Bondage

Is a term which has not obsynonym with "slavery,'' or as applicable to any kind of personal servitude which is involuntary in its continuation.

A term which has not obtained a juridical use distinct from the vernacular, in which it is either taken as a synonym with slavery, or as applicable to any kind of personal servitude which is involuntary in its continuation. The propriety of making it a distinct juridical term depends upon the sense given to the word slavery. If slave be understood to mean, exclusively, a natural person who", in law, is known as evident that any one who is regarded as a legal person, capable of rights and obligations in other relations, while bound by law to render service to another, is not a slave In the same sense of the word. Such a one stands in a legal relation, being under an obligation correlative to the right of the person who is by law entitled to his service, and, though not an object of property, nor possessed or owned as a chattel or thing, he is a person bound to the other, and may be called a bondman, In distinction from a slave as above understood. A greater or less number of rights may be attributed to persons bound to render service. Bondage may subsist under many forms. Where the rights attributed are such as can be exhibited in very limited spheres of action only, or are very imperfectly protected, it may be difficult to see wherein the condition, thougli nominally that of a legal person, differs from chattel slavery. Still, the two conditions have been plainly distinguishable under many legal systems, and even as existing at the same, time under one source of law. The Hebrews may have held persons of other nations as slaves of that chattel condition which anciently was recognized by the laws of all Asiatic and European nations; but they held persons of their own nation in bondage only as legal persons capable of rights, while under an obligation to serve. Cobb's Hist. Sketch, ch. 1. When the serfdom of feudal times was first established, the two conditions were coexistent in every part of Europe (ibid. ch. 7), though afterwards the bondage of serfdom was for a long period the only form known there until the revival of chattel slavery, by the introduction of negro slaves into European commerce, in the sixteenth century. Every villein under the English law was clearly a legal person capable of some legal rights, whatever might be the nature of his services. Co. Litt 123 b; Coke, 2d Inst 4, 45. But at the first recognition of negro slavery in the jurisprudence of England and her colonies, the slave was clearly a natural person, known to the law as an object of possession or property for others, having no legal personality, who therefore, in many legal respects, resembled a thing or chattel. It is true that the moral responsibility of the slave and the duty of others to treat him as an accountable human being and not as a domestic animal were always more or less clearly recognized in the criminal jurisprudence. There has always been in his condition a mingling of the qualities of person and of thing, which has led to many legal contradictions. But while no rights or obligations, in relations between him and other natural persons such as might be judicially enforced by or against him, were attributed to him, there was a propriety in distinguishing the condition as chattel slavery, even though the term itself implies that there is an essential distinction between such a person and natural things, of which it seems absurd to say that they are either free or not free. The phrases instar rerum, tanquam.bona, are aptly used by older writers. The bondage of the villein could not be thus characterized; and there is no historical connection between the principles which determined the existence of the one and those which sanctioned the other. The law of English villenage furnished no rules applicable to negro slavery in America. Com. v. Turner, 5 Rand. (Va.) 680, 683; Fable v. Brown, 2 Hill, Ch. (S. C.) 390; Neal v. Farmer, 9 Ga. 561; 1 Hurd, Law of Freedom and Bondage, cc. 4, 5. Slavery in the colonies was entirely distinct from the condition of those white persons who were held to service for years, which was involuntary in its continuance, though founded in most instances on contract. These persons had legal rights, not only in respect to the community at large, but also in respect to the person to whom they owed service. In the American slaveholding states before the Civil War, the moral personality of those held in the customary slavery was recognized by jurisprudence and statute to an extent which makes it difficult to say whether, there, slaves were by law regarded as things and not legal persons (though subthey were so formerly. Compare laws and authorities in Cobb's Law of Negro Slavery, ch. iv., v. The Emancipation Proclamation (January 1, 1863), and the amendments to the constitution of the United States, have rendered the views entertained on the subject purely speculative, as slavery has ceased to exist The Emancipation Proclamation was issued by President Lincoln as commander-in-chief of the army and navy of the United States during the existence of armed rebellion, and by its terms purported to be nothing more than "a fit and necessary war measure for suppressing said rebellion." By virtue of this power, it was therein ordered and declared that all persons held as slaves within certain designated states, and parts of states, were and henceforward should be free, and that the executive government of the United States, including the military and naval authorities thereof, should recognize and maintain the freedom of said persons. The proclamation was not meant to apply to those states or parts of states not in rebellion. The constitutionality of this measure has been a subject of some doubt, the prevailing opinion being that it could be supported as a war measure alone, and apply where the slaveholding territory was actually subdued by the military power of the United States; Slaughter-House Cases, 16 Wall. (U. S.) 68, 21 L. Ed..394; In South Carolina, it has been held that slavery was not abolished by the Emancipation Proclamation, and the same view was sustained in Texas; Pickett v. Wilkins, 13 Rich. Eq. (S. C.) 366; Hall v. Keese, 31 Tex. 504. In Louisiana, Posey v. Driggs, 20 La. Ann. 199, and Alabama, Morgan v. Nelson, 43 Ala. 592, the opposite view is held. But see Mc Elvain v. Mudd, 44 Ala. 70, 4 Am. Rep. 106. In Mississippi the question of the time when slavery was abolished is left open; Herrod v. Davis, 43 Miss. 102. The 13th Amendment to the constitution, proclaimed Dec. 18, 1865, was the definite settlement of the question of slavery in the United States. It declares, "1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to its jurisdiction. 2. Congress shall have power to enforce this article by appropriate legislation." See Slave; Manumission.

Slavery; involuntary personal servitude; captivity. In old English law, Villenage, villein tenure. 2 Bl. Comm. 92.