CHAPTER XVIII

SLAVERY

SECTION 1

HISTORICAL IMPORTANCE OF SLAVERY 1

1. Slavery is not, as might be supposed, evidence that culture is lacking, but exhibits considerable economic progress; for in periods in which economic life is but slightly developed, no need of slaves is felt The household is limited in accordance with the needs of the family and the addition of servants would mean only the increase of family cares and would make it necessary to divide the meager proceeds of industry among a greater number of consumers than formerly. It is not until there is a more developed and growing agricultural or industrial life that the need is felt of slaves as workers in agricultural or industrial pursuits. But when once this point is reached, the need of slavery is so strong that the people would risk everything in order to add to their working force in this way. Wars are carried on for the sake of taking slaves, raids are made, or people belonging to some particular class are oppressed, tormented, and driven by various economic abuses into becoming slaves and rendering a slave's obedience and service.

2. However, slavery has still another, a religious significance: the human sacrifice is generally a sacrifice of slaves. Slaves have been kept for the special purpose of being slaughtered as a sacrifice to gods or spirits, walled up when a house was being built, or offered to the gods of the harvest before a new field was planted.

3. Before the rise of technical, especially of industrial arts, slavery was the only means of obtaining a division of labor on a large scale in a uniform undertaking, for works of that kind require distinct subordination, monotonous and steady exertion,

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[Reprinted, by permission, from JOSEF KOHLER, "Philosophy of Law" (Albrecht's trans.), Boston Book Company, 1914 (Philosophy of Law Series, Vol. XII).]

tasks which the workman dislikes, and absolute discipline and order, such as were impossible among free persons in those times. Even the oarsman in the rowing bank could scarcely be a free person; for everywhere that enterprises requiring mass labor were set on foot, slaves could not be dispensed with, since machines were wholly lacking.

4. Hence, no one who looks at the matter entirely from the standpoint of our day, or of human rights, will be able to appreciate slavery in its historical development. Human rights are not advantageous to every development: technical arts must advance, humanity must make progress in industrial life and for centuries this goes on with the sacrifice of human life. The sacrifice to culture is the highest sacrifice that the individual can make, but it is also one that he must make.

5. Slavery may develop into semi-slavery or bondage:

(a) One kind of bondage is pledge service (Pfandlingschaft) in which the debtor works off his debt; as he is only temporarily a slave, his lot is lightened. He is bound to service but is not without rights.

(b) Also in other case, however, experience has taught that a slave will do more if his interest is aroused and he is given a " peculium" which he may use, or own, or partly own. Thus it is in agriculture where the slave is allowed to possess a small tract of land; thus, too, it is in trade and commerce: he has then to pay his lord a certain annual fee.

(c) Certain circumstances lighten the slave's condition:

(aa) The possibility of buying his freedom develops. As soon as the slave appears as so much capital, the interest on which is represented by his annual service, the thought immediately follows that he can substitute, for himself to his master, capital in money the sum with which he purchases his freedom.

(bb) The female slave is often the concubine of her master; she and her offspring therefore attain a better position. The sexual relation here, as everywhere, is connected with strong psychic influence the lord does not want his concubine to become another's slave after his death. Therefore she becomes free when he dies, and her children are, if not entirely free, at least half-free.

(cc) The slave is allowed to have his wife and family. Thus family life develops: the family is not to be separated, its circle shall not be interfered with.

(dd) The house slaves become a part of the household, and the intimacy and confidence that thus grows up between them and

the family make them indispensable; often the family is at the mercy of their loyalty and discretion.

(ee) Slaves even play a political part. They conduct the most important and responsible affairs and thus attain a firm and unshakable position.

(ff) Note should be taken, also, of the Bondo-Recht, that is the competency of the slave to change his master if he wishes.

6. With the coming of semi-slavery the following changes occur: the slaves become free in principle, and the services that they are required to perform take on another aspect. Such services are then no longer borne in the consciousness of bondage, but are regarded as imposed tasks which encumber the slave class and against which class feeling gradually comes to rebel. The place of the agricultural slaves is filled by free peasants, that of the artisan slaves by technical workmen with the cessation of their special duties and liabilities they join the middle class. Work now becomes ennobled.

7. To this appreciation of work the ancients attained only in exceptional cases; this is shown especially in Aristotle's "Politics," who, by the way, had a deep historical comprehension of the whole question of slavery.

He fully recognized that in the industrial life of the ancients slavery was a necessity; and his famous assertion, that if the weaver's shuttle worked of itself, no more slaves would be necessary, is the best explanation of the whole institution. Yet, we must reply to this ancient thinker that physical labor, especially if it is carried out with care, attention, and skill, and if the workman has a psychic interest in the result, so that he works with body and mind, by no means lacks nobility and dignity. Consequently, from our point of view, it is wrong to say that persons who perform physical labor must be without rights, so that they may be regarded only as the organs and tools of their master. Moreover, Aristotle too admits that a distinction must be made. between slavedom (Sklaventum) as a natural institution, and actual slavery, and that it by no means follows that all those persons who were slaves according to the law were also destined by nature to be slaves.

SECTION 2

THEORIES OF SLAVERY 1

The Law of Persons contains but one other chapter which can be usefully cited for our present purpose. The legal rules by which systems of mature jurisprudence regulate the connection of Master and Slave, present no very distinct traces of the original condition common to ancient societies. But there are reasons for this exception. There seems to be something in the institution of Slavery which has at all times either shocked or perplexed mankind, however little habituated to reflection, and however slightly advanced in the cultivation of its moral instincts. The compunction which ancient communities almost unconsciously experienced appears to have always resulted in the adoption of some imaginary principle upon which a defence, or at least a rationale, of slavery could be plausibly founded. Very early in their history the Greeks explained the institution as grounded on the intellectual inferiority of certain races, and their consequent natural aptitude for the servile condition. The Romans, in a spirit equally characteristic, derived it from a supposed agreement between the victor and the vanquished, in which the first stipulated for the perpetual services of his foe, and the other gained in consideration the life which he had legitimately forfeited. Such theories were not only unsound but plainly unequal to the case for which they affected to account. Still they exercised powerful influence in many ways. They satisfied the conscience of the Master. They perpetuated and probably increased the debasement of the Slave. And they naturally tended to put out of sight the relation in which servitude had originally stood to the rest of the domestic system. This relation, though not clearly exhibited, is casually indicated in many parts of primitive law, and more particularly in the typical system - that of ancient Rome.

Much industry and some learning have been bestowed in the United States of America on the question whether the Slave was in the early stages of society a recognised member of the Family. There is a sense in which an affirmative answer must certainly be given. It is clear, from the testimony both of ancient law and of many primeval histories, that the Slave might under certain conditions be made the Heir, or Universal Successor, of the Master,

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[By Sir HENRY S. MAINE. Reprinted from "Ancient Law," by permission of Henry Holt and Company, New York.]

and this significant faculty, as I shall explain in the Chapter on Succession, implies that the Government and representation of the Family might, in a particular state of circumstances, devolve on the bondman. It seems, however, to be assumed in the American arguments on the subject that, if we allow Slavery to have been a primitive Family institution, the acknowledgment is pregnant with an admission of the moral defensibility of Negro-servitude at the present moment. What then is meant by saying that the Slave was originally included in the Family? Not that his situation may not have been the fruit of the coarsest motives which can actuate man. The simple wish to use the bodily powers of another person as a means of ministering to one's own ease or pleasure is doubtless the foundation of Slavery, and as old as human nature. When we speak of the Slave as anciently included in the Family, we intend to assert nothing as to the motives of those who brought him into it or kept him there; we merely imply that the tie which bound him to his master was regarded as one of the same general character with that which united every other member of the group to its chieftain. This consequence is, in fact, carried in the general assertion already made, that the primitive ideas of mankind were unequal to comprehending any basis of the connection inter se of individuals, apart from the relations of family. The Family consisted primarily of those who belonged to it by consanguinity, and next of those who had been engrafted on it by adoption; but there was still a third class of persons who were only joined to it by common subjection to its head, and these were the Slaves. The born and the adopted subjects of the chief were raised above the Slave by the certainty that in the ordinary course of events they would be relieved from bondage and entitled to exercise powers of their own; but that the inferiority of the Slave was not such as to place him outside the pale of the Family, or such as to degrade him to the footing of inanimate property, is clearly proved, I think, by the many traces which remain of his ancient capacity for inheritance in the last resort. It would, of course, be unsafe in the highest degree to hazard conjectures how far the lot of the Slave was mitigated, in the beginnings of society, by having a definite place reserved to him in the empire of the Father. It is, perhaps, more probable that the son was practically assimilated to the Slave, than that the Slave shared any of the tenderness which in later times was shown to the son. But it may be asserted with some confidence of advanced and matured codes that, wherever servitude is sanctioned, the Slave has uni