Chapter 39

10Fielding,The Soul of a People, p. 171.

11Lane,Arabian Society in the Middle Ages, p. 18.

12Baudhâyana, i. 10. 19. 3. Leist,Alt-arisches Jus Gentium, p. 305sqq.

13Venedotian Code, ii. 1. 16. According to the ‘Laws of the Brets and Scots,’ the estimate of a married woman is less by a third part than that of her husband, whereas the estimate of an unmarried woman is equal to that of her brother (Innes,Scotland in the Middle Ages, p. 181).

14Grimm,Deutsche Rechtsalterthümer, p. 404sqq.

15This point of view is very conspicuous in the Salic Law (Lex Salica[Herold’s text], 28).

16Wilda,op. cit.p. 571. Keyser,op. cit.ii. pt. ii. 29. Brunner,Deutsche Rechtsgeschichte, ii. 614sq.Pardessus,Loi Salique, p. 662.

17Post,Anfänge des Staats- und Rechtsleben, p. 192.Idem,Studien zur Entwicklungsgeschichte des Familienrechts, p. 119sq.Gibbs, ‘Tribes of Western Washington and North-western Oregon,’ inContributions to North American Ethnology, i. 190. Georgi,Russia, ii. 261; Vámbéry,Türkenvolk, p. 305 (Kirghiz). Decle,Three Years in Savage Africa, p. 487 (Wakamba).

18Schoolcraft,Indian Tribes of the United States, i. 277 (Creeks). Dorsey, ‘Omaha Sociology,’ inAnn. Rep. Bur. Ethn.iii. 370. Woodthorpe, inJour. Anthr. Inst.xxvi. 21 (Shans).

19Post,Studien zur Entwicklungsgeschichte des Familienrechts, p. 119sq.

20Paulitschke,Ethnographie Nordost-Afrikas, p. 263.

21Loskiel,History of the Mission of the United Brethren among the Indians in North America, i. 16.

22Marsden,History of Sumatra, p. 222.

23Emin Pasha in Central Africa, p. 338.

As a husband often has “the power of life and death” over his wife, so we may expect to find, even more often,that a master has the same power over his slave. The latter, as a rule, can hardly count on the support of his family, and when, as is frequently the case, he is a prisoner of war, the right of killing an enemy easily passes into the right of killing the slave. In the literature dealing with the lower races we repeatedly meet with the statement that the owner may kill his slave at pleasure, or that he is not accountable for killing him.24Yet this seems to mean rather that, if he does so, no complaint can be brought against him, or no vengeance taken on him, than that he has an unconditional moral right to put to death a slave whom he no longer cares to keep; we shall see that savage custom very commonly requires that slaves should be treated with kindness by their masters. In many cases the master is expressly denied the right of killing his slave at his own discretion.25Among the Bataks, the owner, though allowed to punish his slave, must take care that the latter does not succumb to the punishment.26Among the Rejangs, if a man kills his slave, he pays half his price as compensation to the feudal chief of the country.27In Madagascar “masters have full power over their slaves, excepting as to life”;28and the same is said of the Tshi-speaking peoples of the Gold Coast.29The Mandingoes allow the owner to do what he likes to a prisoner of war and to a person who has lost his freedom through insolvency, but he is forbidden to kill a house-slave.30Among the Barea and Kunáma, by puttingto death a slave who is a native of the country, the master even exposes himself to the blood-revenge of the family of the slain.31

24Monrad,Bidrag til en Skildring af Guinea-Kysten, p. 42 (Negroes of Accra). Bowdich,Mission to Ashantee, p. 258 (people of Ashanti). Ward,Five Years with the Congo Cannibals, p. 105 (Bolobo). Macdonald,Africana, i. 168 (Eastern Central Africans). Burton,Zanzibar, ii. 95 (Wanika). Cooper,Mishmee Hills, p. 238.Glimpses of the Eastern Archipelago, p. 106 (Highlanders of Palembang). Hale,U.S. Exploring Expedition. Vol. VI. Ethnography and Philology, p. 33 (Maoris). Gibbs,loc. cit.p. 189 (Thlinkets). Steinmetz,Studien, ii. 308sqq.

25Steinmetz,Rechtsverhältnisse von eigeborenen Völkern in Afrika und Ozeanien, p. 43 (Banaka and Bapuku). Mademba,ibid.p. 83 (natives of the Sansanding States). Lang,ibid.p. 241 (Washambala). Desoignies,ibid.p. 278 (Msalala).

26Glimpses of the Eastern Archipelago, p. 114.

27Marsden,op. cit.p. 222.

28Ellis,History of Madagascar, i. 196.

29Ellis,Tshi-speaking Peoples of the Gold Coast, p. 291.

30Post,Afrikanische Jurisprudenz, i. 95.

31Munzinger,Ostafrikanische Studien, p. 484.

The murder of another person’s slave is of course largely regarded as an offence against the property of the owner, but, in many cases at least, it is not exclusively looked upon in this light. Where the master himself is not allowed to kill his slave, the slave possesses the right to live in the full sense of the term. Sometimes there is in this respect little difference between him and a freeman. Among the Beni Amer, whilst the murder of a slave who has been bought is merely compensated for by the payment of the purchase sum, the murder of a slave who belongs to his master by birth is avenged by his relatives, or, if he has none, by the master himself; should the murderer be too high a person, the matter drops, but there is no question of payment in any case.32Where the system of blood-money prevails, the price paid for the life of a slave is less than that paid for the life of a freeman. Among the Kirghiz the former is only half of the latter.33In Axim, on the Gold Coast, according to Bosman, the murderer of a slave was usually fined thirty-six crowns, whilst five hundred crowns were demanded for the murder of a free-born negro.34

32Ibid.p. 309.

33Georgi,op. cit.ii. 261.

34Bosman,New Description of the Coast of Guinea, p. 141sq.

The rule that the life of a slave is held in less estimation than the life of a freeman applies to the nations of archaic culture; yet not even the master is among them in all circumstances allowed to put his slave to death. In ancient Mexico the murder of a slave, though committed by the master, was a capital offence.35In Corea, a slave may not be killed by his owner before the latter has obtained the permission of the board of punishments, or of the high provincial authorities.36According to theChinese Penal Code, a master who, instead of complaining to a magistrate privately, beats to death a slave who has been guilty of theft, adultery, or any other similar crime, shall be punished with one hundred blows. If he beats to death, or intentionally kills, a slave who has committed no crime, he shall be punished with sixty blows and one year’s banishment, and the wife or husband, as also the children, of the deceased slave shall be entitled to their freedom.37Again, a freeman who kills another’s slave shall be strangled.38

35Bancroft,op. cit.ii. 223.

36Rockhill, ‘Notes on some of the Laws, Customs, and Superstitions of Korea,’ inAmerican Anthropologist, iv. 180.Cf.Griffis,Corea, p. 239.

37Ta Tsing Leu Lee, sec. cccxiv. p. 340.

38Ibid.sec. cccxiii. p. 336.

According to Hebrew law, a master who smites his slave so that he dies under his hand, “shall be surely punished”; but if the slave continues to live for a day or two after the assault, the master goes free on the score that the slave is “his money.”39Muhammed strongly enjoined the duty of kindness to slaves; yet, according to Muhammedan law, the master may even kill his own slave with impunity for any offence, and incurs but a slight punishment—as imprisonment for a period at the discretion of the judge—if he kills him wantonly.40The price of blood for a slave is his or her value; but by the Ḥanafee law a man is obnoxious to capital punishment for the murder of another man’s slave.41

39Exodus, xxi. 20sq.

40Lane,Manners and Customs of the Modern Egyptians, p. 115.Idem,Arabian Society in the Middle Ages, p. 251.

41Idem,Modern Egyptians, p. 119.Idem,Arabian Society, p. 18sq.

Among the ancient Teutons the master was irresponsible in the eye of the law as to all dealings between himself and his slave; legally the slave was on a par with the horse and the ox, and to kill him was only to inflict a certain loss upon the owner.42In ancient Wales the position of a slave seems to have been very similar; there was nogalanasfor a bondman, “only payment of his worth to his master, like the worth of a beast.”43Among the Greeks, in the Homeric age, the master evidentlycould punish his slaves with death;44but in later times, at least at Athens, he was obliged to hand over to the magistrate any slave of his who deserved capital punishment.45What happened to a master who killed his own slave we do not know exactly, but at any rate he had to undergo a ceremony of purification.46Plato says in his ‘Laws,’ that if a person kills the slave of another in anger, he shall pay twice the amount of the loss to his owner.47But he adds, “If any one kills a slave who has done no wrong, because he is afraid that he may inform of some base and evil deeds of his own, or for any similar reason, in such a case let him pay the penalty of murder, as he would have done if he had slain a citizen.”48

42Grimm,Deutsche Rechtsalterthümer, p. 342sqq.Brunner,Deutsche Rechtsgeschichte, i. 96. Kemble,Saxons in England, i. 208sqq.Stemann,op. cit.p. 281sqq.Keyser,op. cit.ii. pt. i. 289.

43Dimetian Code, iii. 3. 8.

44Odyssey, iv. 743; xix. 489sq.

45Schmidt,Ethik der alten Griechen, ii. 217. Hermann-Blümner,Lehrbuch der griechischen Privatalterthümer, p. 88, n. 3.

46Plato,Leges, ix. 865, 868. Schmidt,op. cit.ii. 217sq.

47Plato,Leges, ix. 868.

48Ibid.ix. 872.

In Rome, in ancient times, the master had by law the absolute power of life and death over his slaves; and he who killed another man’s slave was not criminally prosecuted, but had merely to compensate the owner for the destruction of his property.49Even during the Empire a slave was counted a thing, not a person; himself incapable of suffering aninjuria, he was viewed as a mechanical medium only, through which an insult could be transmitted to his master.50Yet this doctrine was not rigidly adhered to. After the publication of the Lex Cornelia, the change was introduced that he who killed a slave belonging to somebody else could be punished for murder;51and later on even the master’s power of life and death was restricted by law. Claudius declared that sick slaves who had been exposed by their owners in a languishing condition, and afterwards recovered, should be perfectly free and never more return to their former servitude; moreover, “if any one chose to kill at once, rather than expose, a slave, he should be liable for murder.”52By a constitution of Antoninus Pius he who put his slave to death without a sufficient cause (sine causa) was to be punished equally with him who killed the slave of another.53Hadrian even made an attempt to induce slave-owners to hand over to the authorities slaves who had been guilty of some capital crime, instead of themselves inflicting the punishment on the guilty.54

49Mommsen,Römisches Strafrecht, p. 616.

50Institutiones, iv. 4. 3.

51Gaius,Institutionum juris civilis commentarii, iii. 213.Cf.Mommsen,Römisches Strafrecht, p. 616.

52Suetonius,Claudius, 25.

53Gaius,op. cit.i. 53.Institutiones, i. 8. 2.

54Spartian,Vita Hadriani, 18.Cf.Mommsen,Römisches Strafrecht, p. 617, n. 2.

Faithful to her principle that human life is sacred, the Church made efforts to secure the life of the slave against the violence of the master; but neither the ecclesiastical nor the secular legislation gave him the same protection as was bestowed upon the free member of the Church and State. Various Councils punished the murder of a slave with two years’ excommunication only, if the slave had been killed “sine conscientia judicis”;55and the same punishment was adopted by some Penitentials.56Edgar made the penance last three years, whereas, if a freeman was killed, the penance was of seven years’ duration.57Facts do not justify Mr. Lecky’s statement that, “in the penal system of the Church, the distinction between wrongs done to a freeman, and wrongs done to a slave, which lay at the very root of the whole civil legislation, was repudiated.”58

55Concilium Agathense,A.D.506, canon 62 (Labbe-Mansi,Sacrorum Conciliorum collectio, viii. 335).Concilium Epaonense,A.D.517, canon 34 (ibid.viii. 563).Concilium Wormatiense,A.D.868, canon 38 (ibid.xv. 876).

56Pœnitentiale Cummeani, vi. 29 (Wasserschleben,Bussordungen der abendländischen Kirche, p. 480).Pœnit. Pseudo-Theodori, xxi. 12 (ibid.p. 587).

57Canons enacted under Edgar, Modus imponendi pœnitentiam, 4, 11 (Ancient Laws and Institutes of England, p. 405sq.).

58Lecky,History of European Morals, ii. 66. Mr. Lecky states (ibid.ii. 66sq.) that the Council of Illiberis excluded for ever from the communion a master who killed his slave. I have only been able to find the following enactment made by a Council held at Illiberis in the beginning of the fourth century:—“Si qua domina furore zeli accensa flagris verberaverit ancillam suam, ita ut in tertium diem animam cum cruciatu effundat; eo quod incertum sit, voluntate, an casu occiderit; si voluntate, post septem annos; si casu, post quinquennii tempora, acta legitima pœnitentia, ad communionem placuit admitti” (Concilium Eliberitanum, ch. 5 [Labbe-Mansi,op. cit.ii. 6]).

Beyond a law of Constantine, to the effect that a masterwho put his slave to death in a non-judicial way, was to be punished as a murderer,59and a reiteration of some previous enactments, the Christian emperors seem to have done little to guard the life of the slave. Whilst it was provided that any master who applied to his slave certain atrocious tortures with the object of killing him should be deemed a manslayer, it was emphatically said that no charge whatever should be brought against him if the slave died under moderate punishment, or under any punishment not inflicted with the intention of killing him.60Arcadius and Honorius even passed a law refusing protection to a slave who should fly to a church for refuge from his master;61but this law was, in the West, followed by regulations of an opposite character.62The barbarian invasions certainly did not improve the condition of slaves, and in Teutonic countries it was only by slow degrees that the introduction and spread of a higher civilisation exercised its humanising influence on the relation between master and slave. The Visigothic Code prohibited a person from killing any of his slaves who had committed no offence.63According to the Capitularia, the master had to pay a penalty for causing the death of a guiltless slave, provided that he died at once; but if he survived the injury only a day or two, the master was not punishable for his deed, because the slave was hispecunia.64In a later period any intentional killing of an innocent slave was punished by law, but the law probably remained a dead letter.65In the thirteenth century Beaumanoir, the French jurisconsult, could write:—“Plus cortoise est nostre coustume envers les sers que en autre païs, car li segneur poent penre de lor sers, et à mort et à vie, toutes les foisqu’il lor plest, et tant qu’il lor plet.”66Nay, even in quite modern times, in Christian countries, where negro slavery prevailed as a recognised institution, the life of the slave was only inadequately protected by their laws.

59Codex Theodosianus, ix. 12. 1.

60Ibid.ix. 12. Lecky,History of European Morals, ii. 62sq.

61Codex Theodosianus, ix. 45. 3.

62Babington,The Influence of Christianity in promoting the Abolition of Slavery in Europe, p. 37. Biot,De l’abolition de l’esclavage ancien en Occident, p. 239.

63Lex Wisigothorum, vi. 5. 12.

64Capitularia, vi. 11 (Georgisch,Corpus Juris Germanici antiqui, col. 1513). This law is borrowed fromExodus, xxi. 20sq.

65Grimm,Deutsche Rechtsalterthümer, p. 344sq.Cf.Potgiesser,Commentariijuris Germanici de statu servorum veteri perinde atqve novo, ii. 1. 10, 13, 24; iii. 6 (pp. 308, 309, 311, 312, 321, 633sqq.).

66Beaumanoir,Les coutumes du Beauvoisis, xlv. 36, vol. ii. p. 237.

In most of the British colonies, it was only by force of comparatively recent acts, made for the most part subsequent to the year 1797, that the same punishment was prescribed for the murder of a slave as for the murder of a free person. Prior to this period the former crime was subject only to a small pecuniary penalty, in Barbados not exceeding £15.67In the French colonies, according to the Code Noir, a master who killed his slave should be punished “selon l’atrocité des circonstances.”68In all the North American Slave-States there was a time when the murder of a slave, whether by his master or a third person, was atoned for by a fine. In South Carolina this was the case as late as 1821, and only since then the wilful, malicious, and premeditated killing of a slave, by whomsoever perpetrated, was a capital offence in all the slave-holding States.69But this does not mean that no distinction was made between the killing of a slave and the killing of a freeman. In South Carolina, according to an enactment of 1821, he who killed a slave on a sudden heat of passion was punished simply with a fine of five hundred dollars and imprisonment not exceeding six months.70In the Statutes of Tennessee the law referring to the wilful murder of a slave contained the provision that it should not be extended to “any person killing any slave in the act of resistance to his lawful owner or master, or any slave dying under moderate correction”;71and a very similar provision was made by the laws of Georgia.72In other words, a correction causing the death of the victimwas not necessarily immoderate in the eye of the law. In a still higher degree the life of the slave was endangered by another law, which prevailed universally both in the Slave-States and in the British Colonies. Neither a slave, nor a free negro, nor any descendant of a native of Africa whatever might be the shade of his complexion, could be a witness against a white person, either in a civil or criminal case.73This law placed the slave, who was seldom within the view of more than one white man at a time, entirely at the mercy of this individual, and its consequences were obvious. Speaking of slavery in the United States in 1853, Mr. Goodell remarks:—“Upon the most diligent inquiry and public challenge, for fifteen or twenty years past, not one single case has yet been ascertained in which, either during that time or previously, a master killing his slave, or indeed any other white man, has suffered the penalty of death for the murder of a slave.” Nevertheless, murders of slaves by white men had been notoriously frequent.74

67Stephen,Slavery of the British West India Colonies delineated, i. 36, 38.

68Code Noir, Édit donné au mois de Mars 1724, art. 39, p. 304.

69Brevard,Digest of the Public Statute Law of South Carolina, ii. 240sq.Stroud,Laws relating to Slavery in the United States of America, p. 55sq.

70Stroud,op. cit.p. 64.

71Caruthers and Nicholson,Compilation of the Statutes of Tennessee, p. 677.

72Prince,Digest of the Laws of the State of Georgia, p. 787.

73Brevard,op. cit.ii. 242. Stroud,op. cit.p. 106sq.Stephen,Slavery of the British West India Colonies, i. 166, 174. In the French Colonies, also, slaves could not be legal witnesses, but their testimony might be heard by the judge, merely to serve as a suggestion, or unauthenticated information, which might throw light on the evidence of other witnesses (Code Noir, Édit du mois de Mars 1685, art. 30, p. 44).

74Goodell,American Slave Code in Theory and Practice, p. 209sq.

That the life of a slave is held in so little regard is due to that want of sympathy with his fate which accounts also for his unfree condition, and to the proprietary rights over him which, in consequence, have been granted to his master. For similar reasons the killing of a freeman by a slave, especially if the victim be his owner, is commonly punished more severely than if the same act were done by a free person. The less the sympathy felt for an individual, the more intense is the resentment which he excites by offensive behaviour. According to the Chinese Penal Code, a slave who designedly kills, or strikes so as to kill, his master, shall suffer death “by a slow and painful execution.”75Plato says that, if a slave voluntarily murders a freeman,the public executioner shall lead him in the direction of the sepulchre of the dead man, to a place whence he can see the tomb, and after inflicting upon him as many stripes as the complainant shall order, put the murderer, if he survives the scourging, to death.76Though the slave has committed the act in a fit of passion, the relatives of the deceased shall nevertheless be under an obligation to kill him, and this may be done in any manner they please;77nay, even in self-defence a slave is not allowed to kill a freeman, any more than a son is allowed to kill his father.78At Rome, also, a slave was more heavily punished for the commission of homicide than a freeman.79Says the ancient jurist, “Maiores nostri in omni supplicio severius servos quam liberos famosos quam integræ famæ homines punierunt.”80

75Ta Tsing Leu Lee, sec. cccxiv. p. 338.

76Plato,Leges, ix. 872.

77Ibid.ix. 868.

78Ibid.ix. 869.

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