jurisprudence ii - st thomas aquinas on slavery in 19th century america
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FACULTY OF LAW
TRI 2, 2014/2015 [TRI 58]
UJP4622-JURISPRUDENCE II
GROUP ASSIGNMENT
STUDENT ID Name and Email
1102700769 Joanna Ling Chi Kuan (Group Leader)
1092701478 Amanda Seow Mei Wen
1102700002 Charlene Constance Chai
1102700922 Chua Hui En
1111110963 Lee Siew Ya
Declaration:
This is our own work. We have not previously submitted this work, in whole or in
part, for assessment. This work complies with all the governing legal and ethical rules,
including those concerning plagiarism and copyright. We have read the attached
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regarding the allocation of marks for the assignment. Each of us had read and
reviewed this assignment as a whole and will be able to present it if need be.
Lecturer/Coordinator: Prof Dr. Myint Zan
No. of words : 3,643 words
Date Submitted : 12.01.2015
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Table of Content
Assignment Guideline 3
Assignment Question 6
Acknowledgement 7
Content:
Part (a) - Introduction: Aquinas‟ View on Slavery
Whether Slavery (lex humana) is compatible with lex naturalis
or lex divina
8
10
Part (b) - Would Aquinas change his mind on slavery in 19th
century America?
What would Aquinas have said about the slave-trade
What would Aquinas have said about the institution of slavery
11
12
13
Part (c) - Why would Aquinas say the slavery laws are unjust?
Laws prohibiting slaves from running away
Laws prohibiting the harbouring and protection of runaway
slaves
14
14
16
Part (d) - Would Aquinas still have urged that the unjust laws be followed?
Slavery laws in 19th
century America
Fugitive Slaves Act 1793
17
17
18
Conclusion 20
References & Bibliography 22
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H.L.A. Hart, The Concept of Law (2nd
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H.L.A Hart „Positivism and the Separation of Law and Morals‟ (1958) 71
Harvard Law Review, 593, 621.
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2007
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Assignment Question
St. Thomas Aquinas’ philosophy of law as to just laws and unjust laws and the
necessity and conditions to obey just and unjust laws and (legal philosophy or
philosopher) would have said to the arguments excerpt from Uncle Tom‟s Cabin as
regards (a) the conversation between the ‘Senator’ and his wife about ‘harboring
slaves’ in non-conformity with the then ‘existing laws’ in the United States which
prohibits harboring slaves (Uncle Tom‟s Cabin, pp. 73 following (b) the conversation
between an escaped slave (or) intending to escape slave) about the morality of his
(intention to escape) Uncle Tom‟s Cabin (pp. 103-109). Your discussion as to what
Aquinas would have said to the arguments in Uncle Tom‟s Cabin should be based on
Aquinas view as to just and unjust laws and his theory as to when unjust laws that do
not bind in conscience should still be obeyed.
Apply and discuss only what Aquinas would have said. In that case in depth
discussion of Aquinas’ views and reasonable application of Aquinas’ view to the
issues discussed should be made.
(a) Try to mention briefly, Aquinas views on slavery (in the 13th century). Unlike
Socrates or Plato, Aquinas (from the articles on the web) seemed to have
endorsed slavery or at least not condemn it. Only briefly provide excerpts of
Aquinas‟ views as to why Aquinas at the time endorsed or considered slavery
as just. Briefly state whether Aquinas considered slavery as practiced by
humans (lex humana) is compatible with natural law (lex naturalis) or divine
law (lex divina). (250 to 500 words)
(b) The second most important part is whether or not Aquinas would change his
mind if he were to travel into and look at the situation of slavery and the slave
trade in the 19th century. You can either argue that Aquinas would change his
mind (or would not change his mind) but make sure that reasoned arguments
are given. What Aquinas would have said on the slave-trade which brought
black slaves to the United States and help establish the institution of slavery
there can be considered. (500 to 1000 words)
(c) The third part of the Assignment would deal with why Aquinas would have
said of slavery as practiced in the 19th
century is just or unjust and specifically
the laws which require slaves not to run away (perhaps on pain of heavy
punishment) and whether the laws which also prohibit the harboring and
protection of slaves as seen in the conversation between the Senator and his
wife is just or unjust. Reasons must be given for it. (about 900 to 1400 words)
(d) The fourth part of this Assignment concerns if Aquinas would think that the
laws regarding slavery in the 19th
century in America is unjust and whether he
would still have urged that though the laws were unjust, they should still be
followed. Apply Aquinas‟ theory and conditions where unjust laws should be
obeyed. (1000 to 1600 words)
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Acknowledgement
First, we would like to give thanks to God for giving us wisdom, patience and
understanding throughout the completion of this assignment.
We would also like to take this opportunity to express our sincere gratitude to
our UJP4622 - Jurisprudence II lecturer, Professor Dr. Myint Zan for sharing his
knowledge with us and for his constant guidance and support throughout the process
of this assignment.
We also thank Multimedia University (MMU) library for providing an
efficient database which had effectively helped us in our search for materials.
Our gratitude expands to our friends and course mates who are generous in the
sharing of their knowledge and providing help when needed.
Last but not least, we would like to thank our family and friends who have not failed
to support us both emotionally, morally and physically in the completion of this
assignment. To those whom we had failed to mention, your help and support are
greatly appreciated.
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Contents
Part (a) – Introduction: Aquinas’ View on Slavery
Aquinas described “slaves” as an instrument of the household who serve and
follow the orders of the master either willingly or with wages and are not a property
per se.1 Aquinas agreed with Aristotle
2 that a complete household included slaves
because a typical household requires labour for sustenance. Aquinas however, opined
that slaves were considered to possess certain restricted rights.3
According to both Aristotle and Aquinas, there are basically two distinct types
of slavery – natural slavery and slavery by law/conventional slavery. Natural slavery
is the type of slavery where both the master and slave receive benefits for the
contracted situation whilst slavery by law provides partial benefit only to the master at
the expense of the slave. 4
In a strict sense, Aquinas‟ endorsement of slavery can be seen in his writing:
It is advantageous for slaves and masters, fit to be such by
nature, that one be the master, and the other the slave. And
1 Thomas Aquinas, Commentary on Aristotle’s Politics (Richard J. Regan trans, Hackett, 2007) 1.2.11
(The citation “1.2.11” means book 1, chapter 2, subsection 11). Aquinas described slavery as, “By
the fact that we call the instrument living, we distinguish it from inanimate instruments. By the fact that
we call the instrument useful for activity, we distinguish it from a craftsman‟s assistant, who is a living
instrument of production. By the fact that we say that the instrument belongs to another, we distinguish
a slave from a free person, who sometimes serves in a household freely or for pay, not as property. By the fact that we call the instrument separate, we distinguish it from a part like the hand, which belongs
to something else but is not separate. And by the fact that we call the instrument a human being, we
distinguish it from irrational animals, which are separate property.”
2 Prof. Hector Zagal „Aquinas on Slavery: An Aristotelian Puzzle‟ (Paper presented at the Congresso
Tomista Internazionale, L‟umanesimo Cristiano Nel III Millennio: Prospettiva Di Tommaso D‟Aquino,
Universidad Panamericana, México, 21-25 September 2003) 3 <http://www.e-
aquinas.net/pdf/zagal.pdf>.
3 Saint Thomas Aquinas, Summa Theologica (Fathers of the English Dominican Province trans,
Benziger Bros. edition, 1947) 1910 [trans of: Summa Theologiae (first published 1917)] („Summa
Theologica’) <http://www.basilica.org/pages/ebooks/St.%20Thomas%20Aquinas-
Summa%20Theologica.pdf>. Aquinas stated that, “A son, as such, belongs to his father, and a slave,
as such, belongs to his master; yet each, considered as a man, is something having separate existence
and distinct from others. Hence in so far as each of them is a man, there is justice towards them in a
way: and for this reason too there are certain laws regulating the relations of father to his son, and of a master to his slave; but in so far as each is something belonging to another, the perfect idea of “right”
or “just” is wanting to them.”
4 Ralph Neill, „Slavery in the Writings of Thomas Aquinas‟ (April 4, 2011) 4
<http://www.sju.ca/sites/default/files/Library/Headley%20essays/Headley%20Ralph%20Neill.pdf>.
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so there can be friendship between them, since the
association of both in what is advantageous for each is the
essence of friendship.5
However, Aquinas also stated that:
… it is a grievous matter to anyone to yield to another
what ought to be one‟s own [free disposal of oneself],
therefore such dominion implies of necessity a pain
inflicted on the subject; and consequently in the state of
innocence such a mastership could not have existed
between man and man.6
From the above quotation, it is seen that Aquinas felt that conventional slavery
originated from the sinful world and was therefore against its practice. Hence, it is
noted that Aquinas sanctioned natural slavery especially on grounds of intelligence7
but forbade conventional slavery where dominance over the slaves causes the latter to
lose their fundamental freedom of will.
It is noteworthy that part of the Summa Theologica is occasionally taken out of
perspective which would then give the impression that Aquinas justified conventional
slavery as a form of penance for sin.8 Even in the 13
th century, Aquinas was replying
to an objection that quoted Genesis 9:25,9 which is from the bible‟s Old Testament.
Not only that, Aquinas used the words “was imposed” (emphasis on the past tense) so
5 Thomas Aquinas, Commentary on Aristotle’s Politics (Richard J. Regan trans, Hackett, 2007)
1.4.11where Thomas Aquinas stated that, “It is advantageous for slaves and masters, fit to be such by nature, that one be the master, and the other the slave. And so there can be friendship between them,
since the association of both in what is advantageous for each is the essence of friendship.”
6 Summa Theologica, 652.
7 Thomas Aquinas, Commentary on Aristotle’s Politics (Richard J. Regan trans, Hackett, 2007) 1.1.7
where it is stated that, “…nor would those who abound in physical powers be able to be preserved
unless the practical wisdom of another were to rule over them.” And at 1.3.10, “performing manual
tasks is the best work that they can do, since they can execute the latter but not the works of reason”
and “… because of the eminence of reason in them and the deficiency in others, by nature masters of
the others. In this regard, Solomon also says in Proverbs 11:29: „The stupid will serve the wise.‟”
8 Summa Theologica, 2681 where Aquinas wrote “Since slavery was imposed in punishment of sin, it
follows that by slavery man forfeits something which otherwise he would be competent to have,
namely the free disposal of his person…”
9 The Holy Bible (New International Version) Genesis 9:25: “Cursed be Canaan! The lowest of slaves
will he be to his brothers”.
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this passage cannot mean that he still implied conventional slavery as a punishment
on a given race for their collective wrongs.
Nonetheless, Aquinas approved of economic slavery – an employment to
repay debts,10
provided that it is entered into willingly and that it was only partial
subjection to the master for a limited time period.11
In condoning slavery, Aquinas
also wrote that a master may strike his slave but only when punishment is intended as
part of the command12
and that a master should always be merciful.13
Whether Slavery (lex humana) is compatible with lex naturalis or lex divina
To Aquinas, human law (lex humana) are either just or unjust. If they are
drawn through conclusion of natural law, they would be just laws and would bind
one‟s conscience. He further states that laws are just when (1) they are designated for
common good; (2) do not go beyond the power of the lawmaker; and (3) impose equal
and proportionate burdens on the subjects.14
Aquinas argued that natural law is ever progressing and therefore changes by
addition of human law (even slavery) for the good of humanity is deemed
10 Summa Theologica, 1476 provides: “A man might sell not only his son, but even himself, rather as a
hireling than as a slave, according to Leviticus 25:39-40.”
11 Thomas Aquinas, The Religious State, the Episcopate, and the Priestly Office (The Newman Press,
1950) ch 15, 85 where Aquinas explained that: “If he bind himself, either to God or man, to perform
some specific work for some allotted time, he renounces his freedom, not absolutely but partially…”
12 Summa Theologica, 1965 provides: “And since the child is subject to the power of the parent, and the
slave to the power of his master, a parent can lawfully strike his child, and a master his slave that
instruction may be enforced by correction”. 13 Ibid, “The command that masters should forbear from threatening their slaves may be understood in
two ways. First that they should be slow to threaten and this pertains to the moderation of correction;
secondly, that they should not always carry out their threats, that is that they should sometimes by a
merciful forgiveness temper the judgment whereby they threatened punishment.”
14 Summa Theologica, 1365 where Aquinas stated that “Laws framed by man are either just or unjust. If
they be just, they have the power of binding in conscience, from the eternal law whence they are
derived, according to Prov. 8:15: “By Me kings reign, and lawgivers decree just things.” Now laws are
said to be just, both from the end, when, to wit, they are ordained to the common good --- and from
their author, that is to say, when the law that is made does not exceed the power of the lawgiver --- and
from their form, when, to wit, burdens are laid on the subjects, according to an equality of proportion and with a view to the common good. For, since one man is a part of the community, each man in all
that he is and has, belongs to the community; just as a part, in all that it is, belongs to the whole;
wherefore nature inflicts a loss on the part, in order to save the whole: so that on this account, such
laws as these, which impose proportionate burdens, are just and binding in conscience, and are legal
laws.”
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acceptable.15
He stated that by adding slavery into the society, the disposition of lex
naturalis is not affected.16
Slavery is not lex divina per se as it is not a branch of law
relating to the Almighty, but so long as it is natural slavery, it is also in compliance of
the divine law as provided for in the Scriptures. Therefore, Aquinas would have
considered natural slavery (as opposed to conventional slavery) as practiced by
humans to be compatible with natural law and divine law.
Part (b) – Would Aquinas change his mind on Slavery in the U.S. ?
In the 19th Century, the condition of slave life depended on the status of the
slave himself. The black slaves (the Blacks) were of the lowest and poorest rank.
These slaves were not paid according to the wage-earning system and they depended
on their masters for the basic necessities (food, clothes, shelter) in return for their
labour.17
In fact, slaves were also denied the right to own property and were treated as
a man‟s property. Absolute obedience to fulfil their masters‟ order were expected of
them, else would be subjected to punishment such as beating or torture.18
The slave
system in the U.S was cruel and inhumane for denying the slaves their right of
personal liberty and any other right as a person.
Looking at the situation then, the slave system in the United States was a
conventional one whereby the slave-owning benefits at the expense of the enslaved.
Hence, it is highly unlikely for Aquinas to change his mind on slavery wherein he
supported natural slavery and forbade conventional slavery.19
He would have
regarded the conventional slavery in U.S as unjust.
15 Summa Theologica, 1354 where Aquinas opined that “…nothing hinders the natural law from being
changed, since many things for the benefit of human life have been added over and above the natural
law, both by the Divine law and by human laws.”
16 Ibid, 1355: “…the distinction of possessions and slavery were not brought in by nature, but devised
by human reason for the benefit of human life. Accordingly the law of nature was not changed in this
respect, except by addition.”
17 Laura Brace, The Politics of Property: Labour, Freedom and Belonging (Edinburgh University Press,
2004) 162.
18 Nicholas Boston, 'Slavery and the Making of America: The Slave Experience: Living Conditions,
Historical Overview', 2004, Public Broadcasting Service
<http://www.pbs.org/wnet/slavery/experience/living/history.html,>.
19 See Part (a) of this assignment.
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What would Aquinas have said about the 19th century slave-trade in America?
Although Aquinas would deem the slave-trade as unjust, it is to be noted that
the slave system in the 19th century (also known as the Atlantic slave trade or
transatlantic slave trade)20
involved mostly black slaves who were foreigners to the
white inhabitants. Both Aristotle and Aquinas seemed to see eye to eye that foreigners
or barbarians have the potentials to be natural slaves as they are of different race and
possessed an inferior nature.
Aristotle wrote:
The very best thing of all would be that the husbandmen
should be slaves taken from among men who are not all of the
same race… The next best thing would be that they should be
perioeci [free people dwelling around Sparta but who were not
citizens] of foreign race, and of a like inferior nature.21
Therefore, according to Aristotle, foreigners are inferior and may be enslaved.
Aquinas commented on Aristotle‟s view by making a distinction between a relative
foreigner and an absolute foreigner wherein the former is one who converse in a
foreign language but is sensible and learned in that lingo while the latter by contrast
“do not establish laws, or [they] establish unreasonable laws… [and] have no literary
practices… seem absolutely foreign to the human race”.22
In other words, the
foreigners lack reason to such an extent that enslaving them is a warranted act for the
betterment of humanity (for both the master and the slave). Aquinas moved on to
implicitly condone slavery based on race when he stated that “most [absolute]
foreigners are physically strong and mentally weak”.23
Moreover, Aquinas stated that according to Aristotle, there are two kinds of
political prudence. The first is of a “legislative” nature whereas the other encompasses
20 Stephen Behrendt, Transatlantic Slave Trade – Africana: The Encyclopedia of the African and
African American Experience (New York: Basic Civitas Book, 2004).
21 Aristotle, Politics: Book VII, 1330a25-31.
22 Thomas Aquinas, Commentary on Aristotle’s Politics (Richard J. Regan trans, Hackett, 2007) 1.1.9.
23 Ibid 1.1.10.
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“individual actions”. Aquinas was of the view that the former belongs to the rulers
while the latter belongs not only to the rulers but also the subjects. This means that
prudence as a virtue is found both in the master and the slave.24
He also agreed with
Aristotle that prudence is possessed by the master “after the manner of a mastercraft”
but further added that prudence can be obtained by the slaves “after the manner of a
handicraft”. 25
Therefore, since Aquinas opined that prudence is found in reason and
since the slaves are lacking in that, being subjected to masters would help them attain
prudence in the course of carrying out their tasks.
In a nutshell, Aquinas would have said that the blacks were intellectually and
mentally weak (to a certain extent because of their race), and hence, possessed the
potential as natural slaves. Aquinas would consider them as absolute foreigners
because at that time the Blacks seemed to be lacking in reasons and were alien to the
human race as they rely on „evil customs‟ which is „irrational and brutish‟ back in
Africa.26
And because of the intellectual limitation, the Blacks may be enslaved so as
to be guided in developing virtues as much as they are competent to achieve.
What would Aquinas have said about the institution of slavery in the 19th century?
However, institution of slavery established in the United States were not
natural slavery but a conventional one where it is often associated with African people
being captured through raids and kidnapped from their homes.27
There were also
instances where free blacks in America were kidnapped and sold into slavery.28
These
clearly contradict Aquinas‟ idea of natural slavery whereby slavery is for the slave‟s
24 Summa Theologica, 1861where Aquinas provided that – „Since however every man for as much as
he is rational, has a share in ruling according to the judgment of reason, he is proportionately
competent to have prudence‟.
25 Ibid.
26 Thomas Aquinas, Commentary on Aristotle’s Politics (Richard J. Regan trans, Hackett, 2007) 1.1.9
where Aquinas provided that – ‘they lack reason either because they happen to live in a climate so
intemperate that it causes most of them to be dim-witted, or because there is an evil custom in certain
lands whereby human beings are rendered irrational and brutish, as it were‟. 27 Stephen Behrendt, Transatlantic Slave Trade – Africana: The Encyclopedia of the African and
African American Experience (New York: Basic Civitas Books, 1999).
28 Solomon Northup, Twelve Years a Slave (Derby & Miller, Auburn, New York, 1835).
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own best interest. Aquinas would say that this conventional slavery is “abhorrent to
our nature”,29
an aversion to slavery.
Even though Aquinas supported slavery, it was emphasized and restricted to
natural slavery,30
as contrasted to conventional slavery (where the slaves were
subjected to abuse and torture as defined by Aristotle).31
Thus, Aquinas would have
been against the institution of the black slaves system and deemed it as unjust.
Part (c) – Why would Aquinas say the slavery laws are unjust?
Having said that, according to Aquinas, there are two situations where the law
is unjust: first, when the law is contrary to human good wherein it does not satisfy the
criteria to be just law i.e. (1) when the law is not directed for common good; (2)
where the law is enacted beyond the power of the law maker; and (3) when the law
does not impose properly proportionate burdens;32
and secondly when it is contrary to
divine good.33
Why Aquinas would have said that the laws prohibiting slaves from running away is
unjust?
Before analysing the conversation, it is noted that at the time the conversation
took place, each slave-owning state has their own codes concerning obligations of
slaves and the rights of their masters.34
These slave codes governed various aspects of
slaves‟ lives which include prohibiting their education, restricting their freedom of
movement and others.35
Under the slave code, any form of disobedience by the slave
29 Ralph Neill, „Slavery in the Writings of Thomas Aquinas‟ (April 4, 2011) 16 . <http://www.sju.ca/sites/default/files/Library/Headley%20essays/Headley%20Ralph%20Neill.pdf>.
30 Thomas Aquinas, Commentary on Aristotle’s Politics (Richard J. Regan trans, Hackett, 2007) 1.4.11.
31 Aristotle, The Politics: Book 1 (T. A. Sinclair trans, London: Penguin, 1992) .
32 Edward J Damich, „The Essence of Law According to Thomas Aquinas‟ (1985) 30 American Journal
of Jurisprudence 79.
33 Summa Theologica, 1365 – 1366.
34 Boundless, Slave Codes (14 November, 2014) Boundless U.S. History <https://www.boundless.com/u-s-history/textbooks/298/slavery-and-reform-1820-1840-16/slavery-in-
the-u-s-122/slave-codes-653-10159/>.
35 USHistory.Org staff, Slave life and Slave Codes, US History: Pre-Columbian to the New Millenium
<http://www.ushistory.org/us/27b.asp>.
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is a serious offence and running away from one‟s master can incur the death penalty
on the slave.36
Applying Aquinas‟ theory to the laws regarding slavery in the 19th century, it
will always be unjust as conventional slavery can never be for the common good. For
a law to be for common good, it has to abide with the fundamental principle of natural
law which includes equality to all people.37
Slavery benefits only the slave owning
and not the slaves themselves. Slavery laws allow oppression of the black slaves
where they more often than not, do not obtain any good but suffering from their
bondage. Furthermore, slavery laws do not benefit the whole of the free population as
it serves only to preserve the economic interests of the slave owners. The slave code is
also unjust because the burden imposed is not properly proportionate. The slave code
imposed heavy burden on the slaves to obey their masters but gave absolute license
freedom on the slave owners to abuse and oppress their slaves.
Not only that, Aquinas advocated for a merciful treatment of the slaves38
and
opined that being a master is not equivalent to having commanding power but being
able to make use of the subject. He said in the Summa Theologica:
Now in man reason has the position of a master and not of a
subject… so when we read “all creatures”, we must understand
the creatures which are not made to God‟s image [referring to
Genesis 1:26: „That he may have dominion over… every
creature‟]… But of the natural powers and the body itself man is
master not by commanding, but by using them.39
Additionally, Aquinas had also said that a person is exempted from obeying
unjust law if it is opposed to divine good. In Uncle Tom’s Cabin, George, a slave
36 Boundless, Slave Codes (14 November, 2014) Boundless U.S. History
<https://www.boundless.com/u-s-history/textbooks/298/slavery-and-reform-1820-1840-16/slavery-in-
the-u-s-122/slave-codes-653-10159/>.
37 Louis W Hensler III, „A Modest Reading of St Thomas Aquinas on the Connection Between Natural Law and Human Law‟ (2009-2010) 43 Creighton L. Rev. 153.
38 Summa Theologica, 1965.
39 Summa Theologica, 650.
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intending to run away from his master was given a Biblical quotation40
which seemed
to condone slavery.41
However one must remember that slavery in the biblical times
were different from slavery in America during the 19th century. The later form of
slavery is completely race-based unlike the former where people enslaved themselves
due to debts. As such, slavery in 19th
century America is against the divine law which
calls for equality among man as provided in Genesis 1:27 that all men are created by
God in his image. This means that all races are equal and as slavery in 19th century
America solely affects the blacks, (inequality to the blacks), it is against divine law.42
Therefore, Aquinas would have advised that the slave code is unjust law and there
was no obligation to obey them. Hence, running away from one‟s master is not wrong.
Whether the laws prohibiting the harbouring and protection of the slaves under the
Fugitive Slaves Act 1793 is unjust according to Aquinas?
Next, before analysing the conversation between Senator Bird and his wife in
Uncle Tom‟s Cabin, we must first look at the historical context and background of
this conversation. The location of the conversation is presumed to be Ohio as in the
previous chapter the runaway slave Eliza crossed the Ohio River. Ohio itself is a free
state since 1803.43
This means that owning slaves is prohibited in that state. Despite
that, its white inhabitants are forbidden to help black slaves who had escaped from
Kentucky due to a federal law, the Fugitive Slave Act 1793.
The conversation between Senator Bird and his wife involves the law against
aiding runaway slaves that came from any slave owning states. Under Fugitive Slave
Act of 1793, a fine of $500 is imposed on anyone who is caught for harbouring or
concealing a runaway slave.44
A heavier punishment is imposed with the revision of
the Act in 1850. The penalty for helping runaway slaves was increased to fine of
40 Genesis 16 and Philippians 1:10.
41 Harriet Beecher Stowe, Uncle Tom’s Cabin, Chapter XI.
42 Does the Bible Condone Slavery? Got Questions Org <http://www.gotquestions.org/Bible-
slavery.html>.
43 David Lodge, Ohio As a Non Slave State (June, 1998) Shelby County Historical Society
<http://www.shelbycountyhistory.org/schs/blackhistory/ohioasanonslave.htm>.
44 History.com Staff, Fugitive Slave Acts (2009) History.com <http://www.history.com/topics/black-
history/fugitive-slave-acts>.
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17
$1000 and imprisonment of 6 months.45
In this conversation, the Senator‟s wife, Mrs
Bird strongly opposed to such law, calling it „unchristian‟ and that it should not be
followed. The Senator on the other hand, cited the necessity of such law for the sake
of public interest.
One of the circumstances which renders a law unjust is when it does not lead
to common good. Law forbidding harbouring and helping escaped slaves can only
protect the interest of the slave owners. This law is detrimental to the slaves as most
of the slaves ran away due to the abusive and inhuman treatment of slave owners.
With the existence of this law, the escaped slaves will be at the mercy of slave hunters
and once caught will be subjected to death penalty or some other inhuman torture and
punishment by their masters. Therefore even though the Act was passed by the
legislators, it is unjust.
Part (d) – Would Aquinas still have urged that the unjust laws be followed?
Aquinas said that unjust laws do not bind the human conscience though this
does not necessarily mean that the people are freed from being obliged by it. It can be
said that Aquinas made a balancing argument between the consequences of
disobedience to unjust laws and the possible negative effects of allowing it.
According to him, it is when disobedience to unjust laws could result in „scandal‟ or
„disturbance‟ that man should give up his rights and obey them.46
It is noted that this
applies only for unjust laws which failed to satisfy the three criteria47
to be just law as
distinguished from unjust laws which are contrary to divine law. Having this in mind,
the laws below are discussed.
Slavery laws in 19th
Century America
Slavery in America began in 1619 when the first batches of African slaves
were brought to the first American colony that is Jamestown, Virginia.48
As the
45 Ibid.
46
Summa Theologica, 1365. Aquinas stated that: “Wherefore such laws [unjust laws that failed to
satisfy the 3 criteria to be just law] do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right…”
47 Supra n 33 and 34.
48 History.com Staff, Slavery in America (2009) History.com <http://www.history.com/topics/black-
history/slavery>.
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18
number of slaves increased, slave codes were enacted to govern the relationship
between slaves and their owners. They imposed disproportionate obligations on slaves
and punishments for disobedience.49
It can be assumed that the act of disobeying the slave code by running away
from one‟s lawful master will be an encouragement for other slaves to run away too.
Incidences of slave escape will cause the masters to be more wary of their slaves and
enforce stricter authority over their slaves. This in turn will lead to harsher treatment
of slaves. This is because any form of disobedience and rebellion by the slaves can
induce fear on slave owners causing them to intensify the slave code.50
Seeing that
such disobedience towards the slave code could cause disturbance, it is most likely
that Aquinas would advise slaves to obey the unjust law.
Fugitive Slaves Act 1793
With the passing of time, the institution of slavery in the United States began
to die out in Northern states while slavery practice in Southern states remained
profitable. When many slaves began to escape to Northern states where slavery is
illegal, the Congress with support of the Southern states enacted the Fugitive Slave
Act to deter slaves from escaping. This law places obligation on everyone to not help
escaped slaves.51
If, we imagine that Aquinas was present in the conversation between the
Senator and his wife. He would have said that some unjust laws have to be obeyed to
avoid causing scandal, disturbance or more grievous hurt.52
This means that Aquinas
would most probably have sided with the Senator‟s arguments. As to whether an
unjust law has to be obeyed, Aquinas suggests weighing the effect of obeying with the
effect of disobeying such laws.
49 Boundless, Slave Codes (14 November, 2014) Boundless U.S. History
<https://www.boundless.com/u-s-history/textbooks/298/slavery-and-reform-1820-1840-16/slavery-in-
the-u-s-122/slave-codes-653-10159/>.
50 Nicole Van Rheenen, Nat Turner’s Revolt and Its Effect, Peopling the American Past
<http://chnm.gmu.edu/7tah/units_7tah.php?seventahid=17>.
51 History.com Staff, Fugitive Slave Acts (2009) History.com <http://www.history.com/topics/black-
history/fugitive-slave-acts>.
52 SeowHon Tan, „Validity and Obligation in Natural Law Theory: Does Finnis Comes Too Close to
Positivism‟ (2002-2003)15 Regent U. L. Rev. 195, 201.
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19
It is highlighted that when the Senator and his wife disobeyed the Federal Law
and decided to help the runaway slave, their disobedience is an act done in secret.
This is unlike blatant disregards of law such a robbery where the act is done in open
for everyone to see. As the act is not seen or known by the public, it cannot be said to
cause scandal. Likewise, the unseen and unknown (other than those who participate in
the plan) act of helping the runaway slave is not likely to cause civic disobedience.
Thus based on this reasoning, it seems that if Aquinas were there, he would probably
tell them that they are allowed to disobey the unjust law.
Nonetheless, we should also examine the surrounding circumstances to better
determine whether the unjust law has to be followed. The Senator had said there is a
great public interest involved in not helping the escaped slaves. Ohio (free state) is
right across the river from the Kentucky (slave owning state) so naturally, the escaped
slaves would choose to run to Ohio. If the people in Ohio were to harbour and help
the escaped slaves, word would spread around by and would encourage more slaves to
flock into Ohio to escape from their masters. This could damage the relation between
the two states and the economy of Ohio as Ohio has economic interests with
neighbouring slave states.53
Furthermore, if runaway slaves were to flock to Ohio, public peace will be
disturbed. In reality, the runaway slaves did flock to Ohio in the 19th century. The
population of Ohio are indignant about them and stormed into the runaway slaves‟
ghetto to burn down their shacks and beat them up.54
As helping a runaway slave can
lead to more runaway slaves escaping to Ohio which then increase the number of
runaways in Ohio, peace will be disturbed when the population acts savagely towards
the runaways, thus, helping runaway slaves can lead to civic disturbance. Since civic
disturbance can arise from helping runaway slaves, Aquinas would probably advise
the Senator and his wife to obey the law by not helping the runaway slave.
However we must not neglect to look at another exception from obeying
unjust law. Aquinas said that unjust law need not be obeyed when it is opposed to
53 David Lodge, Ohio As a Non Slave State (June, 1998) Shelby County Historical Society
<http://www.shelbycountyhistory.org/schs/blackhistory/ohioasanonslave.htm>.
54 Douglas Harper, Race in Ohio (2003) Slavery in the North <http://slavenorth.com/ohio.htm>.
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20
divine good. 55
The example he gave is the law inducing idolatry. Such law does not
have to be obeyed as a person should obey God instead of men.56
As stated by Mrs
Bird, the Bible commands Christians to feed and help people in need. To obey this
unjust law would mean not helping the escaped slaves who are in dire need and go
against the command of the Bible. But unlike the example given by Aquinas, the
command Mrs Bird quoted from the Bible is not part of the Ten Commandments. So
does this command have enough force to free the Senator and his wife from having to
obey this unjust law? The obligation to help others can be related to the command to
“love your neighbour as yourself”.57
The Bible in the book of Luke explained through
the parable of good Samaritan that neighbour includes any person in need that one
meets.58
This command is a great commandment and is second only to the command
to love God.59
Since the command to help those who are in need is grounded on such
an important commandment, a law that forbids one from helping the runaway slaves
who are in need is opposed to divine good. Therefore, this unjust law do not have to
be obeyed.
In short, after examining the principles on obligation to obey unjust law as set
out by Aquinas, it seems Aquinas would have advised the Senator and his wife that
they need not obey the law of the Fugitive Slave Act and help the runaway slaves as
they should obey divine law of God instead of the law of men.
Conclusion:
In conclusion, in our view, Aquinas condones natural slavery but would have
been against conventional slavery as is the case in 19th century America. Aquinas also
seems to impliedly suggest that slavery of foreigners based on race is acceptable but
only on grounds of intellectual incapacity and that being enslaved would also benefit
the slaves (natural slavery).
55 M D A Freeman, Lloyd’s Introduction to Juriprudence (Sweet &Maxwell, 7thed, 2001) 97.
56
Wayne Morrison, Jurisprudence: From the Greeks to Postmordernism (Cavendish Publishing, 1997)
93. 57 The Holy Bible (New King James Version) Matthew 22:39; Mark 12:31; Luke 10:27.
58 The Holy Bible (New King James Version) Luke 10:30-37.
59
The Holy Bible (New King James Version) Matthew 22:37; Mark 12:30; Luke 10:27.
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21
If placed in the 19th century, Aquinas would have said that the slavery laws
then were unjust for failure to satisfy the three criteria in his theory of just law and for
opposing divine good. In other words, both the slave codes and the Fugitive Slaves
Act would have been considered by Aquinas as unjust. Nevertheless, Aquinas would
have justified the obedience to the unjust slave codes to avoid scandal and civic
disturbance. On the contrary, since the Fugitive Slaves Act is conflicting with divine
teachings, namely the „love your neighbour‟ commandment from God, Aquinas
would have advocated for disobedience to the Fugitive Slave Act.
Thus, in our humble opinion, if Aquinas were to be put in Senator Bird‟s
situation and circumstances, he would most probably have done the same as the
Senator. Aquinas would have helped Eliza and her son to escape because even though
there were policy arguments, at the end of the day, it is the moral conscience of man
that will prevail, especially when faced with a frail and terrified slave.
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22
References:
Journals & Articles:
1. Edward J Damich, „The Essence of Law According to Thomas Aquinas‟
(1985) 30 American Journal of Jurisprudence 79
2. Louis W Hensler III, „A Modest Reading of St Thomas Aquinas on the
Connection Between Natural Law and Human Law‟ (2009-2010) 43
Creighton L. Rev. 153
3. Prof. Hector Zagal „Aquinas on Slavery: An Aristotelian Puzzle‟ (Paper
presented at the Congresso Tomista Internazionale, L‟umanesimo Cristiano
Nel III Millennio: Prospettiva Di Tommaso D‟Aquino, Universidad
Panamericana, México, 21-25 September 2003)
4. Ralph Neill, „Slavery in the Writings of Thomas Aquinas‟ (April 4, 2011)
5. SeowHon Tan, „Validity and Obligation in Natural Law Theory: Does Finnis
Comes Too Close to Positivism‟ (2002-2003)15 Regent U. L. Rev. 195, 201
Websites:
1. Boundless, Slave Codes (14 November, 2014) Boundless U.S. History
<https://www.boundless.com/u-s-history/textbooks/298/slavery-and-reform-
1820-1840-16/slavery-in-the-u-s-122/slave-codes-653-10159/>
2. David Lodge, Ohio As a Non Slave State (June, 1998) Shelby County
Historical Society
<http://www.shelbycountyhistory.org/schs/blackhistory/ohioasanonslave.htm>
3. Does the Bible Condone Slavery? Got Questions Org
<http://www.gotquestions.org/Bible-slavery.html>
4. Douglas Harper, Race in Ohio (2003) Slavery in the North
<http://slavenorth.com/ohio.htm>
5. History.com Staff, Fugitive Slave Acts (2009) History.com
<http://www.history.com/topics/black-history/fugitive-slave-acts>
6. History.com Staff, Slavery in America (2009) History.com
<http://www.history.com/topics/black-history/slavery>
Copyright Reserved.
Please remember to credit and cite our work.
Contact: [email protected]
23
7. Nicholas Boston, 'Slavery and the Making of America: The Slave Experience:
Living Conditions, Historical Overview', 2004, Public Broadcasting Service
<http://www.pbs.org/wnet/slavery/experience/living/history.html,>
8. Nicole Van Rheenen, Nat Turner’s Revolt and Its Effect, Peopling the
American Past <http://chnm.gmu.edu/7tah/units_7tah.php?seventahid=17>
9. USHistory.Org staff, Slave life and Slave Codes, US History: Pre-Columbian
to the New Millenium <http://www.ushistory.org/us/27b.asp>
Bibliography:
1. Aristotle, The Politics (T. A. Sinclair trans, London: Penguin, 1992)
2. Aquinas, Thomas, Commentary on Aristotle’s Politics (Richard J. Regan trans,
Hackett, 2007)
3. Aquinas, Thomas, The Religious State, the Episcopate, and the Priestly Office
(The Newman Press, 1950)
4. Behrendt, Stephen, Transatlantic Slave Trade – Africana: The Encyclopedia
of the African and African American Experience (New York: Basic Civitas
Book, 2004)
5. Brace, Laura. The Politics of Property: Labour, Freedom and Belonging
(Edinburgh University Press, 2004
6. Freeman, M D A, Lloyd’s Introduction to Juriprudence (Sweet &Maxwell, 7th
ed, 2001)
7. Morrison, Wayne, Jurisprudence: From the Greeks to Postmordernism
(Cavendish Publishing, 1997)
8. Northup, Solomon, Twelve Years a Slave (Derby & Miller, Auburn, New York,
1835)
9. Saint Aquinas, Thomas, Summa Theologica (Fathers of the English
Dominican Province trans, Benziger Bros. edition, 1947) [trans of: Summa
Theologiae (first published 1917)]
10. Stowe, Harriet Beecher, Uncle Tom’s Cabin, Chapter XI
11. The Holy Bible (New International Version)
12. The Holy Bible (New King James Version)