1. Whence Servitude was Brought in and Whether it was Justly Brought in

19. About the first, it is said that by the law of nature all are born free, yet servitude, or more properly filial subjection to the father, is more of the law of nature, namely filial obedience pertaining to disciplining, because according to the Philosopher Ethics 8.14.1161b27-30, 62a4-7, “a son has from his father being and discipline.” The servitude we are speaking of here, according to which the master can sell his slave as livestock, is that of which Aristotle speaks in Politics 1.4-7, for a slave cannot perform acts of virtue because he must perform servile acts at the command of the master; and this servitude is that one belong totally to the right of another. And this is not for the good, but the bad, of the slave, and this servitude is that of which Aristotle says that the slave is like an inanimate instrument [Politics 1.4.1253b32], and cannot be good and virtuous. Hence that servitude is not for the good but the bad of the slave, as was said.     Therefore , does the Apostle say [Galatians 4.31-5.1, 12-13, Romans 6.22], “You have become free; do not be subject to slavery etc     .” And hence this servitude was brought in only by positive law.

20. But how is it just? I reply: as was said in d.15 nn.93-110 about the way ownerships began to be just, so I say that this base servitude cannot be justly brought in save in two ways:

21. In one way, because such person voluntarily subjects himself to such servitude; but such subjection is vain; indeed, it is perhaps against the law of nature for a man to renounce for himself his liberty; but after it has been done, it is necessary to serve, because this is justice.

22. In another way, if some master of a community, seeing some to be so vicious that their liberty is harmful both to themselves and to the republic, can justly punish them with the penalty of servitude - just as also he could kill them in certain cases for the good of the republic.

23. If you say that there is also a third cause of servitude, as when being captured in war one is preserved alive, and thus, being preserved from death, one become a slave deputed to serving - I doubt this, unless it be said that a slave was there preserved alive. Nor does justice manifestly appear here because, although the captor could have justly killed the captive, if his war was just, by defending himself but not by invading (and this while the persistence of the one fighting back remains), yet from when he ceases to be persistent, because he is now a captive within one’s will, it seems inhuman to inflict a penalty on him against the law of nature. For there is not the same reason here as in the second case [n.22], because perhaps he would not remain rebellious nor abuse his liberty, but would perhaps become obedient and use well the liberty given him.

24. If it be argued against the first member [n.21], that servitude, to be sure, is not against the law of nature, because, according to the Philosopher, Politics 1.2.1252a31-35, he who excels in mind should rule, he who excels in strength should serve; but some naturally excel in mind and some are less prudent in mind and more robust in body; therefore some are naturally fit for lordship and some naturally fit for being slaves; therefore they ought naturally to be slaves (there can be an example for this in the members of the human body, where some naturally serve the principal part) - I reply: this instance is worthy of note, for this is not to be understood of the extreme servitude that we were just now speaking of, but only of political servitude, whereby an inferior is disposed by a superior, and not however as something inanimate but the way one who is less vigorous in mind is ordered through him who excels more in mind.

25. If you argue against the second [n.22], that thus all servitudes that now exist would be unjust,An odd remark because penal servitude, which the second case is about [n.22], hardly seems unjust. Perhaps the idea is (as Scotus’ remarks agreeing with the objection, and in n.26, suggest) that since most slaves now, in Scotus’ day, were slaves by being born slaves, then while their criminal forebears may have been justly slaves, the innocent descendants are not. So these descendants at least are unjustly slaves; for time does not pass the crime from parent to child, but rather shows that crime to be a crime. ⁹⁸ because what is against the law of nature can never be made just, for antiquity of time does not ratify crimes but rather condemns them; all servitude other than these two cases is unjust and against the law of nature; therefore through no length of time does it seem to be just that a master be justly master over such slaves. - I reply: it was touched on above, d.15 nn.105-110, how right can be acquired through prescription, if the other conditions that rights determine are concurrent, namely that he acquire it by just title and that the possessor be of good faith and that he possess it without interruption in the time determined by the law. But this point extends itself to possessions and not to servitude, because the reason for possessing gold is not the same as for possessing a slave, as far as concerns the law of nature; and it would be difficult by prescription to save the justice of detaining such slaves, unless it be presumed that they were made slaves from the beginning in one or other of the two ways.

26. If you object, why then did the Apostle bid such slaves to obey their masters? - I reply: many obligations are unjust on the part of those by whom they are made, and yet, after they have been made, they are to be kept. Hence the Apostle, showing servitude not to be laudable in itself [Ephesians 6.5-8], and much less the detention of anyone in servitude, says [I Corinthians 7.21], “If you are called a slave, let it not be of concern to you; but if you can be free, use it rather.”