for any debt, unless the fame be fworn to amount to at least twenty pounds; though, by the annual mutiny acts, a foldier may be arrested for a debt which extends to half that value, but not to a less amount (12).

(12) But by the late mutiny acts, a foldier, like a seaman, cannot be arrested or taken in execution for any debt lefs than 201. The ftatutes except any criminal matter, and thereupon it has been decided, that a foldier may be committed for refufing to indemnify the parish against a baftard child; or for difobeying an order of juftices 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 ftatutes have been paffed to encourage attempts to discover the longitude at fea; and by the 14 Geo. III. c. 66. which has repealed the former ftatutes, it is enacted, that the author of any useful and practicable plan to discover the longi tude at fea, either by time-keepers or aftronomical calculations, fhall be entitled to a reward of 5000l. if the longitude can be determined at fea within a degree of a great circle, or fixty geographical miles; to 7500l. if within of a degree; and to 10,000/. if within a degree. And if any useful discovery shall be made refpecting the longitude, though not entitled to those great rewards, or if any beneficial improvement fhall be introduced into navigation, the commiffioners of the longitude may award fuch less fum as they may think the ingenuity or industry of the author deferves.

And by 16 Geo. III. c. 6. if any ship difcovers a paffage be tween the Atlantic and Pacific oceans, beyond the 52d degree North latitude, the owner or commander, if a king's fhip, fhall receive 20,000l.; and 5000l. fhall be given in like manner to the first ship that shall approach within one degree of the North pole.

CHAPTER THE FOURTEENTH,

OF MASTER AND SERVANT.

H

AVING thus commented on the rights and duties of perfons, as ftanding in the public relations of magiftrates and people, the method I have marked out now leads me to confider their rights and duties in private oeconomical relations.

THE three great relations in private life are, 1. That of mafter and servant; which is founded in convenience, whereby a man is directed to call in the afliftance of others, where his own fkill and labour will not be fufficient to answer the

cares incumbent upon him. 2. That of husband and wife; which is founded in nature, but modified by civil fociety: the one directing man to continue and multiply his fpecies, the other prescribing the manner in which that natural impulfe must be confined and regulated. 3. That of parent and child, which is confequential to that of marriage, being it's principal end and defign: and it is by virtue of this relation that infants are protected, maintained, and educated. But, fince the parents, on whom this care is primarily incumbent, may be fnatched 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 fupply the deficiency, whenever it happens, of the natural. Of all thefe relations in their

order.

BOOK I. IN difcuffing the relation of master and fervant, I fhall, firft, confider the feveral forts of fervants, and how this relation is created and deftroyed: fecondly, the effect of this relation with regard to the parties themselves: and, lastly, it's effect with regard to other perfons.

I. As to the several forts of fervants: 1 have formerly obferved that pure and proper flavery does not, nay cannot, subsist in England: fuch I mean, whereby an abfolute and unlimited power is given to the mafter over the life and fortune of the flave. And indeed it is repugnant to reafon, and the principles of natural law, that fuch a state should subsist any where. The three origins of the right of flavery, af figned by Juftinian, are all of them built upon falfe foundations. As, first, flavery is held to arife "jure gentium,” from a state of captivity in war; whence flaves are called mancipia, quafi manu capti. The conqueror, fay the civi lians, had a right to the life of his captive; and, having fpared that, has a right to deal with him as he pleafes. 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 cafes; in cafes of abfolute neceflity, for felf-defence; and it is plain this abfolute neceflity did not fubfift, fince the victor did not actually kill him, but made him prifoner. War is itfelf juftifiable only on principles of selfprefervation; and therefore it gives no other right over prifoners but merely to difable them from doing harm to us, by confining their perfons: much lefs can it give a right to kill, torture, abufe, plunder, or even to enflave, an enemy, when the war is over. Since therefore the right of making flaves by captivity depends on a fuppofed right of flaughter, that foundation failing, the confequence drawn from it muft fail like. wife. But, fecondly, it is faid that flavery may begin "jure "civili," when one man fells 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 nafcuntur: fiunt jure gentium, aut jure civili: nafcuntur

13

ex ancillis noftris. Inft. 1. 3. 4.

Montefq. Sp. L. xv. 2.

just:

just: but when applied to strict slavery, in the fenfe of the laws of old Rome or modern Barbary, is also impossible. Every fale implies a price, a quid pro quo, an equivalent given to the feller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which (in abfolute flavery) are held to be in the mafter's difpofal? His property alfo, the very price he seems to receive, devolves ipfo facto to his mafter, the inftant he becomes his flave. In this cafe therefore the buyer gives nothing, and the feller receives nothing: of what validity then can a fale be, which destroys the very principles upon which all fales are founded? Laftly, we are told, that befides thefe two ways by which flaves "fiunt," or are acquired, they may also be hereditary "fervi nafcuntur;" the children of acquired flaves are jure naturae, by a negative kind of birthright, flaves alfo. But this, being built on the two former rights, muft fall together with them. If neither captivity, nor the fale of one's felf, can by the law of nature and reafon reduce the parent to flavery, much less can they reduce the offspring.

UPON thefe principles the law of England abhors, and will not endure the existence of, flavery within this nation: fo that when an attempt was made to introduce it, by statute 1 Edw. VI. c. 3. which ordained, that all idle vagabonds fhould be made flaves, and fed upon bread and water, or small drink, and refuse meat; fhould wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwife, to perform the work affigned them, were it never fo vile; the fpirit of the nation could not brook this condition, even in the moft abandoned rogues; and therefore this ftatute was repealed in two years afterwards. And now it is laid down, that a flave 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 mafter may have lawfully acquired to the perpetual fervice of John or Thomas, this will remain exactly in the fame ftate as bed Stat. 3 & 4 Edw. VI. c. 16. VOL. I.

· Salk. 666.

fore:

fore: for this is no more than the fame state of fubjection for life, which every apprentice fubmits to for the space of feven years, or fometimes for a longer term(1). Hence too it fol lows, that the infamous and unchriftian practice of withholding baptifm from negro fervants, left they should thereby gain their liberty, is totally without foundation, as well as without excufe. The law of England acts upon general and extenfive principles: it gives liberty, rightly understood, that is, protection to a jew, a turk, or a heathen, as well as to those who profefs the true religion of Chrift; and it will not diffolve a civil obligation between master and fervant, on ac count of the alteration of faith in either of the parties: but the flave is entitled to the fame protection in England before, as after, baptifm: and, whatever fervice the heathen negro owed of right to his American master, by general not by local law, the fame (whatever it be) is he bound to render when brought to England and made a chriftian (2).

(1) The meaning of this fentence is not very intelligible. If a right to perpetual fervice can be acquired lawfully at all, it must be acquired by a contract with one who is free, who is fui juris, and competent to contract. Such a hiring may not perhaps be illegal and void. If a man can contract to ferve for one year, there feems to be no reason to prevent his contracting to serve for 100 years, if he should fo long live: though, in general, the courts would be inclined to confider it an improvident engagement, and would not be very strict in enforcing it. But there could be no doubt, but fuch a contract with a person in a state of slavery would be abfolutely null and void.

(2) We might have been furprifed, that the learned Commen tator fhould condefcend to treat this ridiculous notion and practice with so much seriousness, if we were not apprized, that the court of common pleas, fo late as the 5 W. & M. held, that a man might have a property in a negro boy, and might bring an action of trover for him, becaufe negroes are heathens. 1 Ld. Ray. 147. A ftrange principle to found a right of property upon!

But it was decided in 1772, in the celebrated cafe of James Somerfett, that a heathen negro, when brought to England, owes no fervice to an American or any other maiter. James Somerfett

had