with the Dutch; 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 plan[419] tations without license from the council of state. In 1651i the prohibition was extended also to the mother country and no goods were suffered to 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 merchandise imported was the genuine growth or manufacture (9). 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 (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

h Mod. Un. Hist. xli. 289.

i Scobell. 176.

(9) By the 26 Geo. III. c. 60. No privileges are to be allowed to any ships which are not British-built, or built in some part of his majesty's dominions and every such ship must be registered in 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.


(10) The 34 Geo. III. c. 68. 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 subjects the owners to a forfeiture of the ship and all the goods on board.

By the 42 Geo. 3. c. 61. Ireland and Irish sailors are included in these regulations, which they were not subject to before.

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, 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 lawk. 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 statute1, 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 anotherm, 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 [420] 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", 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". 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 (11).

j Rep. 154.

k See also Comb, 245. Barr. 334.

1 Stat. 2 and 3 Ph. and M. c. 16.

m Stat. 5 Eliz. c. 5.

n 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, etc.

o Sav. 14.

(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

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