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chapter 16: On the Rights of Masters and Servants 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael [1724]

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Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).

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chapter 16

On the Rights of Masters and Servants1

It is quite likely that the earliest servitude (servitus) arose from voluntary contracts.2 But whether, in the beginning, slaves or servants (servi)3 bound themselves in perpetuity or for a limited period, it is not possible to determine, and it makes no difference to know. [II.4.1.i]

Among most Europeans today, slavery has been abolished. And it has been the universal practice of Christians, when war has arisen among them, not to make slaves of their prisoners in a way that would allow them to be sold and forced to work and made to endure the other sufferings of slaves, as Grotius points out at III.VII (final paragraph). [II.4.1.iii]

[Pufendorf observed that there are different degrees of servitude, and that the power of the master and the condition of the slave or servant varies accordingly. Carmichael concurs with the judgment that the first of these kinds of servant, the wage earner hired for a specific length of time, cannot be subjected to grievous bodily harm, much less death, by the master, and investigates the reasons why.]

Why not [subject a hired servant to severe punishment] also when he disturbs the decency and quiet of the family? The right permitted a master to punish a slave or servant, whether in an independent household, or in one which is subject to the civil power, can be judged from what we have said above (pp. 136–37) about the authority of the head of the family. But sensible masters and mistresses of households will use corporal punishment very sparingly, especially on adults hired for a limited time, particularly if they are of a different sex. For if their behavior displeases, a milder remedy will soon be available in the form of dismissal from the family after the agreed term has expired. [II.4.2.i]

[Commenting on Pufendorf’s second category, the servant “bound … of his own free will for perpetual servitude,” Carmichael says:]

Titius rightly observes that the association between master and servant includes the same rights and the same obligations, whether it is forever or for a limited time, except that in the one case the rights are temporary, in the other perpetual.4 [II.4.3.i]

A servant who is hired for a limited time or in perpetuity may bind himself either to services of a particular kind or to perform whatever services the master imposes upon him, provided these are just and licit. [II.4.3.ii]

[On Pufendorf’s third category, “slaves captured in war”:]

In nothing have the nations so strayed from the law of sociability than in their assessment of the right of war with regard to the introduction of slavery. It makes one wonder that the human race should so forget its worth, and willingly conspire to bring upon itself endless outrageous indignities, abuses, and afflictions. It will be readily agreed, to be sure, from the principles laid down above, that anyone who cannot repay a debt incurred by contract or by committing an offense or for any reason whatsoever, is obliged by the law of nature to offer his services to his creditor or victim. And anyone who has inflicted an atrocious offense, such as one who has violently attacked the life and fortune of another in a war conducted without even probable cause, can find himself rightly reduced to servile status as punishment less severe than another which might be inflicted.

Nonetheless, (1) capture in war confers no right upon the captor where there was no antecedent right; therefore anyone who makes war unjustly has no right to enslave anyone. (2) Physical punishment can only be inflicted on men who have committed violent offenses; therefore, he who is waging even a just war cannot impose slavery as a punishment on those who have contributed nothing either by assistance or advice, to an unjust war waged by another party. (3) Even those who wage just wars must set limits on their demands; nor can anyone make claims beyond the limits which we specified at pp. 69–71. (4) Whatever may be due from the prince and people whose citizens have been captured in a just war, it is not clear that an ordinary citizen who has enjoyed no advantage from the war and has not involved himself in it by his own volition should be bound to suffer personal enslavement. (5) If a man should be enslaved as a punishment or because the rights of another require it, this does not mean that he has fallen from the class of person into the class of things. There is to be sure a common right to punish criminals; see pp. 69–71. But a man is never to be considered among the goods of his creditor, whatever thing or service he may owe him or a criminal may owe society. For men are not among the objects over which God has allowed the human race to enjoy dominion. Indeed it seems absurd (to make a small change in the words of Justinian)5 that man should be classed among things, since nature has supplied all things for the sake of man. [II.4.4.i]

Even if the victor may rightfully require servile services from the vanquished (which it will be agreed from what has just been said, is very rarely the case), still no one readily allows that the cause he was defending was unjust, much less that he is obliged to suffer punishment when he can avoid it. And therefore, if the captor wishes to enjoy securely the services of the captive, it is up to him to guarantee his life and safety, while stipulating in return obedience and faithful service; which being done, hostility ceases. And the agreement should be made by explicit provisions. But I do not deny that if the captor spares the captive’s life and holds him without bonds or imprisonment, this fact seems to form a tacit agreement which prevents the former from killing the latter without fresh cause and which prevents the latter from using this opportunity to launch hostilities. [II.4.4.ii]

We have shown above that the bodies of slaves cannot be considered as merchandise. But this does not prevent the transfer of the right to require the services of the slave, which have their origin in the causes described above, to another person at the discretion of the creditor. For the right to the service of a slave is an alienable right, and the agreement which fixes the relationship does not permit any other interpretation. And he who subjects himself and his property to a victor, so far as he may, in order to avoid the death penalty, is understood to have made whatever agreement he could make, and thus he must be supposed to have transferred the alienable right [to his services] to the victor [in a just war].

But no one who has wrongfully taken someone into slavery or holds him in that condition has any title to transfer to another person any right which would be valid against the captive or prisoner. Even good faith cannot be pleaded in this case. For benefit of the doubt does not apply to possession by force; and good faith cannot transfer the burden of proof of a right from a violent possessor to a claimant from whom the thing was taken by force. Above all if the claimant can prove, against any possessor at all, that the object he claims once was his, this is enough to compel the possessor to show that the thing had been subsequently alienated or abandoned by the claimant or lost in some legal way. Everyone is naturally the owner of his own liberty or of the right of determining his own actions; and therefore no one can in good faith claim that this right has passed to him, unless he can show that it has passed out of the hands of its natural subject, and further unless he can prove that it has been transferred to him. For freedom is not open to occupation. In fact the right against any man’s liberty which may belong to another man, is not an owner’s right properly so called, but a creditor’s right, as we have shown above at pp. 139–40.

I know that however consistent these principles may be with both civil and natural law, this did not prevent the Romans (apart from a few privileges in favor of liberty), as well as all the barbarian nations, from going astray from the truth on this point. They all cherished the prejudice so deeply ingrained in most people today, as well as in former times, that in war the occupying power acquires ownership indiscriminately over the persons and property of the enemy and of anyone subject to his rule. How alien this is to reason and how contrary to natural law may be observed from the preceding paragraph and is made particularly clear in the celebrated Locke’s Second Treatise of Government, chapter 16.6 I do not deny that the external right, to use Grotius’s phrase, which arises from the consent of nations, has some validity in respect to things captured in war and transferred to another who is not an enemy (see the notes at pp. 204–5). But this [external right] cannot deprive innocent citizens of their personal liberty, since the right of the state over its citizens does not extend so far. Nor can this external right apply in any way satisfactory to conscience, in cases that admit of recovery of civil rights (which the laws of all nations allow to free men taken captive in war). It cannot take from the original proprietor the capacity to recover his rights; at most it may prevent him from obtaining restitution in a certain place, or rather beyond the limits of a certain place. [II.4.5.i]

Justinian has rightly taught us (Institutes, II.1.37) that it seems absurd that man should be classed among products since nature has supplied all products for the use of man.7 But if, for this reason, as the emperor intended, the offspring of a slave girl does not belong to the usufruct, it is also obvious that it cannot belong to the owner of the property as a product of something he owns; at pp. 139–40 we used the same argument as Justinian to show that a man cannot be in the ownership strictly, so called, of another man. I add that since the soul, the nobler part of man, is not derived from the parents, it is fitting that it should draw the more ignoble part to itself. [II.4.6.i]

It is obvious from what we have said so far that the only pretext which remains for hereditary slavery is that the slave who is born in his master’s house is indebted to the master to the amount of the expense incurred in feeding and raising him. I remarked above (pp. 115–16) that the child too is indebted to his parents by whom he is nourished. But there is a difference: it is abhorrent to the natural affections and duties of parents to require payment of this debt from their children, at least when they have no external source of income, unless the parents suffer from extreme poverty, in which case it would be ungrateful for the children not to help them. Nothing prevents masters, however, from requiring compensation from their born slaves, and since born slaves are assumed to be incapable of repayment otherwise than by offering their services, they are obliged to offer the master their services up to the value of what it cost to rear them, in accordance with the doctrine expounded above (see pp. 139–40). It does not follow, however, that born slaves owe a perpetual debt for their upbringing, since a man endowed with even mediocre gifts of mind and body can pay off this debt in a much shorter time than the span of his whole life.

It follows from these principles that if a third party wants to take and raise a born slave from birth, or decides later to pay off the slave’s debt to his owner in order to improve the slave’s condition or to enable him as an adult to seek his own transfer, then the owner of the mother of the slave can require nothing more. It also follows that anything that comes to the slave from elsewhere, accrues to the slave himself and not to the owner of his mother, and thus may be used for his liberation. In a word, it follows from these principles that the condition of the born slave should be no worse than that of a Roman citizen who had been bought back from the enemy and held as a pledge until the price was paid (see Codex, VIII. 51).8

And the slave’s debt should not be increased on the ground that the master did not know whether the slave would survive or be able to pay back the amount of his expenses, as if the uncertainty of the situation should be compensated by the amount of profit to be made through the slave. For to every man coming into the world necessity gives a right to what he needs for his preservation and for forming him to be a useful member of human society. Furthermore in claiming for himself the labors by which the parent would otherwise be able to look after himself and his offspring, the master owes maintenance, to the child no less than to the parent, under the burden of repayment, if the slave can ever repay it; but if not, without it. We must make the same point here as in other cases in which the necessities of life are allowed to those who suffer from extreme poverty. For this reason, everyone allows that by strict right repayment should be made whenever it can be; but no one in his right mind would say that in this case a profit was due because of the high risk involved, as if it were a nautical loan. Finally, it is not correct to cite human laws in support of this obligation; for before men can do anything themselves, they are subject to the civil laws only through the mediation of parents or guardians, and until they consent to them themselves, these laws cannot make the power of parents or guardians greater than nature herself has made it.9

I have treated the matter of these last three sections at some length because this usurped right of owning slaves like cattle, as it existed among the ancients, is exercised today by men who profess to be Christians, to the great shame of that holy name, with greater tyranny perhaps than it was by the ancient pagans. It is not practiced to be sure by Christians among themselves nor do we find it in most parts of Europe, but we do find it in other parts of the world. I am deeply convinced that its existence, to use the apt expression of Titius, is a sure sign of the death of sociability.10

If anyone objects that this right is assumed in various precepts of the Mosaic Law, let him consider whether the same thing should not be said about this (and about the precepts that assume polygamy for that matter), as was said about the law which permitted divorce in the external court: i.e., that the Hebrews were allowed these things for the hardness of their hearts,11 especially since one of the precepts [of the Mosaic Law] provides for external permission for divorce (Exodus 21.3–4). I may add that one right was permitted to the Hebrews over Hebrew slaves, and a different one (as a punishment, it seems) over foreign idolaters, at least in the external court; but nowadays that fraternity which the Hebrews were encouraged by the letter of the Mosaic Law to foster among themselves, has been extended to all men by the dictates of natural law and by the teachings of the Gospel. Cf. Leviticus 19.18 and Luke 10.36–7. [II.4.6.iii]

[1.] From the notes to bk. II, ch. 4, “On the Duties of Masters and Slaves.”

[2.] As Pufendorf argued at Of the Law of Nature and Nations, VI.III.4; and On the Duty of Man and Citizen, II.4, pp. 129–31.

[3.] Carmichael, like Pufendorf, uses the term servi to cover “servants,”“serfs,” and “slaves.”

[4.] Titius, Observationes, nos. 529–30.

[5.] Justinian, Institutes, II.1.37. Carmichael substitutes “things” for Justinian’s word “fruit,” thus converting a point about usufruct into a general statement against the ownership of human beings.

[6.] Although Carmichael cites Locke in support of his denunciation of slavery, the gravamen of his critique is different from Locke’s. Locke thought that conquerors had a right to enslave enemies captured in a just war; he was concerned to deny to conquerors the right to occupy the property of these men; their property might be needed to preserve the wife, children, and servants of the conquered man (Locke, Second Treatise, ch. 16, secs. 178 ff.). Carmichael’s primary concern was not deprivation of the land or property; it was the loss of personal liberty. See also Hutcheson, Philosophia Moralis (1745), III.3, p. 282, who urged his students to consult both Carmichael and Locke on the subject of slavery. The translator of Hutcheson’s work has misplaced both the note and the reference to Locke in A Short Introduction to Moral Philosophy, p. 275n.

[7.] Here Carmichael quotes this passage verbatim; see n. 5, above.

[8.] Justinian, Codex, VIII.50 (51).2, p. 360.

[9.] Carmichael’s forceful denunciation of slavery on grounds of natural law may be contrasted with Barbeyrac’s position on this matter. In notes added to the fifth edition of Pufendorf, Of the Law of Nature and Nations (1734), VI.III.9, nn. 1–4 (English translation 1749, p. 617), Barbeyrac invoked the authority of Grotius and of Pufendorf to defend the rights of masters in opposition to Carmichael’s reasoning. Barbeyrac found nothing absurd in considering persons as property; he considered it just that children born of a slave mother should remain the property of the owner; he thought it very unlikely that a slave would ever be able to discharge the debt owed to his master for his upbringing or that a third party might secure the release of the slave. As for Carmichael’s argument that the soul, the nobler part of man, is not derived from the parents but from God, Barbeyrac remarks, “I own I cannot see the Force of this Argument, or, if it has any, it is very remote from the Subject.”

[10.] Titius, Observationes, no. 535.

[11.] Matthew 19.8; Mark 10.5.