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LECTURE XXXII.

OF MASTER AND SERVANT.

THE last relation in domestic life which remains to be 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, namely, from crimes, captivity, and debt. In the Institutes of Justinian, (b) slaves are said to become such in three ways, namely, 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 Blackstone (c) 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 law (d) 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 service as a servant. (e) 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;

(a) Principles of Moral Philosophy, pp. 158, 159.
(b) Inst. 1, 3, 4.
(d) Inst. 1, 3, 2.

(c) Com. vol. i. p. 423.

(e) 1 Blacks. Com. 424.

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. (a) In the case of Somerset, 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. (b) The Scotch lawyers (c) 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. It was held that slavery was 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

(a) Smith v. Gould, 2 Salk. Rep. 666. 2 Lord Raym. 1274. Contra Butts v. Penny, 2 Lev. Rep. 201, and Lord Hardwicke, in Pearne v. Lisle, Amb. Rep. 75. Mr. Justice Best, in Forbes v. Cochrane, 2 Barnew. & Cress. 448, 3 Dowl. & Ryl. 679, 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, he became free. This is the law now 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's Rep. 539, was to the same effect, for it was declared that a state of slavery was a mere municipal regulation, and no nation was bound to recognize the state of slavery as to foreign slaves within its territory.1 (b) Loft's Reports, 1. Harg. State Trials, vol. xi. p. 339. (c) 1 Ersk. Inst. 159. Kames's Principles of Equity, vol. ii. p. 134.

1 No action lies at common law for harboring runaway slaves, or for aiding them in escaping from their owners, and the states have no jurisdiction under the act of congress. Kauffman v. Oliver, 10 Barr's (Penn.) R. 514. Jones v. Vanzandt, 2 McLean's R. 596. The whole subject belongs to congress and the courts of the United States. Prigg v. The Commonwealth of Penn., 16 Peters's R. 539.

one man cannot sell, nor confine and export another, as his property, yet the claim of imported slaves for wages, * 249 * without a special promise, does not seem to receive the same protection and support as that of a freeman. (a) 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, either in England, or in any part of Europe; and it is very generally agreed that the African slave-trade is unjust and cruel. (c)

It is no less true than singular, that personal slavery prevailed with uncommon rigor 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 ancient 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. (d) At Athens, they were treated with more humanity

(a) Alfred v. Marquis of Fitzjames, 3 Esp. Cas. 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, chiefly the more Ancient, pp. 232–241. (c) See infra, p. 254, n. (a)

(d) 1 Mitf. 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 Egina 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 slave just as indispensable, in every well-ordered state, as that of husband and wife. Arist. Pol. b. 1, ch. 1.

than in Thessaly, Crete, Argos, or Sparta; for at Athens the philosophers taught and recommended humanity to slaves as a sure test of 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. (a) In the Roman republic, the practice of predial and domestic slavery was equally countenanced, and still more abused. *250 There were instances of private persons owning singly no less than four thousand slaves; (b) and by the Roman law, slaves were considered in the light of goods and chattels, and could be sold or pawned. They could be tortured, and even put to death, at the discretion of their masters. (c) By a succession of edicts, which humanity, 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. (d)

(a) Potter's Antiq. of Greece, 57-67-72. 3 St. John on the Manners and Customs of Ancient Greece, 18, 19, 22.

(b) 1 Gibbon's Hist. pp. 66-68. Hume, in his Essay on the Populousness of 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 millions 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 slaves to every free person in Italy in the time of the Emperor Claudius. Almost all the agricultural, as well as domestic labor, was performed by slaves, even from the time of Tiberius Gracchus. 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 slave merchants for the Italian market.

(c) Inst. 1, 8, 1. Taylor's Elem. of the Civil Law, p. 429. By the lex 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 the slaves of his household at the time were to be put to death; and Tacitus gives a horrible instance, in the time of Nero, of the application of this atrocious law in the case of the murder of Pedanius 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.

(d) 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 Romans, and the barbarous manners and loss of moral taste and just

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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; (a) 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 Indian slave. No person in England was a villein in the eye of the law, except in relation to his master. As to him quicquid acquiritur servo acquiritur domino. In villenage in gross, all acquisitions of property, real

and personal, made by the villein, belonged to his lord. * 251 To all other persons * he was a freeman, and as against them he had rights of property; and his master, for excessive injuries committed upon the vassal, was answerable at the king's suit. (b) So, also, the life and chastity of the female vassal, even of the lowest degree, were protected, (feebly, prob

feeling, which were the consequence, are strikingly shown and illustrated from passages in the classics, by Mr. Hume, in his very learned Essay on the Populousness of Ancient Nations.

(a) See a picture of the degradation and rigors of personal servitude among the Gothic barbarians of Gaul. Gibbon's Hist. vol. vi. pp. 359-362, 8vo. edit. Robertson's Charles V. vol. i. note 9.

(b) Co. Litt. 116, 117, 119. Villeins, says Lord Coke, 2 Inst. 45, are free against all men, saving their lord. The lord was indictable for maintaining his villein, but the latter was not entitled to his appeal of mayhem, for he could not hold his damages if he received any; and for a similar reason, the villein could not have an appeal of robbery, for all his goods belonged to his lord. Litt. sec. 194. Co. Litt. 123 b. In the Anglo Saxon period, the power of lords over their slaves was not quite absolute. If the master beat out a slave's eye or tooth, the slave recovered his liberty. If he killed him, he paid a fine to the king. Lamb. Arch. de Leg. Auf. p. 17. At the time of the Norman conquest, the greater part of the land in England was cultivated by slaves, and the free tenants were extremely few in comparison. Turner's Hist. of England during the Middle Ages, vol. i. p. 135. The code of the Visigoths in Spain was honorably distinguished from the Salic law and other codes of the barbarians, in the moderation of its provisions respecting slaves. By the Visigothic code, the slave was allowed to acquire property and purchase his freedom, and it provided for his personal security against the extreme violence of his master. See the Fuero Juzgo, as cited by Mr. Prescott, in his History of the Reign of Ferdinand & Isabella, vol. i. Int. p. 35, note.

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