Chap 3: Master, Servant

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.
  • 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.
  • 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.
  1. 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.
  1. 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • £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.
  • 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.
    1. By being captives in war.
      • If the conqueror does not kill them, he has a right to make them slaves.
    2. By being children of slaves.
    3. By being guilty of crimes.
      1. They becames slaves to the person injured or to the public.
    4. 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.
    5. 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.
  • 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.
  • 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.

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.
  • 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.
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