jurisprudence ii - st thomas aquinas on slavery in 19th century america

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1 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) [email protected] 1092701478 Amanda Seow Mei Wen [email protected] 1102700002 Charlene Constance Chai [email protected] 1102700922 Chua Hui En [email protected] 1111110963 Lee Siew Ya [email protected] 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 articles and example explaining what is or what is not plagiarism. We have not plagiarized and have also acknowledged ALL sources which are not our own and have not merely “cut and paste”. We have retained a copy of this assignment. We have used not more than 12 web sources and there are more than 25 footnotes cited in this assignment. Each of us has contributed roughly equally to this assignment. If there are any complaints about non-contribution then we will abide by the Lecturer‟s decision 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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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)

[email protected]

1092701478 Amanda Seow Mei Wen

[email protected]

1102700002 Charlene Constance Chai

[email protected]

1102700922 Chua Hui En

[email protected]

1111110963 Lee Siew Ya

[email protected]

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

articles and example explaining what is or what is not plagiarism. We have not

plagiarized and have also acknowledged ALL sources which are not our own and

have not merely “cut and paste”. We have retained a copy of this assignment. We

have used not more than 12 web sources and there are more than 25 footnotes cited in

this assignment.

Each of us has contributed roughly equally to this assignment. If there are any

complaints about non-contribution then we will abide by the Lecturer‟s decision

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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Contact: [email protected]

2

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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Assignment Instructions and Guidelines

INSTRUCTIONS FOR ASSIGNMENT

1. This assignment is to be done in groups of five students (maximum)

2. The assignment should be between 2700 words (minimum) to 4300 words

(maximum). State the number of words written in the assignment.

3. This assignment is worth 20% of the course work marks.

4. BEWARE of Plagiarism. EVERY statement which is not your own,

whether it be taken from books, articles, cases, on line web sites should

be put within quotation marks and cited in a foot note. There must be a

minimum of 21 foot notes in the Assignment. Don’t plagiarize from each

other also. In EVERY page the assignment group leader and other group

member must signed that every statement and sentence in that page has

been properly cited. The assignments may be made through ‘Turn It In”.

5. Read the attached two articles regarding plagiarism which follows the

assignment. At the start of the assignment the following note must appear:

We have read the attached articles and examples explaining what are or what

are not plagiarisms. We have tried to adhere to the suggestions given and

have tried not to plagiarise. If there are any unattributed sources if not

plagiarism we understand that up to a mark of zero for the assignment can be

given or our marks could be drastically reduced. All of us have roughly

equally contributed to the Assignment.

6. If you summarize a longer argument from a book or any other source you

should also cite the full citation of the source and from the page numbers

that you have referred to.

7. If a quotation is longer than 30 words it should be indented. The following

is an example of an indented phrase:

If a quotation is longer than 30 words it should

be indented. The following is an example of an

indented phrase

8. As regards citation methods students should follow in citation methods

the general guidelines provided in The Australian Guide to Legal Citation

which can be found on the web.

9. Generally, books should be cited in this way”

H.L.A. Hart, The Concept of Law (2nd

edition, 1994, Oxford Clarendon Press)

10. Articles from Journal should be cited in this way,

H.L.A Hart „Positivism and the Separation of Law and Morals‟ (1958) 71

Harvard Law Review, 593, 621.

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Initials and name of author, followed by name of article in Journal , the year

the journal was published in (square brackets „1958‟), the name of the journal

in italics (Harvard Law Review) , the page number of the first page of the

article and then the page number of the quotation where it comes from.

11. Acts or Legislation should be cited thus:

Internal Security Act, (Malaysia) 1960,

Endangered Species Act (United States) 1973

12. Cases should be cited this way:

Donoghue v Stevenson (1932) A.C. 562,

13. Internet articles should be cited thus:

Sandy English, „Former surgeon general describes Bush administration‟s

interference on science and health issues‟, 17 July 2007, World Socialist Web

Site www.wsws.org./articles2007//july20007/surgj.,-shtml ,accessed 18 July

2007

14. Even if you are giving full quotations on your sources the assignments

should not be a ‘cut and paste’ job. You should not take one quotation

from article A and another from Book B and ‘cut and paste’ to reproduce

in the assignment. You need to make reasoned with arguments in your

assignment.

15. Though it is not ‘prohibited’ you are not encouraged to discuss the

assignment with other students beyond your own group. This is to

encourage a variety of views on the question asked. If there is substantial

similarity in both the style and the substance of the assignments the

marks of both papers could be reduced. Apart from within your group if

you do discuss with other groups or with any person Lecturers, lawyers

or others you should mention their name(s) with whom you have

discussed the assignment problem.

16. You are encouraged to use headings and sub-headings in the assignment.

The assignment will be marked on, among others, how well you

understand the question, how perceptive is your understanding of the

issues involved and the jurist theories and more importantly how you

apply them in the context of this particular problem. A structured

presentation and grammatical writing style will also be taking into

account even though a mainly ‘cut and paste job’ with correct grammar

and good style will score lower marks than an assignment where there are

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mistakes in grammar and style of writing but which shows research work

and make own reasoned arguments.

17. The Assignment cover sheet should contain the following:

a) the names, student numbers of all the group numbers and the e mails and

contact phone numbers of at least three of the assignment group members

b) the words used in the assignment

c) the number of web sources (instead of books, articles from Journals, which

should not exceed 50% of the sources

d) That there is no plagiarism or mere „cut and paste‟ in the Assignment. That if

more than 40 words are quoted it has been indented.

e) That there are at least 25 foot notes in the Assignment

f) That ALL members of the group are jointly responsible for ALL parts of the

Assignment. That the „excuse‟ that this part of the Assignment was not

„written by me‟ will not be given by any member of the Assignment group.

g) That all of the Assignment group members have roughly equally contributed

to the Assignment, Should there be any claim or dispute as to non-contribution

the Course Coordinator decision would be abided.

18. The Assignment should be work jointly and each member of the group

should jointly edit each other’s contribution. It is not that all members of

the group would work on each topic and then ‘cut and paste’. Each

member of the group should study other parts assigned and work

together rather than ‘cut and paste’. So work on other parts of the

assignment an individual has been assigned to and take time to edit each

other’s work before submission.

19. The Assignment is at the start of the Lecture on 29 December 2014 at the

start of the class. Whether the Assignments would be required to be

submitted at Drop Box or whether it is possible for the Assignment to be

submitted on MMLS would be decided later.

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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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15

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>

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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)