The origin and development of the moral ideas

Faithful to her principle that human life is sacred, the Church made efforts to secure the life of the slave against the violence of the master; but neither the ecclesiastical nor the secular legislation gave him the same protection as was bestowed upon the free member of the Church and State. Various Councils punished the murder of a slave with two years’ excommunication only, if the slave had been killed “sine conscientia judicis”;55 and the same punishment was adopted by some Penitentials.56 Edgar made the penance last three years, whereas, if a freeman was killed, the penance was of seven years’ duration.57 Facts do not justify Mr. Lecky’s statement that, “in the penal system of the Church, the distinction between wrongs done to a freeman, and wrongs done to a slave, which lay at the very root of the whole civil legislation, was repudiated.”58

Beyond a law of Constantine, to the effect that a master who put his slave to death in a non-judicial way, was to be punished as a murderer,59 and a reiteration of some previous enactments, the Christian emperors seem to have done little to guard the life of the slave. Whilst it was provided that any master who applied to his slave certain atrocious tortures with the object of killing him should be deemed a manslayer, it was emphatically said that no charge whatever should be brought against him if the slave died under moderate punishment, or under any punishment not inflicted with the intention of killing him.60 Arcadius and Honorius even passed a law refusing protection to a slave who should fly to a church for refuge from his master;61 but this law was, in the West, followed by regulations of an opposite character.62 The barbarian invasions certainly did not improve the condition of slaves, and in Teutonic countries it was only by slow degrees that the introduction and spread of a higher civilisation exercised its humanising influence on the relation between master and slave.

The Visigothic Code prohibited a person from killing any of his slaves who had committed no offence.63 According to the Capitularia, the master had to pay a penalty for causing the death of a guiltless slave, provided that he died at once; but if he survived the injury only a day or two, the master was not punishable for his deed, because the slave was his pecunia.64 In a later period any intentional killing of an innocent slave was punished by law, but the law probably remained a dead letter.65 In the thirteenth century Beaumanoir, the French jurisconsult, could write:—“Plus cortoise est nostre coustume envers les sers que en autre païs, car li segneur poent penre de lor sers, et à mort et à vie, toutes les fois qu’il lor plest, et tant qu’il lor plet.”66 Nay, even in quite modern times, in Christian countries, where negro slavery prevailed as a recognised institution, the life of the slave was only inadequately protected by their laws.

In most of the British colonies, it was only by force of comparatively recent acts, made for the most part subsequent to the year 1797, that the same punishment was prescribed for the murder of a slave as for the murder of a free person. Prior to this period the former crime was subject only to a small pecuniary penalty, in Barbados not exceeding £15.67 In the French colonies, according to the Code Noir, a master who killed his slave should be punished “selon l’atrocité des circonstances.”68 In all the North American Slave-States there was a time when the murder of a slave, whether by his master or a third person, was atoned for by a fine. In South Carolina this was the case as late as 1821, and only since then the wilful, malicious, and premeditated killing of a slave, by whomsoever perpetrated, was a capital offence in all the slave-holding States.69 But this does not mean that no distinction was made between the killing of a slave and the killing of a freeman.

In South Carolina, according to an enactment of 1821, he who killed a slave on a sudden heat of passion was punished simply with a fine of five hundred dollars and imprisonment not exceeding six months.70 In the Statutes of Tennessee the law referring to the wilful murder of a slave contained the provision that it should not be extended to “any person killing any slave in the act of resistance to his lawful owner or master, or any slave dying under moderate correction”;71 and a very similar provision was made by the laws of Georgia.72 In other words, a correction causing the death of the victim was not necessarily immoderate in the eye of the law. In a still higher degree the life of the slave was endangered by another law, which prevailed universally both in the Slave-States and in the British Colonies. Neither a slave, nor a free negro, nor any descendant of a native of Africa whatever might be the shade of his complexion, could be a witness against a white person, either in a civil or criminal case.73 This law placed the slave, who was seldom within the view of more than one white man at a time, entirely at the mercy of this individual, and its consequences were obvious. Speaking of slavery in the United States in 1853, Mr. Goodell remarks:—“Upon the most diligent inquiry and public challenge, for fifteen or twenty years past, not one single case has yet been ascertained in which, either during that time or previously, a master killing his slave, or indeed any other white man, has suffered the penalty of death for the murder of a slave.”

That the life of a slave is held in so little regard is due to that want of sympathy with his fate which accounts also for his unfree condition, and to the proprietary rights over him which, in consequence, have been granted to his master. For similar reasons the killing of a freeman by a slave, especially if the victim be his owner, is commonly punished more severely than if the same act were done by a free person. The less the sympathy felt for an individual, the more intense is the resentment which he excites by offensive behaviour. According to the Chinese Penal Code, a slave who designedly kills, or strikes so as to kill, his master, shall suffer death “by a slow and painful execution.”75 Plato says that, if a slave voluntarily murders a freeman, the public executioner shall lead him in the direction of the sepulchre of the dead man, to a place whence he can see the tomb, and after inflicting upon him as many stripes as the complainant shall order, put the murderer, if he survives the scourging, to death.76 Though the slave has committed the act in a fit of passion, the relatives of the deceased shall nevertheless be under an obligation to kill him, and this may be done in any manner they please;77 nay, even in self-defence a slave is not allowed to kill a freeman, any more than a son is allowed to kill his father.78 At Rome, also, a slave was more heavily punished for the commission of homicide than a freeman.79 Says the ancient jurist, “Maiores nostri in omni supplicio severius servos quam liberos famosos quam integræ famæ homines punierunt.”80

In the estimate of life a distinction is made not only between freemen and slaves, but between different classes of freemen. Among certain peoples a person who kills a chief is punished with death, though murder is not generally a capital offence.81 Where the system of compensation prevails, the blood-price very frequently varies according to the station or rank of the victim.82 Among the Rejangs of Sumatra the compensation for the murder of a superior chief is five hundred dollars, for that of an inferior chief two hundred and fifty dollars; for that of a common person, man or boy, eighty dollars; for that of a common person, woman or girl, one hundred and fifty dollars; for the legitimate child or wife of a superior chief, two hundred and fifty dollars.83 The body of every Ossetian has a settled value in the eyes of the judges, which seems to be fixed by public opinion; thus the father of a family bears a higher value than an unmarried man, and a noble is rated at twice as much as an ordinary freeman.84 In Eastern Tibet the murderer of a man of the upper class is fined 120 bricks of tea, the murderer of a middle-class man only 80, and so on down through the social scale, the life of a beggar being valued at a nominal amount only; but if the victim was a lama, the murderer has to pay a much higher price, possibly 300 bricks.85 According to the doctrine of modern Buddhism, “when the life of a man is taken, the demerit increases in proportion to the merit of the person slain.”86 The laws of the Brets and Scots estimated the life of the king of Scots at a thousand cows; that

of an earl’s son, or a thane, at a hundred cows; that of a villein, at sixteen cows.87 A similar system prevailed among the Celtic peoples generally,88 as also among the Teutons. A man’s wergeld, or life-price, varied according to his rank, birth, or office; and so minutely was it graduated, that a great part of many Teutonic laws was taken up by provisions fixing its amount in different cases.89 In English laws of the Norman age the wer of a villanus is still only reckoned at £4, whilst that of the homo plene nobilis is £25.90