Question IX: Whether slaves can wrest themselves from their masters

I speak of captives taken in a just war; for of those bought it is clear that they cannot flee.

The first opinion is that slaves captured in a just war, such as Moors or Turks, can flee, provided they go to their own homeland, not that they wander through places where they are slaves. So teach Petrus Nauar. l. 3. de restit. cap. 1. num. 200., Sà v. bellum, num. 7., Lessius l. 1. l. 2. cap. 15. dub. 15. num. 24., Azor. Tomo 2. l. 2. cap. 24. quaestio 3., Couar. l. 1. var. cap. 2. num. 10. et in Regulam Peccatum, §. 11. p. 2., Bannes 2. 2. quaest. 40. art. 1., Angles in flor. in 4. quaest. de dominio, art. 2. concl. 5., Sotus l. 4. de Iust. quaest. 2. art. 2. concl. 3., Gregorius Lopes l. 23. tit. 29. p. 3., Alens. 3. p. quaest. 48. membr. 2. art. 3., Fagundez l. 7. cap. 1. num. 21., after D. Bonaventure in the places to be cited.

The negative opinion is upheld by Molina T. 1. disp. 37., Nauar. Man. cap. 7. num. 63., Glossa C. Ius gentium, dist. 1., Fortun. Leg. manumiss. col. 2., D. Anton. 5. p. tit. 3. cap. 6. §. 4., Turrecrem. in C. Ius gentium, disp. 1., Sylvest. v. servus, quaest. 3. dict. 2.

But it seems to be proved first from the S. Doctor, 2. dist. 44. art. 3. quaest. 1., because captivity in war was introduced by the law of nations, and is just, sanctioned by laws. Therefore those fleeing steal themselves from their masters, Leg. 1. Cod. de servis fugitivis, et Leg. 2. C. eodem titulo; it is established there that a slave caught in flight is to be punished by mutilation of the foot; but so grave a penalty would not be imposed except for mortal sin. The laws of the Code, moreover, are more recent, and of Christian Emperors. Wherefore one must stand by those, not by others of the Digest.

It is confirmed from cap. 1. et 2. si quis servum, dist. 17. quaest. 9., where it is said that they sin mortally, and are bound to restitution, who aid and encourage slaves to flee.

But the response of Fagundez is frivolous: that the Codes speak of slaves wandering through the kingdoms where they are slaves, not of those returning to their own; in which they have a right; for they are slaves, yet in such a way that, if they can, they are able to flee.

These things are indeed said gratuitously, because in the Codes this distinction is not found, nor does it accomplish anything; for the question asks whether they are absolutely subject to masters; and if it is so, whether they are seized so as to return to their own, or so as to wander, contributes nothing to diminishing the damage; just as the same damage would be done by one who stole my purse, whether he carried it off to Spain or squandered the coins here.

I add that in our case there is less damage or inconvenience if slaves wander through Christian regions, where they can easily be converted to the faith, than if they return to their own Mohammedans or Idolaters.

Indeed, the affirmative opinion is evidently proved by D. Bonav. in 4. dist. 36. quaest. 1. fundamento 3. et quaest. 2. ad 2. When two unequal rights concur, the right of the higher order precedes; but liberty is of the Law of Nature; the servitude of War is of the law of nations, which is inferior: therefore. This reason caused the statute in the Institutes de rerum divisione, §. item ea, to be made in these words: Free men are brought into our servitude, who, however, if they escape our power and have returned to their own, receive their pristine state. And the same is had in the Institutes: Quibus modis ius patriae potest. solvatur, §. si ab hostibus. And in Leg. Nihil interest, ff. de captivis, et postliminio reversis, there: It makes no difference when a captive has returned, whether he was let go, or escaped the power of the enemy by force or by stratagem.

This also was enacted in Leg. 25. tit. 14. part. 7. in the kingdom of Castile, there: If a Moorish slave flee into Mauritania, and there set foot in safety, we will that he remain free, even if he afterwards return to the Christians.

It is confirmed, for one condemned to perpetual imprisonment, or to the galleys, even if justly, can nevertheless flee. Each opinion is probable, but this one is more strongly proved because of the reasons adduced.

To the objections it is answered that the law of nations has detracted something from the law of nature, and it is restored if the occasion offers itself in necessity, as I said even of the properties of things, but more truly of liberty, which is positively of the law of nature, as I said in the Tractatu de Legibus, disp. 4. quaestione 2.

To the penalty of mutilation I would say first that it is comminatory, and never commanded to be executed. But many laws threaten, lest greater liberty be usurped by all than is fitting, for instance lest those take flight who have sold themselves, and renounced their natural right; and of these also the chapter si quis servum speaks, but not of those made slaves in war.

As regards Christian slaves captured in war on the side that is just, they can flee. So Petrus Nauar. l. 3. de restit. cap. 1. num. 11. Indeed they are bound to flee from the gentiles when there is danger to the faith, as I deduce from D. Bonav. in 4. dist. 36. dub. 2. litt. The reason of the Seraphic Doctor is evident, as Fagundez brings it forward, cap. 12. num. 27.: because we are bound to provide more for the salvation of the soul than for any other thing whatever.

Yet I ADD that war is always just for Christians against the Saracens and Turks, since they have tyrannically occupied the provinces of the Christians, as Couar. observed in Reg. Peccatum, 2. part. §. 11. num. 6. Fagundez, in the place cited, after D. Bonavent. expositione in Threnos, et serm. 16. Haexaëmeronis: a Christian captured by another Christian waging war justly can licitly flee, as D. Bonavent. teaches, in 4. dist. 36. quaest. 2. ad 2., Petrus Navar. Lib. 3. de restit. cap. 1. num. 211., Fagundez num. 28.; nor is he even a slave; for although by law he could be made a slave, yet by legitimate custom among Christians, that they not be legitimately subjected to servitude, it is not licit, as Molina also teaches, Tract. de iust. disput. 33. §. primus est.

The S. Doctor proves this, 4. dist. 36. quaest. 1. fundamento 1.: In Christ Jesus there is no slave, Galat. 3. And by Canon Law, Christians cannot be reduced to the servitude of slaves.