[387] CHAPTER XIV.

Restraints respecting Prisoners.

I. 1 IN those places in which the captivity and servitude of men is usual, it must, if we regard internal justice, be limited in the same way as property; so that we may have such acquisitions, only so far as is permitted by the amount of a debt, either primary or subnascent; except there should be some peculiar delict, which equity allows to be punished by the loss of liberty. So far, therefore, and no further, has a belligerent right over captive enemies, and the power of a valid transfer of such right to others.

2 It will moreover be the duty of equity and goodness, to apply, here also, those distinctions which we noted before, with regard to killing enemies. Demosthenes praises Philip, because he did not make slaves of all who had been his enemies, but weighed their deserts.

II. I But first, this is to be noted; that the right which arises from citizens being a sort of surety for the State, is by no means to be extended so widely as the right which arises ex delicto against those who are penal slaves. And thus, a certain Spartan said, that he was a captive, but not a slave. For if we rightly look at the matter, this general right against captives, is on a like footing with the right of a master over those who have sold themselves into slavery under the compulsion of want; abstracting the heavier part of their calamity, that they have come into that case, not by any special act of their own, but by the fault of the rulers. It is the bitterest lot, to be a captive by the laws of war, as Isocrates says.

2 This servitude, then, is the perpetual obligation of working for perpetual ailment. The definition of Chrysippus here exactly applies; A slave is a perpetual labourer for hire. And the Hebrew law plainly compares him who, under the compulsion of need, has sold himself, to a labourer for hire; and directs that, in redeeming him, his labour 388shall be reckoned in the same way, that the produce which has been gathered from land sold, is to be reckoned to the former owner. Deut. xv. xviii.

3 There is a great difference between that which may be done with impunity towards a slave by the Law of Nations, and that which natural reason suffers to be done. We have before cited Seneca to this effect. So Philemon says, A slave does not cease to be a man. Seneca adds that Slaves are not only men, but fellow-lodgers, humble friends, fellow­servants: agreeing plainly with what St Paul says, Colos. iv. 1. And elsewhere, Eph. vi. 9, he directs masters to do good to their slaves, forbearing threatening, on the same ground, knowing that their Master also is in heaven, who does not regard such differences. In the Clementine Constitutions we have the same. So Clemens Alexandrinus bids us use our slaves as our other selves, since they are men no less than we; following the saying of the Hebrew wise men.

III. The right of life and death over a slave, then, gives the master a domestic jurisdiction; which, however, is to be exercised with the same regard to conscience, as a public jurisdiction. So Seneca, as before; and again, he compares a slave to a subject, and says that, though by a different title, the same things only are lawful in the one case as in the other; which is especially true with regard to this right of taking away life, and what approaches to it. Our ancestors, says Seneca, regarded a house as a small republic: so Pliny. Cato the Censor, if any slave was supposed to have committed a capital offense, did not punish him, till he had been condemned by the judgment of his fellow-servants. See Job xxxi. 13, If I did despise the cause of my man­servant, &c.

IV. And even with regard to smaller punishments, as stripes to servants, we must apply equity, and even clemency. The Hebrew law says, Deut. xv. 17, 45, 53, Thou shalt not oppress him nor rule him harshly, of their servants; which must now by analogy be extended to all servants. And on this Philo comments. So Seneca says, Is it not savage and foolish to treat servants worse than brute animals? &c. Hence by the Hebrew law, If a man smote out the eye or tooth of a servant, he obtained his liberty. Exod. xxi. 26.

V. 1 There is, moreover, to be moderation and regard to the servant’s health, in the work required of him. And this, among other things, is aimed at in the institution of the Hebrew Sabbath; that there may be a breathing time from labour. So Pliny, to Paulinus, speaks of their common kindness to their slaves; quoting Homer, who speaks of Priam being always kind as a father; and saying that he always recollects the Roman word Paterfamilias.

2 So Seneca judges of lessons contained in this word paterfamilias, and in the name for slaves, familiares. So Die Prusæensis ways that a good king will not like the term master, not only of freemen, but even of slaves. Ulysses, in Homer, says that the slaves who have been faithful, shall be as if they were brothers of Telemachus his 389son. Tertullian says, fathers rather than masters. Jerome or Paulinus exhorts Celantia to be a mother rather than a mistress of her family. So Augustine says that masters help their servants to worship God.

3 There is a similar lesson of piety in the word puer for servant, as Servius notes. So the Heracleotes called their slaves gift-bearers. Tacitus praises the Germans whose servants were as tenants. Theano says that slaves should not suffer from over-labour or want.

VI. 1 In return for labour, sustenance and clothing are due to the slave. So Cicero, Aristotle, Cato, Seneca. The food allowed was four bushels of wheat a month. Martianus the jurist speaks of the things which the master is bound to provide the slave, as clothing and the like. The cruelty of the Sicilians, who starved the Athenians, is branded in history.

2 Moreover Seneca proves that, for some purposes, the slave is free; and that he has the means of conferring benefits on his master; as, if he do anything which exceeds the measure of a slave’s duty, and which proceeds, not from command, but from good-will, where there is a transition from service to the affection of a friend. With this agrees what Terence says, (in the Phormio) that if a slave has saved anything by living sparely, or working over-hours, it should be in a way his own. Theophilus defines the physical means of a slave to be a natural patrimony, as we might define contubernium, the cohabitation of slaves, to be a natural matrimony: and Ulpian says the peculium, the slave’s private store, is a little patrimony. Nor does it make any difference, that the master may, at his pleasure, take away or diminish this peculium; for if he do this without cause, he will not do what is just. And by cause, I here understand, not only punishment, but also the need of the master; for the advantage of the slave is subordinate to the advantage of the master, even more than the advantage of the citizens to that of the State. So Seneca, We are not to say that the slave has nothing, because he will have nothing if the master refuse his permission.

3 And hence it is, that the master cannot recover from the slave a debt which was due to him during his servitude, and which he paid after manumission; because, as Tryphoninus says, the distinction of indebted and not indebted, is understood according to Natural Law, and not according to Civil Law, in such an action for debt; and the master may owe a debt to the slave by Natural Law, though not by Civil Law. And accordingly, we find, that as clients have made contributions for the use of their patrons, and subjects for the use of kings, so slaves have done the same for the use of their masters; for instance, for the dowry of a daughter, the ransom of a son, or any similar object. Pliny, as he tells us in his Epistles, allowed his servants to make wills, and to dispose of their property within his family. In some nations, we have read of a larger right of acquiring property being conceded to slaves; as we have elsewhere said, that there are several degrees of slavery.

390 4 In many nations, the laws have reduced that external right of masters to this internal justice which we are expounding. For among the Greeks, when slaves were harshly treated, they were allowed to demand their sale: and at Rome, to fly to the statues for refuge, or to implore the help of magistrates against cruelty or starvation, or intolerable wrong. This is a matter, not of strict law, but of humanity and kindness and sometimes this makes the slave’s liberty his due, after long or very great labours.

5 When Slavery was introduced by the Law of Nations, the benefit of Manumission was added, says Ulpian. So in Terence, the slave is made a freedman, for serving liberally. Salvian says that slaves have often their liberty given, and are allowed to take with them their property. Of this kindness, we have many examples in the martyrologies. And here, we must praise the kindness of the Hebrew law; which directed that the Hebrew slave was, after a certain time, to be absolutely manumitted, and “not empty,” Deut. xv. 13: of the neglect of which law the prophets complain heavily. Plutarch condemns Cato the Elder, because he sold his slaves when past work, thus disregarding the common bond of human nature.

VII. The question here occurs, whether he who is taken prisoner in war may justifiably make his escape. We do not here speak of him who has merited such punishment by crime, but who has been brought into the condition by some public event. The truer opinion is, that the step is not justifiable; because, as we have said, by the common convention of nations, he owes his labour on the part of the State. Which, however, is to be understood, with the provision that intolerable cruelty do not impose on him such a necessity. See on this subject the Response of Gregory XVI.

VIII. I We have elsewhere discussed the question, whether, and how far, children, born of slaves, are bound to the master by internal justice; and this question ought not to be omitted in its especial bearing on prisoners of war. If the parents had, by crime, deserved the penalty of death, their prospective posterity might be bound to slavery, as a condition of life spared, because otherwise they would not have come into existence: for parents may sell their children into slavery, on account of the want of sustenance which would otherwise fall upon them, as we have said. Such was the right which God granted to the Hebrews over the posterity of the Canaanites.

2 And those who were already born, might be liable for the debt of the State, as being part of the State, no less than their parents. But this cause does not seem sufficient, in those who are not yet born; some other seems necessary; either the express consent of the parents, added to the necessity of providing sustenance for them, and that, for ever; or the actual supply of sustenance, and that holds only till they have worked off the whole expense of their maintenance. If any right beyond this is given to the master, it seems to proceed from a Civil Law, too liberal to masters.

391 IX. 1 Where this right of servitude arising from war is not established by use, it will be the best course to exchange the prisoners; and next to that, to let them be ransomed at a reasonable rate. What this is, cannot be precisely defined: but humanity teaches us that it should not be stretched so far that it leaves the prisoner without the necessaries of life. For even the Civil Law grants this indulgence to many who have come into debt by their own act. In other cases, this is determined by law or custom; as anciently, among the Greeks, the ransom was set at a mina, and among soldiers, at a month’s pay. Plutarch says that the Corinthians and Megareans carried on war humanely. Captives were reckoned as the guests of their captors, and dismissed on their promise.

2 More lofty in spirit is what Cicero quotes of Pyrrhus (Off. I.12); so Cyrus; Philip, after Chæronea; Alexander, towards the Scythians; Ptolemy and Demetrius contending in generosity to prisoners, as in arms. Dromichætes, king of the Getæ, made Lysimachus his prisoner, his guest, and a witness of the poverty and equity of the Getæ, and thus gained him as his friend.