It represents it as a commutation of the punishment of death,
which the emperor has the right to inflict on captives taken in
war, to perpetual servitude; and as servitude is less severe than
death, slavery was really a proof of imperial clemency. But it
has never yet been proved that the emperor has the right under
the natural law to put captives taken even in a just war to
death, and the Roman poet himself bids us "humble the proud, but
spare the submissive." In a just war the emperor may kill on the
battle-field those in arms against him, but the jus gentium, as
now interpreted by the jurisprudence of every civilized nation,
does not allow him to put them to death after they have ceased
resistance, have thrown down their arms, and surrendered. But
even if it did, it gives him a right only over the persons
captured, not over their innocent children, and therefore no
right to establish hereditary slavery, for the child is not
punishable for the offences of the parent. The law, indeed,
assumed that the captive ceased to exist as a person and treated
him as a thing, or mere property of the conqueror, and being
property, he could beget only property, which would accrue only
to his owner. But there is no power in heaven or earth that can
make a person a thing, a mere piece of merchandise, and it is
only by a clumsy fiction, or rather by a bare-faced lie, that the
law denies the slave his personality and treats him as a thing.
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