[93] CHAPTER V.

Of the original acquisition of Rights over Persons; wherein of the Rights of Parents; of Marriage; of Corporations; of Rights over Subjects, and over Slaves.

I. THERE are rights over persons as well as over things; and these may be acquired by generation, consent, or delinquency.

Parents acquire a right over their children by generation; both parents, the father and the mother; but if there be a contention between the authorities, the authority of the father is preferred, as superior in sex.

II. 1 In Children, three periods of life are to be distinguished; first the period previous to years of discretion; next, the period when they have come to years of discretion, but remain part of the parents’ family; third, the period when they have gone out of the family. [See Aristotle.]

In the first period, all the actions of the children are under the dominion of the parents; for he who cannot govern himself must be governed by another; and the parents are the natural governors. [See Eschylus.]

2 Yet even in this period, a son or daughter is capable of ownership over things jure gentium; but the exercise of this right is impeded 94by their imperfection of reason. They have the right to have, but not to use. Therefore that whatever becomes the property of the child becomes the property of the parents, is not Natural Law, but is an institution of the laws of certain peoples; which also in this matter distinguish the father from the mother, and sons not yet emancipated from paternal control, from those who are emancipated, and natural children from legitimate; which distinctions are unknown to nature; except the superiority of sex, when the authorities interfere, as we have mentioned.

III. In the second period, when the reason is matured by time, those actions only are subject to the authority of the parents which have some important bearing upon the state of the paternal or maternal family: for it is equitable that a part should follow the analogy of the whole. In other actions, the children have, at that period, the moral right to act; but are bound, even in those, to endeavour to please their parents. But since this obligation is not founded in a jural right, like the above obligations [at the earlier period], but in piety, reverence, and the duty of repaying the benefits they have received, it does not render void what is done in transgression of it; as a donation made contrary to the rules of prudence by the owner is not void.

IV. In both these periods, the parents’ right of governing includes also the right of coercing, so far as children require to be compelled to their duty or amended. What is to be done concerning greater punishments, we shall discuss elsewhere.

V. But although the paternal authority so far follows the person and position of the father, that it cannot be taken from him and transferred to another, yet by the Law of Nature, and where the Civil Law does not impede, the father may put his son in pledge, and if necessary, even sell him, when there is no other means of providing for him; which appears to have passed to other nations from an old law of the Thebans: as the Theban law came from the Phœnicians, and higher still, from the Hebrews [Exod. xxi. 7, And if a man shall sell his daughter to be a maidservant, &c. Romulus made the same law. Dionys. Halic. 2, 28. Gronovius.] The same held with the Phrygians. Nature is conceived to give a right to do every thing without which that cannot be obtained which nature demands: [as the sustenance of children.]

VI. In the third period, the son is independent and sui juris, the duty of piety and reverence still remaining, as its cause is perpetual. Whence it follows that the acts of kings are not void because they have parents alive.

VII. Whatever goes beyond this, proceeds from instituted law, which is different in different places. Thus the right which God gave to the Hebrews, of making void the vow of a son or a daughter, was not perpetual, but lasted as long as they were part of the father’s house. Thus the Romans had a patria potestas over sons, even those 95who were themselves heads of families, so long as they were not emancipated. This power over their children the Romans themselves remark that other nations had not. So Sextus Empiricus, Simplicius. [See.] Aristotle notes a similar right among the Persians as tyrannical. Where we are to distinguish accurately Civil Law from Natural Law.

VIII. 1 The right over persons which arises ex consensu, from consent, flows either from partnership or from subjection. The most natural form of partnership appears in marriage; but on account of the difference of sex, the authority is not common to the two; the husband is the head of the wife (Eph. v. 23); namely, in matters relating to the marriage union and to the family: for the wife is part of the husband’s family. Thus to determine the place of domicile, is the husband’s office. If any further rights are given to the husband, as by the Hebrew law, the right of disallowing the vows of the wife, and in some nations, the right of selling the wife’s goods, this is not by Natural Law, but by institution.

The subject requires that we consider the nature of the marriage union.

2 Marriage, by Natural Law, we conceive to be such a cohabita­tion of the male and female, as places the female under the protection and custody of the male; for such a union we see in some cases in mute animals. But In man, as being a rational creature, to this is added a vow of fidelity by which the woman binds herself to the man.

IX. 1 Nor does nature appear to require any thing more for the existence of marriage. Nor does the divine law seem to have required more, before the propagation of the gospel. For holy men, before the law, had more than one wife; and in the law, precepts are given to those who have more than one; and the king is commanded not to have many wives, or horses; whence the Hebrew commentators note that the king might have eighteen wives or concubines; and God says to David that he had given him many wives.

2 And in like manner a process is appointed for him who wishes to put away his wife; and no one is prohibited from marrying her who is put away, except him who put her away, and a priest. But this liberty of going to another husband is to be so restricted, even by Natural Law, that no confusion of offspring shall arise. Hence the question of pontifical law in Tacitus; whether after the conception and before the birth of the child a woman might lawfully marry. By the Hebrew law three months must be interposed between the marriages.

But the law of Christ refers, as other things, so this, to a more perfect rule; and by this, pronounces him who had put away a wife, except an adulteress, and him who married one thus put away, as guilty of adultery; and Paul, his Apostle and Interpreter, not only gives the man a right over the body of the woman, which also was the 96Natural Law, [see Artemidorus] but also gives the woman right over the body of the man. So Lactantius says that each party may be guilty of adultery.

3 I know that most hold that, in both these places, Christ did not establish a new law, but restored that which God had established in the beginning of things; and to this opinion they are led by the words of Christ, where he speaks of what was in the beginning. But to this it may be answered, that doubtless, from that first condition, in which God gave one woman to only one man, it does sufficiently appear what is best and most agreeable to God; and hence it follows that such a condition was always excellent and laudable; but it does not follow that it was sinful to do otherwise; for where there is no law, there is no transgression; and at that time, there was no law, on that point, in existence. Thus when God said, either through Adam or through Moses, that the marriage union was so close that a man must leave the family of his parent to make a new family with his wife, it is nearly the same as what is said to Pharaoh’s daughter, Psal. xlv. Forget also thy people, and thy father’s house. From this institution of so close a union, it appears sufficiently that it is most agreeable to God that that conjunction should be perpetual; but it does not thence follow that God had then commanded that the tie should not be loosed on any account. But Christ forbade that man should put asunder what God had joined together; thus taking, from that condition which is best and most agreeable to God, matter most worthy of the new law.

4 It is certain that in ancient times most nations used both the liberty of divorce and also plurality of wives. Tacitus notices that the Germans were, in his time, almost the only barbarians who were content with single wives: and that appears constantly in the histories of the Persians and the Indians. Among the Egyptians, the priests alone had only one wife. In Greece, Cecrops was the first who gave one wife to one husband. And if any peoples had a more continent practice, as the Romans always abstained from two wives, and long from divorce, they are to be praised as having made an advance to what was best. Hence also the wife of the Flamen Dialis, the priestess of Jupiter, could not have her marriage dissolved but by death. Yet still it does not follow that they sinned, who did otherwise before the promulgation of the Gospel.

X. 1 Let us now see what marriages are valid by Natural Law: in deciding which, we are to recollect that not everything which is contrary to the Law of Nature [that is to the moral nature of man] is void by Natural Law; as appears by the example of a prodigal donation: [which is contrary to the natural virtue of prudence, and yet valid.] Those acts only are invalid, in which there is wanting a principle giving validity to the act, or in which the vice continues in its effect. The Principle, both here and in other human acts in which Right is created, is, that which we have called a moral Faculty or jural claim, joined with a sufficient Will.

97 What sort of will is sufficient to create a Right, will be better treated further on, where we speak of promises in general. With regard to the jural claim, a question arises concerning the consent of parents, which some require as naturally requisite to the validity of marriage. But in this they are wrong; for the arguments which they adduce only prove how suitable it is to the duty of sons to obtain the consent of their parents: which we concede without hesitation, with this limitation only, that the will of the parents be not manifestly unjust. For if sons owe in all things a reverence to parents, they do so especially in a matter which has a national bearing, as is the case with marriage. But this does not shew that the right which we call a jural claim is not possessed by the son. For he who marries a wife ought to be of mature age; and he goes out of the family, so that in this matter he is not subjected to the family government. And the duty of reverence alone does not make null an act which is contrary to it.

2 The rule established by the Romans and others, that certain marriages, because the consent of the father is wanting, shall be void, is not a rule of Natural Law, but depends on the will of the lawgiver. For under the same rule, the mother does not make the marriage void by her dissent; though the children by nature owe obedience to her; nor does the father, after his son is emancipated; and if the father be still under the authority of his father, both the father and the grandfather must consent to the nuptials of the son, while for the daughter, the authority of the grandfather is sufficient; which differences, unknown to Natural Law, shew sufficiently that these rules come from the Civil Law.

3 In the Scripture we see indeed that pious men, and much more women, (whose modesty makes it suitable for them to act on another’s will in this matter; to which view also pertains what is said 1 Cor. vii. 38, He that giveth her in marriage, &c.) have, in contracting matrimony, conformed to the authority of their parents. Yet Esau’s marriage [who took his wives of the daughters of Canaan, in spite of his father’s disapprobation, Gen. xxviii. 8; xxxvi. 2] is not pronounced void, or his children illegitimate. So Quintilian, looking at strict Natural Law. [See.]

XI. Marriage with a woman already married to another, is doubt­less void by Natural Law, except her former husband have dismissed her; for so long his authority over her continues. It is void because the jural claim is wanting, being taken away by the former marriage, and the whole effect [of the second marriage] is vicious. Every act connected with it is a trespass on what belongs to another.

On the other hand, by the law of Christ, marriage with him who is the husband of another woman is void, on account of the right which Christ has given a virtuous wife over her husband.

XII. 1 The question concerning the marriage of those who are connected by blood or affinity is sufficiently grave, and not unfre98quently stirred with great vehemence. For if any one tries to assign certain and natural causes why such unions, in the cases in which they are forbidden by law or by usage, are unlawful, he will find that that is difficult, and indeed impossible. For the reasons given by Plutarch and Augustine [see], that social ties are to be extended more widely by diffusing our relationships, is not of such weight that what is done against it can be deemed void or unlawful. For that which is the less useful of two courses, is not thereby forthwith unlawful. Add, that it may happen that whatever the amount of utility on this side be, it may be outweighed by a greater utility on the other side; and that, not only in the case of exception mentioned in the Hebrew Law, when a man dies without offspring, (which is of the same kind as the rule about heiresses in the Hebrew and Attic law,) namely to preserve the property of the family in the family; but also in many other cases, which occur or may be imagined.

2 From this general remark, I except the union of parents of any degree with their children; for, if I am not deceived, the reason why such unions are unlawful is apparent. For the husband, who is the superior by the law of matrimony, could not pay to his mother (being his wife) the reverence which nature requires; nor could a daughter to a father; for though she is inferior in the marriage union, yet the marriage introduces a companionship which excludes filial reverence. Paulus the Jurist says that Natural Law and modesty are to be regarded in contracting marriage, and adds, that it is against modesty for one to have his own daughter to wife. Such marriages, then, are both unlawful, and also void, because the vice has a perpetual effect.

3 Nor need we be moved by the argument of Diogenes and Chrysippus, taken from cocks and hens, and other animals; by which they try to prove that such unions are not against Natural Law. For, as we have said in the beginning of this Book, it is enough, if anything is contrary to human nature, to prove it unlawful. And Incest between ascending and descending degrees is so. So Paulus, Xenophon, Michael Ephesius, Hippodamus, Lucan, Dio Prusæensis.

4 And here we cannot but wonder at the reasoning of Socrates in Xenophon, who finds nothing to blame in such marriages but the disparity of years, whence must follow either barrenness, or an ill-formed progeny. If this reason alone were the obstacle, certainly such unions would be neither unlawful nor void; any more than between other persons whose ages are as different as those of parents and their children usually are.

5 We are rather to consider whether, in men not depraved by education, there is not, besides the reason given by the understanding, a certain horror of such union with parents and offspring, residing in the affections themselves; since even some animals have such a horror. So many have thought: Arnobius; Aristotle of the camel, and the Scythian horse; Oppian; Seneca in the Hippolytus.

99 XIII. 1 We must next consider the question concerning the degrees of affinity, and the degrees of consanguinity in a transverse line; especially those which are expressly mentioned, Levit. xviii. For though we should grant that these interdicts do not proceed from the mere Law of Nature, yet in virtue of the Divine precept, these unions may pass among forbidden things. And that the precept is one which does not bind the Hebrews only, but all men, seems to be collected from the words of God, Lev. xviii. 24, 25, 27, Do not ye pollute yourselves, &c.

2 For if the Canaanite, and their neighbours sinned in doing such things, it follows that some law of God on that subject must have gone before; and as this is not merely a Natural Law, it remains that it was from God, either given to those nations peculiarly, (which is less probable, nor do the words carry that meaning,) or to the human race; either at the Creation, or at the restoration of things after the Deluge. And such laws, which were given to the whole human race, were not, it appears, abrogated by Christ; but those laws only which separated the Jews from other nations. Add to this, that Paul speaks of the marriage of a man with his father’s wife as something shocking, though there is no special precept of Christ on that subject; nor does he use any other argument than that such a union is held to be impure even by the heathen. And that it is so appears in ancient authors. So Charondas; Lysias; Cicero; Plutarch; Virgil. And if this common opinion was not drawn from a dictate of nature, it follows that it descends from an old tradition originating in a divine precept.

3 ^*The ancient Hebrews, who are not to be thought slightly of as commentators on this part of the divine law, and especially Maimonides, the greatest of them, says that there are two reasons for these laws, given Lev. xviii., concerning marriage: First, a natural modesty which does not permit persons to mingle with their own offspring, either in themselves, or in persons closely connected by blood or by marriage union: Second, lest the daily and confidential intercourse of certain persons should give occasion to sexual union, if such union could be confirmed by marriage. Which two causes if we judiciously apply to the laws given in Leviticus, it will easily appear that in the first transverse degree of blood, (brothers and sisters,) on account of the very recent image of the parents in the children, the first cause holds, as proceeding from that which, if nature does not command, at least she points out as more becoming: as there are many such things, which make the matter of divine and human laws.

4 Hence the Hebrews say that in the direct line the degrees not named in the law are comprehended, from the manifest parity of reason. These degrees they thus reckon: mother’s mother; mother’s father’s mother; father’s mother; father’s father’s mother; father’s father’s wife; mother’s father’s wife; son’s daughter-in-law; son’s 100son’s daughter-in-law; daughter’s daughter-in-law; son’s daughter’s daughter; son’s son’s daughter; daughter’s daughter’s daughter; daughter’s son’s daughter; wife’s son’s daughter’s daughter; wife’s daughter’s daughter’s daughter; wife’s father’s mother’s mother; wife’s mother’s father’s mother: which the Romans express in a different way. And so in infinitum if it could be necessary.

5 These laws, and the law against the marriage of brother and sister, the Hebrews think were given to Adam at the same time with the laws, to worship God, not to shed blood, to worship no false gods, not to take what is another’s. But they think that the laws concerning the conjugal union were given so that they should not be in force till the human race was to a certain extent multiplied; which could not take place at first without the marriage of brothers and sisters. Nor do they think it any objection to this account, that it is not given in the narration of Moses; for he held it sufficient to indicate this tacitly, by condemning other nations on that ground: For that there are many things in the Law which are not told in the order of time, but as occasion offers; whence that noted maxim of the Hebrews, that in the Law there is no before and after.

6 On the union of brothers and sisters, see Michael Ephesius, Diodorus Siculus, Dio Prusæensis, Seneca, Plato.

7 All which passages show the ancient opinion of a divine law, against such marriages; whence we see they are called nefas.

XIV. 1 These manifest expressions show what a difference there is between these and remoter degrees. For to marry a father’s sister is forbidden; but a brother’s daughter, who is in the same degree, it is not forbidden to marry; and there are examples of it among the Hebrews. So this was done at Rome and at Athens: See Tacitus, Isæus, Plutarch. The Hebrews give a reason, that young men usually frequent the houses of their grandfathers and grandmothers, or even live in them along with their aunts; but they have not the same access to the houses of their brothers, nor so much freedom there. If we accept this, as indeed it seems to be reasonable, we must confess that the law of not marrying relations in the right line, and sisters, since the human race was multiplied, is perpetual; and common to all men, as depending on natural decency; so that whatever is done against this law is void on account of the abiding vice of condition: but that the other laws are not so; but contain rather a caution than a law, which caution may also be applied in other ways.

2 Certainly in the ancient (so called) Apostolical Canons, he who married two sisters successively, or his niece (the daughter of his brother or sister) was only excluded from the clerical office. Nor is it difficult to answer what was said concerning the sin imputed to the Canaanites and the neighbouring peoples. For the universal terms may be restricted to the principal heads: the pollutions of the Canaanites may be those which are mentioned Lev. xviii. 22, 23; 101and the other laws, concerning incest, are added as an outwork to these.

That the expressions cannot be understood of every part, we may see by the prohibition of having to wife at the same time two sisters, which we cannot suppose was a universal rule, since Jacob transgressed it. So Amram the father of Moses married his aunt, and among the Greeks, Diomedes married his mother’s sister; Iphidamas, the same; Alcinus, his brother’s daughter.

3 But the early Christians did well, who spontaneously observed, not only those Laws which were given as common to all, but also those peculiarly given to the Hebrew people; and even extended their modesty to other ulterior limits, so as to surpass the Hebrews in this virtue, as in other things. And it appears from the Canons that this was done. So Augustine says, that what was not forbidden, as marriage of cousins, was avoided, as approaching forbidden ground. And this feeling was followed by the laws. Theodosius forbade the marriage of cousins, and Ambrose praised him for doing so.

4 But it is to be understood that what is forbidden by human law is not necessarily void when it is done, except the Law so directs. The Canon LX. of Seville says, if any one after the death of his wife shall marry her sister, he shall be excluded from the Communion five years; thus shewing that the tie of matrimony remains. And as we have said, in the Apostolical Canons, he who married two sisters, or a niece, was only excluded from the Clergy.

XV. 1 To proceed to other matters, we may observe that, in some cases, concubinage is a true and valid marriage, although it be deprived of some of the peculiar effects of the Civil Law, and even lose some of its natural effects by the impediment of the Civil Law. For example, the union of a slave with a maid servant is, by the Roman Law, cohabitation, not marriage; but yet, in such a union, there is nothing wanting to the nature of marriage, which accordingly, in the old Canons, is called γάμος, marriage. And so the union between a free man and a female slave is called concubinage, not marriage; and this name was afterwards extended to other persons of unequal quality; as at Athens, to a union between a citizen and a foreigner. So in Virgil, Aristophanes, Ælian, the child of a foreign mother by a citizen is called nothus, illegitimate. [See.]

2 But as in a state of nature, such unions as we have spoken of might be true marriage, if the woman was under marital custody, and had vowed fidelity to the husband; so also in the state of the Christian Law, a union between a slave and a male servant, or between a free man and a female slave, will be a true marriage; much more a union between a citizen and a foreigner, or a senator and a freed woman; if the conditions which are necessary by instituted Christian Law are present, namely, the indissoluble conjunction of one man and one woman; although some effects of the Civil Law may not follow this union, or some which would spontaneously follow may be impeded. 102In this sense are to be understood the words of the first Council of Toledo: He who, not having a wife, has a concubine, is not to be rejected from the Communion; so only that he be content with the society of one woman, whether wife or concubine. Add to this, the passage in the Clementine Constitutions. So Theodosius and Valentinian call certain cases of concubinage unequal marriages, and say that a charge of adultery may arise out of them.

XVI. I And even if human Law forbid marriages between certain persons, it does not follow that the marriage is void, if it be really contracted. For these are two different operations, to prohibit, and to annul what is done. For prohibition may exert its force by a penalty either express or arbitrary. Ulpian calls this kind of Laws imperfect, which forbid a thing to be done, but do not rescind it if done. Such was the Cincian Law.

2 Afterwards there was a law of Theodosius made, that if the law had only prohibited a thing, and had not specially said that what was done in contradiction of it was void, yet that the thing so done was null, void, and of no effect; that is, if the matter came into a court of justice. But this was not in virtue of the prohibition alone, but of the new Law; and such a rule other nations are not bound to follow. For often the indecency in the act is greater than in the subsequent effect; and often the inconveniences which follow the rescinding of the act are greater than the indecency or inconvenience of the act itself.

XVII. Besides marriage, the most natural of partnerships, there are others, both private and public; and these latter, either partnerships in populum or ex populis. All partnerships have this in common, that in those matters for which the partnership was instituted, the whole body, and the majority as representing the whole, bind the special members of the partnership. For it must be supposed to have been the intention of those who united to make the society, that there should be some way of promoting business; and it is manifestly unjust that the greater part should follow the less; wherefore by Natural Law, not taking into account pacts and laws which prescribe a form for conducting business, the majority has a right to act for the whole. So Thucydides, Appian, Dionysius Halicarnassensis, Aristotle, Curtius, Prudentius, Xenophon. [See.]

XVIII. If the opinions are equally divided, nothing must be done; for then there is not so much power of movement as is requisite for a change. And for this reason, if the opinions of the judges are equally divided, the accused is acquitted; by what the Greeks call Minerva’s vote. [See Æschylus and Euripides.] So too the person in possession keeps the property. [See Aristotle and Seneca.]

XIX. Here a question often arises how the votes are to be taken, together or separate. And here, so far as Natural Law goes, that is, if there be no pact nor precept of Law, there is to be a difference made between the opinions which are altogether different, and those 103of which one contains a part of another; and these latter are to be conjoined in the point in which they agree. Thus if one party of the judges would fine a man in 20 pounds, and one in 10, they are to be joined, as to the 10, against the party which would acquit. But those who vote for the death of the accused, and those who vote for his exile, are not to be conjoined; for death does not include exile. But also those that acquit must not be joined with those who vote for exile; because although they agree not to put the accused to death, that is not precisely what the vote expresses, but is deduced from it by a consequence, for he who exiles does not acquit. Whereupon Pliny, when something of this kind had happened in the senate, said that the diversity of opinions was so great that they must be taken singly; and that it made little difference that several rejected the same thing, if they could not all accept the same thing. So Polybius notes that Postumius the Prætor took an unfair course with regard to the Greeks, when he took the votes, and put together those who condemned them to slavery, and those who thought they should be kept for a limited time, against those who absolved them. So other cases in Gellius and in Quintilian.

XX. This also is to be added, that if any members are absent, or otherwise prevented from using their vote, their right devolves on those who are present. [See Seneca.]

XXI. The natural order of precedence in a partnership is the order in which the members have come into it. So the eldest brother always retains his superior privileges. See Aristotle. So Theodosius and Valens, of precedence between the Consuls. So in the general association of Christian kings and nations, formerly those had precedence in the councils who had first professed Christianity.

XXII. It is to be added however, that when a partnership has its foundation in property which all do not equally share in; as if, in an inheritance or other estate, one person has a half, one a third, one a fourth; then, not only is the order of precedence to follow the order of shares, but also the weight of the votes must be proportional to the shares. And as this is the rule of natural equity, so is it also the rule of the Roman Law. So Strabo mentions a league between Cibyra and those neighbouring cities, in which Cibyra had two votes, (as contributing more,) the others, one each. And again, in Lycia, he says there were 23 cities of which some had 3 votes, some, 2, some, one only, and bore the burthens in the same proportion. But, as Aristotle says, this is right, if the partnership be formed for the sake of possession.

XXIII. An association in which many fathers of families coalesce into one people and state, gives the greatest right to the body over its parts; for this is the most perfect society; nor is there any external act of man which either does not regard this society of itself, or may not regard it from circumstances. It may, as Aristotle says, make laws on all subjects.

104 XXIV. 1 It is often asked, whether citizens may quit the State without leave obtained. We know that there are peoples where this is not permitted, as the Muscovites; nor do we deny that civil society maybe formed on such a pact, and that usage may take the force of a pact. By the Roman Laws, at least in their later forms, a person was allowed to remove his domicile; but he who had done so, was still bound by the obligations of the town to which he belonged. Those who were under such rule remained within the limits of the Roman empire, and the rule referred specially to the interests of the tributary collection.

2 But the question for us is, What ought to be the rule by Natural Law, if no agreement has been made; and this, as relates, not to any part only, but the whole of the state or the whole body of a sovereign empire. And that the subjects may not depart in large bodies, is evident enough from the necessity of the end, which gives a right in moral matters; for if that were permitted, Civil Society could no longer subsist. With regard to the emigration of individuals, the case is different; as it is one thing to take water out of a river in a vessel, another thing to turn off a part of the river by a side cut. Some hold that each ought to be at liberty to choose his own city: so Tryphoninus; Cicero. But here the rule of natural equity is to be observed, which the Romans followed in winding up the affairs of private societies; that it should not be done, if the interests of the society forbade: That is to be done, said Proculus, not which is the interest of one member, but of the whole society. And it is for the interest of the society that a citizen should not leave the country, if the country be greatly in debt, except the citizen is prepared to pay his part; and again, if the country have undertaken war, relying upon its population, especially if a siege be likely; except that citizen be willing to find a substitute to take his place in defending the country.

3 Except in these cases, it is to be supposed that a people agree to the free departure of citizens; for they derive advantages from it in other ways.

XXV. The State has no authority over exiles. So say the Heraclidæ in Euripides; so the son of Alcibiades in Isocrates.

The association of several peoples, either by themselves or by their heads, is a League: and we shall hereafter treat of such, when we come to obligations by compact.

XXVI. [Next of Subjection by Consent, as a kind of Association.]

Subjection by consent is either private or public. Private subjection by consent may be manifold, as there are many kinds of [private] government. The noblest species of this is Arrogatio, by which a person who is his own master, gives himself into the family of another, to be subject to him, in the same manner that a son of mature age is subject to a father. But a father cannot give his son to another, in such a manner that the paternal power passes fully to him, and that he should discharge the office of father; for this, nature does not suffer. 105But he may commend his son to another, and give him to the other to be brought up as an adopted son.

XXVII. 1 The most ignoble species of subjection is that in which a person gives himself into perfect slavery; as those among the Germans who played the last throw of the dice for their own liberty, as Tacitus says. So Dio Prusæensis.

2 That is perfect slavery, when a man gives his whole labour forever for the sustenance and other necessaries of life. If the matter is thus taken in natural terms, there is nothing shocking in this; for the perpetual obligation to labour is compensated by the perpetual certainty of food; which often those have not who work for daily wages. See Eubulus; Posidonius.

XXVIII. Masters have not over slaves the power of life and death, (I speak of plenary and internal jurisdiction,) nor can any one lawfully put a man to death, except he have committed a capital offense. But by the laws of some peoples, the master, if for any cause he has killed his slave, meets with impunity, as absolute kings do. Seneca before us had used this comparison. And yet undoubtedly a slave may receive a Wrong from his master, as Seneca also affirms; but impunity is not properly called a Right. The like right Solon gave parents over children, as did the old Law of Rome. See Sextus Empiricus and Dio.

XXIX. 1 The question concerning those who are born slaves, is more difficult. By the Roman Law, and by the Law of Nations respecting captives, as we shall explain elsewhere, as in beasts, so in men of servile condition, the offspring follows the mother; which however is not sufficiently congruous to Natural Law, when the father may be known by sufficient evidence. For since in dumb animals the father, no lees than the mother, shares the care of the offspring, we have, in this, an evidence that the progeny belongs to both. And thus, if the Civil Law had been silent on this point, the progeny would follow the father no less than the mother. Let us suppose then, to make the difficulty less, that both the parents are in slavery; and let us see whether the offspring would be of servile condition by Natural Law. Certainly if there were no other means of bringing up the offspring, the parents might give their future progeny along with themselves into slavery: since on such grounds, parents may even sell their children.

2 But since this Right by Natural Law flows from necessity only, it is not the right of the parents, in any other case, to give their children into slavery. And therefore the right of the owners over the progeny of slaves arises, in this case, from their supplying sustenance and the other necessaries of life. And thus, when the children born of slaves are to be supported for a long time, and the subsequent labour corresponds to the aliment afterwards supplied, it is not lawful for those thus born to escape slavery.

But if the cruelty of the owner be extreme, it is a probable opinion 106that even those who have given themselves into slavery may seek refuge in flight. For what the Apostles and the ancient Canons prescribe to slaves, that they are not to withdraw themselves from their masters, is a general rule only, and delivered in opposition to the error of those who rejected all subjection both private and public, as contrary to Christian liberty.

XXX. Besides complete slavery, of which we have now spoken, there are imperfect kinds of slavery; as those which are for a time; or under a condition; or to perform certain work. Such 1s the state of liberti, freedmen; statu liberorum^*, manumitted by testament under a pendent condition; nexi, slaves for debt; addicti, slaves by sentence of a judge; ascripti glebæ, serfs conveyed with the land; and the slavery among the Hebrews for seven years, and that which lasted till the Jubilee. So the Penestæ of Thessaly; so what are called mortuæ manus, villein tenants; and finally, mercenaries; which differences depend on law or on compacts. Also by the Natural Law the condition of those, one of whose parents is of free and the other of servile condition, seems to be an imperfect slavery, for the reasons given above.

XXXI. That is public subjection, in which a people gives itself into subjection to one man, or to many, or to another people. We have above given the formula of such a subjection, in the case of Capua. (B. I. c. iii. § viii.) So the formula used in the case of the Collatine people: See Livy: to which Plautus alludes. The Persians call this presenting earth and water. There are other modes of public subjection less perfect, either as to the mode of possessing such subjects, or as to the plenitude of authority; the degrees of which may be sought in what we have said above (B. I. c. iii.).

XXXII. Subjection from delict or delinquency, may arise without preceding consent, when he who has deserved to lose his liberty is reduced by force into the power of him who has a right to punish him. Who has the right to punish, we shall hereafter see. (B. II. c. xx. § iii.) And in this way, not only may individuals be reduced into private subjection; (as at Rome those who did not appear to answer to a charge of delict, and those who had made a false return of their property; and afterwards, women who had married the slave of another master.) but also peoples might be reduced into, public subjection for a public delict. There is this difference, that the slavery of a people is of itself perpetual, because the succession of parts does not prevent its continuing to be one people. But the slavery of individuals does not go beyond the person; because the consequences of the crime follow the criminal. But both kinds of slavery, public and private, may be penal, whether it be perfect or imperfect, according to the nature of the crime and the punishment.

Of the slavery both private and public which arises from the instituted Law of Nations, we shall have an opportunity of speaking hereafter, when we come to the effects of war. (B. III. c. vii.)