BONDAGE. A term which has not ob tained a juridical use distinct from the ver nacular, in which it is either taken as a synonym with slavery, or as applicable to any kind of personal servitude which is in voluntary 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, exclu sively, a natural person who, in law, is known as an object in respect to which legal persons may have rights of possession or property, as in respect to domestic animals and Inanimate things, it is evident that any one who is regarded as a legal per son, capable of rights and obligations in other rela tions, while bound by law to render service to an other, 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 un der 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, though nominally that of a legal person, differs from chat tel 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 ; hut they held per sons 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 Eu rope (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 com merce, in the sixteenth century. Every villein un
der the English law was clearly a legal person capa ble of some legal rights, whatever might be the na ture 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 accounta ble 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 contradic tions. But while no rights or obligations, in rela tions 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 nat ural 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 writ ers. The bondage of the villein could not be thus characterized; and there is no historical connection between the principles which determined the exist ence of the one and those which sanctioned the other. The law of English villenage furnished no rules ap plicable to negro slavery in America. Com. v. Tur ner, 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.