Second. But slavery is attended with still greater evils than these; fora slave who is a polytheist is properly under the protection of no religion. He has no God any more than liberty and property. The polytheistic religion con sists of a great number of local deities. Every place has its own divinity. The slaves belong not to the country, and therefore its gods are no way concerned about them. Besides, a heathen can never approach a deity empty handed. The slaves had nothing to offer, and therefore could expect no favour from them. Those slaves who were employed about the temples were the only ones who could have any title to 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 to their ignorance. Gamesters and savages are remarkably so. It is then a very great hardship that a slave, who is addicted to superstition from both these causes, should be deprived of that which is so well fitted to soothe the natural feelings of the human breast. The religion therefore which discovered one God who governed all things, would naturally be very acceptable to slaves.
Accordingly we find that the Jewish religion, which, though 96 PART I: JUSTICE well fitted for defending itself, is, of all others, the worst adapted to the making of converts, because they could never be of the stock of Abraham, from whom the Messiah was to come, could not be on a level with the Jews, but only proselytes of the gate, and were obliged to abstain from many kinds of food, with all these disadvantages made great progress among the Roman slaves. When Christianity was introduced, which was attended with none of these disadvantages, it made the most rapid progress among the slaves.
We are apt to imagine that slavery is quite extirpated, because we know nothing of it in this part of the world; but even at present it is almost universal. A small part of the West of Europe is the only portion of the globe that is free from it, and is nothing in comparison with the vast continents where it still prevails. We shall endeavour to show how it was abolished in this quarter, and for what reasons it has continued in other parts, and probably will continue.
It is to be observed that slavery takes place in all societies at their beginning, and proceeds from that tyrannic dis position which may almost be said to be natural to mankind. Whatever form of government was established, it was a part of its constitution that slavery should be continued. In a free government the members would never make a law so hurtful to their interest, as they might think the abolishing of slavery would be l. In [a] monarchy there is a better chance for its being abolished, because one single person is lawgiver, and the law will not extend to him, nor diminish his power, though it may diminish that of his vassals. In a despotic government slaves may be better treated than in a free government, where every law is made by their masters, who will never pass anything prejudicial to them- 1 ' The late resolution of the may satisfy us that their number quakers in Pennsylvania to set cannot be very great.' W. of N- at liberty all their negro slaves bk. iii. ch. ii. vol. i. p. 391.
DOMESTIC LAW 97 selves. A monarch is more ready to be influenced to do something humanely for them. When Augustus was visit ing Vedius Pollio, one of the slaves, who had accidentally broken a platter, threw himself down before Augustus imploring his protection, that he might not be cut in pieces and thrown into the fish pond. Augustus was so shocked with this, that he immediately manumitted all Pollio's slaves, though Pollio, no doubt, relished not the behaviour of his guest1. In the reigns of Adrian and Antoninus, when monarchy had taken place, there were several laws made in favour of slaves, but never one in the times of the Republic. Slavery, then, may be gradually softened under a monarch, but not entirely abolished, be cause no one person whatever can have so much authority as to take away at once the most considerable part of the nation's property, because this would occasion a general insurrection.
In an opulent country the slaves are always ill-treated, because the number of slaves exceeds the number of free men, and it requires the most rigid discipline to keep them in order. If a free man was killed in a house all the slaves 1 This story is to be found in fol. Hamburg, 1750-2), proceeds, Seneca, De t'ra, lib. iii. cap. 40, ' Quod visum etsi indigne fere- and in Dio Cassius, Hist. lib. liv. bat Vedius, quia tamen neque cap. 23, but neither of these propter unicum poculum, re- authorities says that all Pollio's spectu tantae eorum, quae perie- slaves were manumitted. Seneca rant, multitudinis, amplius irasci, says, ' Motus est novitate cru- neque poenas eius rei quam delitatis Caesar et ilium quidem et Augustus fecisset, a servo mitti, crystallina autem omnia exigere poterat, vel invitus con- coram se fringi iussit, com- quievit.' In IV. of N. bk. iv. plerique piscinam.' Dio Cassius chap. vii. pt. 2, vol. ii. p. 168, says nothing of manumission. Vedius is said to have been After describing the destruction commanded ' to emancipate im- of Pollio's valuable goblets, his mediately not only that slave, account of the matter, in the but all the others that belonged words of the Latin translation to him,' so that the mistake probably used by Adam Smith cannot be ascribed to the re- (ed. H. S. Reimarus, 2 vols. porter.
98 PART I: JUSTICE 98 PART I: JUSTICE were put to death l. Several authors tell us that in the night-time at Rome, nothing was to be heard but the cries of slaves whom their masters were punishing 2. Ovid tells us that the slave who kept the gate was chained to it 3, and the slaves who manured the ground were chained together lest they should run away 4; and what was more cruel, when an old slave was incapable for work he was turned out to die on an island, near the city 5, kept for that purpose. Slavery is more tolerable in a barbarous than in a civilized society. In an uncultivated country the poverty of the people makes the number of the slaves anyone can keep quite inconsiderable, and therefore their discipline will not be so rigid as when they are numerous c. Besides, in a barbarous country, the master labours himself as well as the slave, and therefore they are more nearly on a level. In the early periods of Rome the slave worked with his master and ate with him, and the only punishment in case of misbehaviour was the carrying a cross stick through the 1 Sell, 'at Rome'; 'a house' established custom had assigned should be ' his house.' Hume, for them.'
' Of the Populousness of Ancient 3 ' A chained slave for a porter Nations,' Political Discourses, 1752, was usual in Rome, as appears p. 174, quotes a case from from Ovid and other authors:' Tacitus, Ann. lib. xiv. cap. 42 45, Hume, 'Of the Populousness of where four hundred slaves were Ancient Nations,' Political Disput to death. courses, 1752^.164. The reference 2 Seneca, as quoted by Hume, is to Amor. lib. i. cleg. 6, ' lani- ' Of the Populousness of Ancient tor (indignum!) dura religate Nations,' Political Discourses, 1752, catena.'
pp. 164, 165, mentions the case * Heineccius, Antiq. Rom. lib. i.
of a man who turns night into tit. iii. § 8n: 'Sic et ruri quidam day, so that regularly about the vincti faciebant opus; Columella, third hour of the night, his neigh- De re rust. I. ult.; Plin. Hist. nat.
bours hear the noise of whips xviii. 3; Seneca, De benef. vii. 10 '.
and lashes. 'This is not re- 'Manured' is of course used in marked,' says Hume, 'as an in- its old sense of ' cultivated.' stance of cruelty, but only of 5 In the Tiber: Hume, 'Of the disorder, which, even in actions Populousness of Ancient Nations,' the most usual and methodical, Political Discourses, 1752, p. 163. changes the fixed hours that an c Ibid. p. 223.
DOMESTIC LAW 99 town or village. In Jamaica and Barbadoes, where slaves are numerous and objects of jealousy, punishments even for slight offences are very shocking; but in North America they are treated with the greatest mildness and humanity l.
Thus we have shown that slavery is more severe in pro portion to the culture of society. Freedom and opulence contribute to the misery of the slaves. The perfection of freedom is their greatest bondage; and, as they are the most numerous part of mankind, no human2 person will wish for liberty in a country where this institution is established.
It is almost needless to prove that slavery is a bad institu tion even for free men. A free man who works for day's wages will work far more in proportion than a slave in pro portion to the expense that is necessary for maintaining and bringing him up:!. In ancient Italy an estate managed by slaves, in the most fertile country, yielded to the master only one-sixth of the produce, whereas a landlord even in our barren country receives a third, and the tenants live much better. Slaves cultivate only for themselves; the surplus goes to the master, and therefore they are careless about cultivating the ground to the best advantage. A free man keeps as his own whatever is above his rent, and therefore has a motive to industry. Our colonies would be much better cultivated by free men. That slavery is a disadvantage appears from the state of colliers and salters in our own country. They have indeed privileges which slaves have not. Their property after maintenance is their own, they cannot be sold but along with the work, they enjoy marriage and religion, but they have not their liberty altogether, and it would certainly be an advantage 1 Kalm, En Resa til Norra ever have come across a quota- America, 1753-61, torn. ii. (1756), tion from the German version this effect, but his work was 2 Humane, not translated into English till 3 IV. of N. bk. i. ch. viii. vol. i.
100 PART I: JUSTICE to the master that they were free. The common wages of a day labourer is between six and eight pence, that of a collier is half-a-crown. If they were free their prices would fall. At Newcastle the wages exceed not tenpence or a shilling, yet colliers often leave our coal-works, where they have half-a-crown a day, and run there, though they have less wages, where they have liberty.
There is still one inconvenience more that attends slavery, that it diminishes 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 seemed at first a mis fortune, and 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 spends what would maintain a thousand men. At first sight we are apt to con ceive him a monster who eats up the food of so many, but if we attend to it he is really useful, and he eats or wears no more than the rest. £10 serves him too, and his £10,000 maintains a thousand people who are em ployed 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, as it were, this £10 out of the £10,000, one must be a tailor, another a weaver, a third a smith, and thus each takes up a free man's place.
We come now to account for the abolition of slavery in this part of the world. The slaves in this and the neigh bouring countries were those who cultivated the ground, and were what was called adscripti glebae, and could only be sold along with the land. As they had nothing but their maintenance for their labour, the ground was but badly cultivated. To remedy this disadvantage, tenants by steelbow were introduced *. They had no stock them selves, and therefore the landlord gave them cattle and the implements for ploughing, which they resigned at the 1 IV. of N. bk. iii. ch. ii. vol. i. p. 393.
DOMESTIC LAW IOI 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 this custom had continued for a long time the tenants picked up so much as enabled them to make a bargain with the landlord to give him a certain sum for a lease of so many years; and 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, he is at no expense, and the half of the product was better to the tenants than any sum they would give l. By the feudal law the lord had an absolute sway over his vassals. In peace he was the administrator of justice, and 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, which on some occasions was dangerous to himself, and hindered people from applying to him for justice. As therefore the ancient villains were tenants at will, were obliged to perform certain duties to their master, and were entirely at his disposal, a law was made taking away all their burdens but that of being tenants at will, and at last their privilege was extended and they became copyholders.
Another cause of the abolition of slavery was the in fluence of the clergy, but by no means the spirit of Chris tianity, for our planters are all Christians. Whatever diminished the power of the nobles over their inferiors increased the power of the ecclesiastics. As the clergy are generally more in favour with the common people than the nobility, they would do all they could to have their privileges extended, especially as they might have expectations of reaping benefit by it. Accordingly we 1 I.e. the half of the product to the other half, was of more which the tenants used to hand value to them than any money over to the landlord, and now rent they were likely to pay kept for themselves in addition instead of it.
102 PART I: JUSTICE find that Pope Innocent III encouraged all landlords to emancipate their slaves1. Thus the influence of the clergy, combining with that of the king, hastened the abolition of slavery in the West of Europe. Agreeable to this we find that, 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, and besides, where the church never had any great influence, servitude still remains, because the court is by no means powerful enough to emancipate the slaves of the nobility.
To show by what means slaves are acquired, to consider the state of domestic servants in our own country, together with mentioning a certain particular state of families, will be all that is to be said on this head respecting man as a member of a family.
Slaves may be acquired five different ways. First, captives in war, in almost every country, are slaves. If the conqueror does not kill them, he has a right to make them slaves. Secondly, as captives become slaves, having nobody to deliver them, so their children become slaves also. Thirdly, persons guilty of certain crimes were made slaves, sometimes to the person injured, sometimes to the public. Fourthly, debtors in the ancient state of the Roman Republic were made slaves. 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. Fifthly, there is a sort of voluntary slavery when an indigent citizen sells himself to be the slave of another person. When a person sells him self to another for any sum, by the laws of slavery this very sum becomes the property of the person who bought 1 In W. of N. bk. iii. ch. ii. bull for the general emancipation vol. i. p. 393, Alexander III is of slaves, mentioned as the author of a DOMESTIC LAW 103 him. But when a person was in debt and obliged to become a slave for it, he would not perhaps choose to be his creditor's slave for fear of ill-usage, and would therefore sell himself to another person, on condition that he would pay his debt. The citizens of Rome were often in debt, and by that means became entirely dependent upon their superiors. Many of them had no means of subsistence but what they received from candidates for their votes, and, as this was by no means sufficient for that purpose, they often borrowed from them to whom they gave their votes, who were ready enough to lend that they might secure them entirely to their interest. By this means they could not give their vote to any other person unless he paid what they owed to their creditors, which few would be willing to do, as for the most part they 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 by what was called cessio bonorum, and the latter by a law prohibiting any free man to sell himself.
The slavery in the West Indies took place contrary to law. When that country was conquered by Spain, Isabella and Ferdinand were at the greatest pains to prevent the Indians from falling into a state of servitude, their intention being to make settlements, to trade with them, and to instruct them. But Columbus and Cortez were far from the law, and obeyed not their orders, but reduced them to slavery, which in a manner instituted itself among them.
We come now to consider the state of servants. A negro in this country is a [free] man. If you have a negro servant stolen from you, you can have no action for the price, but only for damages sustained by the loss of your servant. In like manner if a negro is killed, the person who does it is guilty of murder; but though a negro servant is entitled to the privileges of a free man while 104 PART I: JUSTICE 104 PART I: JUSTICE here, you can oblige him to return to America and keep him as formerly. It is not from Christianity, but from the lav/s of this country that he enjoys freedom, because there is no such thing as slavery among us.
The greatest dependents among us are menial servants (inter moenia) who are bound from one term to another. They have almost the same privileges with their master, liberty, wages, &c. The master has a right to correct his servant moderately, and if he should die under his cor rection it is not murder, unless it was done with an offensive weapon, or with forethought and without provo cation. A servant can acquire property for his master either 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. As there is a peculiar connexion 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 up the whole of the servant's wages and to maintain him besides.
Apprentices are much in the same way with servants, only with this difference, that the master receives a fee with the apprentice, and is obliged to teach him a trade; and if he refuse to do it he may be pursued for damages and loss of time.
We come now to consider the particular state of families. When a father dies leaving his children young, it is necessary that 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 DOMESTIC LAW 105 destitute, there were then no hospitals or places of charity: it must therefore be put into the custody of some person. The nearest relation by the father's side was he whom the law fixed upon. In an early age the mainten ance 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 thirteen or fourteen years of age, at which time it was capable in that age to shift for 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 be capable of managing an estate. Now it became necessary to retain him in pupil- larity more than fourteen years. By praetorian law, at that age he was allowed to choose his guardians or curators. A curator can do nothing without the consent of the pupil; a guardian can act without his consent, but 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; and, on account of its being disgraceful to have one, it was generally de clined. Afterwards the law made invalid all acts of the pupil, till he was twenty-one, without the consent of his curators. As 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 that 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.
[$ 5. Domestic Offences and their Punishments] We will now mention some offences in families with their peculiar punishments. Infidelity of the wife to the 106 PART I: JUSTICE 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 thought ridiculous in our country to bring a woman to the scaffold for adultery. Forcible marriages and rapes are generally punished with death l. Bigamy, as it dishonours the former wife, is punished capitally 2. As there is the closest connexion betwixt persons in a family, if the wife kills 3 the husband, it is considered as a sort of petty treason, and the punishment by the English law is burning alive4. The same is the punishment if a servant kills his master or makes an attempt upon him 5. Thus we have finished all that is to be said with regard to man, considered as a member of a family.
1 Hawkins, Pleas of the Croivn, History of England, vol. i. p. 506.
bk. i. chs. xli, xlii. 5 ' His' should be ' her,' since '2 Ibid. ch. xliii, under i Jac. 'the same is the punishment' I. cap. n. would of course only be true if 3 MS. reads ' punishes.' the servant was a woman. A 4 Hawkins, P.C. bk. i. ch. xxxii, man-servant's punishment was to bk. ii. ch. xlviii. § 6. This \vas be drawn and hanged (see Haw- nominally the woman's punish- kins, P. C. bk. ii. ch. xlviii. § 5). ment in all cases of treason, but < Or makes an attempt ' is simply the practice was to strangle her erroneous. Hawkins, P. C. bk. i. before burning her. See Lecky, ch. xxxii.
[DIVISION III.] PRIVATE LAW [J i. First way of acquiring Property: Occupation] WE formerly explained the nature of rights, and divided them into natural and acquired. The former need no explanation; the latter are divided into real and personal. Real rights are property, servitude, pledge, and exclusive privilege. We are first to treat of property.
Property is acquired five ways. First, by occupation, or the taking possession of what formerly belonged to nobody. Second, by accession, when a man has a right to one thing in consequence of another, as of a horse's shoes along with the horse. Third, by prescription, which is a right to a thing belonging to another arising from long and uninterrupted possession. Fourth, by suc cession to our ancestors or any other person, whether by a will or without one. Fifth, by voluntary transference, when one man delivers over his right to another.
We shall first treat of occupation, the laws of which vary according to the periods of human society. The four stages of society are hunting, pasturage, farming, and commerce. If a mimhiT <>t" persons were ship wrecked on a desert island their first sustenance would be from the fruits which the soil naturally produced, and the wild beasts which they could kill. As these could not at all times be sufficient, they came at last to tame some of the wild beasts that they might always have them at hand. In process of time even these would 108 PART I: JUSTICE 108 PART I: JUSTICE not be sufficient; and as they saw the earth naturally produce considerable quantities of vegetables of its own accord, they would think of cultivating it so that it might produce more of them. Hence agriculture, which requires a good deal of refinement before it could become the prevailing employment of a country. There is only one exception to this order, to wit, some North American nations cultivate a little piece of ground, though they have no notion of keeping flocks. The age of commerce naturally succeeds that of agriculture. As men could now confine themselves to one species of labour, they would naturally exchange the surplus of their own commodity for that of another of which they stood in need. According to these stages occupa tion must vary. Occupation seems to be well founded when the spectator can go along with my possession of the object, and approve me when I defend my posses sion by force. If I have gathered some wild fruit, it will appear reasonable to the spectator that I should dispose of it as I please.
The first thing that requires notice in occupation among hunters is what constitutes it, and when it begins, whether it be on the discovery of the wild beast or after it is actually in possession. Lawyers have varied on this head, some give a part to the person who has formerly wounded a wild beast, though [he] have given up the chase, and others do not. All agree that it is a breach of property to break in on the chase of a wild beast which another has started, though some are of opinion that if another should wound the beast in its flight he is entitled to a share, as he rendered the taking of it more easy upon the whole l. Among savages property begins and ends with possession, and they seem scarce to have any idea 1 Instit. lib. ii. tit. i. § 13. Cp Government, § 30; Pufendorf, De Hutcheson, Introduction to Moral iure naturae et gentium, lib. iv. cap. Philosophy, p. 154; Locke, Civil vi. § 10.
PRIVATE LAW 109 of anything as their own which is not about their own bodies.