De Cive/Chapter VIII
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Chapter VIII: Of the Rights of Lords over their Servant
|Chapter IX: Of the right of Parents over their children and of hereditary Government→|
I. In the two fore-going Chapters we have treated of an institutive, or fram'd Government, as being that which receives its originall from the consent of many, who by Contract and Faith mutually given, have oblig'd each other. Now followes, what may be said, concerning a naturall Government, which may also be call'd, Acquired, because it is that which is gotten by power, and naturall force. But we must know in the first place by what means the Right of Dominion may be gotten over the Persons of men. Where such a Right is gotten, there is a kind of a little Kingdome; for to be a King, is nothing else but to have Dominion over many Persons; and thus a Great Family is a Kingdom, & a Little Kingdome a Family. Let us return again to the state of nature, and consider men as if but even now sprung out of the earth, and suddainly (like Mushromes) come to full maturity without all kind of engagement to each other: There are but three wayes only whereby one can have the Dominion over the Person of another; whereof the first is, if by mutuall Contract made between themselves (for Peace, & self-defences sake) they have willingly given up themselves to the Power and Authority of some man, or Councel of Men, & of this we have already spoken. The 2d is, If a man taken Prisoner in the Wars, or overcome; or else distrusting his own forces, (to avoid Death) promises the Conquerour, or the stronger Party, his Service, i.e. to do all whatsoever he shall command him; in which Contract the good which the vanquisht, or inferiour, in strength doth receive, is the grant of his life, which by the Right of War in the naturall state of men he might have depriv'd him of, but the good which he promises, is his service and obedience. By vertue therefore of this promise, there is as absolute service and obedience due from the vanquisht, to the vanquisher, as possibly can be, excepting what repugns the Divine Lawes; for he who is oblig'd to obey the Commands of any man before he knowes what he will command him, is simply, and without any restriction tyed to the performance of all Commands whatsoever. Now he that is thus tyed, is call'd a SERVANT, he to whom he is tyed, a LORD. Thirdly, there is a Right acquir'd over the Person of a Man, by Generation; of which kind of acquisition somewhat shall be spoken in the following Chapter.
II. Every one that is taken in the War, and hath his life spar'd him, is not suppos'd to have Contracted with his Lord; for every one is not trusted with so much of his naturall liberty, as to be able, if he desir'd it, either to flie away, or quit his service, or contrive any mischief to his Lord. And these serve indeed but within Prisons, or bound within Irons, and therefore they were call'd not by the common name of Servant onely, but by the peculiar name of Slave, even as now at this day un serviteur, and un serf or un esclave have diverse significations.
III. The obligation therefore of a Servant to his Lord ariseth not from a simple grant of his life, but from hence rather, That he keeps him not bound, or imprison'd, for all obligation derives from Contract; but where's no trust, there can be no Contract, as appears by the 2. Chap. Artic. 9. where a Compact is defin'd to be the promise of him who is trusted. There is therefore a confidence and trust which accompanies the benefit of pardon'd life, whereby the Lord affords him his corporall liberty. so that if no obligation, nor bonds of Contract had happen'd, he might not onely have made his escape, but also have kill'd his Lord, who was the preserver of his life.
IV. Wherefore such kind of Servants as are restrain'd by imprisonment, or bonds, are not comprehended in that definition of Servants given above, because those serve not for the Contracts sake, but to the end they may not suffer; and therefore if they flie, or kill their Lord, they offend not against the Lawes of Nature, for to bind any man is a plain signe, that the binder supposes him that is bound not to be sufficiently tyed by any other obligation.
V. The Lord therefore hath no less Dominion over a Servant that is not, then over one that is bound, for he hath a Supreme Power over both, and may say of his Servant no lesse then of another thing, whether animate, or inanimate, This is mine; whence it followes, that whatsoever the Servant had before his servitude, that afterwards becomes the Lords; and whatsoever he hath gotten, it was gotten for his Lord: for he that can by Right dispose of the Person of a man, may surely dispose of all those things which that Person could dispose of. There is therefore nothing which the Servant may retaine as his own against the will of his Lord; yet hath he, by his Lords distribution, a propriety, and Dominion over his own goods, insomuch as one Servant may keep, and defend them against the invasion of his fellow Servant, in the same manner as hath been shewed before, that a subject hath nothing properly his owne against the will of the Supreme Authority, but every subject hath a propriety against his fellow subject.
VI. Since therefore both the Servant himself, and all that belongs to him are his Lords, and by the Right of Nature every man may dispose of his owne in what manner he pleases; the Lord may either sell, lay to pledge, or by Testament conveigh the Dominion he hath over his Servant, according to his own will and pleasure.
VII. Farthermore, what hath before been demonstrated concerning subjects in an institutive Government, namely, that he who hath the Supreme Power can doe his subject no injury; is true also concerning Servants, because they have subjected their will to the will of the Lord; wherefore, whatsoever he doth, it is done with their wills, but no injury can be done to him that willeth it.
VIII. But if it happen that the Lord, either by captivity or voluntary subjection, doth become a Servant or Subject to another, that other shall not onely be Lord of him, but also of his Servants; Supreme Lord over these, immediate Lord over him. Now because not the Servant only, but also all he hath are his Lords; therefore his Servants now belong to this man, neither can the mediate Lord dispose otherwise of them then shall seeme good to the Supreme. And therefore, if sometime in civill Governments, the Lord have an absolute power over his Servants, that's suppos'd to be deriv'd from the Right of Nature, and not constituted, but slightly pass'd over by the Civill Law.
IX. A servant is by the same manner freed from his servitude, that a Subject in an institutive government, is freed from his subjection; First, if his Lord enfranchize him, for the Right which the servant transferred to his Lord over himselfe, the same may the Lord restore to the servant again. And this manner of bestowing of liberty is called MANUMISSION; which is just as if a City should permit a Citizen to conveigh himselfe under the jurisdiction of some other City. Secondly, if the Lord cast off his servant from him, which in a City is banishment; neither differs it from Manumission in effect, but in manner onely: for there, liberty is granted as a favour, here, as a punishment: In both, the Dominion is renounced. Thirdly, if the servant be taken prisoner, the old servitude is abolished by the new; for as all other things, so servants also are acquired by warre, whom in equity the Lord must protect, if he will have them to be his. Fourthly, the servant is freed for want of knowledge of a successour, the Lord dying (suppose) without any Testament, or Heire, for no man is understood to be obliged, unlesse he know to whom he is to perform the obligation. Lastly, the servant that is put in bonds, or by any other means deprived of his corporall liberty, is freed from that other obligation of contract, for there can be no contract where there is no trust, nor can that faith be broken which is not given. But the Lord who himselfe serves another, cannot so free his servants, but that they must still continue under the power of the supreme, for, as hath been shewed before, such servants are not his, but the supreme Lords.
X. We get a right over irrationall Creatures in the same manner, that we doe over the Persons of men, to wit, by force and naturall strength; for if in the state of nature it is lawfull for every one, by reason of that warre which is of all against all, to subdue, and also to kill men as oft as it shall seem to conduce unto their good, much more will the same be lawfull against Brutes; namely at their own discretion, to reduce those to servitude which by art may be tamed, and fitted for use, and to persecute and destroy the rest by a perpetuall warre, as dangerous and noxious. Our Dominion therefore over beasts, hath its originall from the right of nature, not from divine positive Right: for if such a Right had not been before the publishing of the sacred Scriptures, no man by right might have killed a beast for his food, but he to whom the divine pleasure was made manifest by holy Writ; a most hard condition for men indeed whom the beasts might devoure without injury, and yet they might not destroy them: Forasmuch therefore as it proceeds from the right of nature, that a beast may kill a man; it is also by the same Right, that a man may slay a beast.