The Law of Persons contains but one other chapter which canbe usefully cited for our present purpose. The legal rules bywhich systems of nature jurisprudence regulate the connection ofMaster and Slave, present no very distinct traces of the originalcondition common to ancient societies. But there are reasons forthis exception. There seems to be something in the institution ofSlavery which has at all times either shocked or perplexedmankind, however little habituated to reflection, and howeverslightly advanced in the cultivation of its moral instincts. Thecompunction which ancient communities almost unconsciouslyexperienced appears to have always resulted in the adoption ofsome imaginary principle upon which a defence, or at least arationale, of slavery could be plausibly founded. Very early intheir history the Greeks explained the institution as grounded onthe intellectual inferiority of certain races and theirconsequent natural aptitude for the servile condition. TheRomans, in a spirit equally characteristic, derived it from asupposed agreement between the victor and the vanquished in whichthe first stipulated for the perpetual services of his foe; andthe other gained in consideration the life which he hadlegitimately forfeited. Such theories were not only unsound butplainly unequal to the case for which they affected to account.
Still they exercised powerful influence in many ways. Theysatisfied the conscience of the Master. They perpetuated andprobably increased the debasement of the Slave. And theynaturally tended to put out of sight the relation in whichservitude had originally stood to the rest of the domesticsystem. The relation, though not clearly exhibited, is casuallyindicated in many parts of primitive law; and more particularlyin the typical system -- that of ancient Rome.
Much industry and some learning have been bestowed in theUnited States of America on the question whether the Slave was inthe early stages of society a recognised member of the FamilyThere is a sense in which an affirmative answer must certainly begiven. It is clear, from the testimony both of ancient law and ofmany primeval histories, that the Slave might under certainconditions be made the Heir, or Universal Successor, of theMaster, and this significant faculty, as I shall. explain in theChapter on Succession, implies that the government andrepresentation of the Family might, in a particular state ofcircumstances, devolve on the bondman. It seems, however, to beassumed in the American arguments on the subject that, if weallow Slavery to have been a primitive Family institution, theacknowledgment is pregnant with an admission of the moraldefensibility of Negro-servitude at the present moment. What thenis meant by saying that the Slave was originally included in theFamily? Not that his situation may not have been the fruit of thecoarsest motives which can actuate man. The simple wish to usethe bodily powers of another person as a means of ministering toone's own ease or pleasure is doubtless the foundation ofSlavery, and as old as human nature. When we speak of the Slaveas anciently included in the Family, we intend to assert nothingas to the motives of those who brought him into it or kept himthere; we merely imply that the tie which bound him to his masterwas regarded as one of the same general character with that whichunited every other member of the group to its chieftain. Thisconsequence is, in fact, carried in the general assertion alreadymade that the primitive ideas of mankind were unequal tocomprehending any basis of the connection inter se ofindividuals, apart from the relations of family. The Familyconsisted primarily of those who belonged to it by consanguinity.
and next of those who had been engrafted on it by adoption; butthere was still a third class of persons who were only joined toit by common subjection to its head, and these were the Slaves.
The born and the adopted subjects of the chief were raised abovethe Slave by the certainty that in the ordinary course of eventsthey would be relieved from bondage and entitled to exercisepowers of their own; but that the inferiority of the Slave wasnot such as to place him outside the pale of the Family, or suchas to degrade him to the footing of inanimate property, isclearly proved, I think, by the many traces which remain of hisancient capacity for inheritance in the last resort. It would, ofcourse, be unsafe in the highest degree to hazard conjectures howfar the lot of the Slave was mitigated, in the beginnings ofsociety, by having a definite place reserved to him in the empireof the Father. It is, perhaps, more probable that the son waspractically assimilated to the Slave, than that the Slave sharedany of the tenderness which in later times was shown to the son.
But it may be asserted with some confidence of advanced andmatured codes that, wherever servitude is sanctioned, the Slavehas uniformly greater advantages under systems which preservesome memento of his earlier condition than under those which haveadopted some other theory of his civil degradation. The point ofview from which jurisprudence regards the Slave is always ofgreat importance to him. The Roman law was arrested in itsgrowing tendency to look upon him more and more as an article ofproperty by the theory of the Law of Nature; and hence it isthat, wherever servitude is sanctioned by institutions which havebeen deeply affected by Roman jurisprudence, the servilecondition is never intolerably wretched. There is a great deal ofevidence that in those American States which have taken thehighly Romanised code of Louisiana as the basis of theirjurisprudence, the lot and prospects of the negro-population arebetter in many material respects than under institutions foundedon the English Common Law, which, as recently interpreted, has notrue place for the Slave, and can only therefore regard him as achattel.
