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 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 and destroyed: secondly, the effect of this relation [423] 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, 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 [424] very just: but when applied to strict slavery, in the sense of 66 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. 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 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. And now it is laid down, 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 or Thomas, this will remain exactly in the same state as before for this is no more than the same state of subjection [425] for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term. (1) Hence too it : d Stat. 3 & 4 Edw. VI. c.16. e Salk. 666. ' (1) By the word "lawfully" in this sentence the author must be taken to mean according to general law," not " according to local law,” a distinction which he shortly after makes himself. It is obvious that in the case 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 obligation between master and servant, on account of the alteration of faith in either of the parties, but the slave is entitled to the same protection in England before, as after, baptism: and whatever service the heathen negro owed of right to his American master, by general not by local law, the same (whatever it be) is he bound to render when brought to England and made a Christian. 1. THE first sort of servants, therefore, acknowledged by the laws of England, are menial servants; so called from being intra moenia, or domestics. The contract between them and their masters arises upon the hiring. If the hiring be general, without any particular time limited, the law construes it to be a hiring for a year'; upon a principle of natural equity that the servant shall serve, and the master maintain him, + Co. Litt. 42. case of a slave no right to his perpetual service can have been acquired by the master according to general law; for such right would be grounded on a contract, made either before or after the state of slavery commenced; if made before, then, as by the hypothesis the party became a slave by the same contract, the contract must be wholly void, because it created that unlawful state of slavery: if made after, then it is wholly void, because the slave was not a free agent at the time of making it. In the celebrated case of James Somersett, 20 Howell's State Trials, 79., it was determined by the court of king's bench that a negro slave, when brought to England by his master, becomes free, and his master having seized him after he had run away, the court on a habeas corpus discharged him. See the case of Forbes v. Cochrane, 2 B.& C. 448. cited p.127. n.6. There are British statutes which recognise a local state of slavery in some of our colonies, and it still subsists in them: and the trade in slaves was, as we all know, formerly recognised and regulated by other British statutes; but since the author's death, that has been abolished so far as regards British participation in it by the 47 G. 5. st.1. c.36. amended and enforced by several subsequent statutes, such as 51 G.3. c. 23., 58 G. 5. c.49., & 59 G.3. c.120.; all which are repealed, and the whole law on the subject consolidated by the 5 G. 4. c.113. g thoughout all the revolutions of the respective seasons; as well when there is work to be done, as when there is not : bnt the contract may be made for any larger or smaller term. All single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service in husbandry or certain specific trades, for the promotion of honest industry : and no master can put away his servant, or servant leave his master, after being so retained, either before or at the end of his term, without a quarter's warning; unless upon rea- [426] sonable cause to be allowed by a justice of the peace 1 (2) : but they may part by consent, or make a special bargain. h 2. ANOTHER species of servants are called apprentices, (from apprendre, to learn,) and are usually bound for a term of years, by deed indented, or indentures, to serve their masters, and be maintained and instructed by them. This is usually done to persons of trade, in order to learn their art and mystery; and sometimes very large sums are given with them, as a premium for such their instruction: but it may be done to husbandmen, nay to gentlemen, and others. And children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty-one years of age, to such persons as are thought fitting; who are also compellable to take them; and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to such compulsion; for which purposes our statutes have made the in F. N. B. 168. h Stat. 5 Eliz. c.4. iStat. 5 Eliz. c. 4. 43 Eliz. c. 2, 1 Jac. I. c. 25. 7 Jac. I. c. 3. 8&9W. & M. c.30. 2 & 3 Ann. c. 6. 4 & 5 Ann. k Salk. 67. 491. (2) But it should seem at this day that if no special contract be made, a domestic servant is entitled only to a month's warning or a month's wages in lieu of it, 3 Espinasse's Ni. Pri. Rep. 235. Robinson v. Hindman. The jurisdiction of magistrates extends only to servants in husbandry, and in the trades specified in the different statutes. 6 Term. Rep. 583. Rex v. Hulcott. 20 G. 2. c.19., 4G.4. c.34. (3) And see further, 32G.5. c. 57., 33G.3. c.55., 42 G.3. c.46., 42 G. 3. c.73., 51 G. 3. c. 80., 54 G. 5. c. 96., 54 G. 3. c.107., 56 G. 3. c.139., 1 & 2 G. 4. c. 42., and 4G.4. c.34. |