C.D. Warner, et al., comp. The Library of the World’s Best Literature.
An Anthology in Thirty Volumes. 1917.
Origin of the Right of Slavery among the Roman Civilians
By Montesquieu (1689–1755)
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The law of nations, to prevent prisoners from being put to death, has allowed them to be made slaves. The civil law of the Romans empowered debtors, who were subject to be ill-used by their creditors, to sell themselves. And the law of nature requires that children whom a father in the state of servitude is no longer able to maintain, should be reduced to the same state as the father.
These reasons of the civilians are all false. It is false that killing in war is lawful, unless in a case of absolute necessity; but when a man has made another his slave, he cannot be said to have been under a necessity of taking away his life, since he actually did not take it away. War gives no other right over prisoners than to disable them from doing any farther harm, by securing their persons. All nations concur in detesting the murdering of prisoners in cold blood.
Neither is it true that a freeman can sell himself. Sale implies a price: now, when a person sells himself, his whole substance immediately devolves to his master; the master therefore in that case gives nothing, and the slave receives nothing. You will say he has a peculium. But this peculium goes along with his person. If it is not lawful for a man to kill himself, because he robs his country of his person, for the same reason he is not allowed to barter his freedom. The freedom of every citizen constitutes a part of the public liberty; and in a democratical State is even a part of the sovereignty. To sell one’s freedom is so repugnant to all reason as can scarcely be supposed in any man. If liberty may be rated with respect to the buyer, it is beyond all price to the seller. The civil law which authorizes a division of goods among men, cannot be thought to rank among such goods a part of the men who were to make this division. The same law annuls all iniquitous contracts; surely, then, it affords redress in a contract where the grievance is most enormous.
The third way is birth: which falls with the two former; for if a man could not sell himself, much less could he sell an unborn infant. If a prisoner of war is not to be reduced to slavery, much less are his children.
The lawfulness of putting a malefactor to death arises from this circumstance,—the law by which he is punished was made for his security. A murderer, for instance, has enjoyed the benefit of the very law which condemns him; it has been a continued protection to him: he cannot therefore object against it. But it is not so with the slave. The law of slavery can never be beneficial to him; it is in all cases against him, without ever being for his advantage; and therefore this law is contrary to the fundamental principle of all societies.
If it be pretended that it has been beneficial to him, as his master has provided for his subsistence, slavery at this rate should be limited to those who are incapable of earning their livelihood. But who will take up with such slaves? As to infants,—nature, which has supplied their mothers with milk, has provided for their sustenance; and the remainder of their childhood approaches so near the age in which they are most capable of being of service, that he who supports them cannot be said to give them an equivalent which can entitle him to be their master.
Nor is slavery less opposite to the civil law than to that of nature. What civil law can restrain a slave from running away, since he is not a member of society, and consequently has no interest in any civil institutions? He can be retained only by a family law; that is, by the master’s authority.