Nth J
hi
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BOBTQHi LITTLE, BROWtf & COMPANY.
w yoek: :
D. VAN NOSTRA KB.
M.DOCCJ.VIII.
*
Enteeed according to Act of Congress, In tho year 1858, by
JOHN COiDllAN IIURD,
in the Clerk's Office 0/ the Bistri'ci Court of the tJnited States, for tho Southern
District of New York,
Y- i
JOHtf F. TROW, Not 377 & 379 Broadway, New Yoilc.
25463
TO
MY FATHER,
THIS WOBK, THE RESULT OP STUDY ALWAYS PROMOTED BY HIS GENEROSITY
AND INCITED BY HIS SYMPATHY, IS GRATEFULLY INSCRIBED.
P E E F A C K.
O2* the imhl&ztwn cf a volume whr&i Utte mlk&fs® its amnectwn mth queztwns arming from the gzhtenee of negro slavery in the "United Btetzz, & recelteetum <ti the number &n& variety of the existing works on that mlqeet villi suggest the yzo~ nriety of some prefatory exposition of the author's \mnt of view. Although, the questions considered In this work are not fre- quently matters of controversy in courts of law, and derive their principal interest from their connection mth objects of mote political and public importance than are the litigated rights of private persons, yet it is designed and published as a legal or juristical treatise, or one which, if not technical, may still with strictness he called a C£ law book." It is intended to present statements of law only, without the introduction of any consider- ations of the effect of such law on the moral or religious, the social or political interests of the nation or of the several States- Having this character exclusively, it follows that the pro- posed work cannot he expected to contain any thing essentially new: simply because, if such, it could not he law. The merit of a treatise of this \kmd must always consist i \ presenting no proposition without adequate reference or deduction, showing that the same has already been said, or, at least, if not said, has been implied in former juridical expositions. H ' f -
foul \.Wi i'M ItfiMi't fi.V.,;', Mfaitff :>h')\Usfiif ftl4 Hf of fitffi-
{/tit*;- bipjt'i ftnf, ?>l •''(' /.{' \sNi(i fiWMf Ui fM?(* frf't^f tiM\tWityif Of
h}\i\Htt4 flff MWwif Of (iiUUtttii;/ d'-ffittiVM ftOpftMoitti,
y/h-iifv/,,/ ri'V/Mif;/ itikjf ki foiiitd Ui IhO H\(Htiii$ (>'■''//■ i -//Vl'f Hifi«U(. m Ihft tfff'ihjM iftfuiiy/'tn^ni ot tit$4<u0ilh ftt.dttfj M H'ix'Util {in(>(t,u*'<(ff k'/// ('.(ffftiMted tilth ffa tuti/ftf, tit IMrf ffffrfcW t>r(W j iyrti$ff- )ii dtnity tinfy \ti ttiirj fit) titdb f/> fi^Mi ifai pfofMtii^irfi i/hkii/iir {fa difatimiott of tfo tvartjuf, of
hiMtirjmdof tfa km of {fa (Mud m&U&j m mtromiy tub mmd m mimdibtoty of htitogohUtte, a% k mitty ttoi 00,
itffidffitM in itihg » tormb MMmtib of tbe W m tba mi>i$6bf iho tfopmd tmtitts atumi b& of a pttiim ohmttot^ Of emmb fa* otfawim tbm lmp^ttki \u respect; to tbe objects* of foiiti&tt f«ife/ fo? tbe exposition of existing law k merely t\i& ^idm&nt of tfa fact, md fa entirety distinct ftom any ap- proval 6f (ttmfpfov&l of that kw, on grounds of moral or politi- cal expediency, Thk will probably be admitted by all who have made the law to any great extent their study Bat the popular manner of treating the subject of slavery may warrant the belief that a very large proportion of those who participate in snob discussions would not admit the proposition, and do not 'ordinarily discriminate between tlie legal or j mistical view pf subjects of social interest and other views essentially ethical or political.
The failure to distinguish between the science of law' and that of ethics has been common in every country, and manifested in connection with many subjects of social interest ; but never nor in any country more plainly than in this, at the present time, in controversy excited by the subject herein considered. The connection between private rights and public law, which .everywhere exists, is particularly visible in the jurisprudence of - republican states, and is in this country not merely a matter of
MM Mb,
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iibprliih"'' '''f-V/jiii k H'tyttuU'-ti uwi U <foM'j ttp'fuiiM tft
Mlf't'1 \ii tfai C'tiutiw bi'tytwJ, (<f ihfj MthUtuiufyf fih« tit"
tikUlmi um&m </f mUfy may tfaf 10m entity Uw
Sn iUf hdkf tfat thin tetttkm? mimn pfitidp&tiy f/om &, mtib <i ptmMm he tfaj 6AMoa§ of hw md in the fmmim wMtih express if/e teftl pt</po4tioii& (A 'ftn&pitt&ettce, the follow* kg ezaiMti&tiv® (A the fam of the XSiAtad Kitties &ffeetkg per- mit&l (ioii(iUi6n hm teeri eommerje&l hy & prelimimry exposition of thorn principles of general jurisprudence vrhieh would he flecessan'Iy involved m considering the incidents of free condition and its contraries in whatever country they might exist ; and it has lawn attempted at the same time to discriminate for me m the succeeding inquiry each terms, already adopted by writers of admowledged. reputation, as are requisite to express the neces- sary distinctions.
Some principles are necessarily assumed without proof ; and when stated, as abstract propositions, without; being illustrated by application to cases, only those already familiar with the questions to which they apply can be supposed to perceive their relevancy. The value of the abstract or elementary portions of this treatise may be tested by their attempted application to the practical cases presented in the succeeding portions. It must be confessed that while a great deal of the literature of jurispru- dence may illustrate the constant need of such reference to ele- mentary principles and discrimination of language, it will also illustrate the -fact that they do not ordinarily receive much attention. And the dictum attributed to Bartolus, "de verbi- hus non curat - Jurisconsultus," if regarded as the statement of a
viii
l'IUCFA.015.
fact, \h perhaps now'iero better vindicated than whero the inci- dents of bond and free < 'idition have been the topics of legal investigation.
Since il, \h principally as connected with public or constitu- tional law that the incidents of free condition and itH contraries have been made the subject of logal inquiry, and now excite inoHt discussion, they have, in the greater portion of the following pages, been presented in that connection.
It seems natural to Bupposo that, in the jurisprudence of every country, that which in its place in the system is most fun- damental must also bo that portion which is least the subject of legal doubt, or that which may the most easily be ascertained in tho harmony of judicial determinations. So it will probably be thought by most persons that in the exposition of any class of private rights and obligations arising under American law the constitutional law connected with the subject, or the meaning and effect of the Constitution of the United States in that con- nection, espec'illy as determining the political source to which existing rights of private persons are to be referred and on which the continuance of their rights depends, must be that portion of the inquiry giving the least occasion for independent investigation or original reference to elementary principles of construction and interpretation.
But that, in some of the most important questions of consti- tutional law, the private inquirer cannot so implicitly refer to their determination by judicial opinion, or could not, at least, so lately as the yea." 1837, might be believed from the strong ex- pressions used by the late Judge Baldwin of the Supreme Court of the United States, in his General View of the Origin and Nature of the Constitution and Government of the United States, &c, &c., commonly cited as Baldwin's Constitutional Views, published in that year. See page 2, where he says, " It
IMtKFACK.
ix
had long beer to mo a subject, of deep regret that, notwithstand- ing the numorouH, consistent, most solemn, and (with some few and mostly late exception**), to my mind, most satisfactory ad- judications of thin court Jtho Supremo Court of the United States], in expounding the Constitution, its meaning yet remains aa unsettled, in political, professional, and judicial opinion, as it was immediately after its adoption. If one is to judge of the next, by the results of tho past half century, there is but a slight •issurance that that instrument will be hettei understood at the expiration, than it is at the beginning of the period."
And were not tho apprehension hero expressed well founded, it would generally be felt that the exposition of the fundamental princip^s of American constitutional law must be as easily at- tainable by any private writer as is that of the ordinary law of private rights and obligations. An industrious collation of ex- isting judicial decisions should be as sufficient to establish a deduction of the true principle in that department as in any other of our law. Yet, in no portion of juristical literature, does the reader so commonly expect that the author undertaking the exposition should be supported by the prestige of a precedent reputation which may give his views an authority beyond any they could have by being simply impartial deductions from the ordinary elements cf legal knowledge : as if it were generally understood that in treatises on constitutional law the writer, instead of relying, as in other departments of jurisprudence, on the force of judicial decisions, should himself enter, more or less, on an independent construction and interpretation of the Consti- tution, and test the value of the decisions by his own several deduction from the bare text of the instrument.
And, indeed, Judge Baldwin's further observations, in con- tinuation of the passage just cited, indicate that this idea has been countenanced by the practice of the court itself. " It is to
X
PREPACK.
be feared," he proceeds to Hay, " that unless Homo mode of inter- pretation different from what has been usually pursued in argu- ment is adopted, the present uncertainty must become utter con- fusion. In reviewing the course of argument on both sides in these cases, the remark is fully justified that we have been re- ferred, for the true interpretation of the Constitution, to books, essays, arguments, opinions, speeches, debates in conventions and legislative bodies, by jurists and statesmen, and by some who were neither, which would not be offered or suffered to be read in any court, as entitled to respect, in construing an ordi- nary act of legislation, or a contract between individuals."
The generous reader will not believe that, in this allusion to the miscellaneous nature of former inquiry in this department, the writer would insinuate an argument for the favorable recep- tion of his own observations on one of the most important sub- jects of constitutional law. No one can be moro sensible that, in proportion to the interest of the inquiry and the deficiency of the ordinary means of attaining juridical certainty must be also the demand for special qualifications in the writer for such inves- tigation, and be more aware of his exposure to the charge of pre- sumption in their absence. The testimony of Judge Baldwin is here adduced not merely as showing that the decisions of the highest courts may not in this matter have been successful as harmonious expositions of the fundamental principles of Ameri- can public law, but more particularly because in that connection he has maintained the authority of common law as the control- ling juridical instrument for attaining a knowledge of the pur- pose and legal effect of the Con jtitution of the United States ; and because that view is in harmony with the method which has been pursued in the following work. In the place referred to, Judge Baldwin also said, " I have long since been convinced that there are better and safer guides to professional.and judicial
TREFACE.
xi
inquiricH after tnith, on constitutional questions, than those which havo been bo often resorted to without effecting tho do- fliied result, a clear and settled understanding of the terms and provisions of an instrument in writing which operates with su- premo authority wherever it applies. To mo it seems that it can be made intelligible in all its parts by applying to it those established rules and maxims of tho common law, in the con- struction of statutes, and those accepted definitions of words, terms and language in which they had been used and been received, as well known and understood, in their ordinary or legal sense, according to the subject matter. In appealing to the common law as the standard of exposition in all doubts as to the meaning of written instruments, there is safety, certainty, and authority. The institutions of the colonies were based on it," &c, &c. ; and on page 7 of the same, " I know no other guide which is safer, which better conducts the mind to certainty, nor do I feel at liberty to follow any other than thu principles of the common law that are well established and applicable to a case arising under the Constitution, and which turns upon its inter- pretation ; their adoption has been, in my judgment, most clearly made by every authority which can impose the obligation of obedience."
The question indeed will have to be answered, what is com- mon law ? or, rather, what is that common law which is to be made the standard ? This can only be a historical question — a question of fuct ; requiring a preliminary examination of the history of jurisprudence, or of laws deriving their authority from those possessors of sovereign power who established the Constitu- tion, or from their political predecessors. And this again in- volves the recognition of those elementary principles which enter of necessity into the jurisprudence of every country, and by which its origin, continuance, and extent, may be determined ;
xii
rilKFACE.
and which, in their connection with tho aul ject of free condition and its contraries, are discriminated in the elementary or theo- retical portion of this treatise.
This inclination or practice of deferring to extrajudicial au- thority in questions of constitutional law far more than is cus- tomary in other departments of legal science, must indeed bo ascribed in part to tho fact that in republican states such ques- tions are always more or less political, as well as legal questions so much so that, whether they are one or the other, whether they are to be decided by the judiciary or by some other branch of the government — itself a constitutional question—can hardly be decided by either branch alone. It may be thought that the attempt made in the eleventh chapter of this treatise to answer the basal question of our constitutional law, From whom does the written Constitution derive its authority ? or, Who are the pos- sessors of sovereign power to whom its existence and continuance is to be ascribed ? or, What is the political organization — na- tional or federative — of the United States ? is beyond the scope of this treatise, as confined to subjects of legal inquiry only. Yet that the same questions have been frequently objects of judicial consideration, is abundantly illustrated by the reports, and in no class of cases, probably, more commonly than those in which the rights of slaveowners under the Constitution have been the subject of controversy. It is however, essentially, a political question, and one which, no judicial tribunal whose authority is dependent upon its answer can, in the nature of the case, deter- mine. And that its settlement has not been attained by such decisions is certified by Judge Baldwin in the work referred to, page 36 ; where, after presenting that view which had been sup- ported by the decisions, and which was his own opinion, he ob- served, " These considerations, however, have utterly failed to settle the true meaning of the term, ' We, the people of the
PREFACE.
xiii
United States,' as the granting or constituent power of the federal government. So far from thero being any general assent to that meaning which, to my mind, is so apparent in the Con- stitution, with its necessary practical resultH, which its framers and adopters must have known and foreseen to bo inevitable, the reverse may bo tho cominou opinion."
The question, Who makes the law of the land I live in ? is one which each private person, required to yield obedience in tho name of the law, is always supposed to be able to answer for himself, independently of judicial decision. It is the question of allegiance, Who is the actual possessor of sovereign power ? which in most countries is never asked if the decision of a judicial tribunal would be a sufficient answer. That, here, the question is asked and answered by judicial tribunals is the best indication that ours is a constitutional government. But tha intrinsic character of the question, as one above law not under law, is still the same, and in saying that in every State of the Union each private person owes an allegiance divided between the State and the United States, there is an implication that he may be obliged to answer the question in circumstances where no judicial decision would be taken for an answer. And in American courts of law, as everywhere else, the answer is to be attained by his- torical investigation, not by the ordinary juridical standards of judicial determination. No common law even will decide it ; except as history may show from whom common law, public and private, has proceeded. The method, therefore, of inquiry, in- dependently of judicial decisions, which is here pursued, is not inconsistent with that deference to such authority, as the best exponent of law, which is professed in the outset.
Of the first two chapters of this work a few copies were pub- lished in August, 1856, with the title, Topics of Jurisprudence connected with conditions of Freedom and Bondage. And it
xiv
PREFACE.
may bo pertinent to add that the third and fourth chapters wore also printed at tho sanio time, though, hy the failuro of eyesight, the writer was prevented from proceeding with tho publication as then intended, end the plan of the remaining portion waa afterwards enlarged, in view of considering more fully tho ques- tions Involved in tho case of Bred Scott v. Sandford, decided De- cember term, 1856, in the Supreme Court of tho Unitod States.
Nkw York, Augutt, 1858.
CONTENTS.
[Observation. — The several chapters of this work, though numbered continu- ously, may be classified into three parts or divisions. First^ The Elementary or Ab- stract Portion, contained in the first and second chapters ; Second, The Historical Portion, contained in the third and following chapters, to the eleventh, inclusive ; and Tlrird, The Practical Portion, contained in the remaning diopters of tho work. A corresponding arrangement into Books or Parts, such U5 is sometimes made in the treatises, has not been adopted, from believing that such subdivisions practically di- minish facility of reference, and tta\t "it will be sufficient to call the attention of the reader to this essential feature La the composition.]
CHAPTER I.
LAW DEFINED AND DIVIDED. ITS OBJECT, ORIGIN, EFFECT AND EXTENT.
Law defined.
SEC PACK
1. The primary and secondary meanings of the word law, . . 1
2. The law of nature, whether so called in the primary or in the sec-
ondary sense, . . . . . .1
3. Two different views taken of the source of law, so called in the pri-
mary sense, . . . - . . .2
4. Meaning of the term jurisprudence, and whether it includes ethics, 3
5. Jurisprudence is the science of a rule identified with the will of the
state, ........ 3
6. The natural law, being law in the secondary sense, is recognized in
jurisprudence, . . . . . . -4
7. The natural law, being law in the priiwry sense, is determined by
the state when recognized in jurisprudence, . . .5
8. In jurisprudence the natural law is not contrary to the will of the
state, ........ 7
xvi
CONTENTS.
, Law divided.
hKC. PAOK
9. Of national law, otherwise called municipal, . . .7
10. International law, a rule anting on nations as its subjects,, 8
11. The authority of national and international law compared, . . 9
12. International law, acting on nations, is not law in the strict pense, 10
13. The recognition of natural law in national arid international law, . 10
14. Natural law becomes a coercive rule in being identified with the will
of the state. . . . . . . .11
15. Insufficiency of Blackstone's definition of municipal law, . 12
16. Wbo may ascertain the law of nature for the state, . . .13
17. Positive law and jurisprudence, defined, .... 14
18. C jmprehensivr nesa of the term jurisprudence, . . .15
19. General or universal jurisprudence defined. ... 15
20. Use of the term " law of nations," . . . .17
Object of the lavs.
21. Of the distinction between persons and things. . . .18
22. Relation?, consist of rights and obligations, ... 19
23. Rights of persons and rights of things distinguished, . . 20
24. Subjects and objects of rights, ..... 20
25. Public and private law distinguished, ... . .21 23. Law applies to territory and to persons, .... 22
27. National and international law are thus differently applied, . . 23
Origin of law.
28. Natural reason acknowledged in positive law, . . .24
29. Of legislation and the judicial function, ... 24
30. Of the authority of judicial precedents, . . . .25
31. Of customary law, ...... 26
32. Of the authority of private jurists, . . . . .28
33. Of the authority of foreign laws, ... . . 28 34 Of the authority of universal jurisprudence, . . .29
35. Unwritten or customary law, a part of positive law, . . 30
36. In what manner international law is derived, . . .32
37. In what manner international law operates, ... 34
38. Universal jurisprudence, a part of national and of international law, 34
39. The law of nature may be variously received, ... 35
Effect of law.
40. Of individual and relative rights, . . , . .36
41. Of liberty as an effect of law, ..... 37
42. The legal and the ethical idea, and objective and subjective apprehen-
sion of liberty, ...... 38
CONTENTS. XVii
■kc. rkjax
43. Of the condition of freodom and its contraries, - .39
44. Of legal pcrsonn and cliattel slaves, .... 39
45. Of bondage of legal persons, . . . . .42
46. Use of the terra slavery, . . ... 42
47. Different kinds of slavery distinguished, . . .43
Extent of law.
48. International law divided into two portions, . . . .44
49. The first portion described, a law in the secondary sense, . 45
50. The second portion described, a law in the primary sense, . . 46
51. Of the dominion of a state and its national Uw, • • 46
52. The exposition of law is always historical, . . . .47
53. The national law is internal or international according to its personal
extent, . . . . . . .47
54. Of native, alien, and domiciled subjects, .... 48
55. The law has different extent to different persons, . . .50
56. Itf extent to persons depends on the will of the state, . . 51
57. Of laws of universal personal extent, . . . .51
58. The extent of laws manifested in the application of international
law, . ••».... 51 1
CHAPTER n.
FAKTHEB CONSIDERATION OF THE NATURE OF PRIVATE INTER NATIONAL LAW; ITS ORIGIN AND APPLICATION. ITS EFFECT UPON CONDITIONS OF FREEDOM AND BONDAGE.
Joneeptiont preliminary to the existence o f private international law.
59. Connection of the subject with axioms already stated, . . 53
60. International law acts on private persons in being enforced by some
one state, . . . . . . .53
61. Private persons are distinguished by axiomatic principles of universal
jurisprudence, . . . . . . .54
62. Of the universal reception of such maxims in international law, 54
63. Statement of the first two of these maxims, . . .55
64. These maxims are law in the secondr.ry sense, ... 55
65. A distinction among the relations recognized in international law, . 56
66. A necessary difference of international cooperation in determining
these relations, . . . . . . .67
67. Statement of the third maxim, .... 58
68. Necessary identity and coexistence of these maxims, . . 59
69. The interna tioncl law, how distinguishable from internal law, . 60
B
xviii
CONTENTS.
In what manner private international law in developed.
■ft FAOK
70. Possibility of a maxim of international law which shall be a rule of
action, . . . . .GO
71. Difference in the power of any one state to determine one or the
other class of international relations, . . .61
72. Difficulty of finding a rule greatev in respect to one class of relations
than the other, . . .62
73. Under which class of > slatione are those of which status or condition
is an incident, . . . . . .63
74. The recognition of anterior subjection to a foreign law, . . 64
75. Of rights which may and which may not continue after a change of
jurisdiction, . . . . . . .65
Duty of judicial tribunals applying international law.
76. The tribunal meat ascertain the wiu of the state in the case, . 66
77. Consequence of the recognition of the jural character of the laws of
other states, . . . . . . .68
78. True reason of the rule called comity, G9
79. Huber's three maxims, . . . . . .70
80. Judicial comity is in fact customary law, . . . 71
81. How later jurists have followed Huber, . . . .73
82. Story's version of Huber's third maxim, ... 74
83. Foslix concurring with Story, . . . . .75
84. Practical effect of the ordinary doctrine of judicial comity, . 76
85. Judicial measure of the allowance of foreign laws under what is call-
ed comity, . . . . . . .79
86. Laws of different origin but similar in effect, 79
87. Laws of different origin and dissimilar in effect, . . .80
88. The effect of foreign laws limited by laws having universal personal
extent) . . . . . . .81
89. Of exceptions to the extent of laws otherwise known as universal in
extent. . , . . . . .82
90. Effect of such exception in the allowance of foreign law under what
is called comity, . . . . . .83
91. Individual rights may be attributed by laws of universal personal
extent, . . . . . • .83
92. Laws of universal personal extent discriminated by judicial action, 84
93. The juridical action of all or many natictn is a criterion of the ex-
tent of laws, . . . . . . .84
94. Universal jurisprudence cognizable from the history of the law
among all or many nations, . . . : .85
95. Universal jurisprudence, derived a posteriori, becomes applied a
priori, . . . . . . . .87
CONTENTS. XIX
BSC. PAQK
00. Judicial allowance of effects ascribed to universal jurisprudence, 87
97. But universal jurisprudence lias not authority independently of the
authority of some national law, . . . .89
98. Universality prodicablc of law with reference to different, subjects of
ita extent, nations, and individuals, . . . .90
99. Effects of universal jurisprudence may be limited by laws of uni-
versal personal extent, . . . . .91
100. Justification of the recognition of a universal jurisprudence notwith-
standing this limitation, . . . . .92
101. Universal jurisprudence developed by the application of interna-
tional law, . . . . . . .93
102. How Ip.ws of universal personal extent may be judicially discrim-
inated, . . . . . . . .95
103. Of legislation as limiting the judicial application of elementary prin-
ciples, . . . . . . . .96
Of international law determining status or personal condition.
104. Of international law re^-arded as a department of private law, . 97
105. Impropriety of the term conflict of laws, ... 97
106. In having iiitfrnational recognition laws have a personal extent, . 98
107. Their international recognition is not dependent oi their personal
character, .... . . 98
108. Laws of personal condition or status may receive international re-
cognition, ....... 100
109. Personality or legal capacity a necessary topic of private interna-
tional law, . . . - • • 101
110. Relations incident to status are internationally recognized when as-
cribed to universal jurisprudence, . . . 102
111. Principles of a universal jurisprudence may be applied to a partic-
ular class of persons, ...... 103
112. How far conditions of freedom or of bondage can be attributed to
universal jurisprudence, ...... 103
113. Conditions supported by universal jurisprudence become conditions
under the law of the forum, ..... 104
114. Conditions not so supported may still be sustained by what is called
comity, . . . . . . • • 104
115. The recognition of chattel slavery under comity limited by universal
attribution of pereonality, ..... 105
116. The recognition of the bondage of legal persons limited by the uni-
versal attribution of individual rights, .... 107
117. Slavery created by foreign law recognized where liberty is not uni-
versally attributed, . 109
118. May still not be recognized, though a bondage exists under the local
law, . ..... . • ♦ .110
XX
CONTENTS.
SEC. PAGE
119. Though disallovred, slavery is not supposed to be contrary to justice
in the place of doraicil, . . . 110
120. Though disallowed in the forum, its incidental effects in the foreign
jurisdiction may be recognized, .... Ill
121. These principles may operate as internal law, as well as interna-
tional law, . . ... . . 112
122. Action of judicial .tribunals distinguished from the autonomic act
of the sovereign, ...... 112
CHAPTER HI.
OF THE ESTABLISHMENT OF MUNICIPAL" (NATIONAL) LAW IN THE ENG- LISH COLONIES OF NORTH AMERICA. PERSONAL EXTENT OF THE COMMON LAW OF ENGLAND.
Political foundation of law in the colonies.
123. On a change of sovereigns the territorial law of a country con-
tinues, . . . . . . .' . 114
124. The personal quality of laws manifested in colonization, . 115
125. Of the extent of English law in countries acquired by the British
crown, . . . . . . . 116
126. The common law of England accompanied the English colonist as
a personal law, . ... . . . 118
127. Local laws of the colonies required not to be contrary to that law3 119
128. Of political authority in America derived from the compacts of the
colonists, ....... 120
129. Of the force of legislative declarations by the local governments of
the rights of private persons, . . . . . 123
130. Of the common law, having personal extent, as a political guaran-
tee of the rights of the colonists, .... 124
131. Of English common law as limiting the legislative power of the
Government, . . . . . . 126
132. The common law of England had the character of a national law
in the colonies, ....... 129
Of personal condition as an effect of English law in the colonies.
133. Of freedom or liberty as the result of positive lawj both public and
private, ....... 129
134. Civil and political liberty, liberty by public and by private law,
distinguished, ....... 130
135. The idea of civil freedom includes that of a political guarantee, 130
CONTENDS. SSl
sec. : PAGE
136. The liberties of the English colonists, rested on common lew of
national character, . ... . . 131
137. The entire body of common law was not, as a personal law. trans-
ferable to the colonies, . . . . . 132
138. The right of property under this personal law, existed only in refer-
ence to things known to the law of England, . . . - 133
139. The English law of individual rights, and. capacity for relative
rights, was the law of status for the English colonist, . . 133
140. Cf the guarantees in English law of the rights incident to free con-
dition, . . . . . . . . 134
141. Villenage at common law was never transferred to the colonies
under personal laws, . . . . . . 135 •
142. The relation of master and servant under the law so transferred
was one founded on consent, . 137
143. Of the rights of the master, incident to that relation, in respect to
third persons, . . . . . . . 138
144. Of universal jurisprudence, affecting personal condition, forming
a part of English common law, .... 139
145. Ordinary apprehension of the extent of the attribution of personal
liberty by English law, . . . • . . 140
146. In what sense the law of nations is said to be part of the law of
England, . ... . . . 140
• CHAPTER IV.
ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES,— THE SUBJECT CON- TINUED. OP PRINCIPLES OF UNIVERSAL JURISPRUDENCE, RELATING TO EEEEDOM AND ITS OPPOSITES, ENTERING INTO THE COMMON LAW OF ENGLAND.
Of the evidence of the existence of a principle of universal juris- prudence.
147. Proposed exhibition of doctrines of universal jurisprudence "affect-
ing status at the planting of the colonies, . . . 142
148. Of the Roman law as an exposition of universal jurisprudence, 143
149. Conception of jurisprudence by the civilians, as including ethics,
pointed out, . . . . . . 145
Of the analysis of law which is made in the Institutes.
150. Of the jus publicum in the Roman law, .... 146
151. Analysis of jus privatum according to its supposed origin j recog-
nition of a jus naturale, ..... 147
SXil CONTENTS.
SEC. PAGE
152. Of the jus gentium and jus civile or jus proprium ; recognition of
. naturalis ratio, ....... . . . 148
Of the attribution of chattel slavery to jus gentium ly the Soman
jurists.
153. The Romans held slavery arising from captivity to be based on
natural reason, . • . . . . . • . 149
154. The Romans ascribed all slavery to the jus gentium and to natural
reason, . . . .- ... . 151
155. Illustration of the meaning of constitutio juris gentium in the Ro-
man law, . . . . . . . 152
156. In Roman law slavery was the chattel condition of a natural person, 153
157. The same doctrine recognized in the jurisprudence of all the an-
cient states, ....... 154
Of changes which have taJcen place in universal jurisprudence affect- ing personal condition.
158. How the fact of such change may be known, . . . 155
159. Changes occurring in international law are not simultaneous among
all nations, . . .... . . 155
160. Effect of Christianity in modifying slavery under the Roman
empire, ....... 156
161. By this modification slavery was no longer attributable to univer-
sal jurisprudence, ...... 157
162. Similar effect of Christianity on slavery among the nations of north-
ern Europe, . . . . . . . 157
Of universal jurisprudence supporting the slavery of Negroes and
Indians.
163. Of difference of religious creed as a foundation of chattel slavery
in modern times, . . . . . . 159
164. Chattel slavery of infidels and heathens supported by universal ju-
risprudence, ....... 160
165. In the fifteenth century the holding of heathen negroes as slaves
was so supported, . . . . . . 161
166. The traffic in negro slaves was recognized by all the maritime na-
tions of Europe, ...... 163
167. Modern universal jurisprudence supporting chattel slavery has had
limited personal extent, ..... 164
168. Effect of a conversion to Christianity upon slave-condition, how to
be known, ....... 165
CONTENTS.
xsiii
tiZQ. page
169. Difficulty of deriving a rule of universal jurisprudence on this
point from the practice of modern nations, . . . 166
170. How in the law of nations in respect to slaves its reception of uni-
versal jurisprudence may be known, . . . 168
171. Analogy probably found in the effect of Christianity upon the ear-
lier slavery of Europeans, ..... 170
172. The question might be differently answered at different times dur-
ing the colonial period, ..... 170
Of the rule of universal jurisprudence particularly exhibited oy the juridical action of Great Britain.
173. "Why the common law of every state must exhibit its own recep-
tion of universal jurisprudence, .... 171
174. Christianity a part of common law as it may have the character of
universal jurisprudence, ..... 171
175. Slavery not regarded by a state as contrary to Christianity if sus-
tained in any part of its dominions, • . . . . 172
176. English statutes recognizing the lawfulness of commerce in negro
slaves, . . . . . . . 173
177. Inference that property in negro slaves was recognized by the law
prevailing in England, ...... 176
178. The condition of a negro brought to England, determined either by
universal jurisprudence or local law, .... 177
179. It would be determined either as a question of the international or
of the internal law, ...... 177
The question of the lawfulness of negro slavery in England consid- ered as one arising under internal law.
180. Of the dictum, "in English, air slaves cannot breathe," and a statute
of Edward VI., .......
181. Case of Butts v. Penny, . .
182. Case of Chambers v. Warkhouse, • . . .
183. Case of Gelly v. Cleve,
184. Case of Chamberlayne v. Harvey, . . • .
185. Cases of Smith v. Brown and Cooper, and of Smith v. Gould, Holt's
decision, .......
186. Case of Peame v. Lisle, Hardwick's decision, .
187. Case of Shanley v. Harvey, Northingtoa's decision,
188. Inferences from the decisions that trover would not lie for a negro,
189. Attempted statement of the legal distinction in these cases,
190. Lord Mansfield's decision in Somerset's case, .
191. Inconsistencies in that opinion, .....
xxiv
CONTENTS.
CHAPTER V.
TIIK BSTABI.JHIIMENT OF MUNICIPAL LAW IN TIIR COLONIES — TIIR BtrBJEOT CONTINUED. I'lUNOIPI.KH DETERMINING THE CONDITION OK I'KItSONB TO WHOM TIIK LAW OK KNOLAND DID NOT EXTEND AS A rEHHONAL LAW.
Circumstance* determining the extent of loins of condition in the
colonics.
HTC. PACK
192. Tho territorial and personal extent of laws of condition c* spends on
Bomo possessor of sovereign power, . . . 195
193. Distinction between tho personal and territorial extent of tho
English law of free condition, ..... 196
194. The liberties of the colonists ascribed to positive law, not to natu-
ral law, ....... 1.97
Of law determining the condition of persons not of European race.
195. Classification of natural persons in tho colonies who were alien to
the law of England, ...... 198
196. The law applicable to the original inhabitants, how derived, . 199
197. The law applicable to persons coming from other countries was a
part of international law, ..... 200
198. Necessity of recurring to principles of universal jurisprudence, 201
199. Of such principles determining the condition of tho aboriginal in-
habitants, ....... 202
200. Oi such principles supporting the introduction of negro slaves, 205
201. Negro slavery an effect of customary law, . . . 206
202. Term colonists in the charters how to be understood, . . 207
203. Power of the imperial government to determine the condition of
imported negroes, ...... 208
204. Status of the baptized African or Indian, how determined by custo-
mary law, ....... 209
205. The condition of slavery an effect of the local law of a colony, 212
206. Of the Roman law of manumission, .... 213
207. Condition of the free Indian or emancipated negro was an effect of
the local law of a colony, ..... 214
208. The two systems of personal laws were equally jural in character, 217
Of other laws determining the condition of white persons.
209. Extension of the English law of free condition to colonists of other
European nations, ......* 217
210. Origin of the servitude of white persons for termB of years, . 218 212. Legal incidents of the condition of such persons, . . . 220 212. Extension of English dominion in territory first occupied by other
Europeans, ...... .Ji.221
CONTENTS.
XXV
CHAPTER VI.
THE ESTABLISHMENT OF MUNICIPAL LAW IN THK OOLONIKB — THK SUBJECT OONTINUKI). LOCAL LBHIHLATION DETERMINING CONDITIONS OF FUKE- I»OM OK OF BONDAGE.
Of the power of the colonial governments over slavery under the pub- lic law.
PAGE
National law affecting tho subject distinguished from local law, . 222 Tho local legislative power, in respect to Africans and Indians, was
not limited. by English common law, .... 223 Nor in respect to slaves by the guarantee of the right of property to
the English owner, ...... 224
Of the actual legislation of tlie colonics.
210. Apparent necessity of some legislation in reference to the condition
of slavery, ....... 225
217. Object and extent of the view here taken of colonial legislation, 226
218. Legislation of Virginia, ...... 228
|
219. |
(( |
Maryland, |
247 |
|
|
220. |
.« |
(c |
Massachusetts, |
. 254 |
|
221. |
<( |
(( |
New Hampshire, |
264 |
|
222. |
(( |
u |
Connecticut, |
. 267 |
|
223. |
<( |
(C |
Rhode Island, |
273 |
|
224. |
« |
(( |
New York, |
. 277 |
|
225. |
u |
New Jersey, |
282 |
|
|
226. |
« |
« |
Pennsylvania, |
. 286 |
|
227. |
(( |
(( |
Delaware, |
291 |
|
228. |
u |
:< |
North Carolina, |
. 293 |
|
229. |
u |
a |
South Carolina, |
297 |
|
230. |
u |
K |
Georgia, |
. 309 |
CHAPTER VII.
OF THE PBIVATE INTERNATIONAL LAW EXISTING FOR THE SEVEBAX PABT8 OF THE BBITISH EMPIRE DUBING THE COLONIAL PEBIOD, AND RELATING TO CONDITIONS OF FREEDOM AND BONDAGE — OF THE CONDITIONS UNDER WHICH 8UOH A LAW MIGHT EXIST.
General principles respecting the existence of international