Chapter I (2)

Among the Aeneze Bedouins the young girls work hard; they drive the cattle to the pasture-ground; if one out of the herd is lost, they are severely beaten by their father [41].

Among the Assja Samoyedes the father has a patriarchal power, and punishes at his discretion and according to custom [42].

In these few cases only is it clearly stated that the head of the family has an arbitrary power. The value of Zu Wied’s statement about the Botocudos is much lessened by the same ethnographer telling us that the children enjoy much freedom [43].

Considering now the state of the children in the cases referred to here, are we justified in calling it slavery?

The head of the family has power over the children; and so far as it appears from the particulars given by the ethnographers, this is a legally unlimited power, that may be called right of property, and is likely to lead to compulsory labour, as among the Tlinkits and Aeneze Bedouins it certainly does. The condition of these children may therefore be expressed by the word “possession”, our criterion of slavery.

We may even go farther. The condition of slaves is not always very bad; but however kindly treated, they are slaves, are the property of their masters. So with children too. They may not be, as in the cases mentioned above, under strict discipline; yet the father’s, or in a few cases the maternal uncle’s, power, however moderate a use he makes of it, may be legally unbounded, not restricted by social rules, not interfered with by the community. In such a case the head of the family may be called owner of the child, and is really called so in Roman law, so clearly distinct from Roman practice. “The patria potestas of ancient civil law means the full power of the father over the persons subjected to him (the child, the grand-child by the son, the wife in manu), the right of death and life (ius vitae ac necis) and the right to sell into slavery” [44]. “This potestas originally was equal to that over the slaves” [45].

We see that the term “possession” may well be used here. Yet there is a reason that induces us not to call these children slaves, a reason resembling that for which we have excluded the subjected wives. These children may be called the property of their fathers; but this is not the whole, nor even the main part of their condition. The relation between father and child, if it includes subjection, includes much more. There is mutual sympathy and in many respects a coincidence of interests; there is respect on the side of the child; there is on the side of the father a desire to promote the welfare of the child, however much bound up with egotistical motives. There is also physical and mental superiority on the side of the father and inferiority on the side of the child [46]; and this in some cases may bring about a somewhat slave-like condition of the latter; but this condition is not an essential part of the relation between father and child; a fortiori it is not coextensive with the relation, as in the case of the slave. Biologically expressed: the child is quite another organ, with quite another function, but in some cases performing in some degree the function of a slave; therefore it is not a slave. We may add, that the child is only temporarily subjected; one day he will be a master himself [47]. This also bears upon the treatment of the child: the slave is brought up to servility, the child to authority. Children can never form a subjected class.

As for adopted children, it is not always easy to distinguish them from slaves. Sometimes they are rather severely treated, especially those captured in war or kidnapped. Tanner was thus adopted by an Indian of the Shahnee tribe. The youngest son of this Indian had lately died, and his wife had told her husband, she could not live if he did not restore her the child. The husband accordingly went off, and came back with Tanner whom he had kidnapped. Tanner was adopted on the grave of the deceased boy, and given an Indian name. But the adoptive father treated him not at all as a son. He had to do the hardest work, got but little food, and was often severely beaten. If the mother tried to protect him, she was beaten too. Finally the father, regardless of the mother’s wishes sold him to an old Indian woman, who now became his adoptive mother. She treated him kindly, yet made him cut wood, carry water and meat, and perform other kinds of labour, which generally were not imposed upon children of his age. However, he was not a slave. When full-grown, he was considered by the Indians one of their tribe, and married an Indian girl [48].

In the second Chapter we shall meet with more instances of captives being adopted either into the tribe or into one of the families within the tribe. As long as such persons are children, it is often not easy to see whether they are slaves or adopted children, for it is not always stated, as in Tanner’s case, that they are formally adopted. We must ask then, what becomes of them when full-grown. If they have still a master to serve, it is clear that they are slaves; for if they are adopted members of the community, they will be free when adult, excepting the (most often slight) moral obligations of full-grown children towards their parents. Other facts proving that the captives are slaves, are their not taking share in government affairs, when the tribe is democratically organized, and their being excluded from marriage with native-born women. With the aid of these criteria we shall try, in every particular case, to decide whether the captives are slaves or adopted members of the community. What has been said here of captives, equally applies to purchased persons.

The last two paragraphs show that there is still something wanting in our definition. Not every state of possession is slavery; those arising from family relations are to be excluded. Thus only can we come to a true understanding of the signification of slavery. For wives and children may accidentally be forced labourers and the like; the slave only is ex definitione a subjected person, a forced labourer, an object of possession. Wives and children there would be, and there are in many cases, without subjection; slaves there are not where there is not subjection and compulsory labour. A society that begins to keeps slaves, develops a new organ with a special, well marked function; and it is the evolution of this organ we are to trace in the following Chapters.

Our definition therefore wants an addition. We may now put it so: Slavery is the fact, that one man is the property or possession of another beyond the limits of the family proper.

§ 6. Distinction of slavery from kindred phenomena.

III. Members of a society in their relation to the head of the community.

Bastian, after remarking that in a social community nobody is literally free, gives a great number of quotations, describing widely different kinds of subjection, and among these some few, where the subjects of a despot are called his slaves or his property. “The Siamese are all (even marked) slaves of their king.” “The subjects of the king of Djagga are slaves, who may not marry without his consent.” “In Usumbara all are slaves of the king.” “The absolute rulers dispose of all their subjects as their property (even without having acquired a right by the subjects having transgressed the law), and even mark with their badge the different working-guilds, as is done by the king of Siam.” “The princes and princesses on the Congo have the right to sell any one who is not a prince like themselves” [49].

What Bastian means by heaping up these various quotations, without any order or attempt at an explanation, is not clear. We, however, must not follow his example, but inquire whether the word “slave” is rightly used here, whether the subjects of a despot may be called slaves. A few moments of consideration will show that they may not. For however great the power of the chief, the king, the despot, in a word the head of the community, over his subjects, they are not his property. “Property” supposes a power of the master, pervading the whole life, personal, domestic and social, of the slave; so great a power over his subjects a chief never has. The following reasoning will make this clear. Slavery would not be capable of much development, if it depended upon the master’s personal superiority only; for slavery to become a social system, the master’s power over the slave must be recognized by the society. The slave lives in a society that regards him as a slave; slavery cannot exist where there is not a society of freemen. Therefore the despot, however great his power, is not as such a master of slaves. The slave-owner has the community on his side; the chief has subjects who themselves compose the community. Looked at from the practical side, the chief’s power contains much more of voluntary submission than the slave-owner’s. A chief never has the whole person of the citizens subjected in his own behalf; he may exact some performances for his personal benefit, but the restrictions put upon the subjects, encroaching on their freedom in private life, will generally be measures taken in the (real or supposed) interest of the community, and approved of by the community. These restrictions are mutual, and arise from the social connection itself; this is not, as in slavery, using one person as a means to the purposes of another definite person. This yet more distinctly appears, where not a single man imposes these rules, but the council of citizens. In a communistic society there would be an entire absence of personal freedom; yet there would be no slaves, as there would be no freemen whom they could serve.

It need hardly be said, that a chief may keep slaves like any other freeman. The public power as such, the state, also sometimes keeps slaves (e.g. the servi publici in Rome). But these slaves are quite distinct from the main body of citizens.

Sometimes it is stated, that the chief, or the public power, has slaves, whereas no mention is made of any other slaves. In such cases the slaves generally become such as a punishment for some offence. Where such a state of things exists, we may not speak of a slave-keeping people. For here the power of the government is so great, that it can avail itself of the labour of the citizens; whether this is done by imposing an equal amount of labour on all of them, or by selecting a few persons for this purpose and keeping them in a slave-like state, does not make much difference. Besides, slavery here cannot have the same influence on social life it generally has; for every freeman has to work for himself. This kind of slavery may be compared with the tread-mill and other kinds of penal servitude existing in more civilized societies. And we may not speak of a slave-keeping people, where the only slaves are criminals, who become the slaves of him who represents the public power, any more than we can say that slavery exists in those civilized countries, where penal servitude is still practised.

One more remark has to be added here. Hitherto we have used the terms “possession” and “property” synonymously as indicating the nature of slavery. In this paragraph it has been shown, that an essential feature of slavery is its being recognized by the community. Therefore we prefer the term “property”, that, better than the other term, conveys the notion, not only of a virtual subjection, but of a subjection considered legal in those communities where it exists.

§ 7. Distinction of slavery from kindred phenomena.

IV. Subjected tribes; tributary provinces; lower classes; free labourers.

We shall meet with instances of tribes, the members of which are bound to perform some kind of labour for other tribes or for the members of the latter.

This is not slavery; for slavery is subjection of one individual to another, and a subjection that absorbs the whole personality of the subjected; and under such circumstances it is not possible that the subjected lead a tribal life. Therefore, where the subjected are described as forming a separate tribe, we may be sure that they are not slaves. Ingram justly remarks that “the lowest caste may be a degraded and despised one, but its members are not in a state of slavery; they are in collective, not individual, subjection to the members of the higher classes” [50]. What Ingram says here of the lowest caste, often applies to subjected tribes.

That conquered districts, bound to pay a tribute in kind or money, do not consist of slaves, is clear.

The foregoing remarks would be almost superfluous, were it not that some ethnographers in such cases spoke of “slave tribes” and “slave districts”. This may partly be caused by the natives themselves making an incorrect use of the term “slavery”. In North Africa the coast tribes call the inland tribes their slaves, because they keep them bound by a trade monopoly. In the same regions a chief calls himself the slave of another chief, to whom he has to pay a tribute [51]. As in some cases the slaves live together in separate villages [52], it may be difficult to decide whether we have to deal with slave villages or with subjected groups. The criterion then is, whether the subjected people have each an individual master. When we are informed that such is the case, or that they are bought and sold, we may be certain that they are slaves.

Lower classes can be of different kinds. Where they are only considered inferior to the upper classes, or excluded from governmental functions, it is easy to see that they are not slaves. Greater difficulties are presented by some other cases. Sometimes a lower class consists of free labourers. Now theoretically free labourers are easy to distinguish from slaves: the slave is compelled to work, the free labourer voluntarily submits to it. But the accounts of the ethnographers do not always make it clear, which of these two kinds of labourers we have to deal with in any particular case. When a labourer lives in the house of his master and is wholly dependent on him, it may be rather difficult at first sight to decide whether he is free or a slave. Sometimes the details given are sufficient to settle the question; if not, we shall have to leave it undecided.

A lower class can also consist of serfs. What they are, and what is the difference between them and slaves, will be shown in the next paragraph.

§ 8. Distinction of slavery from kindred phenomena.

V. Serfs.

What we have said of free labourers applies also to serfs: to draw the theoretical line of demarcation between them and slaves is not so very difficult; but practically it is not always easy to decide, whether a subjected class we get some information about consists of slaves or of serfs; sometimes even, because of the unstable terminology and the scanty information, it is quite impossible. But there are several unequivocal cases of serfdom, too, on record in history. Mentioning a few of these will suffice to give the reader a clear idea of its nature as distinct from slavery.

In Germany Leibeigene was, in the earliest times, synonymous with slave. The law placed the Leibeigenen on a level with the domestic animals. The master had the ius vitae ac necis, an unlimited right to sell them, the right to exact from them all possible services, to marry and divorce them. The owner of the Leibeigene was also owner of his goods and chattels. The lord was responsible for any damages caused by his servant, as for those caused by his horse, and might claim indemnity if any one injured his man. But gradually this slavery was mitigated into a state of subserviency. First the claim to unlimited services was waived, and on the Leibeigene were imposed definite Roboten (labour dues) and tributes. He had to work on fixed days, to perform fixed services, to pay fixed sums. His earnings legally still belonged to the lord, and the latter succeeded to his goods; but from the 13th century the lord’s right of inheritance dwindled into a present (mortuarium). From the 14th century the serfs acquired a usufruct of the soil they tilled, and so their obligations assumed more or less the character of a quit-rent. Sometimes they were even allowed to choose another lord. In the Frankish empire the lords were already forbidden to sell them abroad; from the 13th century they lost the right to kill them, and afterwards also the right to whip them. The church took away from the lord the right to divorce his serfs, if the marriage had been contracted with his consent. The ius primae noctis remained longer. Moreover, the relations of the serfs towards others were gradually recognized by law, at first only as to unjust acts, later on as to contracts. And so, when at last serfdom was abolished, the only changes effected by this were: allowing of the right of emigrating, abolition of the marriage-consent and of the court-services and personal tributes.

Thus Siegel describes the development of serfdom in Germany [53]. Other writers come to nearly the same conclusions. According to Brunner, there was among the Western Germans a class between freemen and slaves, called Liten or Aldien, a hereditary class, whose position was secured by law. They had the right of acquiring property and making contracts; they could by emancipation become fully free, or purchase their own liberty. To marry they wanted the consent of their lord. They had the right of feud (Fehderecht), and when they were killed a wergild was paid, that fell partly to the lord. Their right of inheritance was originally not recognized [54].

Schröder remarks, that the difference between freemen and subservients (Hörigen) consisted in this, that the landed possessions of the latter were smaller and liable to tribute. Moreover, they had no connubium with freemen, nor any political rights; the wergild paid for them was one half of that paid for a freeman [55].

In medieval France a similar state of things prevailed. There were no longer slaves, but serfs. “Serfdom is a transitory stage between slavery and entire liberty. The serf of the middle ages is not, like the ancient slave, indissolubly riveted to his condition, deprived of rights by his very birth, placed on a level with the beasts of burden of his lord’s estate. Public opinion is favourable to him.” “The facts agree with the doctrine. The serf has some means of acquiring property; he may marry and have legitimate descendants, who will succeed to his goods; he may give evidence in the courts; he may purchase his liberty by means of his peculium. By getting some profits he is interested in the cultivation of the soil. Giving his labour to the land, he may expect to enjoy the fruits of it, by paying fixed tributes. By marrying his children to free women he secures the liberty of his offspring. By paying an indemnity he acquires the succession to his father’s inheritance, and the right of property over his savings.... He may dispute the tributes (tallies et cens) which the lord levies on the tenement he cultivates, invoke an enquiry of experts who attest his means, contract to pay a fixed annuity and so know beforehand what profit he may depend upon” [56].

With these serfs may be compared the Roman coloni. “The colonatus consists in this, that men are inseparably attached to a landed property for the purpose of cultivating it.... This connection with a determinate estate, from which the colonus might be severed only in some cases fixed by law, brought about an approximation of the colonus to the slave (as servus terrae), but also a difference between them, a security for the colonus, which protects him from the lord’s arbitrary power. Hence the colonus stands with regard to the lord on the free footing of one bound only to comply with the yearly canon, annua functio, a tribute fixed by contract or custom, which he has to pay to the lord, generally in products of the land” [57].

The foregoing statements once more prove the sufficiency of our definition of slavery. As soon as the forced labourer is no longer entirely at the disposal of the lord, the latter being entitled to fixed services and tributes only, such a state of things is called serfdom, or colonatus, or subserviency, but not slavery. This agrees with our definition of slavery. The slave, as we have remarked above, is the property of his master, whose power is in principle unlimited, not restricted to fixed performances. Therefore, even if the writers referred to here called such institutions as serfdom and colonatus slavery, we are not to do so; but we may regard it as a corroboration of the conclusion we had arrived at before, that such writers, most of whom have not made any special research into the nature of slavery, when they meet with such an institution as serfdom, feel that they are not to call it slavery.

Now let us look what the theorists have to say on the subject.

Ingram remarks: “The transition to serfdom took place in civic communities, when the master parted with or was deprived of his property in the person of the slave, and became entitled only to his services, or a determinate portion of them. In rural life, where the march of development was slower, the corresponding stage was reached when, in accordance with the fundamental principles of feudalism, the relation between the lord and serf, from being personal, became territorial” [58].

The first words here perfectly express the truth: when the master loses “his property in the person of the slave”, he is no longer a slave-owner. What follows, that the master “became entitled only to his services”, is less correct; for he who is entitled to all the services of another is his owner; just the limiting of the master’s right to “a determinate portion of them” is the change from slavery to something else. If I may require all the services a man can perform, I am his owner; if I am restricted to a determinate portion of them, I am not.

Spencer says: “As the distinctions between different forms of slavery are indefinite, so must there be an indefinite distinction between slavery and serfdom, and between the several forms of serfdom. Much confusion has arisen in describing these respective institutions, and for the sufficient reason that the institutions themselves are confused” [59].

This consideration, however true, will not prevent us from drawing a theoretical line of demarcation. Not a single social institution is practically strictly separated from kindred institutions; yet we cannot understand such institutions, unless we make a distinction, and not an “indefinite” one.

Letourneau, after describing the state of the colonus, adds: “In a word, he was not an object of possession, a slave, but only a proletarian attached to the soil.” In another passage he remarks that slavery always undergoes some mitigation in the course of civilization: “Less and less is the person of the slave himself oppressed; one is contented with exploiting him, depriving him in a larger or smaller degree of the fruits of his labour, in a word the slave becomes a serf” [60].

These quotations may suffice to show that our view of the matter is held by theorists as well as historians.

The serf, therefore, is not a slave, because he is not the property of his master, and the particulars of serfdom related by historians provide us with means of more clearly understanding the practical meaning of this notion “property”. It means a power that, however leniently exercised in many cases, is in principle unlimited. Among many peoples the master may ill-use and even kill his slave, without the law taking any notice of it. And even where his power is restricted by social regulations, he may have a right of property, viz. if his authority be in principle unbounded, and any limitation put upon it suppose a special legal provision. The slave-owner may do with his slave whatever he is not by special laws forbidden to do; the master of a serf may require from his man such services and tributes only, as the law allows him to require. The slave-owner has a right of property; the master of a serf has, so to speak, a ius in re aliena. [61]

§ 9. Pawns or debtor-slaves.

In the course of our investigation it will be shown, that among some peoples a debtor, unable to pay a debt he has contracted, becomes the slave of his creditor. Sometimes such persons are ordinary slaves; but pawns or debtor-slaves in the restricted sense (who are of frequent occurrence in the Malay Archipelago, Dutch pandelingen) are a class whose slave-state is conditional; they become free as soon as the debt is paid by or for them; the creditor cannot refuse to accept the money. Because of this great difference between pawns and ordinary slaves (who generally have not a right to be ransomed), most ethnographers do not call the former slaves, but give separate descriptions of slavery and pawning.

The question arises, and has to be settled here, whether we for our purpose have to call these pawns slaves. We shall quote here one description of pawning. Among the Tshi-speaking peoples of the Gold Coast of West Africa “a pawn is a person placed in temporary bondage to another by the head of the family ... either to pay a debt, or to obtain a loan.... When a person is pawned on account of a debt, the services of the pawn, even should they extend over a considerable number of years, count for nothing towards the liquidation of the debt; and a pawn has to serve his master, until the amount of the original debt with 50 per cent. interest, is paid by the person who pawned him” [62].

Here the debtor pawns one of the members of his family; among some other peoples (e.g. in the Malay Archipelago) he pawns himself; this is not essential. The main fact is that the pawn is in “bondage”, however temporarily, that he “has to serve his master.” Therefore, as long as the debt remains unpaid, the pawn is in the same condition as a slave. He has not to perform a fixed amount of labour, he must serve his master without any limitation; the master has over him a power that is, in principle, unlimited. Now we have to inquire: Is this pawn a slave, i.e. is he the property of his master? In a legal sense the creditor has not a right of property over his pawn; his right agrees with a kind of pignus which the Romans called antichresis, i.e. something yielding profit was handed over to the creditor, who utilized it instead of receiving the usual interest [63]. Yet the right of the holder of the pawn bore much resemblance to that of the owner: he had a utilis in rem actio, a vindicatio pignoris [64]. We, for our purpose, may classify the pawns among the slaves, if we can prove that sociologically a system of pawning performs the same function as a slave-system. And this certainly is the case. The same system of compulsory labour, the same subjection of the entire person exists, whether the subjected are perpetually slaves or temporarily pawns, viz. in those cases where, as among the Tshi-speaking peoples, the master’s power is in principle unlimited. Where pawns have a fixed amount of work to do, they are temporary serfs; but where (as is most often the case) no limit is put to the amount of work the master may exact from them, they are temporary slaves, and as long as they are slaves, take the same place as other slaves in the social system.