The Civil State.

That part of the nation which falls under our first and most comprehensive division, the civil state, includes all orders of men, from the highest nobleman to the meanest peasant, that are not included under either our former division, of clergy, or under one of the two latter, the military and the maritime states; and it may sometimes include individuals of the other three orders; since a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier, or a seaman.

The civil state consists of the nobility and the commonality. Of the nobility, the peerage of Great Britain, or lords temporal, as forming, together with the bishops, one of the supreme branches of the legislature, I have before sufficiently spoken; we are here. to consider them according to their several degrees, or titles of honor.

All degrees of nobility and honor are derived from the king as their fountain: and he may institute what new titles he pleases. Hence it is that all degrees of nobility are not of equal antiquity. Those now in use are dukes marquesses, earls, viscounts, and barons.

Here follows an inquiry into the origin of these degrees, and the manner in which they are created, and the principal incidents attending them.

Chapter XIII.

OF THE MILITARY AND MARITIME STATES.

408-422.

The chapter treats of first, the military state, that is the militia of each county, raised by lot from among the people, officered by the principal landholders, and commanded by the lord lieutenant; second, the more disciplined occasional troops kept on foot only from year to year, by parliament and during that period governed by arbitrary articles of war, formed at the crown's pleasure; and third, the maritime state, the officers and mariners of the British navy, who are governed by express and permanent laws, or the articles of the navy, established by act of parliament. The chapter is largely historical.

Chapter XIV.

OF MASTER AND SERVANT.

422-433.

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 economical relations.

Relations in Private Life.

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 skillful 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.

Master and Servant.

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.

Slavery pure and proper does not exist in England. It is repugnant to reason, and the principles of natural law. The three origins of the right of slavery assigned by Justinian are analyzed and found to be built upon false foundations.

Menials.

1. The first sort of servants, 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, throughout all the revolutions of the respective 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 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 reasonable cause, to be allowed by a justice of the peace: but they may part by consent, or make a special bargain.

Apprentices.

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 to 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 the 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 indentures obligatory, even though such parish-apprentice be a minor.

Labourers.

3. A third species of servants are labourers, who are only hired by the day or the week, and do not live intra moenia, as partof the family; concerning whom the statutes before cited have made 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 in 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.

Stewards, Factors, etc.

4. There is yet a fourth species of servants, if they may be 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 the manner in which this relation of service affects either the master or servant.

Effect of the Relation on Master and 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. In the next place, persons serving seven years as apprentices to any trade, have an exclusive right to exercise that trade in any part of England.

A master may by law correct his apprentice for negligence or

other misbehaviour, so it be done with moderation: though if the master or master's wife beats any other servant of full age, it is a good cause of departure. 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.

By service all servants and laborers, except apprentices, become 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 the regulation of wages extend to such servants only; it being impossible for any magistrate to be a judge of the employment of menial servants, or of course to assess their wages.

Effects of Relation on Others.

III. Let us, lastly, see how strangers may be affected by this relation of master and servant: or how a master may behave toward others on behalf of his servant; and what a servant may do on behalf of his master.

And, first, the master may maintain, that is, abet and assist his servant in any action at law against a stranger: whereas, in general, it is an offense against public justice to encourage suits and animosities by helping to bear the expense of them, and is called in law maintenance. 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 master likewise may justify an assault in defense of his servant, and a servant in defense of his master: 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. 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. 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.

As for those things which a servant may do on behalf of his 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. Therefore, if a servant commit a trespass by the command or

encouragement of his master, the master shall be guilty of it: though the servant is not thereby 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: 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: for though 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.

In the same manner, whatever a servant is permitted to do in 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 embezzles it, I must pay it over again. If a steward lets a lease of a farm, without the owner's knowledge, the owner must stand to the bargain; for this is the steward's business. A wife, a friend, a relation, that used 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.

If a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his neglect. If a smith's servant lames a horse while he is shoeing 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 misbehaviour. Upon this principle, by the common law, if a servant kept his master's fire negligently, so that his neighbor's house was burned down thereby, an action lay against the master; because his 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. A master is, lastly, chargeable if any of his family layeth or casteth anything out of his house into