Chapter 69

202Clarkson,Essay on Slavery, p. 19,sq.Biot,De l’abolition de l’esclavage ancien en Occident, p. xi. Thérou,Le Christianisme et l’esclavage, p. 147. Martin,Histoire de France jusqu’en1789, iii. 11, n. 2. Balmes,El Protestantismo comparado con el Catolicismo, i. 285. Blakey,op. cit.p. 170. Yanoski,op. cit.p. 75. Cochin,L’abolition de l’esclavage, ii. 349, 458. Littré,Études sur les Barbares et le Moyen Age, p. 230sq.Allard,op. cit.p. 490. Tedeschi,La schiavitù, p. 68. Lecky,History of Rationalism in Europe, ii. 216, 236sqq.Maine,International Law, p. 160. Kidd,Social Evolution, p. 168.

203St. Gregory the Great,Epistolæ, vi. 12 (Migne,Patrologiæ cursus, lxxvii. 803sq.). Gratian,op. cit.ii. 12. 2. 68. Potgiesser,op. cit.iv. 1. 3, p. 666sq.

204Babington,op. cit.p. 180.

205Smaragdus,Via Regia, 30 (d’Achery,Spicilegium, i. 253).

206de Boulainvilliers,Histoire de l’ancien gouvernement de la France, i. 312.

207Speculum Saxonum, iii. 42 (Goldast,Collectio consuetudinum et legum imperialium, p. 158).

208Du Cange,op. cit.iv. 460sqq.Potgiesser,op. cit.iv. 12. 5, p. 751sqq.Muratori,op. cit.i. 249. Robertson,op. cit.i. 323. Milman,op. cit.ii. 51sq.

209Marculfus,Formulæ, ii. 32 (Migne,op. cit.lxxxvii. 747).

210Ibid.ii. 33 (Migne,op. cit.lxxxvii. 748).

211Marculfus,Formulæ, ii. 34 (Migne,op. cit.lxxxvii. 748).

212Babington,op. cit.p. 61, n. 6.

213Formulæ Bignonianæ, 2, ‘Venditio de servo’ (Baluze,Capitularia regum Francorum, ii. 497):—“Domino magnifico fratri illi emptori, ego in Dei nomine ille venditor.”

214Millar,Origin of the Distinction of Ranks, p. 274sq.

215Gratian,op. cit.ii. 12. 2. 54.

216Concilium Agathense,A.D.506, can. 56 (Labbe-Mansi,op. cit.viii. 334).

217Hallam,View of the State of Europe during the Middle Ages(ed. 1837), i. 221.

218Concilium Toletanum IV.A.D.633, can. 67 (Labbe-Mansi,op. cit.x. 635).

219Gratian,op. cit.ii. 12. 2. 58. Potgiesser,op. cit.iv. 2. 4, p. 673.

220Du Cange,op. cit.iv. 1286. Potgiesser,op. cit.i. 1. 6sq., p. 5sqq.Muratori,op. cit.i. 234sqq.Robertson,op. cit.i. 326.

221Concilium Toletanum IX.A.D.655, can. 10 (Labbe-Mansi,op. cit.xi. 29).

The disappearance of mediæval slavery has further, to some extent, been attributed to the efforts of kings to weaken the power of the nobles.222Thus Louis X. and Philip the Long of France issued ordinances declaring that, as all men were by nature free, and as their kingdom was called the kingdom of the Franks, they would have the fact to correspond with the name, and emancipated all persons in the royal domains upon paying a just compensation, as an example for other lords to follow.223Muratori believes that in Italy the wars during the twelfth and following centuries contributed more than anything else to the decline of slavery, as there was a need of soldiers and soldiers must be freemen.224According to others the disappearance of slavery was largely effected by the great famines and epidemics with which Europe was visited during the tenth, eleventh, and twelfthcenturies.225The number of slaves was also considerably reduced by the ancient usage of enslaving prisoners of war being replaced by the more humane practice of accepting ransom for them, which became the general rule in the later part of the Middle Ages, at least in the case of Christian captives.226But it seems that the chief cause of the extinction of slavery in Europe was its transformation into serfdom.

222Robertson,op. cit.i. 47sq.Millar,op. cit.p. 276sqq.

223Decrusy, Isambert, and Jourdan,Recueil général des anciennes lois françaises, iii. 102sqq.

224Muratori,op. cit.i. 234sq.Idem,Rerum Italicarum scriptores, xviii. 268, 292.

225Biot,op. cit.p. 318sqq.Saco,Historia de la esclavitud, iii. 241sqq.

226Ward,Enquiry into the Foundation and History of the Law of Nations in Europe, i. 298sq.Babington,op. cit.p. 147. Ayala,De jure et officiis bellicis, i. 5. 19. In the sixteenth century the statutes of some Italian towns make mention of the sale of slaves, who probably were Turkish captives (Nys,Le droit de la guerre et les précurseurs de Grotius, p. 140).

This transformation has been traced to the diminished supply of slaves, which made it the interest of each family to preserve indefinitely its own hereditary slaves, and to keep up their number by the method of propagation. The existence and physical well-being of the slave became consequently an object of greater value to his master, and the latter found it most profitable to attach his slaves to certain pieces of land.227Moreover, the cultivation of the ground required that the slaves should have a fixed residence in different parts of the master’s estate, and when a slave had thus been for a long time engaged in a particular farm, he was so much the better qualified to continue in the management of it for the future. By degrees he therefore came to be regarded as belonging to the stock upon the ground, and was disposed of as a part of the estate which he had been accustomed to cultivate.228

227Storch,Cours d’économie politique, iv. 260. Ingram,op. cit.p. 72.

228Millar,op. cit.p. 263sqq.

But serfdom itself was merely a transitory condition destined to lead up to a state of entire liberty. As the proprietor of a large estate could not oversee the behaviour of his villeins, scattered over a wide area of land, the only means of exciting their industry would be to offer them a reward for the work which they performed. Thus, besides the ordinary maintenance allottedto them, they frequently obtained a part of the profits, and became capable of having separate property.229In many cases this no doubt enabled the serf to purchase his liberty out of his earnings;230whilst in others the master would have an interest in allowing him to pay a fixed rent and to retain the surplus for himself. The landlord was then freed from the hazard of accidental losses, and obtained not only a certain, but frequently an additional, revenue from his land, owing to the greater exertions of cultivators who worked for their own benefit;231and at the same time the personal subjection of the peasants naturally came to an end, as it was of no consequence to the landlord how they conducted themselves provided that they punctually paid the rents. Nor was there any reason to insist that they should remain in the farm longer than they pleased; for the profits it afforded made them commonly not more willing to leave it than the proprietor was to put them away.232Another factor which led to the disappearance of serfdom was the encouragement which Sovereigns, always jealous of the great lords, gave to the villeins to encroach upon their authority.233We have convincing proof that in England, before the end of Edward III.’s reign, the villeins found themselves sufficiently powerful to protect one another, and to withhold their ancient and accustomed services from their lord.234In Germany, again, the landlords sometimes furnished their villeins with arms to defend the cause of their master, and this undoubtedly tended to their enfranchisement, as persons who are taught to use and allowed to possess weapons will soon makethemselves respected.235A great number of villeins also shook off the fetters of their servitude by fleeing for refuge to some chartered town,236where they became free at once,237or, more commonly, after a certain stipulated period—a year and a day,238or more;239and it seems, besides, that the rapid disappearance of serfdom in the prospering free towns indirectly, by way of example, promoted the enfranchisement of rural serfs.240There are, further, instances of lords liberating their villeins at the intercession of their spiritual confessors, the clergy availing themselves of every opportunity to lessen the formidable power of their great rivals, the temporal nobility.241But the influence which the Church exercised in favour of the enfranchisement of serfs was even less than her share in the abolition of slavery proper.242She represented serfdom as a divine institution,243as a school of humility, as a road to future glory.244She was herself the greatestserf-holder;245and so strenuously did she persist in retaining her villeins, that after Voltaire had raised his powerful outcry in favour of liberty and Louis XVI. himself had been induced to abolish “the right of servitude” in consideration of “the love of humanity,” the Church still refused to emancipate her serfs.246But whilst the cause of freedom owes little to the Christian Church, it owes so much the more to the feelings of humanity and justice in some of her opponents.

229Millar,op. cit.p. 264. Simonde de Sismondi,Histoire des républiques italiennes du moyen âge, xvi. 365sq.Guérard,Cartulaire de l’Abbaye de Saint-Père de Chartres, i. p. xli. Dunham,History of the Germanic Empire, i. 230.

230See Vinogradoff,Villainage in England, p. 87; Pollock and Maitland,History of English Law before the Time of Edward I.i. 36, 427.

231Adam Smith,Wealth of Nations, p. 173. Millar,op. cit.p. 267sqq.Mill,Principles of Political Economy, i. 309, 311. Dunham,op. cit.i. 228sq.On the inefficiency of slave labour, see also Storch,op. cit.iv. 275sqq.

232Millar,op. cit.p. 269sq.

233Adam Smith,Wealth of Nations, p. 173.

234Eden,State of the Poor, i. 30.

235Dunham,op. cit.i. 229.

236Guibertus de Novigento, ‘De vita sua,’ in Bouquet,Rerum Gallicarum et Franciarum scriptores, xii. 257. ‘Fragmentum historicum vitam Ludovici VII. summatim complectens,’ibid.xii. 286. Beaumanoir,op. cit.xlv. 36, vol. ii. 237. Eden,op. cit.i. 30. Laurent,op. cit.vii. 531sq.Saco,op. cit.iii. 252.

237Laurent,op. cit.vii. 532.

238Glanville,Tractates de Legibus et Consuetudinibus Regni Angliæ, v. 5. Bracton,De Legibus et Consuetudinibus Angliæ, fol. 198 b, vol. iii. 292sq.Beaumanoir,op. cit.xlv. 36, vol. ii. 237. Pollock and Maitland,op. cit.i. 429, 648sq.Grimm,Deutsche Rechtsalterthümer, p. 337sq.Laurent,op. cit.vii. 532.

239Laurent,op. cit.vii. 532.

240Ibid.vii. 533sq.

241Thomas Smith,Common-wealth of England, p. 250. Eden,op. cit.i. 10. Sugenheim,Geschichte der Aufhebung der Leibeigenschaft und Hörigkeit in Europa, p. 109.

242Cf.Rivière,op. cit.p. 511. Babington says (op. cit.p. 148sq.) that in the five-hundred pages of Wilkins’Concilia, which comprise the ecclesiastical documents of the British churches in the thirteenth century, we only find the following regulations concerning the unfree population:—that neither freemen nor villeins are to be impeded in making their wills when death approaches; that monks are not to alienate their less useful slaves (famulos); that Jews are not allowed to possess Christian slaves.—It was said that “he puts a disgrace on God who raises a villein above his station” (ibid.p. 150).

243Adalbero,Carmen ad Rotbertum regem Francorum, 291, 292, 297sqq.(Bouquet,op. cit.x. 70):—“Thesaurus, vestis, cunctis sunt pascua servi. Nam valet ingenuus sine servis vivere nullus…. Triplex ergo Dei domus est, quæ creditur una. Nunc orant alii; pugnant; aliique laborant: Quæ tria sunt simul, et scissuram non patiuntur.” St. Bonaventura, quoted by Laurent,op. cit.vii. 522:—“Non solum secundum humanam institutionem, sed etiam secundum divinam dispensationem, inter Christianos sunt domini et servi.”

244Laurent,op. cit.vii. 523.

245Laurent,op. cit.vii. 524.

246Hettner,Geschichte der französischen Literatur im achtzehnten Jahrhundert, p. 169. Babington,op. cit.p. 108. Sugenheim,op. cit.p. 156sqq.Laurent,op. cit.vii. 537sq.

Not long after serfdom had begun to disappear in the most advanced communities of Christendom a new kind of slavery was established in the colonies of European states. It grew up under circumstances particularly favourable to the employment of slaves. Whether slave labour or free labour is more profitable to the employer depends on the wages of the free labourer, and these again depend on the numbers of the labouring population compared with the capital and the land. In the rich and underpeopled soil of the West Indies and in the Southern States of America the balance of the profits between free and slave labour was on the side of slavery. Hence slavery was introduced there, and flourished, and could be abolished only with the greatest difficulty.247

247Mill,Principles of of Political Economy, i. 311.

From a moral point of view negro slavery is interesting chiefly because it existed in the midst of a highly developed Christian civilisation, and nevertheless, at least in the British colonies and the United States, was the most brutal form of slavery ever known. It may be worth while to consider more closely some points of the legislation relating to it.

In America, as elsewhere, the state of slavery was hereditary. The child of a female slave was itself a slave and belonged to the owner of its mother even if its father was a freeman, whereas the child of a free woman wasfree even if its father was a slave.248When the slave-trade was prohibited, heredity remained the only legitimate source of slavery; but even then a freeborn negro was far from safe. In the British colonies and in all the Slave States except one, every negro was presumed to be a slave until he could prove the reverse.249A man who, within the limits of a slave-holding State, could exhibit a person of African extraction in his custody was exempted from all necessity of making proof how he had obtained him or by what authority he claimed him as a slave. Nay more, through the direct action of Congress it became law that persons known to be free should be sold as slaves in order to cover the costs of imprisonment which they had suffered on account of the false suspicion that they were runaway slaves. This law was repeatedly put into effect. “How many crowned despots,” says Professor von Hoist, “can be mentioned in the history of the old world who have done things which compare in accursedness with this law to which the democratic republic gave birth?”250

248Stroud,Laws relating to Slavery in the United States of America, p. 16sqq.Cobb,Inquiry into the Law of Negro Slavery in the United States of America, p. 68. Stephen,Slavery of the British West India Colonies, i. 122.Code Noir, Édit du mois de Mars 1685, art. 13, p. 35sq.; Édit donné au mois de Mars 1724, art. 10, p. 288sq.In Maryland, according to an early enactment, which obtained till the year 1699 or 1700, all the children born of a slave were slaves “as their fathers were” (Stroud,op. cit.p. 14sqq.). In Cuba the nobler parent determined the rank of the offspring (Newman,Anglo-Saxon Abolition of Negro Slavery, p. 17).

249Stephen,op. cit.i. 369sq.Stroud,op. cit.pp. 125, 126, 130. Cobb,op. cit.p. 67. Wheeler,Treatise on the Law of Slavery, p. 5.

250von Holst,Constitutional and Political History of the United States, i. 305.

Slaves were defined as “chattels personal in the hands of their respective owners or possessors, and their executors, administrators, and assigns, to all intents and purposes whatsoever.”251In the British colonies and the American Slave States they were at all times liable to be sold or otherwise alienated at the will of their masters, as absolutely as cattle, or any other personal effects. They werealso liable to be sold by process of law for satisfaction of the debts of a living, or the debts or bequests of a deceased master, at the suit of creditors or legatees. They were transmitted by inheritance or by will to heirs at law or to legatees, and in the distribution of estates they were distributed like other property.252No regard was paid to family ties. Except in Louisiana, where children under ten years of age could not be sold separately from their mothers,253no law existed to prevent the violent separation of parents from their children or from each other.254And what the law did not prevent, the slave-owners did not omit doing; thus Virginia was known as a breeding place out of which the members of one household were sold into every part of the country.255All this, however, holds true of the British colonies and Slave States only. In the Spanish, Portuguese, and French colonies plantation slaves were real estate, attached to the soil they cultivated. They partook therewith of all the restraints upon voluntary alienation to which the possessor of the land was there liable, and they could not be seized or sold by creditors, for satisfaction of the debts of the owner.256As regards the sale of members of the same family the Code Noir expressly says, “Ne pourront être saisis et vendus séparément, le mari et la femme, et leurs enfans impubéres, s’ils sont tous sous la puissance du même Maître.”257A slave could make no contract; he could not even contract marriage, in the juridical sense of the word. The association which took place among slaves and was called marriage was virtually the same as the Romancontubernium, a relation which had no sanctity and to which no civil rights were attached.258The master could wheneverhe liked separate the “husband” and “wife”; he could, if he pleased, commit “adultery” with the “wife,” and was the absolute owner of all the children born by her. A slave had “no more legal authority over his child than a cow has over her calf.” On the other hand, the common rules of sexual morality were not enforced on the slaves. They were not admonished for incontinence, nor punished for adultery, nor prosecuted for bigamy. Incontinence was rather thought a matter of course in the slave. We are told that even in Puritan New England female slaves in ministers’ and magistrates’ families bore children, black or yellow, without marriage, that no one inquired who their fathers were, and that nothing more was thought of it than of the breeding of sheep or swine. And concerning the “slave-quarters” connected with the plantations the universal testimony was that the sexes were there “herded together promiscuously, like beasts.”259

251Brevard,Digest of the Public Statute Law of South-Carolina, p. 229. Prince,Digest of the Laws of Georgia, p. 777. In the FrenchCode Noir(Édit du mois de Mars 1685, art. 44, p. 49; Édit donné au mois de Mars 1724, art. 40, p. 305) slaves are declared to be “meubles.”

252Stephen,op. cit.i. 62. Stroud,op. cit.p. 84. Goodell,American Slave Code in Theory and Practice, p. 63sqq.

253Peirce, Taylor, and King,Consolidation and Revision of the Statutes of the State[Louisiana], pp. 523, 550sq.

254Stephen,op. cit.i. 62sq.Stroud,op. cit.p. 82.

255Pearson,National Life and Character, p. 210.

256Stephen,op. cit.i. 69.

257Code Noir, Édit du mois de Mars 1685, art. 47, p. 51; Édit donné au mois de Mars 1724, art. 43, p. 306.

258Cobb,op. cit.p. 240sqq.Stroud,op. cit.p. 99. Goodell,American Slave Code, p. 105sqq.Wheeler,op. cit.p. 199. According to the Civil Code of Louisiana, “slaves cannot marry without the consent of their masters, and their marriages do not produce any of the civil effects which result from such contract” (Morgan,Civil Code of Louisiana, art. 182, p. 29).

259Goodell,American Slave Code, p. 111. In 1835 the query was presented to a Baptist Association of ministers, “whether, in case of involuntary separation of such a character as to preclude all future intercourse, the parties may be allowed to marry again?” The answer was, “that such separation among persons situated as our slaves are, is civilly a separation by death, and they believe that, in the sight of God, it would be so viewed. To forbid second marriages in such cases would be to expose the parties not only to greater hardships and stronger temptations, but to church censure for actingin obedience to their masters.” Incidentally here the fact leaks out that slave cohabitation is enforced by the authority of the masters for the increase of their human chattels (Goodell,Slavery and Anti-Slavery, p. 185).

Yet though slaves were regarded as chattels, the master could not do with his slave exactly what he pleased. We have noticed that the life of the slave was in some degree, though very insufficiently, protected by law,260and that a master who mutilated his slave was subject to a slight penalty.261The law also took care to prohibit the master from doing things which were considered injurious to the community or the State. There was a great fear of teaching negroes to read and write. William Knox, in a tract addressed to “the venerable Society for propagationof the Gospel in foreign parts” in the year 1768, remarks that “instruction renders them less fit or less willing to labour,” and that, if they were universally taught to read, there would undoubtedly be a general insurrection of the negroes leading to the massacre of their owners.262A similar fear underlies the laws on the subject which we meet with in the codes of some of the Slave States. According to the Negro Act of 1740 for South Carolina, any person who instructed a slave in writing was subject to a fine of one hundred pounds;263but this enactment was later on considered too liberal. A law of 1834 placed under the ban all efforts to teach the coloured race either reading or writing, and the punishment was no longer a pecuniary fine only, but, besides, imprisonment for six months or a shorter time or, if the offender was a free person of colour, whipping not exceeding fifty lashes.264In Georgia a law of 1770, which prohibited the instruction of slaves in reading and writing, was in 1833 followed by an act which extended the prohibition to free persons of colour.265In Louisiana the teaching of slaves was punished with imprisonment for not less than one month nor more than twelve months.266North Carolina allowed slaves to be made acquainted with arithmetical calculations, but sternly interdicted instruction in reading and writing;267whilst Alabama warred with the rudiments of reading, forbidding any coloured persons, bond or free, to be taught not only reading and writing, but spelling.268In all these States the prohibitions referred to the master of the slave as well as to other persons. In Virginia, on the other hand, the master might teach his slave whatever he liked, but others might not.269

260Supra,p. 428sq.

261Supra,p. 517.

262Knox,Three Tracts respecting the Conversion and Instruction of the Free Indians and Negroe Slaves in the Colonies, p. 15sq.

263Brevard,op. cit.ii. 243.

264McCord,Statutes at large of South Carolina, vii. 468.

265Prince,op. cit.pp. 785, 658.

266Peirce, Taylor, and King,op. cit.p. 552.

267Revised Statutes of North Carolina passed by the General Assembly at the Session of1836–7, xxxiv. 74, cxi. 27, vol. i. 209, 578.

268Clay,Digest of the Laws of Alabama, p. 543.

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