156

EFFECT OF CHRISTIANITY.

hammedan sovereignties; the intercourse of those nations, recognizing such law, with others not knowing it, being always presumed to be regulated by that part of the international law which has been sometimes called 'the natural law of nations,' that is, by general principles of morals applied to public relations: the application being professedly made according to the moral sense of the, so called, civilized nations, assuming a superior knowledge of the dictates of enlightened reason.*

§ 160. During the later period of the Roman empire the diffusion of Christianity gave additional force to ideas of humanity and benevolence, as rules of duty in social action independent of laws enforced by the state, and may be supposed to have moderated the severity of the ancient slavery, both as the effect of international wars and of municipal regulations: at least between those professing a faith which required a distinct recognition of individual capacity and responsibility in all natural persons, and which, by constituting all its adherents into a spiritual commonwealth, established a peculiar equality between them; comparing them to members of a family, in having such a bond of union." But whatever change may have taken place in consequence does not appear to have been made by any systematic interference of the civil power. It is to be remembered that the code of Justinian, though digested from ancient laws, was the code of a Christian state and sovereign ;*

1 Heffter: Europ. Völkerr. § 7.

2 The opinion of Dominic De Soto, de Justitia et de Jure, quoted by Mackintosh, Hist. Eth. Philos. p. 110, was, that there can be no difference between Christians and Pagans, "for the law of nations is equal to all mankind." It is doubtful whether international law or universal (private) law was intended by this author; but, in either sense, it is not a correct statement of what the law of nations was at that time, as historically known. The author, as many writers since his time have done, confounded the jus gentium with his own idea of natural justice.

Grotius: B. et P., Lib. I. c. i., 14, 15. Huber, de Jure Civitatis, lib. 2, ch. 3, § 6. Lactantius, L. v. Div. Inst. c. 16. "Facile inde contigit nedum ut Christiani servos suos, præsertim Christianos, veluti fratrum loco haberent."

Proœmium to Institutes begins: "In nomine Domini nostri Jesu Christi, Imperator Cæsar," &c. Constantine, the first Christian emperor, died A. D. 337. Justinian died A. D. 565.

See statement of Roman legislation respecting slaves from time of Hadrian to Theodosius the Great; Blair: Slavery among the Romans, Ch. IV., pp. 85–89, and Wallon, Hist. de l'Esclavage.

Guadentius, de Justiniani sæculi moribus, ch. XIII. (Meerman's Thesaurus, Vol. III. p. 679), thinks it most probable that captives in war, even if Christian, were made slaves under Justinian.

PERSONALITY RECOGNISED.

157

and the early church, even in those territories where it held civil as well as ecclesiastical power, did not abolish the relation, or prohibit its future inception; but appears to have recognized it as lawful, even between Christians, though gradually modifying it, by using its spiritual authority to enforce the dictates of humanity, and to cause a legal recognition of the personality of the slave, and of a capacity in him for some rights in social and family relations, though still in a state of servitude.1

§ 161. By this change in the legal character of his condition the slave became a legal member of the civil state, as distinguished from property; and his servitude, however burdensome, lost its support and foundation in the universal law, or law of nations, by losing its chattel character, and derived its support from the law peculiar to a single state, for the slavery known to the law of nations was the simple condition of chatte. slavery.'

§ 162. The slavery which existed among the heathen nations of northern Europe, from the earliest times, was probably

'Walter; Lehrbuch des Kirchenrechts, § 348. Corpus Jur. Canonici. Decreti, Pars. i. Distinctio XV. Gregorius Papa I., anno 596. Roma in Campaniam. In libertatem vendicentur servi, qui ab infidelitate ad fidem accedunt. Distinctio LIV. Servi sine dominorum consensu et libertate non ordinentur. A letter of manumission by the same prelate of some of his own slaves is cited, Robertson's Hist. Charles V., vol. I., sect. 1, note XX, in which he speaks of slavery as contrary to an original or natural state of freedom. Bishop England's fifth letter cites various authorities. See also Wallon; Hist. de l'Esclavage dans l'Antiquité, Partie III. Blair: Slavery among the Romans, pp. 49-72. Ward's Hist. of Law of Nations, vol. II. p. 27. Gudelin, de Jur. Noviss., Lib. I. c. 4. 5. Fletcher's Studies on Slavery, pp. 327-331; and the

note above cited in Robertson's Charles V.

The history of the early Church records the efforts of many of its prelates in favor of emancipation; and there is no doubt that the abolition of the ancient chattel slavery is mainly attributable to its influence. But whether the writings of those prelates can be cited here, in tracing the historical law of nations, on this point, depends on the question whether they held the temporal power of legislation, or not. For, however valuable, in an ethical point of view, their testimony to the law of nature may be, it will have no force in proving what the actual jus gentium of their time may have been; though it may have been a means of changing that law. Compare 1 Bancroft's Hist. U. S., p. 163. (See ante, p. 95, note, on the relative positions of the jus gentium, and the Canon law.)

Imp. Leonis Aug. (Leo, the philosopher, died A. D. 911.) Novellæ constitutiones, IX., X., XI.; that slaves should not become free by taking holy orders, if without the knowledge of their masters.

It is difficult to judge how far the ecclesiastical persons, whose efforts in their times in favor of manumission are recorded, would have opposed serfdom, in forms nearly as much opposed to free condition, according to modern ideas. The ecclesiastical corporations in Burgundy, Invernois, and other provinces of France, were among the last to emancipate their serfs. See Lalaure: Servitudes Réelles, p. 2. Voltaire: Dict. Philos. v. Esclaves.

See Ante, § 112.

158

THE NORTHERN NATIONS.

but little different from that known under the Roman Empire, or differed only by allowing a greater variety in. the nature of its burdens, correspondent with the feudal elements of their civil society, which permitted also a recognition, in some degree, of the legal personality of the bondsman.' Upon the settlement of those nations in southern Europe, their military system and the distinctions arising from the fact of a conquering race residing among the conquered, made the serfdom adopted, if not introduced by them, an equivalent in its various degrees of oppressiveness for the ancient domestic slavery which had been obliterated with the wealth and power of the previous masters.*

After the general conversion of the northern nations of Europe their international intercourse became so modified that, as between Christian nations, prisoners of war could not be reduced to slavery; though captivity and the right to demand ransom, as a consequence of the old law modified by the habits of the Teutonic races, continued to a late period. Feudal servitude being essentially predial, that is, accessory to the soil and con

1 That is, among the German nations or tribes, a portion of the people,-the constituents of the nation, were predial servants, annexed to the soil, and the master had not, as a general rule, the power of life and death over them. Tacitus: Mores Ger. c. 25. Spelman's Gloss. voc. Servus : "Germanorum instar, erant nostri villani a servis multum diversi, quidam erant prædiales, quidam personales, &c. Among the Gauls, the great body of the people were in a state of vassalage, apparently equivalent to the chattel slavery of the Romans. Cæsar de Bel. Gal. L. VI. 13. But besides these legal persons, who were not free, the German nations also traded in slaves as articles of merchandise, selling captives taken in war, and also buying of the nations on the north, and selling in the southern countries of Europe. 1 Hüne's Darstel., pp. 102-107 cites Fischer Gesch. des deutschen Handels.

Spence's Inquiry into the Origin of the Laws, &c., of Modern Europe, pp. 54, 328. Salic laws in Canciani Leges Barbarorum. During the later Imperial period a clear distinction was recognized between predial and domestic slaves; the condition of the former (coloni, inquilini, adscriptitii, or, adscripti glebæ) resembling, in many respects, that of the more modern serfs or villeins. See Smith's Dict. Antiq.: Prodium. In Novell. 162, c. 3, Justinian gives the rule by which the children of an adscriptitia shall be divided when the father belongs to another estate. In Novell. 157, tit. 40, he forbids the separation of families of such predial slaves. See Fletcher's Studies on Slavery, p. 327. In the history of the abolition of chattel slavery, the following laws are important. Imp. Leonis Aug. Nov. Const. 38. Ut Imperatoris servi de rebus suis quo modo velint statuere possint. C. 59. Abrogatio legis quæ hominem liberum se vendere permittit.

"Postea mores Germanorum

3 Heineccius, Jur. Nat. et Gent. L. i. c. 1, § 2, n. pæne omnibus gentibus communes facti sunt, uti recte observavit Grotius, de Jure B. et P. ii. § 1, 2.

Suarez, de Legibus etc. L. ii. c. 19. "Sic enim Jus Gentium, de servitute captivorum in bello justo, in Ecclesia mutatum est, et inter Christianos id non servatur. Grotius, Lib. iii c. 7, § 9: "Sed et Christianis in universum placuit, bello inter ipsos orto captos servos non fieri, ita ut vendi possint, ad operas urgeri, et alia pati

SLAVERY AND CHRISTIANITY.

159

nected with a state economy founded on the distribution and tenure of landed estate, gradually acquired the character of a constitution of the particular law of each state (jus proprium, or jus civile in the same sense) as distinguished from a foundation judicially ascribed to the law of nations: and, being susceptible of great variety in the obligations which attached to it, received the legal character of a local distinction of ranks, or of social position, in the institutions of nations composed of individuals of various race, or having distinct historical origin, but not separated by any strongly marked physical distinctions.' The subsequent decay of that servitude, which accompanied the progress of Europe in intellectual and moral improvement, needs not to be here particularly considered.*

§ 163. While Christianity may be truly said to have contributed greatly to alter the law of nations, contained in international and municipal law, by abolishing or modifying slavery as between Europeans, it must be acknowledged that, as it continued for centuries to be received, it also modified that law in introducing a new basis for chattel slavery. At an early period of the present era difference of religious belief was made a ground of distinction in supporting a right to hold slaves. Jews

quæ servorum sunt: atque ita hoc saltem, quamquam exiguum est, perfecit reverentia Christianæ legis."

Ward's Law of Nations, vol. i. c. 9. Vol. ii. p. 31. Vinnius: Comm. L. i. tit. 3. Gudelin de Jure Novissimo, L. i. c. 4, § 10, and citations.

1 Sir Francis Palgrave, Hist. of Normandy and England, pp. 31, 32, considers the distinctions of status in medieval times, commonly called feudal, as being historically derived from the laws of the Roman Empire. And as to predial slavery in Gaul before the Burgundian invasion, see Montesq. Esprit d. Lois, L. 30, c. 10.

The two distinct conditions of chattel slave and of predial bondman or serf must have long existed together in Europe. Down to the commencement of the tenth century, slaves of the northern, and then barbarian and heathen, nations were constantly sold in Germany, France, &c. Hüne: vol. i, pp. 107, 113. In the grants of Charlemagne (A. D. 800) "he invariably bestows lands with all the inhabitants, houses, slaves, meadows, moveables and immoveables." In the time of his immediate successors, 'a frightful traffic is secretly carried on: the nobles, ecclesiastical and secular, making no scruple, when pressed, to sell the children of their serfs." Oxford Chronological Tables. As to the transition from personal to feudal slavery among the Germans and Goths, see Mittermaier's Privatrecht, §§ 47, 49. Vinnius: Lib. i, tit. 3. Bodin's Republic, B. i., c. 9. Predial slavery lingered in some of the provinces of France under the laws of Main-morte in 1761. (Lalaure; Voltaire; Hallam's Mid. Ages, c. ii., part 2.) Predial serfdom existed in Scotland at the date of the American revolution. See Hugh Miller's My Schools and School-masters, p. 303. Wade's Hist. of Middle and Working Classes, p. 10: abolished by 15 Geo. 3, c. 28.

Ward's Hist. Law of Nations, vol. i, ch. 8, refers to many antiquaries and critics who have thoroughly examined this subject.

160

DIFFERENCES OF CREED.

and Pagans, living under the dominion of the Christian Emperors, being forbidden to hold Christians in chattel bondage; and afterwards the Papal church prohibited Jews from holding even heathen slaves. It was generally assumed among Christian nations, until a period comparatively recent, that their superiority as possessors of the true faith gave them the right of reducing infidels to slavery irrespectively of the ancient laws of war; while the followers of Mohammed, calling themselves the true believers, have drawn similar conclusions for their own use. The practice of enslaving their prisoners of war was at first mutual between Christian and Mohammedan nations as to each other, and was maintained by the last against the first to a late period; and may be in theory to the present day. The Barbary powers justified their piracies against Europeans upon the pretext of a right sanctioned by religion and ancient international usage; and it was only at the beginning of the present century that they were finally compelled to abandon them after reiterated assertions of the modern international law by Christian powers.

§ 164. Both Christians and Mohammedans long maintained the right to enslave heathens and barbarians. Among the first the act was almost universally supported, if the extension of the Christian faith and civilization were made the professed motive.'

Fuero

slaves bought by
Dist. xiii.
Bishop England's
Gudelin: de Jure

1 Codex, Lib. i., tit. x. Decree of Gregory I. anno 592, that Jews should be set free Corp. Juris. Canonici; Decret. Pars. i. Juzgo, Lib. xii., c. 3, § 12. Fuero Real, Lib. iv. Blair, p. 72. 10th letter, Works, vol. iii., p. 132. Gibbon: vol. ii., p. 274. Noviss. "Rursum, quamvis Judæis servos habere Christianos non licet, adscriptitios tamen habere permissum est, c. 2, tit. Decret. de Judais."

2 Even in Bulls of excommunication issued by the heads of the Roman Church previous to the Reformation it was common to declare the inhabitants of the excommuni-" cated districts liable to be enslaved. See Bull of Gregory XI. against Florentines, 1376; Julius II. against Venetians, 1508; Paul III. against Henry VIII, 1538. See Fletcher Studies on Slavery, pp. 366-368. Bower: vol. vii., PP. 379-447.

Hüne: vol. i, pp. 127, 148. Calvin's case, 7 Coke, 17: "All Infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a Remote Possibility); for between them, as with the Devils whose subjects they be, and the Christian there is a perpetual hostility, and can be no peace; for as the Apostle says, &c. And the Law saith, Judæo Christianum nullum serviat manicipium, nefas enim est, &c. Register, 282.".

Sumner's Orations and Speeches, vol. i. Lecture on White Slavery in the Barbary States. Hild. Hist. U. S., vol. v., p. 561; vol. vi., 578.

The tenor of the Papal Bulls, in the years 1430, 1438, 1454, 1458, 1484, according to the author of Letters to Pro-Slavery Men, p. 42, (Boston, 1855,) citing Coloniæ Anglicane Illustrate; by Wm. Bollan, Lond., 1762, Part i., pp. 115-141, is "to ap