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 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: and every foreign seaman, who during a war shall serve two years in any man of war, merchantman, or privateer, is naturalized ipso facto". About the middle of king William's reign a scheme was set on foots 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-appear

p Stat. 2 Ann. c. 6.

q Stat. 31 Geo. II. c. 10.

r Stat. 13 Geo. II. c. 3.
s Stat. 7 and 8 W. III. c. 21.

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 prac "tice is deduced from that trite maxim of the constitutional law of "England that private mischief had better be submitted to, than pub"lic 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 not 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.

ance 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; but since new-modelled and altered, after the peace of [421] Aix la Chapelle ", 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 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 sol

t Stat. 13 Car. II. st. 1. c. 9.

u Stat. 22 Geo. II. c. 23. amended by 19 Geo. III. c. 17.

diers; 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: and farther, 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 (12).

w Stat. 31 Geo. II., c. 10.

(12) 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. 2 T. R. 270.

Here it may not be improper to add, that since the time of queen Anne, a variety of statutes have been passed to encourage attempts to discover the longitude at sea; and by the 14 Geo. III. c. 66. which has repealed the former statutes, it is enacted, that the author of any useful and practicable plan to discover the longitude at sea, either by timekeepers or astronomical calculations, shall be entitled to a reward of 5000%. if the longitude can be determined at sea within a degree of a great circle, or sixty geographical miles; to 7,500/. 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 commissioners of the longitude may award such less sum as they may think the ingenuity or industry of the author deserves.

And by 16 Geo. III. c. 6. if any ship discovers a passage between the Atlantic and Pacific oceans, beyond the 52d degree North latitude, the owner or commander, if a king's ship, shall receive 20,0007.; and 50004. shall be given in like manner to the first ship that shall approach within one degree of the North pole.



HAVING thus commented on the rights and duties of per

sons, 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 labor 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 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 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 founda tions 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 selfpreservation; 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

a Pag. 127.

b Servi aut fiunt, aut nascuntur: fiunt jure gentium, aut jure civil: nascuntur ex

ancillis nostris. Inst. 1. 3. 4.
c Montesq. Sp. L. xv. 2.

« VorigeDoorgaan »