Natural Rights on the Threshold of the Scottish Enlightenment

16. On the Rights of Masters and Servants

138 u chapter 16 u On the Rights of Masters and Servants1 It is quite likely that the earliest servitude (servitus) arose from voluntary contracts.2 But whether, in the beginning, slaves or servants (servi)3 bound themselves in perpetuity or for a limited period, it is not possible to determine , and it makes no difference to know. [II.4.1.i] Among most Europeans today, slavery has been abolished. And it has been the universal practice of Christians, when war has arisen among them, not to make slaves of their prisoners in a way that would allow them to be sold and forced to work and made to endure the other sufferings of slaves, as Grotius points out at III.VII (final paragraph). [II.4.1.iii] [Pufendorf observed that there are different degrees of servitude, and that the power of the master and the condition of the slave or servant varies accordingly. Carmichael concurs with the judgment that the first of these kinds of servant, the wage earner hired for a specific length of time, cannot be subjected to grievous bodily harm, much less death, by the master, and investigates the reasons why.] Why not [subject a hired servant to severe punishment] also when he disturbs the decency and quiet of the family? The right permitted a master to punish a slave or servant, whether in an independent household, or in one which is subject to the civil power, can be judged from what we have said above (pp. 136–37) about the authority of the head of the family. But 1. From the notes to bk. II, ch. 4, “On the Duties of Masters and Slaves.” 2. As Pufendorf argued at Of the Law of Nature and Nations, VI.III.4; and On the Duty of Man and Citizen, II.4, pp. 129–31. 3. Carmichael, like Pufendorf, uses the term servi to cover “servants,” “serfs,” and “slaves.” on the rights of masters and servants 139 sensible masters and mistresses of households will use corporal punishment very sparingly, especially on adults hired for a limited time, particularly if they are of a different sex. For if their behavior displeases, a milder remedy will soon be available in the form of dismissal from the family after the agreed term has expired. [II.4.2.i] [Commenting on Pufendorf’s second category, the servant “bound . . . of his own free will for perpetual servitude,” Carmichael says:] Titius rightly observes that the association between master and servant includes the same rights and the same obligations, whether it is forever or for a limited time, except that in the one case the rights are temporary, in the other perpetual.4 [II.4.3.i] A servant who is hired for a limited time or in perpetuity may bind himself either to services of a particular kind or to perform whatever services the master imposes upon him, provided these are just and licit. [II.4.3.ii] [On Pufendorf’s third category, “slaves captured in war”:] In nothing have the nations so strayed from the law of sociability than in their assessment of the right of war with regard to the introduction of slavery. It makes one wonder that the human race should so forget its worth, and willingly conspire to bring upon itself endless outrageous indignities , abuses, and afflictions. It will be readily agreed, to be sure, from the principles laid down above, that anyone who cannot repay a debt incurred by contract or by committing an offense or for any reason whatsoever , is obliged by the law of nature to offer his services to his creditor or victim. And anyone who has inflicted an atrocious offense, such as one who has violently attacked the life and fortune of another in a war conducted without even probable cause, can find himself rightly reduced to servile status as punishment less severe than another which might be inflicted. Nonetheless, (1) capture in war confers no right upon the captor where there was no antecedent right; therefore anyone who makes war unjustly has no right to enslave anyone. (2) Physical punishment can only be in4 . Titius, Observationes, nos. 529–30. 140 natural rights flicted on men who have committed violent offenses; therefore, he who is waging even a just war cannot impose slavery as a punishment on those who have contributed nothing either by assistance or advice, to an...