SPIRIT OF THE LAWS
by the Baron de Montesquieu
Book Fifteen Translated by Thomas Nugent (1755)
Book XV
In What Manner the Laws of Civil Slavery Relate to the Nature of the Climate1. Of civil Slavery. Slavery, properly so called, is the establishment of a right which gives to one man such a power over another as renders him absolute master of his life and fortune. The state of slavery is in its own nature bad. It is neither useful to the master nor to the slave; not to the slave, because he can do nothing through a motive of virtue; nor to the master, because by having an unlimited authority over his slaves he insensibly accustoms himself to the want of all moral virtues, and thence becomes fierce, hasty, severe, choleric, voluptuous, and cruel.
In despotic countries, where they are already in a state of political servitude, civil slavery is more tolerable than in other governments. Every one ought to be satisfied in those countries with necessaries and life. Hence the condition of a slave is hardly more burdensome than that of a subject.
But in a monarchical government, where it is of the utmost importance that human nature should not be debased or dispirited, there ought to be no slavery. In democracies, where they are all upon equality; and in aristocracies, where the laws ought to use their utmost endeavours to procure as great an equality as the nature of the government will permit, slavery is contrary to the spirit of the constitution: it only contributes to give a power and luxury to the citizens which they ought not to have.
2. Origin of the Right of Slavery among the Roman Civilians. One would never have imagined that slavery should owe its birth to pity, and that this should have been excited in three different ways.1
The law of nations to prevent prisoners from being put to death has allowed them to be made slaves. The civil law of the Romans empowered debtors, who were subject to be ill-used by their creditors, to sell themselves. And the law of nature requires that children whom a father in a state of servitude is no longer able to maintain should be reduced to the same state as the father.
These reasons of the civilians are all false. It is false that killing in war is lawful, unless in a case of absolute necessity: but when a man has made another his slave, he cannot be said to have been under a necessity of taking away his life, since he actually did not take it away. War gives no other right over prisoners than to disable them from doing any further harm by securing their persons. All nations2 concur in detesting the murdering of prisoners in cold blood.
Neither is it true that a freeman can sell himself. Sale implies a price; now when a person sells himself, his whole substance immediately devolves to his master; the master, therefore, in that case, gives nothing, and the slave receives nothing. You will say he has a peculium. But this peculium goes along with his person. If it is not lawful for a man to kill himself because he robs his country of his person, for the same reason he is not allowed to barter his freedom. The freedom of every citizen constitutes a part of the public liberty, and in a democratic state is even a part of the sovereignty. To sell one's freedom3 is so repugnant to all reason as can scarcely be supposed in any man. If liberty may be rated with respect to the buyer, it is beyond all price to the seller. The civil law, which authorises a division of goods among men, cannot be thought to rank among such goods a part of the men who were to make this division. The same law annuls all iniquitous contracts; surely then it affords redress in a contract where the grievance is most enormous.
The third way is birth, which falls with the two former; for if a man could not sell himself, much less could he sell an unborn infant. If a prisoner of war is not to be reduced to slavery, much less are his children.
The lawfulness of putting a malefactor to death arises from this circumstance: the law by which he is punished was made for his security. A murderer, for instance, has enjoyed the benefit of the very law which condemns him; it has been a continual protection to him; he cannot, therefore, object to it. But it is not so with the slave. The law of slavery can never be beneficial to him; it is in all cases against him, without ever being for his advantage; and therefore this law is contrary to the fundamental principle of all societies.
If it be pretended that it has been beneficial to him, as his master has provided for his subsistence, slavery, at this rate, should be limited to those who are incapable of earning their livelihood. But who will take up with such slaves? As to infants, nature, who has supplied their mothers with milk, had provided for their sustenance; and the remainder of their childhood approaches so near the age in which they are most capable of being of service that he who supports them cannot be said to give them an equivalent which can entitle him to be their master.
Nor is slavery less opposed to the civil law than to that of nature. What civil law can restrain a slave from running away, since he is not a member of society, and consequently has no interest in any civil institutions? He can be retained only by a family law, that is, by the master's authority.
3. Another Origin of the Right of Slavery. I would as soon say that the right of slavery proceeds from the contempt of one nation for another, founded on a difference in customs.
Lopez de Gama4 relates that the Spaniards found near St. Martha several basketsful of crabs, snails, grasshoppers, and locusts, which proved to be the ordinary provision of the natives. This the conquerors turned to a heavy charge against the conquered. The author owns that this, with their smoking and trimming their beards in a different manner, gave rise to the law by which the Americans became slaves to the Spaniards.
Knowledge humanises mankind, and reason inclines to mildness; but prejudices eradicate every tender disposition.
4. Another Origin of the Right of Slavery. I would as soon say that religion gives its professors a right to enslave those who dissent from it, in order to render its propagation more easy.
This was the notion that encouraged the ravagers of America in their iniquity.5 Under the influence of this idea they founded their right of enslaving so many nations; for these robbers, who would absolutely be both robbers and Christians, were superlatively devout.
Louis XII6 was extremely uneasy at a law by which all the negroes of his colonies were to be made slaves; but it being strongly urged to him as the readiest means for their conversion, he acquiesced without further scruple.
5. Of the Slavery of the Negroes. Were I to vindicate our right to make slaves of the negroes, these should be my arguments:
The Europeans, having extirpated the Americans, were obliged to make slaves of the Africans, for clearing such vast tracts of land.
Sugar would be too dear if the plants which produce it were cultivated by any other than slaves.
These creatures are all over black, and with such a flat nose that they can scarcely be pitied.
It is hardly to be believed that God, who is a wise Being, should place a soul, especially a good soul, in such a black ugly body.
It is so natural to look upon colour as the criterion of human nature, that the Asiatics, among whom eunuchs are employed, always deprive the blacks of their resemblance to us by a more opprobrious distinction.
The colour of the skin may be determined by that of the hair, which, among the Egyptians, the best philosophers in the world, was of such importance that they put to death all the red-haired men who fell into their hands.
The negroes prefer a glass necklace to that gold which polite nations so highly value. Can there be a greater proof of their wanting common sense?
It is impossible for us to suppose these creatures to be men, because, allowing them to be men, a suspicion would follow that we ourselves are not Christians.
Weak minds exaggerate too much the wrong done to the Africans. For were the case as they state it, would the European powers, who make so many needless conventions among themselves, have failed to enter into a general one, in behalf of humanity and compassion?
6. The true Origin of the Right of Slavery. It is time to inquire into the true origin of the right of slavery. It ought to be founded on the nature of things; let us see if there be any cases where it can be derived thence.
In all despotic governments people make no difficulty in selling themselves; the political slavery in some measure annihilates the civil liberty.
According to Mr. Perry,7 the Muscovites sell themselves very readily: their reason for it is evident; their liberty is not worth keeping.
At Achim every one is for selling himself. Some of the chief lords8 have not less than a thousand slaves, all principal merchants, who have a great number of slaves themselves, and these also are not without their slaves. Their masters are their heirs, and put them into trade. In those states, the freemen being overpowered by the government, have no better resource than that of making themselves slaves to the tyrants in office.
This is the true and rational origin of that mild law of slavery which obtains in some countries: and mild it ought to be, as founded on the free choice a man makes of a master, for his own benefit; which forms a mutual convention between the two parties.
7. Another Origin of the Right of Slavery. There is another origin of the right of slavery, and even of the most cruel slavery which is to be seen among men.
There are countries where the excess of heat enervates the body, and renders men so slothful and dispirited that nothing but the fear of chastisement can oblige them to perform any laborious duty: slavery is there more reconcilable to reason; and the master being as lazy with respect to his sovereign as his slave is with regard to him, this adds a political to a civil slavery.
Aristotle9 endeavours to prove that there are natural slaves; but what he says is far from proving it. If there be any such, I believe they are those of whom I have been speaking.
But as all men are born equal, slavery must be accounted unnatural, though in some countries it be founded on natural reason; and a wide difference ought to be made between such countries, and those in which even natural reason rejects it, as in Europe, where it has been so happily abolished.
Plutarch, in the Life of Numa, says that in Saturn's time there was neither slave nor master. Christianity has restored that age in our climates.
8. Inutility of Slavery among us. Natural slavery, then, is to be limited to some particular parts of the world. In all other countries, even the most servile drudgeries may be performed by freemen. Experience verifies my assertion. Before Christianity had abolished civil slavery in Europe, working in the mines was judged too toilsome for any but slaves or malefactors: at present there are men employed in them who are known to live comfortably.10 The magistrates have, by some small privileges, encouraged this profession: to an increase of labour they have joined an increase of gain; and have gone so far as to make those people better pleased with their condition than with any other which they could have embraced.
No labour is so heavy but it may be brought to a level with the workman's strength, when regulated by equity, and not by avarice. The violent fatigues which slaves are made to undergo in other parts may be supplied by a skilful use of ingenious machines. The Turkish mines in the Bannat of Temeswær, though richer than those of Hungary, did not yield so much; because the working of them depended entirely on the strength of their slaves.
I know not whether this article be dictated by my understanding or by my heart. Possibly there is not that climate upon earth where the most laborious services might not with proper encouragement be performed by freemen. Bad laws having made lazy men, they have been reduced to slavery because of their laziness.
9. Several Kinds of Slavery. Slavery is of two kinds, real and personal. The real annexes the slave to the land, which Tacitus makes11 the condition of slaves among the Germans. They were not employed in the family: a stated tribute of corn, cattle, or other movables, paid to their master, was the whole of their servitude. And such a servitude still continues in Hungary, Bohemia, and several parts of Lower Germany.
Personal slavery consists in domestic services, and relates more to the master's person.
The worst degree of slavery is when it is at once both real and personal, as that of the Helotes among the Lacedæmonians. They underwent the fatigues of the field, and suffered all manner of insults at home. This helotism is contrary to the nature of things. Real slavery is to be found only among nations remarkable for their simplicity of life:12 all family business being done by the wives and children. Personal slavery is peculiar to voluptuous nations; luxury requiring the service of slaves in the house. But helotism joins in the same person the slavery established by voluptuous nations and that of the most simple.
10. Regulations necessary in respect to Slavery. But of whatsoever kind the slavery be, the civil laws should endeavour on the one hand to abolish the abuses of it, and on the other to guard against its dangers.
11. Abuses of Slavery. In Mahometan states,13 not only the life and goods of female slaves, but also what is called their virtue or honour, are at their master's disposal. One of the misfortunes of those countries is that the greatest part of the nation are born only to be subservient to the pleasures of the other. This servitude is alleviated by the laziness in which such slaves spend their days; which is an additional disadvantage to the state.
It is this indolence which renders the eastern seraglios so delightful to those very persons whom they were made to confine.14 People who dread nothing but labour may imagine themselves happy in those places of indolence and ease. But this shows how contrary they are to the very intent of the institution of slavery.
Reason requires that the master's power should not extend to what does not appertain to his service: slavery should be calculated for utility, and not for pleasure. The laws of chastity arise from those of nature, and ought in all nations to be respected.
If a law which preserves the chastity of slaves be good in those states where an arbitrary power bears down all before it, how much more will it be so in monarchies, and how much more still in republics?
The law of the Lombards15 has a regulation which ought to be adopted by all governments. "If a master debauches his slave's wife, the slave and his wife shall be restored to their freedom." An admirable expedient, which, without severity, lays a powerful restraint on the incontinence of masters!
The Romans seem to have erred on this head. They allowed an unlimited scope to the master's lusts, and, in some measure, denied their slaves the privilege of marrying. It is true, they were the lowest part of the nation; yet there should have been some care taken of their morals, especially as in prohibiting their marriage they corrupted the morals of the citizens.
12. Danger from the Multitude of Slaves. The multitude of slaves has different effects in different governments. It is no grievance in a despotic state, where the political servitude of the whole body takes away the sense of civil slavery. Those who are called freedmen in reality are little more so than they who do not come within that class; and as the latter, in quality of eunuchs, freedmen, or slaves, have generally the management of all affairs, the condition of a freedman and that of a slave are very nearly allied. This makes it therefore almost a matter of indifference whether in such states the slaves be few or numerous.
But in moderate governments it is a point of the highest importance that there should not be a great number of slaves. The political liberty of those states adds to the value of civil liberty; and he who is deprived of the latter is also bereft of the former. He sees the happiness of a society, of which he is not so much as a member; he sees the security of others fenced by laws, himself without any protection. He perceives that his master has a soul, capable of enlarging itself: while his own labours under a continual depression. Nothing more assimilates a man to a beast than living among freedmen, himself a slave. Such people as these are natural enemies of society; and their number must be dangerous.
It is not therefore to be wondered at that moderate governments have been so frequently disturbed by the revolts of slaves, and that this so seldom happens in despotic states.16
13. Of armed Slaves. The danger of arming slaves is not so great in monarchies as in republics. In the former, a warlike people and a body of nobility are a sufficient check upon these armed slaves; whereas the pacific members of a republic would have a hard task to quell a set of men who, having offensive weapons in their hands, would find themselves a match for the citizens.
The Goths, who conquered Spain, spread themselves over the country, and soon became very weak. They made three important regulations: they abolished an ancient custom which prohibited intermarriages with the Romans;17 they enacted that all the freedmen18 belonging to the Fiscus should serve in war, under penalty of being reduced to slavery; and they ordained that each Goth should arm and bring into the field the tenth part of his slaves.19 This was but a small proportion: besides, these slaves thus carried to the field did not form a separate body; they were in the army, and might be said to continue in the family.
14. The same Subject continued. When a whole nation is of a martial temper, the slaves in arms are less to be feared.
By a law of the Alemans, a slave who had committed a clandestine theft20 was liable to the same punishment as a freedman in the like case; but if he was found guilty of an open robbery,21 he was only bound to restore the things so taken. Among the Alemans, courage and intrepidity extenuated the guilt of an action. They employed their slaves in their wars. Most republics have been attentive to dispirit their slaves; but the Alemans, relying on themselves and being always armed, were so far from fearing theirs that they were rather for augmenting their courage; they were the instruments either of their depredations or of their glory.
15. Precautions to be used in Moderate Governments. Lenity and humane treatment may prevent the dangers to be apprehended from the multitude of slaves in a moderate government. Men grow reconciled to everything, and even to servitude, if not aggravated by the severity of the master. The Athenians treated their slaves with great lenity; and this secured that state from the commotions raised by the slaves among the austere Lacedæmonians.
It does not appear that the primitive Romans met with any trouble from their slaves. Those civil broils which have been compared to the Punic wars were the consequence of their having divested themselves of all humanity towards their slaves.22
A frugal and laborious people generally treat their slaves more kindly than those who are above labour. The primitive Romans used to live, work, and eat with their slaves; in short, they behaved towards them with justice and humanity. The greatest punishment they made them suffer was to make them pass before their neighbours with a forked piece of wood on their backs. Their manners were sufficient to secure the fidelity of their slaves; so that there was no necessity for laws.
But when the Romans aggrandised themselves; when their slaves were no longer the companions of their labour, but the instruments of their luxury and pride; as they then wanted morals, they had need of laws. It was even necessary for these laws to be of the most terrible kind, in order to establish the safety of those cruel masters who lived with their slaves as in the midst of enemies.
They made the Sillanian Senatus-Consultum, and other laws,23 which decreed that when a master was murdered all the slaves under the same roof, or in any place so near the house as to be within the hearing of a man's voice, should, without distinction, be condemned to die. Those who in this case sheltered a slave, in order to save him, were punished as murderers;24 he whom his master25 ordered to kill him, and who obeyed, was reputed guilty; even he who did not hinder him from killing himself was liable to be punished.26 If a master was murdered on a journey, they put to death those who were with him and those who fled.27 All these laws operated even against persons whose innocence was proved; the intent of them was to inspire their slaves with a prodigious respect for their master. They were not dependent on the civil government, but on a fault or imperfection of the civil government. They were not derived from the equity of civil laws, since they were contrary to the principle of those laws. They were properly founded on the principles of war, with this difference, that the enemies were in the bosom of the state. The Sillanian Senatus-Consultum was derived from the law of nations, which requires that a society, however imperfect, should be preserved.
It is a misfortune in government when the magistrates thus find themselves under the necessity of making cruel laws; because they have rendered obedience difficult, they are obliged to increase the penalty of disobedience, or to suspect the slave's fidelity. A prudent legislator foresees the ill consequences of rendering the legislature terrible. The slaves amongst the Romans could have no confidence in the laws; and therefore the laws could have none in them.
16. Regulations between Masters and Slaves. The magistrates ought to take care that the slave has his food and raiment; and this should be regulated by law.
The laws ought to provide that care be taken of them in sickness and old age. Claudius28 decreed that the slaves who in sickness had been abandoned by their masters should, in case they recovered, be emancipated. This law insured their liberty; but should not there have been some care also taken to preserve their lives?
When the law permitted a master to take away the life of his slave, he was invested with a power which he ought to exercise as judge, and not as master; it was necessary, therefore, that the law should ordain those formalities which remove the suspicion of an act of violence.
When fathers, at Rome, were no longer permitted to put their children to death, the magistrates ordained the punishment which the father would have inflicted.29 A like custom between the master and his slaves would be highly reasonable in a country where masters have the power of life and death.
The law of Moses was extremely severe. If a man struck his servant so that he died under his hand, he was to be punished; but, if he survived a day or two, no punishment ensued, because he was his money.30 Strange that a civil institution should thus relax the law of nature!
By a law of the Greeks,31 a slave too severely treated by his master might insist upon being sold to another. In later times there was a law of the same nature at Rome.32 A master displeased with his slave, and a slave with his master, ought to be separated.
When a citizen uses the slave of another ill, the latter ought to have the liberty of complaining before the judge. The laws of Plato,33 and of most nations, took away from slaves the right of natural defence. It was necessary then that they should give them a civil defence.
At Sparta slaves could have no justice against either insults or injuries. So excessive was their misery, that they were not only the slaves of a citizen, but also of the public; they belonged to all, as well as to one. At Rome, when they considered the injury done to a slave, they had regard only to the interest of the master.34 In the breach of the Aquilian law they confounded a wound given to a beast and that given to a slave; they regarded only the diminution of their value. At Athens,35 he who had abused the slave of another was punished severely, and sometimes even with death. The law of Athens was very reasonable in not adding the loss of security to that of liberty.
17. Of Enfranchisements. It is easy to perceive that many slaves in a republican government create a necessity of making many free. The evil is, if they have too great a number of slaves they cannot keep them in due bounds; if they have too many freedmen, they cannot live, and must become a burden to the republic: besides, it may be as much in danger from the multitude of freedmen as from that of slaves. It is necessary, therefore, that the law should have an eye to these two inconveniences.
The several laws and decrees of the senate made at Rome, both for and against slaves, sometimes to limit, and at other times to facilitate, their enfranchisement, plainly show the embarrassment in which they found themselves in this respect. There were even times in which they durst not make laws. When, under Nero,36 they demanded of the senate permission for the masters to reduce again to slavery the ungrateful freedmen, the emperor declared that it was their duty to decide the affairs of individuals, and to make no general decree.
Much less can I determine what ought to be the regulations of a good republic in such an affair; this depends on too many circumstances. Let us, however, make some reflections.
A considerable number of freedmen ought not suddenly to be made by a general law. We known that among the Volsinienses37 the freedmen, becoming masters of the suffrages, enacted an abominable law, which gave them the right of lying the first night with the young women married to the free-born.
There are several ways of insensibly introducing new citizens into a republic. The laws may favour the acquiring a peculium, and put slaves into a condition of buying their liberty: they may prescribe a term to servitude, like those of Moses, which limited that of the Hebrew slaves to six years.38 It is easy to enfranchise every year a certain number of those slaves who, by their age, health, or industry, are capable of getting a subsistence. The evil may be even cured in its root, as a great number of slaves are connected with the several employments which are given them; to divide among the free-born a part of these employments, for example, commerce or navigation, is diminishing the number of slaves.
When there are many freedmen, it is necessary that the civil laws should determine what they owe to their patron, or that these duties should be fixed by the contract of enfranchisement.
It is certain that their condition should be more favoured in the civil than in the political state; because, even in a popular government, the power ought not to fall into the hands of the vulgar.
At Rome, where they had so many freedmen, the political laws with regard to them were admirable. They gave them very little, and excluded them almost from nothing: they had even a share in the legislature, but the resolutions they were capable of taking were almost of no weight. They might bear a part in the public offices, and even in the dignity of the priesthood;39 but this privilege was in some sort rendered useless by the disadvantages they had to encounter in the elections. They had a right to enter into the army; but they were to be registered in a certain class of the census before they could be soldiers. Nothing hindered the40 freedmen from being united by marriage with the families of the free-born; but they were not permitted to mix with those of the senator. In short, their children were free-born, though they were not so themselves.
18. Of Freedmen and Eunuchs. Thus in a republican government it is frequently of advantage that the situation of the freedmen be but little below that of the free-born, and that the laws be calculated to remove a dislike of their condition. But in a despotic government, where luxury and arbitrary power prevail, they have nothing to do in this respect; the freedmen generally finding themselves above the free-born. They rule in the court of the prince, and in the palaces of the great; and as they study the foibles and not the virtues of their master, they lead him entirely by the former, not by the latter. Such were the freedmen of Rome in the times of the emperors.
When the principal slaves are eunuchs, let never so many privileges be granted them, they can hardly be regarded as freedmen. For as they are incapable of having a family of their own, they are naturally attached to that of another: and it is only by a kind of fiction that they are considered as citizens.
And yet there are countries where the magistracy is entirely in their hands. "In Tonquin,"41 says Dampier,42 "all the mandarins, civil and military, are eunuchs." They have no families, and though they are naturally avaricious, the master or the prince benefits in the end by this very passion.
Dampier tells us, too,43 that in this country the eunuchs cannot live without women, and therefore marry. The law which permits their marriage may be founded partly on their respect for these eunuchs, and partly on their contempt of the fair sex.
Thus they are trusted with the magistracy, because they have no family; and permitted to marry, because they are magistrates.
Then it is that the sense which remains would fain supply that which they have lost; and the enterprises of despair become a kind of enjoyment. So, in Milton, that spirit who has nothing left but desires, enraged at his degradation, would make use of his impotency itself.
We see in the history of China a great number of laws to deprive eunuchs of all civil and military employments; but they always returned to them again. It seems as if the eunuchs of the east were a necessary evil.
3. I mean slavery in a strict sense, as formerly among the Romans, and at present in our colonies.
4. Biblioth. Ang., xiii, part II, art. 3.
5. See Solis, History of the Conquest of Mexico, and Garcilasso de la Vega, History of the Conquest of Peru.
6. Labat, New Voyage to the Isles of America, iv, p. 114, 1728, 12mo.
10. As may be seen in the mines of Hartz, in Lower Saxony, and in those of Hungary.
11. De Moribus Germanorum, 25.
12. Tacitus, De Moribus Germanorum, 20, says the master is not to be distinguished from the slave by any delicacy of living.
13. Sir John Chardin, Travels to Persia.
14. Sir John Chardin, ii, in his description of the market of Izagour.
16. The revolt of the Mamelukes was a different case; this was a body of the militia who usurped the empire.
17. Law of the Visigoths, iii, tit. 1, § 1.
20. Law of the Alemans, 5, § 3.
22. "Sicily," says Florus, "suffered more in the Servile than in the Punic war." — iii. 19.
23. See the whole title of the senat. cons. Sillan., ff.
24. Leg. Si quis, § 12, ff. de senat. cons. Sillan.
25. When Antony commanded Eros to kill him, it was the same as commanding him to kill himself; because, if he had obeyed, he would have been punished as the murderer of his master.
26. Leg. i, § 22, ff. de senat. cons. Sillan.
27. Leg. i, § 31, ff. ibid., xxix, tit. 5.
29. See Leg. 3, in Cod., De Patria potestate, by the Emperor Alexander.
31. Plutarch, On Superstition.
32. See the constitution of Antoninus Pius, Institutes, i, tit. 7.
34. This was frequently the spirit of the laws of those nations who came out of Germany, as may be seen by their codes.
35. Demosthenes, Orat. contra Midian, p. 610, Frankfort, 1604.
36. Tacitus, Annals, xiii. 27.
37. Freinshemius, Supplement, dec. 2, v.
39. Tacitus, Annals, xiii. 27.
40. Augustus's speech in Dio, lvi.
41. It was formerly the same in China. The two Mahometan Arabs who travelled thither in the ninth century use the word eunuch whenever they speak of a governor of the city.
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