The Elements of Law/Part II/Chapter 22
Chapter 22: Of the Power of MastersEdit
1. Having set forth, in the two preceding chapters, the nature of a commonwealth institutive, by the consent of many men together; I come now to speak of dominion, or a body politic by acquisition, which is commonly called a patrimonial kingdom. But before I enter thereinto: it is necessary to make known, upon what title one man may acquire right, that is to say, property or dominion, over the person of another. For when one man hath dominion over another, there is a little kingdom; and to be a king by acquisition, is nothing else, but to have acquired a right or dominion over many.
2. Considering men therefore again in the state of nature, without covenants or subjection one to another, as if they were but even now all at once created male and female; there be three titles only, by which one man may have right and dominion over another; whereof two may take place presently, and those are: voluntary offer of subjection, and yielding by compulsion; the third is to take place, upon the supposition of children begotten amongst them. Concerning the first of these three titles, it is handled before in the two last chapters; for from thence cometh the right of sovereigns over their subjects in a commonwealth institutive. Concerning the second title (which is when a man submitteth to an assailant for fear of death), thereby accrueth a right of dominion. For where every man (as it happeneth in this case) hath right to all things, there needs no more for the making of the said right effectual, but a covenant from him that is overcome, not to resist him that overcometh. And thus cometh the victor to have a right of absolute dominion over the conquered. By which there is presently constituted a little body politic, which consisteth of two persons, the one sovereign, which is called the MASTER, or lord; the other subject, which is called the SERVANT. And when a man hath acquired right over a number of servants so considerable, as they cannot by their neighbours be securely invaded, this body politic is a kingdom despotical.
3. And it is to be understood: that when a servant taken in the wars, is kept bound in natural bonds, as chains, and the like, or in prison; there hath passed no covenant from the servant to his master; for those natural bonds have no need of strengthening by the verbal bonds of covenant; and they shew the servant is not trusted. But covenant (Part I. chap. XV, sect. 9) supposeth trust. There remaineth therefore in the servant thus kept bound, or in prison, a right of delivering himself, if he can, by what means soever. This kind of servant is that which ordinarily and without passion, is called a SLAVE. The Romans had no such distinct name, but comprehended all under the name of servus; whereof such as they loved and durst trust, were suffered to go at liberty, and admitted to places of office, both near to their persons, and in their affairs abroad; the rest were kept chained, or otherwise restrained with natural impediments to their resistance. And as it was amongst the Romans, so it was amongst other nations; the former sort having no other bond but a supposed covenant, without which the master had no reason to trust them; the latter being without covenant, and no otherwise tied to obedience, but by chains, or other like forcible custody.
4. A master therefore is to be supposed to have no less right over those, whose bodies he leaveth at liberty, than over those he keepeth in bonds and imprisonment; and hath absolute dominion over both; and may say of his servant, that he is his, as he may of any other thing. And whatsoever the servant had, and might call his, is now the master's; for he that disposeth of the person, disposeth of all the person could dispose of; insomuch as though there be meum and tuum amongst servants distinct from one another by the dispensation, and for the benefit of their master; yet there is no meum and tuum belonging to any of them against the master himself, whom they are not to resist, but to obey all his commands as law.
5. And seeing both the servant and all that is committed to him, is the property of the master, and every man may dispose of his own, and transfer the same at his pleasure, the master may therefore alienate his dominion over them,. or give the same, by his last will, to whom he list.
6. And if it happen, that the master himself by captivity or voluntary subjection, become servant to another, then is that other master paramount; and those servants of him that becometh servant, are no further obliged, than their master paramount shall think good; forasmuch as he disposing of the master subordinate, disposeth of all he hath, and consequently of his servants; so that the restriction of absolute power in masters proceedeth not from the law of nature, but from the political law of him that is their master supreme or sovereign.
7. Servants immediate to the supreme master, are discharged of their servitude or subjection in the same manner that subjects are released of their allegiance in a commonwealth institutive. As first, by release; for he that captiveth. (which is done by accepting what the captive transferreth to him) setteth again at liberty, by transferring back the same. And this kind of release is called MANUMISSION. Secondly, by exile; for that is no more but manumission given to a servant, not in the way of benefit, but punishment. Thirdly, by new captivity, where the servant having done his endeavour to defend himself, hath thereby performed his covenant to his former master, and for the safety of his life, entering into new covenant with the conqueror, is bound to do his best endeavour to keep that likewise. Fourthly, ignorance of who is successor to his deceased master, dischargeth him of obedience; for no covenant holdeth longer than a man knoweth to whom he is to perform it. And lastly, that servant that is no longer trusted, but committed to his chains and custody, is thereby discharged of the obligation in foro interno, and therefore if he can get loose, may lawfully go his way.
8. But servants subordinate, though manumitted by their immediate lord, are not thereby discharged of subjection to their lord paramount; for the immediate master hath no property in them, having transferred his right before to another, namely to his own and supreme master. Nor if the chief lord should manumit his immediate servant, doth he thereby release the servants of their obligation to him that is so manumitted. For by this manumission, he recovereth again the absolute dominion he had over them before. For after a release (which is the discharge of a covenant) the right standeth as it did before the covenant was made.
9. This right of conquest, as it maketh one man master over another, so also maketh it a man to be master of the irrational creatures. For if a man in the state of nature, be in hostility with men, and thereby have lawful title to subdue or kill, according as his own conscience and discretion shall suggest unto him for his safety and benefit; much more may he do the same to beasts; that is to say, save and preserve for his own service, according to his discretion, such as are of nature apt to obey, and commodious for use; and to kill and destroy, with perpetual war, all other, as fierce, and noisome to him. And this dominion is therefore of the law of nature, and not of the divine law positive. For if there had been no such right before the revealing of God's will in the Scripture, then should no man, to whom the Scripture hath not come, have right to make use of those creatures, either for his food or sustenance. And it were a hard condition of mankind, that a fierce and savage beast should with more right kill a man, than the man a beast.