Chap. 3: Master and Servant
- We now consider the history of law regarding masters and servants.
- This is the third relation of a family.
- The same principle which gave the husband authority over the wife, also gave the father authority over the son.
- The husband’s power was softened through his wife’s friends.
- She could complain to them.
- The father was softened by the same means.
- The husband’s power was softened through his wife’s friends.
- But it was not so with the servants.
- They had nobody to complain to.
- They had no connection with anyone.
- Having none to take their part, they fell into slavery.
- The master had the power of life and death over them.
- This is different from theius vitae et necis over the wife and children, which was restricted to criminal cases.
- The power over the servants was arbitrary.
- They had nobody to complain to.
- A slave could have no property because the master had the disposal of his liberty.
- Whatever he has or can acquire belongs to his master.
- No contract of the slave could bind the master, unless the master implied a tacit consent [95].
- A slave can only acquire for his master.
- If I promised a slave £10, I am obliged to pay it to the master.
- There are many other disadvantages which the ancient Greek, Roman, and our negro slaves were liable to, though they were less attended to.
- They were hindered from marriage.
- They may cohabit with a woman, but cannot marry because the union between two slaves subsists no longer than the master pleases.
- If the female slave does not breed, he may give her to another or sell her.
- Among our slaves in the West Indies, there is no such thing as a lasting union.
- The female slaves are all prostitutes.
- They suffer no degradation by it.
- The female slaves are all prostitutes.
- A polytheist slave is not protected by religion.
- He has no God any more than liberty and property.
- The polytheistic religion has many local deities.
- Every place has its own divinity.
- The slaves do not belong to the country.
- Therefore, its gods are not concerned with them.
- Besides, a heathen can never approach a deity empty handed.
- The slaves had nothing to offer.
- They could expect no favour from them.
- Those slaves who were employed about the temples were the only ones to have the protection of the gods.
- The master prayed for them.
- But it was in the same manner that he prayed for his cattle.
- Every person is superstitious in proportion to:
- the precariousness of his life, liberty, or property, and
- their ignorance.
- Gamesters and savages are remarkably superstitious.
- A slave is addicted to superstition from these two causes.
- It would be a very great hardship to be deprived of something so well fitted to soothe the natural feelings of the human breast .
- Therefore, the religion which discovered one God who governed all things, would naturally be very acceptable to slaves.
- Accordingly we find that:
- The Jewish religion was [96] well fitted for defending itself.
- But it is the religion worst adapted to make converts because they could never be of Abraham’s stock, from whom the Messiah was to come.
- They could not be on a level with the Jews, but only proselytes of the gate.
- They were obliged to abstain from many kinds of food.
- With all these disadvantages, it made great progress among the Roman slaves.
- Christianity had none of these disadvantages.
- When it was introduced, it rapid progressed among the slaves.
- Accordingly we find that:
- We tend to imagine that slavery is quite eliminated because we know nothing of it in this part of the world.
- But even at present, it is almost universal.
- A small part of Western Europe is the only portion of the globe that is free from it.
- This is nothing compared to the vast continents where it still prevails.
- We shall try to show:
- how it was abolished here, and
- why it has continued in other parts, and probably will continue.
- Slavery takes place in the beginning of all societies.
- This proceeds from that tyrannic disposition natural to mankind.
- When governments were established, their constitution declared that slavery should be continued.
- In a free government, the members would never make a law so hurtful to their interest, as the abolishing of slavery1.
- In a monarchy, there is a better chance for its abolition, because:
- the lawgiver is one person, and
- the law will not extend to him nor reduce his power, though it may reduce that of his vassals.
- In a despotic governments, slaves may be better treated than in a free government.
- In a free government, every law is made by their masters, who will never pass anything prejudicial to themselves. [97]
- A monarch is more ready to be influenced to do something humanely for them.
- Vedius Pollio was a slave who had accidentally broken a platter.
- He threw himself down before Augustus who was visiting.
- He implored his protection, that he might not be cut in pieces and thrown into the fish pond.
- Augustus was so shocked with this.
- He immediately freed all Pollio’s slaves.
- Pollio did not like this1.
- Monarchy had taken place in the reigns of Adrian and Antoninus.
- There were several laws made in favour of slaves, but never one in the times of the Republic.
- Vedius Pollio was a slave who had accidentally broken a platter.
- Slavery may be gradually softened under a monarch, but not entirely abolished.
- Because no one person can have so much authority to immediately remove the most considerable part of the nation’s property.
- This would create a general insurrection.
- Because no one person can have so much authority to immediately remove the most considerable part of the nation’s property.
- In an opulent country, the slaves are always ill-treated because:
- there are more slaves than free men
- the most rigid discipline is needed to keep them in order.
- If a free man were killed in a house, all the slaves [98] were put to death.
- Several authors tell us that in Rome at night, only the cries of slaves were heard, being punished by their masters.
- Ovid tells us that the slave who kept the gate was chained to it.
- The slaves who manured the ground were chained together lest they should run away.
- When an old slave was incapable for work, he was turned out to die on an island, near the city, kept for that purpose.
- Slavery is more tolerable in a barbarous than in a civilized society.
- In an uncultivated country, people cannot keep many slaves because of their poverty.
- Their discipline will not be so rigid as when they are numerous.
- In a barbarous country, the master labours himself as well as the slave.
- Therefore they are more nearly on a level.
- In the early periods of Rome, the slave worked with his master and ate with him.
- The only punishment from misbehaviour was the carrying a cross stick through the [99] town or village.
- In Jamaica and Barbadoes, slaves are numerous and objects of jealousy.
- Punishments there even for slight offences are very shocking.
- But in North America, slaves are treated with the greatest mildness and humanity.
- Slavery is more severe in proportion to society’s culture.
- Freedom and opulence contribute to the misery of the slaves.
- The perfection of freedom is their greatest bondage.
- They are the most numerous part of mankind.
- No human will wish for liberty in a country where slavery is established.
- It is almost needless to prove that slavery is a bad institution even for free men.
- A free man who works for day’s wages will work far more in proportion than a slave in proportion to the expense in maintaining and raising him.
- In ancient Italy, an estate managed by slaves in the most fertile country, yielded to the master only 1/6 of the produce.
- Whereas a landlord even in our barren country receives 1/3 and the tenants live much better.
- Slaves cultivate only for themselves.
- The surplus goes to the master.
- Therefore they are careless about cultivating the ground to the best advantage.
- A free man keeps as his own whatever is above his rent.
- Therefore, has a motive to industry.
- Our colonies would be much better cultivated by free men.
- The state of colliers and salters in Britain proves that slavery is a disadvantage.
- They have privileges which slaves do not.
- Their property after maintenance is their own.
- They cannot be sold but along with the work.
- They enjoy marriage and religion.
- But they do not have liberty altogether.
- It would be advantageous [100] to the master that they were free.
- They have privileges which slaves do not.
- The common wages of:
- a day labourer is between 6 to 8 pence
- a collier is 30 pence.
- If they were free, their prices would fall.
- At Newcastle the wages do not exceed 10 pence or 12 pence.
- Yet colliers often leave our coal-works, where they have 30 pence a day.
- They run to Newcastle where they have liberty though less wages.
- Slavery reduces the number of free men even to a degree beyond imagination for every slave takes up the room of a free man.
- The inequality of fortune initially seemed as a misfortune.
- Laws were made against it.
- The inequality of fortune initially seemed as a misfortune.
- £10 per annum is reckoned the necessary expense of one man.
- A landed gentleman who has £10,000 per annum can maintain 1,000 men.
- At first sight, we see him a monster who eats up the food of so many.
- But if we attend to it, he is really useful.
- He eats or wears no more than the rest.
- £10 serves him too.
- His £10,000 maintains 1,000 people who are employed in refining his £10 by an infinity of ways so as to make it worth the whole.
- This gives room for all kinds of manufactures.
- When slaves are employed to sift this £10 out of the £10,000, one must be a tailor, another a weaver, a third a smith.
- Thus, each takes up a free man’s place.
The abolition of slavery in Western Europe.
- The slaves in Great Britain and the neighbouring countries were called adscripti glebae, those who cultivated the ground.
- They could only be sold along with the land.
- They only had their maintenance for their labour.
- The ground was badly cultivated.
- To remedy this disadvantage, tenants by steelbow were introduced.
- They had no stock themselves.
- The landlord gave them cattle and the implements for ploughing.
- They returned these at the [101] end of the lease.
- At harvest, the crop was equally divided between the landlord and tenant.
- This was the first species of free tenants, who were plainly emancipated villains.
- After a long time, the tenants picked up so much.
- It enabled them to make a bargain with the landlord to give him a certain sum for a lease of so many years.
- Whatever the ground should produce they would take their venture.
- This is plainly an advantage to the landlord.
- The ground every year is better cultivated at no expense to him.
- Half of the product was better to the tenants than any sum they would give.
- By the feudal law, the lord had an absolute sway over his vassals.
- In peace, he was the administrator of justice.
- They were obliged to follow him in war.
- When government became a little better established, the sovereign did all he could to lessen this influence.
- On some occasions this:
- was dangerous to himself
- hindered people from applying to him for justice.
- On some occasions this:
- Therefore, the ancient villains were tenants at will.
- They were obliged to perform certain duties to their master.
- They were entirely at his disposal.
- A law was made removing all their burdens except that of being tenants at will.
- Finally, their privilege was extended and they became copyholders.
- Another cause of the abolition of slavery was the clergy’s influence.
- It was not caused by the spirit of Christianity, for our planters are all Christians.
- Whatever reduced the power of the nobles over their inferiors increased the power of the ecclesiastics.
- The clergy are generally more in favour with the common people than the nobility.
- They would do everything to have their privileges extended, especially as they might have expectations of reaping benefit by it.
- Accordingly, [102] Pope Innocent III encouraged all landlords to emancipate their slaves.
- Thus the clergy’s influence combining with that of the king, hastened the abolition of slavery in the West of Europe.
- In countries where neither the king nor the church were very powerful, slavery still prevails.
- In Bohemia, Hungary, and those countries where the sovereign is elective, and consequently never could have great authority,
- Servitude still remains where the church never had any great influence.
- Because the court is not powerful enough to emancipate the nobility’s slaves.
- On the topic of family members, I will only discuss the following:
- how slaves are acquired
- the state of domestic servants in our own country
- the particular state of families
- Slaves may be acquired five ways.
- By being captives in war.
- If the conqueror does not kill them, he has a right to make them slaves.
- By being children of slaves.
- By being guilty of crimes.
- They becames slaves to the person injured or to the public.
- By being in debt in the ancient state of the Roman Republic.
- If they could not pay their debt, it was thought reasonable they should work for it.
- This still takes place in all countries where slavery is established.
- By selling oneself
- This is a sort of voluntary slavery.
- When a person sells himself for any sum, this very sum becomes the property of his buyer [103].
- But when a person was in debt and obliged to become a slave for it, he would not choose to be his creditor’s slave for fear of abuse.
- He would sell himself to another person, on condition that he would pay his debt.
- Roman citizens were often in debt.
- They became entirely dependent on their superiors.
- The only means of subsistence of many of them was what they received from candidates for their votes.
- This was not enough.
- They often borrowed from the people to whom they gave their votes.
- Those people were ready to lend so that they could secure them entirely to their interest.
- Through this, they could not give their vote to any other person unless he paid what they owed to their creditors.
- Few would be willing to do, since they usually owed more than the value of their votes.
- By being captives in war.
- In the middle age of the Republic, these two last methods of acquiring slaves were prohibited by express laws.
- The first was prohibited by cessio bonorum.
- The latter was prohibited by a law prohibiting any free man to sell himself.
- The slavery in the West Indies took place contrary to law.
- When it was conquered by Spain, Isabella and Ferdinand were at the greatest pains to prevent the Indians from falling into servitude.
- They intended to:
- make settlements,
- trade with them, and
- instruct them.
- But Columbus and Cortez were far from the law.
- They did not obey their orders.
- The two men reduced them to slavery, which instituted itself among them.
The state of servants
- A negro in Great Britain is a free man.
- If your negro servant is stolen, you can have no action for his price, but only for damages sustained by the loss of your servant.
- If a negro is killed, the killer it is guilty of murder.
- But you can oblige your negro servant to return to America and keep him as formerly [104].
- He enjoys freedom, not from Christianity, but from the laws of Great Britain.
- Because there is no such thing as slavery among us.
- The greatest dependents among us are menial servants who are bound from one term to another.
- They have almost the same privileges with their master, liberty, wages, etc.
- The master has a right to correct his servant moderately.
- If he should die under his correction it is not murder, unless it was done:
- with an offensive weapon, or
- with forethought and without provocation.
- If he should die under his correction it is not murder, unless it was done:
- A servant can acquire property for his master:
- when he acts by his express authority, or
- when a tacit consent is implied.
- If a servant buys or sells goods in his master’s name, his master has room for an action in case of non-payment or of non-delivery.
- There is a peculiar connection between master and servant.
- They can be vindicated in many cases where any other person would be found guilty.
- If either master or servant kill any other person in defence of each other, it is justifiable homicide.
- If a master dies before the term, the executors are obliged to:
- pay the servant’s wages and
- maintain him.
- Apprentices are the same way with servants except that the master:
- receives a fee from the apprentice, and
- is obliged to teach him a trade.
- If he refuses to do it, he may be pursued for:
- damages and
- loss of time.
- If he refuses to do it, he may be pursued for:
Chap 4: Guardian and Ward
The particular state of families
- When a father dies leaving his children young, they should be taken care of.
- Even in the times of exposition, when an infant was some time kept, it was thought cruel to put him to death:
- the child was [105] destitute
- there were then no hospitals or places of charity:
- it must therefore be put into the custody of some person.
- The law fixed upon the nearest relation by the father’s side.
- In an early age the maintenance of the child was all that was to be taken care of, for:
- there were no estates to manage, and
- the mother went back to her father’s family.
- In an early age the maintenance of the child was all that was to be taken care of, for:
- This guardianship terminated when the child was about 13 or 14 years old.
- At that age, it could take care of itself.
- But when men came to be possessed of estates, though he might be supposed capable of shifting for himself about that age, yet he could not manage an estate.
- It became necessary to retain him in pupillarity more than 14 years.
- By praetorian law, at that age he was allowed to choose his guardians or curators.
- A curator can do nothing without the pupil’s consent.
- A guardian can act without his consent.
- But he is accountable to his pupil for whatever he does during his minority.
- At first lunatics and idiots were almost the only persons who had guardians.
- It was generally declined because it was disgraceful to have one.
- Afterwards, the law made all acts of the pupil invalid until he was 21, without the consent of his curators.
- The nearest relation by the father’s side is often next heir.
- It was reckoned improper to trust the person of the son with him.
- The English law carried this so far.
- If an estate was left to the son in [his] father’s lifetime, he was not trusted with him.
- By our law, the care of an estate is entrusted to:
- the next heir, as he will probably take best care of it, and
- the heir to a more remote relation, who will take best care of him, as he cannot be benefited by his death.
Chap 5: Domestic Offences and their Punishments
Some offences in families with their peculiar punishments
- Infidelity of the wife to the [106] husband is punished with the greatest ignominy.
- In the husband, it never was punished with death, nor in the woman unless where the greatest jealousy prevails.
- It would be ridiculous in our country to bring a woman to the scaffold for adultery.
- Forcible marriages and rapes are generally punished with death.
- Bigamy is punished capitally as it dishonours the former wife.
- There is the closest connection between persons in a family.
- If the wife kills the husband, it is considered as a sort of petty treason.
- The punishment by the English law is burning alive.
- This is the same punishment if a servant:
- kills his master or
- makes an attempt on him.