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 oeconomical relations.
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 it's 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 or otherwise,
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.
consider the several sorts of servants, and how this relation is
created and destroyed: secondly, the effects of this relation with
regard to the parties themselves: and, lastly, it's effect with regard
to other persons.
I.
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 foundations. As, first, slavery is held to arise
"jure gentium," from a state of captivity in war; whence slaves
are called manicipia, 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 very just: but when applied to strict slavery,
in the sense of 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 oneself, can by the law of nature and reason, reduce the
parent to slavery, much less can it reduce the offspring.
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, 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[c]. And now it is laid down[d], 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, his liberty,
and his property. Yet, with regard to any right which the master
may have acquired, by contract or the like, 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
for life, which every apprentice submits to for the space of
seven years, or sometimes for a longer term. Hence too it 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 contract, either
express or implied, between master and servant, on account of the
alteration of faith in either of the contracting parties: but the
slave is entitled to the same liberty in England before, as after,
baptism; and, whatever service the heathen negro owed to his
English master, the same is he bound to render when a christian.
1.
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[e]; upon a principle of natural equity, that the servant shall
serve, and the master maintain him, throughout all the revolutions
of the respective seasons; as well when there is work to be
done, as when there is not[f]: but 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,
for the promotion of honest industry: and no master can put
away his servant, or servant leave his master, either before or at
the end of his term, without a quarter's warning; unless upon
reasonable cause to be allowed by a justice of the peace[g]: but
they may part by consent, or make a special bargain.
2.
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: for which purpose our statute
law[h] has made minors capable of binding themselves. 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[i] children of poor
persons may be apprenticed out by the overseers, with consent of
two justices, till twenty four 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[k]. Apprentices to trades
may be discharged on reasonable cause, either at request of themselves
or masters, at the quarter sessions, or by one justice, with
appeal to the sessions[l]: who may, by the equity of the statute,
if they think it reasonable, direct restitution of a ratable share of
the money given with the apprentice[m]. And parish apprentices
may be discharged in the same manner, by two justices[n].
3.
hired by the day or the week, and do not live intra moenia, as
part of the family; concerning whom the statute so often cited[o]
has made many very good regulations; 1. Directing that all persons
who have no visible effects may be compelled to work:
2. Defining how long they must continue at work in summer
and winter: 3. Punishing such as leave or desert their work:
4. Empowering the justices at sessions, or the sheriff of the
county, to settle their wages: and 5. Inflicting penalties on such
as either give, or exact, more wages than are so settled.
4.
so called, being rather in a superior, a ministerial, capacity; such
as stewards, factors, and bailiffs: whom however the law considers
as servants pro tempore, with regard to such of their acts, as
affect their master's or employer's property. Which leads me to
consider,
II.
the master or servant. And, first, by hiring and service for
a year, or apprenticeship under indentures, a person gains a settlement
in that parish wherein he last served forty days[p]. In the next
place persons serving as apprentices to any trade have an exclusive
right to exercise that trade in any part of England[q]. This law,
with regard to the exclusive part of it, has by turns been looked
upon as a hard law, or as a beneficial one, according to the prevailing
humour of the times: which has occasioned a great variety
of resolutions in the courts of law concerning it; and attempts
have been frequently made for it's repeal, though hitherto
without success. At common law every man might use what
trade he pleased; but this statute restrains that liberty to such as
have served as apprentices: the adversaries to which provision
say, that all restrictions (which tend to introduce monopolies) are
pernicious to trade; the advocates for it alledge, that unskilfulness
in trades is equally detrimental to the public, as monopolies.
This reason indeed only extends to such trades, in the exercise
whereof skill is required: but another of their arguments goes
much farther; viz. that apprenticeships are useful to the commonwealth,
by employing of youth, and learning them to be
early industrious; but that no one would be induced to undergo
a seven years servitude, if others, though equally skilful, were
allowed the same advantages without having undergone the same
discipline: and in this there seems to be much reason. However,
the resolutions of the courts have in general rather confined than
extended the restriction. No trades are held to be within the sta-
tute, but such as were in being at the making of it[r]: for trading
in a country village, apprenticeships are not requisite[s]: and
following the trade seven years is sufficient without any binding;
for the statute only says, the person must serve as an apprentice,
and does not require an actual apprenticeship to have existed[t].
negligence or other misbehaviour, so it be done with moderation[u]:
though, if the master's wife beats him, it is good cause of departure[w].
But if any servant, workman, or labourer assaults his
master or dame, he shall suffer one year's imprisonment, and other
open corporal punishment, not extending to life or limb[x].
entitled to wages: according to their agreement, if menial
servants; or according to the appointment of the sheriff or sessions,
if labourers or servants in husbandry: for the statutes for
regulation of wages extend to such servants only[y]; it being impossible
for any magistrate to be a judge of the employment of
menial servants, or of course to assess their wages.
III.
relation of master and servant: or how a master may behave towards
others on behalf of his servant; and what a servant may
do on behalf of his master.
his servant in any action at law against a stranger: whereas, in
general, it is an offence against public justice to encourage suits
and animosities, by helping to bear the expense of them, and is
called in law maintenance[z]. A master also may bring an action
against any man for beating or maiming his servant; but in such
case he must assign, as a special reason for so doing, his own damage
by the loss of his service; and this loss must be proved
upon the trial[a]. A master likewise may justify an assault in defence
of his servant, and a servant in defence of his master[b]: the
master, because he has an interest in his servant, not to be deprived
of his service; the servant, because it is part of his duty,
for which he receives his wages, to stand by and defend his
master[c]. Also if any person do hire or retain my servant, being
in my service, for which the servant departeth from me and goeth
to serve the other, I may have an action for damages against both
the new master and the servant, or either of them: but if the
new master did not know that he is my servant, no action lies;
unless he afterwards refuse to restore him upon information and
demand[d]. The reason and foundation upon which all this doctrine
is built, seem to be the property that every man has in the
service of his domestics; acquired by the contract of hiring, and
purchased by giving them wages.
master, they seem all to proceed upon this principle, that the
master is answerable for the act of his servant, if done by his
command, either expressly given, or implied: nam qui facit per
alium, facit per se[e]. Therefore, if the servant commit a trespass
by the command or encouragement of his master, the master shall
be guilty of it: not that the servant is excused, for he is only to
obey his master in matters that are honest and lawful. If an innkeeper's
servants rob his guests, the master is bound to restitution[f]:
for as there is a confidence reposed in him, that he will take care
to provide honest servants, his negligence is a kind of implied
consent to the robbery; nam, qui non prohibet, cum prohibere possit,
jubet. So likewise if the drawer at a tavern sells a man bad
wine, whereby his health is injured, he may bring an action
against the master[g]: for, although the master did not expressly
order the servant to sell it to that person in particular, yet his
permitting him to draw and sell it at all is impliedly a general
command.
the usual course of his business, is equivalent to a general command.
If I pay money to a banker's servant, the banker is answerable
for it: if I pay it to a clergyman's or a physician's servant,
whose usual business it is not to receive money for his master,
and he imbezzles it, I must pay it over again. If a steward
lets a lease of a farm, without the owner's knowlege, the owner
must stand to the bargain; for this is the steward's business. A
wife, a friend, a relation, that use to transact business for a man,
are quoad hoc his servants; and the principal must answer for their
conduct: for the law implies, that they act under a general command;
and, without such a doctrine as this, no mutual intercourse
between man and man could subsist with any tolerable convenience.
If I usually deal with a tradesman by myself, or constantly
pay him ready money, I am not answerable for what my
servant takes up upon trust; for here is no implied order to the
tradesman to trust my servant: but if I usually send him upon
trust, or sometimes on trust, and sometimes with ready money, I
am answerable for all he takes up; for the tradesman cannot possibly
distinguish when he comes by my order, and when upon his
own authority[h].
stranger, the master shall answer for his neglect: if a smith's
servant lames a horse while he is shoing him, an action lies against
the master, and not against the servant. But in these cases the
damage must be done, while he is actually employed in the master's
service; otherwise the servant shall answer for his own mis-*
behaviour. Upon this principle, by the common law[i], if a servant
kept his master's fire negligently, so that his neighbour's
house was burned down thereby, an action lay against the master;
because this negligence happened in his service: otherwise,
if the servant, going along the street with a torch, by negligence
sets fire to a house; for there he is not in his master's immediate
service, and must himself answer the damage personally. But
now the common law is, in the former case, altered by statute
6 Ann. c. 3. which ordains that no action shall be maintained
against any, in whose house or chamber any fire shall accidentally
begin; for their own loss is sufficient punishment for their
own or their servants' carelessness. But if such fire happens
through negligence of any servant (whose loss is commonly very
little) such servant shall forfeit 100l., to be distributed among
the sufferers; and, in default of payment, shall be committed to
some workhouse and there kept to hard labour for eighteen
months[k]. A master is, lastly, chargeable if any of his family
layeth or casteth any thing out of his house into the street or
common highway, to the damage of any individual, or the common
nusance[**typo for nuisance?] of his majesty's liege people[l]: for the master hath
the superintendance and charge of all his houshold[**typo for household?]. And this
also agrees with the civil law[m]; which holds, that the pater
familias, in this and similar cases, "ob alterius culpam tenetur, sive
servi, sive liberi."
may be frequently a loser by the trust reposed in his servant, but
never can be a gainer: he may frequently be answerable for his
servant's misbehaviour, but never can shelter himself from punishment
by laying the blame on his agent. The reason of this
is still uniform and the same; that the wrong done by the ser-*
*vant is looked upon in law as the wrong of the master himself;
and it is a standing maxim, that no man shall be allowed to make
any advantage of his own wrong.
End of section 43
