BOOK I. IN difcuffing the relation of mafter and fervant, I fhall, first, confider the feveral forts of fervants, and how this relation is created and destroyed: fecondly, the effect of this relation with regard to the parties themfelves: and, laftly, it's effect with regard to other perfons. I. As to the feveral forts of fervants: 1 have formerly obferved that pure and proper flavery does not, nay cannot, fubfift 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 fubfift any where. The three origins of the right of flavery, affigned by Juftinian, are all of them built upon falfe foundations c. As, first, flavery is held to arife "jure gentium,” from a ftate of captivity in war; whence flaves are called mancipia, quafi manu capti. The conqueror, fay the civilians, had a right to the life of his captive; and, having fpared that, has a right to deal with him as he pleases. But it is an untrue pofition, 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 neceffity, for self-defence; and it is plain this abfolute neceffity did not subsist, since the victor did not actually kill him, but made him prifoner. War is itself justifiable only on principles of felfprefervation; and therefore it gives no other right over pri foners 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, the war is over. Since therefore the right of making flaves by captivity depends on a fuppofed right of laughter, that foundation failing, the confequence drawn from it must fail like. wife. But, fecondly, it is faid that flavery may begin "jure "civili," when one man felis himself to another. This, if only meant of contracts to ferve or work for another, is very a Pag. 127. b Servi aut fiunt, aut nafcuntur: fiunt jure gentium, aut jure civili : nafcuntur ex ancillis noftris. Inft. 1. 3. 4. c Montefq. Sp. L. xv. 2. when 13 jut: just: but when applied to strict flavery, in the sense of the laws of old Rome or modern Barbary, is alfo impoffible. 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 master's difpofal? His property alfo, the very price he seems to receive, devolves ipfo facto to his master, 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 sale be, which deftroys the very principles upon which all fales are founded? Laftly, we are told, that besides these 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, must 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 these principles the law of England abhors, and will not endure the existence of, flavery 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 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 fhould 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 most abandoned rogues; and therefore this ftatute was repealed in two years afterwards. And now it is laid down, that a flave or negro, the inftant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his perfon, 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 be d Stat. 3 & 4 Edw. VI. c. 16. VOL. I. e Salk, 666. fore: fore: for this is no more than the same state of subjection for life, which every apprentice fubmits to for the space of feven years, or fometimes for a longer term(1). Hence too it follows, that the infamous and unchristian 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 Christ; and it will not diffolve a civil obligation between mafter and fervant, on account 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 mafter, by general not by local law, the fame (whatever it be) is he bound to render when brought to England and made a christian (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 serve for one year, there feems to be no reason to prevent his contracting to ferve for 100 years, if he fhould 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 flavery would be abfolutely null and void. (2) We might have been furprised, that the learned Commentator fhould condescend 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, because negroes are heathens. 1 Ld. Ray. 147. A strange 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 master. James Somersett had 1. THE firft fort of fervants therefore, acknowleged by the laws of England, are menial servants; fo called from being intra moenia, or domeftics. The contract between them and their masters arifes upon the hiring. If the hiring be general without any particular time limited, the law conftrues. it to be a hiring for a yearf; upon a principle of natural equity, that the fervant fhall ferve, and the mafter maintain him, throughout all the revolutions of the refpective seasons; as well when there is work to be done, as when there is not : but the contract may be made for any larger or smaller term. All fingle men between twelve years old and fixty, and married had been made a slave in Africa, and was fold there; from thence he was carried to Virginia, where he was bought, and brought by his mafter to England; here he ran away from his matter, who feized him, and carried him on board a fhip, where he was confined, in order to be fent to Jamaica to be fold as a flave. Whilft he was thus confined, Lord Mansfield granted a habeas corpus, ordering the captain of the fhip to bring up the body of James Somerfett, with the cause of his detainer. The above-mentioned circumftances being stated upon the return to the writ, after much learned difcuffion in the court of king's bench, the court were unanimously of opinion, that the return was infufficient, and that Somerfett ought to be discharged. See Mr. Hargrave's learned argument for the negro in 11 St. Tr. 340; and the cafe reported in Loft's Reports, 1. In confequence of this decifion, if a fhip loaden with flaves was obliged to put into an English harbour, all the flaves on board might and ought to be fet at liberty. Though there are acts of parliament which recognize and regulate the flavery of negroes, yet it exifts not in the contemplation of the common law; and the reafon that they are not declared free before they reach an English harbour, is only becaufe their complaints can. not fooner be heard and redreffed by the procefs of an English court of justice. Liberty by the English law depends not upon the complexion; and what was faid even in the time of queen Elizabeth, is now fubftantially true, that the air of England is too pure for a slave to breathe in. 2 Rufbr. 468. ones under thirty years of age, and all fingle women between twelve and forty, not having any visible livelihood, are compellable by two juftices to go out to fervice in husbandry or certain fpecific trades, for the promotion of honest industry: and no mafter can put away his fervant, or fervant leave his mafter, after being fo retained, either before or at the end of [426] his term, without a quarter's warning; unless upon reafonable caufe to be allowed by a justice of the peace (3): but they may part by confent, or make a fpecial bargain. 2. ANOTHER species of fervants are called apprentices, (from apprendre, to learn,) and are usually bound for a term of years, by deed indented or indentures, to ferve their masters, and be maintained and inftructed by them. This is ufually done to perfons of trade, in order to learn their art and mystery; and fometimes very large fums are given with them, as a premium for fuch their inftruction: but it may be done to hufbandmen, nay to gentlemen, and others. And children of poor perfons may be apprenticed out by the overfcers, with confent of two justices, till twenty-one years of age, to fuch perfons as are thought fitting; who are alfo compellable to take them; and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to fuch compulfion (4): for which purposes our statutes have made the in h Stat. 5 Eliz. c. 4. i Stat. 5 Eliz. c. 4. 43 Eliz. C. 2. & M. c. 30. 2 & 3 Ann. c. 6. 4 Ann. c. 19. 17 G. II. c. 5. 18 G. III. c. 47. k Salk. 57. 491. (3) But this relates only to fervants employed in husbandry. It had been the practice for magiftrates to exercise a jurisdiction over domestic fervants, and it would be very useful to the public, that they should poffefs such a jurisdiction; but it has lately been decided, that their authority, under the 5 Eliz. c. 4. is confined to fervants employed in husbandry. 6 T. R. 583. But it has been held that a mafter may turn away a fervant for incontinence, or moral turpitude, for fuch mifconduct produces a diffolution of the contract. Cald. 14. (4) The parish officers, with the affent of two juftices, may bind a parish apprentice to a person who refides out of their parish, if he occupies an eftate in the parish. 3 T. R. 107. 5 dentures |