« ForrigeFortsett »
OF MASTER AND SERVANT.
The last relation in domestic life, which remains tobe examined, is that of master and servant. The several kinds of persons who come within the description of servants may be subdivided into (1) slaves, (2) hired servants, and (3) apprentices.
I. Of slaves.
Slavery, according to Mr. Paley,a may, consistently with the law of nature, arise from three causes, viz: from crimes, captivity, and debt. In the Institutes of Justinian,1' slaves are said to become such in three ways, viz: by birth, when the mother was a slave; by captivity in war; and by the voluntary sale of himself as a slave, by a freeman above the age of twenty, for the sake of sharing the price. Sir William Blackstonec examines these causes of slavery, by the civil law, and shows them all to rest on unsound foundations; and he insists, that a state of slavery is repugnant to reason, and the principles of natural law. The civil law1 admitted it to be contrary to natural right, though it was conformable to the usage of nations. The law of England will not endure the existence of slavery within the realm of England. The instant the slave touches the soil, he becomes free, so as to be entitled to be protected in the enjoyment of his person and property, though he may still continue bound to ser
* Principles of Moral Philosophy, p. 158, 159.
» Inst. 1. 3. 4.
• Com. vol. i. p. 423.
J Inst. 1. 3.2.
vice as a servant.* There has been much dispute in the English books, whether trover would lie for a negro slave; and the better opinion is, that it will not lie, because the owner has not an absolute property in the negro; and by the common law, it was said, one man could not have a property in another, for men were not the subject of property.b In the case of Somersett, in 1772, who was a negro slave, carried by his master from America to England, and there confined, in order to be sent to the West Indies, he was discharged by the K. B. upon habeas corpus, after a very elaborate discussion, and upon the ground that slavery did not and could not exist in England, under the English law.0 The Scotch lawyers* mention the case of Knight, a negro slave, brought from the West Indies to Scotland, by his master, in 1773; and as the slave refused to continue in his service, he applied to the courts in Scotland for assistance, to compel his slave to return to him. It was held, that slavery was
• 1 Blacks. Com. 424.
b Smith T. Gould, 2 Salk. Rep. 6GG. 2 Lord Raym. 1274. Contra Butts T. Penny, 2 Lev. Rep. 210, and Lord Hardwicke, in Pearne Lisle, Amb. Rep. 75. Mr. Justice Best, in Forbes v. Cochrane, 2 Barnw. <J - Cress. 448, 3 Dowl 4} Ryl. 779. S. C, said, that the judges were above the age in which they lived and stood upon the high ground of natural right, when they declared, that in England human beings could not be the subject matter of property. He insisted, that the moment a slave put his foot on board a British man-of-war, out of the waters of colonial jurisdiction, hs became free. This is the law uow in France, and as soon as the slave lands on the French soil he is free. The decision in the case last mentioned was, that if a slave from a slave-holding state or country, gets out of the territory and under the protection of British jurisdiction, without any wrongful act done by the party giving that protection, he becomes free, and the English law protects him from being reclaimed. The doctrine of the supreme court of the United States, in Prigg v. The Commonwealth of Pennsylvania, 16 Peters' Rep. 539, was to the same effect, for it was declared that a state of slavery was a mere municipal regulation, and no natiouw as bound to recognize the state of slavery as to foreign slaves within its territory.
< Loft's Reports, 1. Harg. State Trials, vol. ri. p. 339.
« 1 Ersk Inst. 159. Kames' Principles of Equity, vol. ii. p. 134.
not recognized by the law of Scotland, and that the claim of the master to the perpetual service of the negro, was inadmissible, for the law of Jamaica did not apply to Scotland, and the master's claim was consequently repelled by the sheriff's court, and by the court of session.
But though personal slavery be unknown in England, so that one man cannot sell, nor confine and export another, as his property, yet the claim of imported slaves for wages, *without a special promise, does *249 not seem to receive the same protection and support as that of freeman.11 Mr. Barrington, who has given a very strong picture of the degradation and oppression of the tenants, under the English tenure of pure villenage,b is of opinion, that predial servitude really existed in England, so late as the reign of Elizabeth; and that the observation of Lilburn, that the air of England was, at that time, too pure for a slave to breathe in was not true in point of fact. Be that as it may, there is no such thing now as the admission of slaves or slavery, in the sense of the civil law, or of the laws and usages in the West Indies, cither in England, or in any part of Europe; and it is very generally agreed, that the African slave trade is unjust and cruel.0
It is no less true than singular, that personal slavery prevailed with uncommon rigour in the free states of antiquity; and it cannot but diminish very considerably our sympathy with their spirit, and our reverence for their institutions. A vast majority of the people of an
• Alfred v. Marquis of Fitz James, 3 Esp. Cos. 3. The King v. The Inhabitants of Thames Ditton, 4 Doug. Rep. 300. Where a West India slave accompanied her master to England, and voluntarily returned back to the West Indies, it was held, that the residence in England did not finally emancipate her, and she became a slave on her return, though no coercion could be exercised over her while in England. The Slave Grace, 2 Hagg. Adm. Rep. 94.
b Observations on the Statutes, chiefiy the more ancient, p. 232—241.
• See infra, p. 254, n. a.
Vol. II. 23
cient Greece were in a state of absolute and severe slavery. The disproportion between freemen and slaves, was nearly in the ratio of thirty thousand to four hundred thousand.* At Athens they were treated with more humanity than in Thessaly, Crete, Argos, or Sparta; for at Athens the philosophers taught and recommended humanity to slaves, as a sure test to virtue. They were entitled to sue their master for excessive ill-usage, and compel him to sell them; and they had also the privilege of purchasing their freedom.b In the Roman republic, the practice of predial and domestic slavery *250 was equally *countenanced, and still more abused.
There were instances of private persons owning singly no less than four thousand slaves;c and by the Roman law, slaves were considered in the light of goods and chattels, and could be sold or pawned. They could
* 1 Milf. Hist. 355. A small aristocracy governed Attica, while the soil was cultivated by a working class of 400,000 slaves, and a similar disproportion existed throughout Greece. The Island of JSgina is stated to have held at one time 470,000 slaves, a large proportion of whom were agricultural serfs. The slave population of Corinth, in her greatest prosperity, was rated at 460,000 slaves. According to a learned article on " the democracy of Athens," in the New-York Review for July, 1840, the whole number of slaves in Attica was about 365,000 to 95,000 citizens, and 45,000 resident foreigners. Even Aristotle considered the relation of master and tlave, just as indispensable in every well-ordered state, as that of husband and wife. Arist. Pol. b. 1. ch. 1.
» Potter's Antiq. of Greece, 57—67—72. 3 St. John on the Manners and Customs of Ancient Greece, 18. 19. 22.
e 1 Gibbon's Hist. p. 66—68. Hume, in his Essay on the Populousncss vf Ancient Nations, says, that some great men among the Romans possessed to the number of 10,000 slaves. In the Augustan age one half of the population of the Roman world (and the whole population was estimated at 120 million of souls) were slaves. 1 Gibbon's Hist. 68. Mr. Blair, in his Inquiry into the State of Slavery among the Romans, (1833,) assigns as many as three <laves to every free person in Italy in the time of the Emperor Claudins. Almost all the agricultural, as well as domestic labour, was performed by slaves, oven from the time of Tiberins Gracchas. Plutarch's Life of T. Gracchus. Hooke's Roman History, b. 6. ch. 7. Barbarian captives taken in war, were considered slaves and purchased by *lave merchants for the Italian market.
be tortured, and even put to death, at the discretion of their masters.11 By a succession of edicts, which huma-, nity, reason and policy dictated, and which were enacted by Claudius, Hadrian, and Antoninus Pius, the jurisdiction of life and death over slaves was taken from their masters, and referred to the magistrate; and the Ergastula, or dungeons of cruelty, were abolished.1"
The personal servitude which grew out of the abuses of the feudal system, and to which the Germans had been accustomed, even in their primitive settlements, was exceedingly grievous;" but it is not supposed to have equalled, in severity or degradation, the domestic slavery of the ancients, or among the European colonies on this side of the Atlantic. The feudal villein of the lowest order was unprotected in his property, as against seizure by his master, and was subjected to the most ignoble services; but his circumstances distinguished him materially from the Greek, Roman, or West India slave. No person, in England, was a villein in the eye of the law, except in relation to his master. As to him quicquid ac
• Inst. 1. 8. I. Taylor's Elem. of the Civil Law, p. 429. By the lea Aquilia, passed soon after the era of the twelve tables, the killing of a slave by a third person, was put upon the same ground as the killing of a quadruped, and a pecuniary recompense was to be made to the owner. When a master was murdered by one of his domestic slaves, all tho slaver of his household at the time were to be put to death; and Tacitus gives a horrible instance, in tho time of Nero, of the application of this atrocious law in the case of the murder of Pedauins Secundus, a man of consular rank, and who possessed 400 domestic slaves, who were all put to death, and with the approbation of the senate. Tacit. Ann. lib. 14. sec. 42—45. For the Roman law, see ibid. 13. 32.
b 1 Gibbon, ubi supra, p. 65. Inst. 1. 8. 2. Taylor's Elem. of the Civil Law, 433—435. The horrible cruelties inflicted upon the slaves, in ancient times, and particularly by the Romaus, and the barbarous manners, and loss of moral taste and just feeling, which were the consequence, are strikingly shown and illustrated from passages in the classies, by Mr. Hume, in his very learned Essay on the Populousness of Ancient Nations.
• See a picture of the degradation and rigours of personal servitude among the Gothic barbarians of Gaul. Gibbon's Hist. vol. vi. p. 359—362, 8vo. edit. Robertson's Charles V., vol. i. note 9.