Montesquieu

The magis­trate must see to it that the slave is pro­vi­ded with food and clo­thing : that needs to be fixed by law.

The laws must see to it that they are cared for in their ill­nes­ses and in their old age. Claudius1 decreed that sla­ves aban­do­ned by their mas­ters when sick would be free if they sur­vi­ved. This law assu­red their free­dom ; it ought also to have assu­red their lives.

When the law allows the mas­ter to take the life of his slave, that is a right he must exer­cise as judge and not as mas­ter ; the law must spe­cify for­ma­li­ties to sup­press sus­pi­cion of a vio­lent act.

In Rome, when fathers were no lon­ger allo­wed to put their chil­dren to death, magis­tra­tes inflic­ted2 the penalty which the father wan­ted to pres­cribe. A simi­lar prac­tice bet­ween mas­ter and sla­ves would be rea­so­na­ble in coun­tries where mas­ters hold the power of life and death.

The Law of Moses was very tough. “If someone stri­kes his slave, and he dies at his hand, he shall be puni­shed ; but not if he sur­vi­ves for a day or two, because it is his money.”3 What a peo­ple, where civil law had to part com­pany with natu­ral law !

By a Greek law, sla­ves too roughly trea­ted by their mas­ters could ask to be sold to someone else.4 In the lat­ter times there was a simi­lar law in Rome.5 A mas­ter angry at his slave and a slave angry at his mas­ter need to be sepa­ra­ted.

When a citi­zen mis­treats ano­ther’s slave, that other must be able to go before the judge. The laws of Plato6 and of most peo­ples deny natu­ral defense to sla­ves. They must the­re­fore be allo­wed civil defense.

In Lacedæmon, sla­ves could obtain no jus­tice against either insults or inju­ries. The excess of their mis­for­tune was such that they were not merely the sla­ves of a citi­zen, but also of the public : they belon­ged to all and to one. In Rome, in a wrong done to a slave only the mas­ter’s inte­rest was taken into consi­de­ra­tion.7 By the Lex Aquilia, a wound inflic­ted on an ani­mal or a slave was trea­ted the same way ; atten­tion was paid only to their redu­ced price. In Athens, the man who had mis­trea­ted ano­ther’s slave was seve­rely puni­shed, some­ti­mes with death. The law of Athens rightly was unwilling to com­pound the loss of liberty with that of secu­rity.8

Xiphilinus, in Claudio.

See law III in the Code de patria potestate, which is by the emperor Alexander.

[Exodus 21:20–21.]

Plutarch, De superstitione.

See the Constitution of Antoninus Pius, Institutes, book 1, tit. 7.

Book X.

It was again often the spirit of the laws of peoples who came out of Germania, as can be seen from their codes.

Demosthenes, Orationes, Contra Midiam, p. 610, Frankfort, edition of 1604.