Master-slave legal relationships
- Related Topics:
- Mamluk
- debt slavery
- slave code
- encomienda
- sex slavery
The master-slave relationship was the cornerstone of the law of slavery, and yet it was an area about which the law often said very little. In many societies the subordination of the slave to his owner was supposed to be complete; in general, the more complete an owner’s control over his slave, the less the law was likely to say about it.
A major touchstone of the nature of a slave society was whether or not the owner had the right to kill his slave. In most Neolithic and Bronze Age societies slaves had no such right, for slaves from ancient Egypt and the Eurasian steppes were buried alive or killed to accompany their deceased owners into the next world. Among the Northwest Coast Tlingit, slave owners killed their slaves in potlatches to demonstrate their contempt for property and wealth; they also killed old or unwanted slaves and threw their bodies into the Pacific Ocean. An owner could kill his slave with impunity in Homeric Greece, ancient India, the Roman Republic, Islamic countries, Anglo-Saxon England, medieval Russia, and many parts of the American South before 1830.
That was not the case in other societies. The Hebrews, the Athenians, and the Romans under the principate restricted the right of slave owners to kill their human chattel. The Code of Justinian changed the definition of the slave from a thing to a person and prescribed the death penalty for an owner who killed his slave by torture, poison, or fire. Spanish law of the 1260s and 1270s denied owners the right to kill their slaves. Lithuanian and Muscovite law forbade the killing, maiming, or starving of a returned fugitive slave. Qing Chinese law punished a master who killed his slave, and that punishment was more severe if the slave had done no wrong. The Aztecs under some circumstances put to death a slave owner who killed his slave. No society, on the other hand, had the slightest sympathy for the slave who killed his owner. Roman law even prescribed that all other slaves living under the same roof were to be put to death along with the slave who had committed the homicide.
Assault and general brutality were other concerns of the law of slavery. In antiquity slaves often had the right to take refuge in a temple to escape cruel owners, but that sometimes afforded little protection. The ancient Franks and the Germans warned owners against cruelty. The Code of Justinian and the Spanish Siete Partidas deprived cruel owners of their slaves, and that tradition went into the Louisiana Black Code of 1806, which made cruel punishment of slaves a crime. In modern societies brutality and sadistic murder of slaves by their owners were rarely condoned on the grounds that such episodes demoralized other slaves and made them rebellious, but few slave owners were actually punished for maltreating their slaves. In the American South 10 codes prescribed forced sale to another owner or emancipation for maltreated slaves. Nevertheless, cases such as State v. Hoover (North Carolina, 1839) and State v. Jones (Alabama, 1843) were considered sensational because slave owners were punished for savagely “correcting” their slaves to death.
It was not an axiom of the master-slave relationship that the former automatically had sexual access to the latter. That was indeed the case in most societies, ranging from the ancient Middle East, Athens, and Rome to Africa, all Islamic countries, and the American South. Places such as Muscovy, however, forbade owners to rape their female slaves, while the Chinese and the Lombards forbade the raping of married slave women. More problematic were sexual relations between mistresses and male slaves. Athens and Rome both put the slave to death, and Byzantine law prescribed that the mistress was to be executed and the slave to be burned alive. The Danish Virgin Islands’ laws of 1741, 1755, and 1783, in an attempt to protect northern Europeans from African “contamination,” prescribed a fine of 2,000 pounds of sugar for a man who raped a Black slave, and a white woman who had sexual relations with a Black slave was to be fined, imprisoned, and then deported.
The labor and food regimes were central to almost every slave’s life. In societies where the owner’s control over his slave was total, such as the Roman Empire or the pre-1830 American South, the law said little or nothing about how long he could work him and whether his slave had a right to food and clothing. In South India the slave owner had an absolute right to whatever labor his slave was capable of rendering. In Muscovy, on the other hand, a slave owner was jailed for forcing his slaves to labor on Sunday. In Judea in 200 bce, in Sicily in 135–32 bce, and on the Nile in 46 ce, regulations prescribed the food rations a slave could expect. The Lithuanian Statute of 1588 and the Russians in 1603 and 1649 decreed that slaves had a right to be fed. The Danish Virgin Islands in 1755 prescribed adequate food rations. The Alabama Slave Code of 1852 mandated that the owner had to provide slaves of working age a sufficiency of healthy food, clothing, attention during illness, and necessities in old age.
Family and property
A major issue was whether the master had to allow the slave to marry and what rights the owner had over slave offspring. In general, a slave had far fewer rights to his offspring than to his spouse. Babylonian, Hebrew, Tibetan-speaking Nepalese Nyinba, Siamese, and American Southern slave owners thought nothing of breaking up both the conjugal unit and the nuclear family. Unexpectedly, the 1755 Danish Virgin Islands Reglement prohibited separating minors from their parents. In Muscovy and China, slave owners could sell or will children apart from their parents, but marriages were inviolable.
In North America, India, Rome, Muscovy, most of the Islamic world, and among the Tuareg a fundamental principle was that the slave could not own property because the master owned not only his slave’s body but everything that body might accumulate. This did not mean, however, that slaves could not possess and accumulate property but only that their owners had legal title to whatever the slaves had. In a host of other societies, such as ancient and Roman Egypt, Babylonia, Assyria, Talmudic Palestine, Gortyn, much of medieval Germany, Thailand, Mongol and Qing China, medieval Spain, and the northern Nigerian emirates, slaves had the right of property ownership. Some places, such as Rome, allowed slaves to accumulate, manage, and use property in a peculium that was legally revocable but could be used to purchase their freedom. This provision gave slaves an incentive to work as well as the hope of eventual manumission.
Considerable research has been done on the treatment of slaves, and the consensus is that, while the law may have spelled out the desired social standards of master-slave relations, it did not necessarily define the reality for any particular situation. Sadists, even psychopaths, who could not cope with their right of total dominance over another human being, might appear anywhere, as might kindly masters. More determining than the law were the conditions of the society itself. At one extreme, among the Tuareg of North Africa, the slave owners themselves often lived badly, and so, of course, did their slaves. At the other extreme, in the American South material conditions were sufficiently favorable to provide comparative comfort for both masters and slaves. Moreover, slaves born of already enslaved parents usually were treated much better than those purchased or captured from foreign groups. The treatment of slaves in expansive, dynamic societies was likely to be worse than in more stable ones.
Legal relationships between slave owners
There was more uniformity across systems regarding legal relationships between slave owners. All societies had provisions for the recovery of runaways, and most imposed sanctions on owners who stole others’ slaves (a capital offense in some systems) or helped them to flee. There also were relatively uniform laws about passing slaves from one generation to another.
There was considerable variability among societies in the law of slave transactions. Whereas Roman-law societies had elaborate norms on contracts, Muscovy had essentially none. Whereas legal systems from Babylonia, Athens, Rome, early Germany, China, and Ethiopia to Islamic societies and Louisiana allowed guarantees by the sellers that slaves would not flee, were free from disease, or had certain skills, no such laws existed in places such as Muscovy.
Legal relationships between slaves and free strangers
Some societies had much legislation on this topic, others practically none. Where the slave was completely dependent on his owner, few laws existed beyond the normal rules governing any form of property; it was the owner’s responsibility to recover damages if a third party killed or assaulted either his cow or his slave. The owner, moreover, was held equally or even more responsible for the slave’s actions, ranging from homicide to theft, than was the slave himself, for the society desired that the former control his property and there was no assurance that sanctions, especially money fines, could be enforced against slaves.
Homicide of a slave by a stranger was a revealing test of a society’s attitude toward the slave. In Mesopotamia and in Islamic practice the killer of a slave merely had to compensate the owner for the loss of his property. Elsewhere, however, it was different. Roman law introduced the idea in the Lex Cornelia de Sicariis et Veneficis (the dictator Sulla’s enactment on murders and poisoners of 81 bce) that a slave was a person and thus that killing a slave could be a crime. That provision found its way into the Code of Justinian. In North America in the period from 1770 to 1830 the killing of a slave was equated in common law with the murder of a white person. Laws were uniformly harsh when a slave killed a stranger who was a freeman.
Some societies did not allow third parties to assault slaves with impunity. In Muscovy, for example, a slave might have honor and could recover from a third party who injured his honor. Societies elsewhere, however, such as the North American Yurok, Tlingit, and other neighboring Indians, as well as in the American South, explicitly stated that slaves could have no honor, personal status, or prestige. South Carolina law noted that the slave was not “within the peace of the state, and therefore the peace of the state [was] not broken by an assault and battery on him.” Conversely, when a slave assaulted a freeman, the latter often recovered from the slave’s owner. Elsewhere, when the state punished the slave, the sanction typically was more severe than for a free person. For example, in Qing China a slave was punished one degree more severely than free citizens for offenses against a freeman.
Most societies, such as those in Athens, Rome, Kievan Rus, Thailand, and Louisiana, did not allow slaves to contract independently with third parties, although some allowed the slave to make a contract on his owner’s behalf. The brutal deprivation of rights was expressed in the Alabama case Creswell’s Executor v. Walter (1860); the slave, said the court, had “no legal mind, no will which the law can recognize…. Because they are slaves, they are incapable of performing civil acts.” On the other hand, in a few societies, as in the ancient Middle East, slaves were allowed to contract with third parties. Roman slaves were allowed to make contracts in regard to third peculium.
A few societies, such as late Assyria and Muscovy, allowed slaves to testify in court, but most did not. It was a rare society that permitted a slave to serve as a witness against his owner, but some societies, such as ancient Nuzi and Muscovy, allowed slaves to testify against, even to sue, third parties. That was particularly likely to be the case when slaves played a major role in the society, because disputes could not be resolved by the freemen alone without resort to evidence provided by slaves.
