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CHAPTER IV: Concerning the duties belonging to masters and servants, and that despotical society. - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations [1738]

Edition used:

A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER IV

Concerning the duties belonging to masters and servants, and that despotical society.

SECTION LXXV

Wherein the despotical society consists, and its origine.We now proceed to consider the society of master and servants, which is not, by nature, so necessary as the more simple societies of which we have already treated, but yet has been most frequent among mankind from the most antient times. And by it we understand a society between a master or mistress, and men or women-servants, in which the latter bind themselves to promote their master’s interest by their work and labour, and the former bind themselves to maintain them; nay, sometimes to pay them a certain hire or wages. For since such is the condition of mankind, that one stands in need of another’s work; and there is no reason why one may not procure to himself what he wants by another’s help (l. 1. §325); the consequence of which is, that we may stipulate to ourselves the help or work of others by an intervening contract, and thus form between us and servants a despotic society, which is evidently, in its nature, unequal and rectoreal (§18).

SECTION LXXVI

What is a master or a mistress, and what a man or woman-servant?By master or mistress we therefore understand a person who employs others to promote his interest, and obliges himself to maintain them, or over and above to pay them certain wages. Servants are persons who bind themselves to promote their masters interest by their labour, either for their maintenance only, or for wages, together with maintenance. Now, from these definitions it is manifest, that servitude of the latter kind is mercenary, and its foundation is none other than a contract of letting and hiring; the former is perfect servitude, and may be called obnoxia, property;* and its foundation is dominion over the persons of servants acquired by a just title.

SECTION LXXVII

Some give themselves up to perfect servitude on account of their dullness and incapacity.That mercenary servitude is not contrary to the law of nature none can doubt; but neither is the other servitude, since experience teaches us, that some men are naturally of so servile minds, that they are not capable to govern themselves or a family, nor to provide for themselves the necessaries of life.† But since every one ought to choose the kind of life he is fitted for, (l. 1. §147), and such persons are fit for no other kind of life, but to serve others for their maintenance, they certainly do nothing contrary to their duty, if they give themselves up perpetually to others on that condition.

SECTION LXXVIII

Some thro’ extreme poverty.Besides, extreme poverty, and other private or public calamities, may induce some, who are not stupid, to become servants rather than perish. For since man is obliged to preserve his life, and to avoid death and destruction (l. 1. §143), and of two imminent evils, the least ought to be chosen; it follows, that he whom providence hath placed in this situation, is not to be blamed, if, there being no other honest way of avoiding death, he give himself up in servitude.*

SECTION LXXIX

Some conquered in war accept of this condition.Again, the fury of war much augmented the number of servants. For because all things are lawful to an enemy against an enemy, it is law-ful to kill a subdued enemy (l. 1. §183). But because he who can deliver himself from danger without hurting his aggressor, or by a lesser evil, ought not rashly to proceed to killing (ibid. §181), it is certainly not unjust for a conqueror to save the vanquished, and lead them captives, that they may no longer have it in their power to hurt him; and to make servants of them, that he may not have the burden of maintaining them gratis; nor can they be blamed who choose to save their lives on these terms, rather than perish.*

SECTION LXXX

Some are born servants.But these kinds of perfect servitude cannot but produce the effect which one is detruded into by the very fortune of birth. For since the foundation of perfect servitude is dominion acquired by a just title (§76), and all those we have already mentioned are just titles (§76 & seq.) the consequence is, that all these servants are under the just dominion of their masters. But since out of lawful matrimony (which can hardly take place among some of those sorts of servants)† the offspring goes along with the mother (l. 1. §252) it is no wonder that the offspring of such women-servants undergo the same condition with the mother, as an accession to her; and therefore those kinds of servants are known to all nations, which were called by the Romans vernae.

SECTION LXXXI

The power of a master over a mercenary servant.These principles being fixed, it is easy to find out the duties of masters and servants in this society, and what power masters have over their servants. For as to mercenary servants, since they are only bound by a contract of letting and hiring, (§76) the master has no other power over them, than to appoint the work to them for which they bind themselves, and to make profit by their work, and to force them to serve during the time for which they engaged: He has no right to exact any other work or service from them, but that for which they bind themselves; and much less to chastise them with great severity; tho’, if the servant do not fulfil his contract, the master may not only mulct him of a part of his wages, but turn him away from him as incorrigible (§21).

SECTION LXXXII

The mutual duties of this master and servant.As therefore it is the master’s duty to fulfil his contract, and not to exact other service than was contracted for from his servant, and to maintain him as persons of that condition ought to be, and to pay him his promised wages;* so the servant is bound to reverence and obedience to his master as his superior; to perform his contracted service to him as his hirer, and to promote his interest with all fidelity as his partner.

SECTION LXXXIII

The power of a master over a perfect servant with respect to the disposal of him.Perfect servants, we have said, are in dominion, (§76). But since he who hath the dominion of any thing, hath the free disposal of it (l. 1. §306); the consequence is, that a master may impose upon such a servant any work he is capable of; make all profit by him; claim him and his children as his property, and sell or alienate him and them upon any terms, unless the servant, who voluntarily delivered himself into servitude, made this condition, that he should not go out of the family, or be alienated to any other master. As to the power of life and death, none will deny that it belongs to such masters (l. 1. §308) unless either convention or law forbid it. Much less then can it be denied, that such masters have a power to coerce and chastise such servants according to the exigence of the case, provided the master still bear in mind that his servant is a man, and by nature his equal* (l. 1. §177).

SECTION LXXXIV

With respect to possession and vindication.Since to a master belongs the possession of his own, and the right of reclaiming it from every person (l. 1. §306) hence it follows, that a master may defend himself in the possession of his maid or woman-servant by any means, and reclaim his servants, whether they desert, or whether they are unjustly carried off, from any one whomsoever, with the fruits or profits, and accessions of the possession; and, in the first case, to punish the renegade according to his desert, and to take proper and effectual measures to prevent his taking the same course for the future;* unless this effect of the master’s dominion be restricted by the civil laws (l. 1. §317).

SECTION LXXXV

The duties of masters to such servants.It will not now be difficult to ascertain the mutual duties of masters and such servants. For because an obnoxious or perfect servant is in dominion, (§76) and therefore a master may make all the gain he can of such (§83), so that such a servant hath nothing in property; the consequence is, that the master is obliged to maintain such a servant, and this obligation does not cease, then especially, when he is not able to perform his service.* And since a servant is, with regard to nature, equal to his master (§83) it is obvious, that the master is culpable if he injuriously hurts his servant; and he is worthy of commendation, if he endeavours to reform a disobedient servant by benefits rather than by cruel methods.

SECTION LXXXVI

The duties of servants to their masters.Because as many different kinds as there are of servitude, so many duties of servants there are, as correlates to the several rights of masters (l. 1. §7) hence it follows, that perfect servitude obliges a slave to every sort of work or service, to promote his master’s interest to the utmost of his power, and to bear chastisement and correction, and the disposal of him and his at his master’s will, with patience. That he acts contrary to his duty, if he deserts his master, or defrauds his master, by stealing, as it were, himself away from him; and that he ought rather to endeavour to merit his liberty and manumission by faithful and cordial service, thus rendering himself worthy of so great a benefit.

SECTION LXXXVII

How servitude is dissolved.From what hath been said, we may easily understand how this society is dissolved. Mercenary servitude, depending upon a contract of letting and hiring, is dissolved in the same manner such contracts are dissolved, and more especially by the expiration of the time contracted for. Perfect servitude is principally dissolved by manumission. For since any one may derelinquish or abdicate his own (l. 1. §309), there is no doubt but a master may renounce his right to a servant, which renunciation was called by the antients manumission. Besides, renunciation being a kind of alienation, and seeing in alienation one may except or reserve what he pleases (l. 1. §278) it is plain that manumission may likewise be granted upon any honest conditions whatsoever.*

SECTION LXXXVIII

What a freed man is, and what are his duties.Those slaves who are manumitted by their masters are called libertini, and the liberti of the manumittor. Now, since masters, who give liberty to their slaves, confer upon them the greatest benefit they can bestow; and every one is obliged to love him who bestows favours upon him (l. 1. §226); slaves set at liberty (liberti) are the most ungrateful of mortals, unless they love the patrons who conferred so great a blessing upon them, and they are obliged to pay the highest veneration to them, and not only to perform to them cheerfully all that their masters stipulated to themselves upon giving them their liberty (§87) but likewise to be ready to render to them all other good offices in their power; or, if the power of serving them be wanting, at least to shew gratitude towards them in every manner they can* (l. 1. §228).

[* ] I use the word used by Phaedrus Fab. l. 3. praef. v. 34.

Servitus obnoxia,Quia, quae volebat, non audebat dicere,Adfectus proprios in fabellas transtulit.

[[Phaedrus, Fabulae, introduction to bk. 3, lines 34–35: “Slavery was hateful; because he did not dare say what he wanted, he transferred his own feelings into his fables.”

The Greeks distinguished between servants, which were property, whom they called δούλους, and domestic or hired servants, whom they called οίκέτας, according to Athenaeus Deipnos. 6. 19. Athenaeus, The Deipnosophists, vol. 3, sec. 267, p. 203: “But that ‘domestics’ may mean anyone living in the house, even if he be a free person, is generally known.” Both kinds of servitude are very ancient. It is plain from Genesis, xi. 5. xiv. 14. xv. 3. 4. xvi. 1. & seq. that Abraham had many servants, obnoxii, or perfect servants, in the fourth age from the deluge. So that Jacob served Laban as a mercenary servant for many years, is well known from Genes. xxix. 15. xxx. 28. Nay, Noah makes mention of perfect servitude, Gen. ix. 25. And he condemns Chanaan to it for injuries he had done to him. But Jo. Clericus Comment. in Genes. p. 72. has justly observed, that this was rather a prediction of what was to happen a little after. Jean le Clerc, Genesis sive Mosis prophetae liber primus.

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[† ] This was observed by Aristotle, who says, that some men are φύσει δούλους, servants by nature, Polit. 1. 3. For tho’ Pufendorff of the law of nature, &c. 3. 28. & 6. 3. 2. had reason to refute this philosopher, if his meaning were, that persons by their prudence, had a perfect right of enslaving, without any other cause, those who are stupid, as the Greeks arrogated a right to themselves over the nations they called barbarous; yet there is no absurdity in this saying, if it be understood of a servile disposition, and of a natural condition, as Dan. Heinsius thinks it ought to be, epist. ad Ge. Richterum, apud Jan. Rutgers. var. lect. 4. 3. [[Daniel Heinsius (1580–1655), Dutch scholar and professor of Latin and Greek at Leiden. Heineccius is probably referring to Jan Rutgers’s Variarum lectionum libri sex. In this sense Agesilaus says, in Plutarch, apophtheg. Lacon. p. 190. that the Asiatics were bad freemen, but excellent slaves. Plutarch, “Sayings of Spartans,” p. 333, in Plutarch, Moralia: in Fourteen Volumes, vol. 3. This is a statement by Callicratidas rather than Agesilaus.

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[* ] Thus the Egyptians gave themselves up to their king as servants, that they might not perish by famine, and held it for a favour that Pharaoh would accept of their service for their living or maintenance. Hence, having accepted of the condition of servitude, they answered Joseph, Gen. xlvii. 25. “Thou hast given us our lives, let us find favour in thy sight, and let us be servants to Pharaoh.” Thus Pausanias tells us, l. 7. c. 5. “That the Thracian women, tho’ freeborn, earned their bread among the Erythraei, by voluntary servitude” [[Pausanias, Description of Greece, vol. 3, “Achaia,” chap. V, p. 197; not now to mention the Frisians, of whom Tacitus, Annal. 4. 72. nor the Gauls, of whom Julius Caesar de bello Gallic. 6. 13.

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[* ] Therefore, this society arises really from consent, tho’ not voluntary, but extorted by just force (§15). For the conqueror is willing to save the conquered, but upon this condition that they become his servants; the conquered is willing to serve, that he may be saved. For if he would rather perish, what hindered him from rushing upon the conqueror’s arms. Now the concurrence of two wills is consent (l. 1. §381).

[† ] Matrimony is a simple society between persons of different sexes, formed for the sake of procreation and education (§27). Those therefore who enter into this state, ought to have it in their power to consent to this end, and to choose it, and the means necessary to obtaining it. But the principal end, viz. convenient education, is not always in the power of perfect servants, but it depends wholly on the will of their master. Therefore, among some such men and women servants, there is no place for lawful matrimony. We say it cannot take place among some such, as those namely whom fortune has reduced to this condition, that their masters, after the manner of the Romans might, descriptis per familiam ministeriis uti. But when every one has his fixed seat and abode, as among the Germans, (Tacit. de morib. Germ. c. 25.) there marriage among servants may more easily take place, as experience shews us. But tho’ the proper slaves of the Germans have the jus connubii, liberty of marriage, yet this rule has force among them, that the birth follows the bearer, and is of the same condition with the parents, except where alternate sharing is established (l. 1. §252).

[* ] But neither wages nor maintenance are due, if a servant, by his own fault, or by chance, is not able to perform the service he engaged to do (l. 1. §361). And therefore, tho’ the humanity of those masters be very commendable, who maintain a servant while he is sick, yet what humanity enjoins cannot be exacted by perfect right. On the other hand, it is most iniquitous in a master to deny a servant who has done his work, the wages due to him, or to change his wages at his pleasure, contrary to the terms of their contract, as Jacob complained that Laban had done ten times, Gen. xxxi. 7. This conduct of Laban was so displeasing to God, that he took all his wealth from him, and transferred it to Jacob, Gen. ibid. 9.

[* ] For tho’ a servant may happen to be more perfect than his master, yet it cannot be denied that the master is his servant’s superior: And this diversity of perfections and states, does not alter the essence of man; so that a servant is still equally with his master, a man (l. 1. 177). That maxim of the civilians is therefore far from being humane, “That no injury can be done to a servant or slave,” l. 15. §35. D. de injur. And that saying of a mistress in Juvenal is most inhumane. Sat. 6. v. 223.

O demens, ita servus homo est? Nil fecerit: estoSic volo, sic jubeo, stet pro ratione voluntas.

[[Juvenal, Satires, Satire 6, lines 223–24, in Juvenal and Persius: “You idiot! Is a slave a person? All right, let’s accept that he hasn’t done anything. But it’s my wish and my command. Let my will be reason enough.”

He is therefore no less excusable who hurts a servant, than he who hurts a free-man.

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[* ] Hence home-shackles, prisons, houses of correction, and other methods which necessity obliged to, or the cruelty of masters, allowing themselves all corporal power over their slaves, invented. For tho’ here regard ought to be had to humanity and benevolence (§83), yet the coercive power ought not to be taken from masters, especially over servants taken in war, partly because such are upon the catch to find an opportunity of flying and returning to their own country (which is not so very blameable, as Lorarius in Plautus observes, Plaut. Captiv. 2. 1. v. 14.

Lo. At fugam fingitis. Sentio, quam rem agitis.Cap. Nos fugiamus? quo fugiamus? Lo. in patriam.Cap. apage! haud nos id deceat,Fugitivos imitari. Lo. Immo, aedepol, si erit occasio, non dehortor.)

[[Plautus, The Captives, lines 208–10, in Plautus, vol. 1: “‘Ah yes, you’re planning to run for it! I see what’s afoot.’ ‘Run—we? Where should we run to?’ ‘Home.’ ‘Get out! The idea of our acting like runaway slaves!’ ‘Lord! why not? I’m not saying you shouldn’t, if you get the chance.’”

partly because they still preserve a hostile disposition, insomuch, that what Seneca says is particularly true of such servants, Ep. 47. So likewise Festus in voce: quot servi. “Totidem quemque domi hostes habere, quot servos.” So many slaves at home, so many enemies at home. Festus, De verborum significatu quae supersunt cum Pauli epitome.

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[* ] A mercenary servant, besides his maintenance, receives wages (§82), so that he has something wherewithall to sustain himself, if he be disabled by sickness or accident from performing his work; wherefore, since the master is obliged to maintain such a servant only by the contract of hiring (§76), he is not perfectly bound to the alimenting of such a servant, who is not able to serve (§82). But with respect to a perfect servant or slave, the case is different: For he is not maintained for his work, but as being under his master’s dominion, and having no wages, he has nothing belonging to him. Besides, charity and humanity oblige us to assist even strangers and enemies (l. 1. §219); and therefore, with what face can we deny sustenance to a sick slave, who has worn himself out in our service? Hence the Emperor Claudian gave their liberty to slaves, who were exposed in their sickness by their cruel masters, Sueton. in Claud. c. 25. l. 2. D. qui sine manum.

[* ] Thus the old Romans at manumission stipulated to themselves certain handicraft-works, presents or gifts, l. 3. pr. l. 5. l. 7. §3. D. de oper. libert. And our ancestors, when they manumitted their slaves, reserved a right to themselves to exact from them such services as their mercenary servants, or even slaves were wont to perform to them; so that abstracting from the title and condition of the servitude, there was hardly any difference between slaves and libertines among them. And hence Tacitus de moribus Germ. says, “That their freed-men were not in a much more preferable state than their slaves.” [[Tacitus, Germania 25.2, p. 87.

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[* ] The ancients looked upon giving liberty to slaves as the greatest of benefits. Simo in Terence says, And. l. 1. v. 10.

Feci, e servo ut esses libertus mihi,Propterea, quod serviebas liberaliter:Quod habui, summum pretium persolvi tibi.

[[Terence, The Woman of Andros, act 1, lines 37–40, in Terence, vol. 1: “You were my slave, but I gave you your freedom, because you served me with the spirit of a free man. I bestowed upon you the highest reward that was in my power.”

For the Patron, by giving his liberty to a slave made him a person: and therefore, he was to the freed-man in the room of a father, who on that account assumed his patron’s name, as if he were his son, Lactant. divin. Inst. 4. 3. Hence he was no less obliged than a son to provide an aliment for his patron, if he happened to be in want, l. 5. §18. l. 9. D. de agnosc. & alend. lib. And as a son, tho’ the obligation to gratitude be otherwise imperfect, was forced to repay the benefits received from his father, and to maintain him; so the freed-slave was forced to do the same, and could be reduced into slavery again for pregnant ingratitude, Inst. §1. de cap. diminut. l. un. C. de ingrat. lib.

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