 Blackston section 40 part 2 of chapter 11 of the commentaries on the laws of England book 1 this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by father Xyle of Detroit commentaries on the laws of England by William Blackston book 1 chapter 11 part 2 section 5 the next and indeed the most numerous order of men in the system of ecclesiastical polity are the parsons and vickers of parishes in treating of whom I shall first mark out the distinction between them shall next observe the method by which one may become a parson or vicar shall then briefly touch upon their rights and duties and shall lastly show how one may cease to be either a parson persona ecclesi I is one that hath full possession of all the rights of a parochial church he is called parson persona because by his person the church which is an invisible body is represented and he is in himself a body corporate in order to protect and defend the rights of the church which he personates by a perpetual succession he is sometimes called the rector or governor of the church but the appellation of parson however it may be depreciated by a familiar clownish and indiscriminate use is the most legal most beneficial and most honorable title that a parish priest can enjoy because such a one Sir Edward Koch observes and he only is said vikem sui personam ecclesi I Vera a parson has during his life the freehold in himself of the parsonage house the gleam the tides and other dews but these are sometimes appropriated that is to say the benefits is perpetually annexed to some spiritual corporation either soul or aggregate being the patron of the living whom the law esteems equally capable of providing for the service of the church as any single private clergyman this contrivance seems to have sprung from the policy of the monastic orders who have never been deficient in subtle inventions for the increase of their own power and emoluments at the first establishment of parochial clergy the tides of the parish were distributed in a fourfold division one for the use of the bishop another for maintaining the fabric of the church a third for the poor and the fourth to provide for the incumbent when the seas of the bishops became otherwise amply endowed they were prohibited from demanding their usual share of these tides and the division was into three parts only and hence it was inferred by the monasteries that a small part was sufficient for the officiating priest and that the remainder might well be applied to the use of their own fraternities the endowment of which was construed to be a work of the most exalted piety subject to the burden of repairing the church and providing for its constant supply and therefore they begged and bought for masses and obits and sometimes even for money all the advousans within their reach and then appropriated the benefits to the use of their own corporation but in order to complete such appropriation effectually the king's license and consent of the bishop must first be obtained because both the king and the bishop may sometime or other have an interest by lapse in the presentation of the benefits which can never happen if it be appropriated to the use of a corporation which never dies and also because the law reposes a confidence in them that they will not consent to anything that shall be to the prejudice of the church the consent of the patron also is necessarily implied because as was before observed the appropriation can be originally made to none but to such spiritual corporation as is also the patron of the church the whole being indeed nothing else but an allowance for the patrons to retain the tithes and glee in their own hands without presenting any clerk they themselves undertaking to provide for the services of the church when the appropriation is thus made the appropriators and their successors are perpetual parson's of the church and must sue and be sued in all matters concerning the rights of the church by the name of parson's this appropriation may be severed and the church become disappropriate two ways as first if the patron or appropriator presents a clerk who is instituted and inducted to the parsonage for the incumbent so instituted and inducted is to all intents and purposes complete parson and the appropriation being once severed can never be reunited again unless by a repetition of the same solemnities and when the clerk so presented is distinct from the vicar the rectory thus vested in him becomes what is called sine cure because he have no cure of souls having a vicar under him to whom that cure is committed also if the corporation which has the appropriation is dissolved the parsonage becomes disappropriate at common law because the perpetuity of person is gone which is necessary to support the appropriation in this manner and subject to these conditions may appropriations be made at this day and thus were most if not all of the appropriations at present existing originally made being annexed to bishoprics prevens religious houses nay even to nunaries and certain military orders all of which were spiritual corporations at the dissolution of monasteries by statutes twenty seven henry the eighth chapter twenty eight and thirty one henry the eighth chapter thirteen the appropriations of the several parsonages which belong to those respective religious houses amounting to more than one third of all the parishes in england would have been by the rules of the common law disappropriated had not a clause in those statutes intervened to give them to the king in as ample a manner as the abbots etc formally held the same at the time of their dissolution this though perhaps scarcely defensible was not without example for the same was done in former reigns when the alien priories that is such as were filled by foreigners only were dissolved and given to the crown and from these two roots have sprung all the lay appropriations or secular parsonages which we now see in the kingdom they having been afterwards granted out from time to time by the crown these appropriating corporations or religious houses were want to depute one of their own body to perform divine service and administer the sacraments in those parishes of which the society was thus the parson this officiating minister was in reality no more than a curate deputy or vice-region of the appropriator and therefore called vicarious or vicar his stipend was at the discretion of the appropriator who was however bound of common right to find somebody qui illi de temporalibus Episcopal de spiritualibus de beate respandere but this was done in so scandalous a manner and the parishes suffered so much by the neglect of the appropriators that the legislature was forced to interpose and accordingly it is enacted by statute 15 richer the second chapter 6 that in all appropriations of churches the diocesan bishop shall ordain in proportion to the value of the church a competent sum to be distributed among the poor parishioners annually and that the vicarage shall be sufficiently endowed it seems the parish were frequently suffers not only by the want of divine service but also by withholding those arms for which among other purposes the payment of tithes was originally imposed and therefore in this act a pension is directed to be distributed among the poor parochians as well as a sufficient stipend to the vicar but he being liable to be removed at the pleasure of the appropriator was not likely to insist too rigidly on the legal sufficiency of the stipend and therefore by statute four henry the fourth chapter 12 it is ordained that the vicar shall be a secular person not a member of any religious house that he shall be vicar perpetual not removable at the caprice of the monastery and that he shall be canonically instituted and inducted and be sufficiently endowed at the discretion of the ordinary for these three express purposes to do divine service to inform the people and to keep hospitality the endowments in consequence of these statutes have usually been by a portion of the glee or land belonging to the parsonage and a particular share of the tithes which the appropriators found it most troublesome to collect and which are therefore generally called privy small or vicarial tithes the greater or predial tithes being still referred to their own use but one in the same rule was not observed in the endowment of all vicarages hence some are more liberally and some more scantily endowed and hence many things as would in particular is in some countries a rectorial and in some a vicarial tithe the distinction therefore of a parson and vicar is this that the parson has for the most part the whole right to all the ecclesiastical dues in his parish but a vicar has generally an appropriator over him entitled to the best part of the prophets to whom he is in effect perpetual curate with a standing salary though in some places the vicarage has been considerably augmented by a large share of the great tithes which augmentations were greatly assisted by the statute 29 curilis the second chapter 8 enacted in favor of poor vickers and curates which rendered such temporary augmentations when made by the appropriators perpetual the method of becoming a parson or vicar is much the same to both there are four requisites necessary holy orders presentation institution and induction the method of conferring the holy orders of deacon and priest according to the liturgy and cannons is foreign to the purpose of these commentaries any father than as they are necessary requisites to make a complete parson or vicar by common law a deacon of any age might be instituted and inducted to a parsonage or vicarage but it was ordained by statute 13 13 elizabeth chapter 12 that no person under 23 years of age and in deacons orders should be presented to any benefits with cure and if he were not ordained priest within one year after his induction he should be ipso facto deprived and now by statute 13 and 14 curilis the second chapter 4 no person is capable to be admitted to any benefits unless he had been first ordained a priest and then he is in the language of the law a clerk in orders but if he obtains orders or a license to preach by money or corrupt practice which seems to be true though not the common notion of simony the person giving such orders for fits 40 pounds and the person receiving 10 pounds and is incapable of any ecclesiastical preferment for seven years afterwards any clerk may be presented to a parsonage or vicarage that is the patron to whom the Edvaos son of the church belongs may offer his clerk to the bishop of the diocese to be instituted of Edvaos son's or the right of presentation being a species of private property we shall find a more convenient place to treat in the second part of these commentaries but when a clerk is presented the bishop may refuse him upon many accounts as one if the patron is excommunicated and remains in contempt 40 days or two if the clerk be unfit which unfitness is of several kinds first with regard to his person as if he be a bastard an outlaw an excommunicate an alien underage or the like next with regard to his faith or morals as for any particular heresy or vice that is malum in say but if the bishop alleges only in generals as that he is schismaticus in veteranatus or objects to a fault that is malum prohibitum merely as haunting taverns playing at unawful games or the like it is not good cause of refusal or lastly the clerk may be unfit to discharge the pastoral office for want of learning in any of which cases the bishop may refuse the clerk in case the refusal is for heresy sism inability of learning or other matter of ecclesiastical cognizance there the bishop must give notice to the patron of such his cause of refusal who being usually a layman is not supposed to have knowledge of it else he cannot present by lapse but if the cause be temporal there he is not bound to give notice if an action at law be brought by the patron against the bishop for refusing his clerk the bishop must assign the cause if the cause be of a temporal nature and the fact admitted as for instance outlawry the judges of the king's court must determine its validity or whether it be sufficient cause of refusal but if the fact be denied it must be determined by a jury if the cause be of a spiritual nature as heresy particularly alleged the fact if denied shall also be determined by a jury and if the fact be admitted or found the court upon consultation and advice of learned divines shall decide its sufficiency if the cause be want of learning the bishop need not specify in what points the clerk is deficient but only alleged that he is deficient for the statute nine edward the second statute one chapter 13 is express that the examination of the fitness of a person presented to a benefit belongs to the ecclesiastical judge but because it would be nougatory in this case to demand the reason of refusal from the ordinary if the patron were bound to abide by his determination who has already pronounced his clerk unfit therefore if the bishop returns the clerk to be minus syfinkians in literatura the court shall write to the metropolitan to re-examine him and certify his qualifications which certificate of the archbishop is final if the bishop hath no objections but admits the patron's presentation the clerk so admitted is next to be instituted by him which is a kind of investiture of the spiritual part of the benefits for by institution the care of the souls of the parish is committed to the charge of the clerk when a vicar is instituted he besides the usual forms takes if required by the bishop and oath of perpetual residence for the maximum law is that vicarious non-habit vicarium and as the non-residents of the appropriators was the cause of the perpetual establishment of vicarages the law judges it very improper for them to defeat the end of their constitution and by absence to create the very mischiefs which they were appointed to remedy especially as if any profits are to rise from putting in a curate and living at a distance from the parish the appropriator who is the real parson has undoubtedly the elder title to them when the ordinary is also the patron and confers the living the presentation and institution are one and the same act and are called a coalition to a benefit by institution or coalition the church is full so that there can be no fresh presentation till another vacancy at least in the case of a common patron but the church is not full against the king till induction day even if a clerk is instituted upon the king's presentation the crown may revoke it before induction and present another clerk upon institution also the clerk may enter on the parsonage house and glee and take the tithes but he cannot grant or let them or bring any action for them till induction induction is performed by a mandate from the bishop to the arch deacon who usually issues out a precept to other clergymen to perform it for him it is done by giving the clerk corporal possession of the church as by holding the ring of the door tolling a bell or the like and is a form required by law with intent to give all the parishioners do notice and sufficient certainty of their new minister to whom their tithes are to be paid this therefore is the investiture of the temporal part of the benefits as institution is of the spiritual and when a clerk is thus presented instituted and inducted into a rectory he is then and not before in full and complete possession and is called in law persona impersonata or parson imparsani the rites of a parson or vicar in his tithes and ecclesiastical dues fall more properly under the second book of these commentaries and as to his duties they are principally of ecclesiastical cognizance those only accepted which are laid upon him by statute and those are indeed so numerous that it is impractical to recite them here with any tolerable conciseness or accuracy some of them we may remark as they arise in the progress of our inquiries but for the rest I must refer myself to such authors as have compiled treatises expressly upon this subject I shall only just mention the article of residence upon the supposition of which the law dot style every parochial minister and incumbent by statute 21 henry the eighth chapter 13 persons willfully absenting themselves from their benefits for one month together or two months in the year incur a penalty of five pounds to the king and five pounds to any person that will sue for the same except chaplains to the king or others therein mentioned during their attendance in the household of such as retain them and also accept all heads of houses magistrates and professors in the universities and all students under 40 years of age residing there bona fide for study legal residence is not only in the parish but also in the parsonage house for it has been resolved that the statute intended residence not only for serving the cure but for hospitality but also for maintaining the house that the successor also may keep hospitality there we have seen that there is but one way whereby one may become a parson or vicar there are many ways by which one may cease to be so one by death two by session in taking another benefits for by statute 21 henry the eighth chapter 13 if anyone having a benefits of eight pounds per annum or upwards in the king's books according to the present valuation except sending other the first shall be a judged void unless he obtains a dispensation which no one is entitled to have but the chaplains of the king and others therein mentioned the brethren and sons of lords and knights and doctors and bachelors of divinity and law admitted by the universities of this realm and a vacancy thus made for want of a dispensation is called session three by consecration for as was mentioned before when a clerk is promoted to a bishopric all his other preferments are void the instant that he is consecrated but there is a method by the favor of the crown of holding such livings in commendarm commender or ecclesia commendata is a living commended by the crown to the care of a clerk to hold till a proper pastor is provided for it this may be temporary for one two or three years or perpetual being a kind of dispensation to avoid the vacancy of the living and is called a commender rey tenere there is also a commender rey chipere which is to take a benefit de novo in the bishop's own gift or the gift of some other patron consenting to the same and this is the same to him as institution and induction are to another clerk for by resignation but this is of no avail till accepted by the ordinary into whose hands the resignation must be made five by deprivation either by canonical censures of which I am not to speak or in pursuance of diverse penal statutes which declare the benefits void for some non-feasance or neglect or else some malfeasance or crime as for simony for maintaining any doctrine in derogation of the king's supremacy or of the thirty nine articles or of the book of common prayer for neglecting after institution to read the articles in the church or make the declarations against popery or take the abjuration oath for using any other form of prayer than the liturgy of the church of england or for absenting himself sixty days in one year from a benefits belonging to a popish patron to which the clerk was presented by either of the universities in all which and similar cases the benefits is ipso facto void without any formal sentence of deprivation six a curate is the lowest degree in the church being in the same state that a vicar was formerly an officiating temporary minister instead of the real incumbent though there are what are called perpetual curacies where all the tithes are appropriated and no vicarage in doubt being for some particular reasons exempted from the statute of henry the fourth but instead thereof such perpetual curate is appointed by the appropriator with regard to the other species of curates they are the objects of some particular statutes which ordain that such as serve a church during its vacancy shall be paid such stipend as the ordinary thinks reasonable out of the profits of the vacancy or if that be not sufficient by the successor within fourteen days after he takes possession and that if any rector or vicar nominates a curate to the ordinary to be licensed the ordinary shall settle his stipend under his hand and seal not exceeding fifty pounds per annum nor less than twenty pounds and on failure of payment may sequester the profits of the benefits this much of the clergy properly so called there are also certain inferior ecclesiastical officers of whom the common law takes notice and that principally to assert the ecclesiastical jurisdiction where it is deficient in powers on which officers I shall make a few cursory remarks seven church wardens are the guardians or keepers of the church and representatives of the body of the parish they are sometimes appointed by the minister sometimes by the parish sometimes by both together as custom directs they are taken in favor of the church to be for some purposes a kind of corporation at the common law that is they are enabled by that name to have a property in goods and chattels and to bring actions for them for the use and profit of the parish yet they may not waste the church goods but may be removed by the parish and then called to account by action at the common law but there is no method of calling them to account but by first removing them for none can legally do it but those who are put in their place as to lands or other real property as the church church yard etc they have no sort of interest therein but if any damage is done there to the parson only or vicar shall have the action their office also is to repair the church and make rates and levies for that purpose but these are recoverable only in the ecclesiastical court they are also joined with the overseers in the care and maintenance of the poor they are to levy a shilling forfeiture on all such as do not repair to church on sundays and holidays and are empowered to keep all persons orderly while there to which end it has been held that a church warden may justify the pulling off a man's hat without being guilty of either an assault or trespass there are also multitude of other petty parochial powers committed to their charge by diverse acts of parliament eight parish clerks and sextons are also regarded by the common law as persons who have freeholds in their offices and therefore though they may be punished yet they cannot be deprived by ecclesiastical censures the parish clerk was formerly always in holy orders and some are so to this day he is generally appointed by the incumbent but by custom may be chosen by the inhabitants and if such custom appears the court of kings bench will grant amandamos to the archdeacon to swear him in for the establishment of the custom turns it into a temporal or civil right and of section 40 part 2 of chapter 11 of the commentaries on the laws of england book 1 read by father xyle of detroit michigan www dot drzeile.net section 41 chapter 12 of the commentaries on the laws of england book 1 this is a libre box recording all libre box recordings are in the public domain for more information or to volunteer please visit librebox.org commentaries on the laws of england by william blackston book 1 chapter 12 chapter the 12th of the civil state the lay part of his majesty subjects or such of the people as are not comprehended under the denomination of clergy may be divided into three distinct states the civil the military and the maritime 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 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 seamen the civil state consists of the nobility and the commonality of the nobility the peerage of great britain or lord's 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 honor are not of equal antiquity those now in use are dukes marqueses urls viscounts and barons a duke though it be with us as a mere title of nobility inferior in point of antiquity to many others yet it is superior to all of them in rank being the first title of dignity after the royal family among the saxons the latin name of dukes deuces is very frequent and signified as among the romans the commanders or leaders of their armies whom in their own language they called heritaka and in the laws of henry the first as translated by lombard we find them called heritaki but after the norman conquest which changed the military polity of the nation the kings themselves continuing for many generations dukes of normandy they would not honor any subjects with that title till the time of edward the third who claiming to be king of france and thereby losing the duke in the royal dignity in the eleventh year of his reign created his son edward the black prince duke of cornwall and many of the royal family especially were afterwards raised to the same honor however in the reign of queen elizabeth ad 1572 the whole order became utterly extinct but it was revived about 50 years afterwards by her successor who was remarkably prodigal of honors in the person of george villiers duke of buckingham two a marquis marchio is the next degree of nobility his office formerly was for dignity and duty were never separated by our ancestors to guard the frontiers and limits of the kingdom which were called the marches from the teutonic word march as a limit as in particular were the marches of wales in scotland while they continued to be enemy countries the persons who had command there were called lords marchers or marquesas the whole authority was established by statute 27th henry the eighth c 27 though the title had long before been a mere ensign of honor robert veer earle of oxford being created marquis of dublin by richard the second in the eighth year of his reign three and earle is a title of nobility so ancient that its original cannot clearly be traced out thus much seems tolerably certain that among the saxons they were called earlderman quasi-elderman signifying the same as senior or senator among the romans and also skierman because they had each of them the civil government of several divisions or shire on the eruption of the danes they changed the name to earls which according to camden signified the same in their language in latin they are called cometes a title first used in the empire from being the king's attendance associatate no man some serrant regis and him talis cb associate after the norman conquest they were for some time called counts or counties from the french but they did not long retain that name themselves though their shires are from thence called counties to this day it is now become a mere title they having had nothing to do with the government of the county which has has been more than once observed is now entirely devolved on the sheriff the earls deputy or vice comas in all ritz and commissions and other formal instruments the king when he mentions any peer of the degree of an earl always styles him trusty and well beloved cousin an appellation as ancient as the reign of henry the fourth who being either by his wife his mother or his sisters actually related or allied to every earle in the kingdom artfully and constantly acknowledged that connection in all his letters and other public acts from whence the usage has descended to his successors though the reason has long ago failed for the name of vice comas or viscount was afterwards made use of as an arbitrary title of honor without any shadow of office pertaining to it by henry the sixth when in the eighteenth year of his reign he created john bowmont appear by the name of viscount bowmont which was the first instance of the kind five a barons is the most general and universal title of nobility for originally every one of the peers of superior rank had also a barony annex to his other titles but it has sometimes happened that when an ancient baron hath been raised to a new degree of peerage in the course of a few generations the two titles have descended differently one perhaps to the male descendants the others to the heirs general whereby the earldom or other superior title hath subsisted without a barony and there are also modern instances where earls and viscounts have been created without annexing a barony to their other honors so that now the rule does not hold universally that all peers are barons the original and antiquity of baronies has occasioned great inquiries among our english antiquarians the most probable opinion seems to be that they were the same with our present lords of manners to which the name of court baron which is the lords court and incident to every manner gives some countenance it may be collected from king john's magnacarta that originally all lords of manners or barons that held of the king in capitae had seats in the great council or parliament till about the reign of that prince the conflicts of them had become so large and troublesome that the king was obliged to divide them and summon only the greater barons in person leaving the small ones to be summoned by the sheriff and as it is said to sit by representation in another house which gave rise to the separation of the two houses of parliament by degrees the title came to be confined to the great barons or lords of the parliament only and there were no other barons among the peerage but such as were summoned by rit in respect of the tenure of their lands or baronies till richard the second first made it a mere title of honor by conferring it on divers persons by his letters patent having made this short inquiry into the original of our several degrees of nobility i shall next consider the manner in which they may be created the right of peerage seems to have been originally territorial that is annexed to lands honors castles manners and the like the proprietors and processors of which were in right of those estates allowed to be peers of the realm and were summoned to parliament to do suit and service to their sovereign and when the land was alienated the dignity passed with it as appendent thus the bishop still sit in the house of lords in right of succession to certain ancient baronies annexed or supposed to be annexed to their episcopal lands and thus in eleventh henry the sixth the possession of the castle of erendale was a judge to confer an earldom on its possessor but afterwards when alienations grew to be frequent the dignity of peerage was confined to the lineage of the party ennobled and instead of territorial became personal actual proof of a tenure by barony became no longer necessary to constitute a lord of parliament but the record of the writ of summons to them or their ancestors was admitted as a sufficient evidence of the tenure peers are now created either by writ or by patent for those who claim them by prescription must suppose either a writ or patent made to their ancestors though by length of time it is lost the creation by writ or the king's letter is a summons to attend the house of peers by the style and title of that barony which the king is pleased to confer that by patent is a royal grant to a subject of any dignity and degree of peerage the creation by writ is the more ancient way but a man not ennobled thereby unless he actually takes his seat in the house of lords and therefore the most usual because the surest way is to grant the dignity by patent which ennours to a man and his heirs according to the limitations thereof though he never himself makes use of it yet it is frequent to call up the eldest son of a peer to the house of lords by writ of summons in the name of his father's barony because in that case there is no danger of his children's losing the nobility in case he never takes his seat for they will succeed to their grandfather creation by writ has also one advantage over that by patent for a person created by writ holds the dignity to him and his heirs without any words to that purport in the writ but in letters patent there must be words to direct the inheritance else the dignity ennours only to the grantee for life for a man or woman may be created noble for their own lives and the dignity not descended to their heirs at all or descend only to some particular heirs as where a peerage is limited to a man and the heirs mail of his body by elizabeth his present lady and not to such heirs by any former or future wife let us next take a view of a few of the principal incidents attending the nobility exclusive of their capacity as members of parliament and as hereditary counselors of the crown both of which we have before considered and first we must observe that in criminal cases a nobleman shall be tried by his peers the great are always obnoxious to popular envy were they to be judged by the people they might be in danger from the prejudice of their judges and would moreover be deprived of the privilege of the meanest subjects that of being tried by their equals which is secured to all the realm by Magna Carta it is said that this does not extend to bishops who though they are lords of parliament and sit there by virtue of their baronies which they hold de jure ecclesiée yet are not ennobled in blood and consequently not peers with the nobility as to pierces no provision was made for their trial when accused of treason or felony till after elinor duchess of gloster wife to the lord protector had been accused of treason and found guilty of witchcraft in an ecclesiastical synod through the intrigues of cardinal Beaufort this very extraordinary trial gave occasion to a special statute twentieth henry the sixth c nine which enacts that pierces either in their own right or by marriage shall be tried before the same judicature as peers of the realm if a woman noble in her own right marries a commoner she still remains noble and shall be tried by her peers but if she be only noble by marriage then by a second marriage with a commoner she loses her dignity for as by marriage it is gained by marriage it is also lost yet if a duchess dowager marries a baron she continues a duchess still for all the nobility are peers and therefore it is no degradation a pier or pierce either in her own right or by marriage cannot be arrested in civil cases and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings a pier sitting in judgment gives not his verdict upon oath like an ordinary juryman but upon his honor he answers also to bills in chancery upon his honor and not upon his oath but when he is examined as a witness either in civil or criminal cases he must be sworn for the respect which the law shows to the honor of a peer does not extend so far as to overturn a settled maxim that in judicio non creditor nisi geratis the honor of peers is however so highly tendered by the law that it is much more penal to spread false reports of them and certain other great officers of the realm than of other men scandal against them being called by the peculiar name of scandalum magnetum and subjected to particular punishment by diverse ancient statutes appear cannot lose his nobility but by death or a tainer though there was an instance in the reign of edward the fourth of the degradation of george neville duke bedford by an act of parliament on account of his poverty which rendered him unable to support his dignity but this is a singular instance which serves at the same time by having happened to show the power of parliament and by having happened but once to show how tender the parliament have been in exerting so high a power it have been said indeed that if a baron waste his estate so that he is not able to support the degree the king may degrade him but it is expressly held by later authorities that appear cannot be degraded but by act of parliament the commonality like the nobility are divided into several degrees and as the lords though different in rank yet all of them are peers in respect of their nobility so the commoners though some of them are greatly superior to others yet all are in law peers in respect of their want of nobility the first name of dignity next beneath appear was anciently that of vidamis vice-domini or valvasors who are mentioned by our ancient lawyers as very magnate dignitatus and sir edward coke speaks highly of them yet they are now quite out of use and our legal antiquarians are not so much agreed upon their original or ancient office now therefore the first dignity after the nobility is a night of the order of st. george or of the garter first instituted by edward the third ad 1344 next follows a night venerate who indeed by statutes fifth richard the second statute two c four and fourteenth richard the second c eleven is ranked next after barons and that precedence was confirmed to him by order of king james the first in the tenth year of his reign but in order to entitle himself to this rank he must have been created by the king in person in the field under the royal banners in time of open war else he ranks after baronettes who are the next in order which title is a dignity of inheritance created by letters patent and usually descendable to the issue mail it was first instituted by king james the first ad 1611 in order to raise a competent sum for the reduction of the province of ulster in ireland for which reason all baronettes have the arms of ulster super added to their family coat next follow knights of the bath an order instituted by king henry the fourth and revived by king george the first they are so called from the ceremony of bathing the night before their creation the last of these inferior nobility are night's bachelors the most ancient though the lowest order of knighthood amongst us for we have an instance of king alfred's conferring this order on his son athelstan the custom of the ancient germans was to give their young men a shield and a lance in the great council this was equivalent to the toga virilis of the romans before this they were not permitted to bear arms but were accounted as part of the father's household after it as part of the public hence some derive the usage of nighting which has prevailed all over the western world since its reduction by colonies from these northern heroes knights are called in latin equitus orati orati from the guilt spurs they wore and equitus because they always served on horseback for it is observable that almost all nations call their knights by some appellation derived from an oris they are also called in our law militaries because they formed apart or indeed the whole of the royal army in virtue of their fetal tenors one condition of which was that everyone who held a knight's fee which in henry the second's time amounted to twenty pounds per annum was obliged to be knighted and attend the king in his wars or fine for his non-compliance the exertion of this prerogative as an expedient to raise money in the reign of charles the first gave great offense though warranted by law and the recent example of queen elizabeth but it was at the restoration together with all other military branches of the feudal law abolished and this kind of knighthood has since that time fallen into great disregard these sir edward coke says are all the names of dignity in this kingdom esquires and gentlemen being only names of worship but before these last the heralds rank all kernels sergeants at law and doctors in the three learned professions esquires and gentlemen are confounded together by sir edward coke who observes that every esquire is a gentleman and a gentleman is defined to be one key arm and carrot who bears coat armor the grant of which adds gentility to a man's family in like manner as civil nobility among the romans was founded in the juice and magnum or having the image of one ancestor at least who had borne some cure rule office it is indeed a matter somewhat unsettled what constitutes the distinction or who is a real a squire for it is not an estate however large that confers this rank upon its owner camden who was himself a herald distinguishes them the most accurately and he reckons up four sorts of them one the eldest sons of knights and their eldest sons in perpetual succession to the younger sons of peers and their eldest sons in like perpetual succession both which species of esquires sir h spellmen in titles armajiri natality three esquires created by the king's letters patent or other investiture and their elder sons four esquires by virtue of their offices as justices of the peace and others who bear any office of trust under the crown to these may be added the esquires of knights of the bath each of whom constitutes three at his installation and all foreign nay irish peers and the eldest sons of peers of great britain who though generally titular lords are only esquires in the law and so must be named in all legal proceedings as for gentlemen says sir thomas smith they be made good cheap in this kingdom for whosoever studyeth the law of the realm who studyeth in the universities who professeth liberal sciences and to be short who can live idly and without manual labor and will bear the port charge and countenance of a gentleman he shall be called master and shall be taken for a gentleman a yeoman is he that hath free land of forty shillings by the year who is thereby qualified to serve on juries vote for knights of the shire and do any other act where the law requires one that is probes a legales homo the rest of the commonality are tradesmen artificers and laborers who as well as all others must in pursuance of the statute first Henry the fifth c five be styled by the name and addition of their estate degree or mystery in all actions and other legal proceedings end of section forty one section forty two chapter thirteen of the commentaries on the laws of england book one this is a liberal box recording all liberal box recordings and the public domain for more information or to volunteer please visit liberal box dot org recording by jc guan commentaries on the laws of england by william blexton book one chapter 13 chapter 13 of the military and maritime states the military state includes the whole of the soldiery or such persons as are peculiarly appointed among the rest of the people for the safeguard and defense of the realm in a land of liberty it is extremely dangerous to make a distinct order of the profession of arms in absolute monarchy this is necessary for the safety of the prince and arises from the main principle of their constitution which is that of government by fear but in free states the profession of his order taking singly and merely as a profession is justly an object of jealousy in these no man should take up arms but with a view to defend his country and its laws he puts not off the citizen when he enters the camp but it is because he is a citizen and would wish to continue so that he makes himself for a while a soldier the laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier bred up to no other profession than that of war and it was not till the reign of henry the seventh that the kings of england had so much as a guard about their persons in the time of our sacks and ancestors as appears from edward the confessors laws the military force of this kingdom was in the hands of the dukes or heritoks who were constituted through every province and country in the kingdom being taken out of the principal nobility and such as were most remarkable for being sapientes fidelis it animosity their duty was to lead and regulate the english armies with a very unlimited power and because of this great power they were elected by the people in their full assembly or folk mode in the same manner as sheriffs were elected following still that old fundamental maxim of the sacks and constitution that where any officer was entrusted with such power as if abused might tend to the oppression of the people that power was delegated to him by the vote of the people themselves so too among the ancient germans the ancestors of our sacks and forefathers they had their dukes as well as kings with an independent power over the military as the kings had over the civil state the dukes were elective the kings hereditary for so only can be consistently understood that passage of tacitus in constituting their kings the family or blood royal was regarded in choosing their dukes or leaders war like merit just as cesa relates of their ancestors in this time that whenever they went to war by way either of attack or defense they elected leaders to command them this large share of power thus conferred by the people though intended to preserve the liberty of the subject was perhaps unreasonably detrimental to the prerogative of the crown and accordingly we find a very ill use made of it by edritch duke of mercia in the reign of king edmund ironside who by his office of duke or heritock was entitled to a large command in the king's army and by his repeated treacheries at last transferred the crown to canute the dane it seems universally agreed by all historians that king alfred first settled a national militia in this kingdom and by his prudent discipline made all the subjects of his dominion soldiers but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation though from what was last observed the dukes seem to have been left in possession of too large and independent a power which enabled the duke herald on the death of edward the confessor though a stranger to the royal blood to mount for a short space the throne of this kingdom in prejudice of edgar ataling the rightful air upon the norman conquest the feudal law was introduced here in all its rigor the whole of which is built on a military plan i shall not now enter into the particulars of that constitution which belongs more properly to the next part of our commentaries but shall only observe that in consequence thereof all the lands in the kingdom were divided into what were called night's fees the number above 60 000 and for every night's fee a night or soldier millis was bound to attend the king in his wars for 40 days in a year in which space of time before war was reduced to the science the campaign was generally finished and a kingdom either conquered or victorious by this means the king had without any expense an army of 60 000 men always ready at his command and accordingly we find one among the laws of william the conqueror which in the king's name commands and firmly enjoins the personal attendance of all knights and others quod aviants et teneant se semper in armis et equis ut decet et oportet et quod semper sind prompti et parati at servitium sum integrum novis explendum et paragentum cum opus ad fuerit segundum quod divent de fiodis et tenementis suis de urinovis facere this personal service in process of time degenerated into pecuniary commutations or aids and at last the military part of the feudal system was abolished at the restoration by statue 12 charles the second chapter 24 in the meantime we are not to imagine that the kingdom was left wholly without defense in case of domestic insurrections or the prospect of foreign invasions besides those who by their military tenures were bound to perform 40 days service in the field the statute of winchester obliged every man according to his estate and degree to provide a determinate quantity of such arms as were then in use in order to keep the peace and constables were appointed in all hundreds to see that such arms were provided these weapons were changed by statute four and five philip and mary chapter two into others of more modern service but both this and the former provision were repealed in the reign of james the first while these continued in force it was usual from time to time for our princes to issue commissions of array and sent into every country officers in whom they could confide to master and array or set in military order the inhabitants of every district and the form of the commission of array was settled in parliament in the fifth year of henry the fourth but at the same time it was provided that no man should be compelled to go out of the kingdom at any rate nor out of his share but in cases of urgent necessity nor should provide soldiers unless by consent of parliament about the reign of king henry the eight and his children lord lieutenants began to be introduced as stunning representatives of the crown to keep the countries in military order for we find them mentioned as known officers in the statute four and five philip and mary chapter three though they had not been then long in use for camden speaks of them in the time of queen elizabeth as extraordinary magistrates constituted only in times of difficulty and danger in this state things continued till the repeal of the statutes of armor in the reign of king james the first after which when king charles the first had during his northern expeditions issued commissions of lieutenancy and exerted some military powers which having been long exercised was thought to belong to the crown it became a question in the long parliament how far the power of the militia did inherently reside in the king being now unsupported by any statute and founded only upon immemorial usage this question long agitated with great heat and resentment on both sides became at length the immediate cause of the fatal rupture between the king and his parliament the two houses not only denying this prerogative of the crown the legality of which right perhaps might be somewhat doubtful but also seizing into their own hands the entire power of the militia the illegality of which step could never be any doubt at all soon after the restoration of king charles the second when the military tenures were abolished it was thought proper to ascertain the power of the militia to recognize the sole right of the crown to govern and command them and to put the whole into a more regular method of military subordination and the order in which the militia now stands by law is principally built upon the statute which were then enacted it is true the two last of them were apparently repealed but many of their provisions are reenacted with the addition of some new regulations by the present militia laws the general scheme of which is to discipline a certain number of the inhabitants of every country chosen by lot of three years and officers by the lord lieutenant the deputy lieutenants and other provincial landlords under the commission from the crown they are not comparable to much out of their countries unless in case of invasion or actual rebellion nor in any case comparable to much out of the kingdom they are to be exercised at stated times and their discipline in general is liberal easy but when drawn out into actual service they are subject to the rigors of martial law as necessary to keep them in order this is the constitutional security which our laws have provided for the public peace and for protecting the realm against foreign or domestic violence and which the statutes declare it is essentially necessary to the safety and prosperity of the kingdom when the nation is engaged in a foreign war more veteran troops and more regular discipline may perhaps be necessary then can be expected from a mere militia and therefore at such times particular provisions have been usually made for the raising of armies and the due regulation and discipline of the soldierry which are to be looked upon only as temporary excrescences bred out of the distemper of the state and not as any part of the permanent and perpetual laws of the kingdom for martial law which is built upon no settled principles but is entirely arbitrary in its decisions is as Sir Matthew Hale observes in truth and reality no law but something indulged rather than allowed as a law the necessity of order and discipline in an army is the only thing which can give it countenance and therefore it ought not to be permitted in time of peace when the king's courts are open for all persons to receive justice according to the laws of the land where for Edmund Earl of Kent being taken at Pontifract in the 15th year of Edward II and condemned by martial law his attainment was reversed in the first year of Edward III because it was done in time of peace and it is laid down that if a lieutenant or other that has commission of martial authority doth in time of peace hang or otherwise execute any man by color of martial law this is murder for it is against Magna Carta and the petition of whites in acts that no soldier shall be quartered on the subject without his own consent and that no commission shall issue to proceed within this land according to martial law and whereas after the restoration King Charles II kept up about five thousand regular troops by his own authority for guards and garrisons which King James II by degrees increased to no less than thirty thousand all paid from his own civil list it was made one of the articles of the Bill of Rights that the raising or keeping a standing army within the kingdom in time of peace unless it be with consent of the parliament is against law but as the fashion of keeping standing armies has universally prevailed over all Europe of late years though some of its potentates being unable themselves to maintain them are obliged to have recourse to witcher powers and receive subsidiary pensions for that purpose it has also for many years past been annually judged necessary by our legislature for the safety of the kingdom the defense of the possessions of the crown of Great Britain and the preservation of the balance of power in Europe to maintain even in time of peace a standing body of troops under the command of the crown who are however ipso facto disbanded at the expiration of every year unless continued by parliament to prevent the executive power from being able to repress says Baron Montesture it is requisite that the armies with which it is entrusted should consist of the people and have the same spirit with the people as was the case at Rome till Marius new modeled the legions by enlisting the rabble of Italy and laid the foundation of all the military tyranny that ensured nothing then according to these principles ought to be more guarded against in a free state than making the military power when such a one is necessary to be kept on foot a body too distinct from the people like ours therefore it should wholly be composed of natural subject it ought only to be enlisted for a short and limited time the soldiers also should live intermixed with the people no separate camp no barracks no inland fortresses should be allowed and perhaps it might be still better if by dismissing a stated number and enlisting others at every renewal of their term a circulation should be kept up between the army and the people and the citizen and the soldier be more intimately connected together to keep this body of troops in order an annual act of parliament likewise passes quote to punish mutiny and desertion and for the better payment of the army and their quarters end quote this regulates the manner in which they are to be dispersed among the several in-capers and victualers throughout the kingdom and establishes a new law martial for their government by this among other things it is enacted that if any officer and soldier shall excite or join any mutiny or knowing of it shall not give notice to the commanding officer or shall defect or list in any other regiment or sleep upon his post or leave it before he is relieved or hold correspondence with a rebel or enemy or strike or use violence to his superior officer or shall disobey his lawful commands such offender shall suffer such punishment as a court martial shall inflict though it extended to death itself however expedient the most strict regulations may be in time of actual war yet in times of profound peace a little relaxation of military rigor were not one should hope be productive of much inconvenience and upon this principle though by our standing laws still remaining in force though not attended to desertion in time of war is made felony without benefit of clergy and the offense is triable by a jury and before the judges of the common law yet by our militia laws before mentioned a much lighter punishment is inflicted for desertions in time of peace so by the roman law also desertion in time of war was punished with death but more mildly in time of tranquility but our mutiny act makes no such distinction for any of the faults therein mentioned are equally at all times punishable with death itself if a court martial shall sink proper this discretionary power of the court martial is indeed to be guided by the directions of the crown which with regard to military offenses has almost an absolute legislative power quote his majesty says the act may form articles of war and constitute courts martial with power to try any crime by such articles and inflict such penalties as the article's direct end quote a vast and most unimportant trust an unlimited power to create crimes and annex to them any punishment not extending to life or limb these are indeed forbidden to be inflicted except for crimes declared to be so punishable by this act which crimes we have just enumerated and among which we may observe that any disobedience to lawful commands is one perhaps in some future revision of this act which is in many respects hastily penned it may be thought worthy the wisdom of parliament to ascertain the limits of military subjection and to enact expressed articles of war for the government of the army and is done for the government of the navy especially as by our present constitution the nobility and gentry of the kingdom who serve their country as militia officers are annually subjected to the same arbitrary role during their time of exercise one of the greatest advantages of our english law is that not only the crimes themselves which it punishes but also the penalties which it inflicts are a certain and notorious nothing is left to arbitrary discretion the king by his judges dispenses what the law has previously ordained but it's not himself the legislator how much therefore is it to be regretted that a set of men whose bravery has so often preserved the liberties of their country should be reduced to a state of servitude in the midst of a nation of free men for sir edward cook will inform us that it is one of the genuine marks of servitude to have the law which is our role of action either concealed or precarious nor is the state of servitude quite consistent with the maxims of sound policy observed by other three nations for the greater the general liberty is which any state enjoys the more cautious has it usually been of introducing slavery in any particular order or profession these men as baron montesquieu observes seeing the liberty which other possess and which they themselves are excluded from are apt like eunuchs in the eastern seraglios to live in a state of perpetual envy and hatred towards the rest of the community and indulge a malignant pleasure in contributing to destroy those privileges to which they can never be admitted hence have many three states by departing from this role been endangered by the revolt of their slaves while in absolute and despotic government where there no real liberty exists and consequently no invidious comparisons can be formed such incidents are extremely rare two precautions are therefore advised to be observed in all prudent and free governments one to prevent the introduction of slavery at all or two if it be already introduced to entrust those slaves with arms who will then find themselves and overmatch for the free men much less ought the soldiery to be an exception to the people in general and the only state of servitude in the nation but as soldiers by this annual act are thus put in a worse condition than any other subjects so but the humanity of our standing laws they are in some cases put any much better by statute 43 elizabeth chapter three a weekly allowance is to be raised in every county for the relief of soldiers that are sick hurt and maimed not forgetting the royal hospital at chelsea for such as are worn out in their duty officers and soldiers that have been in the king's service are by several statutes enacted at the close of several wars at liberty to use any trade or occupation they are fit for in any town in the kingdom except the two universities notwithstanding any statute custom or charter to the contrary and soldiers in actual military service may make their whales and dispose of their goods wages and other personal chattels without those forms solemn teeth and expenses which the law requires in other cases our law does not indeed extend this privilege so far as the civil law which carried it to an extreme that borders upon the ridiculous for if a soldier in the article of death wrote anything in bloody letters on his shield or in the dust of the field with his sword it was a very good military testament and thus much for the military state as acknowledged by the laws of england the maritime state is nearly related to the former they're much more agreeable to the principles of our free constitution the royal navy of england has ever been its greatest defense and ornament it is its ancient and natural strength the floating ball walk of the island an army from which however strong and powerful no danger can ever be apprehended to liberty and accordingly it has been assiduously cultivated even from the earliest ages to so much perfection was our naval reputation arrived in the 12th century that the code of maritime laws which are called the laws of euleron and are received by all nations in europe as the ground and obstruction of all their marine constitutions was confessedly compiled by our king richards the first at the isle of euleron on the coast of france then part of the possessions of the crown of england and yet so vastly inferior were our ancestors in this point to the present age that even in the maritime reign of queen elizabeth sir edward cook thinks it's matter of boast that the royal navy of england then consisted of three and thirty ships the present condition of our marine is in great measure owing to the solitary provisions of the statutes called the navigation acts whereby the constant increase of english shipping and seamen was not only encouraged but rendered unvoidably necessary by the statute five richard the second chapter three in order to augment the navy of england then greatly diminished it was ordained that none of the king's leech people should chip and merchandise out of or into the realm but only in ships of the king's legions on pain of forfeiture in the next year by statute six richard the second chapter eight this wise provision was annurated by only obliging the merchants to give english ships if able and sufficient the preference but the most beneficial statute for the trade and commerce of these kingdoms is that navigation act the rudiments of which were first framed in sixteen fifty with a narrow partial view being intended to modify the sugar island which were disaffected to the parliament and still held out for charts the second by stopping the gainful trade which they then carried on with the dutch and at the same time to clip the wings of those our opulent and aspiring neighbors this prohibited all ships of foreign nations from trading with any english plantations without license from the council of state in sixteen fifty one the prohibition was extended also to the mother country and no goods were suffered to be imported into england or any of its dependencies in any other than english bottoms or in the ships of that european nation of which the merchandise imported was the gen one growth or manufacture at the restoration the former provisions were continued by statute 12 charles the second chapter eighteen with this very material improvement that the master and three forts of the mariners shall also be english subjects many laws have been made for the supply of the royal navy with seamen for their regulation went on board and to confer privileges and rewards on them during and after their service one first for their supply the power of impressing men for sea service by the king's commission has been a matter of some dispute aren't submitted to with great reluctance though it had very clearly and learnedly been shown by sir michael forster that's the practice of impressing and granting powers to the admiralty for that purpose is a very ancient date and has been uniformly continued by a regular series of presidents to the present time once he concludes it to be part of the common law the difficulty arises from the hands that no statute has expressly declared this power to be in the crown though many of them very strongly imply it the statute to richard the second chapter four speaks of mariners being arrested and retained for the king's service as of a thing well known and practice without dispute and provides a remedy against their running away by a later statute if any waterman who uses the river seams shall hide himself during the execution of any commission of pressing for the king's service he is liable to heavy penalties by another no fisherman shall be taken by the queen's commission to serve as a mariner but the commission shall be first brought to two justices of the piece inhabiting near the sea coast where the mariners are to be taken to the intent that the justices may choose out and return such a number of able-bodied man as in the commission are contained to serve her majesty and by others special predictions are allowed to seem and in particular circumstances to prevent them from being impressed all which do most evidently imply a power of impressing to reside somewhere and if anywhere it must be from the spirit of our constitution as well as from the frequent mention of the king's commission reside in the crown alone but besides this method of impressing which is only defensible from public necessity to which all private considerations must give way there are other ways that sent to the increase of seamen aren't manning the royal navy perishes may bind out poor boys apprentices to masters of merchants men who shall be protected from impressing for the first three years and if they are impressed afterwards the masters shall be allowed their wages great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty's service and every foreign seamen who during a war shall serve two years in any man of war merchant man or a privateer is naturalized ipso facto about the middle of king william's reign a scheme was set on foot for a register of seamen to the number of thirty thousand for a constant and regular supply of the king's fleet with great privileges to the registered men aren't on the other hand heavy penalties in case of their non-appearance when called for but this registry being judged to be rather a batch of slavery was abolished by statute nine an chapter 21 two the method of ordering seamen in the royal fleet and keeping up a regular discipline there is directed by certain express rules articles and orders first enacted by the authority of parliament soon after the restoration but since new modeled and altered after the piece of a la chapelle to remedy some defects which were a fatal consequence in conducting the preceding war in these articles of the navy almost every possible offense is set down and the punishment therefore annexed in which respect the seamen have much the advantage over their brethren in the land service whose articles of war are not enacted by parliament but framed from time to time at the pleasure of the crown yet from whence this distinction arose and why the executive power which is limited so properly with regard to the navy should be so extensive with regard to the army it is hard to assign a reason unless it proceeded from the perpetual establishment of the navy which rendered a permanent law for their regulation expedient and the temporary duration of the army which subsisted only from year to year and might therefore with less danger be subjected to discretionary government but whatever was apprehended at the first formation of the mutiny act the regular renewal of our extending force at the entrance of every year has made this distinction idle for if from experience past we may judge a future event the army is now lastingly engrafted into the british constitution with this singularly fortunate circumstance that any branch of the legislature may annually put an end to its legal existence by refusing to concur in its continuance three with regard to the privileges conferred on sailors they are pretty much the same with those conferred on soldiers with regard to relief when maimed or wounded or supri-annuit either by county rates or the royal hospital at greenwich with regard also to the exercise of trade and the power of making informal testaments and further no seamen aboard his majesty's ships can be arrested for any debt unless the same be sworn to amount to at least 20 pounds though by the annual mutiny acts a soldier may be arrested for a debt which extends to half that value but not to a less amount and of section 42 section 43 chapter 14 of the commentaries on the laws of england book one this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org commentaries on the laws of england by William Blackstone book one chapter 14 chapter the 14th 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 and private economical relations the three great relations in private life are one 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 labor will not be sufficient to answer the cares incumbent upon him two 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 three 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 or otherwise before they have completed their duty the law has therefore provided a fourth relation four 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 effects of this relation with regard to the parties themselves and lastly its effect with regard to other persons one as to the several sorts of servants I have formally observed that pure and proper slavery does not they 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 anywhere the three origins of the right of slavery assigned by Justinian are all of them built upon false foundations at first slavery is held to arise jury gentium from a state of captivity in war when slaves are called Manusipia quasi manuncapti the conqueror says the civilians has 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-defense and it is plain this absolute necessity did not subsist since the victor did not actually kill him but made him prisoner war itself is only justifiable 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 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 jury civilly 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 old laws of Rome or modern Barbary is also impossible every sale implies a price a quid pro quo and 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 fiend or are acquired they may also be hereditary sirvy nascunter the children of acquired slaves are jure naturi 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 upon these principles the law of england of whores and will not endure the existence of slavery within this nation so that when an attempt was made to introduce it by statute first edward the sixth c three 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 around their necks arms or legs and should be compelled by beating chaining or otherwise to perform the work assigned them where it never so vile the spirit of the nation could not brook this condition even in the most abandoned robes 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 his liberty and his property yet with regard to any right which the master may have acquired by contractor 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 to 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 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 one the first sort of servants therefore acknowledged by the laws of england are menial servants so-called from being intraminia 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 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 12 years old and 60 and married ones under 30 years of age and all single women between 12 and 40 not having any visible livelihood are compelled 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 but they may part by consent or make a special bargain to another species of servants are called apprentices from a prendra 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 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 also be done to husband man nay to gentlemen and others and children of poor persons may be apprenticed out by the overseers with consent of two justices till 24 years of age to such persons as a thought fitting who are also compelable to take them and it is held that gentlemen of fortune and clergymen are equally liable with others to such compulsion 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 who may by the equity of the statute if they think it reasonable direct restitution of a rateable share of the money given with the apprentice and parish apprentices may be discharged in the same manner by two justices three a third species of servants are laborers who are only hired by the day or week and do not live in terminia as part of the family concerning whom the statute so often cited has made many very good regulation one directing that all persons who have no visible effects may be compelled to work two defining how long they must continue at work in summer and winter three punishing such as leave or desert their work four empowering the justices at session or the sheriff of the county to settle their wages and five inflicting penalties on such as either give or exact more wages than are so settled four 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 masters or employers property which leads me to consider two the manner in which this relation of service affects either 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 in the next place person serving as apprentices to any trade have an exclusive right to exercise that trade in any part of England 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 humor 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 its repeal though hitherto without success at common law every man might use what trade he pleases but this statute restrains that liberty to such as have served as apprentices the adversaries to which provisions say that all restrictions which tend to introduce monopolies are pernicious to trade the advocates for it alleged that unskillfulness in trades is equally detrimental to the public as monopolies this reason indeed only extends to such trades in the exercise where of skill is required but another of their arguments goes much farther is that apprenticeships are useful to the commonwealth by employment of youth and learning them to be early industrious but that no one would be so induced to undergo a seven-year servitude if others though equally skillful 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 statute but such as we're in being at the making of it for trading in a country village apprenticeships are not requisite 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 a master may by law correct his apprentice or servant for negligence or other misbehavior so it be done with moderation though if the master's wife beats him it is good cause of departure but if any servant workman or laborer assaults his master ordain he shall suffer one year's imprisonment and other open corporal punishment not extending to life or limb by service all servants and laborers accept apprentices become entitled wages according to their agreement if menial servants or according to the appointment of the sheriff or sessions if laborers or servants and husbandry for the statutes for 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 third let us lastly see how strangers may be affected by this 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 and first the master may maintain that is a bet 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 a part of his duty for which he receives 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 departs 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 refused 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 domestic 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 namki facet per allium facet per se 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 manners 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 namki non prohibit come prohibit jubit so likewise if the drawer at a tavern sells a man bad whereby his health is injured he may bring an action against the master 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 is all 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 physician's servant whose usual business it is not to receive money for his master and he embezzled 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 quad 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 the tradesmen by myself or constantly pay him ready money I am not answerable for what my servant takes upon trust for here is no implied order to the tradesmen 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 tradesmen 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 shooing 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 misbehavior 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 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 sixth and c3 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 servant's carelessness but if such fire happens through negligence of any servant whose loss is commonly very little such servant shall forfeit 100 pounds to be distributed among the sufferers and in default a payment shall be committed to some workhouse and there kept a hard labor for 18 months a master is lastly chargeable if any of his family layeth or casteth anything out of his house into the street or common highway to the damage of any individual or the common nuisance of his majesty's leech people for the master hath the superintendents in charge of all his household and this also agrees with the civil law which holds that the paterfamilius in this and similar cases of alturis culpum tenatur sieve seri sieve liberi we may observe that in all the cases here put the master 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 misbehavior but never can shelter himself from punishment by laying the blame on his agent the reason of this is still uniform in the same that the wrong done by the servant 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