YALE UNIVERSITY LIBRARY ' ¥.aLE-¥]MII¥IEIESEir¥" 5VL II \%lk ^-^ .^-^^^-^Z ^;g^ ^^, THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES. BY JOHN CODMAN HURD, •.I C0rNSELlX)E AT LAW. Moribus antiquis reg stat Romana yirisque. Ennios, apud Cic. de Rep. IN TWO VOLUMES. VOL. I. BOSTON: LITTLE, BKOWN & COMPANY. NEW YORK : D. VAN NOSTRAND. M.DCCC.Lylll. Enteeeb according to Act of Congress, In the year 1868, by JOHN CODMAN HUED, In the Clerk's Office of the District Gnnrt of the United States, for the Southern District of New York. Cb75,74 JOHN F. TROW, PlIIKTEB, STKimoTYPHR, AND ELEOTROTyi>BB, Noi. 877 * 379 Broadway, Now York. TO MY FATHER, THIS WORK, THE RESULT OF STUDY ALWAYS PROMOTED BY HIS GENEROSITY AND INCITED BY HIS SYMPATHY, IS GRATEFULLY INSCRIBED. PREFACE. On the publication of a volume whose title indicates its connection with questions arising from the existence of negro slavery in the United States, a recollection of the number and variety of the existing works on that subject will suggest the pro priety of some prefatory exposition of the author's point of view. Although the questions considered in this work are not fi-e- quently matters of controversy in courts of law, and derive their principal interest from their connection with objects of more 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 be called a " 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 rehgious, 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 be expected to contain any thing essentially new : simply because, if such, it could not be law. The merit of a treatise of this kind must always consist in 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. VI PREFACE. But the best known propositions, whether of fact or of doc trine, have not always been stated in their proper sequence, or exhibited aa coherent or mutually dependent propositions. Whatever novelty may be found in the following pages will consist in the attempted arrangement of well-known facts, or received doctrines of law, connected with the subject, in their proper order ; though, in doing this, it may be made to appear that some propositions which, in the discussion of the subject of slavery under the laws of the United States, are commonly ad vanced as contradictory or antagonistic, are, in reality, not so. If successful in being a correct statement of the law on the subject, the proposed treatise cannot be of a partisan character, or cannot be otherwise than impartial in respect to the objects of political parties. For the exposition of existing law is merely the statement of the fact, and is entirely distinct from any ap proval or disapproval of that law, on grounds of moral or politi cal expediency. This will probably be admitted by all who have made the law to any great extent their study. But the popular manner of treating the subject of slavery may warrant the belief that a very large proportion of those who participate in such discussions would not admit the proposition, and do not ordinarily discriminate between the legal or juristical view of 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 tho jurisprudence of republican states, and is in this country not merely a matter of PREFACE. TU theory, but a constant object of judicial consideration. Where popular sovereignty is recognized and is visibly operative in the form of government ; where law is seen to have its ultimate source in the collective judgment of the community, the in dividual member of society may the more easily confound law with matter of conscience, and legal inquiry with that investiga tion by which political or moral ends are to bo attained. In the belief that this tendency arises principally from a want of precision in the definitions of law and in the formulas which express the basal propositions of jurisprudence, the follow ing examination of the laws of the United States affecting per sonal condition has been commenced by a preliminary exposition of those principles of general jurisprudence which would be necessarily involved in considering the incidents of free condition and its contraries in whatever country they might exist ; and it has been attempted at the same time to discriminate for use in the succeeding inquiry such terms, already adoj)ted by writers of acknowledged 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- mentaiy 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- bus non curat Jurisconsultus," if regarded as the statement of a VUI PREFACE. fact, is perhaps nowhere better vindicated than where the inci dents of bond and free condition have been the topics of legal investigation. Since it is principally as connected with public or constitu tional law that the incidents of free condition and its contraries have been made the subject of legal inquiry, and now excite most discussion, they have, in the greater portion of the following pages, been presented in that connection. It seems natural to suppose that, in the jurisprudence of every country, that which in its place in the system is most fun damental must also be that portion which is least the subject of legal doubt, or that which may the most easily be ascertained in the 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, especially 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 year 1837, might be believed from the strong ex pressions used by tho lute Judge Baldwin of the Supreme Court of the United States, in his General View of the Orioin 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 PREFACE. IX had long been to me a subject of deep regret that, notwithstand ing the numerous, consistent, most solemn, and (with some few and mostly late exceptions), to my mind, most satisfactory ad judications of this court [the Supreme Court of the United States], in expounding the Constitution, its meaning yet remains as unsettled, in political, professional, and judicial opinion, as it was immediately after its adoption. If one is to judge of the next, hy the results of the past half century, there is but a slight assurance that that instrument will be better understood at the expiration, than it is at tho beginning of the period." And were not the apprehension here expressed well founded, it would generally be felt that the exposition of the fundamental principles 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 priociple 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 of 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 PREFACE. be feared," he proceeds to say, " that unless some 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 more 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 Constitution 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 jirofessional and judicial PREFACE. Xl inquiries after truth, on constitutional questions, than those which have been so often resorted to without effecting the de sired result, a clear and settled understanding of the term^ and provisions of an instrument in writing which operates with su preme authority wherever it applies. To me it seems that it can be made intelligible in all its parts by applying to it those established rules and mrtxims of the 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 Tinderstood, 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 the 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 fact ; 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 ; xu PREFACE. and which, in their connection with the subject 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 be ascribed in part to the 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 decidfed 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 tho 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. X111 United States,' as the granting or constituent power of the federal government. So far from there being any general assent to that meaning which, to my mind, is so apparent in the Con- iatitution, with its necessary practical results, which its framers and adopters must have known and foreseen to be inevitable, the reverse maybe the common opinion." The question. Who makes the law of the land I live in ? is one which each private person, required to yield obedience in the 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 ia a constitutional government. But the 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 imjilication 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 bythe 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- dej)endcntly 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 be pertinent to add that the third and fourth chapters were also printed at the same time, though, by the failure of eyesight, the writer was prevented from proceeding with the publication aa then intended, and the plan of the remaining portion was afterwards enlarged, in view of considering more fully the ques tions involved in the case of Dred Scott v. Sandford, decided De cember term, 1856, in the Supreme Court of the United States. New York, A-ugust, 1858. CONTENTS. [OnsnnvATiON. — The several chapters of this work, though numbered continu- onsly, may be classified into three parts or divisions. First, The Elementary or Ab stract Portion, contained in tho first and second chapters ; Second, The Historical Portion, contained in the third and following chapters, to the eleventh, inclusive ; and Third, The Practical Portion, contained in the remaining chapters of the work. A corresponding arrangement into Books or Parts, such as is sometimes made in the treatises, has not been adopted, from believing that such subdivisions practically di minish facility of reference, and that it will be sufiicient to call the attention of the reader to this easontial feature in the composition.] CHAPTER I. LAW DEFINED AND DIVIDBD. ITS OBJECT, ORIGIN, EFFECT AND EXTENT. Law defined. SEC. PAGE 1. The primarj and Eeoontlary meanings of the word la-w, . . 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 primary sense, is determined by tho state when recognized in jurisprudence, . . .5 8. In jurisprudence the natural law is not contrary to the will of tho state, ........ 7 xvi CONTENTS.Law divided. SEC PAOE 9. Of national law, otherwise called municipal, . . . .7 10. International law, a rule acting 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 sense, 10 13. The recognition of natural law in national and 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. Who may ascertain the law of nature for the state, . . .13 17. Positive law and jurisprudence, defined, .... 14 18. Comprehensiveness of the term jurisprudence, . . .15 19. General or universal jurisprudence defined, ... 15 20. Use of the term " law of nations," . . . .17 Object qf tlie law. 21. Of the distinction between persons and things, . . .18 22. Relations 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 26. 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 ho 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 SEC. PAGE 43. Of the condition of freedom and its contraries, . . .39 44. Of legal persons and chattel slaves, .... 39 45. Of bondage of legal persons, . . . . .42 46. Use of the term 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 law, . . 46 52. Tho 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. Its 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 CHAPTER II. , FARTHEK CONSIDERATION OF THB NATURE OF PRIVATE INTERNATIONAL LAW ; ITS ORIGIN AND APPLICATION. ITS EFFECT UPON CONDITIONS OF FREEDOM AND BONDAQB. Conceptions preliminary to the existence of 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 secondary 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 international law, how distinguishable from internal law, . 60 B xviii CONTENTS. In what manner private international law is developed. SEC '^<*^ 70. Possibility of a maxim of international law which shall be a rule of action, . . . . . . . .60 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 greater in respect to one class of relations than the other, - . . . . . .62 73". Under which class of relations 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 jiidicial triivnals applying international lam. 76. The tribunal must ascertain the will 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, .... 69 79. Huber's three maxims, . . . . . • . 70 80.- Judicial comity is in fact customary law, ... 71 81. How later jurists have followed Uuber, . . . .73 82. Story's version of Huber's third maxim, ... 74 83. Fcelix 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 juridicial action of all or many nations is a criterion of the ex tent of laAvs, . . , . . , .84 94. Universal jurisprudence cognizable from tho history of the law among all or many nations, . . . . .85 95. Universal jurisprudence, derived a posteriori, becomes applied a pi-iori, ..... . . .87 CONTENTS. xix ^^°- PAGE 96. Judicial allowance of effects ascribed to universal jurisprudence, . 87 97. But universal jurisprudence has not authority independently of tho authority of some national law, . . . .89 98. Universality predicable of law with reference to different subjects of its extent, nations, and individuals, . . . .90 99. Effects of universal jurisprudence may be limited by laws of uni versal personal extent, . . . . . .91 100. Justification ofthe recognition of a universal jurisprudence notwith standing this limitation, . . . . . .92 101. Universal jurisprudence developed by the application of interna tional law, . . . . . . .93 102. How laws 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 regarded as a department of private law, . 97 105. Impropriety of the term conflict of laws, ... 97 106. In having international recognition laws have a personal extent, . 98 107. Their international recognition is not dependent on 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, ...... 103 118. 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 personality, ..... 105 1J.6. 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. ^^°^ 119. Though disallowed, slavery is not supposed to be contrary to justice in the place of domicil, . . . . • - HO 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 m. 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 law, 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 tlie colonies. 133. Of freedom or liberty as the result of positive law, both public and private, •¦•.... 129 134. Civil and political liberty, liberty by public and by private law, distinguished, ¦•..... 130 135. The idea of ciyil freedoux includes that of a political guarantee, 130 CONTENTS. XXI SEC. PAQE 136. The liberties of the English colonists, rested on common law of national character, ...... 181 137. The entire body of common law was not, as a personal law, trans ferable to the colonics, . . . . .132 138. Tho 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. Of the guarantees in English law of the rights incident to free con dition, . . . , . . . . . 134 141. Villenagc 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 bo part of the law of England, . . . . . . .140 CHAPTER IV. ESTABLISHMENT OF MUNICIPAL LAW IN TIIE COLONIES, — THB SUBJECT CON TINUED. OF rniNCIPLE-l OP UNIVERSAL JUnlSI'RUDENCB, RELATING TO FREEDOM AND ITS OPrOSITEB, ENTERING INTO TIIE COMMON LAW OF KNOLAND. 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 ia made in the Institutes. "150. Of the jus publicum in the Roman law, .... 146 151. Analysis of jus privatum according to its supposed origin ; recog nition of a jus naturale, ..... 147 xxii CONTENTS. SEC. . . rAGE 152. Of the jus gentium and jus civile or jus proprium ; recognition of naturalis ratio, ....•¦• 148 Of the attributimi of chattel slamery to jus gentium hy the Soman jurists. 153. The Romans held slavery arising from capti-vity 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 talcen place in universal jurisprudence affect ing personal condition. 158. How the fact of such change may be known, . . . 155 159. Changes occurring in mternational law are not simultaneous among all nations, ....... 155 160. Effect of Christianity in modifying slavery under the Eoman 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 Indiana. V163. 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 tho 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. XXIU 6E0. PAGE 169. Difficulty of deriving a rule of univcr.<;al 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- her slavery of Europeans, ..... 170 172. The question might be differently answered at different times dur ing the colonial jicriod, ..... 170 Of the rule of universal jurisprudence particularly exhibited ly 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 tho 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 bo determined either as a question of the international or of the internal law, ...... 177 The queation of the lawfulness of negro slavery in England consid ered aa one arising under internal law. 180. Of the dictum, " in English air slaves cannot breathe," and a statute of Edward VL, .... 181. Case of Butts v. Penny, .... 182. Case of Chambers v. Warkhouse, • 183. Case of Gelly v. Cleve, .... 184. Case of Chamborlayno v. Harvey, . 185. Cases of Smith v. Brown and Cooper, and of Smith v. Gould, Holt'i decision, ..... 186. Case of Pearne v. Lisle, Ilardwick's decision, . 187. Case of Shanley v. Harvey, Northingtou'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, 178179180 181 181 182 185 186 186 188 189 191 XXIV CONTENTS. ^ CHAPTER V. THE ESTABLISHMENT OF MUNICIPAL LAW IN THB COLONIES — THE SUBJECT CONTINUED. PEINOIPLBS DETERMINING THE CONDITION OF PEESONS TO WHOM THE LAW OF ENGLAND DID NOT EXTEND AS A PERSONAL LAW. Oircumstaneea determining the extent of laws of condition in the colonies. SEC. PAGE 192. The territorial and personal extent of laws of condition depends on some possessor of sovereign power, .... 195 193. Distinction between the personal and territorial extent of the English law of free condition, ..... 196 194. The liberties of the colonists ascribed to positive law, not to natu ral law, . . . . . . , 197 Of law determirdng the condition of persons not of European race. 195. Classification of natural persons in the 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 tho condition of the aboriginal in habitants, ....... 202 $00. Of 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- y 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 teUte persona. 209. Extension of the English law of free condition to colonists of other European nations, • • . . 21 7 210. Origin of the servitude of white persons for terms of years . ' 218 211. Legal incidents of the condition of such persons, . . . 220 212. Extension of English dominion in territmy first occupied by other Europeans, • . . . 091 CONTENTS. XXV CHAPTER VI. THE ESTABLISHMENT OF MUNICIPAL LAW IN TIIE COLONIES — THE BinSJEOT CONTINUED. LOCAL LEGISLATION DETEEMrNINO OONDITIONB OF FREE DOM OR OF BONDAGE. Of the power of tlie colonial governments over slamery under the pub lic law. SEC PAGE ^213. National law affecting the subject distinguished from local law, . 222 "214 The local legislative power, in respect to Africans and Indians, was not limited by English common law, .... 223 ^215. Nor in respect to slaves by the guarantee of the right of property to the English owner, ...... 224 •^16. 217. 218.219. 220. 221.222. 223.224.225. 226. 227.228.229.230. Of the actual legislation of the colonies. Apparent necessity of some legislation in reference to the condition of slavery, Object and extent of the view here Legislation of Virginia, " " ' Maryland, " " JIassachusetts, " " New Hampshire, " " Connecticut, " Rhode Island, . " " New York, " " New Jersey, " " Pennsylvania, " " Delaware, " North Carolina, " " South Carolina, " " Georgia, taken of colonial legislation, 225226228 247 254264207 273277282286 291 293 297 309 CHAPTER VIL OF TIIE PRIVATE INTERNATIONAL LAW EXISTING FOR THE SEVERAL PARTS OF THE BRITISH EMPIRE DURINO TUB COLONIAL PERIOD, AND RELATING TO CONDITIONS OF FREEDOM AND BONDAGE OF THE CONDITIONS UNDEB WHICH SUCH A LAW MIGHT EXIST. General principles respecting the existence of international law. 231. International law based on the possession of sovereign power by dis tinct persons, ....... 312 232. Of an integral possession of sovereign power by states or nations, 312 XXVI CONTENTS. SEO. . PAGE 233. Of a distributed possession of the sovereign powers of a state or nation, ........ 314 234. Of an international or quasi-international law arising from such distribution, ....... 315 Of the international relations of the different parts of the British Empire. 235. Sovereign powers, how distributed in the empire during the colo nial period, ....... 315 236. Of jurisdiction, and its recognition in private international law, 316 237. Of domicil as distinguished in the international law of status, . 316 238. Of the portions of the British empire distinguished in respect to jurisdiction and domicil, ..... 317 ¦ ¦ Characteristics of the law determining the condition of persona not domiciled. 239. Public and private character of the law determining the condition of aliens in a colony, . • . . ' . . . 318 240. The condition of such persons as affected by circumstances already stated, . . . . . . . .318 241. Of a distinction among such persons according to differences of physical constitution, ...... 319 242. Origin and continuance of law determining the condition of the ahen of white race, ...... 320 243. Origin and continuance of law determining the condition of the , alien of African or Indian race, . , ' . . 321 244. The condition of the last, whether bond or free, determined by the local sovereignty, ...... 322 245. The right of the owner of slaves how far resting on national law of the empire, ....... 323 246. Franchises enjoyed by persons of African or Indian race were not supported by the national law, .... 324 247. Bondage of indentured white servants partially sustained by tho national law, •...., 325 248. The law applying to such persons is property described as interna tional law, •••.... 326 249. Character of the law applicable to minor apprentices . . 326 CONTENTS. XXVU CHAPTER Vni. or THE PRIVATE INTERNATIONAL LAW OF THE COLONIAL PERIOD AFFECTING CONDITIONS OF FREEDOM AND BONDAGE — THB SUBJECT CONTINUED OF ITS ACTUAL EFFECT OB OPERATION. Of law on thia subject derived from a colonial source. SEC. PAGE 250. Of tho origin of the law to be ascertained, either in legislation or in judicial decision, ...... 328 251. Of the deficiency of legislative enactments on this topic, . 329 252. Of tho deficiency of recorded colonial judicial decision on this topic, ........ 330 253. Probable international practice with reference to white servants aud minor apprentices, ..... 330 254. The term servants in intercolonial agreements probably included slaves also, ....... 331 Of law on this subject derived from British precedents. 255. Of tho case of Somerset as a precedent of international law, . 331 256. Of two Scotch cases having the like character, . . 332 257. Authority of such cases compared with that of foreign precedents, 333 Of law on thia subject aa derived from foreign precedenta. 258. Reasons for recognizing a customary international private law, in dependent of what is called comity, .... 333 259. Authorities on the law of the Netherlands, . . . 335 260. Case of the Polish refugee in Holland, . . . . 336 261. Authorities on the law of France, . . . . . 336 262. Authorities on the law of Germany, .... 339 263. Of the distinction of race as noticed or not in these authorities, 340 264. The customary law of France as exhibited in the case of Verdelin's slaves, and of Francisque, . . . , . . 342 265. Tho rule against tho recognition of slavery, as derived from these authorities, . . . . . . . 344 Ofthe rule of property of alien owner in tranait protected by inter national law. 266. How Puffendorf and Vattel are commonly cited on this point, . 345 267. Vattel's statement of the stranger's right of transit, . . 345 268. His limitation of the extent of this right, .... 347 269. The criterion of property is to be taken from these writers, . 348 270. Neither writer recognizes men ns objects of property, . . 348 XXVIU CONTENTS. SKO. PAGE 271. Why universal jurisprudence must be taken as determining prop erty under the rule, ...... 349 272. Inquiry into this, why postponed, .... 349 273. Other proof from Vattel of the inapplicability of the rule, . 350 274. The duty of the state under international law differs according to circumstances, ....... 351 275. Duty of judicial tribunals compared with that of the state, . 352 276. The duty of the tribunal is found in the customary judicial prac tice of foreign nations, ...... 353 277. Slavery recognized under the rule only when maintained by uni versal jurisprudence, . . . . ... 353 CHAPTER IX. OF THE PRIVATE INTERNATIONAL LAW OP THE COLONIAL PERIOD AFFECT ING CONDITIONS OF FREEDOM AND BONDAGE THE SUBJECT CONTINUED EXAMINATION OF SOMBESEt's CASE IN THIS CONNECTION. View of the general principles applicable to the cirbumstances of thia case. 278. In what connection such cases are here considered, . . 355 279. Reference to doctrines of private international law stated in the second chapter, ....... 355 280. The doctrine of universal jurisprudence anteriorly applied to the negro race, ....... 356 281. How far, as part of .English common law, it had sustained slavery, 357 282. Slavery of negroes attributable to it only while heathen?, . 358 283. Slavery not attributable to it if not an absolute chattel condition, 359 284. If not so attributable, slaves not property at common law rnor un der the rule of transit, ...... 359 285. Universal jurisprudence, known in the practice of nations, might have changed, ....... 360 286. Proof that it had changed, again stated, . . . 360 287. Slavery therefore not supported by universal jurisprudence, . 361 288. Nor by English common law, nor the international rule of transit, 362 289. Might be recognized on this ground in places where slavery con tinued, ........ 362 290. But not kno^vn as effect of universal jurisprudence when rejected in the internal law, ...... 363 291. Hence, not so known in Massachusetts and the British isles; inde pendently of foreign precedent, . . , '. 364 292. Nor sustained by the law having a national and personal extent for the master, ••..... 304 CONTENTS. XXIX SEC. PAOE 293. Classification of the preceding views of the question, . . 365 294. After these considerations the reference to what is called comity remains, ....... 360 295.' Reference to the means of distinguishing the extent of laws, . 366 296. Por.sonal liberty not then attributed to all in Massachusetts and the British Islands by legislation. .... 366 297. Effect of former international recognitions of slavery, . . 307 298. If liberty attributed by internal law to all in Massachusetts and the British Islands, . . . . . .367 299. Legal personality may have been attributed to all, . . 368 300. Supposed insufficiency of such attribution, if Of legal personality merely, . . . . . . .368 301. Attribution of individual rights where some do not actually enjoy personal liberty, ...... 369 302. How this may have been in Massachusetts or tho British Islands, 370 303. Reasons against admitting their universal extent in Massachusetts, 370 304. Personal liberty not then enjoyed by all in the British Islands, . 370 305. How a natural law is distinguishable in this connection, . 371 306. The extent of the local law determinable by reference to foreign decisions, , . . . . . . . 872 307. Its extent, so determined, iu Massachusetts and the British Islands, precluded comity, ...... 372 Application of the foregoing to Lord Man^Ws reasons for his decision. ^ 308. The judgment vindicated by international law operating in three forms, ....... 373 309. Inconsistency of Lord Mansfield resulting from his doctrine of pub lic law, . . . . . . .374 310. The nature of the inconsistency further explained, . . 375 311. Further illustration of the same, ..... 375 312. Attempt to state the correct doctrine of international law in such case, ... .... 377 313. Whether negro slavery had, before that case, been lawful in England, 378 314. Stowell's over-statement of the previous recognition of its law fulness, ....... 378 315. The previous practice of holding negroes in bondage there, why not legalized, ....... 379 316. How legal conclusions might bo different for England and the colonies, ....... 381 xxx CONTENTS. CHAPTER X. OF THE PRIVATE INTERNATIONAL LAW OF THE COLONIAL PERIOD THE SUBJECT CONTINUED OF DOCTRINES OP THIS LAW APPLYING TO CASES OTHER THAN TIIOSE RESEMBLING SOMERSET'S CASE. General principle-derived from the jural character of all law. SEO. PAGE 317. The tribunals of the forum recognize the lawfulness of slavery in the place of domicil, ...... 383 Question of status on return to slave domicil. 318. Opinion of Gudelin on this point, .... 384 319. Position of slave, in the modern case, like that of manumitted slaves, ....... 384 320. If he had before been a chattel slave he must have acquired person ality and domicil, ...... 386 321. How possibly otherwise if not a chattel but a legal person in bondage, ....... 386 Other questions Qf private international law. 322. The master's claim customarily decided by tho judiciary, not the executive, ....... 887 323. Deficiency of juristical opinion on other supposable cases, . 388 324. International effect of common law as a law personal to the Eu ropean colonist, ...... 388 325. The owner's property was not j'uasj-internationally guaranteed by that law, ....... 389 326. The condition of a free negro was not j'J'asi-internationally guaran teed by a national law, ...... 390 327.- Whether any disabilities of the emancipated negro were ascribed to a universal jurisprudence, ..... 390 328. Negro slavery not longer ascribable to the law of nations, meaning universal jurisprudence, ..... 391 329. The slave-trade not then contrary to the law of nations, in the sense of international law, ..... 392 CONTENTS. 3CXX1 CHAPTER XI. OP THE INVESTITURE IN THE PEOPLE OP THE SEVERAL .STATES AND OF THE UNITED STATES OF THAT SOVEREIGN POWER WHICU IS THB BASIS OF CONDITIONS OF FREEDOM OE OF BONDAGE. How the possession of sovereign power may Iw determined. SEC. PAGE 330. Change of sovereignty in the Revolution, .... 394 331. Of the relation between freedom and law, . . . 394 332. The possession of sovereign power is not determined by law in the ordinary sense, ....... 395 333. Its possession is an historical question, . . . 390 334. The written constitutions of the United States presuppose an exist ing sovereignty, ....... 396 335. The facts indicating the possession of sovereignty may be differently understood, ....... 398 History of the change which occurred in the Revolution. 336. The word people in the constitutions designates only a portion of the inhabitants, . . . . . . 398 337. How this people was discriminated at the time of the Revolution, 399 338. Sovereignty before that time had been held - by the local govern ments, . . . . . . . . 399 339. Change in the location of sovereign power which occurred in the Revolution, . . . . . . .400 340. The people distinguished by their action in the Revolution, . 401 341. National and local power were not simultaneously transferred, . 403 342. The people of the United States assumed a national sovereignty, 403 Of the manner in which sovereignty has been held by the people of the United Slates. 343. Their corporate existence as the people of distinct States continued , of necessity, ....... 404 344. But the principle of majority did not necessarily obtain in their na tional existence, ...... 405 345. The same integral nationality was manifested in the Revolution, in the Confederation, and in tho Constitution, . . . 406 346. Statement of the theory of the location of sovereignty under the Constitution which is here adopted, .... 407 XXXU CONTENTS. Extent and nature ofthe axithority held by the people of the United States. PAGE SEC. 347. Of the territory occupied by the original thirteen States, . . 409 348. Of the territory afterwards acquired by the United States, . 410 349. Of the formation of States in territory held by the United States, . 411 350. The power of the political people of the United States is independ ent of law and of consent of individuals, . . . 412 351. That power is unfimitcd, or absolute in its nature, . . 413 CHAPTER XII. CONDITIONS OF FREEDOM AND BONDAGE CONSIDERED WITH REFERENCE TO THE PUBLIC LAW OP THE UNITED STATES. Liberty considered in connection with the investiture of aovereign power. 352. Political and civil liberty distinguished, . . . 415 353. Quality of political liberty variable according to its distribution, 416 354. Two classes of states distinguished according to the location of ul- timi^te sovereign power, ..... 417 355. On the use of the terms republic and constitution, . . 418 356. Conditions of the connection between political and civil liberty, . 419 357. Of a constituted government distinct from the possessor of sove reign power, ....... 420 Belation of the Constitution of the United States to the condition of private persons. 358. Of the manner in which personal condition may depend on public law, , . . . . . . . .421 359. Twofold nature of the Constitution, being evidence of fact and a rule of action, ...... 422' 3gO. Quality of the power held by the Government of the United States, 423 361. Sovereignty, how distributed between Oie national Government and the States, ....... 424 362. Of powers whose nature may vary by their investiture in the na tional Government or in tho States, .... 426 Means of distinguishing the sources from which the private law may proceed. 363. Law as opposed to liberty is, under the Constitution, a rule already determined, and not arbitrary will, . . . , 426 CONTENTS. XXXIU SEC. • PAGE 364. Of the extent of judicial power under the Constitution, to deter mine the source of law, ..... 427 865. Supremacy of the national judiciary in determining the law con tained in the Constitution, ..... 428 366. For all private persons its decisions are the supreme criterion of ' law, . . . . . . • . .429 367. How State sovereignty must yet be independent of judicial power, 430 Of the extent of the judicial power of the national Government as defined in the Constitution. 368. Of its extent to cases under certain laws and cases between certain persons, ....... 432 309. Of the terms State and citizen employed in describing the extent of judicial power, . ... . . . 433 370. Meaning of the term State in this connection, . . 433 871. Decision of Supreme Court that negroes are not citizens as the term is used in tho Constitution, . . . . 434 372. Argument that in this connection the term means any free person having a domicil, . . . , - . . 435 373. Extent of the judicial power held by the State Governments, . 437 CHAPTER XIIL CONDITIONS OF FREEDOM AND BONDAGE CONSIDERED WITII REFERENCE TO TIIE PUBLIC LAW OF TUB UNH'ED STATES — THE SUBJECT CONTINUED — OF TIIE DISTRIBUTION OR CLASSIFICATION OF PRIVATE LAW AFFECTING THOSE CONDITIONS WHICH MAT BE MADE UNDER A EBFBEENCE TO PUBLIC LAW. Private law in the United States distinguished by its territorial extent. 374. Law is, in extent, either territorial or personal, . . . 438 375. Variety of tho territorial jurisdiction of the powers of the national Government, . . . • . • • 438 376. The Territories of the United States are under the jurisdiction of the national Government, ..... 439 377. National municipal law and local municipal law, . . 440 378. The Constitution of the United States a part of the national mu nicipal law, .....•• 441 379. The laws of the several States have no territorial extent .beyond their limits, ....... 441 xxxiv CONTENTS. Private law inthe United States diatinguished by its personal extent. 380. Necessary variety in the personal extent of law, . . • 441 381. Alienage in international and internal law, . . . 442 382. International relation of those among whom the sum of sovereign power is distributed, . . • • • • 443 383. In their local sovereignty the States are towards each other like in dependent nations, ....•• 443 384. Alienage in respect to national and local law ; foreign and domestic aliens distinguished, ...... 444 Of international law as a part. of the internal laws of the United States. 385. National municipal law of the United States includes international law, 445 386. This international law is determined by the different sources of in ternal law, ....... 445 387. Applied in the United States to two classes of aliens, called foreign and domestic aliens, ...... 446 388. How far necessarily the same in all the States ; how far may be different, . . . . . . .447 389. A portion of this law may be contained in the Constitution of tho United States, . . . . . . .448 390. Incidents of naturalization to be considered, . . . 449 391. Powers of the States and of the national Government in respect to naturalization of foreign aliens, .... 450 392. Powers of the States in respect to naturalization of domestic aliens, 451 393. Basal questions in determining the relations of foreign aliens, . 451 394. Basal questions in determining the relations of domestic aliens, 451 395. PubUc and private character of, international law comprehended in the national law, ... . . . . 452 396. Of that international law which is derived from the several jurid ical powers of the States, ..... 452 397. International law in the Territories regarded as jurisdictions, having a local law, ....... 453 Glassifwation of the laws of tho United States witli reference to these incidents. 398. Reasons for not flrst distinguishing those laws as either national or local, ..... ... 454 399. First distinction of those lax^'s as either internal or international, 455 400. Internal law divided into national and local internal law, . . 465 CONTENTS. XXXV SEO. PAGE 401. International law divided into domestic international law and for eign international law, ...... 455 402. Domestic international law subdivided, . . . 456 403. Foreign international law subdivided, . .' . . 456 404. Personal status to bo considered as an effect of these divisions of the law, . ' . . . . , . 457 CHAPTER XIV. THE NATIONAL MUNICIPAL (INTERNAL) LAW OF THE UNITED STATES ITS EFFECT UPON CONDITIONS OP FEEEDOM AND ITS OPPOSITES. Of the Constitution as a legislative determination of the rights of private persons. 405. National municipal law to be considered as affecting individual rights and legal capacity, ..... 458 406. Rofcrenco to the distinction between legal persons and legal things, 458 407. Power over personal liberty may have been disclaimed by the ultimate sovereign, . . . . . . 459 408. Effect of a universal attribution of any rights in the Constitution, 461 ' 409. Of limitations on tho powers of the Government as securing rights of private persons, ..... 462 410. Enumeration of such limitations in the Constitution on the powers of the national Government, ..... 462 411. Of limitations on tho powers reserved to the States, . . 464 412. Of the character of the Constitution as a bill of rights, . . 464 Consequences from the recognition of the pre&xiating constituent people. 413. Bights which must be attributed to the individuals composing that people, ......¦¦ 465 414. The individual members are known by the then existing laws of personal condition, ...... 466 415. The private law of tho colonics was not abrogated by the Revolu tion, 467 416. The Declaration of Independence was not intended to operate as private law, ....••• 467 417. The Congress declaring it had no powers in respect to personal condition, ....••• 469 418. No such effect has been judicially ascribed to such national decla rations of right, ...••• 471 419. There is no national abnegation of power to lunit personal liberty, 471 XXXVI CONTENTS. Of liberty as the general object of the public law contained in the Constitution. SEO. PAOE 420. Liberty as secured by the Constitution is definable only by refer ence to customary law, ..... 472 421. How far provisions in the Constitution restrict the States in their powers, ....... 473 422. Of political liberty regarded as an element of personal condition, 473 423. Political liberty as a personal right is not determined by the Con stitution of the United States, .... 474 424. It is determined by the local law of the several States, . 475 425. The Constitution of the United States is not a bill of rights as against the States, ...... 476 Of customary or common law included in the national municipal law. 426. Distribution of power to modify the effects of common law, includ ing universal jurisprudence, ..... 477 427. In respect to territorial extent common law is local and not national, ....... 478 428. But common law is incidental to the exposition of the written national law, ....... 479 429. Rules of common law origin may have national extent as personal laws, ........ 480 430. In applying natural reason the national power is limited to speci fied relations, ....... 481 431. Common law, including universal jurisprudence and Christian morals, is alterable by the States, .... 482 432. Common law in tho Territories is a local law, . . . 482 Constitutional location of poioer over personal condition. 433. The determination of personal condition is not included under the national branch of powers, ..... 483 434. The States are not restricted in determining status under their in ternal law, ••-.... 483 435. The States determine the status of persons in respect to the action of the national Government, ..... 484 436. The distribution of power over status is not the same as during the colonial period, ...... 484 CONTENTS. XXXVU CHAPTER XV. OF THE NATIONAL MUNICIPAL LAW OP THE UNITED STATES — THE SUBJECT CONTINUED — OF THE PERSONS WHO MAT APPLT THAT LAW BT THB EXERCISE OF JUDICIAL POWER. Ofthe exercise of judicial power by tlie national Government and the States. SEC. PAGE 437. Where the functions of sovereignty are divided the judicial is the test of power, ....... 486 438. Connection of private condition with the question of judicial juris diction, ....... 486 439. A separate judicial power follows from the constitutional distribu tion of sovereignty, . . ' . . . . 487 440. Possibility of a concurrent exercise of the judicial power, . 487 441. The doctrine belongs to local as well as to national law, . . 488 442. The law concurrently applicable may be that which is {"itasi-inter- national, ....... 488 443. Presumption that the national law is also applicable by State tri bunals, 488 444. The National and the State power each supreme in the application of its own law, ...... 489 445. Apparent exception in State laws applied by national jurisdiction over persons, ....... 489 National law applied in the concurrent jurisdiction of the State courts. 446. Admitted supremacy of the national judiciary In application of national law, ....... 491 447. Where national and State judicial power may concurrently support the same rule, ....... 491 448. Illustration in civil and criminal jurisdiction, . . . 493 449. Where individual rights are in controversy the judicial power of the States is concurrent, ...... 494 450. This doctrine supported by judicial decision, . . . 494 451. A principle of universal law supporting the jurisdiction in all cases, 496 452. Statement and application of the principle in the Federalist, . 497 453. Jurisdiction undisputed in cases originally within the State power, 498 454. Question of concurrent judicial power distinct from that of concur rent legislative, ...... 498 Of restrictions on the concurrent judicial power. 455. The States may limit the application of their several judicial power, .,....'• 499 XXXVUl CONTENTS. SEC. PAQB 456. The jurisdiction can be exercised only by courts of ordinary or common law jurisdiction, ..... 500 457. Jurisdiction is to the tribunals matter of duty, if of power, . 501 458. The national rule when applied by State power is local in territo rial extent, ....... 502 459. The State judicial function is here subordinate to the national, 503 Of the persons in whom national judicial power may be vested. 460. The national judicial power cannot be vested in the judicial officers of a State, . . . . . . .503 461. Constitutional provisions for the investiture of the judicial power of the United States, . . • . . .504 462. Distinction of the administrative and the judicial application of national law, ....... 505 463. Judicial power and ancillary ministerial power, how distinguishable, 500 464. How judicial action may be discriminated, . . . 507 465. Office of Commissioners of United States courts and of State Jus tices of the Peace, ...... 508 460. Of portions of national law not applicable by judicial tribunals, 508 467. The exterior application of international law is not within the ju dicial power, ...... 509 CHAPTER XVL THE LOCAL MUNICIPAL LAWS OF THE UNITED STATES AFFEOTINQ CONDI TIONS OF FREEDOM AND ITS CONTRARIES, CONSIDERED IN CONNECTION WITH PRINCIPLES OF PUBLIC AND PRIVATE LAW WHICU IIAYE BEEN STATED IN PREVIOUS CHAPTERS. Political existence of the people of the several States. 468. Of the territorial limits of the States, . . . .511 469. The corporate existence of the political people of a State is extrin sic of any law, ...... 511 470. Their possession of sovereignty is a fact above the national Con stitution, not under it, . . . . . . 512 471. The individual constituents of the people of the State are desig nated by a law, ....... 513 472. The political people of the States identified with the people of tho colonies, ••••.. 513 Of liberty in its relation to the State sovereignty. 473. Political liberty in the States, regarded as a private right, depends altogether op State, law, , . . . . ' . 514 CONTENTS. XXXIX *BC. PAGE 474; State Constitutions, like that of the United States, are both evi dence of sovereignty and a rule of action, . . . 514 475. Presumption that the existing State Governments are republican, 515 476. Civil liberty in each of the States may have a constitutional basis, 515 Conditions of the tenure of power by State Governments. 477. Powers of the States are residuary in respect to those held by the national Government, ...... 515 478. Question of a limitation of the residuary power held by the people of each State, ....... 516 479. Constituted governments cannot be possessed of unlimited sove reignty, ....... 518 480. Distinction of the early State Governments as restricted or not by written constitutions, ...... 518 481. Of common law restraining a State Government in the absence of written constitutions, ..... 519 482. Customary law referred to in the construction of written consti tutions, . . \ . . . . .520 483. Similarity of this inquiry to that of the extent of the power of parliament, ....... 521 484. Continuation of the customary distinction of two systems of per sonal laws, . . . . . . . 522 485. Restraint on State power by international provisions in the Arti cles of Confederation, ...... 522 486. Stale power over personal condition has not been increased since the Confederation, ...... 523 487. Except as restrained by jMo^i-international provisions, personal status depends on State power, .... 523 488. The power of the national Government in the Territories, &c., is like that of a State Government, .... 525 Of power held by the local Governments to determine personal status. 489. Of constitutions operating as a local bill of rights, . . 525 490. Proposed method of inquiry, ..... 525 491. Supposed sanction for legislation reducing free blacks to slavery, . 527 492. The guarantee of private property as extending to rights in respect to slaves, as property, ....•• 527 Judicial opinions on this point in Dred Scott v. Sandford. . 493. Opinion of the Court delivered by Chief Justice Taney, . . 528 494. Opinions of Justices Wayne and Grier, . . . 531 495. Views taken by Justices Daniel and Campbell, . . .531 496. Mr. Justice Daniel's opinion, ..... 531 xl CONTENTS. SEO. '^^' 497. Mr. Justice Campbell's opinion, ..... 534 498. Mr. Justice Catron's opinion, .... 539 499. Views taken by Justices McLean and Curtis, . . . 541 500. Mr. Justice McLean's opinion, .... 542 501. Mr. Justice Curtis' opinion, ..... 546 Doctrines of the equality of the States in respect to the territory of the United States. 502. Of the doctrine as a principle of law, .... 554 503. Of the doctrine as a political principle, . . . 554 504. View taken by Mr. Calhoun and others, .... 555 505. Comparison of the views of the majority of the court on this point, in Dred Scott's case, ...... 556 Argument that the legislative power ia not thua restricted. 506. That, in this case, no principle for denying the power was support ed by a majority of the court, ..... 558 507. Fallacy in the doctrine that in the Constitution slaves are referred to as property by local law, ..... 560 508. Fallacy in the doctrine that by its operation slaves are property under national law, ...... 561 509. The doctrine of property in slaves as set forth in Chief Justice Taney's opinion, ...... 561 510. Of the support of the power by its former customary exercise, 562 511. Of the rejection by the Chief Justice, in this question, of the laws and usages of nations, ...... 563 512. Necessity of a customary standard of property, . . 564 513. The customary standard must be identified with the national juris prudence, ....... 565 514. The standard is found in tho customary law of all civilized nations, 506 515. Or in the universal jurispri)deiico of all juridical nations, . . 567 516. Which was part of the American law having national extent and jwasi-international effect, ..... 568 517. Property in human beings is not now known by universal juris prudence, . . . . . . .568 618. Distinction of a universal jurisprudence peculiar to the United States, . . . . . . . .569 519. Historical proof that such law is not tho foundation of slavery, 569 Slavery in the United States does not rest on a national common law. 520. That slavery rests on national common law is implied in Chief Justice Taney's opinion, . . . . . 570 521. Senator Benjamin's assertion of the doctrine in tho Kansas debate, 571 CONTENTS. xii SEO. PAGE 522. Historical proof that slavery rests on local common law, . . 573 523. The question of the lawfulness of slavery in the Territories is one of international private law, ..... 574 Of confusion arising from de^iency of terms. 524. Ambiguous use of tho term positive law, .... 575 525. Use of terms by Justice Holroyd, in an English case, and by Chief Justice Shaw, ....... 577 526. The failure to recognize natural reason in the historical law of nations, ....... 579 527. Illustrated by Chief Justice Shaw in Commonwealth v. Aves, 579 528. Illustrated in an extract from Senator Benjamin's speech, . . 581 529. And in his reply to Senator Collamer, .... 584 530. Of Lord Stowell and Judge Story as cited by Senator Benjamin, 586 Theories of the power ofthe national Government in the Territories. 531. The three functions of sovereignty are necessarily combined in the manifestation of juridical power, .... 688 532. Conditions of the exercise of executive and judicial power in the Territories, ....... 589 533. Inconsistency in denying the legislative power in Congress, . 591 534. The idea that the national Government may remain neutral in re spect to slavery, . . . . . .592 535. Variance of Judge Campbell's theory with the local character of State law, . . . . . . .594 536. Inconsisfency of the conclusion with the doctrine to which it is attributed, ....... 595 Of the farther exposition of the local municipal law. 537. Proposed abstract of local legislation, .... 596 538. Distinction of State laws as ^aving universal personal extent, 596 B39. Limitation of the view hereafter to be taken of liberty and slavery, 597 INDEX OF CASES. THE KEFERENCE IS TO THE PAGE, Albany Fire Ins. Co. v. Bay, 4 Comstock, 1, 133 Alfred v. Marquis of Fitzjames, 3 Bspinasse, 3, .... 380 Almeida, case of, 12 Niles' Weekly Reg., 115, 213, . . . 495, 504, 508 American and Ocean Ins. Cos. v. Canter, 1 Peters, 511, . . ,. 453 Anonymous, 2 Peero Williams, 75, 115 Attorney General v. Stewart, 2 Merivale, 143, . . . 116, 117 B Bank of Augusta v. Earle, 13 Peters, 519, Bank of the United States v. Norton, 3 Marshall's Ky. Beaumont v. Barrett, 1 Moore's Cases, P. C, 75, Belt, case of, 7 N. Y. Legal Obs., 80, Betty V. Horton, 5 Leigh, 615, Blankard v. Galdy, 4 Mod., 215, and Salkeld, 411, Bloom V. Burdick, 1 Hill, 130, ... Bodley v. Gaither, 3 Munroe, Ky., 57, Bonham's Case, ^ Coke, 118, Booth and Rycraft, cases of, 3 Wisconsin, 1, Boucaut, case of the negro, 15 Causes Celebres, Braddee v. Brownfield, 2 Watts and Serg., 275, Braynard v. Marshall, 8 Pickering, 194, Buckner v. Finley, 2 Peters, 586, Buckwalter v. the United States, 11 Serg. and Rawle, Butler V. Craig, 2 Harris & McIIcnry, 214, Butt V. Rachel, 4 Munford, 209, Butts V. Penny, 2 Levinz, 201, and 3 Keble, 785, 422, 193 . 74 430 . 116 495 . 526 115, 116, 200 . 501430 . 127 495, 502 . 341 520 . 430 144 . 497 249 . 230 179 INDEX OF CASES. xllii Calder v. Bull, 3 Dallas, 386, Calvin's case, 17 Coke. 7, Campbell v. Hall, Cowper, 204, Campbell v. Claudius, Peters' 0. C. R., 484, Carpenter v. Providence Ins. Co., 16 Peters, 495, Carlton, case of, 7 Cowen, 471, Chambers v. Warkhouse, 3 Levinz, 336, .... Chamberlayne v. Harvey, 1 Ld. Raymond, 147, Carthew, Mod. 187, Chinn v. Rcspass, 1 Munroe, Ky., 25 Chisholin v. Georgia, 2 Dallas, ,419, City of London v. Wood, 12 Modern, 688, . Clark, case of Mary, 1 Blackford, Ind., 122, Cochran v. Van Surlay, 20 Wendell, 305, Cohens v. Virginia, 6 Wheaton, 264, Collett V. Keith, 2 East, 260, .... Collins v. Blantire, 2 Wilson, 351, .... Commonwealth v. Alger, 7 Gushing, 53, " « Aves, 18 Pickering, 193, " '•' Cushing, 11 Mass., 67, " « Feely, Virginia Cases, 321, . " " Fox, 7 Barr's Pa. R., 336, " " Fuller, 8 Metcalf, 313, . " " Harrison, 11 Mass., 63, « " Holloway, 5 Binney, 512, « " Holloway, 2 Serg. and Rawle, 305, " « Leach, 1 Mass., 59, . . , « " Lewis, 6 Binney, 206, " " Murray, 4 Binney, 487, . Corporatio|i of New Orleans v. Winter, 1 Wheaton, 91, Coventry v. Woodall, Hobart, 134, .... Craw V. Ramsey, Vaughan, 292, . 13, 140, 519 115, 116, 118, 160 115, 196 . 490 . , . 491 . 495 180 390, D and 5 181, 379 . 243, 859408 . 127 139 . 620 431, 493 . 116 27 . 127 258, 576-579 . 495 497 . 495 493 . 495 495 . 495 133 . 430 495 . 433 218 . 116 520208 71 Dash V. Van Kleeck, 7 Johnson, 477, .... Davis V. Curry, 2 Bibb, 238, Dawson, ex parte, 3 Bradford, 130, .... Day V. Savage, Hobart, 87, 127 Dred Scott v. Sandford, 19 Howard, 393, . 204, 207, 214, 321, 334, 338, 340, 342, 358, 373, 400, 408, 409, 412, 435-437, 440-163, 471, 490, 491, 517, 528-558, 589. Dutton V. HoweU, Shower's Pari. Cases, 24, 11(5 xliv INDEX OF CASES. E Eells V. The People, 4 Scammon, 498, .... . . 492 Elmendorfv. Taylor, 10 Wheaton, 152, 490 Ely V. Peck, 7 Connecticut, 239, 497 Erskine v. Murray, 2 Ld. Raymond, 1542. 88 Eubank v. Poston, 5 Munroe, Ky., 285, . . ... 430 F Ferguson, case of, 9 Johnson, 239, . . . . 495 Fletcher v. Peck, 6 Cranch, 87, . . . . . 519 Foot V. Stevens, 17 Wendell, 483, 601 Forbes v. Cochran, 2 Barnw. and Cress, 448, . . 116, 198, 216, 377, 576 Foster and others v. Neilson, 2 Peters, 254, 433 Fox V. the State of Ohio, 5 Howard, 410, .... 492, 493 Francisque, case of negro, Denisart's Decisions Nouvelles, . . . 344 G Gelly V. Cleve, 1 Ld. Raymond, 147, 181 Gifford V. Yarborough, 5 Bingham, 167, 29 Gloucester Ins. Co. V. Younger, 2 Curtis C.C.R., 322, . . .491 Goshen v. Stonington, 4 Connecticut, 209, 520 Grace, case of tho slave, 2 Haggard's Adm., 91, . 194, 208, 370, 385, 576, 686, 588 Grantham, case of Sir Thomas, 3 Modern, 120, 331 Groves v. Slaughter, 15 Peters, 449, 490, 538, 561 H Haggin v. Squiers, 2 Bibb, 334, 433 Harvey v. Thomas, 10 Watts, 03 520 Harvey and others v. Decker and Hopkins, 18 Walker's Mississippi, 36, 414 Ileathfleld v. Chilton, 3 Burroughs, 2015 140 Heilbonn, case of, 1 Parker's Orim., 429, ...... 495 Hempsted v. llced, 6 Connecticut, 480, 430 Hepburn v. Elzey, 2 Cranch, 445, 433 Hobbs V. Fogg, 6 Watts, 553 208" Iloke V. Henderson, 3 Devereux, N. C, 12, 4C4 Holden v. Smallbrooke, Vaughan, 187, 7 14 Houston V. Moore, 5 Wheaton, 1 492, 493, 496, 497, 499 Hudgins v. Wrights, 1 Hen. and Munford, 134, .... 236 246 Jack V. Martin, 12 Wendell, 311, and 14 Wendell, 507, . . 495, 499 Jackson v. BuUock, 12 Connecticut, 38, .... 273 492 493 INDEX OF CASES. xlv Jackson, Lessee of, v. Burns, 3 Binney, 74 430 James v. Lcclimere, Washburn's paper before Moss. Hist. Soc, . . 264 Jenkins, case of, 2 Wallace, jr., 521, 495 Jones V. Perry, 10 Yerger, 59, 464 Jones and others v. Reed, 1 Johnson's Cases, 20, 1 Caines, 594, note, 501 K Kempe, Lessee of, v. Kennedy, 5 Cranch, 174, Kirk, case of George, 4 N. Y. Legal Obs., 456, . Knight against Wedderburne, 33 Morrison's Diet. Decisions, , , 501 495 • • 332 464, 480. ,500 , 496 , 444 , 6 , 576 396, 410, ,413 Livingston, Lessee of, v. Moore, 7 Peters, 469, Lockington, case of, 5 Hall's Am. Law Journal, 92, . Lonsdale v. Brown, 4 Wash. C. C. R., 148, . Louis, the, 2 Dodson's Adm., 210, Lunsford v. Coquillon, 14 Martin, La., 401, . Luther v. Borden, 7 Howard, 1, M Martin v. Hunter's Lessee, 1 Wheaton, 304, . 431, 491, 492, 493, 497, 498, 503, 504 Mary v. the Vestry of Wm. and Mary Par., 3 Harris, and McHenry, 501, 176 Mattison v. the State, 3 Missouri, 421, 503 Mayer v. Foulkrod, 4 Wash. 0. C. R., 349, 490 McCuUoch V. Maryland, 4 Wheaton, 316, 406 Mollvaine v. Coxe's Lessee, 4 Cranch, 209, 408, 409 Metzger, case of, 1 Barbour, 248, 495 Moore V. State of Illinois, 14 Howard, 13, 492 Mostyn V. Fabrigas, Cooper, 101, 115,116 Murray v. Fitzpatrick, 3 Caines R., 36, 501 N Neal V. Farmer, 9 Georgia, 555, . 14, 32, 137, 154, 105, 172, 188, 207, 212, 220, 311, 577 0 Oliver v. Weakley, 1 Am. Law Register, 194 P Pallas and others v. Hill and others, 2 Hen. and Munford, 149, . 236 Pearne v. Lisle, Ambler, 75, 185 Potter V. Brown, 5 East 124, 68 Prigg V. Pennsylvania, 16 Peters, 539, . 492, 499, 500, 501, 502, 561, 576 xlvi INDEX OF OASES. R Rankin v. Lydia, 2 Marshall, Ky., 467, Randolph, case of, 2 Brockenborough, 447, Be.spubjica v. Cobbet, 3 Dallas, 467, " " De Longchamps, 1 Dallas, 111, Rex V. Brampton, 10 East, 281, . " Picton, 30 Howell's State Tr., 225, " Vaughan, 4 Burrow, 2704, Roberts, case of, 2 Hall's Am. Law Journal, 192, Rhodes, ex parte, 12 Niles' Weekly Reg., 264, Robinson v. Bland, 2 Burrow, 1077, " •' Campbell, 3 Wheaton, 212, Rowan v. Runnells, 5 Howard, 134, . 576 506432 88 119 115116 495 495 111 482 491 Saul V. His Creditors, 17 Martin's La., 569, . Schooner Exchange v. McFaddon, 7 Cranch, 116, Scott, (the negro Dred,) v. Emerson, 15 Missouri, 576, Scrimshire v. Scrimshire, 2 Hagg. Consis., 395, . Sergeant, ex parte, 8 Hall's Law Journal, 200, Seton V. Hanham, R. M. Charlton, 374, . . . . Seville v. Chretien, 5 Martin's La., 275, Shanley v. Harvey, 2 Eden, 126 Sheddan against a Negro, 33 Alorrison's Diet. Decisions, Sims, case of, 7 Cushing, 285, .... 32, Smith V. Brown and Cooper, Salkeld, 606, and Holt, 495, . Smith V. Gould, Salkeld, 666, and 2 Ld. Raymond, 1274, . Somerset, case of, Lofft, 1, and 20 Howell's St. Trials, 1, Stacy, case of, 10 Johnson, 328, State V. Bowen, 3 Strobhart, 573, . •' Hale, 2 Hawks, 582, . " Hunt, 2 Hill, S. C, 1, . . . " Mann, 2 Devereux, 263, '' Manuel, 4 Devereux, and Battle, 23, " McGee, 1 Bay, 306, ... " Randall, 2 Aikens, 89, . . , " Fleming, 2 Strobhart, 464, . " Post, 1 Spencer, 368, and Zabriskie, 699 " Reed, 2 Hawks, 454, " Tutt, 2 Bailey, 44 " Welch, 1 Bay, 172, " Van Beuren, 1 Spencer, 388, . 63 9 . 490 88 . 495 433 212 586, 587 . 332 313, 408, 495, 501 116, 118, 182, 359 116, 184 27, 43, 136, 189, 358, 576495 . 307 226, 296 . 408 296 50 306493 306 285290493 307285 INDEX OF CASES. xlvii Steamboat Comp. v. Livingston, 3 Cowen, 713, .... 499 Strader v. Graham, 10 Howard, 82, 490 Sturgis V. Crowninshield, 4 Wheaton, 122, 499 Sturgis V. Davis, 1 Paine and Duer's Pract., 12, 433 Swift V. Tyson, 16 Peters, 1, 491 T Talbot V. Jansen, 3 Dallas, 133, 408 Tanistry, le case de, Davis, 28, 28, 116 Tate V. O'Neal, 1 Hawks, 418, 296 Taylor v. Porter, 4 HiU, N. Y., 140, 464 Teal V. Felton, 12 Howard, 284 492, 493 Triquet v. Bath, 3 Burrows, 1478, 88, 140 U United States v. Dodge, 14 Johnson, 95, 497 " " Campbell, 6 Hall's Am. Law Journal, llS, . . 497 " « Lathrop, 17 Johnson, 4, 497 " " Peters, 5 Cranch, 115, 496 " " Smith, 5 Wheaton, 153, . . . . . .393 " " Wonson, 1 GalUson, 5 490 W Warder v. Arrel, 2 Washington, 1, Va., 282 444 Ware's Administrator v. Hylton, 3 Dallas,199l, . . . 408, 469 Ward V. Jenkins, 8 Law Reporter, 538, 500 Ward V. Mann, 9 Law Reporter, 493, 501 AVatson v. Tarpley, 18 Howard, 517, . . . ... . .491 WeUs V. Newkirk, 1 Johnson's Cases, 228, . . . . .501 Wheaton and others v. Peters and others, 8 Peters, 591, . . 133, 507 Winchendon v. Hatfield, 4 Mass., 123, . . . ' . 263, 204, 359, 526 White V. Chambers, 2 Bay, 70, 306 Wilkinson V. Leland, 2 Peters, 627, 519,520 Wright V. Deacon, 5 Serg. and Rawlo, 62, 495 Wynehamor v. People, 3 Kernan, 378, 519, 520, 565 Wytham v. Dutton, 3 Modern, 160, 110 ¦ Y Yates V. Lansing, 9 Johnson, 395, 501, 527 CORRECTIONS. Page 39, note; line 3 from bottom, for " the result cither," read, " either the result." Page 75, line 14 from top, for " The motives for that practice are immaterial," read, " The motives -which may have actuated the State, in this, are immateriaL" Page 119, note 1, line 3,/or " 18 East," read, " 10 East" Page 133, note l,for " 1 Comstock," read, " 4 Comstock." Page 158, note 2, line 6, for " Novell. 162, c. 3," read, " Novell. 156." Page 180, line 5 from bottom, after " Warkhouse," insert, " 3 Levinz, 836." Page 211, line 6 from top,yor " captived," read, "baptized." Page 211, line 5 from bottom, far " ventre," read, " ventre." Page 221, note 1, line I, after " Swedish," insert, " or Danish,'' Page 228, line 5 from bottom of the text, /or "further," read, " fuUer." Page 230, line 19 from top, /or " 1559," read, " 1659." Page 266, note 1, line 3, for " restruoted," read, " restricted." Page 285, note 1, for " 1 iCabriskio's R., 868, 378," read, " 1 Spencer, 308, and State tl. Post, I Zabriskie, 699." Page 329, line 13 from top, /or " laws. No laws," read, " laws, no laws." Page 344, line 7 from top, for " Code Noir," read, " Edict of Louis XV." Page 349, line 12 from top, insert " the," before " question." Page 362, for the numbers of the notes, " 3, 4," read, " I, 2." Page 869, in the note, dele 59, after K. Page 377, line 18 from top, /or " primitive," read, " punitive." Page 881, note 2, Une 12, for "casa," read, " casu." Page 882, note 2, lino 5, for " aportet," read, " oportet." Page 447, line 9 from bottom, /or " nature," read, " name." Page 486, note 1, line 2, for " 1 Peters," read, " 7 Peters." Page 49?, note I, Une 5, for " Tuff," read, "Tutt." Pages 494, 496, for "concurrent," in the running title, read, " contested." Page 495, note 3, for " 92, 313 ; 6 of same, 301, 330," read, " 92-103, 301-330." Page 496, Une 1, for " two," read, "foui-." Page 501, note 1, Une 9, after " Fitzpatrick," insert, " 3 Caines, 86, and Foot v. Ste vens." Page 505, last Une in not», far " See note," read, " (2) See note 1." Page 620, Une 18 of note, for " Biamfield," read, " Brownfield." THE LAW FREEDOM AND BONDAGE. CHAPTER I. LAW DEFINED AND DIVIDED ITS OBJECT, OEIGIN, EFFECT, AND EXTENT. § 1. The word law has, in common use, two leading signifi cations ; one, which is generally considered the primary sense — that of a rule of action, prescribed by a superior to an in-^ ferior ; in the idea of which the possibility of action contrary to the rule is implied : the other — a meaning sometimes con sidered seconda/ry to that first given, by a metaphorical use of the word — ^that of a mode of existence, or of action, excluding the idea of the possibility of action contrary to that mode ; — a relation necessary in the nature of the thing existing or acting ; whether the co-existence of a superior author or cause of that relation be supposed or not.' § 2. Every being, existing under conditions over which it has no control, is subject to law in the secondary sense ; — there fore, called the law of its nature. The nature of man, or the conditions of his existence, are to him a law in this sense — the law of nature ; and, being by this law capable of choice and action, he may also be subject to law in the primary sense." ' Brande'a Diet., Lavo. Blaokst. Com., Introd., sec. 2, note by Christian. Austin: Province of Jurisp., pp. 19, 130, 184. Montesq. ; Spirit of L., ch. L ; and De Tracy's Comment. Keddie'a Inqmries Elementary &c., pp. 4, 16, 17. ' The primary and secondary meani-ngs of the term law mast not bo confounded 1 2 LAW OF NATDBE. • Tlie idea of law in the primary sense implies the relation of superior and inferior ; and the elementary principle in the sci ence of law, in this sense of the word law, is the existence of the legislator anterior to the law. Wlien the word law is applied to rules of action for man, the existence of such a legislator, as to man, must be taken for a fact, or relation, independent ofthe rule itself; or as being a principle of the law of nature, in the secondary sense of the word loM.' § 3. In the various views of the conditions of man's exist ence—that is, of the law of his nature (law in the secondary sense), which have been advanced by authors who have pro fessed to treat of jurisprudence, or the science of law, there have been two theories as to the existence of this legislator, or the source of law in the primary sense. According to some authors, the first principle of the science of law is, that man exists in society organized into political states, and that the state is the highest source of law as a mle of action.' This principle being assumed to be a law of nature, in the secondary sense of Hie term, and the law of nature, in this sense, being considered as the only law of nature which can, in any system of jurisprudence, be regarded as having an existence independ ent of the state.' According to others, there is a law in the primary sense, an^ terior to the legislation of the state; by which actions are with a primary and secondary law ; whether so called in reference to order of time or of authority. Conditions of things are necessarily presupposed in the enunciation of a rule of action, and in this connection the former may be called the primary and the latter the secondary law. Some elementary writers spealc of a primary and secon dary low of nature. Their primary law being a condition of things — a law in the secondary sense : e. g. Bowyer : Univ. Pub. Law, p. 20. Ayliffe's Pandects, pp. 6, 6. Wood's Civil Law, p. 92. Domat : Loix Civ. TraitA des Loix, ch. i, § 3. ' Reddie's Inq. Elem. &a., p. lG-19. " In illustrating the assertion of this doctrine, writers on jurisprudence usually cite Cameades, apud Lactantium, Lib. v., c. 15; and Aristippus and Pyrrho, apud Diog. Laert., Lib. it., c. 6 : see Selden, De J. Nat. et Gen. juxta Disc. Eb., ch. 3 ; Rutherf., B. ii , c. 1 ; Pufend., B. ii., c. 3 ; Grot., B. et P. Prolog. 5. But these are only early dogmatisms on one side of a never-ending etliical controversy ; of which more syste matic assertions might be found nearer our own day. It is not, in fact, possible to cite any system of jurisprudence or any legislative or juridical authority, ancient or modern, heathen or Christian, which denies the pre-existence of natural justice — the jural char acter of every rule which is a rule of law ; unless piratical communities and robber feudal barons can be called juridical authority when denying the existence of any law : compare Lieber : Pol. Ethics, vol. I, 231. 'Spinoza: Ethices, Pars iv., prop. 37, schol. 2: Tract Politioi, cap. ii.: Tract Theologico-Polit, cap. }(vi. Hobbes is commonly misrepresented as having denied the existence of natural law otherwise than in this sense. JUEIBPEUDENOE DEFINED, 3 enjoined, allowed or prohibited, independently of the rule pro ceeding from the state, and under which, as a law of nature, and a law in the primary sense also, the state is to be considered as existing ; which law is to be recognized in jurisprudence as con stantly binding on mankind.' § 4. The questions of the existence of natural law, — in the primary sense of the word law, of the nature of its injunctions, and of the limits of the power of the state as a source of rules of action for mankind, are questions regarding the nature of man, or of the law of his nature, in the seconda/ry sense of the term law : they are questions of ethics, — the science of his nature as a being capable of choice and action in reference to a rule which it is possible for him to disobey ; whether they are deter mined by the precepts of a religious creed, taken to be the reve lation of a divine will, or by the dictates of human reason. "Whether they also belong to jurisprudence, or not, is merely a question of definition : that is, depends on the meaning of law, and oi jurisprudence as the science of law." § 5. A law in the secondary sense is spoken of as something which exists absolutely ; which necessarily both exists and operates ; which is necessarily enforced, if it exists at all ; such a law being a state of things. But a law in the primary sense — a rule of action, may be supposed to exist without being en forced ; or without operating except in creating a moral obliga tion : because a possibility of action contrary to the rule is im plied in the idea of a law in this sense. A law of tliis kind may therefore be recognized either as a law merely existing, or as a law operating or being enforced. Now, jurisprudence is taken to be the science of a rule not merely existing, but one which is actually operative or enforced ' Lieber : Pol. Ethics, B. I., § 80. Rutherford, B. ii., o. 2. Mackintosh : Prog. Eth. Phil., Sect iv. v. : Grotius : B. et P. Prolegom., §§ 6, 7, 8, 16, and notes. Vattel : c. ii., § 1. Aristot : Rhet., Lib. i., cap. 13 et 16, and various other ancient authorities cited by Selden, De J. Nat &o., Ebr. Lib. i., ch. -vi. Reddie's Inquiries &.o.^ p. 19 ; also, ch. ii., and the citations. A very recent comparison of the best authors on this point in Bowyer on Universal Public Law, ch. u., iii., i-v., vii., Vol. 84, of PhUad. Law Library. ' " Comp., Doctor and Student, oh. i., ii. In connection with the subject of this chapter, there will ho frequent occasion to recall the maxim of lavolenus. Dig., Lib. 1., Tit 17, § 202. Omnis definitio in jure oiviU periouloso est, parnm est enim ut non subvert! possit 4 SUBJECT OF JUEI8PEUDEN0E. in or by the will of society or the state. Tlie science of what rule ought to be made operative by the will of the state is a difi'erent thing ; it is a science of rules regarded only as existing, whether operative in civil society — that is, enforced — or not.' A rule made operative by the authority of society, or of the state, is a rule identified with the expressed will of society or of the state. The will of the state, indicated in some form of ex pression, is thela/w,' the subject oi jurisprudence, and no natural rule which may exist, forms a part of the law unless identified with the will of the state so indicated. What the state wills is the conterminous measure of law ; no pre-existing rule is the measure of that will.' § 6. But a law in theprima/ry sense must be founded on a recognition of the nature of the things which it affects : — that is, of a natural Iom in the secondary sense of the word : for a rule founded on a contradiction of the nature of things is a rule im possible to be executed, or cannot subsist as a rule.* There fore, all laws made for man must recognize some conditions as the conditions of his existence ; and hence a recognition of his moral nature, or of a necessity in his nature to regard actions as ' Domat includes natural law, derived by a priori reasoning, in the law — the sub ject of jurisprudence ; and speaks of some rules as being evident witbout reasoning, and of others which require reasoning to make them evident Domat : Civil Law,' Treatise on Laws, oh. ii., §1 — 37 ; and see Bowyer, Univ. Pub. Law, p. 103. In this system, the mind of the individual jurist determines the law ; it is his subjective ap prehension of a rule of action : and only that rule which, in his judgment the state ought to enforce. Chanc. D'Aguesseau approves of Domat's system in tliis respect : see CEuvres, Tom. I., p. 645-6. Mr. Reddie, Inquiries El. &c., p. 48, says of Kant's Metaphysische Anfangs Griinde der Rechtslehre, and Fichte's Grundlage des Natur- reohts, that " they established in Germany the complete recognition of the distinction between ethics and law, or jurisprudence, between the legality and the moraUty of human actions." But Mr. Reddie sometimes speaks of jurisprudence as if it compre hended the science of what ought to be law ; see Inquiries El. See ante, § 74. LAWS OF UNIVEESAL PEESONAL EXTENT. 51 § 56. Such a right may attach to all domiciled persons, or to all alien persons. A certain condition or status of natural persons, whether consisting in rights and duties of a legal per son, or in a chattel condition, may, whether determined by posi tive legislation or by a judicial application of natural reason, be the effect of either municipal (internal), or of international law, or of both ; the extent, or application to persons, of a law originating in positive legislation, depending upon that legisla tion only ; and there being no necessity for supposing that the dictates of natural reason on this point will be the same, in rules of action applying to alien persons, as in those relating to the native or domiciled inhabitants of any supposed national juris diction. § 57. Or the state, or supreme power, may attribute any individual right or rights to each natural person within its domain, whether domiciled or alien. In this case, the law at tributing those rights, would, in the jurisprudence of that state, be & universal principle in respect to li^ personal extent ; that is, in applying equally to each natural person. In this case, the individual rights so attributed are not only distinguishable from relative rights by existing in respect to the whole com munity, independently of relations towards specific persons and things, (ante, § 40,) but they may be called absolute, or primor dial, or natural rights, because the law attributes them to natural persons simply as such, or as beings possessing the human form and nature, and as an intrinsic element of their human character. § 58. The extent of any principle or rule affecting the status of private persons is always subject to the supreme legis lative power. But in the absence of such legislation, it must be determined by judicial criteria of natural reason as before set forth. (§§ 29 to 36.) Eules or principles determining the condition or status of natural persons may be derived from universal j urisprudence. But it is to be borne in mind, that, in being so derived into the jurisprudence of any one state, they do not, therefore, have the universal personal extent which is above spoken of. This extetit of a personal law being dependent upon the will of the state in which it is applied ; while a uni- 92 APPARENT OBJECnONS. the local law having universal personal extent produces rights and obligations inconsistent with those relations. But the va lidity of this reference is found in the fact that the personal ex tent of laws, — the question whether they are universal or limited, is ordinarily determined, (as is the far greater part of all positive law,) by judicial action ; and that this is to be in the mode in which any rule of law is judicially determined : that is, from external indices of natural reason already accepted by the state ; of which universal jurisprudence — the law of nations, must always be one. And here is shown the genital connection of universal jurisprudence, or the law of nations, with that part of the laws of each country which is universally applied, — has universal personal extent, so far as the legislative or juridi cal power of that country extends. For the actual universal jurisprudence — the historical law of nations — grows out of, or is discernible by the discrimination, (under private international law,) of a part of the law of each nation having univei-sal per sonal extent, and constituting a standard, in its own courts of law, of the accordance of foreign laws with natural reason.' § 100. It may also be objected that it is a contradiction in terms to recognize a principle as forming part of the law of na tions, or as being a principle of imiweraaZ jurisin-udcnco, and at the same time to intimate a possibility of its being contravened by the local law ; for if it is not recognized in the local law it is not universally received ; or is not part of the laws of all nations. Strictly speaking, this is true. Yet it is evident that the sover eign legislative power may contravene principles which before were universally received, or which in the history of jurispru dence have before had the character of a law of nations. But still these principles will be judicially known to have had that character, up to the period of such legislative act ; and the tribunal would still recognize them as being, in the absence of legislation, the best exponent of the will of the sovereign power. ' It will be shown, however, in subsequent chapters, that there are cases, incident to the settlement of now countries, or tho ostablishmeiit of laws in countries which have not before had o local, territorial, or national law, wherein universal jurisprudence —-tho fall) o/no e » «^ THE MOTIVE FOE THE TRIBUNAL. 71 whom they act judicially — the rector imperii — to make it. When that will has been ascertained, it is immaterial what may have been the motive operating on "the supreme power or the sovereign source of the national law. There is, therefore, in this maxim, nothing making comity a judicial rule — or some thing, the extent and limits of which are to be judged of by the judicial tribunal. § 80. It being, however, assumed that the actual legislative and juridical practice of nations is one of the criteria by which the tribunals of any one nation are to ascertain that law of natu ral reason which they are juridically to apply as the positive law of the state — the fact that different nations, (or the civilized nations of Europe and America,) have severally sanctioned this international allowance, so far as not prejudicial to the potestas weAjus of the state, or of its citizens, may be taken to be an authority for the tribunal ' to make this international allowance in matters of private law, when not contrary to the potestas and jus ofthe state, or of its citizens; quatenus nihil potestati aut juri alterius imperantis ejusque civium prsejudicetur. These words are translated by Story : Conf. of L., § 29, — " so far as they do not prejudice the powers or rights of other governments or of their citizens." The word juri here translated " rights of," &c., might more correctly be translated law ; or, better — law and right: the word _7'ws having the sense not only of a right but also of a law ; in the sense of a rule of right, a jural law — that which must be judicially recognized as right, as well as law.' But then it is evident that the tribunal has nothing to ' 1 Burge Comm., p. 5. " Hence, by that which is sometimes called the cmtitas gentium, but which is at other times and more properly called the common necessity or the mutual advantage of nations, lu nkessiti du bien public et genial des nations, it is established as a principle of international jurisprudence that effect should be given to the laws of another state whenever the rights of a litigant before its tribunals are de rived from, or are dependent on, those laws, and when such recognition is not prejudi cial to its own interests or the rights of its own subjects." Judge Bradford, in Ex parte Dawson, 3 Bradford's R., 135, having reference to the action of an EogWak judidal tribunal and its obUgation to recognize the effects of the law of the State of New York in the case, says, citing the above passage : " It may also be safely laid down that from comity and considerations of mutual interest, foreign states recognize and give effect almost universally to those laws of the domicU," &c., " respect being had in this particular to the sentence of the appropriate tribunal in the place of domicil." ' The meaning of the word jus, in Roman jurisprudence, wiU be particularly exam ined in a succeeding chapter. 192 Mansfield's false position. it could only be introduced by positive law,"—" it is so odious that nothing can be suffered to support it but positive law,"— that " so high an act of dominion must be recognized by the law of the country where it is used ; " for had there been such an act of legislation, it would, by this reasoning, have been void and inoperative." If he intended to say that there were no moral or political reasons to his' 'mind for such a law, if it was in existence, or for its inti'oduction by the legislative power, — that was beyond his province as a judge. The question was not of its introduction, but of its existence. The reasoning of Lord Mansfield in this case would have been equally good for a judge in the colonies, and would have annihilated slavery in British America also. The historical origin of that slavery was entirely overlooked when he declared "that it could not be judicially recognized any where unless supported by positive law"; — that is, supposing him to have intended positive legislation by the term "positive law." That proposition, which has since this decision been the text for so many essays in England and Amer ica, is in direct contradiction to the whole history of chattel slavery in every country where it has existed : for, as has been shown in this chapter, it has always originated through a judi cial recognition of natural reason, and of universal jurispru dence, or the historical law of nations, taking effect as inter national and municipal law, because an exposition of natural reason which must be presumed to be received by the state ' The language of the court in this case is an illustration of tho remark of Savigny : Vocation of our Age for Legislation and Jurisprudence, Hayward's Trans]., p. 136 : " Thus it appears, that when old nations reflect how many peculiarities of their low have already dropped off, they easily fall into the error just mentioned, holding all the residue of their law to be a jus quod naturalis ratio apud omnes homines constituit" (See also p. 134 of the same treatise.) If Lord Mansfield professed to recognize a universal jurisprudence, distinct from that peculiar to his own country, deriving it from tho concurrent testimony of civilized nations or of reasoning mankind, — and it will be admitted that he did so, if over an English judge — it would be important to know whom ho considered nations, or whom reasoning, or reasonable, men. It is related of him tliat he once said in debate, uHuding to Otis' Essay on tho Rights of the Colonies, that "he seldom looked into such things: though in Chnmberlain of London vs. Allen Evans, in the House of Lords, he expressed his admiration of President De Tliou's dedication ofhis history, which he said he never could read without rapture." (Soe North American Review, Jan'y, 1826, p. 183. Life of J. Quincy, jr.) It would ap- peor, therefore, that he had some private rule to measure authorities on the concurrent testimony of mankind, which may not be orthodox with aU who quote his opinions, and that ho thought that some persons and nations were not entitled to hove an opinion. THE jueistioal eeeob. 73 § 81. The later writers following Huber have constantly cited the axiom as implying that judicial tribunals are to regard the comity of nations and considerations of reciprocal advan tage as a criterion by which they are to allow or disallow the operation of foreign laws upon persons and things within the jurisdiction of their states ; or — to vary the form of statement — that the tribunals are to take into consideration whether out of comity, or by, or for, or under comity, the nation or state is bound to admit the operation of the foreign laws, and then de termine the rights and obligations of private persons accord ingly. This idea of a, judicial recognition of comity of nations, re ciprocal advantage, &c., — the motives which are supposed to act on the supreme authority — the rector imperii, seems to have been seized upon from an inability to discover what authority a judicial tribunal could have in making that practical recogni tion of the effects of foreign laws which it was plainly seen was nevertheless constantly taking place. In order to justify tho courts in thus giving effect, as it seemed, to a foreign law, the courts were made to assume the powers of the state or of the sovereign. They were supposed to have abandoned their judi cial function of applying the national law (positive law) to pri vate persons, and to have assumed to act for the state in its political legislative capacity, and to decide what were the dic tates and requirements of a rule which, in operating on the state as its subject, is a public law, and a law in the imperfect sense only : while, in fact, neither comity nor any other motive or rule acting on states or nations had anything to do with the judicial recognition or non-recognition of the foreign law. The state, in vesting the tribunal with juridical power, and having recognized all other states as expository of that rule of right whicli was to be enforced in its own jurisdiction as positive law, had already recognized the validity of the effects of foreign laws within its own jurisdiction, if not contrary to the rule of right contained in its own local municipal (internal) law, and this question of contrariety was the only one for the considera tion of the tribunal. The whole of this doctrine of the comity of the nation ap- 204 HISTORY OF THE ABORIGINES. or European colonist.' The right of the native inhabitants in the lands they occupied was considered, at best, only qualified and temporary, and their lives and property received, even in periods of professed peace, but little protection from the colonial laws ; it being in fact impossible, in reference to savage races,' to make those discriminations between a state of peace and a state of war, which are so important in determining the legal character of acts incident to the intercourse of civilized nations.' The generally received doctrines of the difference in rights be tween Europeans and Moors, Africans and Indians, together with the international application of those doctrines has been stated in the preceding chapter. The warlike and intractable character of the North American Indian would have prevented, had there been no moral restraint, the systematic oppression and enslavement which was practised in the islands and the southern parts of the continent by the Spaniards. In the Eng lish colonies the aboriginal inhabitants receded before the ad vancing settlements, and never became, unless in a few isolated cases, incorporated with the body of the white inhabitants, and they have continued, as a race, to form separate communities, whose relations to the whites have been determined under spe-^ cial gfyasi-international laws.' In the earlier history of all the colonies there are instances of their being reduced to slavery by ' 1 Story's Comm. §§ 1-10. 1 Banc. 145, 167, 270. 1 HUdr. 69, 410. But tho instructions from tho authorities in England, repeatedly enjoined justice towards the natives, 1 Banc. 346, and Charter of Mass. Prov., iu 1692. Many of the earlier colo nial laws propose an adoption of Indians into the civil community. Seo Virgima Laws, 1619, N. Y. Hist. Soc. CoU. 2d series, vol. iii. part 1, p. 331. Mass. Lows. 1633, post ch. vi. •. ' r i ' Francis Victoria, A.D. 1657, opposed the current opinions of his day in asserting that hostilities against tho native tribes could not be justified on the ground of their vices, or of their Paganism. " Indls non debere auforri imperium ideo quia sunt pec- catores, vel ideo quia non sunt Christiaui." See Mackintosh, Hist. Eth. Phil. p. 109. The same opinion was held by Ayala, 1597, and by Covorruvias and others. See HaUam's Lit of Europe. Victoria held, however, that it was lawful to enslave Pagan captives. See Wheaton's Law of Nations, Introd. p. 40. During the sixteenth cen- tm-y, in wars of European states the captor had a property in his prisoner, which was assignable, 1 Motley's Rise of D. R. p. 151. Bynkershoek, Quasst. Jur. Pub. lib. i. c. 3, that a German officer commanding in Ireland, in 1690, is said to have ordered prisoners to bo transported to America, to be sold as slaves, and to have been only deterred by tho throat of tho Duke of Berwick, that, as a retaliatory inoosuro, he would send his prisoners to tho galleys in Franco. ' Dred Scott v. Sanford, 19 Howard R. 403, 404. Kent's Comm Loct LI DOOTEINE OF M. FCELIX. 75 theref«i'e, it is also to that tribunal its authorization in realizing or maintaining the rights and obligations belonging to the rela tion created by the foreign law. If the state to which the tribunal belongs had not indicated its approval of this customary action of states or nations, the court or tribunal would have no power, from the practice here stated, to maintain the effects of foreign laws : whatever view it might take of the demands of international comity, and the prospect of reciprocal advantage. This indication is found in the customary law of such state ; which, as has been shown in the first chapter, § 36, recognizes other civilized states or nations as the legitimate expositors of natural reason, and requires its tribunals to recognize a univer sal jurisprudence, a historical law of nations, ascertained from tbe practice of all civilized nations. Tlie motives for that prac tice are immaterial. It is the customary law of the land, de rived from the legislative and juridical practice of nations, having an international effect, which the tribunal applies under this rule ; not the considerations of duty or of advantage which may be supposed to operate on states and nations in regulating their conduct by any code of law, so called. § 83. M. Foelix, in his Droit International Priv6, ch. iii., Principes Eondamentaux, note, professes entire concurrence with Judge Story's view of the principle of comity. " La doc trine que nous exposons dans ce chapitre est celle de M. Story; nous I'adoptons completement." And he expressly vindicates, the doctrine of a comity of nations — international comity appli cable by the tribunals ; that is, makes the question — what does comity require ? a question for courts of law to decide. In § 11, his language is — " Les legislateurs, les au thorites publiques, les tribunaux et les auteurs, en admettant I'application des lois 6trangeres, se dirigent non pas d'apres un devoir de necessity, d'apres une obligation dont 1' execution pent , etre exigee, mais uniqueraent d'apres des considerations de utilite et de conve- nance rdciproque entre les nations (ex comitate gentium, ob re- ciprocam utilitatem,") &c. — going on to describe the motives which may and do operate on sovereign states, in allowing a foreign law to operate : but making no distinction between the functions of the judge and the legislator, and as appears in the 214 ROMAN LAW OF MANUMISSION. abolished this di|tinction among the libertini, but also made aU free persons (libertos) citizens of Eome, abolisliing all legal difference between the status of the enfranchised (libertini) and the free born, (ingenui.) From the recital in the enactment, it appears that the first, if not the second also, of these changes was a return to the ancient usage of the Eepublic' The rule of the Eoman Imperial law, as the exposition of a universal jurisprudence, received judicial recognition in the American colonies." § 207. If the law of nations has in modem times, or had during the colonial period, a limited personal extent or was dif ferent in its application to different races of men only while distinguishing between mankind as either bond or free — either chattels or persons, the necessary inference would be, that on ' Inst Lib. I. tit. 5, § 3 ; De libertinorum divisione sublata ; and Cod. 7, tit 6, 1. 1, tit 6, 1. 2. Smith's Diet antiq. roc. — Ingenuus, Libertus. Mr. Justice Daniel, in 19 Howard, p. 477, Dred Scott's case, appears to have adopted Cooper's version of the In stitutes, in which ingenuus is mistranslated freeman, For the changes in the Roman law on these points, according to the latest researches, see Tlie New Englander, Aug. 1857, in an article on Judge Daniel's stutoineut uf them; by President Woolsey, of Yale CoUege. 1 To some it may seem a singular refinement to suppose juridical autliority neces sary in ascribing individual (absolute) rights to the slave, when the mai>ter relinquishes his legal claims. Bnt, if legal rights exist by the ascertained will of the state, (ante § 2 1 and p 37, u. 1 ,) how otherwise can a chattel or tiling bceuino invested with them ? Other chattels, when derelict by the owner, are still chattels, and belong to whoever may then first take possession of them. The doctrine of manumission, as explained in the Institutes, shows that even in the Roman law the slave was only " iustar rerum," {ante p. 153, n. 1,) and that a personality independent of positive law was recognised to exist, as by a condition of things, or a law in the secondary sense, (ante §§ 1, 2,) or a law of nature in tlmt sense, which became manifest iu the possession of individual rights whenever the anttgonistic right of the master was relinquished. Seo Inst. Lib. 1, tit. 5. De Llbertlnis, Dejinitio et origo libertinorum et manumissiouis. The reason ing of Mr. Justice Daniel in Dred Scott's case, 19 Howard, p. 480, ignores the fact that the consequences of the master's act of manumission were jure geutium, and therefore judicially recognized everywhere, unless such recognition had been forbid den by some jus proprium of the forum. His language is — " The master might abdicate or abandon his interest or ownership in his property, but his act would be a mere abandonment It seems to involve an absurdity to impute to it tlie investiture of rights which the sovereignty alone had power to impart," ic The question in the case was of the rights of citizenship ; but tlie Judge's argument applies equally against the acquisition of any personal right on manumission. Undoubtedly, the investiture rests on the sovereignty, not on the private master. But the tribunal finds tho will of that sovereignty in the jus gentium, if there is no jus pi-opriuin, — ^local statute or cus tomary law. In some countries, wherein serfdom existed under a law of local origin, the Roman law of manumission has not been applicable Bodin, in Repub. B. i. o. 5, lyioUe's Tr. p. 41, after stating the Roman law — " which law, for oil that, we use not ; for In this realm [Fniuci!] ho must of iioiossity obtain tho princo his letlurs patents, wliich liovo always used tu restore unto manumised men ond of servile cuudition, tha stite of freeborn men, and to blot out uU stain of their old slavery." ANOTHEE EEEOE ITS TENDENOT. 77 before explained. But it is evident that the effect of basing the historical fact of this customary judicial recognition upon comity has been to induce judges to assume the part of diplo matists, acting for the state or nation in its integral political personality, and to decide matters of private right (the rights and obligations of private persons) by political considerations. And there is much in the writings of Story, Fcelix, and others, to sanction this practice. This tendency, which is no where more apparent than in the juridical literature of the United States, has in a great degree been caused by the supposed necessity of a judicial protest against another misconception, entertained by some few writers on these questions, who hold that a state may be bound (as if by positive law) to admit foreign laws to operate within its territory, if not actually injurious to its political sovereignty. Story, Conf. of L. § 33, observes, " It has been thought by some jurists that the term ' comity ' is not sufficiently expressive of the obli gation of nations to give effect to foreign laws when they are not prejudicial to tlieir own rights and interests. And it has been suggested that the doctrine rests on a deeper foundation ; that it is not so much a matter of comity, or courtesy, as a matter of paramount moral duty," (citing Livermore : Dissertation on the contrariety of laws, p. 26 to p. 30.) But these jurists also make this supposed duty of the state the basis of the action of the tri bunal. Now, the duty of the state is evidently beyond the action of its own judicial officers. Tlie admission, to whatever degree it may be sanctioned by the state, may have resulted from motives of comity, or from a sense of duty. But if comity, or any thing else, is conceived of as a necessarily binding mea sure of the degree in which this judicial admission shall take place, then a rule, operating as positive law, is assumed to have determined the juridical action of the state, when, in jurispru dence — the science of what law is, the action of the state is the only possible criterion of the rule. The comity of nations, ope rating as law within any one national jurisdiction, will be only whatever the possessor of supreme legislative power therein allows for comity, or by comity. Jurists, who, on the other hand, have asserted that absolute 224 THE POWER RECOGNIZED. shown in the fourth chapter, although the common law courts in England, at some point of time anterior to the independence of the colonies, decided that no person could by common law be held as a slave in England, yet such doctrine was by no means generally received during the seventeenth and the earlier part of the eigthteenth century, and that, in fact, negro slaves were held and sold, as persons bound to involuntary servitude, if not as chattels, in England during that period ; and that it seems never to have been supposed during the period in which the colonial statutes establishing such conditions were enacted, that the slavery of Africans or Indians and their descendants in the colonial dependencies of the Empire was repugnant to, or not .conformable or agreeable to, the law of England. And if the common law afterwards received from English tribunals a different construction, such a change could have had no effect upon colonial statutes which, at the time of enactment, were sanctioned by the contemporaneous exposition of the laws of England. As will be more fully shown in the succeeding chapter, the later English cases which unqualifiedly deny the master's claim to service must be taken to mean that such claim could not be maintained because the territorial law attributed liberty to each person within the realm of England, and that they go no farther. However unlawful in England, at any time, there is not a judicial doubt on record that it might be lawful in the English colonies : its lawfulness in America is expressly asserted by Holt and Mansfield in the cases already cited. ' § 215. It has been shown that the colonial Governments, in the exercise of any of their powers, were also indirectly lim ited by the national guarantee extending the rights and privi- ments in the English government at that period ; absolute slavery, if it ever had ex istence in England, having been abolished long before. These instances show thot the colonists, in judging of the applicability of the lows of the mother country to their own situations and circumstances, did not confine themselves to very strict and narrow Umits." 1 Tucker's Blackstone, (1803,) p. 388. ' The English judges and the Americon jurists were agreed upon this point ; they disagreed only In deriving the low from different sources. Holt said — '' for the lows of Sngland do not extend to Virginia ,¦ being a conquered country, their low is what the king pleases." Seo aiUe, p. 188 and note. The colonial govorninonts ascribed the existence of slavery, in their respective territories, to their owu juridical action. MEASURE OF EIGHT ^WHEEE FOUND. 79 § 85. But, irrespectively of the method or principle by which the judicial tribunal will have authority, in any case, to recognize and maintain relations created by foreign laws, — before the maxim as herein before stated, (§ 77,) or as stated hj Iluber and Story, can be practically applied by a tribunal supposed to have jurisdiction of an alien, that tribunal must be furnished with a test by which to know in what cases the foreign law, if allowed to take effect, would conflict with the potestas and jus — " the power or rights of its own government and its citizens." Or, according to the translation herein before given, (§ 80) of the word jus and the a priori view taken of the foundation for the international admission of foreign laws, (§ 77,) that tribunal, — admitting the presumption to be in favor of their admission- must still compare the foreign law with the measure of right con tained in the local law, — ^its own municipal or internal law. In tills connexion the potestas and jus of a state may be taken to be equivalent to its public and private municipal law, which are necessarily taken in its own courts to be jural rules, — rules ac cordant with natural right or natural reason. § 86. Laws which differ in their national source and char- . acter, may be called the same or similar laws, when each, within its own jurisdiction, produces similar correlative rights and ob ligations between persons in similar circumstances of natural condition. Any two such laws, must, in that case, be taken by the tribunals of the respective authors of each to be equally correspondent with natural reason ; or, to change the form of expression, rights and obligations so produced by one national law, must be taken, in the jurisdiction of the other national lawj to be correspondent with natural reason. And if the persons and thitigs who are the subjects and objects of these rights and obligations' pass from the jurisdiction of one law to that of another, the foreign law may be taken, by the tri bunals of the latter, to be consistent with the potestas and jus of the latter— following the terms of Huber's maxim : and the t it too restrictive of the judicial function: Savigny attributing a greater relative im portance to judicial tribunals ns o source of low. But compare Fcelix : Dr. Intemot Pr., Pref. v. vi. n, on the importance in juristical Uterature of distmguishing between apriori and a posteriori doctrines. 234 LAWS OF VIRGINIA. 1676—7. 'Order that Indian captives taken by soldiers in war should be the property of such captors. 2 Hen. 404 — and note and 1679, c. 1; to the same effect 2 Hen. 432, 440. 1680. c. 2. An act for naturalization by Governor, &c. c. 7, An act ascertaining the time when negroe children shall be tythable. c. 8, An act ly censing a free trade with the friendly Indians, c. 10, An act for preventing negroes insurrections. " Whereas the frequent meeting of considerable numbers of ne groe slaves under pretence of feasts and burialls is judged of dangerous consequence," — enacts that no negro or other slave shall carry arms or go from plantation without certificate, and if such " shall presume to lift up his hand in opposition against any Christian," shall be punished with thirty lashes. (See 1. 1748, c. 38, § 20.) " That if any negro or other slave shall absent himself from his master's service and lye hid and lurk ing in obscure places, committing injuries to the inhabitants, and shall resist any person or persons that shall by lawful au thority be employed to apprehend and take the said negroe, that then, in case of such resistance, it shall be lawful for such per son or persons to kill the said negroe or slave soe lying out and resisting, &c. 2 Hen. 464, 480, 481, (continued,l705, c .49, sec. 37.) 1682, c. 1. — An act io repeule a former law making Indians and others ffree. — 2 Hen. 490. Preamble, after reciting act of 1670, c. 12, " and for as much as many negroes, moorcs, mol- latoes, and others, borne of and in heathenish, idoUatrous, pa gan, and Mahometan parentage and country, have heretofore and hereafter may be purchased, procured, or otherwise ob- teigned, as slaves, of, from, or out of such their heathenish country, by some well-disposed Christian, who, after such their obteining and purchasing such negroe, moor, or molatto as their slave, out of a pious zeale have wrought the conversion of such slave to the Christian faith, which by the laws of this country doth not manumit them or make them free, and afterwards such their conversion, it hath and may often happen that such ' The third charter, so caUed, of Virginia is d.ited October 10, 1676. The most important clause in connection with tho subject is— " doclaro and grant that nil tho subjects of us, our heirs and successors from time to time inhabiting withiii our colony and plantation of Virginia, shall have their immediate dependence upon tho Crown of England, under the rule, &c. 2 Hen. 532. TIIE JUDICIAL RULE STATED. 81 contemplates. Tlie judicial officer, while enforcing the local law as the rule of right, must apply it according to the limita tions and with the extent intended by the supreme sovereign will. And in the jurisprudence of every state its own laws may be distinguished as. being jural, either by being merely expedi ent and suitable to circumstances of position and character peculiar to itself, or jural by enforcing obligations founded on the nature of man and co-extensive with human existence; (though this distinction is the growth of an advanced stage of jurisprudence, as will be shown.) In other words, although the municipal (internal) law of any nation is always to be taken as a rule of right for its own national domain, it does not follow that it has been asserted by its author for a rule of universal obligation, or as the rule which ought to be bverywhere applied to persons and things in like circumstances ; in such a sense that the tribunals of that nation are bound to consider every rule contrary to natural reason which should produce effects unknown to the local law. § 88. When, therefore, we pass beyond that portion of inter national law which consists in necessary axiomatic principles, recognized in the very existence of states or nations (and which includes the three axiomatic maxims herein before given, § 63, 67,) to that portion which becomes a rule of action and a law in the primary sense for judicial tribunals, in making that interna tional recognition and allowance of foreign laws which is only supposed in the third of those maxims, that part which, though dependent for its force as law upon the autonomous and uncon trolled action of single states, and therefore, not a law in the strict sense for the state, is yet a law in the strict sense for the judicial tribunal and for private persons — ^private international law, included in the national law of the forum — the first, or sim plest general principle which may be stated for such law, seems to be this : — That relations of persons and their constituent rights and obligations, existing under the law and jurisdiction of one state are to be judicially admitted to international recognition {that is, be allowed to have legal effect) within tJie jurisdiction of other states, when they are not inconsistent with those principles which in the jurisdiction of the latter are juridically Icnown as 244 LAWS OF VIRGINIA. 11. Duty of servants ; their punishment in case of resistance. 12. Punishment by whipping in lieu of fine. 13. Servants when free to have a certificate. 14-22. Eespecting runaway servants. Sec. 19, provides that runaways belonging to inhab itants of Maryland and Carolina may be detained until claimed by their owners. 23, 24. Eespecting servants contracting to serve by the year, and apprentices. 25. Stealing made a felony without clergy. c. 22. An act to prevent the clandestine transportation or carrying of persons in debt, servants or slaves, out of this colony. c. 38. An act directing the trial of slaves committing capital crimes^ aiidfor the more effectual punishing conspiracies and insurrections of therii, and for the better government of ne groes, mulattoes, and Indians, bond or free. § 1-10. Punish ment for certain crimes, like 1723, c. 4. 11. Excludes the testimony of negroes, &c., slave or free, except on trial of slaves for capital offences. 12. Admits testimony of free negro, &c., being a Christian, against or between other negroes, &c. 13-16. Of unlawful meetings of slaves. 17. Punishment of slaves for being found abroad without leave. 18, 19. Arms and ammunition not allowed to negroes, &c., except those on the frontier, having a license. 20. Negro lifting liis hand against a white person shall receive thirty lashes. 21. Against outlying slaves. 22. Their value, if kUled in tho attempt to seize them as such, to be paid by the public. 23, 24, 25. Ee specting homicide of slaves, dismembering of disorderly slaves, as in 1723, c. 4, s. 18, 19. 26. Slaves freed without legal li cense may be sold by the churchwardens. — 5 Hen. 432, 547 ; 6 Hen. 40, 104. 1753, c. 7. An act for the better government of servants and slaves. Most of the acts of 1748, having been repealed by the king, 1752, this is substantially a re-enactment of 1748, c. 14, which had been so repealed — see 6 Hen. 215. 1757, c. 3. Eespectmg the militia, as to enlisted free negroes, the same as in 1723, c. 2. — 17 Hen. 93. 1766, c. 24. An act to prevent the practice of selling per sona aa slaves that are not so, &c. — 8 Hen. 133. LIMITS m ATTRIBUTION OF UNIVEESALITT. 83 things are, by force of certain local circumstances, regarded by the supreme power as being specially exempt from the opera tion of rules or principles to which, irrespectively of those local circumstances, a universal personal extent is attributed ; and in this case, notwithstanding the actual exception, under the law of tho fortim, (the internal law,) to the universal extent of these rules or principles, they must still, in their otherwise universal extent, be judicially applied to limit the effects of foreign laws in the manner above indicated. § 90. But if a relation may thus have a jural existence in a certain national jurisdiction, though contrary to principles hav ing an otherwise universal personal extent, there might, in other countries, be legal relations which, tho.ugh contrary to the same principles, should be equally accordant with natural reason in and for the local circumstances of such other countries. And when the persons who sustained rights and obligations in those rela tions have passed into other dominions, in wliich the universal personal extent of a principle having a contrary effect will pre vent their continuance, still the action arising out of those rela tions may be regarded as having been lawful in their original forum — the foritm domicilii — though in the new forum — the forum of jurisdiction, they can no longer continue. § 91. The effect of laws having this universal extent must be, like that of every other, to create relations and to attribute rights and their correlative duties, (§22.) The rights so attri buted by these laws must be in either individual (absolute) or relative. But rights ordinarily known as relative are the attri butes of particular persons, in specific relations to other par ticular persons, (§ 40. ) A legal capacity for those rights, which is in itself, in some sense, an individual right, may be univer sally attributed ; though, in the nature of the case, the same relative rights cannot be attributed to all. Individual or abso lute rights, however, which exist in relations of -one individual to all persons in the community in which such individual may be found, may be attributed to all persons constituting that com munity. The laws, therefore, which, in having universal per sonal extent, control the international admission of the effects of foreign laws in reference to the statues of private persons, will 254 -LAWS OF MASSACHUSETTS. ment of death without benefit of clergy. A trial by jury and justices of assize, as in case of other persons, appears to be con templated. — Por three years. . Supplementary, is 1753, c. 26 ; continued by 1754, c. 19 ; 1765, c. 17. 1752, c. 1. An act to prevent disabled and superannuated slaves being set free, or the manumission of slaves by any last will or testament. Temporary — continued 1766, c. 1 (fiar 20 years). 1763, c. 28.' An act imposing additional duties on slaves, continued 1766, c. 13 ; 1773, c. 14 (7 years). 1776, July 3. The provincial convention at Annapolis, re solving on the election of a new convention, to " be elected for the express purpose of forming a new government by the au thority of the people only." " All free men above twenty-one years, being freeholders of not less," &c., or having property of value designated, were 'to be admitted to vote. Maryl. laws for , Annapolis, 1787. § 220. Legislation of Massachusetts. The colonists who landed at Plymouth, in 1620, exercised, until the year 1692, a separate legislative power over a portion of the present State of Massachusetts. Their enactments have been published separately from those of the colony of Massa chusetts Bay, under the name of the Plymouth Colony Laws, edited by W. Brigham, Boston,. 1836. In these, pp. 36, 50, the origin of their legislative power is ascribed to their compact, signed 11 Nov. 1620. These laws do not contain any declara tion in the nature of a bill of rights beyond that first printed in 1661, and first declared in 1636, under the name of the General Fundamentals." Plym. Col. Laws, advertis. p. viii. and Part III. ; ' This is the last year of Bacon's laws. ' This was, for the greater part, a declaration of political power. It will bo re membered that the Plymouth colonists had no charter from tho king. The patent for Virginia, of 1G06, applied to tho entire region of America claimed by the English. Seo its guarantees, ante, p. 228, note. " The great patent of Now Englouil," of 1620, established a councU in " Plymouth, in the county of Devon," in England, and empowered them to " ordnin and establish all manner of orders, laws, directions, insti-uctions, forms and ceremonies of govcriiinont and magistracy, fit and necessary for and con cerning tho government of the said colony and plantation [Now England], so always OEIGIN OF A UNIVEESAL JURISPEUDENOE. 85 nal) law. Because it is only by supposing the existence of in dependent jurisdictions, and a judgment of the tribunals of one, in allowing or disallowing the effects of another's laws, that there can be any exemplification of a judgment, by the recog nized interpreters of the will of states, deciding what effects produced by the laws of one state are incompatible with the power and law of right — potestas et jus — of another, and what principles of the lilw of particular states are to be taken to have universal personal extent under the jurisdiction of those states, or constant application to all persons in certain circumstances of natural condition. § 94. But in the continuous repetition of similar judgments by the tribunals and legislators of different nations through a long period of time, and the mutual reference made by them to such judgments ; together with the customarily received comments of private writers of various nations upon the same, based upon the idea that such judgments contain an exposition of natural reason, some principles, from being constantly recog nized hy many different nations, will acquire, in the jurispru dence of any one nation, the known character of universal prin ciples, or principles of a universal ju/risprudence. For though, taking law in the strict sense of the word, jurisprudence is the science of the law of some one country or nation, (§ 18,) yet, by distinguishing (national) law into municipal (internal) and in ternational, and by the application of the latter to the relations of persons formerly subject to foreign jurisdictions, a portion of the jurisprudence of each country will be identified with the science of a universal law, or law of nations. This, though dependent on the supreme national power for its continuance, or coercive effect within the jurisdiction of that nation, may yet, by its tribunals, be considered principles presumed to have universal territorial extent and obligation, and to have legal force distinct from those rules or laws which the state may pro mulgate as originating in its own separate juridical or legislative power: which last, though equally jural, — or equally intended to conform to natural reason, — are promulgated as law for one dominion only, or, rather, for persons as being simply the inhabitants of its own jurisdiction, without reference to the 262 LAWS of MASSACHUSETTS. in full communion, which they declare to be the true intent of the ancient law," [anno 1631.] — Charters, &c., p. 117. 1664. " In answer to that part of his Majesty's letter, of June 28, 1662, concerning admission of freemen ; this Court doth declare that the law prohibiting all persons, except mem bers of churches, and that also for allowance of them in any county court, are hereby repealed, and that all Englishmen pre senting a certificate under the hands of the minister of the place where they dwell, that they are orthodox in religion and not vicious in their lives, and also a certificate under the hands of the selectmen, &c., that they are freeholders, &c., rateable, &c., or that they are in full communion with some church among us ; if they desire to be freemen they shall be allowed the privi lege to have such their desire propounded and put to vote for acceptance to the freedom of the body politick, by the suffrage of the major part, according to the rules of our patent." — Charters, &c., p. 117, IV, Mass. Eec. Part II. p. 117, and p. 56.' The colonies of New Plymouth and Massachusetts Bay be came, in the year 1692 ', united into the Province of Massa chusetts Bay. 1688, Laws of, c. 6. — A law forbidding to trade or truck with " any Indian, molato, or negro servant or slave, or other ' Seo tho king's letter in IV. Mass. Rec. 2d part, p. 164-6, which enjoins "that all freeholders of competent estate, not vicious in conversation and orthodox in religion (though of different persuasions concerning church government) may have their votes in the election of oil oflicers." " Tho charter provided for election of deputies to tho general court " by the major part of the freeholders and other inhabitants of the respective towns or places who shall be present at such elections." " No freeholder or other poison" to have a vote, who should not have a certain freehold estate. " It contained a clause that all and every of the king's subjects " which shall go to and inhabit within" the province, and thoir children horn there, should hove tho liberties, &c., of subjects iu other parts of the empire. The governor and general court were vested with power to enact laws, " so as the same be not repugnant or contrary to tho laws of this our realm of Eng land." — Chortors, &0., p. 18. Charters, &c., p. 213, 229, gives onaetmeuts as of 16!)2, continuing the laws of Massachusetts and Plymouth colonies until the next yeor, founded on a doubt os to the continuance of the local law. (See 2 Hutch, p. 20,) and p. 214, An act setting forth general privileges, one of which is, " no freeman shall be token and imprisoned, or be disseized of his freehold or liberties, or his free customs, &c., &c., but by the lawful judgment of his peers, or tho law of thia province." Also p. 224, An act for the better securing of the liberty of the subject and for prevention of illegal imprisonment. These acts, with some others there given, do not appear in the collections of tho Pro vince laws, printed in 1726 and 1759; thoy appear to hovo been disallowed hy tha Crown. See 1 Holmes' An. 440, n. 1 llildr. 167. APPLICATION OF TUB JUS GENTIUM. 87 particularly enumerated, as is done in the Institutes, Lib. I., tit. ii., § 2. Ex hoc jure gentium omnes ptene contractus intro ducti sunt, ut emtio, venditio, locatio, conductio, societas, de positum, mutuum et alii innumerabiles. And in the jurispru dence of every nation the law may be distinguished as being either rules peculiar to itself, jus civile ov proprium, or else rules common to it with the rest of mankind, jus gentium ; each of which divisions of the law (national law,— jus civile in that sense) may be applied as international or as municipal (inter nal) law: that is, may be applied either to alien or to domiciled subjects. The term "law of nations" has, in modern jurispru dence, been generally taken to mean public international law only : but the original use of the term, in Eoman jurisprudence, as will be hereinafter more fully shown, ( ch. iv., ) was that of a private law universally recognized.' §95. And though these principles of a so called universal jurisprudence have that character from the historical fact that the relations created by them have been found in force among all nations, and therefore must be supposed to be already known effects of the local (internal) law of each single nation," yet they may retain their jural character and be judiciallyrecognized and applied, on the ground of their historical universality, even when none of the domiciled inhabitants of the forum sustain such relations under the municipal (internal) law. Having once acquired the character of jural rules, inthe ju risprudence of each state, by an a posteriori or mc^wc^we method, — i. e. from the fact of their general recognition, — they will thereafter obtain and operate as apriori principles, — or princi ples from which consequences are to be drawn deductively, and will be judicially recognized, by the tribunals of any one nation, because having this character.' § 96. Therefore when persons who sustain legal relations under the legislative or juridical authority of some state of dom- ch. i., § 1 ; ond in FoeUx ; Dr. Int. Pr., § 122, o recognition of this feature of the Roman law ; contrasting it with n remorkable difference in this respect, in the modern French intemational jurisprudence. ' Compare ante, § 34, and notes. " Quod civile non idem continue gentium ; quod autem gentium idem civUe esse de- Bet. Cicero de Off III. 17. Gaius, op. Dig. Lih I. Tit. L § 9. " Peckius, de Regnlis Juris, 1. 274 LAWS OF RHODE ISLAND. " It was ordered, upon the request of the Commissioners of the town of Providence, that their second instruction should be granted and established unto them, viz., ' "We do voluntarily assent and are freely willing to receive and be governed by the laws of England, together with the way of the administration of them, so far as'the nature and constitution of this plantation win admit, desiring, so far as may be possible, to hold a corre spondence with the whole colony," &c. 1 E. I. Col. Eec. p. 147. Also under the title ToMC^iwg'iaM'S, in four heads, the first of which is, — " That no person in this colony shall be taken or imprisoned, or disseised of his lands and liberties, or be ex iled, or any otherwise molested or destroyed, but by the lawM judgment of his peers, or by some known law, and according to the letter of it, ratified and confirmed by the major part of the General Assembly, lawfully met and orderly managed." 1 E. I. Col. Eecords, 157. "Touching the Common Law, it being the common right among common men, and is profitable either to direct or cor rect aU without exception ; and it being true, which that great Doctor of the Gentiles once said, that the law is made or brought to light, not for a righteous man, who is a law unto himself, but for the lawless and disobedient in the general, but more par ticularly for murderers of fathers and mothers, for manslayers, for whoremongers, and those that defile themselves with man kind, for manstealers, for liars and perjured persons, unto which, upon the point may be reduced the common law of the realm of England,' the end ofwhich is, as is propounded, to preserve every man safe in his own person, name and estate, we do agree to make or rather to bring such laws to light for the direction or correction of such lawless persons ; and for their memory's sake to reduce them to these five general laws or heads," &c., &c. 1 Eecords, 158. ords, vol. I. pp. 27, 45, 52, 87, 129 ; 2 Douglas* Summary, p. 80. Stoples' Annols of Prov. p. 65.) This Assembly doclored — " the form of government established in Providence Plantations is democratioal ; that is to say, a government held by the free and voluntory consent of aU or the greater part of the froe inhabitants." 1 Records, 156. ' This definition may be attributed to the Antinomian doctrines of tho great ma jority of the first settlers, 1 Douglas' Summary, p. 444, note. ITS AUTHOEmr — now limtted. 89 since it is only by the recognition of some persons as aliens, or as having before sustained relations wliich did not, in the first instance, exist under the legislative authority of the country to which they are alien, that such discrimination can be made, it is only, or primarily at least only, in intemational law that this universal law or jurisprudence can be recognized.' "When any principles of universal jurisprudence have been thus recognized and applied, in the international law of any particular jurisdiction, to determine the condition of alien per sons, they will, also form a part of the municipal (internal) law of the same jurisdiction, if the alien persons, or those for merly subject to the national law of another domicil, acquire a new domicil in that jurisdiction. Being received as an authori tative exposition of natural reason, with the extent of a personal law, (§ 27,) they must be held to be equally authoritative to de termine the condition of the same persons in \h.e forum to which they are transferred whether they retain or lose their former domicil. § 97. But however general that recognition of any rule of action may have been among the various states or nations of the world, it is not a universal law in the sense of being a judicial rule within the jurisdiction of every state independently of its own will or consent. Tlie word universal is a term here applied to a rule or principle in respect of its historical prevalence, and not in respect to an intrinsic universal authority ; its actual force, before the tribunals of any state, lying only in the judi- rV. p. 67. Triquet v. Bath, 3, Burr. 1480. Respub. a. Longchamps, 1, Doll. Ill, The admiralty Reports, passim ; but this latter use is not proper ; except in the considera tion that public international law always involves, to o certain extent, the relations of private persons. 'Thus the law of maritime commerce prevailing in some one country consists in a great degree in the law of nations, or universal jurisprudence ; because it must, in a great measure, be formed by the judicial application of private international law ; or, in other words, because in point of fact, those relations of private persons which are known in maritime commerce, generally involve actions which must take place in some other jurisdiction than that in which the correlative rights and obUgations arising out of those relations have been enforced or are to be enforced. ICnimes, Princip. of Eq. B. III. o. 8. " Thus in the Kingdom of Scotland, all foreign matters were formerly heard and decided on by the King in council ; in later times a special jurisdiction has been vested for that pui'pose in the court of Sessions, which de cides all such causes on general principles cf Equity." Gnius : Com. I. § 92, calls the jus gentium : — " Legos morcsquo porogrinoium ; " seo also Reddie : Hist. View of the Law of mnrlt. Com. p. 82, 118. Waechter, Arch. f. d. Jivil. Prax. Bd. 24, p. 245-6. Smith's Diet. Antiq. voc. — Proetor. 282 LAWS OF NEW JERSEY. justices and five freeholders : but may have a jury at the charge of the owner, &c. 1715. — An act declaring, &c., and for naturalizing all Protestants of foreign birth, now inhabiting within this colony. Bradf. L., p. 124. Eefers to the letters patent to the Duke of York, permitting the introduction of foreigners as colonists ; also to the articles of the surrender of the province, relating to the allegiance and rights of the inhabitants, and recites the act of 1683 : above-mentioned declares all persons of foreign birth, being Protestants inhabiting the colony, to be natural subjects and entitled to the privileges of such, makes no exclusion of any. 1716. — An act for explaining and rendering more effec tual an act, &c., (the act of 1712 above-mentioned.) Bradf. L., p. 135. 1730. — An act for the more effectual preventing and pun ishing the conspiracy and insurrection of negroes and other slaves ; for the better regulating of them, and for repealing the acts therein mentioned relating thereto. Livingston & Smith's Laws, vol. I., p. 193. 1740.'— An excise act, Liv. & S., vol. I., p. 281. The first twelve sections relate principally to slaves whose importation is encouraged by the terms of sec. 9. 1753. c. 27.— A similar act. 2 L. & S., p. 21. 1773. — An act to prevent aged and decrepid slaves from becoming burdensome within this colony. Ed. fo. 1774, p. 764, Eev. c. 1508. 1775. — May 22, a Provincial Congress assembles. § 225. Legislation of New Jersey. 1664. — After the acquisition of New York and New Jersey by the English, the earliest local government in the latter colo ny was founded on the grant of political powers to the Duke of York as proprietor, 1664, by him conveyed in the same year to ' ^^}'^^}~'^: * so-called' "negro plot" or conspiracy was supposed to have been formed by the sloves m the city of New York ; on account of the trial and execution of several negroes accused, was published by llorsmanden LAW WITII UNIVERSAL PEESONAL EXTENT. 91 sovereign national power, from M'hom the principle derives its coercive force. For while it is evident that no state has of itself any power to establish a new principle in universal jurispru dence — the historical law of nations, (i. e., the law whose uni versality is a historical fact,) wliich, from having that character, is receivable by the tribunals of any one country as being pre sumptively accordant with natural reason every where, yet, within its own territory and jurisdiction, it may attribute to any principle the character of a law which is to bo applied universally, — that is, applied by its own judicial tribunals to all persons, within its own jurisdiction, in certain circumstances of natural condition, or as one founded on the nature of individual men forming the constituents of society ; whether it be consonant or not with the code of universal law, or the law of nations, histor ically known. § 99. Although, therefore, in the course of the international recognition of tlie effects of foreign laws, and of the general progress of jurisi)rudence among civilized nations, some rela tions, rights and obligations of alien persons, or more generally, — of persons before subject to other jurisdictions, — are, from their general prevalence among nations, as proved by history, to be judicially allowed therein, ns accordant with natural reason, or as jural relations, — yet that recognition will always be limited by whatever principles in the municipal (internal) law of the forum of jurisdiction, may have a universal personal extent, or apply to all persons under that jurisdiction in certain circumstances of natural condition ; being promulgated by the supreme source of the local law as principles which ought to apply to all natural persons in such circumstances. It being here asserted that the judicial recognition and ad mission of the effects of foreign laws on a presumptive accord ance with natural reason, {ante § 77,) is always limited by the operation of local laws having universal personal extent, it may be objected, that this reference to a universal jurisprudence — the historical law of nations, in the application of private inter national law, is of no actual force ; and that is sufficient to say, that relations existent under foreign laws are always to be judi cially maintained, on the principle of comity, (so called,) unless 292 LAWS OF DELAWARE. Duties of Sheriffs, &c. 5. Punishment for rape of white wo man—standing on pillory and cutting off both ears. 6, 7. Slaves forbid to carry arms ; negroes forbid meeting in companies. 1721. An act against adultery and fornication. — Del. L., c. 44, sec. 5. Servant women having bastards— to serve another year. 9. Penalty on white women that shall bear mulatto children. The child to serve under appointment of county court, until the ago of thirty-one years, (llepealed 1795, D. L., c. 71.) 10. Penalty on white men committing fornication with negro or mulatto women. (Fines and corporal punish ment, for fornication and bastardy, abrogated, 1795, D. L., c. 108, s. 7.) 1739. An act imposing a duty on persons convicted of hein ous crimes, and to prevent poor and impotent persons being im ported, &c. — D. L., c. 66. An act for the better regulation of servants and slaves within this Government.— B. L., c. 77. Sec. 1. No indentured servant to be sold into another Government without the appro bation of at least one justice, &c. 2. Nor assigned over unless before a justice. 3. Nor indentures taken, &c. 4-10. Police regulations regarding servants, similar to those of other colonies. 10. Whoever manumits a slave, to give security, &c. 11. The children of free negroes to be bound out if their parents do not maintain them. The remaining sections contain the ordinary police regulations for slaves. 1751. An act supplementary to the last. — D. L., c. 129. 1760. Another supplementary act, D. L., c. 170. Sec. 1. " Whereas the children of white women by negro or mulatto fathers, and the descendants of such children, and negroes en titled to their freedom, are frequently held and detained as ser vants or as slaves, by persons pretending to be their masters and mistresses, when they ought not by the laws of this govern ment be so held and detained, and frequently are sold as slaves by such pretended masters or mistresses to persons who reside in other governments, Avith a fraudulent design to prevent their procuring proof of their being entitled to their freedom ; and whereas the laws of this Government are defective in not pre- LAW OF NATIONS ^WnEEE FOUND. 93 And here appears the connexion or identity of the law of nations — universal jurisprudence — with the only natural law, having the character of a rule of action, which can in the jurisprudence of any one country be distinguished from the rest of the posi- itive law.' Ordinarily, the law of nations of the period is always incorporated in the customary municipal (national) law of the forum," operating either as internal or as international law ; and such is the intimate connection of the two attributions of uni versality under ^judicial discrimination of the law {a/nte § 29- 36,) that it would be difficult to separate them. The in stances will be few, if any there can be, where an opposition will occur of the law of nations, judicially cognizable at any par ticular period, and a local law having universal personal extent by judicial recognition only. Though it is plain that the su preme legislative power of the state may always disallow the rules of this universal jurisprudence by promulgating a contrary rule, having cither a limited or a universal personal extent within its own jurisdictioti." § 101. General or universal jurisprudence — the science of universal law, or the law of nations, so far as it exists distinct from the common or unwritten law of any one state or nation, is known by the long continued international comparison of the laws of various states ; the ascertained harmony of their legisla tion, and of the judicial decisions of their tribunals; collected, digested and expounded by private jurists, and, in course of time, forming a distinct repository of legal principles, and, in some sense, a code of law having universal jurisdiction.' 'Hence the jus gentium ofthe Roman jurists was often described by them as being identical with the unalterable rules of natural justice. Inst. Lib. i. Tit. 2. § 11, and hence with the Roman rhetorical writers it is often identified with natura, jus naturale. See Savigny ; Heut. R. R , B. i. c. 3, § 22, ond compare ante § 19, 34 ; and Austin, Prov. of Jurisp. p. 190. " Savigny : Heut. R. R., B. i. c. 3, § 22. ' Wheaton, Intemotional law, § 10, thus cites from Heffler's Eurvipaischer Volker recht, § 2. " According to Hetfter, one ofthe most recent and distinguished public jurists of Ger many, — ' the law of nations, jus gentium, in its most ancient and exten.sive acceptation, as established by the Roman jurisprudence, is o law (Recht) founded upon the general usage and tacit consent of nations. This law is applied, not merely to regulate the mutual relations of stotes, but also of individuals, so far as concerns their respective rights and ?luties, having every where the same character and the same effect, and the origin and peculiar form of which are not derived from the positive institution of any particular state' According to this writer ihe jus gentium consists of two distinct branches. 300 LAWS op SOUTH CAROLINA. arms and stolen goods. 4. Against trading with slaves. 5, 6. For bidding to slaves use and access to fire-arms. 7, 8. Against meetings of slaves in and about Charleston. 9, 10, 12, 18. Pro visions for the trial of slaves, similar to those in the act of 1690, and for new modes of punishment. 11. Penalty on owners for sending away slaves who have committed felonies. 13. Eegu- lating the admission of the evidence of slaves against other slaves. 14. " Whereas divers evil and ill-disposed persons have hitherto attempted to steal away negroes or other slaves, by specious pretence of promising them freedom in another country, against which pernicious practice no punishment suitable hath yet been provided," provides punishment of the atteinjit by a fine, &c., and makes the act a " felony without benefit of clergy, and the offender shall suffer death accordingly." 15. " That in case any negro or slave shall run from his inaster or mistress, with intent to go off from this province, in order to deprive his master or mistress of his service, such negro or slave shall, on conviction, suffer death ;" provides for punishment of slaves en ticing other slaves to run away. 16. Provides for payment to the owners of slaves suffering death for crimes. 17. Punishment of slave striking or injuring any " Christian or white person." 19. Various new punishments for slaves running away for the first and other times. 20-27. Various provisions for the arrest and treatment of runaway slaves. 28, 29. Eestraining owners in granting liberties to slaves and in their mode of employing them. 30. Similar to sec. 12, of the act of 1690. 31-33. De tailed provisions for the better enforcement of this act. 34. Pro vides "since charity and the Christian religion, which we profess, oblige us to wish well to the souls of all men, and that religion may not be made a pretence to alter any man's property and right, and that no person may neglect to baptize their negroes or slaves or suffer them to be baptized, for fear that thereby they should be manumitted and set free,"—" it shall bo and is hereby de clared lawful for any negro or Indian slave, or any other slave or slaves whatsoever, to receive and profess the Christian faith, and to be therein baptized ; but that notwithstanding such slave or slaves shall receive or profess the Christian religion and GUIDE OP JUDICIAL OFFIOEE. 95 each nation upon this point cannot, as has been^ shown, be man ifested, except in the application of international law. In the present advancedstate of jurisprudence, among civilized nations, when the various effects of international intercourse upon the relations of private persons have been so frequently made the subject of judicial and legislative consideration, tlie customary laws of commerce and war furnish rules which will be judicially known as authoritative, in ordinary cases, until new legislation intervenes. And it is rarely the case that a tribunal can make an original discrimination of its own municipal (internal) law, as being either universal or particular in its extent or application to private persons, when deciding on the international allowance of the effects of foreign laws. § 102. But if it is necessary in any case to decide, — whether any rule or principle of its own municipal (internal) law is to be taken, independently of any exterior authority, or criterion, to be an assertion of a universal principle — one applying to all mankind, or, rather — one to be applied to all persons within the jurisdiction of the state in certain circumstances of natural condition, irrespectively of their national character or previous subjection to other laws, — the tribunal can have no other guide than the rules of ordinary reasoning applied to the mode in which the municipal (internal) law is asserted or promulgated in reference to persons and things within its own territorial his lows ; — on interesting historical problem ; exactly reseiubUng that of the Roman jus gentium." As will be shown hereafter, the Romans took the jus gentium, i. e. law known by its occeptance among all nations, to be the best exposition of the law of nature, re garded as a rule of action, or a law in the primary sense ofthe word. After the estab lishment of Christianity in Europe, tho Christian Church assumed the possession of a criterion of the law of nations, in a Revelation of which it was the instrument and ex ponent. (Arnoldi Corvini Jus Cononicum, p. 2.) It then denied the authority of the natural reason of mankind, however concurrent ; and in a large part of Europe — per haps the whole of Europe, anterior to tho reformation, the canon law took the place of tho^MS gentium of the Romans ; that is, became the written code of universal juris prudence. In the canon law digests, natural law is first asserted as that port of the national law of each country, qnod inter omnes populos perseque custoditur : it being understood that the exposition of this universal natural law is the organized Christian Church. (T. Bozius, De Jure Status. Romas, 1600.) From this time it would appear that jus gentium and law of nations, in the modem writers, were put for a law of which nations ore the sulijects, which low, ns will hereinafter be shown, was, during the Roman Empire, identified with their /h.i publicum nni jus feciale. Compare Decretals Pruna Pars. Distinct. I. c. ix. Phillimore on International Law, p. 24, note. Heineccius, 1737. Jur. Not. et Gent. L. I. c. i. § 21. Butler's Horse Juridica) Essay, Conon Law. 308 LAWS OF SOUTH CAROLINA. previous rebellion. This act was for three years, but was re- enacted, and has continued to be, essentially, the principal law on this subject. 7 St. at L., 418, 425. Compare the abstracts of its provisions in 2 Hildr.,p. 421. 1740. An act for the better establishing and regulating patrols. 3 St. at L., 568. " Forasmuch as many late horrible and barbarous massacres have been actually committed, and many more designed, on the white inhabitants of this Province by negro slaves, who are generally prone to such cruel practices," &c. Sec. 8. Defines the duties and powers of the patrol men in respect to slaves. Enacted for three years, but probably re vived in later acts. 1743. An act for the better securing this Province against the insurrections and other wicked attempts of negroes and other slaves ; and for revising, &c. 3 St. at L., 608. 1744. An act for the better governing and regulating qf white servants, &c. 3 Stat, at L., 621. 1746. An act amending and continuing the act of 1740, 3 St. at L., 647. 1751. Additional and explanatory of the same act. 7 St. at L., 420. An act laying new duties on slaves imported. 3 St. at L., 739. 1754. An act to prevent slave-stealing, &c. 7 St. at L. 426. 1764. An act for laying an additional duty upon all ne groes hereafter to be imported, &c. 4 St. at L., 187. Eecites " Whereas an importation of negroes, equal in number to what haveb een imported of late years, may prove of the most danger ous consequence in many respects to this Province, and the best way to obviate such danger will be by imposing such an additional duty upon them as may totally prevent the evils."' 1776-76. An act to revive and continue certain acts, ' In 1760^ au act was passed by the Provincial Assembly to prevent the further im portation of slaves, but was disallowed by the crown. Tho Governor of S. 0. was rebuked for having assented to it, and a circular letter scut to oil the other Governors, prohibiting their assent to similar act. 1 Burgo's Comm. 737. Tho trade was de clared to bo " beneficial and necessary to tho mother country." Stevens' Georgia, 285. AUTHORITY OF PEIVATE rNTEENATIONAL LAW. 97 tive law, may be ascribed either to a natural origin, or to a positive one strictly so called ; — positive legislation.' § 104. The international law, in determining under judicial application the rights and duties of persons not sovereign, or not holding sovereign power, is thus a part of the private law prevailing within a national jurisdiction — a rule for persons and tribunals under that jurisdiction, coexistent with the pri vate municipal or internal law therein, and distinct from it in its object and purpose, but not in its authority or political source. It being observed that by such a distinction in the ob ject of the law, and by the recognition of persons as alien to the supposed municipal (internal) law, the first part of international law, (according to the division before given, § 48,) is necessarily implied ; which part has the character of law in the secondary sense only, being axiomatic principles connected with the exist ence of states and nations, among which the three fundamental maxims before given, (§§ 63, 67, 68,) are in fact comprised. Thus the international private law, as well as every other branch of private law, has also the nature of public law, since it deter mines, to a certain extent, the mutual relations of states, or the holders of sovereign power. Though, so far as it may do this, the rights and duties of states, incident to those relations, are not the effect of law in the same sense as are the rights and duties of private persons, growing out of those relations ; the international law being, for private persons, a law in the strict sense of the word, by the authority of the author and source of that municipal (national) law, to whose jurisdiction they may be subject ; but, for states or sovereigns, only a law acknowl edged by themselves to have moral obligation, — a rule of " posi tive morality." ' It being only by way of analogy that any rules of action can be called a law for sovereign nationalities. § 105. The settlement, on general principles, of the inter national prevalence of laws having different national origins, forms that topic of jurisprudence which has been denominated by Huber, Story, and others, "the confiict of laws.'" Strictly ' Compare ante, §§ 29—36. ' See ante, § 11, and note. • The phrase coUisio legum (Hertius) is also employed : with the Germans — Col lision der Gesetze. This, lUce the term comity, has been caUed by some of them » 318 LAW APPLYING TO ALIENS. Those persons who were alien, either by birth or by domicil, to the national jurisdiction of the empire, were necessarily such also in reference to any one particular jurisdiction. But since the domicil of any person, subject, by birth or by domicil, to the national jurisdiction, would also be a domicil with reference to one only of those particular jurisdictions into which the empire was divided, any English subject, by having a domicil in one of those jurisdictions, would, when within the territory of another, be alien in respect to it and its local law ; though remaining under the same national sovereignty and under the jurisdiction of the same national law. § 239. Whatever rules may be applied as private interna tional law in any jurisdiction to determine the rights or relations of alien persons, must depend upon the will of the political source of the municipal (national) law therein ; since no rules of action can have the force of law within any territory except by the will of the supreme power. ' The status or condition of aliens in any one of the several particular jurisdictions of the empire, whether aliens to the whole empire or to that particular jurisdiction only, would be determined by one or the other of those sources of the muni cipal law which prevailed therein ; viz., either the national or the local authority. To ascertain then the law applying in any one locality of the empire to the condition of an alien of either of the above de scribed classes, it is necessary. First, to refer to the public law, or law of political constitu tion, to ascertain the location of the supreme legislative or ju ridical power over such persons and over their various relations, (i. e., the investiture of that power, either in the local or in the imperial legislature,) and Secondly, to ascertain the actual rule of action proceeding from such power. § 240. It has already been necessary, in giving an historical exposition of the origin of the municipal (national) law in ' Ante, §§ 12, 36. PEESONAL STATUTES. 99 international recognition. All laws determine relations of per sons, {ante, §§ 21, 22,) but, according to the view here given, the personal character of a law thus internationally supported is a consequence of its international recognition, rather than the cause of it. It is said by writers on the conflict of laws quoted by Story, in Oonfl. of Laws, p. 12, that " personal statutes are held to be of general obligation and force every where;" and these are conti-asted with real statutes which are said to have no OT^ra-territorial force or obligation. By statutes in that use of the term are not intended legislative enactments, but any rules of law affecting relations of persons to other persons and to things : ' and hj personal statutes are generally intended those rules which have determined the individual rights of private persons and their capacity for relative rights;' though the diffi culty which has been experienced in stating general rules to distinguish what statutes are real, what personal, and what mixed, is a proof of the insufficioncy of tho distinction to deter mine their international admission.* It would, perliaps, be equally correct to say, that statutes which are held to be of general obligation and force every where are personal statutes. Their personal character would then be the result of the extent judicially given to thom: and the question is — when will a judi^ cial tribunal be bound to admit them to have this personal ex tent ? If the authoritj'^ for the tribunal, in doing this, is found in the historical fact of their international recognition, then their personal extent is, in fact, derived from the customary law of the forum.' ' Fcelix : Dr. Intemot. Pr., § 5. "Statutum, coutume particuliire." § 19, " Mais en m6me temps le terme statut, surtout dans la matibre du conflict des lois est employ^ dnns un sens plus ^tendu, et il est pris comme synonymo du mot loi." Merlin : Reiper- toitc, tit. Autoristttion Maritale. Bowyer: Univ. Pub. Law, p 163. 2 Kent Comm., p. 456-7. The term appears originally to have been used to designate a law whose territorial extent was limited to some several province or district of a national state or kingdom, and in that controsted with the common law of the land. Savigny : Heut. R. R., B. III., c. i., § 347. Thus in England the particular customary laws of borough English, ond gavelkind («. 1 Bla. Comm., 74, 75) correspond to staiuts of the French Provinces. ' Story's Confl. of Laws, § 61, and generally ch. iv. of that work. ' Reddie's Inq. in Internat. L., pp. 425 — 7. Hertius : De ColUsione Legum, § 4, speaking of real, personal, and mixed statutes ; — " vorum in us dofiniendis minim est qu.ini sudont doctores." ' Scha;ffiicr, § 81. Reddie's Inq. in Internat. L. pp. 477-8. Various European writers for and against this »'ew are cited by Waschter in Archiv. &c., Bd. 24, pp. 255—261. 326 LAW OF MINOR APPRENTICES. authority would be identified with the local municipal law there of, and be derived from the local power ; though it would be international law from the alien character of the persons to whom it should be applied ; a law having the same character as that by which the condition of the African or Indian, domiciled in some one colony, would be determined in any other particular jurisdiction of the empire in which he might be found, i. e. mu nicipal and local law in its authority ; international by its ap plication to those persons thus regarded as alien in respect to that jurisdiction. § 248. The law therefore which applied in any one of the several jurisdictions of the British empire, as private interna tional law to these two descriptions of persons, viz. : indentured white servants and Africans or Indians having a domicil in some other one of the colonies must be ascertained in the same man ner as if those jurisdictions severally constituted independent national jurisdictions, in all respects. § 249. There existed also, in the several jurisdictions of the British Empire, another class of persons who by law were obliged to render service to private masters, viz. : minor apprentices ; and in case of the removal of such apprentices from the place of their domicil, or in case of their absconding and being found in some jurisdiction other than that in which their obligations first existed, the question of the continuation of the rights and obli gations of the parties to the relation would resemble those which in the case of slaves and indentured servants in like circum stances, would be decided by private international law, as above distinguished from the common law having national extent. But, though the condition of a minor apprentice was cre ated by indenture, and was similar in its temporal limitation and some other incidents to that of the so-called redemptioners, it had a totally different foundation. The relation of master and apprentice was a continuation of, or substitute for, that of parent and child, or that of guardian and ward. The power of the master was a delegation of the patria potestas, and with the right to service was associated a personal duty in respect to the apprentice, which was not recognized in tho case of the in- STATUS IN INTEENATIONAL LAW. 101 in the jurisdiction wherein they were first created, {amte, § 75.) But the individual and also the relative rights of a legal person, if considered without reference to any specific things, may (irrespectively of their political guarantees,) continue the same in different national jurisdictions, and be considered continu ing incidents of his personal condition. In a vague use of the words, such rights are often denominated ^erso^iaZ rights. When the personal condition of a private person is spoken of, or a law is termed a law of condition, the term has reference more es pecially to the possession of such rights. In the Eoman law, the rights which might be attributed to private persons were classified as rights belonging to different conditions, known under the name of caput or status ; some rights being recognized independently of local laws, as being founded on a universal jurisprudence or jus gentium, and others being limited to the inhabitants of certain localities, being ascribed to the jus pro prium, or civile, Pomanum.^ § 109. If, then, by the private international law which ob tains in some one national jurisdiction, (either from positive legislation, or by judicial api^lication of natural reason,) some relations of alien persons may be recognized and enforced there in which have existed under the law of a foreign jurisdiction, it will be remembered, according to what was said of the dis tinction between persons and things in the first chapter, that a legal relation can have that character only by a recognition of legal persons, and their capacity for legal rights. A contract, if internationally recognized as the effect of a foreign law, is necessarily known to the judicial tribunal through a recognition of a capacity to contract in some natural person. Tlie law of the capacity of natural persons for legal relations, as the law of personal condition or status, must, therefore, enter into the inter national recognition of municipal laws supporting contracts. This capacity of persons is also an object of legal recognition in other relations of persons which do not have tho character of contracts: some of which relations are recognized in differenl national jurisdictions as having a foundation in universal juris prudence — the historical law of nations: such as tlie relations ' See ante, g§ IS, 19, and §§ 96, 97. 332 THE SCOTOS OASES. is the only one in which the question of freedom and seivitude appears as one to be decided by private international law. Tho circumstances of that case have been already stated in the opinion delivered by Mansfield. The master and slave were recognized to be the domiciled inhabitants of a colony ; the master having done no act by which he acquired a domicil in England, and the power of the negro to acquire it separately, animo manendi, by having the intention to do so, manifestly depended on an anterior question, whether he was or was not a free person.' § 256. Two Scotch cases are cited in the notes to the report of Somerset's case, in 20 Howell's St. Tr., from Morrison's Diet, of Decisions, vol. xxxiii, tit. Slave. The first, entitled Sheddan against a negro, was in 1757. The owner proposed to carry the slave back to Virginia and brought his claim be fore the courts, when the latter refused to go. The negro died before any decision could be rendered. The other case, entitled, Joseph Knight, a negro, against John Wedderburne, occurred 1775-1778. The negro had been in Scotland several years and had married there, still rendering services, but after claimed to be free. On pleading, the master claimed a right either to his perpetual service, in Scotland, or to send him back to the plan tations — Jamaica. The case being heard before the sheriff, he found " that the state of slavery is not recognized by the laws of this kingdom,' Indies, which was a man of that country, who had the perfect shape of o chUd grow ing out of his breast as an excresceucy, all but the head. This man he brought hither, and exposed to the sight of the people for profit. Tho Indian turned Christian and was baptized, and was detained from his master. The master brought o homine repleg- iando. The sheriff returned that he had replevied the body, but did not' say the body in which iSir Thomas claimed o property, whereupon ho was ordered to amend his re turn. And then the Court of Common Pleas bailed him." Tho marginal note is : " Ilomine replegiando lies for a baptized infidel detained from his master." " But it does not appear that the return was ever argued, or that tho court gave any opinion iu this cose, and, therefore, nothing can bo inferred from it." — Haricravo's note, 20 HoweU's St. Tr. 55. ' See ante, note ot the foot of page 109. ' The 15 Geo. 3, cap. 28, (1775,) is an act for altering, explaining, and amending several acts ofthe parliament of Scotland, respecting colliers, coal-bearers, and salters; recites, " Whereas by the statute law of Scotloud, as explained by the judges of tho courts of low there, many coUiers, &c., are in o state of slavery or bondage, bound to the collieries and saltworks where they work, for life, transferable with tho collieries and saltworks, when tho original masters have no fartUor use for them ; and whereas STATUS UNDEE LAW OF NATIONS. 103 action, and so, in that jurisdiction, to lose their antecedent au thority, as guides for the judicial action of a tribunal. This lav) of nations may include principles determining the possession of either individual rights or of relative rights, and may thus operate as a law of status or personal condition; which, by its general recognition among different nations, would then have a personal extent, both in international and municipal (internal) law.' § 111. By the same authority from which every principle of this law of nations is derived, i. e., the concurrent juridical action of different states in international relations, some princi ples of this law of nations, determining the condition or stabus of private persons, might be exclusively applied to a distinct class, or definite portion, of mankind : and they would then have a peculiarly personal extent and character, whether manifested in international or municipal law : being, in such case, a law not only of ]icrsonal condition, but a law of, or for, certain per sons only : though being also properly attributed to universal jurisprudence — the law of nations — from their actual historical recognition among all nations." §1.12. A condition, or status, yAv\^\ should consist simply in the possession, or non-possession of individual or absolute rights, may easily be supposed to continue the same after a change from one jurisdiction to another. Those elements of condition which arise out of the relations oi family — of hus band and wife, of parent and child, of guardian and ward — may also be the same, in their essential features, after such a change. Tlie name of bondage, or servitude, may, as has been stated in the first chapter, be attributed to various conditions of obli gation in private persons, even when the rights correlative to such obligation are rights of other private persons only ; — ^not of the state, or some possessor of political power, {ante, § 47.) When spoken of as the condition of a legal person, the obliga tions in which it consists may exist in reference to persons and tilings peculiar to some one place, or jurisdiction ; or, it may be ' In connection with thia sectiot see particularly axAe, §§ 99, 100. » See ante, §§ 63, 58. 340 LAW OF THE GERMAN EMPIRE. eo adventatantes. Ast in Germania non solum dominis con- ceditur ut possint homines proprios vindicare, etsi eo profugerint ubi iUa servitus non sit recepta (vid. Dan. Mevii Consil. jurid. de statu et vindicatione hominum propr.) verum etiam-quibus, dam locis, ipso jure fiunt servi quicunque perigrini eo adveniunt, emorandi et habitandi causa, veluti in Algonia, ubi ideo saepe auditur paroemia : Die Luft macht eigen, id est, ipse aer ho mines proprios facit. Hert de homin. propr. sect. 3, § 3. Tale et olim fuit jus Wildfangiatus in Palatinatu electorali et provinciis vicinis, de quo Londorp. Act Pub. Continuat. Lib. 10, p. 126." By the private international law of these provinces then, the peaceful alien, not protected by some special treaty, and of whatever condition at home, was regarded either as a stray chat tel which the lord of the soil might appropriate, or an enemy who might be enslaved ; as under the doctrine of the early Eo man law. See Ante, p. 151, note 2. The passage indicates a disregard of all private international law as a protection for aliens, whether bond or free. The right accorded to feudal lords of reclaiming their serfs, was an effect of a law prevailing as between the different petty sovereigns recognized in the con stitution of the German empire, at a time when feudal bondage still existed in the respective dominions of each.' § 263. To the Flemish and French authorities, before cited, so far as they justify the international disallowance of the mas ter's claim of ownership, it may perhaps be objected that the distinction of race which, in the fourth chapter, was described as having about the close of the 15th century acquired recogni tion in universal jurisprudence — the law of ma^tows— supporting the chattel slavery of Moors, Negroes and Indians, was not no ticed, and that the rule given by these authorities should be taken to apply only to European serfs, bondsmen under feudal \ In Dred Scott's cose, lOtli Howard 495, Mr. Justice CampbeU cites, from the Capitularies of Charlemagne a rule for the rendition of fugitive slaves. Chattel slavery as weU as serfdom, was probably then prevaUmg in aU the dominions of this Emperor See Ante, p. 159, n. Other similar laws of that time might have been cited. " Etiam Caroli M., Ludovici Pu et Lotharii leges de servis supersunt in Lib. 44, Car. M. et Longob. Imo et Guilielmi Siciliae Regis et Frederici Imp. ex tant de servis fugitivis constitutiones m plac. Neap. Sed ab hoc tempore id est A. C. 1^1^, out non multo sccus, Christiaui so mutuo iu sorvitutem redigero desiorunt" Hn- berus, Prtelectimei, Lib. I. tit. IV. 6. LAW OF UNIVEESAL PEESONAL EXTENT. 105 is not founded on, or supported by this universal jurisprudence, or historical law of nations, its support in the forum of juris diction is then dependent upon the principle of comity, or that principle (the reason and nature of which has been before ex plained, §§ 76-78,) which gives admission to the effects of for eign laws, so far as natural circumstances of condition admit therein of the continuous existence of relations which first arose under the law of the former domicil ; and the foreign law, cre ating those rights and obligations, may receive a personal extent under the authority of the sovereign of the new forum — the forum of jurisdiction. But the operation either of the law of nations — universal jurisprudence- — ^or of the judicial rule of comity, upon the condition of alien persons, may always be contravened by the autonomic legislation of the supreme power. And the legal effect of each is also constantly subject to the limitation of a judicial application of rules, identified. with the local law, (the internal law,) having itniversal jicrsonal extent. For if tho local law attributes any rights, or obligations, universally within its jurisdiction, — ^i. e., to all natural persons, or to all natural persons in certain circumstances of natural condition, tho possession of which is inconsistent with tho relations for merly sustained by such persons under the law of their previous domicil, then the rights and obligations which, in those rela tions, constituted conditions of freedom, or its opposites, cannot, according to the general principles before stated, (§§ 77, 88,) be judicially sustained, nor receive a personal and international extent, under the authority of the sovereign of the forum of jurisdiction, either by force of comity — tho judicial rule — or by being the effects of rules which may antecedently have been actually common among all nations, or have acquired the his torical character of a law of nations. §115. In determining what principles affecting the condi tion of persons domiciled under the local law, (or, in other words, what principles of the internal law,) are to be taken to have this universal personal extent to all natural persons within the national jurisdiction, the most authoritative indication is in such statutory enactments as may give this extent to the atti'i- bution of any right. Next in order are judicial precedents of 106 ATTEIBUTION OF LEGAL PEESONALITT. antecedent tribunals representing the same political source of law ; though, from the manner in which the extent of any prin ciple is judicially determined, sueh precedents are hardly dis tinguishable — separately from the customary recognition of universal jurisprudence, (see ante, §§99, 100.) In countries wherein jurisprudence has long been developed, the test of this universality of extent will ordinarily be found in one or the* other, of these sources of law — either the law of nations, or positive legislation. But if cases, affecting personal condition, are supposable in which these do not apply, it may be taken to be a legitimate result of the axiomatic principles of jurispru dence, rendered legally authoritative by the practice of legis lating states, that wherever (in whatever national, or independent jurisdiction,) the juridical declaration of capacity for legal rights is not made by creating a relative condition of legal superiority for certain natural persons over other natural per sons, but is judicially recognized as the statement of a law in the secondary sense of tli^e word law, or of a mode of existence, antecedent to all rules of action embraced in the positive law of that jurisdiction, it has therein (in that jurisdiction) the charac ter of a law of universal personal extent, Avliich must be judi cially applied as municipal (internal) law, and also as inter national law. Where, therefore, the local, or municipal law, operating as the internal, or territorial law, upon persons regarded as its native, or domiciled subjects, takes cognizance of them as legal persons, as well as natural persons, attributing to them capacity for legal rights and duties, simply as a part or incident of the attributes of natural persons, the constituents of society, it thereby declares, or recognizes a natural law or principle — a law in the secondary sense — which must be re ceived and applied by its tribunals, or judicial officers, as a universal law iu reference to natural persons appearing within its jurisdiction. And, in tliis case, no law of a foreign jurisdic tion regarding a natural person as a thing, or cAaWeZ— the object of rights only, without capacity for rights — can be alloM'ed by those tribunals to have international recognition; unless, by direct act of positive legislation, (statutes, or treaties,) such law of a foreign jurisdiction, formerly binding on the alien, is al- ATTEIBUTION OF LEGAL EIGHTS. 107 lowed to take effefct as a law personal to him, and exceptional to the local, or territorial law. Tlie alien must be regarded, in all judicial processes, like the native or domiciled inhabitants of the jurisdiction, as being possessed of all the rights which the local law attributes to natural persons who are not aliens, and as owing only those obligations which are derived from some law for legal persons, and of such a character that they may be recognized internationally without contravening in other respects the law of natural rights and universal application as judicially known in that jurisdiction.' §116. But personality or capacity for legal rights might be recognized in all natural persons by the laws of one national jurisdiction, though relations might also be established, under those laws, which would give to one person a control over another, such as is inconsistent with the legal possession of per sonal liberty by the latter ; and these rights of control and cor relative obligations of subjection might be internationally recog nized in other national jurisdictions, as the incidents of a rela tion between legal persons. Thus the loss of personal liberty under tho criminal law of another state might be international' ly supported, while tho jjcrsonality of the individual whose freedom is compromised or denied is not disallowed. Or the relations of parent and child, guardian and ward, master and servant, — where the servitude of the latter is involuntary, though not of the chattel character, — might be internationally allowed in a jurisdiction wherein, on the grounds above stated, chattel slavery could be disallowed or ignored, under a judicial applica tion of the private international law. But it is impossible to conceive of a legal attribution of personality without at the same time attributing some definite or specific legal rights, indi vidual or relative {ante §§ 46, 46.) Whenever legal obligations are attributed to a natural person, the law, which creates those obli gations, must enable him by a legal capacity for choice and action, to fulfil those obligations, — recognizing such action to be according to a legal faculty or power of action, — and conse quently recognizing a certain possession of legal rights. It •vould otherwise enable others to act in reference to him simply ' See «M?.(e, § 102. 108 UNIVEESAL ATTEIBUTION OF A EIGHT. as an object ; and so make him a chattel or thing, to which not even legal obligations can be attributed. Legal personality must consist in and by rights, (§§ 43, 44.) Tlie municipal (local or internal) law must make this recognition of personality by the attribution of some rights ; though it is not necessary, and is, indeed, naturally impossible, that all persons should sustain similar relations. Some rights, however, may be attributed to persons which are not incidents of relations of specific persons to other specific persons, or which may be equally attributed to any number of persons ; while others must be taken to be inci dents of relations caused by laws having, necessarily, limited personal extent, (§§ 65-57.) Where by the local or internal law all domiciled inhabitants are recognized as legal persons, irrespectively of the possession of relative rights, ordinarily so called, (§ 40,) and that recognition of legal personality is made, not simply as the attribution of a naked right to life, protected by public criminal law, vindicating the welfare of the state, (§ 46,) but by attributing definite individual or absolute rights, protected by the private law of remedy, — there the local law, attributing those rights, must be looked upon as the recognition of, or statement of, a law in the secondary sense, — a natural law; and those rights be taken to be the incidents of a state of things existing independently of rules of action established by the state. Being of this character it may be judicially taken to be a law of universal personal extent ; that is, one applying to all persons within the power or recognized territorial jurisdiction of that law, and those rights may be attributed to all, as being natural or primordial rights, — that is, rights incident to the con dition of persons in the simple primordial relation of individual members of civil society. Where the right of personal liberty is thus attributed by the municipal (internal) law to each indi vidual domiciled within the limits of a state or national juris diction, it must be taken to be attributed to those natural per sons under a law intended, by its political source, to be a law of uiuversal personal application; which is to be judicially taken to apply to all persons within tho territorial jurisdiction of that biw, irrespectively of their domicil or their previous subjection to other laws or jurisdictions; and this attribution of that riglit THE EFFECT ON STATUS. 109 will be made whenever the condition of a person is to be deter mined under tho private international law of that jurisdiction.' § 117. But where the local (internal) law itself supports rela tions, between its domiciled inhabitants, in which some persons do not enjoy the rights of personal Hberty, or are placed in a condition of obligation, correlative to the rights of others, which may be called a condition or status of slavery or bondage, — there the local law does not attribute the right of personal free dom, nor any other right, — inconsistent with such condition of bondage, — universally, or to all natural persons. And, according to principles before stated, the slave or bond condition of an alien, caused by, or existing under the law of his former domicil, will receive judicial support, or become realized, actualized, or carried out under the " comity of nations " or the judicial rule which is known under that name : being then a legal effect ascribed to the private internd,tional law of the forum of juris- ' Though there may bo a groat want of harmony among the writers who, distin guishing between real, personal and mixed Btatates, have attempted to give general rules for their intemational recognition, they have unquestionably agreed, to a very great extent, in saying that the status, condition or capacity for rights of a natural person is every where judicially determinable according to tho low of his domicil. See Story : Conf. L. ch. iv. and tho older authorities there cited. Savigny : Hent. R. R. B. IU. c. I § 362. Foelix ; Dr. Int. Pr. § 29. This principle has been so often judicially applied . that, subject to certain excep tions, more or less generolly admitted, it may be regarded as a rule of the customary international privalS law of civUlzed states, having the character of a rule of universal jurisprudence. (See a-nte § 93.) But no one exception to this rule is more harmoni ously recognized by the authorities than this, — that the condition of involuntary servitude established by the law of tho domicil, will not be recognized in onother independent territory wherein such a condition Is unknown to the local low. See Story : Conf. L. § 96. Savigny : B. III. c. i. § 849 ; and § 865, A. 7. W«5chter : Archiv. Bd. 25, p. 172. Schseffner : § 34. Foelix : Dr. Int. Pr. § 81, note. PhiUimore : Internat. L. p. 835. These authors, however, do not now explain how the tribunal is to know that the law which it has to determine and administer forbids, in this case, the operation of the general rule. They either state the exception as one founded on the customary international law of all states, or of a certain number of states, or of some one state, (making it o rule of some one uationol low,) or else they assume that the tribunal will derive it by a subjective conception of the wiU of the legislator or juridical sovereign. In other words, they assume that the tribunal must declare the existence of such a condition contraiy to jural rules, Inthe first alternative it is evident that the custom ary international law, either of all states, or of a number of states, or of some one stoto, on this point, may be different at different times ; in the other, that it is the moral judgment of these writers tiiemselves which mokes tho rule, and that it is on a priori assumption on their ports. And there is another deficiency in this reference to the law of the domicil ; for since the domicil of o person is determined, in a great degree, by his own oot of choice, (see Savigny : Heut. B. R., B. III. c. i. § 360, Tf 2,) the question of domicil moy depend upon the status j for since o slave cannot, ns such, elect a domicilj the question of his dom icil may involve a prior determination of his status. 110 EFFECT ON CONDITIONS OF BONDAGE. diction, that is, to a rule identified in its coercive authority with the rest of the municipal (national) law.' § 118'. But though a condition of slavery or bondage may exist under the local (internal) law of the forum of jurisdiction, it may therein be considered accordant with natural reason in respect to certain specific local circumstances ; being the effect of, a law applying to a, portion of the domiciled inhabitants in reference . to tlie existence of those circumstances only, and having a peculiarly local or national character. And, notwith standing the existence of this slavery or bondage, there may be, in the municipal (national) law of the same jurisdiction, a general or universal attribution of personal liberty and other rights inconsistent with the condition of the alien under the law of the foreign state, to all natural persons who are not in those peculiar circumstances of local character by. which, or in refer ence to which, the slavery . existing under the internal law is legalized, i. e. declared jural— consistent with natural reason. In this case the slavery of the alien could not be judicially sup ported on the ground of comity — the rule so called ; because still contrary to principles having (with this recognized excep tion under the internal law) universal extent within that juris diction ; even though the local slavery should constitute a status — a coadition of rights and obligations — very similar in its social consequences to that existing under the foreign law. § 119. But though the bond condition of an alien should not be maintained and continued under the law of the forum of jurisdiction, because contrary to a universal attribution of per sonal freedom under the local law, it does not follow that that condition would not, under the juridical power of the sanu forum, be recognized to have been lawful in the place of his domicil — the foreign country. If, indeed, it is not a necessary consequence of fundamental principles, yet it has always been held, in the customary jurisprudence of every country, that the jural character or rightfulness of every effect of foreign law shall be admitted at least so far as that effect' is confined to the national jurisdiction of that law ; whatever maybe tlie juridical opinion of other sources of law respecting such effect as the ' Compare ante § 68, note. LIMITS OF TIIE EFFECT. Ill basis of rights and obligations to be enforced within their own jurisdictions. In other words, the relations or actions created or allowed by a foreign law are customarily recognized to have been rightful, in and for its own domain ; even when rights and obligations incident to those relations or actions are not main tained or continued in the forum of jurisdiction. Therefore, although the right of an alien master in respect to his slave, sanctioned by, or existing under the foreign law— the law of their domicil — should be disallowed in the jurisdiction to which they are alien, yet, under a judicial application of natural reason, (that is, irrespectively of positive legislation,) it will be held to have been jural or rightful, as well as legal, in the for eign country — the domicil of such master and slave: or it will, at least, not be held to have been a violation of rights which in tlie forum qf jurisdiction maybe attributed to the slave, nor the subject of legal remedy in that forum. § 120. By tho same reasoning it M'ould appear that oven where, under the laio of the forum, the right of the alien mas ter created by the law of their domicil would not continue, or be maintained as against the slave, yet rights and obligations existing under the latter law as between the inaster and third parties, in respect to the slave, would still be recognized and maintained. The validity of the master's right in and for the place of his foreign domicil being admitted, would lead to a judicial recognition of the obligations of third parties correla tive to that right. The right of civil recompense for violation of his right as master, in the place of his domicil, might, there fore, be maintained against third parties in a jurisdiction wherein the relation itself, as between the master and slave, could not continue. So, too, contracts founded upon the owner ship of slaves in foreign states would be judicially recognized, and the rights and obligations growing out of them be judicially maintained in jurisdictions wherein, under the private inter national law, the condition of slavery as between the alien owner and his chattel slave, or bondsman, could not continue.' ' But in some systems of municipal (national) law o character of immorality is oscribed to certain aotions which prevents them from becoming, under the jurisdic tion of those systems, the basis of legal rights and oblig.ations ; even though they may hove created such rights and obligations in and for the foreign jurisdiction where such action took place. Compare Robinson v. Bland, 2 Burr., 1084. 112 EEGAED TO DOMICIL. § 121. The operation of law upon the relations of private persons is a consequence of their being actually within the ter ritorial dominion of the sovereign state or nation from whom that law proceeds. But, as has been stated, (§ 54,) those cir- * cumstances which, in international jurisprudence, are techni cally called domicil, determine in many cases whether the condition of a person shall be controlled directly by the law of the jurisdiction (the internal law) in which he is found, or, indi rectly, by that of some other to which he may have formerly been subject. In many instances, the intention of the person to acquire a new domicil will be held to vary the legal nature of his relations both in respect to persons and in respect to things. Servants, or slaves, eitlier with or without their mas ters or owners, may appear in a foreign jurisdiction, (a jurisdic tion other than that of their domicil,) either as aliens seeking a new domicil therein, or as temporary inhabitants, still continu ing, in view of the law of the forum, to have their former domicil. But, in a judicial application of natural reason to the condition of either of these classes of aliens, the principles which have been herein before stated are equally of force. Whenever by the operation of these principles, or by positive legislation, the slavery of an alien person is continued after a change of domicil, it becomes a result of the municipal (in ternal) law of the jurisdiction of which he becomes a domiciled subject. In the other case, — that is, when the domicil is not changed, it is, from the continuing alien character of the person, a result of the private international law of the same forum. § 122. It is always to be remembered that the international recognition of personal condition which has been considered in this chapter is only & judicial act, detennined by general prin ciples of jurisprudence, and that it is always subject both to the customary law on the subject (anterior judicial practice) which may have prevailed in the forum of jurisdiction, and also to the positive legislation of the sovereign of the forum, giving an original rule extending, or limiting, the entire judicial discre tion of its tribunals." Tlie action of the state, or nation, being, as compared with the action of its tribunals, autonomic, or in- ' Schajffner : § 81. Sovigny : Heut. R. R., B. III., o. i., § 361 A. 8UPEEMA0T OF LEGISLATOR. 113 dependent of law, in admitting or rejecting a foreign law upon the ground of comity, or in receiving or repudiating a principle before ascribed to the law of nations — universal jurisprudence. Note. — In connection with the province of the judicial officer in thia respect, a principle cannot be forgotten by American tribunals which is no where so fully Ulns- tratod as in the jurisprudence which they apply ; bnt in stoting which, in on ele mentary essay, it may be weU to cite an outhority of foreign origin. Waechter, in a note to the passage herein before cited, (§ 84, n,) after the words — " that the reqtu- sition of a constitutional form ond the Umits of constitutionol power alone determine its Tolidity'' — i. «., validity of the statute — observes: (Tr.) "The determination of thia must, unquestionably, appertain to tho judge. That is to say — in our constitutional states — he is bound, in dispensing the law, to follow the legislative dispositions of the government only when they conform to the requisitions of the constitutional law. It is true that he is merely the servant and instrument of the law, (Rechtsgesetzes,) but, certainly, he is the servant of a valid law (Gesetzes) only. It is, therefore, both his province and his duty, before applying a rule which claims to be a law, or an exercise of the legislative function, to examine, according to the existing constitutional low, whether it actually is a law, — that is, whether it has those qualities which, according to the constitution, mnst belong to a vaUd law. If these are wanting, it is his duty not to regord the decree as a valid law. It is tme that this has of late been denied by, &c., [citing a German vraiter.] Bnt this opposite view would make the judge, in his fnnction, the subject of the executive power, [that is, in a state where the ex ecutive and legislative functions are not clearly separated,] and destroy both his con stitutional independence and the right of the citizen, which is, to owe a constitutional obedience, only, to the executive power," &c., &o. [Giving the German anthoritiea.] CHAPTEE m. OF THE ESTABLISHMENT OF MUNICIPAL (nATIONAL) LAW IN THB ENGLISH COLONIES OF NORTH AMERICA. PERSONAL EXTENT OF THE COMMON LAW OF ENGLAND. § 123. It has been shown in the first chapter in what sense it may be said, that the extent of territory over which any pos sessor of sovereignty shall exercise dominion is determined by public international law (§ 51). When changes take place in the geographical limits of the domain so held by the pos sessors of sovereign powers, the same law, or more strictly, per haps, those principles of the law of nations, — universal jurispru dence, — which enter equally into municipal and international public law, and are sometimes denominated the natural or neces sary law of nations, may be regarded as determining the munici pal (national) law which shall thereafter prevail in the territory thus transferred or acquired ; at least until the new sovereign has exercised empire in establishing or promulgating law by positive enactments. Where such territory has been previously occupied by a nationality having a political organization, with sovereignty manifested in the promulgation of laws, it is a prin ciple of the law qf nations entering into international and mu nicipal law, which, if not also a natural or necessary principle, has always been received in the customary jurisprudence of civ ilized states, that the laws formerly prevailing with territorial extent therein remain in force, and act as before upon all pri vate persons within that territorial jurisdiction until changed LAW AFTER CONQUEST. 115 by the new sovereign ; ' with the necessary exception of the pre viously existing public law or law of political constitution, which is implied in the supposed fact of a change of dominion, and also with an exception which is based upon the jural char acter of states promulgating law as the rule of right, viz: that former laws become abrogated, by the act of acquisition, which are contrary in effect to rules which, by the tribunals of the new sovereign, are taken to have a universal extent; or which, it may be said, are taken to have moral force in human relations, as natural principles, independently of the will of the state ; or which, in the language of Blackstone in a passage hereinafter cited, are taken to be part of " the law of God," as interpreted by the new possessor of sovereignty, — and so held to be univer sally applicable.' Where the territory acquired has been previ ously unoccupied by any such power its future laws, that is, the laws which shall therein prevail as the territorial law, must originate in tho authority of the sovereign acquiring it. § 124. It is a principle of the law of nations, contained in ' Bowyer : Univ. Pub. Law, p. 158. Sir Wm. Jones : Inst, of Hindu Law, Art. 203. " In tho part regarding the duty of the royal and military caste or Kchatrlyas, it is laid down, thot after a king has conquered a country, he ought to maintain the laws of the conquered nation as they have been promulgated." • * " The preservation of the Hindu law after the Mohammedan conquest is o remorkable fact, as the Mo hammedan law has no provision resembling the laws of Manon mentioned above, but on the contrary does not tolerate the lows of a conquered nation." Clark's Colonial Law, p. 4. Campbell v. Hall, Cowp. 209. Duponceau on Juris diction, p. 65. I Kent's Comm. (7th Ed.) p. 178, note. ' 2 Peere Williams, 75, (1722,) it was said by tho Master ofthe Rolls to have been determined by the lords of the Privy Council, upon an appeal from the foreign planta tion. * « * "8d. Until such laws be given bythe conquering princo, the laws and customs of the conquered country shall hold place, unless when these are contrary to our religion or enact any thing that is malum in se, or are silent; for in all such cases the low of the conquering country shall prevail." To this extent only is the ex ception to the general rule true which is made in Calvin's case (17 Coke, R. 7) — "if a Christian country is conquered tho laws remain, but if it be infidel, the laws of the infidel a)e ipso facto abrogated," etc. In Blankard v. Galdy (1694), us reported in Salkeld, 411, tho court "held that in the case of an infidel country their laws do not entirely cease but only such as are against the law of God." It would be difficult to find an illustra tion of such exception in the whole history of British conquest ond colonization. For when lands occupied by savage tribes hove been acquired, the country has been taken to hove had no territorial law. In Campbell v. HoU, Cowp. 209, Lord Monsfield (1774) said : " The laws of o conquered country continue in force until they ore oltered by the conqueror; the ohsurd exception as to Pagans, mentioned in Calvin's case, shows the universality and antiquity of tlie maxim. For that distinction could not exist before the Christian era, and in all probability arose from the mad enthusiosm ofthe Croisades." Whether laws allowing torture have been abrogated by British dominion, see Stokes on the Colonies, p. 11, Mostyn v. Fabrigas, Cowper's B. 169; Sir Thomas Picton's case, 30 HoweU's St Trials. Report of the Madras Torture Commission. 116 PERSONAL LAWS COLONIZATION. the first and second of the three maxims, stated in the previous chapter, which enter into the foundation of international and municipal law, that, so far as laws are territorial in their extent, persons passing from one territory to another change at the same time the municipal (national) law to which they are sub ject. But laws also have a distinct personal extent when sus tained, as applying to certain persons, by some sovereign power having jurisdiction over them. This personal quality of laws is manifested in colonization ; where the laws which prevail in the territory colonized depend upon the extension given by the sovereign of the colonist to the laws binding on him in his original domicil. In order that the personality of laws may be thus manifested in colonization, or that laws may thus accom pany colonists beyond the limits of their former domicil, it is evident that the sovereign national power, from which that law proceeds, must also be sovereign over the territory to which the person is transferred. Herein the maintenance of personal laws in colonization is part of the municipal (internal) law of some one state, and differs from that recognition of the law of a for eign domain, as a law personal to an alien immigrant, which may be made in international law. And here it is evident that the exposition of laws in their personal and territorial extent implies a knowledge of such terms as sovereignty, domain, na tive subject, alien subject, &c., which are explained by those axioms or definitions which make the necessary law of nations, and are presupposed in international and municipal law.' § 125. From the earliest instances of the political annexation of foreign territories to the dominion of the British crown, there has been much dispute in English jurisprudence respecting the personal extent of the laws of England in reference to such ter ritories.' The occupation of countries in the Western Continent [ Ante §§ 48, 49. • A. D. 1607— Calvin's cose, (cose of the Post-noti in Scotland,) 7 Co. R. 17; Le cose de Tanistrv (under Brehon law of Ireland) Davis's R. 28 ; 1666 — Vauchan R pp 290, 402, (relating to Ireland and Wales) ; 1684— Wytham v. Dutton, 3 Mod. 1 60 ; rel versed in 1694— Dutton v. Howell &c., Shower's Pari, cases, 24 ; 1694— Blankard v Galdy, 4 Mod. R. 215, and Salk. 411; 1705-:-Smith v. Brown & Cooper, Salk. 666" Holt R. 495. Smith ». Gould, Salk. 667, and 2 Lord Rayra. 1274; 1769- Rex i;' Vaughan, 4 Burr. 2500; 1774 -Mostyn v. Fabrigas, 1 Cowp. 161 and Campbell t>. HaU, 1 Cowp. 204; 1802-Collett „. Keitli, 2 East, 200; 1817— Atty. Gen. v Stew- blackstone's DOOTEINE. 117 before unoccupied by civilized societies, presented an unprece dented question of jurisdiction. The leading authorities on this point are thus summed up by Blackstone (Comm. Introd. p. 107) in a passage often cited : ' " Plantations or colonies in dis tant countries are either such where the lands are claimed by right of occupancy only, by finding them desert and unculti vated and peopling them from the mother country, or where, when already cultivated, they have been gained by conquest or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonic^ with re spect to the laws by which they are bound. For it hath been held, (2 Salk. 411, 666,) that if an uninhabited country be discov ered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, (2 P. Wins. 75,) are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony; such for instance as the general rules of inheritance and of protection from personal injuries. Tlie artificial refinements and distinctions incident to the property of a great and com mercial people, the laws of police and revenue, the mode of maintenance for an established clergy, the jurisdiction of spir itual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore they are not in force. What shall be admitted and what rejected, at what times and under what restrictions, must in case of dispute be decided in the first instance by their own provincial judica ture, subject to the revision and control of the king in council : the Avhole of their constitution being also liable to be new-mod elled and reformed by the general superintending power of the art, 2 Mer. IfiO ; 1824— Forbes v. Cochrane, 2 Barn. & Cress. 463; 1836— Beaumont V. Barret, 1 Moore's coses before P. C. 75. , . ,, ^. „ SimUnr questions must have arisen within England itself upon the Norman con quest, ond before that event, npon the union of the Anglo-Saxon monarchies under Egbert A D. 827. The local customs of England, such os govel-kmd, were nothmg elle th'an the remaining common law of certain districts formerly constitutmg inde pendent sovereignties. ,. ,,., ' See Atty. Gen. v. Stewart, 2 Merivale, 159. Story Comm. § 151. 118 THEOEY OF THE COLONISTS. legislature in the mother country. But in conquered or ceded countries that have already laws of their own, the king may in deed alter and change the laws ; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the laws of God, as in the case of an infidel country, (7 Kep. 17. Calvin's case. Dutton v. Howell, Shower's Pari, cases, 31.) Our American plantations are principally of this latter sort, being obtained in the last century, either by right of conquest and driving out the natives (with what natural justice I shall not at present inquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there ; they being no part of the mother country, but distinct, though dependent, dominions. They are subject, however, to the con trol of the parliament, though (like Ireland, Man and the rest) not bound by any Acts of parliament unless particularly named." § 126. The theory generally maintained by the crown law yers, anteriorly to the American Kevolution, seems to have been, that the common law, in being the law of the rights of Englishmen, was so, only so far as it was the territorial law of Great Britain ; that it determined the rights of British subjects only while in England, and that when in any colony, or other particular district forming part of the Empire, their rights would be determined entirely by a law having a like territorial extent in and for that colony or district : a law which could originate solely in the will of the king, or of the king and parlia ment, legislating for that colony or district, as a several territo rial domain.' This theory, and the inferences which those ad vocates of the roj'^al prerogative who admitted Blackstone's al- tei-natives, based upon his assumption that the American colo nies were " principally of the latter sort," were not only con stantly controverted by the colonists themselves, but by many English publicists of the time." And it must now be taken as a ' Chitty on Prerogatives, c. iii. Chalmers's Hist of Revolt of Am. Col. vol. i. p. 802. 1 Salk. 666. American Tracts, vol. i. ; Dummer's Defence of the N. E. Char ters, p. 49, — " And to complete the oppression, when they upon their trial claimed the privileges of Englishmen, they were scoffingly told, these things would not foHow them to the ends of the earth : unnatural insult, &c." » lieeves's Hist of Law of Shipping, p. 138. 1 Chalmers's Opinions, pp. 23, 195, 220. 2. Chalm. Op., p. 202, 209, 240. Dr. Richard Price's Observations on Civil Lib. &c., pub. 1766. OHAETERED EIGHTS. 119 settled axiom of American law, that the territory of the colonies was claimed by right of occupancy, or by finding it "desert and uncultivated ; " and that the common law of England first ob tained in that part of the Empire as a law personal to the Eng lish-born colonist.' Besides the effect of this principle, all the charters, with the single exception of that of Pennsylvania,' declared that the colo nists and their children should have all the rights of subjects born in England.' § 127. But, it being supposed that the common law of Eng land was thus transplanted with the British colonist to America, and was there operative in determining his rights as a private person, another question, or one which was the same question — regarded as a matter of pubhc law — arose, — upon what politi cal authority would the continuance of that law, as the territo rial law of that colony, thereafter depend ? According to the views of the English lawyers, at the time of the settlement of the colonics, the patent gave a title to the soil, but prerogatives of government could only be exercised under a charter from the crown.* With the exception of the first charter of Yirginia, of 1606," the royal charters, in consti tuting the colonial governments, provided that the local legisla tion should not be contrary to the laws of England, or that it should be conformable as near as might be to the laws of England ; and besides this, the charters, as before noticed, guar anteed to the English colonists and their descendants the rights of subjects born in England.' ' Story's Comm. §§ 152-7, and the numerous authorities cited there ; ond for the modern English doctrine, Chitty on Prerogatives, p. 80. Chittys Commer. Law, vol up. 639. Rex ». Brampton, 18 East's B. 288. Mr Jefferson, however, olways derided this pnnciple of the personal extent of the common law. See Jefferson's Correspondence, vol. iv., p. 178. Jefferson, being of the o priori or " law of nature " school, could bo at no loss for a basis upon which to rest such rules of action as he might approve of. « Story's Comm. § 122. , u .« ,, ' See post, ch. vi. Story's Comm. B. I. ch. 16, 17. ' 1 Banc. 821. 1 Hild. 175. ,,..,. " 1 Hen. Stat 67. 1 Banc. 122, 136. The code of regulations made by the king, however, required that tho local ordinances should conform to the lows of England, and should not touch Ufe or limb. Story's Comm. § 44. , ¦ loi ..t„ • In reference to the first charter of Virgima, 1606, Bancroft says, vol. l 121: "To the emigrants it was promised that they and their children should continue to he Eng- lishmen-a concession which secured them rights on returmng to England, but offered no barrier against colonial injustice." In this view the guarantee of the nghts pos- 120 BASIS OF LEGISLATION. Tliere were some very material differences in the political constitution of these colonial governments in being respectively either chartered, proprietary, or provincial.' This difference in the investiture of political rights naturally occasioned, in the earlier period of their settlement, important differences between the colonies in respect to the recognition of private liberties, or the foundation of the rights of private individuals under public law. § 128. The New England colonial governments were, how ever, also based on an extraordinary foundation, having, within their several jurisdictions at least, a recognized political exist ence and validity, in the voluntary compact of those in each who agreed in constituting themselves the original " freemen," and in their individual acknowledgment of the power of the whole body of freemen ' to legislate as a political state by the voice of the majority. The first settlers of Plymouth colony in Massachusetts en tered into a compact for government before the landing, by which they combined themselves together into a civil state or body politic, mutually promising " all due submission and obe dience" to "such just and equal laws and ordinances, acts, con stitutions and officers from time to time as shall be thought most meet and convenient for the general good of the colony ; " ' and under this voluntary association they afterwards gradually as sumed, without any charter from the crown, all powers of gov ernment for local purposes.* The governments of Ehode Island, sessed by every EngUshman in England by the low of the lond did not operate as a law in the colony. But this is not the view of the effect of such a guarantee which has been taken by most writers on this subject It is generally considered to have had the same effect os the provision afterwords inserted in the charters, that the local legisla tion should not be contrary to the laws of England. The local government, under the second Virginia charter ond the extraordinary grant of power to the councU of the company in England, therein contained (sections 13, 23), seemed to have attributed no effect to the guarantee of rights in the individual colonists. " A code of martial low was at one period the law of Virginia. Servitude for o limited period wos the com mon penalty annexed to trifling offences." 1 Banc. 151, 152. ' 1 Bla. Comm., p. 108. Chitty : Commer. Law, i. p. 643. Chitty on Preroga tives, p. 30. Curtls's Hist of the Constitution, i. pp. 4, 5. " The freemen being, however, only a limited number of the inhabitants and their acknowledgment, even if moraUy and politically justifiable, being in some sort a usurpa tion, that is, having no original foundation in public law. ' 1 Cholmers' s Annals, p. 102. I Bono. 309. * Story's Comm. §§ 55, 66. 1 Banc. pp. 320-323. 2 Hutch. Hist., App. i. NEW ENGLAND GOVERNMENTS. 121 Hartford and New Haven, were first formed under voluntary compacts. ' The authorities of the colony of Massachusetts Bay, though claiming to act under the charter of government of 1628 to the freemen and associates or corporators of the Company organized in England, which contained provisions guaranteeing common law rights to the colonists and limiting the legislative power of that Company, acted from the outset under a view of their independence of the imperial authority, which differed essentially from the political doctrines entertained in the more southern col onies, whose constitution had been more definitely settled at their foundation. In Massachusetts, the original emigrants and their immediate successors regarded themselves as founding a state on principles of natural ethics and revealed religion, indepen dently of any positive law derived from a pre-existing political au thority. ' In this original charter there was no provision se curing to the actual colonists, as inhabitants who might or might not be connected with the corporate body in England, any share in the local government ; ' and the elective franchise, or the capacity of being a freeman of the colony, even after the trans fer of the corporate government from England to America in 1629, was made by the grantees of the charter, or the so called " freemen " and associates of the Company, to depend on church membership.* Their civil polity being in a great degree iden tified with their ecclesiastical constitutions, the scriptures of the Old and New Testaments were for a time regarded as part of their civil law as well as the highest rule' of moral duty. ' The ' 1 Banc. 892, 402. 1 Chalmers's Annals, 269. 1 TmmbnU's Hist, 27. 1 Pit kin's Hist, 42-47. 'Reeves's Hist Low of Shipping, p. 138. Story's Comm., § 67. 1 Banc. 432. 1 Hutch. Hist. p. 251, 2d ed. It wUl be remembered that the politicol institution of all the other New England colonies was, in a certain degree, derived from or based upon the pre-existence of the Massachusetts colony. See post, ch. vi. ' 1 Hild. 180. Story's Comm. § 63. * Ancient Charters &c., p. 117. 1 Hutch. Hist. p. 26, 83., Note. 1 Holmes's Annals, 261. 1 Banc, 360. "The servant, the bondman, might be a member ofthe church and therefore a freeman ofthe Company." This is very unUkely ; it was probably assumed that tho elector should also be a person sat juris ; women and minors, if members ot churches, were not therefore electors. » 1 Mass. Records, p. 174. 2 Hutchinson's Hist p. 3. "From 1640 to 1660 they approached very near to on independent commonwealth, and during this period com pleted a system of lavrs and government, the plan of which they hod before laid and 122 QUESTION OF POWEE. restriction on the local government by the law of England was from time to time acknowledged by the authorities. As in the declaration of the General Court in 1661, entitled—" Concerning our Liberties;" Art. 6, "The Governor, Deputy Governor, As sistants and Eepresentatives or Deputies have full power, &c. ecclesiastical and civil, without appeal ; except laws repugnant to the laws of England." • But, until the remodelling of the colonial government of Massachusetts under the charter of Wil liam and MaTry, 1691, constituting a provincial government su perseding the two governments of Plymouth colony and Massa chusetts Bay, the General Court, constituted either of the " free men" in person, or their elected representatives, in exerting powers which were contested as derogatory to the supremacy of the king and parliament, or contrary to the public law of the Empire, sometimes exerted them in a manner derogatory of com mon law rights in their fellow-subjects — ^rights existing under the guaranteed private law of the colony.* For a long period after their first settlement the New England colonies seem to have begun to execute. In this they departed from their charter, and instead of making tho laws of England the groundwork of their code they preferred the laws of Moses." ' 1 Hutch. Hist app. xiii. ' 1 Hutch. Hist p. 82, 94, and 2 do. p. 12. Protest of Maverick and Child in 1646. 1 Hutch. Hist p. 145. Answer of CouncU for theN. E. colonies to the Privy Council on Morton's petition, 1634. 1 Hutch. Hist 251, 2d. ed. 230, 3d. ed. ; his view of the Mossochnsetts theory of government. 2 Chalmers's Opinions, p. 81. 1 Hild. 188, 193, 218, 247, 263, 266, 270, 279, 818. Cose of the Brownes (1629), see Chalmers's Political Ann. p. 146. Young's Chron icles of Mass. p. 287, note. 1 Grahame's Hist. p. 217. In Connecticut revised laws of 1821, Title 94, Societies. — " An act relating to religious societies and congregations," a note is appended, giving on interesting summary of the legislation ofthe colony and State bearing on this topic. It is there remarked : " Tha object of our ancestors in emigrating to the country, was to enjoy their religion, not only free from persecution, but without interruption from Christions of different sen timents. They wore desirous of maintaining o uniformity of doctrine ond of worship. Tbe true principles of religious Uberty were not then known in any Christian country, ond toleration was not the virtue of the age. Accordingly, on their arrival they formed on ecclesiastical constitution," &c. &c. The point to be noticed hero is not that they had wrong ideas about tho rights of conscience and religious worship, (which may or may not be true,) but that they usurped a prerogative of sovereignty over their feUow- subjects. It may be admitted that the enforcement of the true creed and form of wor ship is the duty of the state, aud that the creed and form of worship adopted hy tho colonists was the true one. Still the question is — hod thoy the legal right, by public low, to exclude from their limits or otherwise punish those of their fellow-suhjeots who, in England, might have equally differed from them and yet have been unmolested by the law of the land ? For other recent defences of the New England governments, see North Am. Quort. Rev., Oct 1861, Oct. 1863, and among the onnual oddrosses before the New England Society in N. Y. the discourse of J. P. HaU, Esq., Deo. 22, 1847. BILLS OF EIGHTS. 123 acknowledged no basis for the liberties of the individual in habitant beyond the will ofthe local power. And, whether they were, severally, at particular periods oligarchical,' or pure democ racies, the government representing the will of the majority of the electors claimed to be the possessor of a sovereign power in matters of private law. § 129. From time to time declarations were made by the dif ferent colonial governments, with greater or less solemnity, in form nearly approaching Magna Charta and the English bills of rights, in which " the law of the land " was referred as the safe guard of the rights and liberties of the free inhabitants. But these appear to have bee a put forth, like their great originals at the time of their promulgation, rather as guarantees against viola tions of the laws of the land by arbitrary executive power, than as appeals to common law and those charters and bills of rights as of constant effect against the supremacy of the legislature.' They were probably meant for protests against tho arbitrary action of the imperial government, whether legislative or executive, rather than pledges against the abuse of that power which was deemed to be vested in the local government. In some instances where the common law of England was recognized by the colo nial autliority as the foundation of the rights of private persons, the power of sovereignty to alter that law was at the same time implied to be resident in the provincial government ; as by the declaration in the Plymouth laws, published 1636, in the first article — " we the associates of the colony of New Plymouth, coming, hither as freeborn subjects of the kingdom of England, endowed with all and singular the privileges belonging to such, &c." — and in the fourth article — " that no person in this gov ernment shall suffer or be indamaged in respect to life, limb, liberty, good name or estate, under color of law or countenance of authority, but by virtue of some express law of the General Court of this colony, or the good and equitable laws of our na tion, suitable for us in matters which are of a civil nature, (as by ' Comp. Washburn's Judicial Hist of Mass. Ch. 1. Lechford's Plain Dealing, writ ten about 1640 (see Mass. Hist CoU. 8d series, vol. iu.) 1 Hutch, Hut p. 94, note. 1 Banc. 431-435. ,3 Banc. 15-19. 1 Hild. 233. ...,,„„ ,. ai- a ' Compare Report of the House of Delegates, Virgmia, 1799, on the Ahen and Sedition laws, Randolph's Ed. p. 220. 124 COMMON LAW EIGHTS. the court here hath been accustomed,) wherein we have no pai^ ticular law of our own," &c. And very similar in effect to this was the act of the legislature of South Carolina in 1712, recog nizing the binding force of the common law, as modified by certain specified statutes in amendment of it, " but only when not inconsistent with the particular constitutions, customs and laws of this province." ' § 130. A power in the common law, operating as a personal law to limit the extent of colonial legislation in matters of pri vate law was, however, in the colonies themselves, constantly asserted. by those who believed their native rights infringed un der colonial laws, whether the body promulgating those laws existed on the democratic basis, or as the organ of a provincial prsetor, or of an individual proprietor. In Massachusetts the aristocratic and theocratic parties were compelled to abandon their view of the foundation of their civil state by the interven tion of the royal power and the infiux of immigrants entertain ing different opinions in matters of religion or of ecclesiastical polity.' And in all the colonies the equality of all free subjects of the empire, in respect to the rights of civil citizenship under the local government, became established. Even in the prov inces acquired by conquest, the personal extent of the common law was constantly claimed by the English inhabitants.' Tlie Duke of York's patent or charter of the provinces acquired from Holland, empowered him and his assigns to govern the inhab itants by such ordinances as he and his assigns should establish ; but the assembly of East Jersey in 1680, told the governor that it was not on the king's letters patent to the Duke of York, but ' 2 mid. 275, and see post, Ch. vi. Laws of S. C. Knickerbocker's Hist of New York, B. rv. c. 9. "In fact the Merrylanders and their cousins, the Virginians, were represented to WUUam Kieft as offsets from the same original stock os his bitter enemies the Yano- kies, or Yankee tribes of the East : having both oome over to this country for the liberty of conscience, or in other words, to live as they pleased : the Yankees taking to proy- ing and money-making and converting Quakers ; and the Southerners to horse-racing and cock-fighting and breeding negroes." » See the King's letter of June 28, 1662, in Moss. Records, Vol. iv., part 2 pp 164, 167, and resolutions of the General Court modifying the requisites for the eled tive franchise, in the same, pp. 117, 562; also in Charters, &c., p. 117, ond chorter of 1691, in the same, p. 28. Story's Comm. § 71. 1 Banc. 431-435. " In 2 Conodion Freeholder, pp. 168, 172, it is orgued that Now York was not con sidered by the king as a conquered country, but as o part of the more ancient colony of New England. And see 1 Smith's Hist, N. Y., App., o 6 THE PUBLIC LAW. 126 on " the great charter of England" that they relied as " the only rule, privilege and joint safety of every freeborn Enghshman." ' The colonists claimed that the common law, thus having a personal extent, fixed their social and civil rights as much as those of British subjects in England, and that this was a protec tion against both the colonial and the imperial legislative power when acting separately ; in short, that their rights known as common law rights, or the rights of the free subject of British birth, could not be divested except by a national law — national because applying to theBritish subject in England as well as in the colony, and that in the making of such law their several will was entitled to be represented, as an element of the national will, in virtue of the common law regarded as the public law of the empire, or the law of political constitution." During the colonial period in the eighteenth century, the ex tent of the common law of England in determining the rights of the British-born colonists and their descendants, in America, became generally recognized in matters of private law. The question of its operation in the public law of the empire, or in determining the public rights of the colonists, continued to be the subject of controversy between them and the parent coun try, terminated only by the revolution. For it was by resting on the common law, as the public law of the nation, that the colonists claimed to be governed by laws in the making of which ' Leaming & Spicer's Col. pp. 681, 682. 2 HUd. p. 60. ' An Historical Discourse of the Uniformity of the Government of England, by Na thaniel Bacon, of Grais' Inne, (1647) p. 65. "The next and most considerable degree of all tho people is that of the Free men, anciently called Frilingi, or free born, or such as are borne free from all yoke of power, and from aU Law of compulsion other than what is made by his voluntary consent ; for all freemen have votes in the making ond executing of the generoU Laws of the Kingdome," &c. N. Y. Evening Express, Dec. 23, 1843. Hon. Rufus Choate's Oration before the New England Society in New York : speaking of the residence of certain EngUsh Puri tans in Geneva, Switzerland, 1553-1658, and its influence upon them, — " There, was a state without a king or nobles : there, was a church without a bishop : (tremendous applouse,) there, was a people governed by laws of their own making and by rulers of their own choosing." If the Pilgrim fathers found In Geneva the model of their infant state, it would be a curious suliject of inquiry, whether Gcnevo was at that time an oligarchic or o democratic republic, according to the modern definitions (see London Cycl. voc. Genevo). But in whatever the Massachusetts colonists may hove found their beou-ideal, the civil liberty of the nation which calls itself the People of the United States is in n great degree attributable to the fact that their state wos not " without o king ; " and if religious liberty has successfully been mnintained in the States that witb just pride venerate them as the founders, it iniglit better be said — it was not because there was no bishop, but because bishops were so niaiiy. 126 SOUECE OF LAWS. they had themselves shared by their representatives ; and, be cause unrepresented in parliament, they denied its power to leg islate for them in local matters.' § 131. But the power of sovereignty to alter all private law must have existed somewhere, so far as such a power can exist ; and, as to the colonies, it was to be found, according to either the tory or the liberal theory — in the parliament of England, the king and the colonial legislature ; according to the nature of the subject, either severally, or all united. The limits be tween these co-existing sources of law were never systematically defined, and naturally received a variety of construction. But, whatever may have been the true legal limits of the power of parliament in reference to the colonies, since their international and commercial policy still continued, of necessity, to be con nected with that of England, the statutes of parliament affect ing such relations must have been indisputably operative during the colonial period." The legislative declarations of the colonial governments, in the nature of bills of rights, even if not intended only as bulwarks against arbitrary executive power, seem to be founded on the theory that a parliament, or the constituted legislature, is the depositary of the sum of sovereign power, and the source and ultimate arbiter of all law;' and this, whether the colonial legislature was considered as formed by royal charter, or by the voluntary consent of the freemen of the colony.* It has sometimes been asserted by English jurists that the power of the British parliament is controlled, to some degree, by common law ; which control might be exercised by the judges, in declaring its acts void ; and that under the term common law ¦ 1 Banc. 442. Duponceau on Jurisdiction, Pref. ix. Declaration of the Congress of the nme Colonies, 1765 :— Story's Comm., § 190. 1 Pitkin's Hist 235, 286, 840, 844. " Smith's Wealth of Nations, B. iv. o. 7. 1 Chalmers's Opinions, p. 201. Chitty on Prerogative, o. iii. Stokes : Const of the British Col. Declaration of Rights of the Continental Congress, 1774, Resol. 4. Story's Comm. § 194, note. Virginia Report of 1799, (alien and sedition laws,) Randolph's Ed. 1850, p. 212. Curtls's Hist, of the Constitution, i., p. 20, 21, and generally on these points. Story's Comm. B. i., o. 16, 17. ' This is the doctrine of 1 Chalmers's Opinions, p. 1 . * Unless in Connecticut and Rhode Island, during the early periods of their politi cal existence, the body of the electors or " freemen," may be taken to have been the actual government and possoESor of political power. Compare Bancroft's Hist vol. i., for the political history of these colonies. LEGISLATIVE POWEE. 127 natural right or reason is included, as a rule of distinct existence, capable of being separately recognized by the tribunal. Thus Sir Henry Finch, in a Treatise on the law of England, pp. 74-76, de clares, that positive statutes contrary to common law, reason and nature are void ; and in Bonham's case, 8 Coke, 118, it is said, " and it appears in our books, that in many cases common law doth con trol acts of parliament ; for when an act is against common right and reason, or repugnant, or impossible to be performed, the com mon law will control it and adjudge such acts to be void ; " citing some of the older cases, wherein common law rules of the most constant application have been used to limit the apparent effect of Acts of parliament. And by Hobart, C. J. it is said that " an act of Parliament made against natural equity, as to make a man judge in his own cause, is void in itself, for jura naturae sunt immutabilia, and they are leges legum." (Day v. Savage, Hobart's E. 87.) Holt, C. J. in The city of London v. Wood, 12 Modern R. 688, says that parliament can do no wrong ; though it may do several things that look pretty odd ; that it may dis charge a man from his allegiance, but cannot make one that lives under a government both judge and party ; that it cannot make adultery lawful, though it may annul the marriage of A with J? and make her the wife of (7." But Coke, in 4 Institutes, 36, says of the power of parliament, that " it is transcendent and absolute, and that it cannot be confined, either for causes or persons, within any bounds." And Blackstone, in 1 Comm. p. 161, says that " it can do everything that is not naturally impossible," that "it hath sovereign and uncontrollable authority in the making, con firming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible de nominations, ecclesiastical or temporal, civil, military, maritime or criminal ; this being the place where that absolute despotic power, which in all governments must reside somewhere, is in trusted by the constitution of these kingdoms." ' With regard to laws impossible to be executed they must be of necessity, legally as well as naturally, void, since no judicial ' And compare Bacon's Abridg, Statutes, A. Dwarris on Stotutes, pp. 642-647. The passoges in Brocton, Fleta and the Mirrour which speak of the law of nature os immutable by the legislative power of the state, are only repetitions of the language of Justinian's Institutes, ond must receive the same exposition. See the next chopter. 128; LEGISLATIVE POWEE. or executive power can give them an effect contrary to their own nature. Blackstone says, Comm. vol. 1, p. 91 ; " Acts of pariiament that are impossible to be performed are of no validi ty ; and if there arise out of them collaterally any absurd conse quences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions ; though I know it is generally laid down more largely, that acts of parliament contrary to rea son are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know no power in the ordinary forms of the constitution that is vested with authority to control it : and the examples usually alleged in support ol this sense of the rule do none of them prove, that where the main object of a statute is unreasonable, the judges are at lib erty to reject it : for that were to set the judicial power above thatiof the legislative, which would be subversive of all gov- ernment." Mr. Christian's note to this passage concludes as fol lows: — "but. where the signification of a statute is manifest, no authority less than that of parliament can restrain its opera tion." The conclusion of Sir Matthew Hale respecting the power of parliament is equal to a definition of the supreme legislative and judicial power of every state or nation : — " this being the highest and greatest court over which none other can have ju risdiction, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy." ' From these various authorities it may be inferred to be the theory of the public municipal (national) law of the British Empire,' that the entire sovereignty of the nation is vested, or as may be said, has primordial existence (by right above law), in ¦ the legislating body or bodiesr— king, . lords or commons, or the three united ; including under this designation all colonial or local legislative bodies. All that sovereign power ' The statute Confirmatio Chartarum, 26 Edw. 1. o. 1. declares that the great charter shall be held for common law ; and the statute of Westminster, 42 Edw. 3, c. 1 : "It is asserted and accorded that tho great charter and tho charter of tho forest be holden and kept in all points, and if any statute be made to the contrary, that shall be holden for none." See Co. Lit Proeme to 2d. Inst. An Act of parliament is thus the autho rity for the restriction of parliament by common law. ' The question of the limitation of the legislative function of the English govern ment, under the British constitution, is a question of public municipal (national) low, LAW AND LIBEETT. 129 in any nation may do, this organized body or incorporated gov ernment may do. § 132. But whatever may have been the extent of the power residing in the British parliament alone, or in it together with the provincial governments, to determine the laws which should prevail territorially in the American colonies, the common law of England was always regarded in each of the colonies, for many years anterior to the revolution, as a law of national as well as local extent, determining the rights of the colonists of English birth and their descendants, as fully as those of native- born subjects of the same race residing in England : and no permanent alteration of common law liberties, as to them, oc-' curred during the period of the union with the mother country.' 1 § 133. As has been remarked in the first chapter (§ 42), the term liberty, when used to express an actual condition of privi lege enjoyed by a person living in political or civil society, can only be described as the effect of laws resting on the sovereign power of some state or separate political society, — positi-de law, in the comprehensive sense in which it had been herein before used : while, in the conception of that effect, as constituing a con dition either of liberty or its opposite, not only the purpose and object of the law must be considered, but also its character as a relation between superior and inferior, or in other words, its source, authority and extent. Regarding law only as the expressed will of a sovereign, or of a possessor of that sovereign and supreme authority which must in every state have intrinsically the same nature, and lib erty only as the result of law, — every condition of privilege, or degree of liberty which may in different states be attributed to private persons may be said to have the same foundation. Where a distinction is observed in the nature of municipal law, as which ought to be distinguished from the politico-ethical question, noted in the first chapter, respecting the outhority of a low of nature ; being distinct questions : the one of low, positive low, — tho other of ethics or political scienco. ' American Tracts, London, 1766, Dummer's Defence ofthe New England charters, p. 49. And compare tho cases cited in note to § 126. The paper by Bentham, 1803, entitled, " A plea for the constitution," ond relating to the illegality of certain local laws in New South Woles, will be found interesting in connection with the subject of this diopter. So olso Long's Freedom ond Independence forthe Golden Lands of Aus- traUa, London, 1852. 130 LIBERTY OIVIL AND POLITICAL. being either public, or private, the freedom of action which is enjoyed by private persons in a state or political society may be called the result of private law. But since there must be in all states a public law, or law of political constitution, by which the source, duration and extent of the private law is determined,' the effect of that public law is always an essential element of the liberty enjoyed by private persons in the ordinary relations of civil society, those which are ordinarily considered distinct from the public or political relations of the state. § 134. Whatever condition of a natural person, who is a mem ber of a civil state, may be called liberty, must be juridically known as composed of individual and relative rights ; since it consists in relations existing under law : and those rights may be called liberties — though with constant reference to the ex istence of law. In all states wherein a public law, or law of political constitution (in any proper sense of the word law), can be said to exist, a distinction may be made between that liberty of the individual members of political society which exists in civil or social relations, (which may be ternied liberty by private law,) and liberty of action in connection with the public and political life of the state, (liberty by public law.) The first might also be properly distinguished as social or civil liberty ; the second, political liberty." But since, wherever the last can be said to exist, the first, or liberty by private law, acquires a distinctive part of its nature in the guarantees afforded to it by the public law, — in such states the definition of the term civil liberty includes the basis of private rights inthe public law; since the nature and existence of private law. is itself the topic of a law in the strict sense of the word. § 135. When in English and American jurisprudence civil liberty, in general, or any particular right or liberty is spoken of as the result of the law of England, and attributed to any pri vate persons subject to the sovereignty of the British empire, the political foundation of the law by which the rights of pri vate persons are defined is always indirectly referred to, and the ' Bacon, Do Aug. Scien. L. 8, o. 8, 10. Aphorism 3. " At Jus Privatum sub tutela Juris Publici latet" ' Comp. 1 Bla. Comm., p. 126, u. by Christian ; Chipmon, on Gov,, p. 69. Whe weU : El. Mor. & Pol., § 535, distinguishes between social freedom anipolUical freedom; COMMON LAW NATIONAL. 131 various public guarantees by which private rights or liberties become identified with the public law. So far as the individual and relative rights existing under the English law, and which are called "liberties," — "civil liberties," — "the liberties of the subject," — " the privileges and immunities of Englishmen," ' have a peculiar character, it is rather in the origin, duration and extent of the law in which they are founded, than in the charac teristics of those mutual relations which that law establishes be tween private persons. For, regarded merely as existing in re lations between private persons, the same individual and rela tive rights may be found under the law of other states or coun-^ tries. The use of these terms always includes in some degree the idea of political liberty, and the foundation of private law. § 136. The political foundation of law in the colonies has already been in part indicated. It was a mark of these rights or liberties of the English colonist that they rested on " common law ; " which, regarded only as a private law, or law determin ing the relations of private persons, was a law having a distinct basis in the will of the nation, as opposed to the will of any particular part or portion of the inhabitants exercising a sepa rate or local power,' or of any person or body of persons in the realm, not identified, by public law, with the nation as a politi cal unit : a law alterable indeed by the act of the supreme or sovereign power, and by that power as vested in a government ; but that government — one which was assumed to be, by its par liamentary constitution, the representative and organ of a whole nation. The common law had therefore an integral existence in each part of the empire at the same time ; being therein dis tinguishable from the concui-rent rules of a number of indepen dent provinces or localities. ' 2 Co. Litt cap. 29. (4.) " Aut disseisietur de libero teneraento suo, vel Ubertoti- bus [Mag. Ch.] This word libertates, Uberties, hath three significations : 1. First, as it hath been said, it signlfieth the laws of the realme, in which respect this charter is called, charto libertotum. 2. It signifieth the freedomes that the subjects of England have." ' Glanvil's Pref. to Fortescue de Laudibus, p. 29, quoting Brompton aa saying, after mentioning the three sets of local laws— West Saxon, Mercian, and Danish, prevaUmg in Englond : " ' Isto rex Edwardus tertius (the confessor) unam legem communem edidit, quse leges Edwardi usque hodie vocautur,' which, by the way, helps us to the originol meaning of the phrase common law (and different from that in which it is now taken) which was therefore caUed common because it extended to oU England, whereas before, different ports hod been ruled by different laws." 132 NOT ALL TEANSFEEABLE. ;. ; It was also a law, in its ordinary operation, judicially re ceived as of constant or customary existence ; not as referable to some recorded act of the depositaries of supreme power, con ferring those liberties as something which they might either give or refuse. It was a law not taken to exist irrespectively of political authority, but yet not taken to rest, in the first in stance, on acts of positive legislation. In being derived from a judicial apprehension of natural reason, it was not indeed more jv/ral than the statute law, but differed from it in not being so specifically devised and promulgated in reference to persons and things in and for a, certain territory only. Therefore, so. far at least as it defined relations of persons without reference to spe^' cific things in, England, it was a law which might be taken to beia juridical indication, of natural reason in reference to the relatipns of the persons to whom it applied, not in England only, where it originally prevailed as the territorial law, but wherever they might remain under the same national dominion. This personal character of the common law is shown when, in de scribing; the liberties or rights created by that law, they are termed " the liberties of Englishmen." ' ; §137, As is shown in the passage from Blackstone before cited, and the writings of American jurists referred to in the same connection, it is not to be supposed, when the common law of England is spoken of as a personal law for the colonists, and as determining their rights and liberties in their new domicil, that the entire body of rules comprised under that name, in England, had an equal extent in the province. As has been shown in the first, chapter (§ 23) the rights of persons may be distinguished into, rights existing either in relations in respect to persons as the objects of action, or relations in respect to things as the objects of action. The law prevailing in any place or territory is therein a rule of action in reference to things, as well as persons, (though persons, or the actions of persons, are the ultimate, objects of every law,) and it is plain that many things (either natural or legal things) which were, in England, the objects of action contemplated by the common law, did not exist in the colonies. A very considerable portion of that ' 1 Bl. Comm. p. 144. AS A LAW OF TmNGS. 133 division of the common law which is ciilled by Blackstone the "law of things," was therefore not transferred with the colonists to America as a law personal to them ; and, so far as the lib erties of persons in England consisted in rights of action in refer ence to those things, they had no existence in the colony.' The legal liberty of any person in a civil state cannot be fully defined without considering his rights of action in respect to things : yet those rights of action which exist in relations to other persons as the objects of action, without special reference to things, or without reference to specific things, may be taken to constitute his general liberty of action. Individual and rela tive rights, as defined in the first chapter, may thus be juridi* cally recognized to be rights belonging to persons in reference to other persons, without reference to specific things ; and the law of England detei-mining and maintaining those rights, as rights of the native or domiciled inhabitant of England, with out reference to what is called by Blackstone the law of things, may be called the law of the liberties or privileges of English men — the civil liberties of the freeborn Enghsh subject. '¦ With this limitation in respect to things, the law determining the liberties of English subjects, in England, may be said to have accomj^anied the colonists as a personal law. §138. Further it may be remarked, by way of defining what that liberty or degree of privilege, under; the common law of England, was not, and as having an important bearing on the peculiar questions connected with this subject, that, so far as the liberties of British subjects, thus secured to them and resting on the imperial or national sovereignty, consisted in rights of persons in reference to things, they could only be rights in reference to such things as were known to the law of England : and that, so far as a right of property, or to property, was one of those liberties, it was only to such objects of pos session as could lawfully be property by the law of England. § 139. The possession of liberty in any extended sense, or the enjoyment of a free condition or statues, irrespective of its ' ' Compare also, Kent's Comm. ii. 152. 8 Peters, 658. 1 Comstock," 31-36. I Mass. R. 60. 2 do. 584. Settlements in America, vol. i., pp. 303, 304. VoL L of Mass. Quart R. 468-470. 134 ELEMENTS OF LIBERTY. connection with public law, must always, under any system of municipal (national) law, consist in the exercise of individual and relative rights, A free condition may however be attri buted to a person who does not actually sustain those relations towards specific persons in which relative rights exist. A legal capacity for those rights is, however, taken to be an essential attribute of a free condition, whenever a distinction is made be tween liberty and its opposites, as contrasted results of private law ; though individual or absolute rights — ^i-ights in relation to the community at large, constitute the essential part of free status or legal condition. The English law determining indi vidual rights and the capacity for relative rights may be called, more particularly than the rest, the law of the status or condi tion of those to whom it applied as a personal law. § 140. When the individual rights which are essential to the enjoyment of liberty of condition are declared to be the right of personal liberty, the right of personal security, and the right to the acquisition and enjoyment of private property, still the condition which they constitute cannot be apprehended without the complete analysis of the laws by which those rights are vindicated or maintained. In a definition of a state of liberty, as opposed to domestic slavery, or bondage correlative to a right of dominion in private persons, these three terms, in a general sense, may be taken to have the same meaning in all countries. But as defining the elements of dvil liberty, as that term is employed by European and American authors, they are of little significance, unless stated in connection with the guar- antees by which they are preserved. It would be going beyond the scope of the present treatise to describe the guarantees for the rights of private persons under the law of England at any particular period of its history : — habeas corpus, trial by jury, the rules of evidence, the independence of the judiciary, rights of counsel, publicity, utterance, &c., and above all, the definitive or positive nature of that law, in having a settled supremacy independent of the will and moral judgment of all who are n(it identified with the actual possessors of ultimate sovereign power. A marked peculiarity of the common law of England is the degree iu which it unites the characteristics of public and SEEvrrmjE. I35 private law ; so that the exposition of private rights is never separable from that of a political constitution. These rights or guarantees, though attributed to ancient and customary law, have been, at different times, defined and maintained with differ ent degrees of precision ; and their legal character has therefore greatly varied, even during the last two centuries.' The ques tion, how far the common law of England, in being public law, was the same in England and America, was the question in which the revolution of the colonies originated. By the trans plantation of the common latv to each several colony, with a territorial extent therein, it acquired, in each, a new and sepa rate character, as the local law of each. But still, so far as it was a law of pe»-8onal condition, or the law of those rights which are commonly denominated personal rights, its pro gressive development was never independent or isolated in the several divisions of the Empire. To that extent it continued to be a national system, and tho rights and guarantees, above spoken of, continued, in their progressive development, to be the same rights in respect to their juridical source, or to be rights under one and the same system of jurisprudence; though main tained and exercised under the local or internal law of distinct political jurisdictions." § 141. Under the relation of master and servant, as it has been known in different times and countries, an immense varie ty of reciprocal rights and obligations may be comprehended ; and the legal incidents of the relation have varied in England, during the period in which its " common law " has been histori cally known to exist, as much as in any other European country. Although, for more now than three quarters of a century, a con dition either of chattel sls,very, or of involuntary servitude, ex cept by force of penal statutes, has been held to be contrary to ' For the chorters of English liberties of tho subject see, besides the EngUsh Sta tutes at Large, Co. LItt. 2d Inst. ; South CaroUna Stat, at large, preface and pp. 72— 129, containing, Magno Charta of King John (1215), Charter of Edward I. (1297), the Petition of Rights (1628), the Habeas Corpus Act, 81 Cor. 2, o. 2. (1679), BUI of Rights, 1 WilUam ond Mary, sess. 2, c. 2 (1689). See also Lieber's Civil Liberty and Self Government. And for a summary of the principol usages and acts from which a popular and consolldoted presentment of the public and private rights of the English nation, answering to a written constitution, at the present day might be made, see Wade's History of the Middle and Working Classes, Part III. o. 6. ' Compare ante, §§ 48-54. J^36 VILLENAGE. the local or internal law of England, it was far from being so settled at the time of the establishment of the English colonies in America and of the grants of their respective charters. Vil lenage continued to exist in England until the year 1661 ; if, as Blackstone asserts, it may be taken to have been abohshed by the act of that year, 12 Car. 2. c. 24, reducing all tenures to free and common socage.' In some of its forms, villenage, in England, was nearly equivalent to chattel slavery : the villein in gross or at large being, according to Littleton, " annexed to the person of the lord, and transferable by deed from one owner to another, and if he ran away from his lord, or was purloined from him, he might be claimed and recovered by action, like beasts or other chattels." ^ But villenage in England, after the time of the Norman in vasion, had always the character of a feudal relation, and was' connected with the tenure of land. The legal personality of the villein, and a capacity for rights in some degree, was also acknowledged. If under the Saxon government there had been a class of absolute slaves,' it is supposed by Wright, in his treatise on Tenures, that the Normans, carrying out the feudal constitution of a civil state, admitted such slaves to the oath of fealty, creating the legal obligations of a legal person, which conferred a right to protection under the law, and raised the serf to a kind of estate superior to downright slavery, though inferior to every other condition,* The law protected the per- ' 2 Bl. Comm. 96. Lofft's Rep. 8. " 1 Co. Lit § 181. " An historical Discourse of the Uniformity of the Government of England, by Na thaniel Bacon of Grais' Inne, (1647) p. 56. Speaking of villeins in the Saxon times, — "The most inferiour of all were those which were anciently called laEzi or slaves; those were the dregs of the people, and wholly at the wUl of their lord to do any ser vice, or undergo any punishment ; and yet the magnanimity of the Saxons was such " &c, — stating their merciful treatment of slaves ; * ? * " and though the insolency of the Danes much quelled this Saxon noblenesse, yet it was revived again by the Confessor's laws, which ordained that the lords should so demean themselves towards their men, that they should neither incurre guilt against God, nor offence against the king ; or, which is all one, to respect thom as God's people and the king's subjects." And see Wode's Hist of the Middle and Working Classes, Part i., ch. 1. Turner's Anglo-Saxons, vol. iii., p. 91. * Wright's Tenures, pp. 215-217. 2 Bl. Comm. 92. Wade's Hist &c., p. 9 : "In 1102 it was declared in the great council of the nation, held at Westminster, unlawful for any man to soil slaves openly in the market, which before had been tho common custom of the country." The author does not give tho authority: such o declaration, would hove been equivalent to a repudiation of absolute chattel slavery. 8EEVI0E BT CONTRACT. 137 eons of villeins, as the king's subjects, against atrocious injuries of the lord ; for he might not kill or maim his villein : and the , , latter had a right of action against his lord for the mayhem of his own person, or the murder of his ancestor. Neifes had also an appeal of rape, in case the lord violated them by force.' Even in the times of Littleton and Coke it was said that vil lenage could exist only by prescription, or by confession in open court. And when most opposite to a free condition it had some thing of a local character, relating to the land of the lord to whom the villein services were due." It was therefore an inci dent of those relations of persons to things, or of the relations of persons to other persons, in respect to those things which were not transferable with the English colonists to America, and did not therefore exist there under the common law, i. e. feudal es tates, which were not established in America.' § 142. Tlie relation of master and servant, known under the modern common law of England and the same law operating in the British colonies, with personal extent for the inhabitants who are of British race or descent, is a relation exclusively founded on, or arising out of, the voluntary contract of the par ties.* The relation between a minor apprentice and his master, under the same law, is a substitute for, or a modification of, the paternal authority ; and the reciprocal rights and obligations of the parties are derivative from the relation of parent and child. This relation, as an effect of the common law of England having personal extent, existed in all the colonies : being created under the administrative authority of the inferior courts, justices of the peace or other ofiicers, to whom a quasi-j>aterna\ authority of guardianship had been delegated by special statutes, or who, in ' 1 Co. Litt §§ 189, 190. In respect to the community ot lorge the viUein was a legal person, as much as ony liber homo. 2 Co. Litt cap. 1, (7) : "Concessiraus et dedlmus omnibus liberis hominibus regni nostri, &c. These words in Magna Charta doe include all persons eccleslasticoU and temporal!, incorporate, politique, or naturaU; nay, they extend also to vUlcines, for they are accounted free against oil men, saving ogainst the lords." 2 Co. Litt cop. 29, (1): "NuUus liber homo copiatur vel im- (irisonetur. This extends to villeins, saving ogoinst theu: lord; for they ure free against all men, saving ogainst their lord." ' 2 Bl. Comm. 92-98. Wilkins's Leg. Saxon, p. 229, et cap. 65. Leg. Guliel. L " Prohibemus ut nuUus vendat homincm extra patriam." " And see Neal v. Farmer, 9 Georg. R. 564. * For a succinct occount of the relation between moster ond servont after the ex tinction of vUlenage, see Wade's History » J«'-isP'-v"Jence. See Mr. Webster's speech, 7th March, 1850 ; Works, vol. v. p. 329. 9 Georgia R. 531 ' ""^") « Whatever may have been the opinions of tho great moralists of antiquity as to the OnANGES IN JUS GENTIUM. 155 the rights of persons, the Institutes begin with the simple decla-' ration, that human beings are either freemen or slaves, Lib. I. tit. 3. Summa igitur divisio de jure personarum hsec est, quod omnes aut liberi aut servi.* § 158. Whether the rules historically known as the law of nations — jus gentium, which judicial tribunals might recognize as a criterion of natural reason, to be applied in international or municipal law, have continued to be the same for modem times as anciently, is a question of fact to be learned from the history of municipal and international jurisprudence among all nations : each having equal right to judge of the dictates of nat ural reason applied to the conditions of human existence, and to manifest their judgment in their several national law (applied either as internal or international law within their own jurisdic tions), and in the formation of that code of general international intercourse which is, in an imperfect sense, denominated a law, ofwhich they are themselves regarded the subjects.' § 159. It must be remembered at the same time, that, in consequence of the nature and mode of application of that which is thus denominated international law, or law of nations in the sense of a rule of which nations are the subjects, it has never changed simultaneously among those nations professing to rec ognize it : and, as a distinct class of rules, is still confined to its recognition and application among Christian nations ; and in a more limited degree, between them and the Asiatic and Mo- expedlency, propriety or ethical fitness of the relation between the master and the slave, it is certain that they constantly ocknowledged its legolity. Aristotle (Pol., L. i. c. 2) ond Plato (Rep., L. v.) opposed the enslavement of Greeks when taken prisoners of war by other Greeks. But the former regarded slavery as o relation properly existing in every civil society ; and the latter seems to have considered it a necessary evil. If they recoUed from the ideo of treating o human being as a chattel, or brute object of the oction of others, they each contemplated the existence of a servile class as a neces sary constituent of human society. See WaUon : Hist de I'Esclavage dans I'Antiquitfi, lie Par. c. 11 ;— a very full occount of the opinions of the leading minds of Greece on this point . . ., , . Whatever may have been Cicero's doctrine about the foundations of civU law in natural justice, ho was himself on owner of slaves, ond coUed on his friends to aid him in recovering thom when they ran away. See Ciceronis Epistolie od Familiares, Lib. 1. ep. 2, § 4, 14, Cic. ad Quintum fratrem ; LIh v. ep. 9, § 2, Vatinius ad Cic, ad Jin ; Lib. xiii. ep. 77. § 3, Cic. ad P. Sulpicium, Imperatorem. ' The name of the Title is De Statu hominum ; the slave was homo, and not per sona ; it is no division ofthe rights of persons to say some men have the rights of per sons ond some hove not. See ante § 44. ' Compare §§ 10, 19, 39. 156 EFFECT OF CHRISTLANrTT. hammedan sovereignties;' the intercourse of those nations, recognizing such law, with others not knowing it, being always presumed to be regulated by that part of the international law which has been sometimes called ' the natural law of nations,' that is, by general principles of morals applied to public rela tions : the application being professedly made according to the moral sense of the, so called, civilized nations, assuming a supe rior knowledge of the dictates of enlightened reason.' § 160. During the later period of the Roman empire the diffusion of Christianity gave additional force to ideas of hu manity and benevolence, as rules of duty in social action inde pendent of laws enforced by the state, and may be supposed to have moderated the severity of the ancient slavery, both as the effect of international wars and of municipal regulations : at least between those professing a faith which required a distinct recognition of individual capacity and responsibility in all nat ural persons, and which, by constituting all its adherents into a spiritual commonwealth, established a peculiar equality be tween them ; comparing them to members of a family, in hay ing such a bond of union.' But whatever change may have taken place in consequence does not appear to have been made by any systematic interference of the civil power. It is to be remembered that the code of Justinian, though digested from ancient laws, was the code of a Christian state and sovereign ;' ' Heffter: Europ. Volkerr. § 7. ' The opinion of Dominic De Soto, de Justitio et de Jure, quoted by Mackintosh, Hist. Eth. Philos. p. 110, was, that there con be no difference between Christians and Pagans, " for the law of nations is equal to all mankind." It is doubtful whether in ternational law or universal (private) law was intended by this author; but, in either sense, it is not a correct statement of what the law of nations was at thot time, as his torically known. The author, os many writers since his time have done, confounded the jus gentium with his own idea of natural justice. " Grotius : B. et P., Lib. I. c. i., 14, 15. Huber, de Jure Civitatis, lib. 2, ch. 3, § 6. Laetantius, L. v. Div. Inst u. 16. " Facile irido contigit nedum ut Christiaui servos sues, prassertim Christianos, veluti fratrum loco haberent." * Procemium to Institutes begins : " In nomine Domini nostri Jesu Christi, Impe rator Ciesar," &o. Constantine, the first Christian emperor, died A. D. 837. Jus tinian died A. D. 665. See statement of Roman legislation respecting slaves from time of Hadrian to Theodosius the Great ; Blair : Slavery among the Romans, Ch. IV., pp. 85-89, and WuUon, Hist de I'Esclavage. Guodentius, do Justiniani sceeuli moribus, ch. XIII. (Meerman's Thesaurus, Vol. III. p. 679), thinks it most probable tliat captives in war, even if Christian, were made slaves under Justinian. PEESONALITT EECOGNISED. 157 and the early church, even in those territories where it held civil as well as ecclesiastical power, did not abolish the relation, or prohibit its future inception ; but appears to have recognized it as lawful, even betwefen Christians, though gradually modi fying it, by using its spiritual authority to enforce the dictates of humanity, and to cause a legal recognition of the personality of the slave, and of a capacity in him for some rights in social and family relations, though still in a state of servitude.* § 161. By this change inthe legal character ofhis condition the slave became a legal member of the civil state, as distin- 'guished from property ; and his servitude, however burden some, lost its support and foundation in the universal law, or law of nations, by losing its chattel character, and derived its support from the law peculiar to a single state, for the slavery known to the law of nations was the simple condition of chatte- slavery." § 162. Tho slavery which existed among tho heathen na tions of northern Europe, from the earliest times, was probably ' Walter; Lehrbuch des Kirchenrechts, § 348. Corpus Jur. Cononici. Decreti, Pars. i. Distinctio XV. Gregorius Popo I., anno 696. Roma in Camponiam. In libertatem vendlcentur servi, qui ab, infidelitate ad fidem accedunt. Distinctio LIV. Servi sine dominorum consensu et libertote non ordinentur. A letter of manumission by the same prelate of some of his own sloves is cited, Robertson's Hist. Charles V., vol. I., sect. 1, note XX, in which he speaks of slavery os contrary to an original or natural stote of freedom. Bishop England's fifth letter cites various authorities. Seo also Wallon ; Hist de I'Eselavoge dons rAntiqiilt6, Partio IH. Blair : Slavery among the Romans, pp. 49-72. Ward's Hist of Law of Notions, vol. II. p. 27. Gudelin, de Jur. Noviss., Lib. I. c. 4. 6. Fletcher's Studies on Slavery, pp. 827-331 ; and the note above cited in Robertson's Charles V. The history of the early Church records the efforts of many of its prelates in favor of emancipation ; and there is no doubt that the abolition of the ancient chattel slavery is mainly attributable to its influence. But whether the writings of those pre- lotes can be cited here, in tracing the historical law of nations, on this point, depends on the question whether they held the temporal power of legislation, or not. For, however valuable, in on ethicol point of view, their testimony to the law of nature may be, it will have no force in proving what the actual jus gentium of their time may have been ; though it may have been a means of changing that law. Compare 1 Bancroft's Hist. U. S., p. 163. (Seo ante, p. 95, note, on the relative positions ofthe jus gentium, and the Canon law.) Imp. Leonis Aug. (Leo, the philosopher, died A. D. 911.) NoveUse constitutiones, IX., X., XI. ; that slaves should not become free by taking holy orders, if without the knowledge of their masters. It is difiicult to judge how far the ecclesiastical persons, whose efforts in their times in favor of monumission oro recorded, would have opposed serfdom, in forms nearly as much opposed to free condition, according to modern Ideas. The ecclesiastical corpo rations in Burgundy, InVernois, ond other provinces of Fronce, were among the last to emancipate thi'U- serfs. See Lalaure : Servitudes BdeUes, p. 2. Voltoire : Diet PhUos. v. Esclaves. ' See Ante, § 112. 158 THE NORTHERN NATIONS. but little different from that known under the Roman Empire, or differed only by allowing a greater variety in the nature of its burdens, correspondent with the feudal elements of their civil society, which permitted also a recognition, in some degree, of the legal personality of the bondsman.' Upon the settlement of those nations in southern Europe, their military system and :the distinctions arising from the fact of a conquering race re siding among the conquered, made the serfdom adopted, if not introduced by them, an equivalent in its various degrees of oppressiveness for the ancient domestic slavery which- had been obliterated with the wealth and power of the previous masters.' After the general conversion of the northern nations of Eu rope their international intercourse became so modified that, as between Christian nations, prisoners of war could not be reduced to slavery ; though captivity and the right to demand ransom, as a consequence of the old law modified by the habits of the Teutonic ° races, continued to a late period.* Feudal servitude being essentially predial, that is, accessory to the soil and con- ' That is, among the German nations or tribes, a portion of the people, — the con stituents of the nation, were predial servants, annexed to tho soil, and the master had not, as a general rule, the power of life and death over them. Tacitus : Mores Ger. u. 25. Spelman's Gloss, voc. Servus ; " Germanorum instar, eraiit nostri villani a servis multum diversi, quidum erant proediales, quidam personates, &c. Among the Gauls, the great body ofthe people were in a state of vassalage, apparently equivalent to the chattel slovei-y of the Romans. Csesar de Bel. Gal. L. VI. 13. But besides these legal persons, who were not free, the German nations also traded m slaves as articles of merchandise, selling captives taken iu war, and also buying of the nations on the north, and selling in the southern couutries of Europe. 1 Hune's Darstel., pp. 102-107 : cites Fischer Gesch. des deutschen Handels. " Spence's Inquiry into the Origin of the Laws, &c., of Modern Europe, pp. 54, 328. Salic laws In Cancioni Leges Barbarorum. During the later Imperial period a clear distinction was recognized between predial and domestic slaves ; the condition of the former (coloni, inquilini, adsoriptitii, or, odscripti glebae) resembling, in many respects, that of the more modern serfs or villeins. See Smith's Diet Antiq. : Pne- dium. In Novell. 162, c. 3, Justinian gives the rule by which the children of an adscriptitio shall be divided when the father belongs to another estate. In Novell. 157, tit. 40, he forbids the separation of families of sueh predial sloves. See Fletcher's studies on Slovery, p. 827. In the history of the abolition of chattel slavery, the fol lowing laws ore important. Imp. Leonis Aug. Nov. Const. 88. Ut Imperutoris servi de rebus suis quo mudo vclint statuere possint C. 59. Abrogotio legis quoe hominem liberum se vendere permlttlt. ' Heineccius, Jur. Nat. et Gent. L. i. o. 1, § 2, n. "Postea mores Germanorum poene omnibus gentibus commmies focti sunt uti recte observovit Grotius. de Juro B. et P. ii. § 1, 2. ' * Suarez, de Legibus eto. L. ii. o. 19. " Sic enim Jus Gentium, de sei-vituto oapti- vorum in hello justo, in Ecclesia mutotum est, et inter Christionos id non servotur." Grotiuj, Lib. iii c. 7, §9: "Sed et Chrlstlanis in universum placuit beUo inter ipsos orto captos servos non fieri, ita ut vend! possint, ad operas urgeri, ct alia pati SLAVEET AND OnEISTIANITT. 159 nected with a state economy founded on the distribution and tenure of landed estate, gradually acquired the character of a constitution of the particular law of each state (jus proprium, or jus civile in the same sense) as distinguished from a foundation judicially ascribed to the law of nations : and, being suscepti ble of great variety in tho obligations which attached to it, re ceived the legal character of a local distinction of ranks, or of social position, in the institutions of nations composed of indi viduals of various race, or having distinct historical origin, but not separated by any strongly marked physical distinctions.' The subsequent decay of that servitude, which accompanied the progress of Europe in intellectual and moral improvement, needs not to be here particularly considered.' § 163. While Christianity may be truly said to have con tributed greatly to alter the law of nations, contained in inter national and municipal law, by abolishing or modifying slavery as between Europeans, it must be acknowledged that, as it con tinued for centuries to be received, it also modified that law in introducing a new basis for chattel slavery. At an early period of the present era difference of religious belief was made a ground of distinction in supporting a right to hold slaves. Jews quse servorum sunt : atque ito hoc saltern, quomquam exiguum est, perfecit reverentia Christlnno) logls." Ward's Low of Notions, vol. i. c. 9. Vol. ii. p. 31. Vhinius: Comm. L. i. tit. 8. Gudelin de Jure Novissimo, L. i. c. 4, § 10, and citations. ' Sir Francis Palgrave, Hist, of Normandy and England, pp. 31, 32, considers the distinctions of status in mediaeval times, commonly called feudal, as being historically derived from the laws of the Roman Empire. And as to predial slavery in Gaul before the Burgundlan invasion, see Montesq. Esprit d. Lois, L. 30, o. 10. The two distinct conditions of chattel slave and of predial bondman or serf must have long existed together in Europe. Down to the commencement of the tenth cen tury, slaves of the northern, ond then barbarian and heathen, nations were constantly sold in Germany, France, &c. Hune : vol. i, pp. 107, 113. In the grants of Charle magne (A. D. 800) " he invariably bestows lands with all the inhabitants, houses, slaves, meadows, moveables and immoveables." In the time of his immediate suc cessors, " a frightful traflic is secretly carried on : the nobles, ecclesiastical and secular, making no scruple, when pressed, to sell the children of their serfs." Oxford Chrono logical Tables. As to the transition from personal to feudal slavery among the Ger mans and Goths, see Mittermaier's Privotrecht, §§ 47, 49. Vinnius: Lib. i., tit 3. Bodin's Republic, B. i, c. 9. Prediol slovery lingered in some of the provinces of France under the lows of Main-mm-te in 1761. (Lolaure ; Voltaire; HaUom's Mid. Ages, o. u., port 2.) Predial serfdom existed in Scotland ot the dote of the American revolu tion. See Hugh Miller's My Schools and School-masters, p. 303. Wade's Hist of Middle ond Working Classes, p. 10 : obolished by 16 Geo. 8, c. 28. ' Ward's Hist Law of Notions, vol. i, ch. 8, refers to many antiquaries and critics wlio hove thoroughly examined this subject 160 DIFFEEENOES OF OEEED. and Pagans, living under the dominion of the Christian Empe rors, being forbidden to hold Christians in chattel bondage ; and afterwards the Papal church prohibited Jews from holding even heathen slaves.' It was generally assumed among Christian nations, until a period comparatively recent, that their supe riority as possessors of the true faith gave them the right of re ducing infidels to slavery irrespectively of the ancient laws of war;* while the followers of Mohammed, calling themselves the true believers, have drawn similar conclusions for their own use. The practice of enslaving their prisoners of war was at first mutual between Christian and Mohammedan nations as to each other," and was maintained by the last against the first to a late period ; and may be in theory to the present day. The Barbary powers justified their piracies against Europeans upon the pretext of a right sanctioned, by religion and ancient inter national usage ; and it was only at the beginning of the present century that they were finally compelled to abandon them after reiterated assertions of the modern international law by Chris tian powers.* § 164. Both Christians and Mohammedans long maintained the right to enslave heathens and barbarians. Among the first the act was almost universally supported, if the extension of the Christian fiiith and civilization were made the professed motive.' ' Codex, Lib. i., tit. x. Decree of Gregory I. onno 692, that slaves bought by Jews should be set free • Corp. Juris. Canonici ; Decret Pars. i. Dist. xiii. Fuero Juzgo, Lib. xii., c. 3, § 12. Fuero Real, Lib. iv. Blair, p. 72. Bishop England's 10th letter. Works, voh iii., p. 132. Gibbon : vol. ii., p. 274. Gudelin : de Jure Noviss. " Rursum, quamvis Judseis servos habere Christianos non licet, adscriptitios tamen habere permissum est, u. 2, tit. Decret. de Judeeis." ' Even in Bulls of excommunication issued by the heads of the Roman Church pre vious to the Reformation it was common to declare the inhabitants of the excommuni cated districts liable to be enslaved. See Bull of Gregory XI. against Florentines, 1376 ; JuUus II. against Venetians, 1608 ; Paul III. against Henry VUI., 1538. See Fletcher: Studies on Slavery, pp. 866-868. Bower: vol. vii., pp. 879-447. ' Hune : vol. i., pp. 127, 148. Calvin's cose, 7 Coke, 17: " AU Infidels ore in law perpetui inlmicl, perpetuol enemies (for the low presumes not thot tbey will be con verted, that being remota potentia, a Remote Possibility) ; for between them, as with the Devils whose subjects they be, and the Christian there is a perpetual hostility, iind can be no peace ; for as the Apostle says, &c. And the Law saith, Judoeo Christia- uum nullum serviut mimicipium, nefiis enim est, &c. Jiegister, 282." * Sumner's Orations and Speeches, vol. i. Lecture on White Slavery in the Barbary States. Hild. Hist U. S., vol. v., p. 661 ; vol. vi., 578. ' The tenor ofthe Papal Bulls, in the years 1430, 1438, 1454, 1468, 1484, accord ing to the author of Letters to Pro-Slavery Men, p. 42, (Boston, 1855,) citing Colonise Anglioanse lUustrotae; by Wm. BoUon, Lond., 1762, Part i., pp. 115-141, is "to op- NEGRO SLAVEET. 161 Slavery had existed in Africa from the first acquaintance of Europeans with that continent ; • but negro slavery, in connec tion with modern European ' law, was based on the idea above stated as part of the law qf nations for Christian powers : that is, the African or Indian slave was held by the European mas ter, as merchandise, by a principle of law then common to all Christian nations, without reference to the villenage of the feu dal system; as the slave of the Roman master, of whatever race, had been held by a law common to the then known world. § 165. At the time of the planting of the English colonies in America, the laws of war in Europe still retained traces of ancient harshness, and the right of Christian powers to enslave prisoners in war with heathen and infidel nations, was almost universally admitted. In wars between Europeans, the custom of enslaving prisoners of war had ceased, and the claim of pri vate property in the captor, giving a right to demand ransom, which had existed for some time after tho amelioration of tlie ancient law of captivity, was almost universally abandoned.' But the slavery of captives of the different creeds was still sup ported by Christians and Mohammedans against each other. propriate the kingdoms, goods and possessions of oil infidels or heathen in Africa, or wheresoever found, to reduce their persons to perpetual slavery, or to destroy them from the face of the earth" — " to take any of the Guineans or other negroes, by force or by barter." Gregory XVI. in his BuU against the slave trade in 1840 (see Bishop Eng land's Works, vol, 3, p. 114) cites BuU of Pius II. in 1462 as against the same trade. According to the Bull of Gregory XVI., Paul III., 1537, Urban VIII., 1639, Bene dict XIV., 1741, and Pius VII. opposed the slave trade. The author ofthe letters re ferred to says that their BuUs were not ag-ainst the trade in generol, or not ogainst the African slove trade. ' Banc. Hist voh i., 165. Vol. iii., 403. Hune's DarsteUung, vol. i., eh. 3. The Romans, in Virgil's time, had negro slaves ; o smoU poem entitled Moretum, ascribed to him, contains a description of a negro woman, represented as being the only domes tic of a peasant, " exigui cultor rusticus agri," v. 31 : " Interdum clamat Cybftlen, erat unica custos, Afra genus, tota patriam testante flgura, Torta comani, labroqtie tumena, et fusca colorom ; Pectore lata, .jacens mainmls, comprc3.slor olvo, Cruribus exilis, spatlosa prodiga planta; Gontlnuls rlmls calcanea sclsaa rfgebant" ' Mackeldey's Compendium Tr. Kaufmann, p. 85,'note : "In like manner such pre cepts [of the Roman low] are inapplicable, which rest upon principles that hove never been acknowledged in Germany, or the objects of which do not exist here ; e. g. the low applicable to slavery." But slavery is allowed under the Prussian Landreoht, Th. IL, tit 6, § 196, operating as private internationol low. See Article by the late Mr. Wheaton in Revue Etrong. et Fran., Iom. viii., p. 345, and the 6th fid. ofhis Inter- not Low, Introd. by W. B. Lawrence, Esq., p. cxxx. ' 1 Kent's Comm., p. 14. Bynkershoek : Quoest Jur. Pnb., Lib. I., c. 3. U 162 MOORISH SLAVES. Moors— the Arabian inhabitants of Africa, were still held as slaves by captivity, in Spain, France, and Italy ; and probably many Africans of negro race were held as slaves in Europe under the name of Moors," and their slavery ascribed to the same international usage. Domestic slavery, as part of the sys tem of civil society, still remained, as at the present day, among Mohammedan nations, and the negro tribes of Africa ; in which country it is believed to have been lor many centuries the condition of a vast majority of the inhabitants.' It is prob able that long after the ancient chattel slavery of Europe had been replaced by the serfdom of the Middle Ages, negroes had occasionally been brought as articles of commerce to Europe, and retained there as domestic slaves.' But it was not until the geographical discoveries of the Portuguese in the fifteenth cen tury, that African slaves, in any considerable number, were made an article of commerce in Europe. The first recorded instance of the importation of African slaves by the Portuguese from the western coast of Africa, illustrates the principles of the law qf nations exhihitei at that time in the international intercourse of Christian nations with Mohammedans, Moors, and heathen negroes of Africa. In the year 1440, Antonio Gonsalez, sent out by Prince Henry of Portugal on a voyage of discovery, attacked a party of wandering Arabs or Moors, and carried off ten or twelve of them captives to Portugal, where, and in the Spanish portion of the peninsula, thousands of the subjects of the extinct Moorish kingdom in Spain were already enduring slavery, as the consequence of their defeat by the Christian princes. Three of these captive Moors, at the command of Prince Henry, and on their promise to pay ransom, were sent back with Gonsalez, on his second voyage to the African coast in 1442 ; and he received from their kinsmen, in exchange for his prisoners, a ransom consisting of gold dust and ten or twelve negro slaves, as ordinary articles of merchandise.* A similar ' Hiine, vol. I., pp. 128, 180, 211. ' Hllne, vol. I., pp. 148—176. • Bancroft, vol. L, p. 166. Hiine, I., 160 — 163. Citing Edrisius and Leo Afri- oanns, that accounts of a regular trade in negro slaves exist from about tha year <)90. Raynol's W. I., tom. 4, p. 43. • Hiine, vol. I., p. 181. 1 Banc, 166, cites Navaretc, Introduccion S. XIX., (see 2 Presc. Fcrd. and Is., 114,) that Spoiu anticipated Portugal in iutroduciug negroes AFRICAN SLAVE TRADE. 163 transaction became one of the objects of succeeding voyages. Moors and negroes were carried away, by force, by the Portu guese adventurers, until, after the exploration of the coast had been pushed as far south as the richer and more populous shores of the Gulf of Guinea, it was found safer and more profitable to procure only negroes, by purchase from the native slave mer chants. § 166. This traffic, in negroes as merchandise, was at this time recognized as legitimate by European governments, without any direct sanction from positive legislation, but rested on the gene ral custon; among nations, known both in municipal and inter national private law, — that custom which, under the name of "the custom of merchants," — meaning merchants without re gard to nationality, was recognized in the Enghsh courts as a rule of law. Property in heathen negi'oes bought in Africa, being then regarded as the effect of natural law, so far as it is known in jurisprudence, or as an illustration of the distinction between persons and things, entering into all law, because founded in natural reason. Tlie trade in that property was re garded as founded on existing relations between legal persons in respect to things, which might, like any other branch of com merce, be regulated by statute, without a previous act declaring the condition of the negroes who were the objects of those rela tions and of that commerce. Like many other branches of com merce at that period, it was an object of monopoly; being some times granted by the patent of the monarch to companies of discoverers, commercial adventurers, and colonists trading in and between those regions then recently made known, and popu larly designated the Eastern and Western Indies. The conver sion of infidels being always proposed as a prominent object, and declared to be the justifying motive for the forcible en slavement of barbarians and heathens, whenever contemplated in such enterprises ; ' if not also for the acquisition of purchased slaves. On the discovery of America, the same reasons which upheld the slavery of African Moors and negroes were held to into Europe. That SevUlian merchouts imported slaves from Western Africa, — Irving's Columbus, vol. II., p. 351. ' 1 HQne, p. 304, cites Benezet, p. 58. 164 DISTINCTION OF EACE. apply to the barbarian inhabitants called Indians ; and property in such Indians had the same basis in the law of nations ; until a distinction was made, between the negro and Indian races, by legislative enactment in the colonies of the several colonizing nations." Those taking effect in the English colonies will here after be more particularly referred to. § 167. Whatever foundation there may have been in natural reason for slavery, in the opinion of the nations of antiquity, the Roman legislators, or the Asiatic races, there does not ap pear to have been, in their judgment, any arguments, from the same source, establishing such differences between mankind that some races were liable to that chattel condition, and others naturally exempt.' The la/w of nations, in their conception of it, regarded all men as equally capable of becoming property. The modern law of nations, as exhibited in the practice of mod ern European states, must be considered not only to have varied from the ancient rule, in asserting a right of dominion in- Chris tians over infidels, but to have been farther modified, since the geogra])liical discoveries of tho fifteenth century, and during the establishment of civilized dominion and municii)al law in America, by the introduction of a distinction founded on race or descent, and applied according to physical, structure. Tlie capacity for that condition of loss of legal personality, or the liability to become property, being, since that period, confined to the Indian races of America, and African Moors and negroes ; ' 1 Banc, 167, — that natives from the coast of America were kidnapped by slavers: cites Peter Martyr d'Anghiora, d. vii., c. 1, 2. Hakluyt, v. 404, 405, 407. The history of the introduction of negroes into Spanish America, and of the infln- ence of Las Casas in effecting it is weU known : see Irving's History of Columbus. Robertson's Hist of Am., and Hist of Charies V. 1 Banc, ch. 5. 1 Hiino's Darstel- lung, ch. 3. Herrera is the original authority on these points. " In his speech, 7 March, 1860, Mr. Webster said. Works, vol. V., p. 329,—" The ingenious philosophy ofthe Greeks found, or sought to find, a justification for it exactly upon the grounds which have been assumed for such o justification in this countrv : that is, a natural and original difference among the races of mankind, and the infe riority of the black or colored race to the white. The Greeks justified their system of slavery upon that idea precisely. They held the African and some of the Asiatic tribes to be inferior to the white race," &c. There is nothing to justify this assertion. It oppetrs to be founded on the ossumption that those whom the Greeks called 0ipPapoi were identical with the half-civilized^nations of our own time. The Greeks meant by barbarians those who were not Greeks : and believed u Greek oapUve to bo o lawful slave to a barbarian cuptor. I EFFECT OF CONVERSION. 165 in other words, this principle of the law of nations became ap plied as a law personal to those races." § 168. Slavery of Africans or Indians, whenever thus sup ported on principles of ancient authority, modified by appli cation to persons of a particular race under the existing law qf nations' would, apparently, have continued its existence in the issue of those persons, by a principle derived from the same source, that is, the inheritable character of slavery, or that prin ciple by which, the personality of the parent being unrecognized by the law, legal personality was not acquired by the issue ; which was considered only as the natural increase of the prop erty, and equally the object of ownership.' But, inasmuch as the heathenism of the enslaved was pre supposed to be an essential circumstance and part of that con dition of things upon which the law of nations, as then received, recognized the chattel condition of the negro or Indian bond man, and the right of property in tho European owner, it would be a natural question before any tribunal, within whose juris diction such negro or Indian might afterwards be found, whether after his baptism or presumed conversion there was any rule, having tho Bamo historical existence, that is, being a law of nations, which would still support that condition and right of ' It is this personal character ofthe law of chattel slavery in modem times, which restrains the effect (os nn indication of tho historical law of nations,') of that otherwise general attribution of the right of personal liberty, which, by certain European jurists of the 17th century, herein after cited, is asserted to have hnd effect in preventing the international recognition of slavery in most European countries at tbe beginning of that century: &^e post, ch. VII., and notes from Heineccius, Christinajus, &c. The period at which they wrote was precisely that ot which the European serfdom hod acquired the distinctive chorooter of an institution of the local law(j. proprium) of each country, and ot which the chattel slovery of heathen and barbarian negroes and Indians, by the law of nations, continuing to be applied to them as a personal law, was becoming more frequently recognized in tho international low of the commercial and colonizing notions of Europe. This modification of tho law of nations, at this period, is shown by Bodin, de Rep., [A. D. 1683,1 B. I., ch. 5, KnoUes' Transl., London, 1606, p. 32,—" and for that the whole world is full of slaves, excepting certain countries in Europe, (which since, by little and little, receive them)," &c. ; and in some chopteiv-^" and although servitude, in these latter times, was left off, for about three or four hundred years, yet it is now again approved by the great argument and consent of olmost aU nations." By some writers on the subject of African slavery, and even by some judicial tribu nals, it has been held that this personal character of the law of slavery is authorita tively determined by Revelation. In Neal v. Farmer, 9 Georgia R,, p. 582, it Is de clared that the slavery of " the issue of Ham," — meaning of persons of African or negro race, is "an institution of Christianity." (Italicised in the Report) ' See ante, § 58. " See ante, % 154. 166 EFFEOr OF CONVERSION. ownership. The question, it is to be remembered, is not one of a doctrine of the Christian faith or morals, either in the apprehen sion of the Christian church or of an individual clothed with judicial power, but simply of the existence of a rule having the same historical support as the law by which the slavery of the negro or Indian had first been established ; a rule having such support, by the use and practice of nations in their municipal (internal) and international law, that it could be judicially re cognized and received as an indication of natural reason. It is a question of the juridical action of nations which have had juris diction over negroes ^nd Indians, enslaved while heathens, and afterwards baptized and Christianized. It would depend, also, upon the juridical action of differ ent nations in respect to this class of natural persons, whether any other or new principles, having a like personal extent as to them, should have the character of universal jurisprudence or the law of nations. If generally, wherever Moors, negroes, or Indians were under the legislative (juridical) power of Euro peans, only a partial recognition should be made of rights and privileges which, in like circumstances, would be attributed to whites, or men of the European race, there might be a legal attribution of social disability or inferioritj'-, having a juridical origin similar to that liability to chattel slavery which formerly was maintained by the law of nations. If no such condition of inferiority should become established by the general practice of nations, the law of nations must be held to be the same in respect to all races of men ; so that in every jurisdiction, irre spectively of local customary law and statutes (jus proprium), a person of one of those races would be the subject of legal re lations in the same manner as a person of any other race. § 169. It would be ditficult to discover any general harmony of practice in this respect among civilized nations, at any par ticular point of time during the period in which the Enghsh colonies were founded in America, or at any period since the modern extension of the African slave trade. The slavery of African negroes was certainly continued after their conversion in all the colonies planted by the difterent European nations. And if reference is made to the practice of Mohammedan states EFFECT ON CHATTEL SLAVEET. I'gT in analogous circumstances, it does not appear that they ever have recognized the religion of persons held in bondage as determining their condition in respect to the possession of per sonal liberty, or considered the conversion of a slave, of a dif ferent faith, to Islamism, a legal cause of enfranchisement. A difference of creed is viewed only as one of the circumstances which justify the original act of enslavement." It is probable, however, that, with them, adherence to the faith causes a certain recognition of legal personahty and capacity for rights ; = and, from the intimate connection between tlieir civil and religious codes, that it would be unlawful to sell such converted slave to any one who was not of the same faith. In which case such slave would really no longer be treated as a chattel, or an object of property, in the same degree as when unconverted. The slavery of Christianized Moors and negroes was for a time maintained in some parts of Europe ; " though it is uncer- ' It is commonly thought, that by the Mohammedan law, a slove of another creed is emancipated on conversion to Islamism. But this is incorrect Hedaya : Hamil ton's Translation, Vol. I. p. 420 ; on manumission. " Ittak, or the emancipation of slaves, is recommended by the prophet, who has declared, ' Whatever Mussxilman shaU emancipate a slave, (being a believer,) God will, for every member of the slave so emancipated, release a similar member of tbe emancipated from hell-fire.' " p. 434. "If the slave of an infidel nation, becoming a convert to the faith, retire into the Mus sulman territory, hd is free ; because, when the slaves from the countries around de serted their masters, and came unto, and embraced the doctrines of the prophet, ho declared, 'These are the freedmen of God;' and also, because the slave, at the time he delivers himself up, is a Mussulman, and bondage is not established in a Mussul man originally." And see Putn.am's Mag., 1865, June, on Slavery in the Ottoman Empire. Mr. Sumner, Orations and Speeches, 12mo, Vol. I. p. 292, note, says : " In point of fact, freedom generally followed conversion ; but I do not find any injunction on the subject in the Koran." " Hamilton's Hedaya, Introd., p. 57. " The law in many instances affords them [slaves] protection against injustice, and declares them to he ' claimants of right,' " — and Book 32 and 36 of the some — that slaves or bondmen of various conditions are recognized by the law. ylJidls— absolute slaves, and Jlfokatibs — slaves partially emanci pated under some conditions of service or payment Mazoons — slaves licensed to trade There ore slaves transferable ond others not ' That enslaved heathens and Mohammedans in Spain and Portugal were not made free on becoming Christianized; Gudelin, de Jure Novissimo, Lib. i., c. 4, 7. "Ao mos est ibi servos servos permanere, quamvis religionem Mahumetis ejuroverint, et Christiana imbuantur. Quod absurdum videri non debet, cum sententia sit approbata servitutem personarum et dominicam potestatem legi divina; non adversari. Didacus Covar. ad req. peccatum, p. 2, § 11. Verum recens est Pii Quinti constitutio exstans ad Petrum Mathaeum. In Summa Constitutionum summorum Pontifioum captives fieri liberos, suscepto sacro baptismate, qui sub tutelam civis cujuspiam Itomoni confugerint." Vinnius: Comm. Lib. i., tit. 3. "Ac mos est (in Lusitania oliisque Hispania; partibus) eo quod servum esse non adversaretur legi Divinoe. And Bodin ; Repub. KnoUes' Trons. pp. 41, 42. Bishop England's tenth letter ;— Works, vol. 3, p. 152. Irving's Hist of Columbus, B. xiv., c. 3 ; — "It was permitted to carry to the colony [Hisponiolo, A. D. 168 LAW OP NATIONS HOW KNOWN. tain Avhether they were regarded as chattel slaves, or as legal persons held to services, as were the feudal serfs of the same countries In other European states, the slavery of Moors, negroes, and Indians was never actually recognized. And finally, at some period in the 18th century, no distinction was recognized in Europe between persons of difterent races being domiciled or permanent inhabitants, iu respect to the enjoyment of personal liberty. The slavery of Christianized negroes brought over from slaveholding jurisdictions and regarded as aliens, was during the 17th and 18th centuries supported in some instances and in others disallowed.' § 170. But though it may be difiicult to ascertain whether, at any particular period, some one rule or principle has been maintained by a certain number or class of nations, it may be easier to discover whether, in the jurisprudence of any one nation, a recognized legal eftect has been judicially ascribed to a rule supposed to jDrevail among all nations, or to a principle of local origin. A legal effect must be produced by the application of either municipal (internal) or international law. In examining the municipal (internal) law of any one state with reference to the present subject of inquiry, it is to be noticed that though such converted slaves may not have been set at liberty, enfranchised, or put on an equal footing with the other subjects of such do minion in respect to the enjoyment of personal liberty, yet if their condition was recognized as an incident of a relation between legal persons, consisting of correlative rights and obli gations, (like that of the feudal serf, or of the Mohammedan slave in Mohammedan countries, according to the view above taken of his condition,) that condition of bondage could no longer be regarded in the jurisprudence of that nation, or of any other, as the effect of a law of nations — universal jurisprudence, or of natural reason as shown by that law. Because, as has been 1501] negro slaves bom among Christians; (cites Herrera, Hist Ind. decad. 1, Lib. iv., c. 12) that is to say, slaves born iu Seville and other parts of Spain, the children ond descendants of natives brought from the Atlantic const of Aliica, where such tralEc had for some time been carried on by the Spaniards and Portuguese." ' The authorities showing tliis will be presented in a chapter treating of tho pri vate international law in connection wiih shivery during tho colonial period. LAW OF NATIONS HOW KNOWN. 169 shown in § 112, it is chattel slavery alone that can be the same stutus in different countries, and the servile condition of a legal person varies in different countries, according to the nature of the correlative rights and obligations, in respect to other persons, and in respect to things, which may be attributed to the master and bondman. The condition of such person, in whatever obli gations it might consist, would indeed have been regarded as agreeable to natural reason in the view of all tribunals acting under the state establishing that condition ; because all the laws of a state are promulgated as jural laws, and received in its own jurisdiction as consistent with natural reason. But it would no longer have been taken to be a condition proved to be jural from the general reasoning of mankind. And if, in any countries wherein negroes or Indians were legally held as slaves, notwithstanding their conversion to Chris tianity, such slavery had been specially supported by positive legislation, it would therein be more doubtful whether that con tinued slavery could have been, in such countries, judicially attributed to universal jurisprudence. But according to what has been said on this? point in the elementary examination of the subject, given in the second chapter, a doctrine of this character is properly distinguishable only in the judicial application of private international law.' The slavery of Christanized negroes, Moors, or Indians might have been continued in ono or more countries of which they were domiciled inhabitants, and it may not be easy to discrimi nate whether it was therein judicially attributed to a principle of universal jurisprudence, or to some law of national origin (statute or local custom), being a jus proprium as distinguished from a jus gentium. But where the question may have occurred under the private international law, as where a Christianized negro, &c., had been brought into the forum of jurisdiction from some foreign country, wherein he had been (it was ad mitted) lawfully held in slavery, and the question was of the continuance " of that condition, it would become necessary for the tribunal to decide whether it was supported in the forum by force of the law of nations, or whether its continuance would ' See ante, §§ 94, 101. ' See aiUe, § 68. 170 THE ANCIENT PRACTICE. . depend on statute and local precedent, including the so-called rule of comity, the nature and limits of which have also been examined in the second, chapter." § 171. It seems probable that, in the first instances of an inquiry as to the legal condition of a Christianized Moor, negro, or Indian, judicial tribunals would have referred to the former legislative (juridical) action of European states in reference to the slavery of whites, or persons born in EurojDC. For, as has been shown, the slavery of infidels and heathen negroes and Indians was of the same origin ; that is, was ascribed to princi ples traceable in the history of jurisprudence as part of the cus tomary law of the civilized world. In tracing the decay of that chattel slavery which, without any distinction of race or physi cal structure, had been an element of civil society under the Roman Empire, it was shown, that though the civil power did not immediately determine the legal rights and obligations of natural persons according to religious belief, and though as a general rule, the slave did not obtain personal liberty, yet the distinct attribution of legal personality and capacity for rights, while yet in a»servile condition, became universal ; while at the same time that condition became judicially attributable to the law of some one state only, or to some jus proprium, and was no longer a status equally recognized in municipal (internal) and in international law.' By reverting thus to the ancient doc trines of European jurisprudence it might perhaps have been held, and consistently with the limits of the judicial function, not, indeed, that the baptized or converted slave acquired free dom, but that his condition of servitude was referable only to the juridical action of some one state ; and that, if lawful in the place of his domicil, it could no longer be internationally recognized as if still attributed to the law of nations. § 172. From this it appears that, admitting that the slavery of Africans, Moors and Indians could not be supported in England or the colonies under the law of villenage,' it would be a ques tion which might be differently answered at different periods be tween the first planting of the English colonies in America and the end of the 18th century, whether the law of nations, en- ' See ante, §§ 110, 113, 114. ' See ante, §§ 160-162. ¦ Seo ante § 141. LAW OF NATIONS IN TUE LAW OF A STATE. 171 tering into the common law of England as a judicially received indication of natural reason, could be held to support the slavery of Christianized Moors, negroes or Indians, considered either as a chattel condition or as a relation between legal persons. § 173. While the general principle is fully relied on, that the ordinary juridical usage of other nations is properly referred to by the tribunals of any one state or nation, administering private law as the will of tlie state, it is always at the same time re membered that each nation or political possessor of sovereign power is, in its estimate of the requirements of natural reason, entirely independent of the opinion of other similar states or persons. And, besides, such is tho development of the law of nations, tliat, as has in this chapter been illustrated in the his tory of the Roman law, and as has been explained in the second chapter, the law of nations must, in any state wherein laws have long been administered, be supposed to have been already applied as part of the customary Liav of that slate.' It is hardly possible to conceive the jurists or the judicial officers of such a state as deriving a rule of action simply from the practice of foreign states, and without making a juristical reference to some act of legislation, or precedent of local authority, indicating the fact that such lav} of natio7is is already part and parcel of the law of tho land. Especially, since it is to be remembered that the law of nations is mutable ; ' that it changes by the sev eral action of different nations, acting independently of each other, it becomes the duty of the historical jurist, and of the ju dicial tribunal, rather to look for a part of their national com mon law as being the state's conception of universal jurispru dence, than to determine what is the doctrine, on any one point, most commonly received by certain nations whom the state has recognized as juridical guides. § 174. Each sovereign state or nation is in like manner inde pendent of every earthly power in the accrfi^tation and enforce ment of any rule which may be attributed to Christianity. Though some principles juridically applied by European nations may be attributed to, or have been historically derived from, ' Ante §§ 94-97. ' ^nte § 39. 172 OHRISTIANITT IN COMMON LAW. the Christian code of morals, their legal authority must depend upon their adoption by each several state or nation as a rule of action, and is not simply asserted by its judicial tribunals on their own recognition' or perception of that religion. Though it is sometimes said that Christianity is part of the common law of England,' yet, what rules of moral conduct are to be taken to have the effect of law can, by a tribunal be ascertained only according to some known judicial criterion. It is not what the judge shall consider a requirement of Christianity, nor even what some church may promulgate as a Christian rule of duty, but only what the state may have acknowledged for such. The maxim, that Christianity forms part of the common law, is now (that is, at a period when the law of England has so long ex isted as a customary law) of little or no juridical force. Indeed when, at any period of the Christian era, Christianity is judi cially referred to as an indication of the rules of natural reason which may be enforced as law, on a presumption that it is the will of the state to make it a coercive rule of action, it cannot be distinguished from the law of nations of that period : that is, from those principles which all Christian nations (gentes mora tiores)' have agreed in sustaining with the force of positive law. Otherwise it must be identified with the conscience of the tri bunal, or the exposition of some church or body of Christians.' § 175. But whatever may have been the principles, aftecting the freedom of natural persons, which in the judgment of the supreme power of the state were attributable to Christianity, it cannot be supposed that if that supreme power gave effect in one part of its dominions to any one coercive rule, us a conse quence of that doctrine, it should make a contrary I'ule to be ' MUton in his Defensio pro Populo Anglicono, p. 103, says that "by the laws of Edward the Confessor, it was o fundamental maxim of our law, which I have formerly mentioned, by which nothing is to be accounted o law that is contrary to the lows of God, or Reason." The so-cailed lows of Edward the Confessor ore probably only a tra ditionary view of the common law of his time ; see Hale's Hist, of Com. L., by Rem mington, p. 5, 11. B. Noy's Maxims, I'.), — "Four lessons to be observed where con trary laws come in question. 1. Tho inferior low must give place to the superior, 2. The low general must yield to tho law special. 3. Man's laws to God's laws. 4. An old low to a new law." The recognition of the law of God as supreme is made in every system of law. But if thS state is the expositor ? — see ante §§ 14-16. The legality of slavery in England before tho Norman conquest has been noted ante § 148, and tha doctrine of Neul v. Farmer, § 107, n. ' Ante p. 33, note. ' Ante § 101 and note. LAW OF NATIONS IN ENGLISH LAW. 173 law in another part. It does not follow that, if the supreme legislative power in the British Empire sanctioned slavery in one part of its dominions, it could not, or did not, prohibit it in another. But it must be presumed that, if it was sustained in any one part, it could not be judicially considered illegal in the other, on the ground of being contrary to the view of Christian morality sustained by the state. If Christianity is to be held part of the common law of England, a sanction given to the slavery of Africans or negroes, in any part of the world, is a proof that the state did not at that time regard such slavery as contrary to Christianity, or as being for that reason forbidden by the common law.' The question in this point of view is, not so much whether chattel slavery was maintainable under the local customary law of England ; or whether it was maintained by statute law, either in England or in the colonies, or in both : but whether it was recognized at all, and held to be any where consistent with the moral code of a Christian nation. § 176. The recognition of principles having the character of universal jurisprudence or a law of nations, as has been shown in the second chapter, is most distinctly made in the judicial enunciation of private international law : that is, where the customary or unwritten law of the country is applied to de termine the rights and obligations of private persons, in those interests and actions which are beyond the control of single states,' or where persons are recognized as sustaining rights and obligations in relations which have become existent under the juridical and legislative power of some foreign state.' The English judicial decisions which have this international bearing, in connection with African slavery, will be noticed hereafter. But the recognition by the state of a principle, as part of ' Mr. Hildreth, (Hist. U. S. vol. 2, p. 427,) commenting on juristicol opinions in En within this, our reolm of England, or any other of our sold dominions." 1 Hen. St. 57, Stith, app. I., p. 1. The King's ."Articles, &c."— 1 Hen. 74, pro vide for altering the ordinances of the local council — " so olwoys as the same oltera- tions may be such as may stand with and be in substance consonant to the laws of England, or the equity thereof; ' and declare that the ordinances ofthe crown should bo so consonant, and that those of tho council in England should be " o» near to tho common lows of England ond the equity thereof as may bo." The royal ordinance, 1607 — 1 Hen. 78, Umits tho local councUs "so as always nono of tha said acts * '?be contrary to the laws and statutes in LAWS OF VIRGINIA. 229 the proceedings of this assembly, recently first published by Mr. Bancroft from documents obtained from England, in New York Hist. Soc. Coll., 2d series, vol. iii., there are several en actments respecting servants : p. 346, that an idler or^ runa gate, though a freed man, may be appointed to serve a master for wages : p. 350, for the punishment of a certain servant, for ill Conduct towards his master, by pillory and whipping : p. 352, servants forbidden to trade with Indians : p. 355, for bidding marriage of servants without consent of master or a magistrate, and regulating time of service in certain cases. There are other provisions restricting the intercourse of the colonists with the Indians. 1630.' — Resolution. — " Hugh Davis to be soundly whipped before an assembly of negroes and others, for abusing himself to the dishonor of God and the shame of Christians, by defiling his body in lying with a negro." 1 Hen. 146. 1640. — " Eobert Sweet, to do penance in church, accord ing to the laws of England, for getting a negroe woman with chUd, and the woman to be whipt." — 1 Hen. 552. ^ 1642-3, c. 21, 22. — Provisions relating to runaway ser vants and hired freemen : c. 26, how long servants brought over without indentures shall serve : c. 29, servitude for offences abolished : c. 40, forbids dealing with the servants or appren tices of others.— 1 Hen. 253, 257, 259, 274. this our realm of England, or in derogation of our prerogotive royal." The patent of 1609, to the London Company, Art. 22, contains o guorantee simUor to that in Seo. 15 of first patent, to " subjects which shall go and inhabit within the said colony, &c," of the liberties of "free denizens ond natural subjects within ony other, &o." The 23d articlo limits the legislotive powers of the councils, — " so olwoys os the said statutes, ordinances, and proceedings, as near as conveniently moy bo, be ogreeable to the laws, statutes, government and policy of our realm of this Englond." (1 Hen. tl6.) Tho patent of Hill limits tho Icgi.slutivo power, soc. 7, to laws, "not contrary to tlio lows ond statutes of this our realm of England." Sections 14 and 15 are ro- mnrkable for giving special powers to the council, to seize ond punish vorious kinds of laborers for wages on their desertion. Mr. Bancroft quotes from "Briefe Declaration, &c., statement thot in 1619 the new governor. Sir Geo. Yeordley, under his instructions, given by the Company in England, procloimed, " that those crueU lawes by which we had soe longe been gov erned, were now abrogated, and that we were to be governed by those free lawes which his Majesties subjectes live under in Englande." ' 1 Hild. 208. " Orders were at the same time (1633) sent to Virginia for a good understanding between tho two colonies, ond that neither should entertain fugitives from the other." 230 LAWS OF VIRGINIA. \,\ 1649, c. 2.^-Declares aU imported male servants to be tithables, ' - , 1654-5, c. 6. — For indenturing Irish servants, 1 Hen. 411. 1655-6, c. 1. — Indian children in families of colonists, not to be slaves.-^l Hen. 396. ,, , 1657, c 85. — Provisions of 1654-5, c. 6, extended to all ali^n servants. — 1 Hen. 471. 1657-8, Q. 16. — Penalty for servants running away, and remedy for. servants who may be misused : c. 18, courts to de termine indenturing : c. 46, What persons are tithable — " aU male, servants hereafter imported into this colony, &c., liable to pay country levies, and all negroes imported whether male or female, and Indian servants male or female, however procured, being' . sixteen years of age, &c." (this act further explained by 1661-2, c. 54) ; c. 48, transfers of the service of Indian children prohibited : c. 56, noe. collonie servants — " that no person for anie offence alreadie committed shall be adjudged to serve the collonie hereafter." ]^59-60, c. 13. — Eepeals act indenturing aliens in service (1657, c. 85,) — " that for the future, no servant coming into the country without indentures, of what Christian nation soever, shall serve longer than those of .our owne country of like age : c. 15, an act for the pay of Dutch masters of vessels bringing in runaway servants (refers to articles of peace, lately conclu ded with the Dutch) : c. 1 6, encouraging importation of " negro slaves" by "the Dutch and other strangers." — 1 Hen. 538, 539, 540. 1660. — Upon refusal of the Indians of a certain tribe to satisfy a certain award against them, so many of them as the court shall think fit shall be apprehended and sold into a foreign country. — 2 Hen. 15. ' Tithables were persons ossessed for u poll-tax, otherwise called tho " country levies." At first, only free white persons were tithablo. The law of 1645, c. 4, pro vided for a tax on property ond til liable persons. By 1648, c. 6, property was releos- ed and taxes levied only on the tithoblos, at o specified poll-tax.' Therefore by class ing servants or slaves as tithoblos, the law attributes to thom legol personality, or a membership in tho social state, iiicoiislstont with tho condition of a ohottcl or proper ty. That froe whites above tho age of sixteen years wero tithables, In this sciiso Of the word, see Beverley, p. 218 : laws of 1661—2, c. 54 ; 1738, o. 8, § 3, 1718, c. 21 LAWS OF VIRGINIA. 231 1660, c. 22, 1660-1, c. 10, 1661-2, c. 15, 98, 101, 102, 103, 104, 105. — Various provisions for punishment of runaway servants, mostly by extending their period of service ; for pre vention of cruelty of masters, &c. : c. 15, entitled. Burial of servants or others privately, prohibited : c. 54, What per sons are tithable. — 2 Hen. 118. 1661-2,0.138 — Concerning Indians — (margin) " This act appears to be a digest of the former laws relating to the In dians which are very numerous." — Enacts " that what EngUsh man trader or other shall bring in any Indians as servants, and shaU assigne them over to any other, shall not sell them for slaves, nor for any longer time than English of the Uke ages should serve by act of assembly." — 2 Hen. 143. Injuries done them to be remedied by the laws of England, as if they had been done to an Englishman. See abstract in 1 Hildr. 515. 1661-2. — Eeciting that a "Powhatan Indian sold for life time to one E. S., by the King of Wainoke Indians, who had no power to sell him, being of another nation, it is ordered that the said Indian be free, he speaking perfectly the EngUsh tongue and desiring baptism." — 2 Hen. 155. 1661. March. — " The Committees report that the great loss and damage sustained by Mr. WiUiam Dromond through the injustice done by the court of Boston in New-England ought to be repaired, and since the said court have returned no satis factory answer to the letter of tho honorable governor and council of Virginia, wee are necessitated to find the least of ill expedients to repair the said Mr. Dromond ; it is therefore ordered by this present grand assembly, there be seized to the value of fforty pounds sterling money, out of the estate of some persons relateing to the said government of Boston, which is in consideration of wages due for such a servant's time, as was iUegally cleared from the said Dromond's employ in New-Eng land, and doc accordingly order the same." 2 Hen. 158. 1662. c. 12. — " Whereas some doubts have arisen whether children got by any EngUshman upon a negro woman should be slave or free. Be it, &c., that aU children borne in this country shall be held bond or free, only according to the condi- 232 LAWS OP VIRGINIA. tion ofthe mother:" By c. 13, women servants, whose common employment is working in the ground, are made tithable. 1663,' c. 8. — That runaways be pursued at the public ex pense, " and in case the said fugitives shall, notwithstanding such pursuit, make an escape to any of the Dutch plantations, it is enacted that letters be written to the respective governors of those plantations to make seizure of ah such fugitive ser vants, &c."— 2 Hen. 187. 1666. c. 9, 10. — Eespecting servants' time, and'runaways. — 2 Hen. 239. 1667. c. 3. — " That the conferring of baptisme doth not alter the condition of the person as to his bondage or ffreedom, that divers masters, ffreed from this doubt, may more care fuUy endeavour the propagation of Christianity, &c." — 2 Hen. 260. 1669. c. 1. An act about the casuall hilling of slaves. — " Whereas the only law in force for the punishment of refrac tory servants resisting their master, mistress, or overseer, can not be inflicted upon negroes [slaves are here meant, because the law referred to — 1661-2. c. 104 — punishes such servants by extending their time]," nor the obstinacy of many of them by other than violent means be suppressed. Be it, &c., if any slave resist his master (or other by his master's order correcting him) and by the extremity of coercion should chance to die, that his death shall not be accounted felony, but the master (or that other person, &c.) be acquitted from molestation, since it can not be presumed that prepensed malice (which alone makes murder felony) should induce any man to destroy his own es tate. 2 Hen. 270.— Ee-enacted 1705, c. 49. 1723. c. 4. 1748, c. 31. Eepealed 1788, c. 23. v. 2, Tucker's Bla. app. 46. 1670. c. 3, Election of Burgesses by whome. " Whereas the usual way of chuseing burgesses by the votes of all persons who haveing served their time are ffremen of this country, &c. &c., and whereas the lawes of England grant a voyce in such elec tion, only souch as by their estates real or personall have inter- 192. ' In this year an insurrection was plotted by a number of servants. Soo 2 Banc. LAWS OF VIRGINIA. 233 est enough to bye them to the endeavour of tho publique good," — enacts that " nono but ffreeholders and housekeepers" shaU have votes. [Comp. law 1723, c. 4.] c. 5. " Whereas it has been questioned whether Indians or negroes, manumitted or othewise free, could be capable of purchasing Christian servants, it is enacted that no negro or Indian, though baptized and enjoying their own freedom, shall be capable of any such purchase of Christians, but yet not de barred from buying any of their own nation :" c. 12, " whereas some disputes have arisen whether Indians taken in war by any other nation, and by that nation that taketh them sold to the EngUsh, are servants for life or term of years, it is resolved and enacted that all servants not being Christians, imported into this colony by shipping,' shall be slaves for their lives; but what shall come by land shaU serve, if boys or girls until thirty years of age, if men or women, twelve years and no longer." 2 Hen. 280, 283. 1670, ap. 20— extract from the records ofthe general court, 2 Hen. 509, Hist. Doc. margin — " Convicts ¦, (caUed ' jail birds') from the prisons in England, not permitted to be landed in Virginia." 1671. c. 7. "That any strangers desiring to make this country the place of their constant residence, may upon their petition to, &c., and taking the oaths &c. to his majesty, be per mitted to a naturaUzation, &c. * '" Provided that the benefit of such naturalization be confined and esteemed to extend only to the government of Virginia, beyond which this grand assem bly pretend to noe authority of warranting its sufficiencie, &c." 2 Hen. 289. 1676. c. 1. {Of Laws under Bacon's usurpation.) An act for carrying on warre against the barbarous Indians — "That all Indians taken in warre be held and accounted slaves dureing Ufe." 2 Hen. 346. ' Slapping seems to refer to negroes ; but it is supposed that about this time Indians were imported into New England and Virginia, as sloves, from the West Indies ond the Sponish Main. 1 HUdreth Hist. 622. Hist. Documents, 1070, 2 Hen. 615. — Enquiries to the Governor of Virginia, submitted by the Lords Commissioners, &c. By answers to questions 15 and 16, it appears that of 40,000 persons, there wero 2,000 "bhck slaves, 600 Christian servants, and that the yearly immigration of servants was about 1,600, ofwhich most aro EngUsh, few Scotch, ond fewer Irish, ond notobovo two or three ships of negroes in seven yeors." 234 LAWS OF VIRGINIA. 1676—7. 'Order that Indian captives taken by soldiers in war should be the property of such captors. 2 Hen. 404— and note and 1679, c. 1; to the same effect 2 Hen. 432, 440. 1680. c. 2. An act for naturalization by Governor, &c. c. 7, An act ascertaining the time tvhen negroe children shall be tythable. c. 8, An act lycensing a free trade with the friendly Indians, c. 10, An act for preventing negroes insurrections. " Whereas the frequent meeting of considerable numbers of ne groe slaves under pretence of feasts and buriaUs is judged of dangerous consequence," — enacts that no negro or other slave shall carry arms or go from plantation without certificate, and if such " shall presume to lift up his hand in opposition against any Christian," shaU be punished with thirty lashes. (See I. 1748, c. 38, § 20.) " That if any negro or other slave shall absent himself from his master's service and lye hid and lurk ing in obscure places, committing injuries to the inhabitants, and shall resist any person or persons that shall by lawful au thority be employed to apprehend and take the said negroe, that then, in case of such resistance, it shall be lawful for such per son or persons to kill the said negroe or slave soe lying out and resisting, &c. 2 Hen. 464, 480, 481, (continued,l705, c .49, sec. 37.) 1682, c. 1. — An act lo repeule a former latv making Indians and others ffree. — 2 Hen. 490. Preamble, after reciting act of 1670, c. 12, " and for as much as many negroes, moores, mol- latoes, and others, borne of and in heathenish, idoUatrous, pa gan, and Mahometan parentage and country, have heretofore and hereafter may be purchased, procured, or otherwise ob- teigned, as slaves, of, from, or out of such their heathenish country, by some well-disposed Christian, who, after such their obteining and purchasing such negroe, moor, or molatto as their slave, out of a pious zeale have wrought the conversion of such slave to the Christian faith, which by the laws of this country doth not manumit them or make them free, and afterwards such their conversion, it hath and may often happen that such ' The third charter, so coUed, of Virginia is dated October 10, 1676. The most important clause in connection with the subjectis — "declare and grant that nil the subjects of us, our heirs and successors from time to time inhabiting within our colony and plantation of Virginia, shall have their immediate dopondcnco upon tho Crown of England, under the rule, &c. 2 Hen. 532. LAWS OF VIRGINIA. 235 master or owner of such slave being by some reason inforced to bring or send such slave into this country to seU or dispose of for his necessity or advantage, he, the said master or owner of such i^ervant, which, notwithstanding his conversion, is reaUy his slave, or his factor or agent must be constrained either to carry back or export againe the said slave to some other place where they may sell him for a slave or else depart from their just right and tytle to such slave, and sell him here for noe longer time than the English or other Christians are to serve, to the great losse and damage of such master or owner, and to the great discouragement of bringing in such slaves for the fu ture, and to noe advantage at all to the planter or buyer ; and whereas alsoe those Indians that are taken in warre or other wise by our neighbouring Indians, confederates or tributaries to his majestic and this his plantation of Virginia, are slaves to the said neighbouring Indians that soe take them, and by them are Ukewise sold to his majesties subjects here, as slaves. Bee it therefore enacted by the governour, councell, and burgesses of this general assembly, and it is enacted by the authority afore said, that all the said recited act of the tliird of October, 1670, be and is hereby repealed and made utterly voyd to all intents and purposes whatsoever. And be it further enacted by the authority aforesaid, that all servants except Turkes and Moores, whilst in amity with his majesty, which from and after pubUca- tion of this act shall be brought or imported into this country either by sea or land, whether negroes. Moors, mollatoes or In dians, who and whose parentage and native country are not Christian at the time of their first purchase of such servant by some Christian, though afterwards and before such their im portation and bringing into this countiy, they shall be converted to the Christian faith ; and all Indians which shall hereafter be sold by our neighbouring Indians, or any other trafiqueing with us, as for slaves, are hereby adjudged, deemed, and taken, and shall be adjudged, deemed, and taken to be slaves, to aU intents and purposes, any law, usage, or custome to the contrary not withstanding." This provision, re-enacted in nearly the same terms in the revisions of 1705. c. 49, § 4. 1753, c. 2. 236 LAWS OF VIRGINIA. 1682, c. 2. — An act declaring Indian women servants tith ables.— -Whereas it hath been doubted whether Indian women servants sold to the English above the age of sixteene yeares be tythable. Be it, &c., that all Indian women are and shall be tythables, and ought to pay levies in like manner as negroe women brought into this country doe and ought to pay. 1682, c. 3. — An additional act for the letter preventing in surrections by negroes. — 2 Hen. 490, 492. 1684, c. 3. — " An act repealing act concerning the pursuit of runawayes" (1663, c. 8), because found " by experience to be inconveniente." — 3 Hen. 12. 1691, c. 9. — Aifi act for a free trade with Indians. — (He ning's note.) — " This act was re-enacted in the revisal of 1705, and again in the edition of 1733, in which last it forms sect. 12, of ch. 52. This is the same law on which the old general court first founded their decision, that the right of making slaves of Indians was taken away ; though at that time it had not been 'discovered that the act existed as far back as 1691. The Su preme Court of Appeals have since extended the principle to cases where Indians were brought in between 1691 and 1705.' c. 16. — An act for suppressing outlying slaves. — That such slaves shall be arrested by the sheriff or a justice's warrant ; that in case of resistance, &c., " in such cases it shall and may be lawfull for such person or persons to kill and distroy such negroes, mulattoes, and other slave or slaves by gunn or any otherwaise whatsoever." Compensation to be made to master in such case. " And for prevention of that abominable mixture and spurious issue, which hereafter may encrease in this do minion, as well by negroes, mulattoes, and Indians intermar rying with EngUsh or other white women, as by their unlawful accompanying with one another. Be it, &c.. That for the time to come whatsoever English or other white man or woman being free shall intermarry with a negroe, mulatto, or Indian man or woman, bond or free, shall within three months after such mar- See Hudgins v. Wrights, 1 Hon. and Munford's R. p. 139; PaUos and otli. v. IIUl and oth. 2 do. p. 149 ; Butt ». Rachel, 4 Munford's R. p. 209 ; olso. 1 Hon. Stat. Pref. vi. Ill LAWS OF VIRGINIA. 237 riage be banished and removed from this dominion for ever, and that the justices of each respective countie within this do minion make it their particular care that this act be put in ef fectual execution." Other provisions are : white women having a bastard by a negro or mulatto, to pay £15 sterling, in default of payment to be sold for five years, such bastard to be bound by church wardens till thirty years of age. Servant women of fending, to be Ukewise sold after the expiration of their term of service. " And for as much as great inconveniences may happen to this coimtry by the setting of negroes and mulattoes free, by their either entertaining negro slaves from their master's service, or receiving stolen goods, or being grown old bringing a charge upon the country ; for prevention thereof, Be it, dtc, That no negro or mulatto be, after the end of this present session of assembly, set free by any person or persons whatsoever, unless such person or persons, their heirs, executors, or administrators pay for the transportation of such negro or negroes out of the country within six months after such setting them free, upon penalty of paying ten pounds sterling to the church wardens of the parish where such person shall dwell, with which money or so much thereof as shaU be necessary, the said church wardens are to cause the said negro or mulatto to be transported out of the country, &c. 16952, c. 3. — An act for themore speedy p>rosecution of slaves committing capital crimes. — (" This is the first law constituting a tribunal expressly for the trial of slaves." — Marg. note.) Whereas a speedy prosecution of negroes and other slaves for capital offences is absolutely necessarie, that others being detered by the condign punishment inflicted on such offenders may vig orously proceed in their labours and be affrighted to commit the like crimes and offences ; and whereas such prosecution has been hitherto obstructed by reason of the charge and delay attending the same ; Be it, &c." Slave committing a capital offence to be committed to the jail of the county ; sheriff to give notice to the governor, " who is desired and impowered to issue out a com- inission of oyer and terminer directed to such persons of the said county as he shall think fitt, which persons forthwith after the receipt of the said commission are required and commanded 238 LAWS OF VIRGINIA. publicly at the court house of the said county to cause the of fender to be arraigned and indicted, and to take for evidence the confession of the party, or the oaths of two witnesses, or of one with pregnant circumstances, without the solemnitie of jury, and the offender being found guilty as aforesaid, to pass judg ment as the law of England provides in the like case and on, such judgment to award execution." See 1705, c. 11. 1699, c. 12. — An act for laying an imposition upon servants and slaves imported- into this country, &c. — 3 Hen. 193. For a history of the legislation of Virginia imposing duties on imported slaves, and titles of twenty-three several statutes from this date to 1772, see 2 Tucker's Bl., App. 49. 1705, c. 2. — An act regulating elections, &c. — 3 Hen. 236, Sec. 3 enacts that "every freeholder" shall appear and vote under a penalty. 4. Excepts from the obligation and right any freeholder " being a feme-sole or feme-covert, in fact, Tinder age, or recusant convict. 6. " Every person who hath an estate, &c., shall be accounted a freeholder." 1705, c. 4. — An act declaring who shall not bear office in this country. — 3 Hen. 250. " That no person whatsoever al ready convicted, or which shall hereafter be convicted, &c., of treason, murther, felony, &c., &c., nor any negro, mulatto, or Indian, shall from and after the publication of this act bear any ofiice ecclesiasticall, civili, or military, or be in any place of public trust or power, within this her majesty's colony and do minion of Virginia, and that if any person convicted as aforesaid, or negro, mulatto, or Indian shall presume to take upon him, &c.," and for clearing all manner of doubts which hereafter may happen to arise upon the construction of this act, or any other act, who shall be accounted a mulatto. Be it, i&c. That the child of an Indian, and the child, grandchild, or great grandchild of a negro shall be deemed, accounted, held, and taken to be a mulatto." No provision against their voting, c. 7, 3 Hen. 258, re-enacts the law of 1G61-2, c. 54, respecting tithables. c. 11. An act for the speedy and easy prosecution of slaves committing capitall crimes. — 3 Hen. 269. Similar to the act of 1692, c. 3, but compensates the owner upon the conviction LAWS OF VIRGINIA. 239 of the slave. c. 12. " An act to prevent the clandestine transportation or carrying of persons in debt, servants and slaves, out of this colony."— 3 Hen. 270. c. 19. — An act for establishing the general court, &c In § 31, " That Popish recusants, convict negroes, mulattoes, and Indian servants and others, not being Christians, shall be deemed and taken to be persons incapable in law to be witnesses in any cases whatsoever." c. 23. — An act declaring the negro, mulatto, and Indian , slaves within this dominion to be real estate. — 3 Hen. 333, sec. 1. The words are, " to be real estate (and not chattels)." This affected slave property only under the laws of descent and de vise, judgments, executions, &c. See Chinn v. Eespass, 1 Mun roe's E. 28. c. 45. — An act for naturalization. — 3 Hen. 434, sec. 1. Aliens may be naturaUzed by " the governor or commander-in- chief of this colony and dominion." Sec. 7 " Provided that nothing in this act contained shaU be construed to enable or give power or privilege to any foreigner to do or execute any matter or thing, which by any of the acts made in England concerning her majesty's plantations he is disabled to do or exe cute." c. 48. — An act concerning marriages. — 3 Hen. 441. § 6. Servants not to marry without consent, &c. Penalties. c. 49. — An act concerning servants and slaves, 3 Hen. 447, sec. 1. — How long servants without indenture, being Ohris- tainslor of Christian parentage, shaU serve. 2. The age to„be ad judged by the court. 3. When to produce their indentures. 4. Who shall be slaves (similar to 1682, c 1). 5. Penalty for importing and seUing free persons as slaves. 6. " Provided al ways that a slave's being in England, shaU not be sufiicient to discharge him of his slavery, without other proof of his being manumitted there." 7. Duty of masters to servants, restriction as to correction. 8. Complaints of servants, how redressed. 9. Sick and disabled f servants, how provided for. 10. Servants' wages, how recovered. 11. And for a further Christian care and usage of aU Christian servants. Be it, &c., that no negroes, mu- 240 LAWS OF VIRGINIA. lattos or Indians, although Christians, Jews, or Moors, Mahomet ans, or other infidels, shall, at any time, purchase any Christian servant nor any other, except of their own complexion, or such as are declared slaves by this act ; and if any negro, mulatto or In dian, Jew, Moor, Mahometan, or other infidel, or such as are de clared slaves by this act, shall, notwithstanding, purchase any Christian white servant, the said servant shall, ipso facto, become free and acquit from any service then due, and shall be so held, deemed, and taken. And if any person, having such Christian ser vant, shall intermarry with any such negro, mulatto, or Indian, Jew, Moor, Mahometan, or other infidel, every Christian white ser vant of every such person so intermariying, shall, ipso facto, become free and acquit from any service then due to such mas ter or mistress so intermarrying, as aforesaid." 12. " Contracts of masters with their servants void, unless approved in court." 13. Provides freedom dues at expiration of indentures of ser vants. 14. Penalty on servants resisting their masters. 15. Penalty for dealing with servants or slaves, without leave of their owners. 16. Punishment by stripes for so doing. 17. Servants may be whipped in lieu of fines, for a breach of penal laws. 18. Women servants having bastards, to serve longer than a year. 19. " And for a further prevention of that abomi nable mixture and spurious issue, which may hereafter increase in this, her majesty's colony and dominion, as well by English and other white men and women intermarrying with negroes or mulattos, as by their unlawful coition with them. Be it, &c. That whatsoever English or other white man or woman, being free, shaU intermarry with a negro or mulatto man or woman, bond or free, shall, by judgment of the county court, be com mitted to prison, and there remain during the space of six months, without bail or mainprise ; and shaU forfeit and pay ten pounds, &c. 20 Penalty on ministers marrying them. 21. Freedom of servants to be recorded. Penalty for entertaining them without certificate. Eemainder contains various poUce regulations relating to slaves. Sec. 36 is as follows : — " And also it is hereby enacted and declared, that baptism of slaves doth not exempt them from bondage ; and that aU LAWS OF VIRGINIA. 241 children shall be bond or free, according to the condition of their mothers, and the particular directions of this act." Sec. 37, provides for the apprehension of outlying slaves, that they may be kiUed if resisting (as in 1680, c. 10), disor derly slaves when may be dismembered on order of court. Sec.|38. Value of slaves kiUed according to the act to be paid to the owner : 41 repeals all previous acts relating to servants and slaves. c. 52. An act for prevention of misunderstandings be tween the tributary Indians and other of her majesty's subjects of thia colony and dominion, and for a free and 6pen trade with all Indians whatsoever. (See 1691, c. 9. 1753, c. 2. II., Tucker's Bl. Ap. 47, n.) 3 Hen. 464. 1711, c. 1. — An act for appointing Bangers. 4 Hen. 10. " That if any Indian or Indians so taken shall upon examina tion or tryal be found to belong to any of the nations in warr with this government, such Indian and Indians shaU be trans ported and sold, and the benefit of said sale shaU entirely be- . long to that party of rangers by which they were apprehended." 1723, c. 3. — Another act relating to Indians. Indians of fending against the terms of certain treaties, "to suffer death or be transported to the West Indies, there to be sold as slaves as shall be awarded by the courts, &c." 4 Hen. 103. 1723, c. 2. — An act for the better settling and regulation of the militia. Sec. 6, 7 provides, — Free negroes, mulattos, or Indians may be listed and emploied as drummers or trumpeters in servile labor, but are not to bear arms. c. 4. An act direct ing the trial of slaves committing capital crimes, and for the more effectual punishing conspiracies and insurrections of them, and for the better government of negroes, mulattos and Indians, bond or free. Sec. 1 relates to the punishment of plots, &c. 3 provides for proceedings against slaves committing capital crimes, similar to 1705, c. 11, and 1692, c. 3, with the excep tion of the allowance in such cases of " the testimony of negros, mulattos or Indians, bond or free, with frequent circumstances as shall to them (the justices) seem convincing," &c. 17. " That no negro, mulatto, or Indian slaves shaU be set free upon any pretence whatsoever, except for some meritorious 16 242 LAWS OF VIRGINIA. services, to be adjudged and allowed by the governor and coun cil, &c." 18. Dismembering of slaves (explains 1705, c. 49, s. 37,) provided " for. 19. Death of slave under dismember ment, not punishable, if not intended ; " neither shall any per son whatsoever who shall be indicted for the murder of any slave, and upon trial shall be found guilty only of manslaugh ter, incur any forfeiture or punishment for such ofl'unco or mis fortune." (Repealed 1788, c. 23, see 2 Tucker's Bl. App. 56.) 21. All free negroes, &c. (except tributary Indians), above sixteen years of age, and their wives declared tithable. 22. Children of mulatto or Indian women, bound to serve for years, how long to serve. 23. " That no free negro, mulatto or In dian, whatsoever, shall hereafter have any vote at the election of burgesses, or any other election whatsoever." (See 1785, c. 55 ; 17HC-17.) 4 Hen. 119, 126.' 1726, c. 4. — An act for amending an act concerning ser vants and slaves, and for the further preventing the clandestine tranaportation of persons out of this colony, mostly regards the . exportation of runaway slaves, whose owners cannot be discov ered. 4 Hen. 168. 1727, c. 11. — An act to explain andamendtheactfor declar ing slaves to bereal estate. § 3. " Slaves to pass as chattels" (mar gin) may be conveyed as such by will, by deed of gift or of sale. 1732, c. 7. An act for settling some doubts, dc, sec. 5. " And whereas negroes, mulattos, and Indians, have lately been frequently allowed to give testimony as lawful witnesses in the general court and other courts of this colony, when they have professed themselves to be Christians, and been able to give some account of the principles of the Christian religion ; but foras much as they are people of such base and corrupt natures that the credit of their testimony cannot be certainly depended upon, and some juries have altogether rejected their evidence and oth ers have given full credit thereto " — enacts that negroes, mulat tos, and Indians, whether slaves or free, shall be disabled to be wit nesses, except on the trial of a slave for a capital offence, and refers 'See 2 Cholmers' Opinions, p. 113. Opinion of West against tho propriety of sono- Uorangthis section of this oot, on the ground that no distinction should he made between Dee persons, m respect to color. LAWS OF VIRGINIA. 243 to 1723, c. 4, how such testimony shaU be taken. — 4 Hen. 325. 1734, c. 8. An act for allowing Indians to be witnesses in criminal offences committed by Indians. — 4 Hen. 405. 1744, c. 13. An act to amend, <&c., sec. 2, provides that " any free negro, mulatto, or Indian, being a Christian, shall be admitted in any court of this colony, or before any justice of the peace, to be sworn as a witness, and give evidence for or against any other negro, mulatto, or Indian, whether slave or free, in aU causes whatsoever, as well civil as criminal, any law, custom or usage to the contrary in any wise notwithstanding. — 5 Hen. 244. 1748, c. 2. An act declaring slaves to be personal estate, and for other purposes therein mentioned. This act, with oth ers of this session, having been repealed by the king, representa tion was made against the repeal, assigning reasons, see 5 Hen. 432-443.' 1748, c. 14, a revision of laws under an act of 1745, see 1 Hen. pref. vi. An act concerning servants and slaves. Ee- enacts most of previous laws on this subject. Sec. 1. How long servants imported without indentures shall serve. 2. What persons imported shall be slaves, — same rule as in 1705, c. 49, s. 4., and in 1682, c. 1, s. 3. A penalty for importing and selling a free person as a slave. 4. " That a slave's being in England shall not be a discharge from slavery, without proof of being manumitted there ; and that baptism of slaves doth not exempt them from bondage ; and that all children shall be bond or free according to the condition of their mothers, and the particular directions of this act.^' 5. Masters' duty to servants, — "that they shall not give immoderate correction, nor whip a Christian white servant naked without an order from a justice of the peace," &c. 6. Justices to receive servants' complaints, pro- ceedinsr thereOn. 7. No contracts between masters and ser- vants unless in court — servants shall have the property of their own effects — sick or lame servants may not be discharged. 8. Servants shall have their freedom dues. 9. Same as 1705, c. 49 s. 11. 10. Penalty for dealing with servants or slaves. ' This statute did hot change the law. Slaves were real estate, in 1777, See Chinn v. Respass, 1 Munroe's K., 27. 244 LAWS OF VIRGINIA. 11. Duty of servants ; their punishment in case of resistance. 12. Punishment by whipping in lieu of fine. 13. Servants when free to have a certificate. 14-22. Eespecting runaway servants. Sec. 19, provides that runaways belonging to inhab itants of Maryland and Carolina may be detained until claimed by their owners. 23, 24. Respecting servants contracting to serve by the year, and apprentices. 25. SteaUng made a felony without clergy. c. 22. An act to prevent the clandestine transportation or carrying of persons in debt, servants or slaves, out of this colony. c. 38. An act directing the trial of slaves committing capital crimes, aftdfor the more effectual punishing conspiracies and insurrections of thevf,, and for the better government of ne groes, mulattoes, and Indians, bond or free. § 1-10. Punish ment for certain crimes, like 1723, c. 4. 11. Excludes the testimony of negroes, &c., slave or free, except on trial of slaves for capital offences. 12. Admits testimony of free negro, &c., being a Christian, against or between other negroes, &c. 13-16. Of unlawful meetings of slaves. 17. Punishment of slaves for being found abroad without leave. 18, 19. Arms and ammunition not allowed to negroes, &c., except those on the frontier, having a Ucense. 20. Negro Ufting his hand against a white person shall receive thirty lashes. 21. Against outlying slaves. 22. Their value, if killed in the attempt to seize them as such, to be paid by the pubhc. 23, 24, 25. Ee specting homicide of slaves, dismembering of disorderly slaves, as in 1723, c. 4, s. 18, 19. 26. Slaves freed without legal U- cense may be sold by the churchwardens. — 5 Hen. 432, 547 ; 6 Hen. 40, 104. 1753, c. 7. An act for the better government of servanis and slaves. Most of the acts of 1748, having been repealed by the king, 1752, this is substantially a re-enactment of 1748, c. 14, which had been so repealed — see 6 Hen. 215. 1757, c. 3. Eespecting the mihtia, as to enUsted free negroes, the same as in 1723, c. 2. — 17 Hen. 93. 1765, c. 24. An act to prevent the practice of selling per sona aa slaves that are not so, &c. — 8 Hen. 133. LAWS OF VIRGINIA. 245 c. 25. An act to amend the act for the better government of servants and slaves (1753, c. 7) : in respect to runaways. c. 26. An act to amend the act (1748, c. 38) which for the trial of slaves required the issue of a special commission : — Sec. 1, provides for issuing commissions of oyer and terminer, directed to the justices of each county respectively, empowering them from time to time to try, condemn and execute, or otherwise punish or acquit, aU slaves committing capital crimes within their county ; and when any commission for constituting justices of the peace shall hereafter issue, a general commission of oyer and terminer for the purposes aforesaid shaU be sent therewith, &c. 2. Court how convened, &c., "without the solemnity of a jury," &c. Another sec. allows benefit of clergy where a slave is convicted of manslaughter for kiUing a slave. — 8 Hen. 133, 135, 137. 1769, c. 19. An act to amend the act, <&c., (the same act of 1748,0.38.) Sec. 1, reciting that by the act "the county courts within this dominion are impowered to punish outlying slaves who cannot be reclaimed, which punishment is often dis proportioned to the offence and contrary to the principles of humanity. Be it, &c., that it shaU not be lawful for any county court to order and direct castration of any slave, except such slave shall be convicted of an attempt to ravish a white woman, in which case they may inflict such punishment." The remaining sections relate to runaway slaves. c. 37. An act for exempting free negro, mulatto, and Indian women from the payment of levies — ^referring to previous statutes declaring such persons tithable, and chargeable with public, &c., levies, " which is found very burdensome to such negroes, mulattoes, and Indians, and is moreover derogatory to the rights of freeborn subjects" — enacts that "all free negro, mulatto and Indian women, and all wives, other than slaves, of free negroes, mulattoes and Indians," shaU be exempted. — 8 Hen. 358, 393. 1772,' c. 9. An act for amending the acts concerning the ' As an expression of the sense of the people of Virginia, ot this time, on the sub ject of slavery : see Petition of tlie House of Burgesses, April 1, 1772, addressed to 246 LAWS OF VIRGINIA. trials and outlawries of^elaves. Sec. 1. Slaves convicted of house breaking in the night, are not excluded from clergy unless a free man in the hke case would be so. 2. Sentence of death not to be passed upon a slave, unless four of the court, being a ma jority, concur. 3. That no justice or justices of the peace of this Colony shall, by virtue of the said act, issue a proclamation against any slave authorizing any person to kill or destroy such slave, unless it shall appear to the satisfaction of such justice or justices that such slave is outlying and doing mischief ; and if any slave shall hereafter be kiUed or destroyed by virtue of any proclamation, issued contrary to this act, the owner or proprietor of such slave shall not be paid for such slave by the public ; any thing in the said recited act (1748, c. 38. § 21, 22.) to the contrary, &c. 1775. Ordinance of convention, c. 4, sec, 2, that the voters for representatives shaU be "the freeholders properly qualified by law to vote for burgesses;" c. 7, one clause provides for the transportation to the West India islands of any slave, " taken in arms against this colony, or in the possession of an enemy, through their own choice," bythe Committee of Safety: — the owners to be paid. 9 Hen. 1 06. 1776, June 12. By the Convention of Delegates, the ordi nance 9 Hen. 109, unanimously adopted, known as the Virginia Declaration of Eights (1 Hen. 47), of which the first article reads, " That all men are by nature equally free and independ ent, and have certain inherent rights of which when they enter into a state of society, they cannot by any compact deprive or divest their posterity ; namely the enjoyment of Ufe and lib erty, with the means of acquiring and possessing property, and the pursuing and obtaining happiness and safety.' The fourth the King, " to remove all those restraints on your Mojesty's governors of this colony which moy inhibit their ossenting to such lows as may check so very pernicious o com merce," meoning tho importation of slaves, 2 Tucker's Blackstone, App. 5 1 . ' See conflict of judicial opinion as to the personal extent of this orticle in Hud gins V. Wrights, 1 Hon. & Munford's R. pp. 134, 143. Wherein tho ChonccUor, George Wythe (one of the signers of the Contlnentol Declorotion of Independence), " on the ground that freedom is the birth-right of every human being, which senti ment is strongly inculcated in tho first articlo of our 'political catechism,' tho bill of rights — he laid it down as a general position, that whonever ono person claims to hold another in slavery, the onus probundi lies on tho claimont." Tho Court of Appeals LAWS OF MARYLAND. 247 article — " That no man or set of men are entitled to exclusive or separate emoluments or privileges from the community, &c." The sixth — " That aU men, having sufficient evidence of per manent common interest with and attachment to the commu nity, have the right of suffrage," &c. 1776, June 26. In the preamble to the Constitution or form of government, 9 Hen. 112, adopted by the Delegates, is recited that' the King had perverted the kingly office into a "detestable and insupportable tyranny, by — " &c., among which — " prompting our negroes to rise in arms among us — those very negroes whom, by an inhuman use of his negative, he hath refused us permission to exclude by law." No formal bill of rights is incorporated with this constitution. The seventh article provides that " the right of suffrage in the election of members for both Houses, shall remain as exercised at present." § 219. Legislation of Maryland. The territory constituting the present State of Maryland had, before the grant to Lord Baltimore, June 20, 1632,' been included within the limits of the Virginia colony. What ever laws had territorial extent in Virginia before that date, may be taken to have been law in Maryland. 1637. In the assembly of this year, the first of the colony, the freemen agreed to a number of biUs which were never enacted held : — " This Court, not approving of the Chancellor's principles and reasoning in his decree made in this cause, except so far as the some relates to white persons ond notive American Indians, but entirely disapproving thereof so far as the same relates to na tive Africans ond their descendonts, who hove been ond ore now held os slaves by the citizens of this State, and discovering no other error," &c. ' The charter, p. 7, granted legislative powers to the Lord Proprietor, " with the ndvice, ossent ond approbation of the freemen of the some province or the greater ¦ part of them, or of their delegates or deputies," • * " so, nevertheless, that the lows oforesnid be consonant to reason, and be not repugnant or contrary, but (so for as conveniently may be) ogreeable to tho laws, statutes, customs and rights of this our kingdom of England." Sec. 8, mentions " the Freeholders of the said Province, their delegates, &c. Sec. 10, provides, " that oU and singular the subjects and liege men of us, our heirs and successors, transplanted or hereafter to be transplanted into the province aforesaid, and the children of them and of others their descendants, whether already born there or hereafter to be born, be and shall be natives and liege men of us, &c., &c. ¦* * and likewise all privileges, franchises, and liberties of this our kingdom of England, freely, &c., have and possess," &o., &c. Bacon's laws of Maryland. 248 LAWS OF MARYLAND. into laws. A Ust only of these has been preserved, of which one is A bill for punishment of ill servants, another for limiting the times of service. See Bacon's laws, from which the follow ing citations of laws are taken, 1638, c. 2. An act ordaining certain laws for the govern ment of this province (Umited to three years). The fourth section provides, " The inhabitants shaU have all their rights and liberties according to the great charter of England." In a list of bills twice read, and engrossed but never passed, is An act for the Uberties of the people. " They are thus enu merated in the Bill, viz., all Christian inhabitants (slaves ex cepted) to have and enjoy all such rights, liberties, immunities, , privileges and free customs, within this province, as any natural bom subject of England hath or ought to have or enjoy in the realm of England, by force or virtue of the common law or stat ute law of England, saving in such cases as the same are or may be altered or changed by the laws and ordinances of this prov ince, &c." I 1641, c. 6. An act against Fugitives. — " This act (which made it felony of death, together with forfeiture of lands, goods, &c., for any apprentice servant to depart away secretly from his or her master or dame, with intent to convey him or herself away out of the province ; and in any other person that should willingly accompany such servant in such unlawful departure, unless his Lordship or his Lieutenant-General should think proper to change such pains of death into a servitude not ex ceeding seven years, &c.), was superseded by the act of 1649, c. 5, which last was repealed by 1676, c. 7. There are various acts and titles of acts, given in Bacon's laws, relating to servants, fugitives, runaways, and those that en tertain them, servants that have bastards, &c. It is remark able that these laws, and the early statutes respecting negro slaves, were enacted for short periods, usually three years, and were continued from time to time by re-enactments. Their provisions are so similar to those of Virginia, on the same sub ject, that it is not necessary to make a particular statement of them. The same collection contains numerous acts naturalizing, laws OF MARYLAND. 249 on petition, persons of French, Dutch and Swedish surnames. The first statute relating to negro slaves, which in this collection is given in fuU, is that of 1715, c. 44. Others before that date are described by their titles only. The earliest law on the sub ject appears to have been that of 1663, c.' 30. An act concerning negroes and other slavea, confirmed by 1676, c. 2. This is not given in Bacon's laws ; as cited, Butler V. Boarman, 1 Harris & McHenry, 37,' it enacts, s. 1. " All negroes or other slaves within the province, and aU ne groes and other slaves to be hereafter imported into the pro vince, shall serve durante vita ; and all children born of any ne gro or other slave, shall be slaves as their fathers were for the term of their Uves." Sec. 2. " And forasmuch as divers free born EngUsh women, forgetful of their free condition, and to the disgrace of our nation, do intermarry with negro slaves, by which also divers suits may arise, touching the issue of such women, and a great damage doth befall the master of such negroes, for preservation whereof for deterring such free-born women from such shameful matches, be it enacted, &c. : That -whatsoever free-born woman shall intermarry with any slave, from and af ter the last day of the present assembly, shall serve the master of such slave during the life of her husband ; and that aU the issue of such free-born women, so married, shall be slaves as their fathers were." Sec. 3. "And be it further enacted, that aU the issues of English, or other free-born women, that have already married negroes, shaU serve the master of their parents, tiU they be thirty years of age and no longer." 1666, c. 22. An act against runaways and such as shall en tertain them, extended, 1671, c. 19 ; rep. 1676, c. 2. 1669, c. 18. An act for preventing servants and criminal persons running out of this province. 1671, c. 2 An act encouraging the importation of negroes . and slaves into t1t.is province, confirmed, 1676, c. 2 : a new act 1692, c. 52. 1676, c. 7. An act relating to servants and slaves ; — for ' On a claim for freedom by the descendants of Eleanor Butler in 1770, see also 2 Harris & MoHemy, 214. 1 Hildr. 568. Stroud's Sketch, &c., p. 15. 250 LAWS OF MARYLAND. three years, but re-enacted (a new act 1692, c. 15). c. 16, An act against the importation of convicted persons into this Pro vince ; continued by re-enactments ; a new law 1692, c. 74. 1681, c. 4. An act concerning servants and slaves. This act is cited in Butler v. Boarman, 1 Harris & McHenry, 372. The first section is to the same effect as the first of '1663, c. 30. Sec. 2, recites—" Forasmuch as, divers free-born English, or white women, sometimes by the instigation, procurement or con- Aivance, of their masters, mistresses, or dames, and always to the satisfaction of their lascivious and lustful desires, and to the disgrace not only of the English, but also of many other Christian nations, do intermarry with negroes and slaves, by which means, divers inconveniences, controversies, and suits may arise, touching the issue or children of such free-born -women aforesaid ; for the prevention whereof for the future, be it, &c., enacts that if the marriage of any woman-servant with any slave shaU take place by the procurement or permission of the master, such woman and her issue shall be free, and enacts a penalty by fine on the master or mistress and on the person joining the parties in marriage. 1692. c. 15. An act relating to servants and slaves. A new act, 1699, c. 43 ; c. 52, An act for the encouragement of the importation of negroes and slaves into this Province, c. 79, An act concerning negroes and slaves, continued by re-enactments.' 1695, c. 6. An act restraining the frequent assembling of negroes within this province ; — temporary but continued by re- enactments. 1696, c. 7. An act laying an imposition on negroes, slaves and white persons imported ; afterwards included in 1699, c. 23. An act for raising a supply, &c., and to pre vent too great a number of Irish papists being imported into this Province. ' The titles only are given in Bacon's laws. In " Plantation laws" (London 1705). Marylond, p. 50, o law of this year is cited. " Where ony negro or slove, being in servitude or bondoge, is or shall become Christian, and receive the sacrament of bap tism, the same shall not nor ought to be deemed, adjudged or construed to be o manu mission or freeing of any such negro or slave, or his or her issue, from their servitude or bondage, but that notwithstanding they shoU ut oil times herooftcr bo and remain in servitude and bondage os they were before baptism, ony opinion, matter or thing to LAWS OF MARYLAND. 251 1699, c. 43. An act relating to servants and slaves' — a new act made 1704, c. 23, which was replaced by the revision 1715, c. 47. '1700, c. 8. An act for repealing certain laws, &c. AU the acts before mentioned, passed before 1699, except that of 1692, c. 52, for encouragement of the importation of slaves, are repealed.' 1704, c. 33. An act imposing three pence per gallon on rum and wine, brandy and spirits, and twenty shillings per poll for negroes, for raising a supply to defray the public charge of this province, and twenty shillings, per poll, on Irish servants, to prevent the importing too great a number of Irish papists into this province," enacted for three years, but afterwards re vived alid continued by various acts, the last being that of 1783, c. 20, enacted for twenty-one years. c. 93. An act for the advancement of the natives and residents of thia province ; enacts that no persons shall hold office, with the exception of those commissioned by the crown, until after three years' residence. 1706, c. 6. An act for pmiishment of persona selling or transporting any friend Indian or Indians, out of this Province — continued in the revision of 1715. 1716, c. 15, sec. 5. "And forthe better ascertaining what persons are and shall be deemed taxables' and what not, be it enacted, that aU male persons, residents in this province, and all ' In " Plantotion lows," Maryland, p. 68, on act is given of this date : it contains provisions respecting servants, similar to those in Virginia and other colonies. Sec. 19, provides, — " All negroes and other slaves imported into this province, and their children, shall be sloves during their natural lives." Sec. 20. " Any white woman, free or servant, that suffers herself to be begot with child, by a negro, or other slave, or free negro ; such woman, if free, shall become a servant for seven yeors ; if a ser vant, shall serve seven years longer than her first term of service. If tho negro that begot the chUd be free, he shall serve seven years to be adjudged by the justices of the county court, and the issue of such copulations shall be servonts till they orrive at the age of thirty-one years. And any while man that shall get a negro woman with child (whetlier free or servant) shall undergo the same penalties as white women." " Mr. Stroud, in Sketch, &c., 2d ed., p. 16, observes thot the rule attributing sla very to the issue of slove fotliers being repeoled by this act, there was no written law to determine the condition of the issue of slaves until 1715, c. 44. Whether tho low of 1704, 0. 23, contoined ony rule does not appear in Bacon's lows. " That is, for the poU tax,' obolished by the Stote bUl of rights. 1 Dorsey's laws, p. 8. . Compare the note on the Virginia law of 1649, c. 2, relating to tithables. 252 LAWS OF MARYLAND. female slaves therein of the age of sixteen years or above, shaU be accounted taxables" — with some exceptions. 1715, c. 19. An act prohibiting all masters of ships or ves sels, or any other person, from transporting or conveying away any person or persons out of this Province without passes. By sec. 3, every person who shall convey away " any servant or ser vants, being servants here by condition for wages, indenture, or custom of the country, shaU be liable, &c. Sec. 5. Persons who shall entice, transport, &c., any apprentice or other servants or slaves belonging to any inhabitant, &c. (1 Dorsey's laws, p. 9 ; note, see 1753, c. 9 ; 1748, c. 19 ; 1793, c. 45 ; 1780, c, 24 ; 1824, c. 85 ; 1818, c. 157.) , -; c. 44. An act relating to servants and slaves, con tains 135 sections, similar in effect to contemporary Virginia laws. Sec. 6, relates to runaways, and the apprehension of any person or persons whatsoever travelling out of the county wherein they reside with a pass, or persons "not sufficiently known or able to give a good account of themselves." 23. Provides that aU negroes and other slaves, already import ed or hereafter to be imported into this province, and aU children now born or hereafter to be born of such negroes and slaves, shall be slaves during their natural lives. 24. De claratory that baptism of slaves does not thereby manumit or set free such slaves. 26. White women got with child by slaves or free negroes shall become servants for seven years. 27. The free negro father to serve a like period, and the children until thirty-one years of age. 28. Any white man that shall beget any negro woman with child, whether free wo man or servant, shall undergo the same penalties as white wo- , men. See the abstract in 2 Hildr. 323, and the provisions as to runaways, &c., in Stroud's Sketch, 2d ed., 131. 1717, c. 13. An act supplementary to the above. Sec. 2, enacts that " no negro or mulatto slave, free negro, or mulatto born of a white woman, during his time of servitude by law, or any Indian slave or free Indian, natives of this or the neighbor ing provinces, be admitted or received as good and valid evi dence in law, in any matter or thing whatsoever, depending LAWS OF MARYLAND. 253 before any court of record, or before any magistrate within this province wherein any Christian white person is concerned. 3. Admits their evidence against one another, provided not extend ing to depriving of life or member. 4. Provides for paying the owner when the slave has been capitally convicted. 5. Negroes or mulattoes of cither sex, intermarrying with whites, are to be slaves for life ; except mulattoes born of white women, who shall serve for seven years ; and the white party for the same time. Supplem^entary are acts— 1719, c. 2 ; 1728, c. 4 ; 1748, c. 19 ; 1765, c. 28. 1723, c. 15. An act to prevent the tumultuous meeting and other irregularities of negroes and other slaves. Sec. 4. That " negro or other slaves striking white persons — their ears may be crept on order of a Justice." 6. Forbids slaves possessing cattle. 7. Negroes outlying and resisting may be " shot, killed or destroy ed." Supplementary act, 1751, c. 14. Value of slave killed to be paid to the owner. Supplementary are 1737, c. 7 ; 1753, c. 26. 1728, c. 4. Supplementary to 1715, c. 44. Free mulatto women, having bastard children by negroes and other slaves, and free negro women, having bastard children by white men, and their issue, are subjected to the same penalties which, in the former act, sec. 26, are provided against white women. ^- 1729, c. 4. Eeciting that many petit treasons and cruel murders have been committed by negroes, and " that the man ner of executing offenders prescribed by the laws of England is not sufficient to deter a people from committing the greatest cruelties who only consider the rigour and severity of punish ment," provides that any negro or other slave, on conviction of certain crimes, shaU be hanged, and the body quartered and exposed. 1731, c. 7. Supplementary to above act and to 1723, c. 15. Continued 1740, c. 7 ; 1744, c. 18 ; 1747, c. 16— incorporated in new law, 1751, c. 14. 1750, c. 5. To remedy some evils relating to servants, tem porary, but continued by 1766, c. 5 ; 1773, c. 12 ; 1781, c. 29. 1751, c. 14. A revisal of the acts relating to punishment of crimes committed by slaves. Sec. 2, 4, providing for punish- 254 -LAWS OP MASSACHUSETTS. ment of death without benefit of clergy. A trial by jury and justices of assize, as in case of other persons, appears to be con templated. — For three years. . Supplementary, is 1753, c. 26 ; continued by 1754, c. 19 ; 1765, c. 17. 1752, c. 1. An act to prevent disabled and superannuated slaves being set free, or the manumission of slaves by any last will or testament. Temporary — continued 1766, c. 1 (fiir 20 years). 1763, c. 28.' An act imposing additional duties on slaves, continued 1766, c. 13 ; 1773, c. 14 (7 years). 1776, July 3. The provincial convention at Annapolis, re solving on the election of a new convention, to " be elected for the express purpose of forming a new government by the au thority of the people only." " All free men above twenty-one years, being freeholders of not less," &c., or having property of value designated, were 'to be admitted to vote. Maryl. laws fOr , AnnapoUs, 1787. § 220. Legislation of Massachusetts. The colonists who landed at Plymouth, in 1620, exercised, until the year 1692, a separate legislative power over a portion of the present State of Massachusetts. Their enactments have been published separately from those of the colony of Massa chusetts Bay, under the name of the Plymouth Colony Laws, edited by W. Brigham, Boston,. 1836. In these, pp. 36, 50, the origin of their legislative power is ascribed to their compact, signed 11 Nov. 1620. These laws do not contain any declara tion in the nature of a bill of rights beyond that first printed in 1661, and first declared in 1636, under the name of the General Fundamentals.^ Plym. Col. Laws, advertis. p. vui. and Part III. ; ' This is the lost year of Bacon's laws. ' This was, for the greater part, o decloration of poUtical power. It will be re membered that the Plymouth colonists had no charter from tho king. Tho patent for Virginia, of 1G06, opplied to the entire region of America claimed by the English. Seo Its guarantees, ante, p. 228, note. " Tho great potent of Now England," of 1620, established a councU in " Plymouth, in tho county of Devon," in England, and empowered them to " ordain and establish all manner of orders, laws, directions, insti-uctions, forms and ceremonies of govornmont and magistracy, fit and necessary fur ond con cerning tho government of tho said colony and plantation [Now EuglandJ, so always LAWS or MASSACHUSETTS. 255 the first and fourth articles of which have this character and have already been cited.' They contain some provisions re specting indentured servants, pp. 34, 35, 47, 58, 61, 65, 81, 140, 195. From these, however, it would appear that the con dition of such servants, if of English origin, was in this colony less burdensome than that of persons of the same class in other settlements, and that the poUcy of the colony was to encourage their emancipation and facilitate their settlement on land of their own. It would seem that such persons even participated in the exercise of the elective franchise during the first sijtteen years of the settlement.' But it appears that in 1636, not even all male freholders were entitled to vote, and the laws distinguish " freemen" or " associates" as a distinct portion of the inhab itants, constituting a corporation. Ply. Col. L. pp. 42, 62, 100, 108, 113.' In 1657, it was enacted " that aU such as reside within this government " that are att theire owne despose," as thfe some bo not contrary to the lows and stotutes of this our reolm of Engand," &c. The " principal governors " were empowered to govern by the laws so established, " so always as the statutes, ordinances, and proceedings, as near os conveniently may, be agreeable to the laws, statutes, government, and police of this our realm of Eng land." It was also provided " that the persons, being our subjects, which shall go ond inhobit," &c., should have the privileges of subjects born in England (in words olmost llteroUy the same ns those used in tho second charter of Virginio, ante, p. 229). See Potent in 1 Hazard, 103, and summaries ; 1 Ban. 272; 1 Hild. 162. The councU for New England, under this, granted a patent to Governor Bradford and " his asso- ciotes," the Plymouth colonists, 1630, with powers of government occording to the terms of tho Great Patent, 1 Haz. 298 ; Plym. Col. Lows, 21. A patent issued for their benefit to John Pierce, in 1621. See Young's Chronicles, p. 114, n. ; Plym. Col. Laws, p. 50, This patent seems not to have been used. As to powers derived from patents, see ante, § 127. ' Ante, § 129. " Some of the signers of the originol compoct are designated as persons " in the family" of some one of the others. See Prince, Part II. p. 86, 105. 1 Banc. 322. " For more than eighteen years 'the whole body of the male inhabitants' constituted the legislature." If tho somo anomaly existed in the colony of Massachusetts Boy, tho exception herein before taken (p. 121, n. 4,) to Mr. Bancroft's Btotement is ill-founded. At the period when slovery or bondage existed under the Saxon law, and the term freemen designated o closs having, by the elective franchise, o shore of political power, StiU, oil who wore not bondsmen were not freemen, in that sense. N. Bacon's Hist. Disc. p. 56, describing tho Free-lazzi, " yet attained they not to the full pitch of free men ; for the lord might ocquit his own title of bondage, but no man could be mode free without the act of the whole body." Comp. ante, p. 125, u. 2, p. 136, n. 3._ ' Thus ossuming to have that legal foundation for thoir civil polity, which the " freemen of tho company " of tho colony of Mossochusetts Bay claimed for them selves under tlieir charter from the king. 256 LAWS of MASSACHUSETTS. who would not take the oath of fidelity should depart the gov ernment or pay a fine, Plym. Col. L. p. 102.' No mention is made of negroes or of slaves. But from certain regulations, in 1676, it appears that there werrsome Indian captives held as slaves, and Uable to be sold as such. Plym. Col. L. pp. 177, 178, and on p. 187. " This courte sees cause to prohibit all and every person or persons within our ¦ Jurisdiction or elsewhere, to buy any of the Indian children of any of those our captive salvages that were taken and became our lawfuU prisoners in our late warres with the Indians, without special leave, liking, and approbation of the government of this jurisdiction." Special regulations for Indians, enacted 1682, are found, p. 196. It is difficult to fix the precise date of many of the enact ments proceeding from the Colony of Massachusetts Bay.' This, however, is not very material for the present purpose. The ex ercise of local legislative power dates from October 19, 1630, when the general court of the " freemen" or members of the corporate body created by the royal charter of March, 1629,' was first held at Boston. 1631, May. " To the end that the body of freemen may be preserved of honest and good men : It is ordered that hence forth no man shall be admitted to the freedom of this common wealth, but such as are members of some of the churches within the limits of this jurisdiction." Charters, &c., p. 117 (see post, laws 1660, 1665). ' Anologous to this were the laws against Quakers, who would acknowledge no civil outhority. ' See the Advertisement hy the compUers of the Charters ond General Lows of the Colony ond Province of Massachusetts Bay. Boston, 1 814. Svo. ' By the name, " the Governor and Company of Massachusetts Bay, in New Eng land," the corporators had o patent from the council of Plymouth, in England, doted Morch 19, 1628. The governor, deputy, ond ossistants provided for tho government by the charter were to be chosen out of the " freemen" or stockholders first nomed therein, and those odmittcd by them in general courts, at which laws might be enacted for the government of the colony "so os such laws and ordinances he not controry or repugnant to the lows and statutes of this our realm of England." In terms almost identical with the 15th art. of the Virginio potent, of 1606, (ante, p. 228,) it wos pro vided thot oil subjects who should " go to and inhabit within the sold lands," &c, and their children should have " the liberties and immunities of free and natural subjects, " &o. 1 Hazard's Coa 239. Charters, &c., p. 9, 13. LAWS OF MASSACHUSETTS. 257 1632, March. As an addition to an order made 22 March, 1630, it is ordered " that if any single person be not provided of sufficient arms allowable by the captains, &c., he shaU be compelled to serve by the year, with any master that wiU retain him for such wages as the court shaU think meet to appoint." Charters, &c., App. p. 712. 1633-7. — It is declared, &c., " that what lands any of the Indians in this jurisdiction have possessed and improved, by subduing the same, they have just right unto, according to that in Gen. 1, 28 and ch. 9, and Psal. 115, 16. And for the further encouragement of the hopeful work amongst them for the civilizing and helping them forward to Christianity ; if any of the Indians shall be brought to civility and shall come among the English to inhabit, in any of their plantations, and shaU there live civilly and orderly ; that such Indians shaU have al lotments amongst the EngUsh according to the custom of the English in like case. " Further it is ordered, that, if upon good experience, there shall be a competent number of the Indians brought to civiUty so as to be capable of a township, upon their request to the General Court, they shall have grant of lands undisposed of for a plantation as the English have." See the General Laws and Liberties of Massachusetts Colony, revised, &c., ed. Cambridge, 1675. Title — For settling the Indians' title to lands in thia ju risdiction. In the same law there, is a provision, common in aU the colo nies, forbidding the sale of fire-arms and ammunition to any Indian. 1630-1641. — " It is also ordered that when any servants shall run from their masters, or any other inhabitants shaU privily go away with suspicion of evil intentions, it shaU be lawful for the next magistrate or the constable and the two chief inhabitants, where no magistrate is, to press men and boats or finances, at the pubhc charge, to pursue such persons by sea or land, and bring them back by force of arms." . Char ters, &c., ch. 68. Title, — Acts respecting masters and laborers, §3. 1636. — It is ordered that no servant shaU be set free, or 17 258 LAWS OP MASSACHUSETTS. have any lot, until he have served out the time covenanted ; un der penalty of such fine as the quarter courts shall inflict, &c. Charters, &c., p. 42. Title — Acta respecting freemen and ser vants. ' 1641 -This is the date of the celebrated "Massachusetts Fundamentals " or " Body of Liberties,"" the preamble of which is as follows : "Forasmuch as the free fruition of such liberties, immu nities and privileges as humanity, civility, and Christianity call for as due to every man, in his place and proportion, without impeachment and infringement, hath been and ever will be the tranquillity and stability of churches and commonwealths, and the denial or deprival thereof, the disturbance, if not the ruin of both, we hold it therefore our duty and safety, whilst we are about the further establishing of this government, to collect and express all such freedoms as for the present we foresee may con cern us and our posterity after us, and to ratify them with our solemn consent. We do therefore this day religiously and unanimously decree and confirm these following rights, Uberties and privileges concerning our churches and civil state to be re spectively, impartially and inviolably enjoyed and observed throughout our jurisdiction forever." (Cambr. ed. laws, 1675, p. 1.) The ninety-eight articles of this code are classed under distinct headings or titles, commencing with a general state ment of the rights of the inhabitants in seventeen articles ; the first of which is as follows : "No man's life shaU be taken away, no man's honor or good name shall be stained, no man's ' By the Moss. Records, vol. I., pp. 246, 269, it appears tho General Court sen tenced certain off'enders, in 1638, 1639 " to bo delivered up a slave " to persons ap pointed by the court. It is bcUeved thot there is no mention made of negro slaves previous to the act ot 1696 or 1698 hereinafter cited. But it appears from " Josselyn's Voyage," see Moss Hist. Col, 3d series, vol. III., p. 231, that thero wore, in 1639, somo negroes in the 1 colony held in slavery; and soe Dr. Belknap's letter to Dr. Tucker, in Mass. Hist Col. 1st series, vol. IV., p. 194. ' For the history of tins act ond on abstract of its provisions, see 1 Hildr p 274 1 Sovoge's Winthrop, p. 160. Mass. Hist. Col. 8d series, vol. YIIL, p. 191 :'o poper byF. C.Groy, L.L. D., containing the history ofthe previous oublications, and » more authentic copy, Commimw. «. Alger, 7 Cushing, 67. LAWS OF MASSACHUSETTS. 259 person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his vrife or children, no man's goods or estate shall be taken away from him, nor any way indamaged under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published ; or, in case of the defect of a law in any particular case, by the word of God, and in capital cases or in cases concerning dismembering or banishment, according to that word, to be judged by the General Court." Article 2. " Every person within this jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law that is general for the plantation, which we constitute and exe cute towards one another without partiality or delay." Article 17. " Every man of or within this jurisdiction, shaU have free liberty, notwithstanding any civil power, to remove both himself and his family at their pleasure out of the same, provided there be no legal impediments to the contrary." The next forty-one articles are called ' rights, rules, and lib erties concerning judicial proceedings.' There is no mention made among these of involuntary servitude as a punishment. Though ' barbarous and unusual punishments ' are prohibited, it seems not to have been taken as applying to whipping, the pillory, cropping and other similar inflictions." Twenty articles contain ' liberties more particularly con cerning the freemen,' which relate to the civil pohty of the colony. In one of these articles it is enacted that * no prescrip tion or custom may prevaU to establish any thing morally sinful by the word of God.' (Laws, Cam. 1675, p. 126.) ' Liberties of women ' is the subject of two articles ; ' liberties of chUdren' ' In 1681, 0 negro who hod been convicted of arson, wos pubUcly burned alive in Boston; this was the old common low punishment. 4 Blacks. Comm., 222. In 1755 o mon nnd o woman, negro servants of Captain John Codman, of Charlestown, were executed under sentence of the Assizes, for poisoning their master ; the woman was burned. Oliver's Pur. Commonwealth, p. 84. 2 Elliot's Hist. New E., 187. The crime was petit treason by common law, and to be dra^vn and burnt, instead of beine drawn and hanged, was " the usual punishment for oU sorts of treasons com- mittld by those ofthe female sex," until 30 Geo. IIL, o. 48. 4 Bl. Comm., 204. It would seem from these instances that, after all, the courts were obliged to resort to " common law " to find out what punishments were not " borbarous and unusual.* 260 LAWS OF MASSACHUSETTS. of four articles. It is enacted in four articles, entitled, ' Uber ties of servants.' I Article 85. " If any servants shall flee from the tyranny and cruelty of their masters to the house of any freeman of the same town, they shay, be there protected and sustained, until due order be taken fof their relief ; provided due notice thereof be speedily given to their masters from whom they fled, and the next assistant or constable where the party plying is harbored." Article 86. " No servant shall be put off, for above a year, to any other, neither in the Ufetime of their master, nor after their death by their executors or administrators, unless it be by con sent of authority assembled in some court or two assistants." Article 87. " If any man smite out the eye or tooth of his man servant or maid servant, or otherwise maim or much dis figure him, unless it be by mere casualty, he shaU let them go free from his service, and shall have such further recompense as the court shall allow him." ^ Article 88. " Servants that have served diligently and faith- faUy to the benefit of their masters seven years, shall not be sent away empty ; and if any have been unfaithfiil, negligent, or unprofitable in their service, notwithstanding the good usage of their masters, they shall not be dismissed tUl they have made satisfaction according to the judgment of the authorities." Three articles refer to ' liberties of foreigners and strangers.' Article 89. " If any people of other nations professing the true christian religion, shall flee to us from the tyranny or op pression of their persecutors, or from famine, wars or the Uke necessary or compulsory cause, they shall be entertained and succored among us, accordmg to that power and prudence God shaU give us." Article 91. " There shaU never be any bond slavery, villenage, or captivity amongst us, unless it be lawful captives taken in war, and such strangers as wilUngly sell themselves or are sold to us. And these shaU have aU the liberties and christian usages which the law of God, estabUshed in Israel concerning such persons, doth morally require. This exempts none from LAWS OF MASSACHUSETTS. 261 servitude who shaU be judged thereto by authority." (Laws. Cam., 1675, p. 10, tit Bond Slavery.) Two articles, ' of the brute creature,' respecting cruelty to animals and certain rights of pasturage. Among the ' capital laws ' in the remaining articles is one, Art. 94, s. 10 : ' If any man stealeth a man, or mankind, he shall surely be put to death,' with marginal reference to Exodus, 21, 16. (Laws Camb. 1675, p. 15.)' 1652.' "And it is further ordered by this Courte and the authoritje thereof, that aU Scotchmen, negroes, and Indjans, in habiting with, or servants to the EngUsh * » shaU be listed and * * attend traynings as well as the English," &c. 1656. Ordered by the Court, &c., " that henceforth no ne groes or Indjans, although servants to the EngUsh, shaU be armed or permitted to trajne." — Militia Eegulations in Mass. Eecords IV. 1st Part, pp. 86, 397. 1659. The general court empowered the treasurers of the several counties to sell certain Quakers, who refused to pay fines " to any of the English nation at Virginia and Barbadoes." — 2 Hazard's CoU. p. 563.' 1660. May. " This court, &c., do declare and order that no man whatsoever shaU be admitted to the freedom of tliis body poUtick, but such as are members of some church of Christ and ' A transaction deserves mention in this place as indicative of the public sentiment at this period, which " has been magnified by too precipitate an admiration into a protest on the part of Massachusetts against the African slave trade." 1 Hild. p. 282. It was discovered in the year 1645, that two negroes who had been brought to Bos ton in o vessel which hod sailed thence, ' bound to Guinea to trade for negroes,' had not been bought there in the regular course of traffic, but had been kidnapped on the coa^t of Africa, and that at the same time the crew, with others from some London vessels, hod on a Sunday attacked an African village, and kiUed many of the inhabi tants. Tho master ond crew wore charged with tho offences of murder, man-stealing, and Sabbath-brooking. Tho magistrates wero not sufficiently clear as to thoir au thority to punish crimes committed on the coast of Africa ; but they ordered the ne groes to be sent back ot the public charge, os hoving been procured not honestly by purchase, but ^y the unlawful act of kidnapping, and hy a letter 'expressing the in dignation of tho General Court,' they bore ' witness against the heinous offence of man- stealing.' 2 Winthrop, 243 and Appendix M. 1 Banc. 174. Mass. Rec. H , pp. 136, 168. ' In 1649, a penal code was compiled and printed, no copy of which, it is believed, is now in existence. See 1 Hildr. 368. ' This order was never carried into effect, no ship-master being found wUling to corry them away. — 1 Sewel's Hist. Quakers, Svo. p. 278. 262 LAWS OF MASSACHUSETTS. in full communion, which they declare to be the true intent of the ancient law," [anno 1631.] — Charters, &c., p. 117. 1664. " In answer to that part of his Majesty's letter, of June 28, 1662, concerning admission of freemen ; this Court doth declare that the law prohibiting all persons, except mem bers of churches, and that also for aUowance of them iu any county court, are hereby repealed, and that all Enghshmen pre senting a certificate under the hands of the minister of the place where they dwell, that they are orthodox in religion and not vicious in their Uves, and also a certificate under the hands of the selectmen, &c., that they are freeholders, &c., rateable, &c., or that they are in full communion with some church among us ; if they desire to be freemen they shall be allowed the privi lege to have such their desire propounded and put to vote for acceptance to the freedom of the body politick, by the suffrage of the major part, according to the rules of our patent." — Charters, &c., p. 117, IV. Mass. Eec. Part II. p. 117, and p. 56.' The colonies of New Plymouth and Massachusetts Bay be came, in the year 1692^, united into the Province of Massa chusetts Bay. 1698, Laws of, c. 6. — A law forbidding to trade or truck with " any Indian, molato, or negro servant or slave, or other ' Soo tho king's letter in IV. Mass. Ucc. 2d part, p. 104-G, which enjoins "that all freeholders of competent estate, not vicious in conversation and orthodox in religion (though of different persuasions concerning church government) may have their votes in the election of all officers." ' The charter provided for election of deputies to tho general court " by the major part of the freeholders and other inhabitants of the respective towns or places who shall be present at such elections." " No freeholder or other person" to have a vote, who should not have a certain freehold estate. " It contained a clause that all and every of the king's subjects " which shall go to and inhabit within" the province, ond their children horn there, should have the liberties, &c,, of subjects in other parts of the empire. The governor and general court were vested with power to enact laws, *' so as the same be not repugnant or contrary to tho laws of this our realm of Eng land." — Charters, &c., p. 18. Chortors, &c., p. 213, 229, gives enactments as of 1G92, continuing the lawsof Massachusetts and Plymouth colonies until the next year, ibunded on a doubt as to the continuance of the locol law. (Seo 2 Hutch, p. 20,) ond p. 214, An act setting forth general privileges, one of which is, " no freeman shall be token and imprisoned, or be disseized of his freehold or liberties, or his free customs, &c., &c., but hy the lawful judgment of his peers, or tho law of this province." Also p. 224, An act for the better securing of the liberty of the subject and for prevention of illegal imprisonment. These acts, with some others there given, do not appear in the collections of the Pro vince laws, printed In 1720 and 1759; they appear to have been disallowed by the Crown. Seo 1 Holmes' An. 440, u. 1 Hildr. 167. LAWS OF MASSACHUSETTS. 263 known dissolute, lewd, and disorderly person, of whom there is just cause of suspicion," and such persons to be punished by whipping for so trading. 1703 ', Laws of, c. 2. — An act restraining the emancipation of " molatto or negro slaves," without giving security to the town that they should not become chargeable, c. 4. An act that Indians, mulattoes, and negroes shall not be abroad at night after nine o'clock, &c. — Charters, &c., p. 745, 746. 1705, Laws of, c. 6. — Act for the better preventing of a spurious and mioct issue.'' Enacts that a negro or molatto man committing fornication with " an EngUsh woman, or a woman of any other Christian nation," shall be sold out of the province. An " EngUsh man, or man of any other Christian nation," com mitting fornication with a negro or molatto woman, to be whipped, and the woman sold out of the province. " Any negro or mulatto presuming to smite or strike an English person, or of other Christian nation," to " be severely whipped." None of her Majesty's English or Scottish subjects, nor of any other Christian nation within this province, " shall contract matrimony with any negro or mulatto," under a penalty imposed on the person joining them in marriage. " No master shall unreason ably deny marriage to his negro with one of the same nation ; any law, usage, or custom to the contrary notwithstanding." All negroes imported are to be entered and duty paid, a draw back to be allowed on exportation.— Charters, &c., p. 747. 1707,3 Laws of, c. 2. — An act for the regulating of free ne groes, dec, enacts that they do service " in repairing the high- ' In 1701, the town of Boston instmcted its representatives " to put o period to negroes being sloves." — 3 Banc. 408. ' In a treatise by C. C. Jones, on tho Religious Instruction of the negroes in the U. S. : Savannah, 1842, p. 35, are extracts from " Entryes for Publications (of mar- rioge) within the town of Boston," date, 1707, 1710, publications of negroes, oil as of certoin masters there named." * Winchendon v. Hatfield (1808), 4 Moss. R. 127-8, Parsons, C. J. "Slavery was introduced into this country soon after its first settlement. The slave was the property of the master, subject to his orders, and to reasonable correction for misbehavior. If the master was guilty of o cruel or unreasonable castigation of his slave, he was liable to be punished for the breach of the peace, and, I believe, the slave was allowed to demand sureties of the peooe against a violent and barbarous master. Under these regulations, the treatment of slaves wos in generol mild and humane, and they suf fered hardships not greater than hired servants." 264 LAWS OF MASSACHUSETTS. ways, cleansing the streets, or other service for the common benefit of the place," equivalent to the service of others in training. In case of alarms, that they shall attend on parade and do services at the direction of the commanding officer. That free negroes and mulatto shall be fined for harbouring or entertaining " any negro or mulatto servant," without consent, &c. Punishment is prescribed, by commitment to the House of Correction.' ' Between the years 1767 and 1778, several unsuccessful attempts were made to procure legislative acts against the slave trade, an account of which is given by Dr. Belknap in his letter to Judge Tucker, vol. iv. Mass. Hist. Soc. Coll. p. 201. The latest attempts appear to have failed from the opposition of the governor, acting under his instructions. Dr. Belknap adds, " Tho blacks had better success in the judiciol 6ourt8. A pomphlet containing the cose of a negro who had accompanied his moster from the West Indies to England, ond had there sued for and obtained his freedom, was reprinted here, and this encouraged several negroes to sue their masters for their freedom and for recompense, for their service after they had attained the age of twenty-one years. The first trial of this kind was in 1770. The negroes collected money among themselves to cany on the suit, ond it terminated favorably for them. Other suits were instituted between that time and the revolution, and the juries inva riably gove their verdict in favor of liberty. The pleas on the part of the masters were, that the negroes were purchased in open market, and bills of sale were produced in evidence ; that the laws of the province recognised slavery as existing in it, by declar ing that no person should manumit his slave without giving bond for his mointenonce, &c. On the part of the blacks it was pleaded that the royal charter expressly de clared all persons bom or residing in the province to be free as tho king's subjects in Great Britain ; that by the laws of England no man could be deprived of his liberty but by the judgment of his peers ; that the laws of the province respecting an evil existing, and attempting to mitigate or regulate it, did not outhorizo it, and, on some occasions, the plea was, that though the slavery of the parents be admitted, yet no dis ability of that kind could descend to the children. " During the revolution- war, the publick opinion was so strongly In favor of tho abolition of slavery, that in some of the countiy towns votes were passed in town- meetings, thot they would have no slaves among them, and that they would not exact of masters any bonds for the maintenance of liberated blacks, if thoy should become incapable of supporting themselves." In a paper by Emory Washburn, ICsq., road before tho Mass. Hist. Soc. April, 1857, (Boston Daily Advertiser, July 8, 1857,) the title of the case above mentioned is given as James v. Leohmere. " The term at which the judgment in this action was ren dered, was held in Suffolk, Oct. 31, 1769. The action was commenced in tho Inferior Court of Common Pleas, May 2, 1769, and the plaintiff declared in trespass for as sault and battery, and imprisoning and holding the plaintiff in servitude from April 11, 1758, to the dato of the Avrit. Judgment in tlio lower court was rondorod for tho de fendant. The plaintiff oppealed, and in the superior court the defendant was defaulted, and judgment was rendered for on agreed sum with costs." Mr. Washburn says olso ; " If this were tho place for speculation, I should feel myself warranted in assuming that our courts, as early as 1770, considered the ottempt to hold any person not cap tured and brought and sold hero, but born here, as a slave, was not justiKed by law, olthough he might be the child of o slave." But in Winchendon t>. Hatfield, 4 Mass. B. 129, the court says: "It is very certain that the general practice and common usage had been opposed to the opinion that a negro born in the State, before the present constitution, was free, though born of a foniole slave." And seo Journals of Mass. Provincial Congress, pp. 29, 302, u resolution of the Moss. Committee of Safety, of May 20, 1775, respecting the impropriety of enlisting slaves in tho army ; read in the congress, Juno 8, but uo action taken on it. LAWS OF NEW HAMPSHIRE. 265 1712, Laws of, c. 6. — An act prohibiting the importation or bringing into this province any Indian servants or slaves. The preamble recites the bad character of " Indians and other slaves," the danger of their increase, and the " discouragement to the importation of white Christian servants ;" enacts " that all Indians, male and female, of whatever age soever, imported or brought into this province by sea or land from any part or place whatsoever," shall be forfeited to her majesty for the support of government, unless importers give security to remove them. — Charters, &c., p. 748. § 221. Legislation of New Hampshire. The colonial government of Massachusetts had claimed and exercised jurisdiction over the settlements within the limits of the present State of New Hampshire until the year 1679, when a separate provincial government was constituted under the royal commission.' Tbe first legislative assembly declared " the general laws and liberties of this province," and a code of capi tal laws compUed from the Massachusetts code ; of which the twelfth is, "if any man stealeth mankind he shall be put to death or otherwise grievously punished." — 1 Belknap's Hist. N. H. app. no. 26. This code " was rejected in England as ' fanati cal and absurd.' "—1 Hildr. p. 501.' " The claim to the soU — antagonistical to that of Massachusetts — was founded on Moson's Patent from the council of Plymouth, England. Whatever legislative power wos derived from it was restructed by the usual condition of conformity to tho lows of England. Local governments, founded on the written compacts of the settlers, had been formed at Exeter ond Dover. 1 Belknap's N. H. opp. no. 12, 13. By the com mission to Cutts ond others, 1679, a legislative Assembly was aUowed ; the voters for delegates to be determined by the President and Council, and when " writ^ were is sued for calling a general Assembly, the persons in each town who were judged quaU- fied to vote were named in the writs," 1 I5elknap's Hist. N. H. p. 91. The legislative power was not expressly limited, though subject to the royal disoUowonce of its enoct- ments. It was provided in the grant of judiciol power — " so olways that the form of proceedings in such coses ond the judgments thereupon to be given be as. consonant and agreeable to the laws and statutes of this our realm of England, as the present stote ond condition of our subjects inhabiting within the Umits aforesaid, and the cir cumstances of the place will admit." The later commissions provide thot the looal shall " not be repugnant, but, as near as may be, agreeable to the laws and statutes of this our realm of England." By the commission to Wentworth, 1766, the deputies to the Assembly are to be chosen by the " major part of the freeholders." See the com missions in N. Hamp. Prov. Laws, edit. 1771, Story's Comm. §§ 78 — 81. ' In a journal given in Belknap's Hist. N. H. app. no. 44, as of 1683, "March 14. 266 LAWS OF NEW HAMPSHIRE. 1714, were passed — An act for preventing men's sons or servants absenting themselves from their parents or master's ser-. vice without leave. N. H. Prov. Laws, c. 28. An act to pre vent disorders in the night, Prov. Laws, c. 39. — " Whereas great disorders, insolencies and burglaries are ofttimes raised and com mitted in the night time by Indian negro and molatto servants and slaves, to the disquiet and hurt of hor Majesty's good sub jects ; for the prevention whereof Be it, &c. — that no Indian, negro or molatto servant or slave may presume to be absent from the families where they respectively belong, or be found abroad in the night time after nine o'clock ; unless it be upon errand for their respective masters," &c. An act prohibiting the importation or bringing into this Province any Indian servant or slaves. Prov. L. c. 41 — " Whereas divers conspiracies, outrages, barbarities, murders, burglaries, thefts, and other notorious crimes and enormities, at sundry times have of late been perpetrated and committed by Indians and other slaves within several of her Majesty's planta tions in America, being of a malicious, surly, and revengeful spirit and very ungovernable, the over great number and in crease whereof within this province is likely to prove of fatal and pernicious consequence to her Majesty's subjects and in terest here, unless speedily remedied, and is a discouragement to the importation of Christian servants: Be it,' &c., that from and after the publication of this act, aU Indians, male and fe male, of what age soever, that shall be imported or brought into this province by sea or land ; every master of ship or other vessel, merchant or person, importing or bringing into this pro vince such Indians male or female, shall forfeit to her Majesty for the support of the government, the sum of ten pounds per head, to be sued for and recovered in any of her Majesty's courts The governor told Mr. Joffre/s negro he might go from his master, he would clear him under his hand and seal ; so the fellow no more attends his master's concerns." ' The royal instructions dated June 30, 1761, to B. Wentworth, the Provincial Governor, contained a clause, — " You are not to give your assent to, or pass any law imposing duties on negroes imported into New Hoinpshire." Gordon's llist. of Am. Rev. voh v., letter 2. LAWS OF CONNECTICUT. 267 of record, by action, bill, complaint or otherwise : to be paid into the treasury for the use aforesaid." 1718. Act for restraining inhuman severities. Prov. L. c. 70, s. 1 — " For the prevention and restraining of inhuman severities which by evU masters or overseers, may be used towards their Chris tian servants, that from and after the publication hereof, if any man smite out the eye or tooth of his man servant or maid ser vant, or otherwise maim or disfigure them much, unless it be by mere casualty, he shall let him or her go free from his service, and shaU allow such further recompense as the court of quarter sessions shall adjudge him. 2. That if any person or persons whatever in this province shall wilfully kill his Indian or negro servant or servants he shaU be punished with death," § 222. Legislation of Connecticut. The civU polity of this colony originated in that of the two several colonies of Hartford and of New Haven. In January, 1639, a constitution of government was adopted for the Hart ford colony,' by those who mutually recognized each other as the adult male free inhabitants of the settlements or townships of Hartford, Windsor and Wethersfield, agreeing " in aU civil affairs to be governed according to such laws as should be made agreeably to the constitution they were then about to adopt," ' 1775, Nov. 3. Resolution of Congress recommending the revolutionary Convention at Exeter (representing one hundred and two towns') to call " a full and free represen tation of the people," and that these representatives may establish such form of gov ernment, &c. 1 BeUoiap's N. H. pp. 357, 359, 861,-2. 1 776, Jon. 5, vote of the Convention ot Exeter, " that this Congress take up civil government for this colony, in the monner ond foiin following," &c.. Laws, 1780. Coll. N. H. Hist. Sec. IV., p. 150. There is no declaration of private rights. 1770, Juno 15. The Council and Assembly declared New Hampshire an inde pendent State. 1 Bel. p. 367. ' The origin of the local government nnd tho progress of legislation in Connec ticut is sketched in the advertisement to the Public Statute Laws of the State of Conn., publ. Hartford, 1808. Tho towns of Hartford, Windsor and Wethersfield were first settled by emigrants from Massochusetts, the general court having in the year 1636 issued to Roger Ludlow and others, a commission investing them with legislative and judiciol powers fbr one year in the now plantations, (intended to be within the limits and jurisdiction of Massachusetts,) and authorizing them to convene the inhobitonts, if necessary, to exercise these powers in General Court. This commission was never renewed, but the persons named therein noted as magistrates until January, 1639. See also records of the colony, pubUshed by tho State, 1850. Compare the remark in note 2, page 121. 268 LAWS OP CONNECTICUT. and, " in cases in which there was no express law established, to be governed by the Divine word." The freemen of the colo ny, or those having the elective franchise, were to be such as had been received members of the several towns, by a majority of the inhabitants. In June, of the same year, a constitution of government was adopted by the settlers at New Haven.' Tho Scriptures were received as having the authority of law in the absence of legis lation.' Only members of the churches within the jurisdiction, could be freemen or electors. At Hartford, in April of the same year, the first law was passed, being a declaration or bill of rights, which is in nearly the same words as the preamble and first article of the Massachusetts Fundamentals of 1641. This bill of rights is repeated in the commencement of every revision of the colony laws.' 1650. — By order of the General Court of Hartford, &c., a di-^ gest of the statutes was " copied by the Secretary into the book of public records," which is frequently referred to in later stat utes as the code of 1650.^ In this code under the title Indians, the lawfulness of the slavery of both Indians and negroes is recognized by the gen eral court, adopting in terms a " conclusion " of the Commis sioners of the United Colonies of New England, dated Sept. 5, 1646. (1 Eecords, 531.)^ This is not found in the revised ' Printed with the code of 1650, by Andrus & Judd, 1833, 1 8mo. The Now Ha ven colonists came directly from England in tho year 1638; they had no patent from the council in Plymouth, in England, for Now England. Tho territory of Connecti cut had been granted by a patent then held by the Lord Say and Seale, ond others. ' It is said that about the year 1750, the Hebrew lex talionis was applied under this enactment, in the case of a negro slave for tho mutilation of his master's son. Peter's Hist. Conn., p. 83. ',Tho reference to the word of God is thus modified, " or in case of the defects of a law in any particular case, by somo clear and plain rule of the word of God, iu which the whole court shall concur." * Col. Records of Conn., vol. I., p. 509, 563. Soe obstroct in 1 Hildr. 871. ' 1643, May. — A confederacy to be known as tho United Colonies of New England was entered into at Boston by delegates from Plymouth, Connecticut and New Hoven, and the General Court of Massachusetts. 2 Hazard, 1 — 6. Among the articles of agreements, tho eighth is as follows : [a] " It is also ogrecd that the commissioners for this confederation, horeolter at their meetings, whether ordinary or extraordinary, as they may have commission or opportunity, do endeavor to frame and establish agreements ond orders in general coses of a civil nature, wherein all the plantations ore interested, for preserving peace among themselves, and preventing as much as may be, all occasions of war, or differ- LAWS OF CONNECTICUT. 269 laws of 1715, which contain many provisions "for the well ordering of the Indians." ences with others, os obout free and speedy possoge of justice in each jurisdiction to all the confederates equally, as to their own, receiving those that remove from one plantation to another without due certificates, how all the jurisdictions may carry it towards the Indions, thot they neither grow insolent nor be injured without due satis faction, lest war break in upon the confederates through miscarriages, [b.] It is also agreed that if any ssrvnnt run away from his master into any of these confederoto jurisdictions, that in such case, upon certificate of ono magistrate in the jurisdiction out of which the said servant fled, or upon other due proof, the said servant shaU bo delivered either to his master or any other that pursues and brings such certificate or proof, [e.] And that upon the escape of any prisoner or fugitive for ony criminal cause, whether breaking prison or getting from the officer, or otherwise escaping, upon the certificate of two magistrates of tho jurisdiction out of which the escaped made, that he was o prisoner or such offender ot the time of the escape, the magistrate or somo of them, where for the present the said prisoner or fugitive abideth, shall forth with grant such warront as tlio caso will bear for the apprehending of any such per son ond tho delivery of him into the bond of tho officer or other person who pnrsueth him ; and if thero ho help required for the safe returning of any such offender, then it shall be granted unto him that cr.aves it, ho paying the charges thereof." The same provisions aro incorporated into the seventh article of the confederation, renewed in 1072. (2 Haz. p. 623.) Tho jireliminary agreement [a| is however dif ferently worded. "It is also ogrecd that the commissioners for this confederation hereafter ot their meetings, whether ordinary or extraordinary, as they may have commission or opportunity, may consult of and propose to the several general courts, to be by them allowed and estabhshed, such orders in general coses," &c., the rest as in the article of 1643. In certain instructions given by the commissioners, 5th Sept., 1646, (2 Hazard, p. 63,) after reciting the conduct of certain Indians, is said " it was therefore concluded, that In such coses the magistrates of any of the jurisdictions, might ot the plaintiff's charge, send some convenient strength of English, and, according to the nature and value ofthe offence and damage, seize ond bring away any of that plantation of Indians that shall entertain, protect, or rescue the offender, though it should be in another's jurisdic tion, when, through distance of place, counsel or direction cannot be had, after notice and due warning given them as abettors, or at least accessory unto the injury and dom- oge done to the English, only women and children to be sparingly seized, unless known to be some way guilty. And becouso it will be chargeable keeping Indians in prison, and if they should escape, thoy are like to prove more insolent ond dangerous after, it was thought fit that, upon such soisuro, the delinquent or satisfoction bo again de manded of the sagamore or plantation of Indians guilty or accessory as before, and if it be denied, that then the magistrates of the jurisdiction deUver up the Indians seized to the party or parties endamaged, either to serve or to be shipped out and exchanged ' for negroes as the cause will justly bear." In a correspondence, 2 Hazard, pp. 57, 69, between Goveraor ICieft of New Neth erlands ond the Commissioners for tlie United N. E. Colonies, 1646, the latter claim, " an Indion captive, liable to publicke punishment, fled from her master at Ilorford, is ontertoined in your house ot Harford, ond though required by the mogistrate is un der the hands of your agent tliere denyed, and we hoare she is either marryed or abused by one of your men ; such a servant is parte of her master's estate, and a more considerable port than a beast : our children wiU not longe be secure if this be suffered." The answer of Kieft is, — " Soe far as concernes the Barbarian handmaide, although it be apprehended by some that she is no slave, but a free woman, because she was neither taken in war nor bought with price, but was in former time placed with me by her parents for education, &c." In the inter-colonial treaty of Sept. 19, 1650, it is agreed that the some woy ond course slioU be observed betwixt the English United Colonies ond the Dutch, within the province of New Netherionds, os, according to the eighth article of confederation (of the N. E. Coh,) is in that cose provided. 2 Hazard, 172. 270 LAWS OP CONNECTICUT. Under the title Masters, Servants, Sojourners, servants are forbidden, under penalty, to trade without permission of master, and provision is made for their recapture by public authority if running away ; refractory servants are to be punished by the extension of their terms. 1 Eecords, 539, among the Capital Laws, 10, " If any man stealeth a man or mankind he shaU be put to death, Exodus 21, 26." 1 Eecords, 77. The preamble is the same as in the Massachusetts Fundamentals. 1660, May 17. At a court held at Hartford — " It is or dered by this court, that neither Indian nor negro servants shall be required to traine, watch or ward in this Colonic." 1 Eecords, 349. 1662. The several colonies of Hartford, &c., and of New Haven, became united under one government, under the Char ter for Connecticut, granted by Charles II.' 1677, May 10. At a court of Election held at Hartford. — " This court, for the prevention of those Indians running away that are disposed in service by the Authority, that are of the enemie and have submitted to mercy, such Indians, if they be taken, it shall be in the power of his master to dispose of him as a captive by transportation out of the country," &c. 2 Eec ords, 308. 1708. An act to prevent receiving goods from slaves, ffec, (Eev. L. of 1715, p. 135.) An act for punishing, dc. — " Where as negro and mulatto servants and slaves are very apt to be turbulent, and often quarrell with white people," &c., enacts that any such, disturbing the peace and offering to strike any white person, shall, on conviction, be punished with whipping, &c. (Eev. L. 1715, p. 138.) 1711. An act relating io slaves, and such in particular as ' By this the freemen of the colony wore authorized to choose new ossociotes, a governor ond legislotive assembly. The grant of legislative power is — " to ordain and establish all monner of wholesome ond reasonable lows, &c., not controry to the laws of this realm of England." It is provided that " all and every the subjects of us, our heirs or successors, which shall go to inhabit within the said colony, ond every of thoir children which shall happen to he born there, or on the seas In going thither or return ing from thence, shall have and enjoy all liberties and immunities of free and notural subjects, within any of tho dominions of us, our heirs und successors, to all intents, constructions and purposes whutsnovcr, os if thoy nnd every of them wore born within the realm of England." 1 Trumbull, 249 ; 2 Records. LAWS OF CONNECTICUT. 271 shall happen to become servants for time, enacts " that all slaves set at Uberty by their owners, and all negro, mulatto, and Span ish Indians, who are servants to masters for time, in case they shaU come to want after they shall be so set at liberty or the time of their service be expired " — they shaU be reheved at the cost of their masters. Eev. L. 1715, p. 164. 1716, — the date of a revision of the Laws : in which, an act concerning arrests for debt : that the debtor, " if no estate appear, he shall satisfy the debt by. service, if the creditor shaU require it, in which case he shall not be disposed in service to any but of the EngUsh nation," p. t of Eev. continued in the later revisions.' An act relating to freemen. Persons desiring to be come " freemen of this corporation," having a certificate of the selectmen that they are persons of quiet and peaceable behavior and civil conversation, of the age of twenty-one years, and free holders — to be admitted on taking the oaths, p. 40 of Eev. An act to prevent the running away of Indian and negro servants, p. 87 of Eev. An act prohibiting the importation or bringing into this colony any Indian servants or slaves. " Whereas divers conspiracies, outrages, barbarities, murders, burglaries, thefts and other notorious crimes, at sundry times, and especiaUy of late, have been perpetrated by Indians and other slaves, within several of his Majesties plantations in America, being of a ma- Ucious and revengeful spirit, rude and insolent in their behaviour and very ungovernable ; the over great number of which, con sidering the different circumstances of this colony from the plantations in the islands, and our having considerable numbers of the Indians, natives of the country, within and about us, may be of pernicious consequence to his Majesties subjects and inter ests here ; unless speedily remedied," — enacts " aU Indians brought into this colony, to be disposed of or sold here, to be forfeited to the treasury of the colony unless the importers give security to re-export," p. 209 of Eev. ' Mr. Hildreth, 1 Hist. U. S. 372, soys this provision is in the code of 1650. 272 LAWS oy CONNECTICUT. 1720. An act to prevent such as have made their escape from justice, or have been convicted of certain crimes in other colonies from making their abode in this colony. Eeprint 1737, p. 258. Continued and modified, in later laws, see ed. Laws 1810, p. 359, note. Eev. 1750, p. 106 ; 1784, p. 110. 1723. An act to prevent the disorder of negro and Indian servants and slavea in the night season. Eeprint 1737, p. 291. 1725. That delinquents under penal laws may be " disposed of in service to any inhabitant of the colony," to defray the ex pense of their prosecution. Eepr. 1737, p. 314. 1727. An act requiring masters and mistresses of Indian children to use their " utmost endeavours to teach said children to read EngUsh, and to instruct them in the principles of the Christian faith." Same, p. 339. 1730. An act for the punishment of negro, Indian, and mulatto slaves for speaking defamatory words. To be'punished, on trial before a justice, by whipping, not exceeding forty stripes ; " and the said slave, so convict, shall be sold to defray all charges arising thereupon ; unless the same be by his or their master or mistress paid and answered." Same, p. 375. 1750. An act to prevent such persons abiding, and hiding in this colony, as make their escape from justice, or are con victed of certain crimes in other colonies. After providing for their expulsion, as in the act of 1720, contains a provision, " that if any such person or persons fiying, or making escape, as aforesaid, be pursued by order of proper authority, from any other Government, in order to bring him or them to j,ustice, he or they may be apprehended by order of the authority of this Government. And if, on examination and enquiry into the matter, it shall appear such person or persons have been con victed, as aforesaid, and are escaped, or are flying from prosecu tion as aforesaid, he or they may be remanded back and delivered to the authority or officers from whom such escape is made, in order that due and condign punishment may be inflicted on such transgressors." Eev. of 1750, p. 106. 1774. October. Act against importation of slaves — " No Indian, negro, or mulatto slave shall at any time hereafter be LAWS OF RHODE ISLAND. 273 brought or imported into this State, by sea or land, from any place or places whatsoever, to be disposed of, left or sold, within this State.'" 1776, October. The charter of 1662 made the constitution of the State of Connecticut,' and its sovereignty declared. Laws 1784, p. 1. § 223. Legislation of Ehode Island. The earliest legislation of a distinct colonial character, with in the Umits of the present State, is that of an Assembly con sisting of the collective freemen of the various settlements or so caUed towns, then known as the " Providence Plantations ;" convened at .Portsmouth, in Ehode Island, May 19, 20, 21 ; 1647. These " Acts and Orders" contain provisions in the na ture of private law, though embodied with declaration^ 6f pub-i he law, or political constitution. Among these the following may be noted as particularly connected with the subject of this chapter :' ' See Jackson v. BuUoch, 12 Conn. Rep. 42, for ajudicial exposition of the history of slavery in the colony and State, also Reeves' Domestic Relations, 340. ' In view of this, Mr. Bancroft, Hist. U. S. vol. i., p. 403, says, "but the people of Connecticut have found no reason to deviate essentiolly from the frame of government established by their fathers. No jurisdiction of the English mbriorch was recognized ; the laws of honest justice were the basis of their commonweolth, and therefore, its foundations were lasting." Considering the reputation of the earlier legislation of Connecticut as a restroint on the liberty of the subject, it moy be weU to refer the cu rious reoder to the stotutes of 1715, respecting the observation of the Lord's day ond for the suppression of immorolity and irreligion — p. 206 of the first edition of the State laws. ' In the legislation above cited the charter granted by the Earl of Warwick, Lord High Admiral, ond others. Commissioners mider the authority of Parliament, March 14, 1643, wos expressly referred to os o source of politicol power. This charter gave to the " inhobitonts of the towns of Providence, Portsmouth and Newport, o free ond absolute Chorter of incorporotion to be known' by the name of the Incorporation of Providence Plontations, &c., together with full power ond authority to rule them selves, ond such others os shall hereafter inhobit, &c., by such o form of civU govern ment, OS by voluntary consent of all, or the greater part of thera, they shaU find most suitable, &c. Provided nevertheless that the said laws, &c., &c., be conformable to the laws of England, so far as the nature and Constitution of the place wiU admit.* (Records of the Col. edited by J. B. Bartlett, 1866, vol. I. p. 143, 156.) But the persons who acted as the freemen, or who assumed to be these inhabitants, were those who as members of the several towns or settlements-^Providence, Portsmouth, New port, and Warwick, — hod, in the name of the majority, declared themselves the "free men" or "free inhabitants." Those ofthe first-named three towns had, for some yeors before, exercised civU power in their several settlements. The inhabitants of Warwick, hod not ossumed such a power, which they contended was iUegal : but, though not mentioned in the Charter, they appeared in the Assembly of 1647. (Rec- 18 274 LAWS OF RHODE ISLAND. " It was ordered, upon the request of the Commissioners of the town of Providence, that their second instruction should be granted and estabUshed unto them, viz., ' We do voluntarily assent and are freely willing to receive and be governed by the laws of England, together with the way of the administration of them, so far as'the nature and constitution of this plantation wiU admit, desiring, so far as may be possible, to hold a corre spondence with the whole colony," &c. 1 E. I. Col. Eec. p. 147. Also under the title ToMcMwg' iiaii'5, in four heads, the first of which is, — " That no person in this colony shaU be taken or imprisoned, or disseised of his lands and Uberties, or be ex iled, or any otherwise molested or destroyed, but by the lawful judgment of his peers, or by some known law, and according to the letter of it, ratified and confirmed by the major part of the General Assembly, lawfully met and orderly managed." 1 E. I. Ool. Eecords, 157. "Touching the Common Law, it being the common right among common men, and is profitable either to direct or cor rect aU without exception ; and it being true, which that great Doctor of the Gentiles once said, that the law is made or brought to Ught, not for a righteous man, who is a law unto himself, but for the lawless and disobedient in the general, but more par ticularly for murderers of fathers and mothers, for manslayers, for whoremongers, and those that defile themselves with man kind, for manstealers, for liars and perjured persons, unto which, upon the point may be reduced the common law of the realm of England,' the end ofwhich is, as is propounded, to preserve every man safe in his own person, name and estate, we do agree to make or rather to bring such laws to light for the direction or correction of such lawless persons ; and for their memory's sake to reduce them to these five general laws or heads," &c., &c. 1 Eecords, 158. ords, vol. L pp. 27, 45, 52, 87, 129 ; 2 Douglos* Summory, p. 80. Stoples" Annols of Prov. p. 65.) This Assembly declored—" the form of government established in Providence Plantations is democratioal ; that is to say, a government held by the free and voluntary consent of aU or the greater part of the free inhabitants." 1 Records, 166. ' This definition may be attributed to the Antinomian doctrines of tho great ma jority of the first settlers, 1 Douglas' Summary, p. 444, note. LAWS OF RHODE ISLAND. 275 Debts, &c. " But he [the debtor] shall not be sent to prison, there to lie languishing to no man's advantage ; unless he re fuse to appear or to stand to their order." 1 Eecords, 181. Under Breach of Covenant it is enacted that servants shall not depart from service before the expiration of the time agreed, &c. 1 Eecords, 183. 1652. "Whereas, there is a common course practised amongst Enghshmen to buy negers, to the end that they may have them for service or slaves forever ; for the preventinge of such practices among us, let it be ordered, that no blacke man kind or white being forced by covenant bond or otherwise, to serve any man or his assighnes longer than ten yeares, or untiU they come to bee twentie-four yeares of age, if they be taken in under fourteen, from the time of their cominge within the Ub erties of this coUonie. And at the end or terme of ten years to set them free as the manner is with EngUsh servants. And that man that wUl not let them goe free, or shaU sell them away elsewhere, to the end that they may bee enslaved to others for a long time, hee or they shall forfeit to the collonie forty pounds.'" 1 Eecords, 241, 243. 1675. " The legislature' passed this order that 'no Indian in this Colony be a slave, but only to pay their debts, or for their bringing up, or custody they have received, or to perform covenant, as if they had been countrymen, not in war.' Some of the Indian captives were, however, in the great Indian war of, 1675-6, sold by the Colony ; not for life, however, but for a ' Under the then existing form of government this act operoted only in the towns of Providence and Warwick, by whose Commissioners it was enacted. According to a Report upon Abolition Petitions made by Elisha R. Potter, of Kingstown, in the R. I. Legislature, Jan. 1840, this is tho first legislotive notice of the subject. It never ob tained tho force of o generol law. 1 Banc. 174. 1 Hildr. 878. ' This was under the Charter of Charles 2d, 1663, which declared that certain persons named, " and all such others as now are, or hereofter sholl be admitted free of the Company and Society of our Colony of Providence Plantations, in the Narra- ganset Boy, in New England, shall be from time to time, and forever hereofter, a body corporate and poUtick, in fact ond nome, by the nome of the Governor and Com- pony of the English Colony of Rhode Island and Providence Plantations," Ac, and provided for an assembly of deputies to be elected " hy the major part of the Free men of the respective places, towns, or places," &c., " such lows, Ac, be not contrary and repugnont unto, but, os near as may be, agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there." 3 Hazard, 612. 276 LAWS OF RHODE ISLAND. term of years, according to their circumstances, and for their protection.'.' 2 E. I. Ool. Eec. 535, 549. Staples' An. Pr. 70. 1700. It was declared, " that in aU actions, matters, causes and things whatsoever, where no particular law of the colony is made to determine the same, then in all such cases the laws of England shaU be put in force to issue, determine and decide the same, any usage, custom or law to the contrary notwithstanding." E. I. Col. Laws (Edit. 1744), p. 28. 1 Story's Comm. 64, cites p. 192. 1714. *« We find an act passed to prevent slaves running away."i 1715. "An act was passed, to prohibit the importation of Indian slaves into this colony. This act was continued in force and re-enacted in the digest of 1766. It states in the pre amble that the increase of their number discourages the immi gration of white laborers." 1728. " An act was passed requiring perisons manumitting mulatto or negro slaves, to give security against their becoming a town charge." E. E. Potter's Eeport. ' 1760. An act was passed to prevent all persons from enter taining Indian, negro or mulatto servants or slaves, or trading with them. (See Eev. L. of 1798, p. 612.) 1770. An act for breaking up disorderly houses kept by free negroes and mulattoes, and for putting out such negroes and mulattoes to service. (See Eev. L. of 1798, p.' 611.) 1774, June. " An act was passed, prohibiting the im portation of negroes into this colony, the preamble of which we will quote ; — ' whereas, the inhabitants of America are gene rally engaged in the preservation of their own rights and Uber ties, among which that of personal freedom must be considered as the greatest, and as those who are desirous of enjoying all the advantages of liberty themselves should be willing to ex tend personal liberty to others,' &c. By this act' all slaves, ' This act originoted in a Providence town meeting, at which also it was resolved, " whereas Jocob Shoemoker, loto of Providence, died intestate and hath left six ne groes, four of whom are infants, and there behig no heir to tbe said Jacob, in this town or colony, the said negroes have fallen to this town by law, provided no heir should LAWS OF NEW TORK. 277 thereafter brought into the State were to be free except slaves of persons travelUng through the State, or persons coming ffom other British colonies to reside here. Citizens of Ehode Island owning slaves, were forbidden to bring slaves into the colony, except they gave bond to carry them out again in a year. This exception was however expressly repealed in February 1784 E. E. Potter's Eeport. ' 1776, May. The General Assembly repealed the Act for the more effectual securing to his Majesty the allegiance, &c. A virtual declaration of Independence. Staples' Annals of Prov p. 252.' § 224. Legislation of New York. Whatever local law affecting personal condition or status might have been derived from the Dutch government, within the Umits afterwards included in the British province of New York, would, on general principles, have continued after the es tabhshment of the EngUsh authority, until changed by positive enactment. The general principles on which the slavery, of Africans and Indians was recognized in the other colonies, were equally recognized there under the law of Holland, which com prehended those doctrines derived from the eivil law,' which appear : Therefore, It is voted by this meeting, that it is unbecomi ng to the choracter of freemen to enslave the said negroes, and they do hereby give up all claim of right or property in them the said negroes or either of them," &c., &3. See Stoples' An nals of Providence ; p. 237. ' For the history of slavery in the N. E. colonies ond States, see 2 vol of EUiot's Hist, of New Englond. , ' The civU law wos the common law of the Dutch empire. — 1 'Thompson's Hist. of Long Isl. p. 108. The treatise of Von Leeuwen, written in the latter part of the 17th century, transl. London, 1820, under the title. Oomm. on Roman-Dutch Law, hos olways been received in ths colonies settled by HoUund. In this work, B. I. c. 5, 8. 4, " with respect to persons, every one is free among us by thoir birth, and slovery is unknown among us and not in use, so that in order to protect natural liberty, slaves who ore brought here from other countries ore declored to be IVee as soon as they reach the limits of our countries, notwithstanding their masters." (Noting Christi'- nseus, Gudelin, Grotius, Zypa;, &c., as cited in the next chapter.) Van Der Linden in Inst, of the Lows of IloUand, pub. 1806, transl. by J. Henry, London, 1828, for use in the colonies, says, B. i. § 3, "The difPerence between freemen and slaves, which occupies so large a part of the Roman low, does not exist in our country, where all men are born free. Slavery is not in use in this country ; nay, even the slaves who come here from the Indies become free (ipso focto) hy their londing, provided they are not runaways or fugitives." But in the introductory part of the work the same author especiaUy notices the Roman low of slavery and monumission os being oppUcable in the colonics. 278 LAWS OF NEW YORK. have been set forth in the fourth chapter. There is, probably, no legislative enactment proceeding from the local authority to which the condition of slavery, under the Dutch government, can be attributed. The personal condition of the free white inhabitants, under private law, was not essentially different from that of the EngUsh in the other colonies, and the same distinction of race which existed in all the European colonies, of that time, must be taken to have limited the terms of any acts of the new government extending to the inhabitants the rights and privileges of free persons under the English law of condition. ' 1664." The first local legislation under the English govern ment was that published under the authority of the Duke of York, as proprietor,' and knotra in the history of the colony as " the Duke's Laws." This code was promulgated from East Hampton, in the eastern part of Long Island, which was settled principaUy by persons of English origin, who had before en deavored to incorporate themselves with the Connecticut colony,' and seems to have been modelled after the existing New Eng land codes. It is entitled, " Laws collected out of the several laws now in force in his majestie's American colonies and plan tations." It has been published in vol. i. of the Collections of the New York Historical Society, p. 307. It contains, under the caption. Bond Slavery — " No Christian shall be kept in bond slavery, villenage, or captivity, except such who shall be judged thereunto by authority, or such as willingly have sold or shall sell themselves, in which case a record of such servitude shall be entered jn the court of sessions held for the jurisdiction where such masters shall inhabit, provided that nothing in the ' The third of the Articles of Capitulotion, 1664, Aug. 27, declares, " All people shaU still continue free denizens and shall enjoy their lands, houses, goods, wheresoever thoy are within this country, ond dispose of thein os they please." See 2 Revised Laws of 1818, Appendix I. " The potent to the Duke, dated March 16, 1604, for the londs lying between the Connecticut and Delaware rivers, granted to him, " his heirs, deputies, agents, com missioners, ond assigns," " full and absolute power and authority," Ac. So always as the said statutes, ordinances, and proceedings be not contrary to, but, as near as con veniently may be, agreeable to the laws, statutes, and government of this our realm of England." — Leaming ond Spicer's CoU. p. 3. A second grant was made in simUar terms, in 1674, L. & S. p. 41. " See 2 Hazard's Coll. pp. 7, 18, 173, 248, 434. 1 Thompson's Hist, of Lone Island, p. 117-126. LAWS OF NEW TORK. 279 law contained shaU be to the prejudice of master or dame who have or shaU by any indenture or covenant take apprentices for term of years, or other servants for term of years or life." Under the caption Capital Laws, art. 7, " If any person forcibly stealeth or carrieth away any mankind he shall be put to death." Under the caption Fugitives, " Every apprentice and servant that shall depart or absent themselves from their master or dame, without leave first obtained, shall be adjudged by the cpurt to double the time of their such absence, by future ser vice, &c." Caption, Masters, Servants, and Laborers, among other. provisions declares, " If any servant shall run away from their master or dame, or any other inhabitants shall privily convey them away, or upon suspicion of such evil intentions, every justice of the peace," &c., is authorized to pursue such persons, " No servant, except such as are duly so for hfe, shall be as signed over to other masters or dames by themselves, their ex ecutors, or administrators for above the space of one year, unless for good reasons offered the court of sessions shaU otherwise think fit to order." The word slaves is not used in this coUection of laws ; ser vants are distinguished only as being bound for years or for Ufe.' 1683. In this year a local assembly was allowed by the Duke, and a governor sent out by him ; an act of this date en titled. An act for naturalizing all those of foreign nations at present inhabiting within this province and professing Christi anity, and for encouragement for others to come and settle within the same, (recited in an act of 1715, Bradford's Laws, p. 125,) contains the provision, that " nothing contained in this act is to be construed to discharge or set at liberty any servant, bondman, or slave, but only to have relation to such persons as are free at the making hereof" Under date October 30, is a " charter of the libertys and privileges granted by his Eoyal Highness to the inhabitants of," &c. " Freemen" are repeatedly '¦ See abstract of this code in 2 Hildr. pp. 44-61. 280 LAWS OF NEW TORK. mentioned herein, but the term is not defined. This charter was probably repealed. See vol. u. Eevised Laws, 1813, app. No. 2. • 1691, April 9. Session of the first colonial assembly, whose acts are binding. (Smith's Hist, of N. Y., p. 100.) May 6. An act declaring what are the rights and privileges of their majes ties' subjects inhabiting within their province of New York, very similar to the above charter, contains a provision, " that no freeman shaU be taken and imprisoned or be disseised of his freehold, or liberty, or free customs," &c., &c.— Bradford's Laws, p. 2-4. This act was repealed by the crown in 1697. — Smith's Hist. p. 76, notes ; Smith and Livingston's Law^, ed. 1752, p. 5. 1702.' An act for regulating slaves. (Bradford's L. ed. 1726, vol. i. p. 45.) The captions are : Not lawful to trade with negro slaves. Masters may punish their own slaves. Not above three slaves may meet together. A common whipper to be ap pointed. A slave not to strike a freeman. Penalty for conceal ing slaves. If negroes steal, how satisfaction is to be made. Evidence of negroes, how far good. Enacted for one year, but appears to have been revised and continued in force at least until 1726. I 1705. An act to prevent the running aioay of negro slaves, ' In 1702 Lord Combury wos oppointed governor of New York and the Jerseys under certain " instructions" from the crown. See Learning ond Spicer's CoU. pp. 619— 642. Art. 16, provides for the revision of lows. 49. "You ore to tako core that no man's life, member, freehold, or goods be token away or harmed in our said province, otherwise thon by established and known lows, not repugnont to, but as near as moy be, an'reeable to the lows of England." 63. Directs o census, mentioning slaves ; also, after enjoining encouragement of merchants, ond in particular the Royal African Company of England ; " And whereas we are willing to recommend unto tho said company, thot the said province may have a constant and sufficient supply of mer chantable negroes at moderote rotes, in money or commodities, so you ore to toke es pecial core that payment bo duly made," &o., " and you are yearly to give unto us and to our commissioners for trade and plantations on account of what number of ne groes our said province is yearly supplied with, and at what rates." " You shall en deavour to get o low post for the restraining of ony inhuman severity, which by ill masters or overseers may be used towards their Cliristlan servants ond thoir slaves, and that provision be made therein that the wilfuU killing of Indians and negroes may be punished with death, and that a fit penalty be imposed for the maiming of thera." " You ore also, with the assistaiKJc of the council and assembly, to find out the best moons to facilitate and encourage the conversion of negroes and Indians to the Christian religion." LAWS OF NEW TORK. 281 out of the city and county of Albany, to the French at Canada. — Bradford's L. p. 60. 1706. — An act to encourage the baptizing of negro, Indian, and mulatto slaves. Bradf L. p. 65. " Whereas divers of her majesty's good subjects, inhabitants of this colony, now are, iand have been willing that such negroe, Indian, and mulatto slaves, who belong to them, and desire the same, should be bap tized, but are deterred and hindered therefrom by reason of a groundless opinion that hath spread itself in this colony, that by the baptizing of such negro, Indian, or mulatto slave, they would become free, and ought to be set at Uberty. In order therefore to put an end to all such doubts and scruples as have, or hereafter at any time may arise about the same — Be it en acted, cfec, that the baptizing of a negro, Indian, or mulatto slave shall not be any cause or reason for the setting them or any of them at liberty. "And be it, i&c, that all and every negro, Indian, mulatto and mestee bastard child and children, who is, are, and shaU bo born of any negro, Indian, or mestee, shall follow the state and condition of the mother and be esteemed, reputed, taken and adjudged a slave and slaves to all intents and purposes what soever, " Provided always, and be it, dc That no slave whatsoevel' in this colony, shall at any time be admitted as a witness for or against any freeman in any case, matter or cause, civil or criminal, whatsoever." 1708. — An act for preventing the conspiracy of slaves. Bradf L. p. 68. 1712. — An act for preventing, suppressing and punishing the conspiracy and insurrection of negroes and other slaves. Bradf. L. p. 81. In addition to the provisions of act of 1702, are more stringent enactments against conceaUng slaves — their entertainment by free negroes. Enacts that no negro, Indian or mulatto that shaU hereafter be made free, " shaU hold any land or real estate, but the same shall escheat." Provisions for security on emancipation, for trial of slaves for crimes by two 282 LAWS OP NEW JERSEY. justices and five freeholders : but may have a jury at the charge of the owner, «&c. 1715 — An act declaring, &c., and for naturalizing all Protestants of foreign birth, now inhabiting within this colony. Bradf. L., p. 124. Eefers to the letters patent to the Duke of York, permitting the introduction of foreigners as colonists ; also to the articles of the surrender of the province, relating to the allegiance and rights of the inhabitants, and recites the act of 1683 : above-mentioned declares all persons of foreign birth, being Protestants inhabiting the colony, to be natural subjects and entitled to the privileges of such, makes no exclusion of any. 1716. — An act for explaining and rendering more effec tual an act, &c, (the act of 1712 above-mentioned.) Bradf. L., p. 135. 1730 — An act for the more effectual preventing and pun ishing the conspiracy and insurrection of negroes and other slaves ; for the better regulating of them, and for repealing the acta therein mentioned relating thereto. Livingston & Smith's Laws, vol. I., p. 193. 1740.'— An excise act, Liv. & S., vol. I., p. 281. The first twelve sections relate principally to slaves whose importation is encouraged by the terms of sec. 9. 1753. c. 27.— A similar act. 2 L. & S., p. 21. 1773. — An act to prevent aged and decrepid alavea from becoming burdensome within this colony. Ed. fo. 1774, p. 764, Eev. c. 1508. 1775. — May 22, a Provincial Congress assembles. § 225. Legislation of New Jersey. 1664. — After the acquisition of New York and New Jersey by the EngUsh, the earliest local government in the latter colo ny was founded on the grant of political powers to the Duke of York as proprietor, 1664, by him conveyed in the same year to ' In I741-'2 .. so-called" negro plot" or conspiracy was supposed to hove been formed by the slaves m the city of New York ; an account of the trial and execution of several negroes accused, was published by Horsiuandcn. LAWS OF NEW JERSEY. 283 Berkley and Carteret, and by other pubUc acts confirmed to them and their grantees. See Leaming & Spicer's Coll., 8, 141, 145.' In the first Proprietary Articles of Concession, &c., servants, slaves, and Christian servants are spoken of. L, & S., p. 12, and in laws passed in 1668, L. & S., 82. 1675. — An act provided punishments for transporting, harboring, or entertaining apprentices, servants and slaves. L. & S., 109. 1676. — The divisions of East and West Jersey estabUshed by the proprietors, each having a several government and legis lative assembly. The laws of East Jersey in 1682, which con tain a guarantee of personal liberties in the terms of Magna Charta, L. & S. , 240, also contain laws against entertaining fu gitive servants and trading with negro slaves. L. & S., 238, 255. 1694, c. 2. — An act concerning slaves, contains the com mon police regulations in respect to them. L. & S., 340. 1695, c. 3, An act concerning negroes, provides'for trial of " negroes and other slaves, for felonies punishable with death, by a jury of twelve persons before three justices of the peace ; for theft, before two justices ; the punishment by whipping." L. & S. 356. In the legislation of West Jersey, slaves are not named. A law of 1676, c. 23, providing for publicity in judicial pro ceedings, concludes " that all and every person and persons in habiting tho said province, shall, as far as in us lies, be free from oppression and slavery." L. & S., 398. Servants and runaway servants are mentioned, p. 306, 477 ; selUng rum to negroes and Indians is forbidden, p. 512. 1702. — Surrender by the proprietors of East and West Jersey to the Queen, of their rights of government. L. & S., 609, 617. The province being then placed with New York under the government of Lord Cornbury. See ante, p. 280, note. 1704. — -^Ji act for regulating negroe, Indian and mulatto slaves within the province of New Jersey. Tabled as disal lowed in a list of such laws. 1 NeviUe's Laws, 465. ' Seo limitations of legislotive power in the grant ; ante, p. 278, n. 2. 284 LAWS OF NEW JERSEY. 1713 An act for regulating slaves. (1 Nev. L., c. 10.) Sect. 1. Against trading with slaves. 2. For arrest of slaves being without pass. 3. Negro belonging to another province, npt having license, to be whipped and committed to jail. 4. Punishment of slaves for crimes to be by three or more justices of the peace, with five of the principal freeholders, without a grand jury ; seven agreeing, shall give judgment. 5. Method in such cases more particularly described. Provides that " the evidence of Indian, negro, or mulatto slaves shall be admitted and allowed on trials of such slaves, on all causes criminal." 6. Owner may demand a jury. 7, 8. Compensation to owners for death of slave. 9. A slave for attempting to ravish any white woman, or presuming " to assault or strike any free man or woman professing Christianity," any two justices have discre tionary powers to inflict corporal punishment, not extending to Ufe or limb. 10. Slaves, for stealing, to be whipped. 11. Pen alties on justices, &c., neglecting duty. 12. Punishment for concealing, harboring, or entertaining slaves of others. 13. Pro vides that no negro, Indian, or mulatto that shall thereafter be made free, shall hold any real estate in his own right, in fee simple or fee tail. 14. "And whereas it is found by experi ence that free negroes are an idle, slothful people, and prove very often a charge to the place where they are," enacts that owners manumitting, shall give security, &c. An act for laying a duty on negro, Indian, and mulatto slaves imported or brought tvithin this province. AUinson's Laws, c. 50, laid a duty of ten pounds on every slave limited to seven years. An act for regulating of white aervanta and taking up sol- diera and aeamen deaerting, &c. Neville's L. c. 11. By sec. 7, persons from neighboring provinces suspected, &c., must pro duce a pass, from a Justice, " signifying that they are free per sons," otherwise to be committed to gaol, to be " delivered by order of their captain, master, mistress, or other due course of law." 1730. An act impoaing a duty on persons convicted of heinous crimes and to prevent poor and ivipotcnt persons being LAWS OF NEW JERSEY. 285 imported into this province, and for the amendment ofthe law relating to servants. Nev. L. c. 57. 1751. An act to restrain tavern-keepers and others from selling strong liquors to servants, negroes and mulatto slaves, and to prevent negroes and mulatto slaves from meeting in large companies, from running about at night, and from hunt ing or carrying a gun on the Lord's day. Nev. L.' c. 112. 1754. Nev. L. c. 119, § 10, provides for the Borough of Elizabeth — any white servant or servants, slave or slaved, which shaU " be brought before the Mayor, &c., by their mas ters or other inhabitant of the Borough, for any misdemeanor or rude or disorderly behavior, may be committed to the work house to hard labor and receive correction not exceeding thirty lashes." 1760 An act for enUsting soldiers, &c., Nev. L. c. 141, sec. 6, provides against enlistment of any "young man under the age of twenty-one years, or any slaves who are so for terms of life, or apprentices," without leave of their masters, &c. 1768. An act to regulate the trial of slaves for murder and other crimes and to repeal so much of an act, &c. Allinson, L. c. 475. Sec. 1, 2, provides for trial of slaves by the ordinary higher criminal courts. 3. That the expenses of the execution, &c., shall be levied on order of the justices from the owners of aU able-bodied slaves in the county. 4. Eepeals sec. 4, 5, 6, 7, of the act of 1713. 1769. An act laying a duty on the purchasers of slaves imported into this colony.' AUinson's L. c. 494. Eecites — " Whereas duties on the importation of negroes in several of the neighboring colonies hath, on experience, been found bene ficial in the introduction of sober industrious foreigners, to set tle under his Majesty's allegiance, and the promoting a spirit of industry among the inhabitants in general, in order therefore to promote the same good designs in this government and that such as purchase slaves may contribute some equitable propor tion of the pubUc burdens :" provides for a duty, and also for further securities on the manumission of slaves. ' See reference to these acts as indicating tho legoUty of slovery, in State v. Post, State V. Von Buren, 1 Zabriskie's R, 868, 378. 286 LAWS OF PENNSYLVANIA. 1776, July 2. A constitution adopted for the colony. Art. 4, declares aU inhabitants of fuU age, who are worth fifty pounds, entitled to vote ; 21, 22, declares the common law of England and the former statute law of the province to be in force. WUson's ed. Laws 1784. § 226. Legislation of Pennsylvania. Settlements had been made on the western bank of the Delaware, by the Dutch and Swedes, but the soil had been be fore claimed by the British crown, and the governors of New York, under the patent to the Duke had claimed jurisdiction over the territory : but the first local legislation was derived from the charter to Penn in 1680.' 1681, July 11 — the date of certain Conditions and Con cessions agreed upon by W. Penn, Proprietary, &c., and those who are the adventurers and purchasers in the same province. Charters and Acts, &c., ed. 1762, vol. i. p. 6, 7, of which, in connection with the subject, sections 13, 14, 15, may be no- ' The fourth section grants to the Proprietary and his heirs and deputies power of making laws, " according to their best discretion by and with the advice, assent and opprobotion of the freemen of the said country or the greater part of them," &c. The fifth specifies other legislative judicial and executive powers with the proviso — " that the same laws be consonant to reason and not repugnant or contrary, but (as neor as conveniently may be) agreeable to the laws, statutes and rights of this our realm of Englond, ond soving ond reserving to us, &c., the receiving, heoring, ond determining of the oppeal and appeals of all or any person or persons of, in or belonging to the territories aforesaid, or touching ony judgment to be there mode or given." The sixth gives power to the Proprietor to make ordinances "for the preservation ofthe peace os for the better government of tho people there inhobiting, so thot said ordi nances be consonant to reason and be not repugnant nor contrary, but, so for os con veniently moy be, agreeoble with the lawsof, &o., and so as the said ordinances be not extended, in any sort, to bind, charge, or take owoy the right or interest of any person or persons for or in their life, members, freehold, goods or chottels," &c. — Lows of Pa. fo. p. 1, 6. The requisites of the condition of a 'freeman,' are indicated in gront or chorter of liberties, by Penn, 25 Ap. 1682 ; Lows ogreed upon in Eng lond, &c. (Append, to editions of Prov. Laws.) 2. That every inhabitont that is or shaU be purchaser, &c., and every person that both been a servant or bondsmon, and is free by his service, that shall have taken up his fifty acres, &c., and overy inhabi tant, artificer, or other resident in the said province, that pays scot and lot to the Government, shall and may be capable of electing or being elected representatives of the people in provinciol council or Generol Assembly in the sold Province." See olso Votes and Proceedings, I. p. 3, admitting certain Swede, Finn and Dutch settlers to be freemen, ond the oct of Union (aimexiiig the three counties which afterwards con stituted the Province ond State of Delaware, (in the Append, to Prov. L.) in which the following occurs — "And forosmuch oS there must always be a people before there can be a government, and the people must be united and froe, in order to settle and encourage them," &c. LAWS OF PENNSYLVANIA. 287 ticed, providing for the punishment of injuries done to the In dians, that the planter injured by them, " shall not be his own judge upon the Indian," and for a judicial determination of controversies arising between the planters and the natives by a jury consisting of six persons of each race, &c., &c. 1682. Laws agreed upon in England : provide, sec. 23, — " That there shall be a register for all servants, where their names, time, wages, and days of payment shall be registered." 29 — " That servants be not kept longer than their time, and such as are careful be both justly and kindly used in their ser vice, and put in fitting equipage at the expiration thereof, ac cording to custom." Province Laws, App. 1, 2. 1700. " Fourth mo. 1. The bill number 5 regulating ne groes in their morals and marriages, &c., was read the first time and put to the vote whether it should pass into a law ? carried in the negative." Votes & Proc. I. p. 120.' Memoirs Hist. Soc. Penn. vol. i. p. 367, — Bottle's Notices. *1700. An act for the better regulation of servants in this province and territories. The captions are — " No servant to be sold out of this government without his consent. Nor as signed over except before a Justice. The allowance to servants at the expiration of their servitude. And shaU serve five days for every day's absence from their master, &c. The reward for taking up Eunaways, &c., and the penalty for concealing them. The Penalty on the Justice for neglect, as also on the Sheriff. Likewise for dealing with servants or negroes, &c. For this and for the following citations, see the various editions of the Province Laws of Pa. c. 26. An act about departera out of thia Province. Persons leaving are required to procure a pass. — Prov. L. c. 132. c. 29. An act for the trial of negroes. The captions — Two Justices commissioned by the Governor, with the assist ance of six freeholders, to try negroes for murther, &c. Then: - 2 HUdr. 505. " The assembly refused to assent to Penn's proposition for the le gal marriage ond instruction of sloves, but possed o rigid poUce low for the regulation and punishment of negro sloves." . ^ ,. ' For the history of the various changes in the frame of Government before this date, see Preface to the Votes and Proceedings. 2 HUdr, 63, 67, 205, 207. 288 LAWS OF PENNSYLVANIA, quaUfication and manner of proceeding thereon, Their duty and power to acquit or condemn. How sentence to be given and execution done. Punishment for rape. For stealing. Ne groes not allowed to carry a gun or other arms. Nor to meet above four in company on penalty of whipping.— Prov. L. c. 135, c. 30. An act to prevent the importation of Indian slaves. " Whereas the importation of Indian slaves from Caro lina or other places hath been observed to give the Indians of this province some umbrage for suspicion and dissatisfaction. Be it,.&c., that if after the twenty-fifth day of March, in the year 1706, any person shall import or cause to be imported, any Indian slaves or servants whatsoever, from any province or coIot ny in America into this province, by land or water, such only and their children (if any) excepted as for the space of one year before such importation shaU be proven to have been menial servants in the family of the importer, and are brought in tor gether with the importer's family, every such slave or servant so here landed shall be forfeited to the Government and shall be either set at Uberty or otherwise disposed of, as the Governor and councU shall see cause." " Provided always that no such Indian slave as deserting his master's service elsewhere, (that shall fly into this Province,) shaU be understood or be construed to be comprehended within this act."— Prov. L. c. 136. c. 39.' An act about arrests and making debtors pay by servitude. — Prov. L. c. 165. c. 50. An act for raising revenue. An import duty is laid on negroes, among other merchandise specified. — Prov. L. c. 166. 1710, c. 14. An act laying a duty on negroes, wine, rum, and other spirits. Eepealed in councU, 1713. — Prov. L c. 172. I'J^'i.-lZ, c. 10. An act to prevent the importation of ne groes and Indians into thia Province. Lays a prohibitory du ty on negroes and Indians ; allows a drawback or re-exportation 1701 "^I'T.-"",!" of "OS-chapters 26, 29, 30, 89, appear to have been enacted in 1701, but disallowed by the king's councU. LAWS OF PENNSYLVANIA. 289 in twenty days ; an indulgence to travellers, of two slaves each ; runaways, if taken back within twenty days, to be free of duty ; . otherwise, if not claimed within twelve months, they were to be sold. Eepealed by the Queen's councU. — Prov. L. c. 183 ; (see ante, p. 209, note from Burge.)' 1714, c. 19. An act for laying a duty on negroes imported into thia Province. Eepealed in council, 1719. — Prov. L. c. 209. 1717, c. 5. An act for continuing a duty on negroes brought into this Province. " Expired," — Prov. L. c. 222. 1721, c. 1. In this act, which regulates public houses, &c., in s. 4, negroe or Indian servants are spoken of, but not slaves ; the margin has the term slaves. — Prov. L. c. 23. c. 2. Act respecting fires, last section, "and if such offender be a negro or Indian slave he shall, instead of imprison ment, be publicly whipped at the discretion of the magistrate." —Prov. L. c. 235. 1721-2, c. 1. An act for imposing a duty on persons con victed of heinous crimes and imported into this province as ser vants or otherivise. Prov. L. c. 237. Eepealed, 1729, c. 8, s. 21. 1722, c. 3. An act for laying a duty on negroes imported into this Province. " Expired." — Prov. L. c. 239. 1726, c. 1. SimUar title. " Expired."— Prov. L. c. 276. c. 4. An act for the better regulating of negroes in this Province. Captions : — Value of negro put to death for crime, how allowed to owner. Masters importing negroes to report them to collector. Whoever lets free any negroe shall give se curity. The third section enacts, " and whereas it is found by experience that free negroes are an idle, sloathful people, and often prove burthensom to the neighborhood, and afford ill ex amples to other negroes, Therefore be it enacted, &c.. That if any master or mistress shall discharge or set free any negroe, he or she " shaU give recognizance &c., " but until such recogni- ' In 1712 to o generol petition for the emancipation of negro slaves by law, the le gislature of Pennsylvania answered that ' it was neither just nor convenient to set them ot Uberty.'— 3 Bone. 408. 19 290 LAWS OF PENNSYLVANIA. zance is given such negroes shall not be deemed free." The se curity shall be given for negroes set free by will, or the said negroes shall not be free. — " That if any free negroe, fit to work, shall neglect so to do and loiter and misspend his or her time, or wander from place to place, any two Magistrates next adjoin ing are hereby impowered and required to bind out to service, sUch negroe, from year to year, as to them may seem meet." — Slaves under the age of twenty-one to be bound out. — No free negro or mulatto to harbor or entertain any negro, Indian or mulatto slave, — nor trade with any such. — " That if any free negroe or mulattoe shall refuse or be unable to pay his or her Fine or Forfeiture as aforesaid, it shall and may be lawful to and for the Justice before whom such matter is tried to order Satisfaction by Servitude." " That no minister, pastor or ma gistrate, or other person whatsoever, who, according to the laws of this province, usually join people in marriage, shall upon any pretence whatsoever join in marriage, any negroe with any Avhite person, on the penalty of one hundred pounds." Whites and blacks cohabiting — the white shall pay a fine, and the black be sold as a servant. The rernaining sections prescribe penalties for negroes absent from home at night, &c. Prov. L. c. 288. 1729, c. 5. An act for laying a duty on negroes imported, dec, rep. by 1761, c. 10, s. 16.— Prov. L. c. 297. c. 8. An act laying a duty on Forreigners and Irish servants &c., imported into this Province — repealed by 1729, 2d sess., c. 7, fl. 9.— Prov. L. c. 298. 1742, c. 3. An act imposing a duty on persons convicted of heinous crimes brought into this province, and not warranted by the laws of Great Britain, &c. Eepealed by the royal council. 1761, c. 10. Supplementary to an act of 1729, c. 5. A similar law, 1767-8, c. 3. 1 Laws of the Commonwealth of Pa. c. 428, 429. 1767-8, c. 3, continues the last above, "expired." 1771, c. 8. An act supplementary to an act of 1770, re specting servants. 1 Laws Commonw. Pa. c. 636. 1773, c. 11. An act making perpetual the act intituled. An LAWS OF DELAWARE. 291 act for laying a duty on negroes and mulatto slaves, dc, and laying an additional duty on the said slaves. 1 Commonw. Laws, c. 692, (repealed 1780. Ibid. c. 881.) 1776, June 14. — The Provincial Congress instructed their delegates in the Continental Congress to confer with the other colonies in political separation from Great Britain, " reserving to the people of this colony the sole and exclusive right of regu lating the internal government of the same."^ — Votes and Pro ceedings, vol. vi., 740. § 227. Legislation of Delaware. The territory occupied by the State of Delaware was first occupied by the Dutch.' Their claim had always been denied by the English, though on tlie grant of New Netherlands to the Duke of York, it was occupied by his representatives as a por tion of his proprietary dominion. In 1682, Aug. 21, the Duke ceded his territory to Penn, and it became included in his gov ernment. — See the " Act of Union," in Votes and Proceedings, vol. i., p. 3, and ante p. 286, note. — Delaware Laws, ed. 1797, c. 5. In 1703, Penn surrendered the old form of government, and gave the Delaware Counties the option of a separate administra tion, under "the Charter of PrivUeges," having a separate legislature, though one Governor and CouncU with Pennsyl vania. — Del. Laws, ed. 1797, appendix. 1721. An act for the trial of Negroes. Del. L. c. 43. Sec. 1. Two justices and six freeholders empowered to try " negro or mulatto slaves" accused of heinous offences specified. 2. Such court may determine and order execution. When slaves are put to death two-thirds of value to be paid to owner. 3, 4. ' Tho first settlements in this vicinity were by the Swedes and Danes, before the year 1638. Stevens, in Hist, of Georgia, p. 288, says that in the Swedish and German colonies, founded on the Delaware by Gustavus Adolphus, it was held " not lawful to buy or keep slaves," but gives no outhority. In o translation of the Danish Laws of Christian V., published in London, 1766, " for the use of the Danish colonies in Ameri ca " ch. xii. of Book iii. is omitted, since " it regards vileanage, consequently of no use in'the American islonds." But ch. xiv., Of Bondsmen, is given in fuU, though sueh as are thero described are bound to the soil, though hereditary, ond could not be sold or removed by the lord. In Book iii. ch. il.. Of lYivileges, " Whoever enjoys the privilege of power, of life or Umb on his servants, or ecclesiosticol or civU patronage, or any other privilege granted by the king, shaU use it, and shaU not be deprived of it on account of abuse." 292 LAWS OF DELAWARE. Duties of Sheriffs, &c. 5. Punishment for rape of white wo man—standing on piUory and cutting off both ears. 6, 7. Slaves forbid to carry arms ; negroes forbid meeting in companies. 1721. An act against adultery and fornication. — Del. L., c. 44, sec. 5. Servant women having bastards— to serve another year. 9. Penalty on white women that shaU bear mulatto chUdren. The child to serve under appointment of county court, untn the age of thirty-one years, (llepealed 1795, D. L., c. 71.) 10. Penalty on white men committing fornication with negro or mulatto women. (Fines and corporal punish ment, for fornication and bastardy, abrogated, 1795, D. L., c. 108, s. 7.) 1739. An act imposing a duty on persons convicted of hein ous crimes, and to prevent poor and impotent persons being im ported, dc. — D. L., c. &&. An act for the better regulation of servants and slaves within this Government.— B. L., c. 77. Sec. 1. No indentured servant to be sold into another Government without the appro bation of at least one justice, &c. 2. Nor assigned over unless before a justice. 3. Nor indentures taken, &c. 4-10. Police regulations regarding servants, similar to those of other colonies. 10. Whoever manumits a slave, to give security, &c. 11. The children of free negroes to be bound out if their parents do not maintain them. The remaining sections contain the ordinary police regulations for slaves. 1751. An act supplementary to the last. — D. L., c. 129. 1760- Another supplementary act, D. L., c. 170. Sec. 1. " Whereas the children of white women by negro or mulatto fathers, and the descendants of such children, and negroes en titled to their freedom, are frequently held and detained as ser vants or as slaves, by persons pretending to be their masters and mistresses, when they ought not by the laws of this govern ment be so held and detained, and frequently are sold as slaves by such pretended masters or mistresses to persons who reside in other governments, with a fraudulent design to prevent their procuring proof of their being entitled to their freedom ; and whereas the laws of this Government aro defective in not pre- LAWS OF NORTH CAROLINA. 293 scribing any mode for settUng and determining in a short and summary manner the claim or right of any persons pretending to be entitled to their liberty." 2. Enacts that the courts of Common Pleas may, upon petition, summon the master or mistress and witnesses before them, and, " after hearing the proofs and allegations of the parties in a summary way," if they are satisfied that the person petitioning is entitled to freedom, shall discharge him or her from the service, &c. 3. Their judg ment to be enforced by the Sheriff. 5. Provides a penalty for selling a free man " out of this Government." 1767. An act supplementary to the preceding. — D. L., c. 188. Preamble. — " Whereas it is found by experience, that free negroes and mulattoes are idle and slothful, and often prove burdensome to the neighborhood wherein they live, and are of evil example to slaves." Sec. 2. Eestrains still further the manu mission of slaves. 3. Provides punishment for a slave assaulting another slave. § 228. Legislation of North Carolina. The first legislation having territorial extent within the limits of the present States of North and South Carolina, was derived from certain Lords Proprietary, under the charters of 1663 and 1665.' Even before the year 1729, where the rights " The first permanent sottlonients wore made by emigrants from Virginia and Now England. (2 IJnnc, 131-136.) By the first charter, 1G03, art. 5, the proprietaries had property in the soil and supreme legislative power "according to their best dis cretion and with the advice, assent and approbation of the freemen of the said prov ince, or of the greater part of them, or of their delegates or deputies, whom for the enactment of the said laws, &c." the proprietaries were to ossemble ; " provided nev ertheless that the said laws be consonant to reason, and as near as may be conve niently agreeable to the laws and customs of (his our kingdom of England." Art. 7, " that all ond singular the subjects and liege people of us, &c., tronsported or to be transported into tho said province, and the oliildron of them and of such as shall de scend from them, there born, or hereafter to be born, be nnd shall bo denizens ond lieges of us, &c., of this our kingdom of England," &c., and that they shall "possess ond enjoy " " all liberties, francliiscs and privUeges of this our kingdom, &o." The charter of 1G65 has similar clauses. 1 S. C. Statutes ot Large, p. 24, 33. The proprietories adopted John Locke's Constitution, March 1, 1669, of which the following articles are of interest, in connection with the history of slavery in Americo ; though it may be doubted whether the constitution ever had the force of a law, not hoving been adopted by tho local assembly. See 1 S. C. St. at L., p. 41 ; it was definitively abrogated in 1693. 1 R. S. of N. Car., Pref. vii. It provided: Art 97. "But since the natives of that place, who will bo concerned in our plan tation, oro utterly strangers to Christianity, whoso idolatry, ignorance, or mista];e 294 LAWS OF NORTH CAROLINA. of the proprietaries were finally ceded to the crown, the north ern and southern portions of the territory constituted distinct jurisdictions, each having a separate legislative assembly. They became formaUy distinguished as North and South Carolina, in the year 1732. The legislative history of North CaroUna begins with the year 1669.' (2 Banc, 151.) According to Iredell's Lawsof N. C, from which the following notes of statutes are taken, the date of the earliest extant laws is 1715, ofwhich year's laws, c. 31 — An act for the more effectual" observing of the Queen's peace, dc, sec. 5, referring to the charter provision, states that disputes often arise l>ow far the laws of England are in force ; declares, " From thence it is manifest that the laws of England are the laws of this government, so far as they are compatible with our way of living and trade." " That the common law is, and shall be in force," except as to the practice of courts, and that all English statutes for maintaining the rights of the crown, the estabUshed Church, " and all laws providing for the privileges of the people," and certain others, shall be in force. gives us no right to expel or use them ill ; ond those who remove from other parts to plant there will unavoidably be of different opinions concerning matters of religion, tho liberty whereof they will expect to have oUowed them, and it will not bo reasonable for us on this account to keep them out ; that civil peace may he obtaiued amidst di versity of opinions, and our govornment and compact with oil men maybe duly ond faithfully obsorvod j the violation whereof, upon what pretence soever, cannot ho with out great offence to Almighty God, oud great scandal to the true religion which wo profess ; and also that Jews, Heathens ond other dissenters from the purity of the Christian religion may not be scared and kept at a distance from it, but by having an opportunity of acquainting themselves," &c. Art. 101. " No person above seventeen years of oge shall have any benefit or pro tection' of the law, or ba capable of any place of profit or honor, who is not o member of some Church or profession, having his name recorded in somo one, and but ono religious record at once." Art. 107. " Since charity obliges us to wish well to tho souls of all men, and re ligion ought to alter nothing in any man's civil estate or right, it shall be lawful for slaves OS well as others, to enter themselves, and be of what Church or profession ony of them shall think best, and be as fully member as any freeman. But yet no slave shall hereby he exempted from that civil dominion his inostur liutli over him, but bo iu all things in the same state and condition ho was in before." Art. 110. " Every freeman of Carolina shall have absolute power and authority over his negro slaves, of what opinion or religion soever." For the early legislative history of the Carolinas, see Pref vol. 1 of Rev. St. of North Cor. Brevard's Observations. 1 S. C. Stat, at L, 425-429. ' At this time, according to 1 WiUiamson's Hist, of N. C, 122, n., " Taxobles wore every white mole, aged sixteen years ; and every slave, negro, mulatto or Indian, niolu or feinalo, aged twelve years." — Coinp. ante, p. 280. LAWS OF NORTH CAROLINA. 295 Ch. 45. An act concerning servants and slaves. — The title only is given in Iredell's L.; margin, " Eep. by act April 4, 1741, c. 24." Ch. 59. An act respecting Indians, of which sec. 5 en acts, that any white man injuring an Indian " shaU make full satisfaction to the party injured, and shall suffer such other punishment as he should or ought to have done, had the of fence been committed by an Englishman." Ch. 66. An act repeaUng aU laws not specially re-enacted. 1720, c. 5. — An act explaining the act concerning ser vants and slaves, the title of which only is given by IredeU, and in margin, " Eep. by Ap. 1741, c. 24." 1723, c. 5. — An act for an additional tax on all free ne groes, mulattos, mustees, and such persons, male or female, as now or hereafter shall be intermarried with any such persons 7'esident in this government. The title only given ; margin, Eep. by acts, 1741, c. 24 : 1760, c. 2. 1741, c. 1. Act concerning marriages. — Sec. 13. That white persons" intermarrying with any negro, mustee, or mulatto man or woman, or any person of mixt blood to the third gener ation, bond or free, " shall pay fifty pounds forfeit." c. 24. An act concerning servants and slaves, does not declare who are or shall be slaves ; relates to treatment of indentured servants, and the police regulations for slaves most common in the various colonies. Sec. 18, provides for extension of the term of service of white servant women having bastard children'; if by a negro, &c., such children shall be bound out until thirty-one years of age. 19. Mentions a pe culiar class of servants imported, being tradesmen or workmen in some art, receiving wages, yet bound. 45. Such runaways may be declared outlawed, and thereupon lawfully killed by any person. 46. The conspiracy of three slaves made a felony. 56. That no negro or mulatto slaves shall be set free upon any pre tence whatsoever, except for meritorious services, to be adjudged by the county court and Ucense thereupon. 1749, c. 6. An act confirming, on revision, certain former acts, among wliich the acts of 1723 and 1741 above mentioned. 1753, c. 6. An additional act concerning servants and 296 LAWS OF NORTH CAROLINA. slaves, principally providing for searching the houses of slaves for arms and stolen goods. Sec. 9. Allowance for slaves executed. (Eep. by 1786, c. 17.) 10. That if slaves, not being clothed and fed according to the intent of this act, shall steal corn, .cattle, or goods, their owners shall be liable in damages to the person losing the same. 1758, c. 7. Another additional act as above, the title only given ; margin, " Eep. by act, 1764, c. 8, and 1786, c. 17." By the former of these repealing acts it appears that the act in part provided that no male slave should, for the first offence, be condemned to death, unless for murder or rape, but for every other capital crime should, for the first offence, suffer castigation. The other sections provide compensation to the owners of slaves executed for crimes. The act of 1786, repealing these, recites, " Whereas many persons, by cruel treatment to their slaves, cause them to commit crimes for which many of said slaves are executed, whereby a very burthensome debt is unjustly imposed on the- good citizens," &c. 1774, c. 31. An act to prevent the wilful and malicious killing of slaves,^ provides for the first offence, twelve months' imprisonment, and for the second, death without clergy ; the offender to pay to the owner the value of the slave. Proviso, that the act does not extend to outlawed slaves. See the act of 1791, on this matter, and State v. Boon, Taylor's N. C. E. 252. 1775, May 19. The so-caUed " Mecklenburg Declaration of Independence," in the name of " the citizens of Mecklenburg county." See the history of this in Eev. St. of N. C. vol. i. p. 5. ; from its insertion in this publication it may be taken to have been adopted by the State as its own public act. ' State V. Reed, 2 Hawks' R. 454. An indictment for tho murder of a slave, which concludes at common law is good. State v. Hale, 2 Hawks' R. 582. An indictment will lie at common law for battery of o slave by a stronser, 1. e., not owner or hirer ; comp. State v. Mono, 2 Devereux R. 203. Iu Toto v. O'Neil, I Hawks' R. 418, held, that patrols are not liable to the master for inllicting punishment on his slovo, unless thoir conduct doinonstrotea inolico againat the master. laws of south carolina. 297 § 229. Legislation of South Carolina. Among the titles preserved in Trott's Laws of 8. 0. pp. 1, 2, 3, of certain early colonial acts, which are not now to be found, is one dated 1682 or 1683, entitled An act inhibiting the trading with servants or slaves. This act was probably temporary, bnt was renewed by various acts, anterior to the revisory and now extant slave law of 1712. See 2 Statutes at Large, Introd. p. 5, and pp. 22, 52, 73, 118, also. An act for servants arriving ivithout indentures or contracts, and an act to prevent runaways. — 2 Stat. Introd. p. 5. 1687. An act for servants hereafter arriving ivithout in dentures or contracts. — 2 Stat. L. p. 30. 1690. An act for the better ordering of slaves. — 7 St. at L. 342. Sec. 1. Police regulations for negro or Indian slaves, pro vides for passes or tickets. Penalty for neglect to apprehend and punish runaways ; punishment of such slaves " offering any violence." 2. " That all slaves shaU have convenient clothes once every year," and that no slave " shall be free by becoming a Christian," that slaves shall be deemed " as other goods and chattels " as to payment of debts, but " shall be accounted as freehold in all other cases, and descend accordingly." 3, 4, 6, 9. For the detention, treatment, &c., of runaways. 5. Houses of slaves to be searched for arms, &c., and stolen goods. 7. Pen alty for attempting lo steal or carry off any slaves the act made a felony. 8, 10, 11. Provide for the^ trial and punishment of slaves, by a justice and three freeholders, for crimes, misde meanors, and insurrections. 12. " That if any slave, by pun ishment from the owner for running away or other offence, shall suffer in life or limb, no person shall be liable to the law for the same ; but if any one out of wilfulness, wantonness, or bloody- mindedness, shall kill a slave, " shall suffer three months' im prisonment," and pay fifty pounds to the owner ; no person liable for killing a slave stealing by night in his house, &c. This act appears to have been temporary, but in substance re-enacted by various acts until the law of 1712. See 2 Stat. at L. pp. 49, 78, 121, 156, 182. 298 laws OF SOUTH CAROLINA. 1697. An act for the making aliens free of this part of this province and for granting liberty of conscience to all Prot estants. — 2 St. at L. 131. The first section extends the rights and privUeges " of persons born of English parents " to all alien inhabitants ; but by the seventh its extent seems limited to certain French Protestants. An act of 1691, 2 St. at L. 58, also naturalizes certain of this class of aliens. 1698. An act for the encouragement of the importation of white servants. — 2 St. at L. 153, recites, " whereas the great number of negroes, which of late have been imported into this colony may endanger the safety thereof, if speedy care be not taken and encouragement given for the importation of white servants." 1701. An act for the pj'evention of runaways deserting this government.— 2 St. at L. 180. This applies to all domicUed persons. 1703. An act laying duties, 2 St. at L. 200. Sees. 4, 5, designate the duty to be paid on negro slaves imported, and on Indian slaves exported. Further explained by act of 1706, 2 St. at L. 280. 1704. An act to regulate elections, 2 St. at L. 249. Sec. 1, provides a property qualification for voters, but no distinction of race is mentioned. Another act making aliens free of this part of the province. — 2 St. at L. 251. Another for raising and enlisting such slaves as shall be thought serviceable to this prov ince in time of alarms. — 7 St. at L. 349, continued by later acts up to the act of 1712. 1712. An act to put in force in this province the several statutes of the kingdom of England, or South Britain, therein particularly mentioned. — 2 St. at L. p. 401. In sec. 5, " that all and every part of the common law of England, where the same is not altered by the above enumerated acts, or inconsistent with the particular constitutions, customs, and laws 6f this province, excepting so much thereof as hath relation to the ancient ten ures which are taken away, &c., is hereby enacted and declared to be of as full force in this province as if particularly enumer ated by this act, &c." Among the acts named are the great LAWS OF SOUTH CAROLINA. 299 charter, 9 Hen. 3. c. 29, which is recited, " no freeman shall be taken," &c. The Habeas Corpus Act, 31 Car. 2, is not among the acts named. As to the law of slavery co-existent with the law of England in the colony, compare White v. Chambers (1796), 2 Bay's E. 74. 1712. An act for the better ordering and governing of ne groes and slaves. — 7 St. at L. 352. " Whereas the plantations and estates of this province cannot be well and sufficiently managed and brought into use without the labor and service of negroes and other slaves ; and forasmuch as the said negroes and other slaves brought unto the people of this province for that purpose are of barbarous, wild, savage natures, and such as renders them wholly unqualified to be governed by the laws, customs, and practices of this province ; but that it is absolutely necessary that such other constitutions, laws and orders should in this province be made and enacted for the good regulating and ordering of them, as may restrain the disorders, rapines, and inhumanity to which they are naturaUy prone and inclined, and may also tend to the safety and security of the people of this province and their estates, to which purpose 1. "Be it enacted, dc, that all negroes, mulattoes, mestisoes, and Indians, which may at any time heretofore have been sold, or are now held or taken to be, or hereafter shall be bought and sold for slaves, are hereby declared slaves, and they and their children are hereby made and declared slaves to all intents and purposes, excepting all such negroes, mulattoes, mustizoes, or Indians, which heretofore have been, or hereafter shall be, for some particular merit, made and declared free either by the governor and council of this province, pursuant to any act or law of this province, or by their respective owners or masters, and also excepting all such negroes, mulattoes, mustizos, or In dians as can prove that they ought not to be sold for slaves. And in case any negro, mulattoe, mustizoe or Indian, doth lay claim to his or her freedom, upon all or any of the said accounts, the same shall be officially heard and determined by the gov ernor and council of this province." Sees. 2, 3, re-enact provi sions ot the act of 1690, respecting runaways and searches for 300 LAWS OP SOUTH CAROLINA. arms and stolen goods. 4. Against trading with slaves. 5, 6. For bidding to slaves use and access to fire-arms. 7, 8. Against meetings of slaves in and about Charleston. 9, 10, 12, 18. Pro visions for the trial of slaves, similar to those in the act of 1690, and for new modes of punishment. 11. Penalty on owners for sending away slaves who have committed felonies. 13. Eegu- lating the admission of the evidence of slaves against other slaves. 14. " Whereas divers evil and ill-disposed persons have hitherto attempted to steal away negroes or other slaves, by specious pretence of promising them freedom in another country, against which pernicious practice no punishment suitable hath yet been provided," provides punishment of the attempt by a fine, &c., and makes the act a " felony without benefit of clergy, and the offender shall suffer death accordingly." 15. " That in case any negro or slave shall run from his inaster or mistress, with intent to go off from this province, in order to deprive his master or mistress of his service, such negro or slave shall, on conviction, suffer death ;" provides for punishment of slaves en ticing other slaves to run away. 16. Provides for payment to the owners of slaves suffering deatli for crimes. 17. Punishment of slave striking or injuring any " Christian or white person." 19. Various new punishments for slaves running away for the first and other times. 20-27. Various provisions for the arrest and treatment of runaway slaves. 28, 29. Eestraining owners in granting liberties to slaves and in their mode of employing them. 30. Similar to sec. 12, of the act of 1690. 31-33. De tailed provisions for the better enforcement of this act. 34. Pro vides " since charity and the Christian religion, which we profess, obUge us to wish well to the souls of all men, and that religion may not be made a pretence to alter any man's property and right, and that no person may neglect to baptize their negroes or slaves or suffer them to be baptized, for fear that thereby they should be manumitted and set free," — " it shall be and is hereby de clared lawful for any negro or Indian slave, or any other slave or slaves whatsoever, to receive and profess the Christian faith, and to be therein baptized ; but that notwithstanding such slave or slaves shall receive or profess the Chrisrian religion and LAWS OF SOUTH CAROLINA. 301 be baptized, he or they shall not thereby be manumitted or set free, or his or their owner, master, or mistress lose his or their civil right, property, and authority over such slave or slaves, but that the slave or slaves, with respect to his servitude, shall remain and continue in the same state and condition that he or they were in before the making of this act." 1714. — An additional act to the above, 7 St. at L., 365, sec. 1, to facilitate punishment of slaves, gives to two justices and one freeholder, certain of the powers formerly vested in two justices and three freeholders. 2. Other of such powers given to a justice and two freeholders. 3. Compensation of marshal in certain cases. 4. Limits the amount to be paid for slaves exe cuted for crime. 5. Eeciting that " the executing of several negroes for felonies of a smaller nature " has been a great charge, enacts that except for murder, slaves condemned shall be trans ported, &c. 6. Punishment of slave for striking — discretionary with the judge, and the oath of the person struck, made suffi cient to convict. 7, 8. Eespecting dealing with slaves, stolen goods, &c. 9, 10. " And whereas the number of negroes do extremely increase in this province, and through the afflicting Providence of God, the white persons do not proportionably multiply, by reason whereof the safety of the said province is greatly endangered," &c., provides additional duties or importa tion. 11. That slaves shall not be allowed to plant for them selves certain articles or keep stock. 1716 An act to encourage the importation of white ser vants into this province. 2^ Stat, at L., 646. An act, dc, duties on negroes imported, Ibid., 651, sees. 3, 4, 5. An act to keep inviolate the freedom of elections, dc. 2 St. at L., 683, sec. 20 : qualifications of voters, "that every white man, and no other, professing the Christian religion," being of age and having cer tain property, may vote. 1717. — An act for the better governing and regulating ' See the abstract of this act in 2 Hildr. p. 271, 275 ; the author observes here : " Then, os now, the legolity of this legislation seems open to some question," refer ring to tho chorter provision that local laws should not be repugnant to the laws of England. Comporo o/i/c, § 214. 302 LAWS OF SOUTH CAROLINA. ivhite servants. 2 St, at L., 14, contains provisions siraUar to those of Virginia and other colonies. Sec. 21 provides punish ment of limited servitude for white women having cliildren by negroes, and the same penalty for white men begetting chil dren by blacks ; the issue to be servants for limited times. 1717. — A further additional act, dc. 7 St. at L., 368, contains new provisions for compensation of the owners of slaves executed, and increases the import duty. 1719. — Another act laying duties on negroes, &c. 2 St. at L., 57, 69. 1722, — An act for the better ordering, dc 1735. — An act under the same title. 7 St. at L., 371, 385. These acts, with great minuteness of detail, extend and re-enact the provisions of the former acts. Sec. 22 of the first act recites, " whereas, there is sometimes reason to suspect that slaves do run away for want of a sufficient allowance of provi sions," gives power to justices to inquire, and enacts a penalty. Sec. 1 of the act of 1735, declaring who shall be slaves in terms similar to sec. 1 of 1712, " in case any negro, mulatto, mustee or Indian doth or shall lay claim to his, her, or their freedom, upon all or any of the said acts or otherwise, the same shall be finally heard and determined before the judges and justices of the Court of General Sessions, assize and gaol-deUvery in this province, in open court, at the sitting of the same by a verdict of twelve men, and not otherwise." Sec. 35 requires provi sion to be made for the departure out of the province of manu mitted slaves, &c. 36. Limits the quality of apparel to be fur nished to slaves. 1737. — An act for establishing and regulating patrols, 3 St. at L., 456, recites the object of keeping in order the " negroes and other slaves." 1738 — An act respecting pedlers, and against their deaUng with slaves. 3 St. at L., 487. 1740 — For the better ordering and governing negroes and other alavea in thia province. 7 St. at L., p. 397. Where as, in his majesty's plantations in America slavery has been in troduced and aUowed, and the people commonly called negroes, LAWS OP SOUTH CAROLINA. 303 Indians, mulattoes and mustezocs have been deemed absolute slaves and the subjects of property in the hands of particular persons, the extent of whose power over such slaves ought to be settled and Umited by positive laws, so that the slave may be kept in due subjection and obedience, and the owners and other persons having the care and government of slaves may be restrained from exercising too great rigor and cruelty over them, and that the public peace and order of this iirovince may be preserved ; we pray your most sacred majesty that it may be enacted. " And be it enacted, dc. — That all negroes and Indians, (free Indians in amity with this government, and negroes, mulattoes or mustezoes, who are now free, excepted,) mulattoes or mus tezocs who now arc, or shall hereafter be in this province, and all their issue and offspring, born or to be born, shall be and they are hereby declared to be, and remain forever hereafter absolute slaves, and shall follow the condition of the mother, and shall be deemed, held, taken, reputed and adjudged in law to be chattels personal, in the hands of their owners and pos sessors and their executors, administrators and assigns, to all intents, constructions and purposes whatsoever ; provided al ways, that if any negro, Indian, mulatto or mustezo shall claim his or her freedom, it shall and may be lawful for said negro, Indian, mulatto or mustezo, or any person or persons whatso ever, on his or her behalf, to apply to the justices of his majes ty's Court of Common Pleas by"petition or motion, either during the sitting of the said court, or before any of the justices of the same court at any time in the vacation ; and the said court or any of the justices thereof, sliaU, and they are hereby fully im powered to admit any person so applying to be guardian for any negro, Indian, mulatto or mustezo, claiming his or her, or their freedom ; and such guardians shall be enabled, entitled and capable in law, to bring an action of trespass in the nature of ravishment of ward, against any person who shall claim prop erty in, or who shall be in possession of any such negro, Indian, mulatto or mustezo ; and the defendant shaU and may plead the general issue on such action brought, and the special matter 304 LAWS OF SOUTH CAROLINA. may and shall be given in evidence, and upon a general or spe- cial verdict found, judgment shall be given according to the very right of the cause, without having any regard to any de fect in the proceedings, either in form or substance ; and if judgment shall be given for the plaintiff, a special entry shaU be made declaring that the ward of the plaintiff is free, and the jury shall assess damages which the plaintiff's ward hath sus tained, and the court shall give judgment and award execution against the defendant for such damage, with full costs of suit ; but in case judgment shall be given for the defendant, the said court is hereby fully impowered to inflict such corporal punish ment, not extending to life or limb on the ward pf the plaintiff as they in their discretion shall think fit ; provided always, that in any action or suit to be brought in pursuance of the direction of this act, the burthen of the proof shall lay on the plaintiff ; and it shall be always presumed that every negro, Indian, mulatto and mustezo is a slave, unless the contrary can be made to appear, the Indians in amity with this government excepted, in which case the burthen of the proof shall be ou the defendant ; provided also, that nothing in this act shall be construed to hinder or restrain any other court of law or equity in this province, from determining the property of slaves or their right to freedom, which now have cognizance or jurisdic tion of the same, when the same shall happen to come in judg ment before such courts, or any of them, always taking this act for their direction therein." Sec. 2. The defendant required to give recognizance. 3. No slave to be absent from home with out a ticket. 4. Penalty for unauthorizedly giving a ticket. 5. Slave, without ticket, how dealt with ; provides that if such " shall refuse to submit to the exanaination of any white person, it shall be lawful for any such white person to apprehend and moderately correct such slave, and if any such slave shall as sault and strike such white person, such slave may be lawfully killed." 6. Penalty for improperly beating a slave ; that is, beating by other than the master, and while lawfully employed : a pecuniary fine with power to commit untU paid. 7. Assem blages of slaves to bo dispersed, their houses searched for arms, LAWS OF SOUTH CAROLINA. 305 &c. 8. Persons damaged in taking runaway slaves, to be re munerated. 9. How slaves are to be tried for capital offences ; by two justices and three freeholders, &c., one justice may issue warrant of commitment. The trial to be within three days after the apprehending of such slave. The said justices, &c., shall, after hearing evidence for and against, &c., finaUy " hear and determine the matter brought before them, in the most summary and expeditious manner ; and in case the offender shaU be convicted of any crime for which by law the offender ought to suffer death, the said justices shaU give judgment, and award, and cause execution of their sentence to be done by inflicting such manner of death and at such time as the justi ces, by and with the consent of the freeholders shall direct, and which they shall judge will be most effectual to deter others from offending in the Uke manner." 10. Trial for offences not capital, by one justice and two freeholders ; the judgment to be " for the inflicting any corporal punishment, not extending to the taldng away life or member, as he and they in their discre tion shaU think fit ; and shall award and cause execution to be done accordingly." 11. What shall be a quorum of the court in the foregoing. 12. The oath to be administered to such jus tices, &c. 13. " That not only the evidence of aU free Indians, without oath, but the evidence of any slave without oath, shaU be allowed and admitted in aU causes whatsoever, for or against another slave accused of any crime or offence whatsoever ; the weight of which evidence being seriously considered and compared with aU other circumstances at tending the case, shaU be left to the conscience of the justices and freeholders." 14. The same provisions for trial of slaves made appUcablo to free negroes, &c. 15. Slaves convicted of felonies to suffer death, the manner according to the direction of the justices and freeholders.' ^,16. Certain crimes declared felony, committed by slaves, free negroes, &c., burning articles, the product of the province, steaUng slaves to carry out of the province, poisoning any person. 17. Homicide and insurrec- ' The existence of laws for the trial of negroes, similar to that contained in the preceding sections, should be considered in reading the newspaper reports of such tri als, which often oppcar therein, like acts of lawless assomhUos. 20 306 LAWS OP SOUTH CAROLINA. tion punishable with death. 18. Compensation to owners of slaves executed. 19. Justices may compel any to give evidence. 20. Penalty for conceaUng accused slave. 21. Duties of consta bles. 22. Penalty for working on Sunday. 23. Slaves not to carry fire-arms without a ticket. 24. Slaves who strike a white person, how to be dealt with. 25. Eunaway slaves, how to be • disposed of. 26. The duty of the wardens of the work-houses. 27. Proceedings when apprehended runaway slave is delivered to warden, &c. 28. Slaves, in custody eighteen months, to be sold.' 29. Penalty on free negroes or slaves for harboring runaways. 30, 31. Slaves in Charleston not to buy or seU ex cept, &c. 32, 33. Eespecting seUing liquors and giving tickets of leave to slaves. 34. Prohibits slaves from trading or keep ing boats, horses, cattle, &c. 35. Slaves allowed to buy and sell provisions, &c., with a ticket. 36. Not to be absent, or to keep arms, horns, &c. 37. " And whereas, cruelty is not only highly unbecoming those who profess themselves Christians, but is odious in the eyes of all men who have any sense of virtue or humanity ; therefore to restrain and prevent barbarity being exercised towards slaves." That if any person shall " wilfully murder " his own or another's slave, he shall on con viction, forfeit seven hundred pounds, current money, and be incapable of holding office, &c. In case of inability to pay, to be kept at hard labor in the work-house, &c., for seven years. If any person shall, on sudden heat and passion, or by undue correction, kill his own slave, or another's, he shall forfeit three hundred and fifty pounds.* For mutilation, &e., or " cruel pun ishment, other than by beating with," &c., &c., the forfeiture of one hundred pounds. 38. Slaves to be provided with sufficient ' Many of the provisions in the laws of tlie various States applying to runowoys, may, with greater strictness in the usage of longuage, be sold to apply to negroes who are either not proved to belong to some owner, or who cannot, when arrested, prove that tbey are not slaves, or their right to freedom. Compare Stroud, 2d ed. p. 131. ' State V. Gee, 1 Boy's R., 164, (1791,) by counsel for the State — " the frequency of the offence owing to the noture of tho punishment." State v. Fleming, (1847), 2 Strobhart's R., 464, o case under o later act, (1821,) it was held that on indict ment does not lie at common law for the homicide of a slave ; it is, in S. C, purely a statutory offence. Compare Stroud, p. 63. In White v. Chombers, (1796,) 2 Boy's R. 70, an action by the master for battery of the slave by a stranger, will lie under the customary law of the province aud State ; even, it would seem, when there is uo proof of a consequent loss of service. LAWS OF SOUTH CAROLINA. 307 clothing and food, under penalty.' 39. "Whereas, by reason of the extent and distance of plantations in this province, the inhabitants are far removed from each other, and many cruel ties may be committed on slaves, because no white person may be present to give evidence of the same," &c., enacts that if any slave shall suffer in life, limb or member, or be maimed, &c., contrary to the meaning of the act, and no white person able or willing to give evidence, then the owner or person having the care of such slave, is to be deemed guUty of the offence, unless such owner or other person can make the contrary appear by evidence, " or shall, by his own oath, clear and exculpate him self," which oath shall discharge, " if clear proof of the offence be not made by two witnesses at least."' 40. Appeal to be given to slaves, its quality Umited. 41. Against firing guns at night. 42. Slaves are not to rent houses or plantations. 43. Nor travel on the highway in numbers. 44. " And whereas, many owners, «fec., do confine them so closely to hard labor, that they have not sufficient time for natural rest," — that if any shall work slaves " more than fifteen hours in twenty-four, from March to September, and fourteen hours in twenty-four from September to March," they shaU forfeit a sum not over twenty and not under five pounds. 45. "And whereas, the having slaves taught to write, or suffering them to be employed in writing, may be attended with great inconveniences," — that any person who shall teach any slave to write or employ any slave as a scribe in any writing, shaU forfeit one hundred pounds. 46. No person to keep slaves on a plantation without a white person with them. 47-50. Eewards for white persons or free Indians bringing in alive, from Florida fugitive negroes, or their scalps, in certain cases, &c., &c. 51-55. Penalty on per sons failing to carry this act into execution, &c., &c. 56. Sanc tions the unauthorized execution of certain negroes during a ' See under this act, in 1849, the State v. Bowen, 3,_Strobhart'3 R. 673. Stroud's Sketch, 49. ' State V. Welch, (1791.) 1 Boy's R., 172. No'person can exculpate himself by his own oath, for killing a slave, not being the master, overseer, or some person having immediate charge of such negro. 308 LAWS OF SOUTH CAROLINA. previous rebeUion. This act was for three years, but was re- enacted, and has continued to be, essentiaUy, the principal law on this subject. 7 St. at L., 418, 425. Compare the abstracts of its provisions in 2 Hildr., p. 421. 1740. An act for the better establishing and regulating patrols. 3 St. at L., 568. " Forasmuch as many late horrible and barbarous massacres have been actually committed, and many more designed, on the white inhabitants of this Province by negro slaves, who are generally prone to such cruel practices," &c. Sec. 8. Defines the duties and powers of the patrol men in respect to slaves. Enacted for three years, but probably re vived in later acts. 1743. An act for the better securing this Province against the insurrections and other wicked attempts of negroes and other slaves ; and for revising, &c. 3 St. at L., 608. 1744. An act for the better governing and regulating of white servants, &c. 3 Stat, at L., 621. 1746. An act amending and continuing the act of 1740, 3 St. at L., 647. 1751. Additional and explanatory of the same act. 7 St. at L., 420. An act laying new duties on slaves imported. 3 St. at L., 739. 1754. An act to prevent slave-stealing, &c. 7 St. at L. 426. 1764. An act for laying an additional duty upon all ne groes hereafter to be imported, &c. 4 St. at L., 187. Eecites " Whereas an importation of negroes, equal in number to what haveb een imported of late years, may prove of the most danger ous consequence in many respects to this Province, and the best way to obviate such danger will be by imposing such an additional duty upon them as may totaUy prevent the evUs."' 1775-76. An act to revive and continue certain acts, ' In 1760, an act wos passed by the Provincial Assembly to prevent the further im portation of slaves, but was disaUowed by the crown. Tho Governor of S. C. was rebuked for having assented to it, and a circular letter sent to oU tlie other Governors, prohibiting their assent to similar act. 1 Burgo's Comm. 737. The trade was de clared to bo " beneficial nnd necessary to tho mother country." Stevens' Georgia 285. LAWS OF GEORGIA. 309 among which are the acts already described respecting slaves. 4 St. at L., 331, 348.' 1775. Nov.— to 1776 March— A Provincial Congress; adopts a constitution for the State, does not contain any decla ration of private rights. Art. 11, of elections ; " The qualifica tion of electors shall be the same as required by law." § 230. Legislation of Georgia. The district lying between the Savannah and St. John's rivers had been included in the grant to the Lords Proprietary of Carolina. The laws which were enacted under their govern ment for the portion of " Carolina south of Cape Fear," may be supposed to have had territorial extent in the territory now occupied by the State of Georgia. The Proprietaries made re trocession of their territory and jurisdiction in 1729 {ante, p. 293.) By a charter dated 9th June, 1732, a body corporate called " the Trustees for estabhshing the Colony of Georgia," in the district south and west of the Savannah river, was created ; their trust being limited to twenty-one years. This charter re pealed the laws of South Carolina, in and for Georgia." ' The importation of indented servants was especially con templated by the Trustees, but they prohibited the introduction ' The code of S. C, has been stringently coercive compared with those of the other colonies and slove-holding States ; not only by the immunity of power which it has given to the owners ; but olso in the authority which it has conferred, and indeed imposed as an obligation, on each white inhabitont, in reference to the slaves ond free persons of color. It illustrotes, moreover, how, even in the superiority which is con ferred upon him by law, the action of the free inhabitant, though not himself a slave owner, may, in many respects, be restricted through the existence of a slave-class. 2 Seo the charter in Stevens' Hist, of Ga., nnd the State Digest. It declares that "oil nnd overy tho persons whieh shall happen to be born within tho said Province, Olid every ono of their children and posterity, shall hove and enjoy all liberties, fran chises and immunities of freo denizens nnd natural born subjects within any of our dominions, as if abiding and born within this our kingdom of Great Britain, or any other dominion." It also provided that " oil and every person or persons who sholl ot any time hereafter inhabit or reside within our said Province, shall be and hereby ore declared to be free, and shall not be subject to or be bound to obey any lows, orders, statutes or constitutions, which hove been heretofore mode, ordered and enacted, or which hereafter shall be made, &c., by, for or as the laws, orders, statutes or constitutions of our said Province of South Carolina, but shall be subject to and bound to obey such orders, Ac, os shall from time to time be mode, &c., ibr the bet ter government of the said Province of Georgia, in the manner herein after declared. And we do hereby, &c., &o., that for and during tho term of twenty-one years, to 310 LAWS OP GEORGIA. of slaves.' It was soon however advocated by the wealthy planters. " A considerable number of negroes had been already introduced from Carolina, as hired servants, under indentures for life or a hundred years," and after a long controversy on the subject (2 Hildr. 360, 371,) the Trustees in 1747 " passed an or dinance allowing slavery with certain restrictions on their nurif- bers, mode of employment, and with provisions for their rehgious instruction." Stevens' Georgia, p. 312. 2 HUdr. 418. 1754. The powers of the Trustees under the charter hav ing been surrendered, or having expired in 1752, a form of gov ernment was organized under the Board of Trade. A governor and councU were appointed by royal commission. Among the ordinances enacted by them was one that " all offences com mitted by slaves were to be tried by a single justice without a jury, who was to award execution, and, in capital cases to set a value on the slave, to be paid out of the public treasury." A local assembly was provided. Voters were " to possess fifty acres, but owners of town lots were presently admitted to the same privilege." 1755. The first session of the Assembly. An act was c ommence from the date of these, &c., the said corporation, assembled for that pur pose, shall and may form ond prepare lows, statutes and ordinances fit and necessary for and concerning the government of the sold colony, ond not repugnont to the lows and statutes of England, &c. — such laws, &c., to be subject to tho Royal approval in privy council; or, rather, that ofthe " Board of Trade and Plantations," estobUshed in 1696, " who succeeded to the authority and oversight hitherto exercised by Plon- tation committees of the Privy CouncU." 2 Hildr. 197. ' The British government, or the majority ofthe Trustees, appear not to have been actuated by any moral objection to slavery, in making this prohibition. But Ogle thorpe, occording to authorities cited by Mr. Bancroft, vol. 8, p. 426, said, " Slovery is against the Gospel as well os tho fundamental law of England. We refused, as trustees, to moke a law permitting such o horrid crime." Mr. Bancroft also gives the " governmental view," together with the praises which " so humane a plan " excited in England. Neale v. Farmer, 9 Geo. R., p. 675. " The introduction of slaves was prohibited to the colony of Georgia for some years, not from motives of humanity, but for the reason it was encouraged elsewhere, to wit : the interest of the mother coun try. It was a favorite idea with the " mother country," to make Georgia a protect ing barrier for the Carolinas, against the Spanish settlements south of her, and tho principal Indian tribes to the west ; to do this, a strong settlement of white men was sought to be built up, whoso arms and interests would defend hor northoru plantations. The introduction of slaves wos held to be unfavorable to this scheme, and hence its prohibition. During the time of tho prohibition, Oglethorpe himself was o sloveholder in CoroUna." Stevens, Hist, of Ga. p. 288, says that in the official publications of the 'Trustees, its inhibition is based only on political and prudential, and not on humane or liberal grounds, and it seems that overy negro " found in the place wos sold bock into Carolina," if not claimed by some owner. Stevens, p. 299, refers for in.stance, 1739 —1741, in Stephens' Journal. Seo also Impartial Inquiry, ic, London, 1741, iu vol. 1, CoU. of Geo. Hist. Soo, pp. ICC— 178. LAWS OP GEORGIA. 311 passed, " for the regulation and government of slaves." 2 HUdr. 455. 1765. An act for the establishing and regulating Patrols, and for preventing any person from purchasing provisions or any other commodities from, or selling such to any slave, unless such slave shall produce a ticket from his or her owner, manager or employer. 1768. An act to amend and continue the foregoing. 1770. An act for ordering and governing slaves within this province, and for establishing a jurisdiction for the trial of of fences committed by auch alavea and other persons therein men tioned, and to prevent the inveighling and carrying away slaves from tlieir masters, owners or employers. This act was a copy of the act of South Carolina of 1740. The sections are, for the greater part almost literal copies of corresponding sections in the Carolina act.' Sec. 14, 15, 16, 17, relate to poisoning by slaves, teaching to poison, and forbid the administering of medicines by slaves. Sec 39, forbids teach ing slaves to " read writing," in addition to the injunction of the Carolina act, sec. 45.' ' Neale v. Farmer, 9 Geo. R 582, concludes, that, as in S. CaroUna, anie, p. 306, n. 2, kiUing a slave is not felony hy common law. ' The statutes above named are given in Prince's and Cobb's Digests, except as they hove been repealed or modified in ports, by later statutes. CHAPTEE VIL OP THE PRIVATE INTERNATIONAL LAW EXISTING FOR THE SEV ERAL PARTS OF THE BRITISH EMPIRE, DURING THE COLONIAL PERIOD, AND RELATING TO FREEDOM AND BONDAGE OF THE CONDITIONS UNDER WHICH SUCH A LAW MIGHT EXIST. § 231. Public international law being based on the necessity for a rule of action between the possessors of sovereign power, and private international law on the recognition of persons as having been at different times subject to the jurisdiction of dif ferent possessors of that power, either of these divisions of in temational law may come into existence, or be applied, wherever any portion of that power is independently vested or mani fested. While there is little difference of opinion, among writers on public law, as to the abstract nature of that authority which, in their conception, is the characteristic of any one of those politi cal bodies or persons known as sovereign states or independent national polities, there has been much contrariety among them in the recognition of the entirety of that power in the various visible and concrete forms in which political authority or do minion has been manifested. § 232. It seems to have been commonly assumed for an axiomatic principle, that sovereignty or supreme national power is always manifested as the prerogative of a unity, as indivisi ble in its existence ; that, if regarded as made visible in dis tinctly separate acts of power, those acts, in order to be acts of sovereign power, must ultimately depend upon, or proceed from INDIVISIBLE SOVEREIGNTY. 313 one and the same possessor of power ; that the sovereignty which marks or characterizes states is not to be regarded as an aggre gation of various distinct and separate powers, each of which may be independently exercised by different political bodies or persons.' It is undoubtedly true that in the international recognition of sovereignty which is made by political bodies, or persons themselves claiming to constitute a state or nation, the only other possessors of sovereign power are persons or bodies each holding, within, its own domain, aU the powers which can be attributed to a state or nation. For the persons or bodies so re cognized must be equal in the nature of their power ; that is, equaUy sovereign in all respects ; and therefore it is true, that, as regards each other, the manifestation of any single act of sovereign power proceeds from a person or body possessing aU other attributes of sovereign power. In view of the interna tional intercourse of nations or states, properly and strictly so called, any person or body, manifesting authority over persons and things, must either possess all the powers of a sovereign state, or be a subordinate person or body, in reference to some one such possessor of sovereignty. It is a basal fact in public law, that states or nations respectively recognize only them selves as the possessors of any portion of sovereign power, and can know themselves, respectively, as the only persons or enti ties who are absolute and independent of law in the strict and proper sense ; although in certain exceptional cases, states may be known as being in an inferior or Umited position in reference to other states, though still being politicaUy distinct : and it may be difficult, in matters of public law, to distinguish clearly between a technical and a virtual sovereignty. ° ' Calhoun's Essay on Gov., 1 Works, p. 146. " There is no difficulty in under standing how powers appertaining to sovereignty moy be divided, and" the exercise of one portion delegated to one set of agents and another portion to another ; or how sovereignty may be vested in one mon or in a few, or in mony. But how sovereignty itself — the supreme power — con be divided, how the people of the several states can he partly sovereign and partly not sovereign, partly supreme and partly not supreme, it is impossible to conceive. Sovereignty is au entire thing ; to divide it is to destroy it." ' Vattel, B. 1, u. 1. PhiUimore, Internationol Low, Part 2, u. 2. 314 DISTRIBUTED SOVEREIGNTY. § 233. Whether recognized by external and independent poUtical persons or bodies, or by private persons subject to laws proceeding from the exercise of that power, sovereign power is known, not by force of any laAV in the strict sense, but by the fact of its exercise, by possession. The possession of sovereignty which is recognized as such by other states (externally), must be, as before said, of aU sovereign powers, otherwise it wUl be attributed to some who exercise' it only as being themselves subject or dependent persons, or political bodies. But in the interior or internal manifestation of poUtical power, i. e., its manifestation towards the constituent parts or materials of a state, power over persons and things may be known as sovereign, though divided or held by distribution among distinct persons or bodies, who, in the apprehension of foreign or exterior persons, together constitute only the ele ments of that unit which they recognize as the possessor of the sum of sovereign power or the state.^ If in point of fact those constituent persons or bodies severally exercise any power inde pendently of any other known political person or persons exer cising similar or different powers, that power is, in the public law of the state, a sovereign power in its exercise or manifesta tion ; though not held by a sovereign in the ordinary accepta- tion'^of the word in public international law.' The sovereignty of a state or nation, in order that it may be a sovereign state or nation, is, then, as to the rest of the ' Was not this distribution of the powers belonging to o notionol sovereignty the basal idea of Gothic or Germanic feudalism, which once entered into the constitution of all tho modern nations of western Europe ? The feudal chief hod on independent sovereign au thority for local objects, coexistent with ageneral subjection of himself and vassals to the king or nation. See Bodin's Rep. , as to a sort of sovereignty iu certain great families. B. 1 c. 2, (KnoUes' Tr. p. 13.) The towns (muncipium) first acquired, as corporations, an authority like that of feudal lords. The petty sovoreignty of chiefs among the Celtic nations appears to have been more isolated. The Roman political system tended to concentrate all autonomic power in a single hand. Compare Lieber's Civil Liberty and Solf-Governraent. ' G. T. Curtls's Hist, of the Origin, &o., of the Const, of the U. S., vol. I., p. 206. " Political sovereignty is capable of portition, according to the charocter of its sub jects, so that," &c. The partition of the powers of sovereignty, referred to in the text, is o different thing from that distribution or separation of the throe functions or deportments of sovereign power, (the throe modes or forms by which it may be mani fested, tho legislotive, judiciol, and executive authority,) which is often discussed by publicists, OS Bowyer's Univ. Public Law, p. 144, nnd citations. THE COLONIAL DISTRIBUTION. 315 world indivisible, or the prerogative of a unity. But the con stituents of that state may, relatively to each other, either be an individual or a number of individuals holding, as a political unit, the whole power of a state ; or else an aggregate of indi viduals or political unities, each holding, independently of the others, separate powers for specified objects and within specified limits of space or of time. This may certainly be the judicial apprehension of such powers, or their legal character in the jurisprudence of such a state. Whether there must not be in every nation or state some one person, or mass of persons, who potentially hold, or may exercise, if he or they will, every power that can be caUed sovereign or political power, is a different question ; belonging to the domain of political ethics.' § 234. Even supposing political power over persons and things to be separately invested in distinct portions or constitu ents of a nation, under a law proceeding from some one supreme national power, the exercise of that power within specified ju risdictions, and over persons as subjects thereto, will give occa sion to the existence of an international or g'Masi-international law as regards the exercise and effects of that power. § 235. During the connection of the North American colo nies with the empire of Great Britain, the sum of the powers of national sovereignty over their territory was distributed, at least according to the views of the colonists, in some undeter mined proportion, between the parliament or imperial govern ment, and the local governments of the several colonies.' The rules which regulated the public or political intercourse between these various constituent parts of the empire were included in the public municipal law of the empire, a law of political or ganization, and formed a law in the strict sense of the term, be cause resting, in theory at least, on the undivided national will, though they resembled public international law in many re spects. But since these several parts did, in fact, separately ' Domot, Public Low. B. L, tit. 1. Pufendorff, B. 7, c. 4, § 1. Paley, Moral Phil., B. VL, c. 6. Lieber, Civil Lib., &o., vol. 1, 168. ' Ante, ch. IIL 316 ORIGIN OF INTERNATIONAL RELATIONS. exercise certain political powers within specified jurisdictions, persons might within each be recognized as native or alien, tem porary or domiciled subjects, in reference to any one such juris diction and its local laws, and persons whether domiciled or aUen might be recognized as sustaining relations caused by their previous subjection to another of those jurisdictions. § 236. The term jurisdiction is used to signify not only the right, power, or authority of promulgating and enforcing law in respect to persons and things within a certain district or terri tory, but also the territory itself within which that right, power or authority is exercised. And the term is also frequently used in a sense including both these meanings ; as where persons are denominated aliens in respect to a certain jurisdiction ; meaning not only to the territory, but also to the laws prevaU - ing therein, and the political power from which they proceed. It has been shown in the first chapter, that when private international law becomes distinguished from the municipal (internal) law in any jurisdiction, it is by its application to per sons ; and that it is based upon the recognition of certain dis tricts of territory, as being under separate political power, con stituting separate jurisdictions, and of persons as being alien or native in respect to one or the other of those jurisdictions ; or, rather, upon the recognition of persons in one such jurisdiction as having rights or sustaining obligations in relations arising from a previous subjection to the law of another ; and that it has always, by its application, the character of a personal law.' § 237. A simple subjection at different times to different jurisdic tions being thus the foundation of private international law, the legal relations of even the domiciled inhabitants of one jurisdic tion may sometimes be therein taken to be affected by a tem porary subjection, without domicU,' to the laws of another ; as 'Ant; §58. ^ According to what has been said before (§§ 54, 121,) tho circumstance of natu ral or native birth, or the congenital circumstance of a legal naturalization, is that upon which the distmction of alienage is primarily founded. But, in tho proctice of notions, distinguishing between persons in respect to the lows which control their con dition, it 13 the fact or foots constituting the technical relation of domicil rather than tho natural fact or circ.imstanco of birth, or an equivalent naturalization, whicli, iu most instuiicea, distinguishes tho alien from other poisons in tl.o national jurisdiction REFERENCE TO DOMICIL. 317 relations arising out of contract. Thus also a loss of personal Uberty, for crime committed against the state to which the per son has been temporarily subject, may, in certain cases, be re cognized in the domicil of such person. This instance of inter national law, though affecting the individual right herein par ticularly considered, i. e., personal hberty, is however distinct from the international recognition of status or condition, which, according to previous definition, consists in the possession or non-possession of individual rights, with capacity for relative rights in relations towards other private persons. The persons whose condition under private international law is here to be inquired into, were, in the first instance, to be recognized as aliens to some one jurisdiction, by reason of previous domicil in another ; and the question to be considered is of the subsequent continuation or alteration of their rights and obUgations, created under the law of such domicU, in those re lations which constitute status or condition. § 238. Although each colony of the British Empire was a part of the integral imperial or national domain, and under one imperial or national jurisdiction, yet, in being also under a dis tinct local government, it constituted, in respect to it, a par ticular local jurisdiction. Persons in the several colonies might be distinguished as being either alien, temporary, native or na turalized, or domiciled subjects, in reference to one only, or to both of these jurisdictions, and to the two several sources of law and jurisdiction, thus having concurrent existence in each col ony. And in this view, England, Scotland and Ireland might each, before the legislative union, ' be considered as being in the same manner under a local and a national jurisdiction, and per sons in any one of those portions of the original dominion of the British Empire might be distinguished as native or alien, tem porary or domicUed subjects, in respect to one or both of the sources of law therein. to which they are all cquaUy subject. In other words, tho distinction between domi ciled subjects and subjects having n foreign domicil is more comprehensive, in private international law, than that between native or noturolized ond olien bom subjects, which lost is more Importont in thatpart of international law which is herein called ;)a6 lic, concerning the rights and obligations of states to each other as distinct nationalities. ' Acts of Union, for England ond Scotland, 6 & 0 Anno, c. 8, (1706,) for England and Irolond, 39 Ante, §§ 197 200. JUS GENTIUM IN COMMON LAW. 357 was recognized to exist among alien persons, founded on differ ences of race, complexion or physical structure, and religious belief The alien of white or European race and Christian name was recognized as having, by the law of nations applied internalionally, the status of a legal person and a presumptive claim to the enjoyment of those individual and relative rights, which, under the English common law, constituted irrespec tively of political rights, the free condition of an English-bom inhabitant ;' subject to the processes of remedial justice and police laws, including the powers of the state over individuals in reference to religious belief.' On the other hand it was shown, in the same connection, that while the bondage of white indentured servants might have been taken for the result of a law peculiar to the colonies, or to the British Empire' — the chattel slavery of Indian captives and imported Africans was, throughout a long period subsequent to the first settlement of the colonies, based upon a distinct recognition of the law of nations — principles of universal jurisprudence as historically known and judicially allowed to have personal extent in all the colonies, under both the colonial and the imperial authority, if not in England also, at the same time. § 281. To whatever extent then this law of nations or uni versal jurisprudence, as judicially recognized in any several ju risdiction of the empire, sustained at any period, the slavery of Moors, Africans and Indians, regarded as aliens to the empire, it would have been contemporaneously receivable in the same forum, as sustaining, by the application of the rule above stated, the slave condition of such persons appearing therein as aliens to such several jurisdiction, after they had become domiciled in some other jurisdiction of the empire. And it may also be said, that so far as it was thus recog nized by the law of nations of that time, the right of the En gUsh of European master was a " common law right " and was supported as such, in each several jurisdiction of the em pire, under the common law of England, having for him a per- • Ante, § § 139, 140. 'Ante, § 208. ' Ante, §§ 209, 210. 368 LIMITATION OF JUS GENTIUM. sonal and national extent throughout the entire national do main. ' § 282. The reasons for supposing that the operation of the lata of nations, in sustaining chattel slavery in the American colonies, must originally have been limited to Moors, Africans and Indians, while heathen and unbaptized only, have already been explained.' And the colonial statutes have been noticed which contain an apparent recognition of this limitation by de termining the persons who should be slaves, notwithstanding conversion, and which establish rules for the condition of the issue, some ofwhich differ from that ofthe civil or Eoman law.' It has also been shown that so far as the condition of Christian ized negroes and Indians was supported in any one colony by the judicial interpretation of natural reason, (common law,) it was still distinguishable as the result of the law of that particu lar colony, (jus proprium.)^ § 283. It has been noticed in the second chapter, that, when regarded as the condition of a legal person, slavery or bondage is a condition of infinite variety in respect to its incidental obU gations and their correlative rights ;' and it is only in its most absolute form — that approaching most nearly to chattel slavery — that it can be a condition ascribed, at any time, to the law of nations.^ It has been shown in the fourth chapter, how, by the attribution of legal personality, slavery in the middle ages lost ' Ante, §8 244, 245. 'Ante, S§ 170,171, 189. ' Ante, Laws of Maryland, 1663, c. 30, § 1. Virginia, 1682, o. 1. * Ante, § 204. * Ante, % 46. 19 Howard's R., p. 624. (Dred Scott's case,) hy Mr. Justice Curtis. " The status of shivery is not necessarily olways attended with the same powers on the part of the master. The master is subject to tho supreme power of tbe state, whoso will controls his action towards his slave, iind this control must be defined ond regula ted by the municipal low. In one state, as at one period of the Roman law, it may put tho life of the slave into the hand of the master ; others, as those of the United States which tolerate slavery, may treat the slave ns a person, when tho master takes his life j while in others tho law may rocognizo o right of tho slave to bo protected from ci-ucl treatment. In other words, the status of slavery ombrncos every condition from that in which tho slave is known to tho low simply os o chattel, with no civil rights, to that in which he Is recognized as a person for all purposes, save tho compulsory power of directing ond receiving the fruits of his labor. Which of these conditions shall attend tho status of slavery, must depend on tho municipal law which creates and upholds it." By Mansfield, in Somerset's caso, o»(e, p. 191. "The power of a moster over his sloves bus bcou extremely different in different countries " ' Ante, % 112. SLAVERY OF LEGAL PERSONS. 359 the character of a constitutio juris gentium, and became a bond age resting on the jus proprium of some one country. ' And it may be assumed that no condition of bondage, other than chat tel slavery has ever acquired recognition in universal jurispru dence — the law of nations, in that sense. Now it may be questioned whether the condition of slavery which was maintained in the colonies was, in all or even in any, throughout the colonial psriod, that absolute chattel condition under which African negroes had been known as personal or movable propertj', in the customary law of trade and commerce, the law merchant ; and whether the personality of slaves was entirely denied, as it had been at the first introduction of ne groes. In Virginia they had, at one time, been declared real estate and not chattels.' In the same colony and in Maryland they had been classed as legal persons by being rated for the poll-tax, which was also imposed on free white persons.' In some of the northern colonies, their condition as subjects of legal rights and obUgations was little distinguishable from that of indentured white servants, except by the duration of the ser vice.^ Slavery or bondage thus modified, was the result of the jus proprium of the colony, and could not receive international re cognition in other parts of the empire as the same slavery which had found place in the law of .each colony as a constitutio juris gentium — a condition recognized by universal jurisprudence. § 284. a. Neither (when the condition of slavery had thus changed its legal character in the place of domicil) could the t ' Ante, p. 159. ' Anie, low of (October) 1705, e. 23. Very probably tho remork of the Attorney- generol, in Smith v. Brown ond Cooper, {ante, p. 183,) which was of Easter term, 1 706, had reference to this law ; nnd, possibly, the distinction which Lord Stowell, in 2 llagg. Ad. R. p. 1 14, proposed to recognize in such international cases between domestic sloves and jietd slaves, may have been suggested by a perusal of this statute. " Ante, law of Va. 1657-8, v. 40; Md. 1715, c. 15, Chinn v Respass, 1 Monroe's R. 26, 20. ' 2 llildr. 419. "The harsh slave laws in force in the more southern colonies were unknown, however, in New England. Staves were regarded [1750] as possess ing the sumo legal riglitj os apprentices, nnd masters, for abuse of their outhority, wore liable to indictment." Seo also Winchendon v. Hatfield, 4 Mass, R. 127, ante, tho note after Laws of Mass. in ch. vl. Reeves' Doinostio Roliitions, 840, so far as his description of slavery iu Connecticut may relate to tho colonial era. 360 ALTERATION OF JUS GENTIUM. right of the master, in respect to such slave, be thereafter main tained in other jurisdictions of the empire as a right resting on the coramon law of England, having, as to such master, per sonal extent throughout the empire. ' b. Nor could the master's right be thereafter recognized under the law of transit, as property.' § 285. And further, admitting the legal character of slavery to have remained unchanged in the place of domicil, and that there had been a tirae, during the planting of the colonies, when the slave condition of negroes and Indians domiciled in some one colony should properly have received international recog nition in every other part of the empire, as being the effect of universal jurisprudence — the law of nations — yet this law is, in its nature, always liable to change.' It may have changed during the colonial period, in respect to the slavery of Africans and Indians, as it had before changed in respect to the personal condition of persons of other races. ^ If then it were true as matter of historical fact that this law or jurisprudence, gathered from the laws and customs of those nations whose juridical action is the source of that law, had so changed, no tribunal of any one nation, nor of any several jurisdiction of the British em pire, would thereafter have had the same judicial reason for supposing the slave-condition of an alien person of one of those races, entering into its jurisdiction, to be recognized by the su preme civil power, whose will it should apply as law ; the reason, namely, that It was to be considered the result of a law having universal recognition, and which presumptively constituted a portion of the municipal (national) law of the forum. § 286. The question whether any rule or doctrine of the law of nations, universal jurisprudence, has, during any period of time, continued unaltered, is a question of fact.* The doctrines ¦ Ante, §§ 243, 244. ' Ante, § 272. • Ante, § 39. ' Ante, §§ 162, 168, 167. » In attributing any legal rule to the universol jurisprudence, tho jus gentium of any particular period, it will be perceived that no change of that low con be simulta neous among those notions which are tho sources of that law. The tribunal of any ALTERATION OF JUS GENTIUM. 361 of that law, at any particular time, are judicially known from the juridical action of all civilized nations ; distinguishing such principles as are received in all foreign jurisdictions, or allowed to have personal extent without reference to territorial limits. And though certain legal effects (rights and obliga tions) should be found to exist under the juridical action of many or all civUized nations, yet, if under that action they are commonly limited to specific localities, they are not attributable to universal jurisprudence' Though slavery may, by some European powers, have been maintained in their American pos sessions, yet, if its incidental rights and obligations were disal lowed by them in Europe, it was then judicially known as a result of a local law, jus proprium, only, and no longer ascribed to the jus gentium, universal jurisprudence. Now, leaving out of view, for the present, the juridical action of the British empire or of any several political part of it, the authorities already cited in the last chapter may alone prove that the latv of nations, in respect to slavery, had changed during the colonial period ; that change being shown by the judicial attribution, in European states, of personal liberty to Moors, negroes, and Indians, without regard to their legal condition in a foreign domicil ; even, in some instances, where that domicil was a colony under the same political dominion as the forum of jurisdiction. § 287. Therefore, even if the authorities referred to did not, as precedents of customary private international law,' establish a rule judicially applicable in like cases by the tribunals of the several jurisdictions of the British empire, yet, in determining one state, when seeking the doctrine of tho law of nations, the exposition of universal jurisprudence, must look to the additive verdict of many national authorities In their municipal (internal) ond internationol low, expressed by leglslotion or judicial decision. And though, comparing century with century, it may be unhesitatingly declared that tho doctrine of that law has changed on some particular point, yet it may be impos sible to indicate tho exact time nt which thot change should have been first recognized. This act of discriminntion is in Its nature autonomic on the port of the tribunal. There can be little doubt thot thero was once o period when to kill or sell one's children was a paternal power or right recognized among oil nations, (Comp. Bynk- ershoek's Essay on this right under the Roman law.) Abraham, proposing to slny his eon, obeyed a command higher than human lows; hut it is not unlikoly that his power to do so was admitted by tho jurisprudence of those omong whom he lived. ' Ante, §§ •J9-102. ' Ante, § 258. 362 ALTERATION OF JUS GENTIUM. the international recognition of slavery, they were evidence of what was or was not judicially receivable as an effect of uni versal jurisprudence. So that, supposing slavery to have re mained the same chattel condition in the colonies, under their local laws, it could no longer be said to be a constitution of the law of nations, in the sense of a legal effect known by its actual prevalence among all nations or all enlightened nations. Tho condition of a negro who had been a slave in the place of his domicil could not then bo judicially supported in any foram of jurisdiction upon this ground, after this change in universal ju risprudence had actually taken place. § 288. a. Contemporaneously with the occurrence of this change in the law of nations, the master's right of ownership ceased to be supported by the common law of England, embrac ing the law of nations, and having as to him a personal extent throughout the empire.' b. The same change would in like manner, whenever it oc curred, have limited the effect of the international rule of transit as a protection of the right of masters in slaves whom they should, though for a temporary purpose, bring with them witliin the limits of any part of the empire wherein slavery was not allowed by the internal law." § 289. In a jurisdiction wherein negro slavery had been intro duced under the old law of nations and wherein it has continued to have essentially the same chattel characteristics, there, tho condition might have, or in the jurisprudence of that state it might have the same legal character as before, and be still recognized to be one of those effects of law which are received as deductions from a priori principles and taken to accord with natural reason, whether the right and obligation in which such effect consists are . ascribed to temporary or to domicUed subjects. And as between two jurisdictions, in each of which slavery retained its essentially chattel character, it may bo that, as to them, or in the judicial apprehension of their several courts, it should still be ascribed to universal jurisprudence though it should have been abandoned •^n<«, §§244, 245. < Ante, % 212. REFERENCE TO INTENTION OF TIIE STATE. 363 and forbidden by all other nations. In such jurisdictions the tribunals of either should have recognized the slave condition of an African introduced from the other, or from elsewhere, in the same manner as they recognized the local slavery. There would be, as between any two such jurisdictions, no conflict of laws and no question of the comity of nations. § 290. But further — the judicial allowance of certain legal effects as created by a rule of universal jurisprudence is based upon the assumption that universal jurisprudence — the histori cal law of nations — Is an exposition of natural reason adopted by the sovereign source of law in the forum.' Yet it is at the same time fully understood that tlie state, or the possessor of sovereign political power, is, in its estimate of the requirements of natural reason, entirely independent of the juridical action of similar states or persons. And it is always the duty of the tribunal rather to look for a part of the national common law as being the state's conception of a universal jurisprudence, than to re ceive it as gathered from the laws of foreign states.' The con juncture is barely supposable that, at some given point of time, there should not bo any domiciled inhabitants sustaining a certain relation attributable to the law of nations as then judi cially cognizable : or, in other words, that a received principle of the laiv of nations should not be actually operative in the internal law. The fact that, at a certain time, there were no slaves among the domiciled inhabitants, might be accidental. Slaves might never have been imported ; or all slaves may have been exported, or have been manumitted by their owners, or have decbased. It might even be that slavery had, as the con dition of a domiciled inhabitant, been declared unlawful or been prohibited. And yet it might be that the laiu of nations sus taining slavery should still be judicially received as part of the municipal (national) law, to maintain the slavery of persons whether coming from other jurisdictions, to reside, or being transitory subjects.' But if any effect attributable to a rule of the law of nations ' Ante, § 94. 'Ante, § 173. 'Ante, % 96. 364 COMMON LAW CRITERION. has been repudiated in tho internal law of the forum as contrary to natural reason, the whole basis for the judicial recognition of that rule in the private international law of the forum would be destroyed. And this would be the case whether the rejection of such effect, on this ground, had been made in a legislative or a judicial exposition of positive law. § 291. The EngUsh cases cited in the fourth chapter show that at a period shortly before the war of revolution no domiciled inhabitant ofthe British islands could bo held therein as a slave or in any condition of involuntary servitude not based upon local customary and feudal law. It appears too that a sirailar ju dicial declaration of law had been made in Massachusetts about the same period. This juridical action would then, in these ju risdictions, have prevented any subsequent judicial recognition of the slavery of an alien on the ground of its being supported in the private international law of the forum by the histoiical law of nations ; even if that law, as learned from the action of for eign states, had remained unchanged. § 292. StUl, so long as the law of nations, or universal juris- pradence, remained the same in judicial recognition, and had not been repudiated in the common law of Eigland, the right of the owner, being a British subject, in a negro chattel slave, would still have continued in any one jurisdiction of the Empire, even although in that jurisdiction slavery had been repudiated in the local or interned law, (t. e. the law applying to domiciled persons,) as contrary to natural reason, in the manner supposed in the last section. Thus in Massachusetts, at the time spoken of, it might have been supported by the " common law of Eng land ;" thus having a g-iiast-International operation, although the private international law of Massachusetts (being part of that law which rested for its authority exclusively on the juridi cal power qf that colony) should not have sustained it. But since the operation of the laio of nations, in this in stance, depended altogether upon its being contemporaneously received in the common law of England, there was a point of time, towards the close of the colonial period, when slavery could not have been supported in other parts of tho empire on thia SLAVERY, WHEN NOT RECOGNIZED. 365 ground ; not oven if tho juridical action of other nations had not modified the old law of slavery once attributed to universal jurisprudence. § 293. It appears then, that — Ist. If the status of the alien in the place of his domicil was not that chattel condition, which had been the only condition of bondage recognized by universal jurisprudence — the law of na tions : — Or, 2d. If this law, as known in the juridical action of civilized states, had changed : — Or, 3d. If, as may have been the case in the British islands and Massachusetts, slavery was disallowed in the internal law as contrary to natural reason ; — the involuntary servitude of negroes introduced from other jurisdictions of the empire or from abroad could not have been judicially recognized under the rule of private international law whose operation has herein been considered — the rule which requires the judicial recognition of rights and duties derived from a rule having the character of universal jurisprudence. In no one of these three cases could the slavery of the alien be consid ered a condition presumptively recognized by the supreme povvcr of the forum as accordant with natural reason, or the result of a law having universal extent and received into the municipal (national) law {i. e. both the internal and the international pri vate law) of the forum. ' 4th. And when, on the contingency of one or more of these cases, the rights and obligations incident to the relation of mas ter and slave should have ceased to be internationally cogniza ble under an application of this rule ; or, certainly, whenever, in England, those rights and obligations were not maintainable under this rule ; the right of the owner would cease to be cog nizable as a common law right, supported by the law of national extent. 5th. Nor, on the same contingency, would those rights and obligations be any longer maintainable by the international rule of transit.' '^»!4nte, §§286, 289. 368 QUESTION IN MASSACHUSETTS. (to say nothing of other customary law) the question arising on such claim may be examined for the colony of Massachusetts and the British islands. § 299. It has been observed already in this chapter, that, in some of the colonies, negroes and Indians, though held in a con dition which, for want of a more accurate term, may be called absolute slavery, may still, at least if converted or baptized, have been regarded as legal persons and not chattels. From the phraseology of legislative acts in the New England colonies, which had something of the nature of bills of rights, and from the judicial application of customary law therein, so far as it can be known, it may be inferred that, in those colonies, the posses sion of legal personality was ascribed to law in the secondary sense — a condition of things — and was held to belong to all na tural persons as an incident of humanity. Though, while heathen negroes continued to be introduced from abroad as chattels by the law of nations, the attribution of personality was universal only in respect to nominally Christian persons. The same may be taken to have been the law of the British islands shortly be fore the date of Somerset's case, even If it is admitted that ne groes nominally Christian could there have been lawfully retained in involuntary servitude at that time. ' On the principle herein assumed to be applicable, this attri bution of legal personality in these jurisdictions, supposing it to have been thus made universal, should have limited that recog nition, by comity, of the condition, under the law of their domicil, of negroes entering from other countries or parts of the empire ; if in such domicU it had been chattel slavery. § 300. It has been shown that in one important respect slavery had changed its character in every colony before the Eevolution. That is to say — the slavery of negroes, at least of those born on the soil and nominally Christian, lost its founda tion in universal jurisprudence — the law of nations — and became an effect of local law— jus proprium." But it is at tho same time true that the condition of slavery, as characterized by cer- '^n. Squiers, 2 Bibb, (Ky.,) 834; Seton v. Hanham, R. M. Choriton's Geo. 11., 374, where the meaning of the word State in Art. IV., seo. 1, wos oonsidorod. 28 434 STATE AND CITIZEN, DEFINED. Constitution. And there is much that has the authority of juridical practice, if not of judicial opinion, to show that the term State has not, in the various instances in which it is used in the Constitution, been always taken in this restricted sense, while, at the same time, it would be difficult to show any rea- SQu (other than views of poUtical expediency remaining unex pressed in the breast of the expounders) why the term should have been interpreted with more latitude in one instance than in others. Since the meaning of the term a State, in those clauses which more directly affect personal condition, will require considera tion in a later portion of thjs treatise, the further examination of the question will not be pursued here ; except in observiag, that it will hereinafter be urged that the interpretation of the term may depend upon the proper construction of the clauses or provisions in which it occurs.' And that, under the construc tion of this provision, there is much reason for maintaining, (as has, in fact, by juridical practice, been maintained in reference to other clauses wherein the term occurs,) that the word State should not here be restricted to the organized " several States" alone, but that it should be taken to include those geographical jurisdictions, in and for which, under the government of Con gress, is severally exercised that portion of the powers of sov ereignty which in and for a "several State"' are exercised by the people of the State or by the State Government.' § 371. With regard to the term citizen, in this part of the Constitution, it has been held in the recent case of Dred Scott V. Sandford, (December, 1856,) 19 Howard, pp. 403, 427, that the question, " Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by ' It being supposed thot construction and interpretation are each employed, of necessity, wherever the meaning of any written instrument is to he nscertained. The explanation of the distinction in the use of these terms must likewise be reserved for another place. ' Compare ante, § 348. And see post, g 397. LIMITATION OF THB TERM CITIZEN. 435 that instrument to the citizen, one of which rights is the privUege of suing in a court of the United States in the cases specified in the Constitution ?" must be answered in the nega tive. In other words, assuming that there are no persons of African or Ethiopian race or descent, now domiciled in the United States, except such as derive their descent, in whole or in part, from African negroes imported as slaves, it has been held in the above-named case, that the distinction of race, which has been set forth in some of the former chapters, is to be considered in determining the meaning of the term citizen in this clause of the Constitution ; and that, affirmatively, only whites, or persons of Caucasian race, can be such citizens ; or, negatively, that no person of African or Ethiopian race can be such a citizen. § 372. It will not be attempted here to examine the cor rectness of the proposition above stated : partly for a reason similar to that above given for deferring inquiry into the mean ing of the term State, viz. ; that the meaning of the word citizen must hereafter be considered in the exposition of rights and obligations of persons arising out of other clauses in the Consti tution, more directly affecting personal condition, in which also the term is found. It may, however, be observed in reference to the above named decision that the Court, or the several Justices sustain ing that answer to the question propounded by Chief Justice Taney in the Opinion of the Court, seem to have assumed, as preliminary to their inquiry, that in this clause the term citizen is used in one of its meanings, (a sense which is not its only one in vernacular use,) that is, in the sense of a person enjoying a certain condition or status, manifested in the exercise of certain civU and poUtical privUeges or immunities. ' Now, as has been herein above suggested in reference to the term State, it is here supposed in reference to the term citizen, that the interpretation of the term may depend upon the con- ' See Opinion ofthe Court, pp. 403-425; Mr. Justice Daniel's Opmion, pp. 475- 482, particularly p. 481, where the applicabiUty of the other meaning of the term is noticed as hoving been urged, but at the same time it is summarUy discarded. 436 LIMITATION OF CITIZEN. struction of the clause or provision in which it occurs, and that it is not necessarily concluded that the word has the same sig nification in every connection in which it has been employed in the Constitution ; that, here the question is not so much one of a right or privilege in certain legal persons, to sue and be sued in certain courts, as it is a question of public municipal law, of the distribution of jurisdiction or juridical power ; that this clause must be construed with reference to the international relation of the States or the several jurisdictions (severaUy un der that sovereignty which is said to be " reserved " to the States) into which the entire dominion known as the United States of North America is divided, and with reference to the appUcation of a law having authority as national-municipal law, but operating as international private law, (g'«ast-international law ;)' that the object of the provision (by construction) being to give jurisdiction for the application of that law, persons are here called citizens in reference to that element in the defini tion^ of citizen which ordinarily determines questions of personal jurisdiction in the application of international private law, and that this element has no reference to the civil or political Ub erty, (privileges and immunities of legal persons,) but simply to their quality of being legal persons, domiciled in this or that forum of jurisdiction.' The Opinion of the Court does not go to the extent of say ing, that no person of African race, descended from persons who had been introduced into the country as slaves, could be a citi zen in this sense. Though there are passages in that Opinion and in tho.se of, some of the associate Justices which may appear to lead to that among other unexpressed deductions. In Mr. Justice McLean's brief examination of this part of ' As wUl be further explained in the next ohopter. ' Mr. Justice Curtis, in maintaining views of the personal extent of the term dif ferent from that contained iu the Opinion of the Court, seems likewise to hove os sumed thot the word citizen refers to a condition of civil and 'political privilege, and that it must be supposed to hove the sumo meaning wherever used iu the Constitution. Whatever may hove been the intention, tho reasoning in the Opinion of the Court and in those of the tlustices who most fully considered this question, seems to have more direct bearing on the use of the word in tho Fourth Article of the Constitution. It wUl therefore be more particularly noted herein, when considering the effect of the provisions in that Article npon conditions of freedom and its opposites. JUDICIAL FUNCTION OF THE STATES. 437 the case, his conclusion on this point seems to be expressed in the following, on p. 531 of the Eeport : — " It has never been held necessary, to constitute a citizen within the act that he should have the qualifications of an elector. Females and mi nors may sue in the Federal Courts, and so may any individual who has a permanent domicil In the State under whose laws his rights are protected, and to which he owes allegiance. Beine born under our Constitution and laws, no naturalization is re quired, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term citizen is "a freeman." Being a freeman and having his domicil in a State different from that of the defendant, he is a citizen within the act of Congress, and the courts of the Union are open to him.'" § 373. The extent of the judicial power of the national Gov ernment is thus to be ascertained from the Constitution of the United States. . That of the judicial power in each of the States is determined not only by its own several Constitution but by the Constitution of the United States, which, in defin ing the powers of such several State, may be said to limit the State Goveinments in each function : restraining their power over the relations of private persons, not only by its express prohibitions, but also by its requisition or guarantee of a repub lican Government. The extent of this guarantee can only be determined by general principles of public law ; which, how ever, from the historical character of public law in every coun try, can, in this, be determined only from the history of juris prudence in the British empire and in the United States. ' According to a newspaper report, copied from the Chicago Press of July 15, 1867, in a suit in the U. S. Circuit Court, by a colored man of IlUnois against a citi zen of Wisconsin, tho defendant pleaded to tlie jurisdiction of the Court and averred that tho plaintiff wos o person of color, to wit, a negro ; but tho demurrer was sustained by Judge McLean, saying, " The Constitution and the act of Congress of 1789 give jurisdiction to the federal courts between citizens of different States. In tho sen,?e used, the term citizen may well be held to mean free man who has a permanent domi cil in o State, being subject to its laAvs in acquiring ond holding property, in the pay ment of toxcs ond in the distribution of his estate among his creditors or to his heirs ot his decease. Shell a man is o citizen, so ns to enolile him to sue, ns I think, in the federal courts. The objection has never been made, so far as I know or believe, to his right to sue in this court, that he is not entitled to vote." CHAPTEE XIII CONDITIONS OF FREEDOM AND BONDAGE CONSIDERED WITH REF ERENCE TO THE PUBLIC LAW OP THE UNITED STATES. — THE SUBJECT CONTINUED. — OF THE DISTRIBUTION OR CLASSIFICA TION OF PRIVATE LAW, AFFECTING THOSE CONDITIONS, WHICH MAY BE MADE UNDER A REFERENCE TO PUBLIC LAW. § 374. It is farther necessary, in considering the connection of freedom and its opposites with the public law of the Union, according to the distinction in that respect which was made in the last preceding chapter,' to ascertain the extent or juris diction of all civU or political powers within the dominion of the United States. The extent or jurisdiction of sovereign or po litical power, or, more proj)erly speaking, of the law proceeding from that power, is either territorial (over certain territory and persons and things therein) or personal, (over persons individu ally, without regard to the territory in which they may be found.) § 375. The jurisdiction of the powers of the national Gov ernment is various ; being either, for certain purposes, over all the territorial (geographical) dominion of the United States, whether States or Territories, and over all persons within that dominion, whether also subject to a State dominion, or to the powers held by a State, or not ; or, for the same purposes and others, the nature of each of which will be hereinafter considered, over the Territories, the District of Columbia, lands which,though belonging to the United States, are not included geographically ' Ante, § 369. NATIONAL AND LOCAL JURISDICTION. 439 within the limits of a State dominion, or, being within one, are excepted from its jurisdiction, and over all persons and things therein exclusively. Congress has certain powers of legislation, some granted for certain purposes in absolute terms, as specific grants of power, and without mention of limits, which legisla tion has a national extent or jurisdiction without distinction of persons or places ; and some granted for certain districts only, having only a local jurisdiction. The judgment of the national judiciary is entitled to recognition and is to be enforced wher ever the laws which it asserts have territorial or personal juris diction. The executive power has equal recognition, because its action accompanies the jurisdiction of the laws, the execution of which is intrusted to it. § 376. The limits of the several States within which, under the Constitution, they or the people of each are to possess their separate share of sovereign powers, have been determined as to some by the recognition of their ancient colonial bounda ries, and by agreements with the other States, or with the United States or the national Government ; and as to others by the legislation of Congress in their creation under the Consti tution.' The territory not known under the geographical di vision of the several States (not being occupied by a people known separately in the public law of the country as possessing that separate share of sovereign powers which, by that law, is cognizable only in the people of a State of the United States as a definite political person) must necessarily be under the exclusive sovereignty of the United States, or the united people of all the States, in their integral and national possession of sovereign power. For the several States, which before possessed lands lying beyond their present State limits, have conveyed those lands with their right of dominion or jurisdiction to the United States, and under the Constitution of the United States a single State can not perform those acts of national sovereignty by which territory may be acquired under international law. The nature of that ' Art IV. sect. 3. " New States may bo admitted by tho Congress into this Union ; but no new Stato shall be formed or erected within tho jurisdiction of any other State, nor ony Stato be formed by the junction of two or more States, or ports of States, with out the consent ofthe legislatures ofthe Stotes concerned, as wcU as ofthe Congress." 440 NATIONAL MUNICIPAL LAW. power which may be exercised over this territory by the United States, through their constituted instruments, must bo deter mined by the natural or necessary law of nations,' as applied in public law to the a ction or mode of existence of sovereign states ; or, by the reception, interpretation, or application of that law by the United States or by the national Government as their instrument ; the latter being controlled in that respect by the Constitution, as the only legislative exposition of the mode in which any of the sovereign powers of the United States (i. e., of the people of the United States) are to be exercised.' § 377. From the existence of this division of sovereign na tional powers to create law between the Government of the United States and the several States, which has been set forth in the last preceding chapter, and from the difference in the territorial jurisdiction of the laws thus originating, which has been above considered, a distinction may be made in the mu nicipal laws of the United States, as being either national or local. The national municipal latv of the United States thus dis tinguished is that which originates in the national sovereignty of the United States, (people of the United States,) and which has national extent and jurisdiction over all persons and things within the domain of the United States, whether States, or ter ritory not organized under a State sovereignty. ' Ante,^ 49. ' The doctrine of the Supr. Court, in Dred Scott's case, 19 How. pp. 447, 449, 451, Opinion of Court, and cop. 3, is that whether the power of Congress, or of the notional Government, over the Territories is derived from the " territory-or-other-property" clause, (Art. IV, sec. 3,) or is o ueoessury result of tho existence of that Govornment and of its relation to the States and the people of the U. S. — Congress or that Govern ment is not sovereign in a Territory as the people of a State are sovereign « itliin the Umits of that State, but that it is, like a State Government, restricted by the low from which it derives its existence, and that there ore douses in the Const, of the U. S., which, in and for territory, have nu effect similar to that of o Bill of Rights in o Stoto Constitution. Mr. Benton, in his Examination of this case, holds that the Constitution of the U. S. does not have any such effect as private law In the Territories ; that no rights cf private persons " can be exercised under it without an act of Congress." See his introductory note. The general dootriiio ofthe Court may bo odmltted, and then the question is, whetlier tho right of a master in respect to a slovo (domiciled, before, in o slave- hold ing State) is o right protected by tho Constitution, thus oporoting us o Bill of Rights ond as private low. This is o distinct question, and on this Mr. Benton's Exomlnotion has but little bearing. His whole orgument being that Congress has absolute unre stricted power in the Territories. LOCAL MUNICIPAL LAW. 441 The local municipal laws of the United States are those which originate in the separate sovereign power held by the people of each State, or in the powers of Congress, for local pur poses, within certain limited territory ; either of which last has only local or limited extent and jurisdiction within the limits either of such States or of such territory. § 378. Although this distinction in fhe municipal law is founded upon an anterior possession of sovereign powers proved or evidenced by the Constitution,' yet, since the Constitution is also itself a legislative act, and has universal prevalence and recognition in the States and in the territory belonging to the United States, as the supreme rule of positive law in public and private relations, so far as it can be applied to those relations, it must form a part of one of these divisions of municipal law ; that is, the national municipal law. § 379. Since the legislative or juridical exercise of sovereign power can have no independent force or authority beyond the territorial Umits of the state or political body holding that power,' the local laws of the several States cannot have any in dependent extension or authority in the territory of another Slate of the Union, or in any local jurisdiction of the Govern ment of the United States, nor can the local laws of districts, under the several jurisdiction of the Government of the United States, have any such independent extension and authority in the territory of any State of the Union, or of any other several jurisdiction under that Government. § 380. Though all positive law must be considered as oper ative within certain geographical limits, because always deriving its authority and coercive power from some organized political personality confined to certain limits by the natural or neces sary law of nations, yet persons are always the objects of that law, and the relations of persons to each other and to things are Its effects.' Laws may not only be distinguished from other laws as operating within various jurisdictions, but also as having different persons 'for their object, and may be distinguished ac- ' Ante, § 831. ' Ante, § 03. ' Ante, § 21. 442 PLACE OF INTERNATIONAL LAW. cording to the differences which they create between the persons upon whom they operate, as well as by their territorial juris dictions ; that is, they may be considered in respect to their personal jurisdiction or as personal laws.' This distinction may also be made in the municipal law of the United States. The laws created by the exercise of any sovereign national powers, held by any s^ate or political body to have effect within certain territorial limits, may, or rather must, operate differently upon different persons within that territorial jurisdiction. The la^s, proceeding from these sovereign powers, themselves deter mine, to a certain degree, their own different effect upon different persons. But there are certain general principles connected with the nature of sovereign power, or the conditions under which it is held by states and nations, which, in every jurisdic tion, indicate a difference in the appUcation of local laws to per sons within that jurisdiction.' § 381. It was shown in the first chapter, that from the existence of separate possessors of sovereign legislative power, as public bodies or polities, having different territorial jurisdic tion, and from the necessary conditions of human society and intercourse, they may, as separate polities, sustain relations towards each other iu the exercise of that power. And from this necessity, incident to their existence, and from the fact that there may be some relations of persons to other persons, and some rights of action arising out of them, which cannot, under all circumstances, be maintained, as legal rights, by the distinct authority of any single possessor of that sovereign power, those maxims, or rules of action originate, which are called " inter national law." ^ It is a circumstance incident to the nature of sovereign na tional power, and its distribution between various possessors, having, according to tho mode of their existence, jurisdiction within certain territorial limits, that persons within that juris diction, or within those limits, may be distinguished as either native or alien subjects. The recognition of persons as aliens is '..4n(6, §§26, 27. ' Ante, % 53. • ^n(e, § 10. PLACE OF INTERNATIONAL LAW. 443 the recognition, by the sovereign source of municipal law in that jurisdiction, of an international relation. The law which affects the condition of the alien is the international law and the muni cipal (national) law taken together ; because the recognition of a person as alien, and the discrimination of that municipal (national) law which shall be allowed to determine his relations and rights, (either that of his domicil or that of the jurisdiction in which he is an alien,) is itself international law ; or, what is to say the same thing in different words, that discrimination is judicially made, in the jurisdictions who,pe tribunals have per sonal control over the alien, according to principles which, from their application, are caUed a law between nations, or inter national law ; though they rest, for their legal authority and coer cive force within any jurisdiction, on the sovereign power which is therein the source of municipal (internal) law. ' § 382. This international relation between the possessors of sovereign national power and this recognition of persons in an international relation, may exist in reference to any one or more of the modes in which that power can be exercised. It may, therefore, exist between political bodies which, according to the conditions of their existence, can exercise sovereign national power in some of its forms only. Or, which is to state the same idea in different words, the sum of sovereign national power held by any one nation may be considered as consisting of various powers, all, or some only, of which may be exercised by any specified poUtical bodies or persons ; and this inter national relation may exist between any such poUtical bodies and any other such, in reference to the exercise of the powers so held by them ; provided the powers, so held, are held and ex ercised, as sovereign, or independently of all exterior authority. § 383. It being a basal principle of the pubhc municipal law of the United States, which is proved by the written Con stitution, as the evidence of a pre-existing fact, that the sum of sovereign national power is divided between the national Govern ment and the several States, and that the powers held by the ' Ante, §§ 63, 64. 444 NATIVES AND ALIENS. several States are sovereign in their nature and mode of exer-: cise, by each within its own jurisdiction, they are to be consid- ereti as sovereign and independent nationalities having full right to establish laws for their own domain by the exercise of those powers.' § 384. This division and distribution of sovereign power in the United States and the distinction of municipal laws having a variety of territorial jurisdiction, necessitates a distinction of persons as native or alien subjects of these various jurisdictions. The native inhabitant of any one of the States is also, of necessity, subject to the national powers vested in the Govern ment ofthe United States. But.though, in this sense, a native of the United States and subject as such to the authority of the national Government, he would, in every other State, be stiU an alien in respect to the powers exclusively vested in such other State and the local law proceeding from those powers. Also, since the national authority, vested in the Govern ment of the United States, extends everywhere throughout the dominicin ofthe States, he who by birth is an alien, to that na tional jurisdiction, would be also such in regard to any State in the Union, ' Buckner v. Finley, 2 Peters, 590. " For all national purposes embroced by the federol Constitution, the States, ond the citizens t'nereof aro one, united under the same sovereign outhority, ond governed by the some laws. In other respects the States are necessarily foreign to and independent of each other. Their constitutions ond forms of government being, though republican, altogether different, as are their laws and institutions." See olso, Warder v. Arrel, 2 Wash. 298, (Court of Appeals of Vir ginia,) Washington, J., in Lonsdale v. Brown, 4 Wash. C. C. p. 154, after speaking of the political nature of the union between England and Scotland says, " How different is the union of these States. They ore, in their separate political capacities, sovereign and independent of each other, except so for as they have united for their common defence, ond for national purposes. They have each a Constitution and form of gov ernment, with all the attributes of sovereignty. As to matters of national concern, they form one government, are subject to tho same lows, ond moy he emphoticoUy denominated one people. In all other respects, they ore os distinct os different forms of government ond different lows con render them. It is true that the citizens of each Stote ore entitled to all the privileges and immunities of citizens in every other State ; that the sovereignty of the States, in relation to fugitives from justice and from ser vice, is limited ; and that each State is bound to give full faith and credit to tho public acts, records, and judicial proceedings of tho sister States. But these privileges and disabilities ore mere creatures of the Constitution, ond it is quite fair to orgue, that the framers of that instrument deemed it necessary to secure them by express provisions." Descriptions like the above will hove a variety of significance, according to the political theories of the reader and the speaker. AN INTERNATIONAL RELATION. 445 Under the municipal (national) law of the United States, there may therefore be aliens to the whole Union, who, in the view of designating them by brief terms of description, may be termed /oreig'Ji aliens, and aliens to a State only, who may be termed domestic aliens — a distinction similar to that existing during the colonial period between aliens to the empire and aliens to a colony ;' and the several States of the Union may sustain, as distinct polities, an international relation to each other, and to other possessors of supreme national power ; and the maxims, or rules of action constituting international law, are apphcable to the exercise of the sovereign powers held by them. § 385. The maxims of international law, public and private, applied to the relations of the several States toward each other, constitute, therefore, a part of the national municipal law of the United States. The propriety of considering any law as being international, and at the same time a part of the national mu nicipal law, (law limited to the territorial extent of the United States,) arising from the fact, that the several States do possess independent and sovereign powers, and that the possession or distribution of those powers, is determined by the Constitution ; which is itself national municipal law. § 386. From the nature of the political bodies or persons upon which it operates, international law is law only in an im perfect sense, for such bodies or persons ; and, in its effect upon the rights and relations of private persons, that is, when it be comes private international law, it has the force and authority of law in the strict sense only by being enforced by the source of that municipal (internal) law, whose apphcation to persons it is said to limit.' In a stateor nation wherein the sum of national state power, or the entire sovereignty, is concentrated in one political unity, and in which, of course, all municipal law proceeds from one and the same source, the modification of every part of that law in reference to aUens, (which modification is the private inter- ' Ante, § 231. ' Ante, §§ 11, 12, 69. 446 ALIENS DISCRIMINATED. national law as received within that jurisdiction,) ' depends upon one and the same possessor of sovereign power. If within a single state or nationaUty the sum of sovereign powers can be divided between different depositories, each of which is a source of municipal law, the question would arise, — by whom is the modification of those laws in respect to aliens, to be made ? — or, — from whom does the international law, which regulates the application of those laws to aliens, proceed ? Within the limits of any one of the United States, all persons are subject to a sovereignty divided between the national Government and the State ; and each is a source of municipal law for that jurisdic tion. The powers held by each of these being sovereign, the laws proceeding from each affect, according to their purpose, aU persons found within their assigned territorial dominion ; and the appUcation of each of those divisions of municipal law to the rights and relations of aliens would be fixed, for each, by its own sovereign source. Or — to express the same somewhat differently, — the international rules modifying the application of either of these divisions of municipal law to the relations and rights of aliens, would be those allowed by the originating source of that division of municipal law. Those rights and obligations of persons which were under the control of one of those sources of law, in the case of native-born subjects, would, as rights and obligations of an alien subject, be determined by the same power, that is, the same source of law, § 387. But it is only foreign aUens, who, within any State of the Union, are aliens at the same time towards the jurisdic tion and forum of each of these divisions of municipal law and their respective sources. Domestic aliens are such as are always at the same time native or domiciled subjects of the national law. In the case of the first, that is, the foreign alien, the application of both parts of the municipal law, the national and the local, is to be considered : in the case of the second, that is, the domestic alien, only the application of one of those divi sions — the local. This modification of the municipal laws of ' Ante, p. 65. INTERNATIOlfAL RELATIONS. 447 the United States — in their application to aliens of either class — constitutes tho private international law prevaillno- in and for the United States ; being still law only in an imperfect sense, when distinguished, in respect to its authority, from the municipal law which it modifies; since the so-called interna tional law, in applying or restricting the municipal or local laws of any jurisdiction, still derives its legal force from the source of the local law. ' § 388. But although that apphcation or restriction depends, for its ultimate authority, upon the source of the municipal law, it may also be made judicially by rules derived, as a law of natural reason, from the general practice of nations, or from the writings of jurists who have analyzed that practice and shown the mode of its application in supposed or actual cases ; and as such may be distinguished, in any particular state, from the municipal law, in its origin and juridical basis, as weU as in its operation upon a particular class of relations.' It is, however, important here to recur to a distinction in' the nature and authority of those rules of action, which together may be caUed private international law. All law applying to private relations and personal condition is in a great degree public as well as private law.' Of this international law, thus applied to private relations, a portion is preeminently pubUc, in being connected with the very nature and mode of existence of all sovereign states, or of all possessors of sovereign power, as has been shown in the first chapter, where this portion has been described under the nature of " natural or necessary law of nations."* Since, therefore, the several States and the Government of the United States are the possessors of sovereign powers within their determined geographical limits, this portion of interna tional law enters of necessity into the political Constitution of the United States, and forms a part of the national municipal law, and is constantly operative. These principles or maxims, whether apphed as municipal ' Ante, §§ 68, 69, 74, 75. ' Ante, 8 76. 'Ante, § 25. ' Ante, fe 49. 448 INTERNATIONAL LAWS OF THE STATES. or as international law, are necessarUy the same, or have the same legal force within the jurisdiction of every possessor of sovereign power. But the actual application or modification of the municipal laws of any one jurisdiction, when applied to the relations of aliens, is itself private international law, (from the character of the persons to whom it applies, which character is fixed by the maxims last above spoken of,) in the jurisdiction in which it takes place. And since that application or modifi cation depends, within any independent jurisdiction, upon the wUl of the sovereign source of the municipal law for that juris diction, and may be different in jurisdictions under separate sovereigns, therefore this portion of international law may be said to vary under different sources of municipal law. And, in being identified in authority with the municipal law, it may truly be considered as a papt of that law ; though it arises from the fact that there are separate possessors of sovereign power existing under necessary conditions, and that there are actions 'and relations of persons which cannot continuously exist under the exclusive control of any one possessor of that power, and which therefore have an international character.' Now since the several States have separate jurisdictions or domain, in which they have sovereign powers to determine the relations of private persons therein, they may have a different practice in the application of their municipal laws to aliens. Or, it may be said, their municipal laws may differ in their recognition of the relations of aliens derived from other laws. Hence a por tion of the private international law may not only be different in the different States, but must be classed with local and not with national law. § 389. The Constitution of the United States, in being the supreme public law and the evidence both of the location of sovereign powers and of their extent and limitation in respect to private persons as well as to territory, takes effect on the persons, above described as aliens, by determining the sources (poUtical persons) from whom the private international law, above defined, shall proceed. ' Ante, § 10. INTERNATIONAL LAW OF THE NATION. 449 The Constitution might contain provisions directly establish ing the absolute or the relative rights of aliens of either of the classes before described, i. e., either foreign aliens or domestic aliens, and limiting to that extent the powers of the national Government or those of the several States to affect the legal condition of such persons. Such provisions in their source and origin would be identified with the national municipal law ; though being founded on a recognition of persons as aliens, they might be called a part of the private international law. In whatever degree such provisions might recognize private per sons as foreign citizens or subjects — that is, persons within the dominion of the United States, not only alien to the United States, but sustaining relations to foreign states or nations — they would be nothing more, as a law, (rule of action), for the nation, than the voluntary reception of a rule of international duty by the supreme power of the nation, and alterable at its wUl. ^ So far as such provisions might limit the application of State laws to persons who are aliens, either foreign or domestic, in re spect to State jurisdictions, they would have an international effect or character by distinguishing those persons from native or domiciled subjects of those States. But, being law throughout the United States, independently of the will of the single States, as distinct poUtical communities, the extent or personal jurisdiction of whose laws they would control, they would be law in the strict and proper sense, national ihunicipal law — operating on aU persons within the United States, irrespectively of the wUl of the several sources of local municipal law, and therefore not international law between the States or for the States, in that imperfect sense of the term in which interna tional law prevaUs among independent nationalities.' § 390, Among the necessary incidents of the existence of sovereign nations or states is the fact or axiom, (natural or ne cessary law of nations,) that aliens, under any system of muni cipal law, may acquire within its jurisdiction, the character of ' Ante, §§ 10, 11, 12. 29 450 POWER OVER ALIENS DISTRIBUTED. native born inhabitants, by voluntarily abandoning those rela tions which they held under international law, and, with the consent of the sovereign power legislating within that national jurisdiction, passing under the exclusive control of its municipal (internal) law. , This incident of the extent or operation of municipal (na tional) , law may be considered with reference either to foreign or to domestic aliens. §391. Since within any State of the United States the municipal (internal) law proceeds from two sources, the foreign alien might acquire the relations of a native born citizen under each source of that law, But in that case, the changes of the character of an alien for that of a native inhabitant, in regard to each source of that law, would not necessarily be simulta^ neous or have any necessary connection. There is nothing in the nature of the division of sovereign powers between the sev eral States and the national Government, nor in the fact that the powers held by each must be taken together in order to form the sum of sovereign national power, to prevent the States from granting, each within its own territory, to an alien resi dent any civil (social) or political rights within the scope of the relations determined by their separate share of sovereignty. Nor is there any thing to prevent the Government of the United States from granting, within the several States, to foreign ahens, the civil or poUtical privUeges of. a native of the United States in relations established under the supreme powers held by itself. But, from the sovereign and separate nature of the powers held by each, neither, without special pror visions in the Constitution to that effect, could alter the per sonal relations of aliens towards the powers held by the other ¦ even while having territorial jurisdiction over them, nor give to them, in aU respects, the character of its own native born sub jects ; who, by birth, are equally native to the jurisdiction of a State and to that of the United States. And, regarding liberty as consisting in the possession of rights under some possessor of sovereign power— neither could confer upon such alien liberty in legal relations determined by the powers belonging to the other. LAWS APPLYING TO ALIENS. 451 StiU less could a State, without agreement, give to a foreign alien the rights of a native born inhabitant before the local municipal law proceeding from the separate share of power be longing to another State. § 392. Although, upon his removal into another State of the Union, the relations of the native inhabitant of any one State would remain unchanged, under the national municipal law, he would still, as before said, be an alien in such latter State to the local law. A State might receive such persons — domestic aliens' — into the condition of its natural born subjects. But this would ' depend upon its own wUl and election — its own view of the force of international law, as law in the imperfect sense, — un less the Constitution of the United States should contain pro visions regulating such change of alienage in the case of those persons, and have, in this respect, international or quasi-intei- national effect between the several States, with the authority and extent of national municipal law. ' § 393. When the relations or rights and obligations of aliens to the United States (foreign aliens) are to be determined, as a topic of international law, it is first to be inquired, — whether any and what rights or relations are determined for them by the Constitution, as a law affecting the rights of private persons, or as private law ? Next : What are the relations and rights of persons faUing within the sphere of the national Government, and what relations are subject to the remainder of power vested in the several States ? And lastly : What is the actual application by the State, or by the national Government, on either hand, of its municipal (internal) laws to aliens ; or, in other words, what is its accep tation of the private international law applying to such ahens. § 394. When the relations or rights and obhgations of do mestic aliens are to be determined, it must first be inquired how far they are fixed by that national municipal law which apphes to such persons simply as native or domiciled inhabitants within the jurisdiction of the national power ; so that, whether the person be domiciled or alien in respect to such State, they 452 QUASI-INTERNATIONAL LAW. continue the same in every State ; and whether that national law restrains the personal apiilication to them as aliens of the local laws of the State in which they appear as aliens, i. e., whether it has a quasi-mtemational effect in determining those rights ; the national municipal law being herein regarded both as a territorial and municipal (internal) law, and also as a per sonal and international law. According to what has been before said, this law is to be found in the Constitution operating as private latv, and in the legislation of Congress, under the constitutional grant of power to legislate for the entire domain of the United States. § 395. This, as a law affecting relations of private persons, is always private law. But it may also have, more or less de cidedly, in many respects (in reference to many relations), the marks of public law, law operating on public or poUtical per sons, in controlling or Umiting the action of the local juridical power of the State in reference to such alien persons ; either by acting immediately on those persons, and directly determining their relations to other persons, (in which case it is private law,) or by first acting on the State as a political person, and deter mining its action in reference to such aliens ; in which latter case the national law having international efiect is rather public law causing the States to act on private persons : and the States, in their political capacity, aro then to be regarded as the real subjects of the rule. Whether there can be in the Constitution any law, in the strict and proper sense, having such effect or operation, may well be doubted. But it will be shown that the existence of such a law in certain provisions of the Constitution has in some decisions been assumed, as a ground of a legisla tive power in Congress in reference to those provisions. § 396. If there are relations or rights and obligations of do mestic aliens which are left undetermined by the national mu nicipal law, having this g'Masj'-internatlonal effect, it is then to be inquired — what has been the actual application of the local municipal law of the various States, to such persons, by the States, individually or severally ? Or, — in another form of ex pression, according to the definition of international law before LAW IN THE TERRITORIES, ETC. 453 given — what is the private international law in the several States applying to such persons : — that law which is denominat ed international from the character of the persons to whom it applies ; but which is law, in the strict sense, only because identified in authority with the local municipal law of each State. § 397. Since the Territories, the District of Columbia, &c., have not the political nature of a State of the Union, not being inhabited by a people hIstoricaUy known as the people of a State of the United States, the totality of supreme power over those Territories, &c., and the inhabitants, or the sum of all the powers of a national sovereignty, (which of necessity, by the natural or necessary law of nations, must be held by or invest ed in some political person or persons,) can be vested solely in the nation, — the people of the United States, — the only other possessor of sovereign power recognized by the Constitution — the evidence of the possession of sovereign power.' Therefore the exercise of any of the powers of a national sovereignty over those Territories, &c., is to be deteimined solely by the Consti tution,' operating as a public rule of action, which can be the only warrant for the exercise of any of the authority possessed by the United States as one nation.' If that residue of sovereign powers which, within the limits of the several States, is held by the people of each is, within the Territories, &c., ofthe United States, held (by delegation, for the United States, or the people of the United States) by the na tional Government or by Congress, then those Territories, &c., may be considered as being in the relative condition of a State of the Union in reference to laws proceeding from the (residu ary') class' of powers, so held by the national Government or by Congress. These several jurisdictions, though not governed un- ' Ante, § 346. ' Ante, § 376. ' That is, powers of the some kind os that closs of powers which, in ond for the Statu, ore held by the people of the State severnlly, and coUed "residuary" or "re served" powers, in distinction from those "grunted" bythe people of tho United States to the Notional Government Johnson, ,1., in Am. and Ocean Ins. Cos. v. Canter, 1 Peters', 646 ; " In legislating for them, (the territories,] Congress exercises the com bined powers of the generol ond of o State Government." 454 NATIONAL AND LOOAlji LAWS. 'der the political organization known in the public municipal law of the United States as a State of the United States, may have, or be under, a local municipal law, while they are at the same time, also, like a State of the United States, under the. national municipal law which, as private law, has equal extent through out the whole dominion of the United States. And that local municipal law will be, like the local law of the organized States, divisible, according to the domicU or alienage of the persons to whom it may be apphcable, into municipal (internal) and inter national law. Whether those provisions of the national municipal law which have the effect or character of international or quasi- international law (pubUc and private) will also have the same effect in respect to the Territories, &c., which they have in re spect to the organized States, will depend upon the proper con struction of those provisions, and the proper interpretation of the terms in which that law may be expressed in the Consti tution. § 398. The distinction of the laws of the United States into laws which are either national or local in their extent, which distinction is founded upon the political character and territorial jurisdiction of the sovereign power from which they proceed is, as has been shown,' the most obvious basis for an analytical distri bution of the various laws which may affect the condition of pri vate persons. Each of these two parts would then again be di visible, in respect to the character of the persons on whom it might operate, into municipal (internal) and international law. The two branches of international law which would thus be made, might each again be divided with reference to the specific character (in respect to domicil) of the alien persons ito whom it applied, into that law which determines the relations of " do mestic" aliens and that which determines the relations of " foreign " aUens, as those classes of persons have herein before been distinguished.' But — from the mode in which a part of the private international law of any country is judicially a'scer- • Ante, ^877. ''Ante, % SSi. NATIONAL AND LOCAL LAWS DIVIDED. 456 taihed, viz., by distinguishing certain principles of the municipal (internal) law as having or as not having universal personal extent or application, and from the fact that those rules which determine the international relations of the States, or their in habitants, towards each other have also (in being the law of one country or nation) the character of municipal (internal) law — it will be more in accordance with the natural and historical de velopment of the laws of the United States, not first thus to distinguish them, according to their political character or au thority, into national and local ; but, according to their kind, quaUty, or effect, and the character of the persons to whom they apply, into municipal (Internal) and international law ; and afterwards to subdivide each of these with reference to its various sources and territorial jurisdiction. § 399. With reference to the foregoing considerations of the operation of the public law of the United States, both ia deter mining the sources of legislation and in having itself effect upon the relations of private persons, the private law of the United States may be classed according to its extent or jurisdic- - tion over territory and persons as either municipal (internal) or international law. § 400. The private ¦ municipal (internal) law, may be divided, in respect to its source and extent over territory, into 1. National municipal (internal) law, — contained in the Constitution or proceeding from the general legislative powers of Congress, having national operation and effect throughout the dominion of the United States, whether States or Territories, &c. 2. Local municipal (Internal) laws, — proceeding from the powers reserved to the States, or from the legislation of Con gress over the Territories, &c., and having operation or effect therein only. § 401. The private international law of the United States may be divided according to the persons upon whom it operates, or in reference to whom it exists — as either : 1. International latv applied to domestic aliens — those who, within the jurisdiction of a State, are alien to it, but not to the jurisdiction of the national Government : which part may, in 456 INTERNATIONAL LAWS DISCRIMINATED. distinction from the other, be denominated the domestic inter national law of the United Stales. 2. International law applied to foreign aliens — those who are at the same time aliens to the jurisdiction of the national Government, and to that of any State in which they may .enter. § 402. The first ofthe above named divisions of international law — domestic international law — may again be divided in reference to its source and authority into : 1. That law which, though international, by the character of the persons to whom it applies, is identified in its source and authority with the national municipal (internal) law, and which therefore, if acting on private persons, is law in the strict sense, independently of the will of the several States in which it oper ates ; which division, in distinction from the second, may be properly denominated gMasi-International law. This law is found either : a. In the Constitution itself operating as private law ; or, b. In the legislation of Congress under the Constitution. 2. That which, though international by the character of the persons to whom it apphes, is identified in its authority with some local municipal (State) law ; and^which, if distinguished from the last in its origin, source, or authority, is not law in the strict sense of the word. § 403. The second of the above principal divisions of the international law, viz., that applying to foreign aUens, may also be subdivided into two parts, according to the jurisdiction of that municipal law in reference to which the person is consid ered an alien. 1. That law which determines the relations of foreign ahens in reference to the national municipal law. This, though inter national from the character of the persons to whom it applies,' wiU be a law in the imperfect sense only for the power from which the national municipal law proceeds, and in legal authori ty is identified with that law. 2. That law which determines the relations of foreign aliens in reference to the local municipal laws of the several States. This again may be distinguished either as : FREEDOM REFERRED TO LAWS. 457 a. Law resting on the source of the national municipal law, and therefore Identified In authority with the first of these sub divisions. b. Law resting on the source of that local municipal law in reference to which the relations of the foreign aliens are consid ered, and therefore identified with it in its authority, as law in the strict sense. § 404. Wherever sovereign national power Is divided be tween different depositories, freedom or its opposites may be considered in reference to the action of each possessor of any portion of that power : because every exercise of power limits or extends freedom of action in some relation. When free dom and its opposites are considered as legal conditions, con sisting in different degrees of liberty of action in various re lations created by law, the whole of jurisprudence is nothing else than the definition of those conditions. The further consideration of freedom and its opposites in the United States Is to be made by tracing the effects of the laws, included under the division above made, in creating or sustain ing rights and obligations incident to the condition or status of private persons. CHAPTEE XIV. THE NATIONAL MUNICIPAL (INTERNAL) LAW OF THE UNITED STATES — ITS EFFECT UPON CONDITIONS OF FREEDOM AND ITS OPPOSITES. § 405. Since the freedom herein to be considered is only such legal freedom from the control of others and general lib erty of social action as includes the possession pf individual rights and legal capacity for the ordinary relative rights attribu ted to persons in a civil state, and bondage, or servitude is viewed as a condition consisting in a greater or less diminution of such possession or capacity, (whether including the idea of chattel condition or not,) the several divisions of the private law of the United States, given In the preceding chapter, will here inafter be regarded in respect to its effect on the possession or enjoyment of these rights, or as forming a law of status or per sonal condition. The first division of private municipal law in the preceding chapter, was that culled national municipal laio ; which was defined to be that contained in the Constitution, or proceeding from the legislative power of the national Government, and having general extent and effect upon persons and things throughout the dominion of the United States, whether States or Territories. § 406. In the introductory analysis of the topics of the law, or of jurisprudence, it was shown that the first distinction known to the law is that between persons and things ; and that, under any system of law wherein that distinction is at tached to natural persons, the attribution of the legal character FREEDOM, HOW DESCRIBABLE. 459 of a thing, or of an object of rights exclusively, is a denial, in the most absolute form, of liberty of action under law. This distinction being tmalytically, or logically, anterior to a descrip tion of the rights of persons, like that under Blackstone's analysis, and necessarily considered as a mark of status or con- dition in the civil law sense ; which comprises those legal prin ciples which attribute or deny personality and a capacity for legal rights to human beings.' All law is, in a certain sense, a Umitation of freedom ;' and the national municipal law, herein before defined, by creating rights and obligations in various relations, throughout its juris- dictjon, defines or limits freedom in each local State jurisdiction, as does also the local municipal law of the State. But the establishment of such a distinction between natural persons as gives to one the legal character of an object, only, of the rights of another, or even gives to one such a right of personal control over another, as constitutes the relation of master and servant, without the consent of the latter — even when his legal person ality is recognized, is the result of a single and distinct exer cise of sovereign legislative power ; and therefore in a state, wherein it is distributed between several distinct depositories, can be vested in one only of the possessors of that kind of power. § 407. The Constitution does not contain any definition or Umitation, of the sovereign powers belonging to a political state or national sovereignty. Therefore, according to the distribu tion of sovereign powers contained in or evidenced by the Con stitution which has been stated in the previous chapter, it may be inferred, that the power to establish this distinction is either granted by the Constitution to the national Government, or, if not prohibited to the States, remains with them, as one of the ' Ante, § 44. ' And, 111 a certain sense, it is true that liberty is a thing impossible ; os said by some; Nodier's Jeon Sbogor, (o novel said to hove interested Napoleon,) ch. 13. Ruakin's Seven Lamps : the Lamp of Obedience. Amer. ed., p. 166. Tho idea is not very now. Eurip. Hec. 1. 864. — 'Out tlTTl ^VTJTUV barts ffrr' ^Kcv^^pos . . . "H TrA^Sus avrhr iroAeoj ^ vofiuv ypa(l>a\ Elpyovffi xp^irSoi ^^h iiarh ypoi/iitv TpoTroit. 460 NATURAL RIGHTS ACKNOWLEDGED. reserved powers, spoken of in the tenth Article of the Amend ments. But the extent to which sovereign national power may right fully proceed in affecting the condition of individual members of society being taken to depend upon the will or judgment of the state, or of the actual possessors of its powers, as constitut ing the only legal test of the just and natural powers of the state, it may first of all be questioned whether the people of the United States, as the possessors of that sovereign power, have, either as one national sovereignty, or as different commu nities uniting in the exercise of separate powers, so limited that power in their own hands, that the establishment of this dis tinction in the legal condition of natural persons can no longer be legally considered within the limits of the highest power known (under law) in the United States ; and consequently may not be juridically said not to exist, either in the powers of the Government of the United States, or among those of the several States. In other words, the inquiry may be made whether any recognition has been made by the actual and ultimate sovereign from whom the Constitution, regarded as public and private law, proceeds, of the innate and necessary personality of all men ; such as necessarily attributes to aU a legal capacity for rights, opposed to the condition of a thing, and implies the possession of individual rights by all natural persons, especially of the right of personal liberty. In like manner as it may be considered acknowledged by all Christian sovereignties, that each individual human being has a right to life, independently of the will of the supreme power of the state, which right is not to be infringed except on forfeiture for crime. Such an acknowledgment may not be found embodied in specific declarations, but may justly be inferred from the public action of Christian states, if not of all nations, to be re ceived by them as a natural principle. A similar acknowledg ment might exist in regard to personal liberty, or all individual rights. Such declaration could not indeed coerce with any legal force the supreme national power ; or, in the United States, the ultimately sovereign people. The solemn recognition by WHETHER ACKNOWLEDGED BT THE CONSTITUTION. 461 that sovereign, of rights in individuals, would however be a moral security against the action even of that sovereign power itself ; being public expressions of great principles of poUtical ethics, and in the nature of a recognition of natural law, or of an assertion of natural reason by the highest earthly authority, which would prove, to all subject to that power, the deepest at tainable basis for liberty by or with law.^ § 408. The written Constitution of the Government of the United States being the highest law known therein, by being the controlling expression of sovereign will, wherever its provi sions can apply, it must here be looked to as the determining criterion of what may be a principle of public or private law. There might be, in the Constitution, declarations which would have various effects as law upon the rights of persons, deter mining either the nature and number of those rights, (as topics of private law,) or their extent in reference to the different de positaries of power, (as topics of pubhc law.) Provisions might exist therein, applying to all or to some natural persons within the dominion of the United States, such as would necessarily imply a legal personality, and capacity for rights in legal rela tions ; or they might be such as would establish the possession of specific rights by all, or by some, equivalent to establishing a condition of freedom, in a greater or less measure, for aU in cluded under those provisions. Provisions having such effect, as private law, would be also public law, in respect to either or both of the two depositaries of sovereign power recognized by the Constitution ; and would 'Comp. Burke in debote on Indio BiU, Porl. Hist., vol. xxxiii, 315; Smith's Comm., p. 257. M. B. de Constant, OSuvres, tom. i, p. 189 : " Sans vouloir, comme I'ont fait trop souvent les philosophes, exagfiror I'influeiice de lo verity. Ton pent of- firmer que, lorsque de certains principes sont complfitement et cloirement d^montrfs. Us se servent en quelque sorte de gorontie d eux-mlmes. lis se foiment o I'egord de I'ividence une opinion universelle qui biontdt est victorieuse. S'il est reconnu que la souveroinetA n'est pos sons homes, c'est-i-dire, qu'il n'existe sur la terre auoune puissance iUimit^e, nul, dans aucun temps, n'osera reclanier une sembloble puissance. L'exp^rience mcme le prouve dcja. L'on n'attribue plus, par exemple, il la sociCt6 entiire, le droit de vie et de mort sons jugement. Aussi nul gouvernement moderne ne pri'tend exercer un pareil droit. Si les tyrans des nnciennes r6publlqu6s nous paraissent bien plus effrcncs quo les gouvornons de I'histoire raodorne, c'est en partie k cette cause qu'U faut rottribuer. Les ottentnts les plus monstrueux du despotisme d'un seul furent souvent dus h la doctrine de la puissance sans bornes de tons." 462 RIGHTS AS AGAINST THE GOVERNMENT. control the exercise of one, or the other, or both of the two classes of powers separately invested in them, viz. : those in vested in the national Government, for national extent, and those remaining in the States, to take effect witliin their local jurisdictions ; or those invested in the national Government, to act locally in specified territories. § 409. In all states wherein the mechanical Government is distinct, in the mode of its existence, from the ultimate national sovereign, and acts only in forms prescribed by public law, the constitution of the Government is, in itself, to a greater or less degree, a guarantee of just laws for the people governed ; since the ordinary instrument of authority is liable to control by the ultimate sovereign, in case of an abuse of the power intrusted to it ; even when it is not specified, by public law establishing that form of Government, wherein such abuse shaU consist ; or, in other words, when the power intrusted to the Government to affect the rights of private persons is not specifically limited. ' When, by the constitution of the Government, its powers are limited, or, which has the same effect as public law, where rights of action are attributed to the persons governed, as inde pendent of the action of the Government, the Constitution has direct effect as private law ; and the rights of private persons guaranteed by it, whether political or civil, have the distinct character of legal liberties, in being ascertained and defined by law proceeding from the highest legislative authority. In making a grant of powers to the national Government, the Constitution defines those powers in specific terms, and also limits their extent, by the recognition of certain rights in the people, as individuals, who are to be subject to those powers ; which provisions are in that respect private law, a law of pri- , vate rights as well as public law, because allowing to all persons, included in the scope of those provisions, liberty, in certain re lations, independently of the action of that Government. § 410. Of this character are the first nine Articles of the ' But this can 'only be when precedent and the possession of rights under personal lows have acquired o constitutional {iustitutional. See Lieber, Civ. Lib. ond Self Gov.) existence iu the notional sentiment. RIGHTS GUARANTEED. 463 Amendments, the second and third paragraphs of the ninth sec tion of the first Article, the third paragraph of the second section and the whole of the third section of the third Article. Those pro visions limit the powers of the Government of the United States both in their national and in their local extent, i. e., whether operating generaUy in all the States, or in limited territorial jurisdictions,' and are, in reference to that Government, of the ' Dred Scott's cose, 19 Howard, (Opinion of the Court,) p. 447, " the personol rights and rights of property of individual citizens as secured by the Constitution. AU we mean to soy on this point is, that ns there is no express regulation in the Consti tution defining the power which the General Government may exercise over the per son or property of a citizen in a territory thus acquired, the court mnst necessarily look to the provisions and principles of tho Constitution, and its distribution of powers, for the rules and principles by whicli its decision must be governed." And again, on p. 449, (it being observed thot though the reference is to the powers of the national Government in the Temtories, it is assumed that the principle applies throughout the entire national domain, whether States or Territories.) " But the power of Congress over tho person or property of o citizen can never be a mere di.icretionary power under our Constitution ond form of Government. The powers of the Government and the rights and privileges of the citizen ore regulated and plainlj' defined by the Constitu tion itself. And when the Territory becomes a port of the United States, the Federal Govei^iment enters into possession In the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, ond lim ited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government aiid sovereignty. It has no power of any kind beyond it ; ond it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution hos denied to it. It cannot create for itself a new character sepa rated from the citizens of tho United States, and the duties it owes them under the provisions of the Constitution. The Territory being o part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out ; and the Federal Government can ex ercise no power over his person or property, beyond whot that instrument confers, nor lawfiiUy deny any right which it has reserved. " A reference to a few of the provisions ofthe Constitution will illustrate this propo sition. " For example, no one, we presume, will contend that Congress can make any low in o Territory respecting the establishment of religion, or the free exercise thereof, or obridging the freedom of speech or of tho press, or the right of the people of the Ter ritory peoceably to assemble, and to petition the Government for the redress of griev ances. [1st Art. Amend.] " Nor can Congress deny to the people the right to keep and bear arms, [2d Art. Amend.] nor the right to trial by jury, [5th and Oth Art. Amend.] nor compel any one to be a witness against himsolf in a criminal proceeding. [5th Art. Amend. | "These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Govern ment ; Olid the rights of private property hove been guarded with equal care. Thus the rights of property are nnited with the rights of person, and placed on the same ground by tho fifth omendment to the Constitution, which provides that no person SiaU be deprived of life, liberty, and property, without due process of law. [6th Art. Amend.] And an act of Congress which deprives a citizen of tho United States, of his hberty or property, merely becnjiso ho came himself or brought his property hito o porticulor Territory of tho United States, and who hod committed no otfeueo ogainst the laws, could hardly be dignified with tlio iioiiie of due process of law. " So, too, it wiU hardly be conteuded thot Congress could by low quarter o soldier in o 464 OF A BILL OF RIGHTS. / nature of BUls of Eights, as they have been long known to the British islands and the American colonies ; or rather, analogous to such bills, since they have a higher character in reference to the powers of the Government than any Bill of Eights compared with the power of the English parUament ; for, by the theory of the English law, parliament is supposed to-be omnipotent in legislation ; whereas, in American public law, these guarantees of liberty have an equal character, as law, with the constitution of the Government, and are susceptible of change only by the same power which created it, giving to the liberties so reserved the character of liberty by law, in the strictest sense of the term.' § 411. Of like character are those limitations on the powers of the several States, in the tenth section of the first Article, prohibiting them from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts ; and those in the fourth Article, limiting their powers in certain g'Masi-international relations which are hereinafter to be spe cially considered. § 412. The whole Constitution, whether public or private law, partakes, in fact, of the nature of a Bill of Eights, against the depositaries of power ; being intended, by the express dec- house in o Territory without the consent of the owner, in time of peace ; nor in time of war, but in a manner prescribed by law. [3d Art. Amend.] Nor could they by law forfeit the property of a citizen in a Territory, who was convicted of treoson, for a longer period than the life of the person convicted ; [Const. Art. I, sec. 1, 3d parag. Art. Ill, sec. 3,] nor take private property for public use without just compensation. [6th Art. Amend.] " The powers, over person nnd property ofwhich we speak ore not only not granted to Congress, hut are in express tonus denied, ond they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, aud ex tend to the whole territory over which the Constitution gives it power to legislate, in cluding those portions of it remaining under Territorial Government, as well as that covered by States. It is u total obsence of power everywhere within the dominion of tho United States, and places the citizens of a Territory, so for as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against ony inroads which the Qenorol Government might attempt, under tlie plea of implied or incidental powers." ' Hoke II. Henderson, 2 Dev. N. C. Rep. 15 ; per Ruffin, C. J., " The law of the lond in bills of right does not mean merely on act of the legislature ; fur that con struction would abrogote all restrictions on legislative authority. The douse means, thot statutes which could deprive a citizen of the rights of person or property without a regular trial according to the course and usage of common law, would not be the law of the land, in the sense of tlio Constitution." Also, Virginio Assembly Report, of 1799 ; Randolph's Ed. p. 220 ; Lessee of Liv ingston V. Moore, 7 Peters' U. and Appendix I ; Jones v. Perry, 10 Yerger's R. 69 ; 4 HiU, 146. RIGHTS, TO WHOM ATTRIBUTED. 465 laration of the constituting power in the preamble, to be the means of " securing liberty and establishing justice to the people of the United States and their posterity." The grant of powers by specification to Congress, the executive and the judiciary department ; the separation of the functions of supreme power ; the reservation of power to the people in the political condition of distinct States are, as well as the provisions above aUuded to, in their tendency, securities of liberty to the people in various private relations, as the subjects of supreme power, while at the same time bulwarks of power to the same people, politicaUy united or separated, as the ultimate and only sovereign. § 413. It is evident that the attribution of these rights to the people of the United States, against the specified powers of the national Government, is equivalent to a recognition of personality and capacity for legal rights in aU the inhabitants of the dominion of the United States, whether States or Terri tories, if, by the word people, every inhabitant of that dominion is intended. These rights are legally predicable only of legal persons, and, therefore, when so predicated, are equivalent to an attribution of a free condition, opposed to a status of chattel slavery. The application of such provisions, as a personal law, to any natural persons is manifestly incompatible with the legal negation of personality, or the attribution of that legal status which consists in the non-recognition of rights before the su preme power of the state. In Uke manner as the Constitution, considered as public law and the evidence of the possession of sovereignty, is to be construed or interpreted by previous laws and customs, iri order to distinguish the persons who are therein referred to as the constituting people of the United States,' so, in the appUcation of these provisions and the interpretation of this preamble as private law, the same reference must be had to previous law and juridical usage, to determine who are the natural persons to whom personahty and a capacity for these specified rights is to be attributed by the force of these terms, as weU as the extent ' AnU,% 350. 30 466 RIGHTS NOT ATTRIBUTED TO ALL. and meaning of the terms in which those rights are conveyed or recognized. § 414. In public law the people spoken of in the instru ment must be taken, as before shown, to be a certain political people or mass of individuals politically organized into existing States, or peoples of States, determined by facts antecedent to the Constitution, and so distinguishable from the mass of the inhabitants. And, since the hereditary possession of civU and social liberty under ancient personal laws was an essential cir cumstance in determining who constituted that people, or the people of those States, liberty, here spoken of, whether poUtical or civil, must, in connection with private rights, or as it forms the right of a private person, be taken to be something depend ent on laws and customs, or something personal to certain indi viduals determined by laws of descent and inheritance, and not predicated of aU mankind as innate, or determined only by the fact of possessing the human nature or form.' It must be taken to be political, civil, or social liberties, identified with some known legal rights, already determined by the municipal and intemational law, or by common law, the latv of nations, and colonial or imperial statute law ; and to be liberty consisting in relations existing under law, not a condition antecedent to law. The clauses of the Constitution in which persons are spoken of as either free or not free, and as held to service or labor, are an other evidence that the liberty spoken of is that determined by previous law and usage. And since legal liberty relates to free dom of action as a right, which can legally be predicated oi per sons only, if the hberty spoken of is dependent on previous laws, I ** Ed crboD sleb Gefletz und Rechte." However false may be the doctrine of Mephistophiles, in his lecture to the dis paragement of jurisprudence, it is not less true in America than in other couutries : — " Nay, tliere, I think your judgment not amiss, 1 Icnow, full well, whut thtit Proleselun ia. Talk of your law und rigta ! Dusceud not these Liko au Inveterate family diseaso I Thoy glide along from race to race. And soltly steal from place to place ; Sense is made noiisonse, goodness licld in scorn, Woo unto thee, that thou u grandson art ; Alas 1 the rights that with us all aro boru Here of the question never form a part." Quethe'a Faust ; TaWol'i Tr, CONTINUATION OF COLONIAL LAW. 467 it can only belong to those who were legaUy, or by those laws, persons. § 415. As was before shown, when territories inhabited by a people living in that social form which is known as a state among civilized nations pass under the dominion of new political sov ereigns, the laws which thereafter are in force in those territories are stUl, both in their territorial and personal extent, those which previously existed therein, and which are not inconsistent with the supremacy of the new power. ' Still more evidently is this the case when such change of sovereignty is only domestic or civil, and when the new depositaries of power rest their claims on the maintenance of previously existing laws. Unless there fore there was something in the assumption of the totality of sovereign power by the people of the colonies, and in the estab hshment of the present pubhc law of the United States, by which the foundations of civil society were broken up, and all rights reinvested on principles of some so-called natural law, as interpreted by the actors in the transaction, different from the law of natural reason jurldicaUy declared and contained in the previous law, there was nothing in those political changes to alter the condition or status of the inhabitants by the then ex isting private law ; or to affect rights of persons, so far as pri vate and not political or public ; and the private law of the Anglo-American colonies must be taken to have continued to be the law of the new States, until changed by new legislative action, according to the location of supreme authority by the pubhc law, and the subordinate judicial application of natural reason. § 416. The sovereignty of any state being, of necessity, the first principle of its own law, aU propositions necessary, as asser tions of fact, to support that sovereignty, or which have been pubUcly and authoritatively assumed to support it, may be taken to be recognized by that law. The act of the Continental Con gress of July 4, 1776, declares the independence or sovereignty of the States, or of the nation ; but the propositions advanced ' Ante, § 123. 468 DECLARATION OF INDEPENDENCE. to justify the act, in the statement of the reasons or causes in ducing it, can have legal force only on the ground of their neces sary connection with it. The preamble of the act of declaration announces its object to be to set forth the reasons which justify the colonies in sev ering the political bonds which had connected them with Great Britain and in assuming " an equal and separate station among the powers of the earth." It also contains certain general propositions, declaratory of rights, not only of communities, but also of private individuals. '' We hold these truths to be self- evident, that all men are created equal ; that they are endowed by their Creator with certain inalienable rights ; that among these are life, liberty, and the pursuit of happiness ; that to secure these rights governments are instituted among men, de riving their just powers from the consent of the governed ; that, whenever any form of government becomes destructive of those ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such prin ciples, and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness." Although from the form of statement these propositions are made a part of the foundation for a declaration of political in dependence by the representatives of pre-existing political bodies, i. e., the States or colonies, it is plain, both from the rest of the document and from history, that, if the claims of those colonies rested ultimately on the rights of private persons inhabiting their jurisdictions, it was on those rights as they existed by and in the public -and political law, and as they were vested in those persons by the constitution of the empire, as hereditary and at taching to them in the character of members of existing politi cal and civU bodies, and not in individual or relative rights as attributed by private law in social relations ; and that if rights in that sense were also implied in the argument, it was not ne cessary to refer to any law of nature, as determining private relations, to support the measures of the revolution. This further appears from the instrument itself, in the enu meration of the acts on the part of the king of Great Britain, DECLARATION OF INDEPENDENCE. 469 therein complained of ; which were alleged to be violations of pre viously existing laws, public or private, and of constitutional principles. If it was intended to argue that the natural liberty of all men, individually and apart from all human laws, gave them the right to resist the imperial authority, it is evident that the resistance might have been made at any previous time at which the inhabitants of the colonies had thought proper to separate ; which was never pretended. If the meaning is that the violation of natural liberty or of inalienable rights occurred by the violation of the civil and political liberties of the colo nists, it is notliing more than the assertion that those civil and political liberties, as held by them under the public and private law, were such as the law of nature justified, without asserting that that law demanded their extension beyond the limits as signed by existing municipal law and political constitution.' § 417. Whatever may be the true theory of the seat of sovereignty, jus summi imperU, at the separation of the colonies from Great Britain, there, indisputably, was no grant of power to this Continental Congress to affect the status of persons, or to alter the basis of private law affecting the rights and relations of private persons as such.' The instructions given to the dele- ' See 1 Lieber's Civ. Lib. and Self Gov., 278 ; Bentham, Principles of Morals and Legislation, c. XVII., § 27, note, after referring to these expressions in the declaration — " Who con help lamenting thot so rational a cause should be rested upon reasons so much fitter to beget objections than to remove them ? But with men who ore unani mous and hearty about measures, nothing so weak but may pass in the character of a reason ; nor is this the first instance in the world where the conclusion has supported the premises, instead of the premises the conclusion." ' 3 Dallas' Rep. 199, (1796), by Mr. Justice Chase : " It has been inquired what powers Congress possessed from the first meeting in September, 1774, until the rati fication of the Articles of Confederation on the first of March, 1781. .... I entertain this general ideo that the several States retained all internal sovereignty, ond thot Congress properly possessed the great rights of external sovereignty." Compare Mass. Quart, vol. I., p. 482. It may be noticed that this declarotion is, in form, the statement of facts, — modes of action, not rules of action. It is, if any thing, o definition, and to it may be ap plied a remark of M. Charies Comto, Trnit6 de la Propriety, Tom. II., «. 48 : " Defi nitions given by the legislotive power may be useful, when they contain a command, or a prohibition, or when then- object is to determine acts which individuals are bound to perform, or to abstain from ; but when tliey have no other object than to makfe known tho nature of things, tliey are useless and dangerous, and should bo left to science. In the doctrines of fact, o legislator hns no more authority than a simple individuol, unless we admit, as a principle, that he is infallible." Reddie's Inquiries, Elementary, &c., 209. ' 470 DECLARATION OF INDEPENDENCE. gates to the Congress by the several colonial conventions and as- sembUes, prior to the Declaration of Independence, contained an express reservation to each colony of the sole and exchislve regu lation of its own internal government, police and concerns : and whatever may have been the actual limits of that local sover eignty which was thus asserted, this reservation proves that Congress — the existing organ of the national authority — had not these powers. Nor was there any actual exercise of authority, as national or federal, by that Congress, during its exist ence, intended directly to affect the status of persons within the Umits of State jurisdictions, except in freeing indentured ser vants and slaves who had served in the army ; and that only by making compensation to their masters. Whatever declarations of the nature of supreme power, or of the individual or relative rights of the inhabitants, may have proceeded from that Congress, they can be taken to have legal authority only when necessarUy assumed as principles justifying the exercise of the powers actually vested in them, and by which they had a very limited power of legislation.' If these propositions in the declaration are to be taken in the sense of assertions of the right of all mankind to personal ' The opposite conclusion is expressed by Mr. Sumner in his speech in the U. S. Senote, Aug. 26, 1852. " Thirdly. According to o famUiar rule of interpretation, all laws concerning the same matter, in pari materia, are to be construed together. By the same reason, the grand political acts of th£ nation are to be construed together, giving ond receiving light from each other. Earlier than the Constitution was the Declo ration of Independence, embodying, in immortal words, those primal truths to which our country pledged itself with its baptismal vows as a nation. ' We hold these truths to be self-evideut,' says the nation, ' that all men are created equal, that they are en dowed by their Creator with certain unalienable rights ; that among them are life, liberty, and the pursuit of happiness ; that to secure those rights governments ore in stituted among men, deriving their just powers from tho consent of the governed.' But this does not stand alone. There is auother notionol act of similar import. On the successful close of tho revolution, tho Continental Congress, in on address to the people, repeated the same lofty trath. ' Let it be remembered,' said the notion ogoin, 'that it has ever beeu the pride and the boost of America, that the rights for which she luis contended were the rights qf human nature. By the blessing of the Author of these rights, they hove prevailed over all opposition, and form the basis of thirteen inde- pendeflt states.' Such wero the acts of the nation in its united capacity. Whatever may be the privUeges of States in their individual copocities, within their several locol jurisdictions, no power cnn he ottributed to tbe nation, in tho absence of positive, un equivocal grant, inconsistent with these two national declarations. Here, sir, is the national heart, the national soul, the national will, tho national voice, which must inspire our interpretation of the Constitution, and enter into and diffuse itself tlirough all the notional legislation. Thus again is freedom notional." NO UNIVERSAL ATTRIBUTION OF RIGHTS. 471 hberty or to a legal condition of freedom, and were as such un necessary to the vindication of the acts of the revolutionary Congress, it is evident that it did not come within the scope of the powers of that body to declare them, and that they have no force in affecting legal rights, either in the general law of the nation or in that of the several States. § 418. The doctrines of this state paper, except in their con nection with political relations, never obtained the force of law by their promulgation therein, either in the national or State jurisdiction, nor have any legislative or judicial authorities, under the constitutional division of sovereign powers, ever recognized the instrument as affecting the previous foundation of the laws of personal condition in this country. The only occasion for re garding these propositions as a standard of conduct for private persons, is found in comparing them with the private relations and pubhc career of those who subscribed them. ' The same remarks apply to the declaration of Congress, July 6, 1775, giving the reasons for taking up arms against the British Crown. § 419. There is apparently nothing in the signification of the Constitution, or of the public acts of the people of the United States in their united or national possession of sovereignty, which can be justly construed into a universal attribution of the rights of legal personality, or a voluntary abnegation of this power over personal condition ; '-' whatever recognition there may " No written declaration of political principles can bo construed or interpreted with out referenco to its octual correspondence with the acts and chcumstances of its au thors. In 1297, ot a time when the King of England was, practically, on absolute monorch, ond o large portion of the community were in o state of villenage, the writs issued by Edward I. for the assembling of a Parliament contained this sentence : " What concerns all should be supported by oU, approved by aU, and common danger shonld be repelled by oU." From this pubUc act some hove orgued a legol right thereafter to universal ropresontotion, or the right of every one not to be taxed with out his consent. See Wode's History of tho Middle ond Working Classes, p. 450. " Chief Justice Toney, in Dred Scott's cose, 19 Howard, pp. 409, 410, citing these clauses in tho declaration, can hardly be supposed to have intended to argue more from their existence than is argued in tho text above : that is, only that they ore not to be taken as o juridlcol oct altering the status or civU condition of persons of African descent, as 'it then existed in the colonics. The Chief Justice refers, as has hero been done, to the history of the times and of tho authors of tho instrument, to prove that they are not to be so interpreted. On page 410—" It is necessary to do this in order to determine whether the generol terms used in tho Constitution of the United States, as 472 OBJECT OF THB CONSTITUTION. be in the same instrument of rights in the people, as certain de terminate masses of individuals, by those provisions which are of the nature of public and private latv, or bills of rights, and are national in their jurisdiction or extent. § 420. The object of the Constitution is " to secure liberty to the people of the United States ; " but for that purpose it establishes a Government, and invests it with powers to act upon all persons within the United States ; and at the same time it acknowledges the possession of the residue of sovereign powers to be in the several States, or the several people of each State, as a distinct political personality. The liberty therefore which is recognized by the Constitution, in this declaration of its to the rights of man and the rights of the people, was intended to include them, or to give to them or their posterity the benefit of any of its provisions." But, from the mode of statement employed in the next sentence of the Opinion, it might seem that the Chief Justice was not satisfied with drawing only such o negative conclusion from those douses, but found, in the very expressions themselves, u direct averment that negroes were not to bo considered capable of legal rights, and even that they were property and not persons. For, having on the preceding pages cited the customary and statute law of the colonies and the empire recognizing slavery and the civil disabilities of free negroes, ond having, just before the sentence above quoted, said : " We refer to these historical facts for the purpose o.f showing the fixed opin ions concerning that race, upon which the statesmen of that day spoke and acted." He then (after the sentence first quoted) says : ¦' The language of the Declaration of Independence is equally conclusive. It begins," &o. ' If one says — " Feed oats to all my horses," — it might be shown, aliunde, that he means only all his white horses. But it could hardly be concluded from the words themselves, that his black horses were not to have any. That the negative conclusion, in the text above, is the gist of the argument in the Opinion, appears further from page 110 : " '1 he general words above quoted would seein to embrace the whole hu man family, and if they were used in o similar instrument ot this doy, would be so understood. But it is too clear to dispute, that the enslaved African race were not in tended to be included, ond formed no part of the people who framed ond adopted this declaration ; for, if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with," &c. &o. Much has been written respecting Mr. Jefferson's claun to originality in his part of the coniposition ofthe Declaration. But It may be noticed, that the exceUence of tho composition is, precisely, in its want of originality. It has boon proved that the most striking expressions were only adoptions of forms of speech, which were familiar to all who had spoken or written on the issues of the Revolution, and chiefly derived from the writings of Locke, Shaftesbury, Algernon Sidney, and other writers of similar po litical opinions, It was, for this reason, a successful utterance of the ideas of the peo ple of the colonies, (whatever may be thought of the philosophical accuracy of those ideas,) ond not to be construed by the habits of thought of the Committee of Con. 47. ' .Ante, § 85. ' The question, here ni;;de, is of the law by which civil rights and obligations moy be created or become existent ; aud whenever iu tho national jurisprudence they are 31 482 NATIONAL COMMON LAW. § 431. Common law then (including herein the latv of na- tiona, jus gentium or universal jurisprudence, so far as it is a law of personal condition') is in each State alterable only by the State power ; except so far as limited by the constitutional provisions before referred to. If, as has sometimes been asserted, Christianity, or the code of morals known as the Christian, ever had legal effect either as part of the " common law of England " and America or of the law of nations among nations called Christian,' its continuance, witb legal authority in determining the relations and rights of persons, is not maintained by any constitutional provisions giving it the effect of a national law for the United States. And, whatever may be the degree of correspondence between that code and the existing laws of the United States, its recog nition as a judicial rule within any State of the Union depends solely on the separate sovereignty of the State. § 432. How far the " common law " may be a national law, in the sense of a law resting on the power represented by the national Government In the Territories, District of Columbia, &c., is a question of that one of the local municipal laws, as before defined, which may therein prevail. Because those Ter ritories, &c., are, in reference to the rest of the Union and in point of severalty of jurisdiction, like the several States.' recognized as effects of common law, that law is also known as local municipal law. This is the general rule, at least as to those rights and obligations which constitute the (K!rsonal condition or status of private persons. But when the judicial power of tho U. S. is exercised,'under the Constitution, to octuaUze or realize (ante, p. 59, n.) those effects, the national courts must (in the absence of sta(ute) adopt a rule of nutr ur:d reason determined by general principles of jurisprudence. (Ante, §g 29-36.) This must be a customaiy or common law identified with the juridical will of the nation, the authors ofthe Constitution, and not with that of any one of the local sov ereignties. So, when " cases at law and equity" arising under this Constitution, &o., die to be decided in the national tribunals, the oases ore to be distinguished accordinor to the jurisprudence of England as familiarly known here, (Story's Comm. § 1645,) and the rules of remedy are not tho. practice of some State, " but occording to the prin ciples of common law and equity as distinguished ami defined in that country from which we derived our knowledge of those principles." (Robinson v. Campbell, 3 Wheaton, 212, 221, 223 ; 1 Kent, 342.) So that there is a sense in which a national common law may be suid to exist and be adopted by tho Constitution to tho extent of making it "a rule in the pursuit of remedial justice in the courts of the Union." (Story's Comm. § 1645 and § 158, note.) Whether the courts of the U. S. have juris diction to punish acts whicli, though not made punishable by the legislation of Cou- giess,»are criminal hy such o national common law, is a diUeient question. Comp. 1 Kent's Conim. Lect. xvi; Rawle ou the Const, ch. 28; Dupouceuu'a Treatise; 1 Tucker's Bl. App. E. ' Ante, y no. ' Ante, § 174. ' Ante, § 397. Duponc. on Jurisd. 29, 30. STATUS FIXED BT THE STATES. 483 § 433. There is therefore nothing in the Constitution of the United States which (either by abnegation of the power to establish a chattel condition as a personal distinction, or by at tributing the legal rights of persons to all mankind, or by an adoption of the English " common law" in respect to individual and relative rights as a national and territorial law) determines the civil condition or status of natural persons under a law hav ing national extent, to be recognized throughout the dominion of the United States and to be enforced by the national Gov ernment. Further, the powers specifically granted to Congress, for enacting laws to have national extent, are not of such a nature as to determine those rights of persons the possession or non- possession of which is the most important element of a free con dition or of its contraries; that is, individual rights,' even in dependently of those restrictions on the national Government which have the character of a bill of rights ; and even the per sonal application of the reservations against the powers of the national Government, in favor of specified rights of private per sons, is not determined by the Constitution itself § 434. On the other hand the restrictions in the Constitu tion of the United States, on the powers held by the States severaUy, are not of such a nature as to limit their power in the creation of local law affecting private rights, except in a few relations, not embracing those rights which distinguish a legal status or condition oi persons, and in certain specified in ternational and g'Mast-international relations. The power therefore of determining by personal laws the condition of in dividuals and their enjoyment of civil Uberties belongs to the States, as the proper object of their own municipal (internal) law, under that share of sovereign power which remains in them severally, subject only to the undetermined effect of the na tional guarantee for a repubUcan government, and restrained, in its application to persons, by general international obligation, (law in an imperfect sense,) and the law (in the strict and proper sense) of the Constitution having simUar effect with coercive authority over private individuals. ' Ante, % 139. 484 STATUS FIXED BY THE STATES. § 435. The power over civil liberty and the legal possession of the rights of private persons being, to this degree, within the powers of the States severally, they, by their own local law, determine within their own territory even the personal apphca tion of the constitutional reservations in favor of " the people" against the powers of the national Government ; that is, it would seem that in each State it remains for the State to de termine who constitute the individuals of that " people " who, by legal capacity for the rights referred to in those provisions, are not to be prohibited by the national Government "from assembling peaceably for the redress of grievances," whose " right to keep and bear arms shall not be infringed," who are to be " secure in their persons, houses, and possessions against unreasonable search or seizure."' For since the legal unrea sonableness of a search or seizure depends upon the legal nature oi the rights. of personal liberty, personal security, and private property, (where distinctions can be made between natural per sons according to the degree in which they possess those rights,) if the States determine the legal capacity of persons, that deter mination wUl operate in reference to the judicial and executive powers of the national Government, when they act upon the same persons. And even supposing that no law of Congress had been made, or could be made, to affect relations founded on such personal distinctions, yet it may be supposed that the con stitutional obhgation of the United States, to maintain by force the domestic tranquillity of each State, might give occasion for the recognition of those distinctions by the national executive and judiciary.' § 436. During the connection of the American colonies with the British empire, as before shown, the common law rights of Englishmen were estabhshed, by that law, for the white inhab itants, at least, of each colony, by the imperial as well as the local sovereignty ; and the same law, as personal to those colo- ' Art. I., H., rv., of Amendments. ' Art. IV. sec. 4. " The United States sh.tll guoronteo to every Stote in this Union o republican form of government, and shall protect each of them against invasion ; and on application of the legislature or of the executive, (when tho legislature caunot be convened,) against domestic violence." STATUS FIXED BT THB STATES. 485 nists, had a territorial extent and recognition throughout the colonies as one national dominion, irrespectively of the local legislature, and that personal law or those personal rights were guaranteed by the united power of the empire. But there being nothing In the Constitution, except as above stated, to limit the powers of the States in affecting or altering " common law rights" by their municipal (Internal) laws, it seems that the rights or liberties of private persons have no longer the same basis In the undivided sovereignty of a nation, as formerly ; and, therefore, not the same security for their permanence In a State of the Union as formerly in the colony ; the power to affect those Uberties having passed into the States as divided into distinct political bodies of local jurisdiction, irrespectively of the sove reignty existing in the States united, except where controlled by the provisions of a ^wasi-intcrnational character. ¦ Whether civil or social Uberty has, in consequence of this political change, a better or a worse foundation in the present Uriitgd States than In the former colonies of Great Britain, is an inquiry which Is not embraced in that legal view of the subject which is herein taken. CHAPTEE XV. OP THE NATIONAL MUNICIPAL LAW OP THE UNITED STATES THE SUBJECT CONTINUED OF THE PERSONS WHO MAY AP PLY THAT LAW BY THE EXERCISE OF JUDICIAL POWER. § 437. Under every form of government the investiture of the power to apply the law is a circumstance to be considered in determining those conditions of private persons which may be established under law. It may here be assumed that, in a republican government, this power should always be distin guished, in its exercise, from the power to promulgate laws— the legislative or juridical power. The coercive application of the laws of a country is by the instrumentality of ministerial or administrative functionaries co-operating with the judicial. It may be difficult to distinguish, in every instance, between the persons so co-operating, as being either administrative or judicial officers. But in a government wherein the three functions of sovereign power are separately invested, the judi cial function becomes the test of the administrative or minis terial. ' § 438. Whatever may be the intended operation of the na tional municipal law of the United States in causing rights or obligations, incident to conditions of freedom or its contraries, in ' But legislative assemblies ore considered as holding the judicial function to a certain extent, (I Peters' R. 068,) with the powers incident to courts of law ; in the exercise ofwhich their judgment Is final, whether the occasion for it arose in tho course ofthe logialutiye or of somo other function. Cushing's Law of Legislative Assemblies, Port III. ch. ill, iv. In 2 Kent's Comin. 80, note, the author seems to think that the American legislative bodies ure (in tho absence of any constitutional provisions) as uncontrollable iu this respeot as the English houses of parUament. OF THE JUDICIAL POWER. 487 private persons, the investiture of the judicial function, by which its application as a coercive rule is to be determined, is an im portant incident of those conditions. In the previous chapter it was necessary to consider the re lative extent of the judicial functions derived from the United States and from the several States, in applying the Constltu- tioii operating as the supreme public law and the evidence of the location of sovereign juridical power. The question, of jurisdiction under the national municipal law, which Is here presented, is also a question of the public law ; although here regarded, mainly, as one of private law ; that is, one in reference to the relations of private persons. § 439. This question, respecting the exercise of the judicial function in carrying into effect the national municipal law, arises from the fact that, within the limits of each State of the Union, the sum of sovereign power over the territory of such State and all persons and things therein is divided between the particular State and the national Government of the United States in their national capacity ; and that, since the powers held by each are sovereign In their nature, the governmental organization of each must include tribunals for the execution of the law derived from the powers so held by it. Now, though the tribunals thus constituted by these co ordinate possessors of sovereignty have jurisdiction over the same territory and the same persons, the tribunals deriving their authority from one of them will not, necessarUy, have the power to apply the law proceeding from the juridical powers ^ held by the other. § 440. Since the three functions of pohtical power must be united in the hands of its ultimate possessor, (if it is sov ereign pohtical power,) ' it is .evident that, in order that the powers of each of these two political entities or personalities may be actually sovereign and independent, the judicial func tion, for the administration of the law proceeding from either, must be exercised by its own instruments. By tiie concurrence indeed of the two pohtical sources of law, the tribunals ap- ' Ante, p. 424. 488 CONCURRENT JUDICIAL POWER. pointed by either one might administer the law derived from the legislative or juridical power of the other ; in which case the judicial function of each would merely be exercised by the same persons ; while still having an essentially independent political existence, or being still derived from different political sources. § 441 . If this question of the exercise of judicial power in applying the national municipal law be thus made with reference to the jurisdiction of the State courts, it becomes equally a question of the local municipal law of those States, the subject of the next chapter ; as it is here a question of the national law. § 442. The law, whose judicial application is to be here con sidered, includes that which has an international effect between the States, (being herein distinguished from other portions of the national law by the character of the persons to whom it ap plies,) and which is, to be separately considered, in succeeding chapters, under the name of the domestic international law of the United States ; or, at least, it includes that portion of -that international law which has a g'Mast-international effect between the States, in being derived from the Constitution and identi fied with the national municipal law in its authority.^ % 443. In the sixth Article of the Constitution of the United States it is declared, that " this Constitution and the laws of Con gress made In accordance with it shall be the supreme law of the land, and all State courts shall be bound by it, any thing in tha laws of the States to the contrary notwithstanding." And since the several States, or the people of the States, who within their several State limits possess in severalty certain sovereign powers, united in estabhshing the Constitution of the United States and in authorizing Congress to legislate, for certain purposes, with national extent, it might be argued, from this fact alone, that the national municipal law is the legislative will of each several possessor of State power.' It would seem, therefore, that the judicial tribunals under that State power would have jurisdic- ' ¦^"'«. § 103, 1. « 1 Colhoun's Works, p. 252. INDEPENDENT JURIDICAL ACTION. 489 tion to apply the national law, as well as the law which rests solely on the separate (reserved) powers of that State, whenever the persons and things affected by such national law should be found within the territorial forum of their jurisdiction. § 444. But in establishing the Constitution of the United States and in so exercising power jointly, or as one nation, the people of the United States have created a Government and in vested the powers held by them jointl)'', or in their national ca pacity, in that Government ; to be exercised by the three functions of sovereignty, as powers originally sovereign in its hands.' Now, in order that the judicial function ofthe national Government in reference to the national law may be independent of any application of that function derived from the State powers, it is evident that the national Government must have an entire possession or exercise of such judicial power as is requisite for ¦ the application of the national law, and, hence, the power, at its option, of exercising it by instruments of its own appointment. The several States and the Government of the United States are altogether distinct in the possession of their legislative or juridical powers over the action of private persons, and the law (private law) proceeding from the one must be judicially ad ministered independently of the judicial function held by the other. Or, if the laws resting on the powers of the United States and the laws resting on the powers of the several States may, within the territorial jurisdiction of a State, be together administered by the tribunals of either one, such exercise ofthe judicial power must be supposed to be consistent with th6 ad mitted distribution of sovereign power between the two sources of law which is evidenced by the Constitution of the United States. § 445. An exception to this may be supposed to exist under the clause in the second section of the third Article, which de scribes the judicial power, vested in the Supreme Court and such inferior courts as Congress may establish, as extending to cases between certain persons ; since such cases may involve the determination of rights and obligations as legal effects origi- ' Ante, %. 360. 490 CONCURRENT JUDICIAL ACTION. nating under, or created by or made to exist bythe juridical exercise of State powers. ' But there is not here any actual exception, since, by this determination of the extent of the national judicial power, the rule which governs these cases only becomes identified in aw- thority with the national law, though it may have originated in the juridical will of one of the States ; and, when applied in such a case, it takes effect as, or may be classified under, the c^wasi-international law (a part of the national law) by the character of the persons upon whom it acts, or whose rights and obligations it determines. The rule of action determining the rights and obligations of private persons in these cases is stiU supposed to be taken by the national judiciary as one resting on the several legislative (juridical) wUl of a State.' ' Ante, §§ 368, 429. " Judiciary act of 1789, sec. 34, 1 Stat, at Large, 81, Brightly's Digest, 792, and cases cited ; 1 Kent's Comm. 342, note. The rule applies with particular force where " rights of person and property," or iiullvidmil rights, are to be determined. U. S. V. Wonson, 1 Gallison, 18 ; Mayer v. Foulkrod, 4 Wash. C. C. R. 349, 355 ; Camp beU V. Claudius, Peters' C. C. R. 484. The authorilies concur that the national ju diciary will regard the State courts us the best expositors of tho State's law or juridical will. See those above, and Klmeudorf v. Taylor, 10 Wheaton, 159; Mr. Clay, in Groves V. Slaughter, 15 Peters, 485; Strader v. Graham, 10 Howard, 82, 93; Dred Scott's case, 19 Howard, 452, 459, 405, 547, 557, 603. But, unless the decision of the court in the last-named cnso be an exception, it bos not been held cither that the national judiciary must regard a decision of a State court in reference to the same facts and persons as a controlling exposition of the State law to bo applied, or that it will accept the latest decision of the State court (compared with earUer State authori ties) OS the ruling criterion of that law. In that cose, tho Justices who concurred in tho decision of the court seem to hove held, (with Ch. Justice Taney, p. 453, and Mr. Justice Nelson, p. 465,) that the court below (the U. S. C. C.) and the State court (in 15 Misouri R. 576,) had correctly interpreted the law (juridical will) of the State in such coses. Tho dissenting justices (McLeon, p. 547-557, Olid Curtis, p. 594-604,) held that the State law had not been properly understood. c r j This point of the case wiU bo further examined hereinofter, as a question under one branch of the domestic international law, Qinte, § 402 ; 2.) But it may be noticed here tliat, m the State court, the two concurring Justices seem to have admitted (with the other judge. Gamble, G. J.) that both the privote international low which, as prevail ing among nations, customarily obtains judicial recognition in every foi-um, (a,Ue, 8 258,) and the earlier Missouri cases supported a different judgment ; that thoy expressly based their decision on that idea, of deciding what comity does or does not require from the atate, tlie inadinissibUity of which was urged in the second chapter, (88 81-85,) and, de claring -that times are not as they were when the former decisions on tho subject were Zm^' "l^y "^^'l'^* vositive private law from their personal views of the comity obli- o W Q. / S'''''^'."'.''e''J'enco to tho external action, legislative and political, of o tier States and their inhabitants; (15 Missouri R. 082 ; 19 Howard, 552.) It wos m eterenco to these " lundamentul principles of private international law," aiid " prin ciples of universal jurisprudence," that Mr. Justice Curtis especially urged, (pp. 694, CONCURRENT JURIDICAL POWER. 491 § 446. The application of- the national law must, on the above argument, be ultimately determinable by the national judiciary ; yet it has been shown that of necessity every judicial officer in the United States applies the Constitution, operating as pubhc law, in recognizing the validity of any rule which he may apply as private law ; and State courts are, therefore, bound to apply the national municljial law, at least, so far as it is public law ; but of this application the national judiciary must be regarded as the supreme or final arbiter, at least, in reference to the action of private persons, and with those limit ations which arise from the manner in which sovereign power is distributed among the United and several States.' § 447. But though certain action or the relations of private persons In certain circumstances of natural and civil condition, , and therefore certain classes of rights and obUgations, are de termined by the Constitution, or are determinable by the legis lation of Congress, and thus are dependent on the national mu nicipal law and subject to the judicial power of the United States, yet, if the legislative (juridical) will of a several State may sustain a rule in reference to the same action or relations of private persons, such a rule would necessarily be applicable by tribunals holding the judicial power of the State. And it would appear that such a judicial enforcement of the juridical wiU of the State wiU not derogate from any of the functions of the national Government in exercising the national powers, the powers belonging to the United States ; if it is admitted that 602, 603,) that the doctrine of the State court should not be taken as the law of the State nor be opplied as part of the private international law ofthe United States. Where a question arises under that quasi-internationa\ law which is in authority identified with the nationol wUI, (ante, § 402, 1,) it is evident that the national judiciary is not to follow on international rule identified with the will of some one of the States only. For this reason, apparently, it has been held that the local law of a State is not to be adopted in the construction of contracts ond questions of commercial law. Swift V. Tyson, 16 Peters, 1, 19 ; Carpenter v. Providence Ins. Co., Ib. 495, 511 ; Rowan V. Runnels, 6 Howard, 134; Watson v. Tarpley, 18 How. 520; Gloucester Ins. Co. V. Younger, 2 Curtis C.*C. 322. In Dred Scott's case, 19 How. 603, Mr. Justice Curtis held, that there were questions of status involved which, arising exclusively " under the Constitution and laws of the United States, this court, under the Consti tution and laws of tho United States, has the rightful authority finolly to decide." ' Ante, g§ 366-367. Martin v. Hunter, I Wheaton, 840-351. 492 CONCURRENT JURIDICAL POWER; the nde emanating from the State shaU never interfere with the operation of that which emanates from the national powers. Unless, therefore, tiie powers of the' national Government have been, in the Constitution, declared to be exclusive in ref erence to such action, or the exercise of a like power by a State would be inconsistent with the exercise of the powers vested in the national Govermnent, the law of the State, i. e., a rule resting for its authority on the State's several share of power, might be appUed to the same action or relations, and, neces sarily, by the exercise of its own judicial power.' But it is to be observed, that no rule could property be thus attributed to the legislative (juridical) will of the State unless the action or rektions affected by it exist in reference to circumstances which woiUd have been within the actual power or sovereignty of the State, if it had never formed one of the United States, or had become, at the Kevolution, and continued to be a State holding the sum of sovereign power ; or, (to use language ap propriate to a particular view of the national history) circum stances in which the State possessed jurisdiction " originally" or " previous to the Constitution."' In order that the powers held by the national Government in reference to any action or relations may be supreme in their nature, it must have the power of making the national judiciary the supreme, at least, if not the exclusive judicial criterion of the legal nature of such action or relations. But if Congress has not thus made the national judicial power the exclusive cri terion,' the State courts wUl, in the case supposed, have a con- ' Houston V. Moore, 6 Wheaton, 20, 34; Fox v. State of Ohio, 5 Howard, 410, McLean, J., dissenting, as in Moore v. State of Illinois, 14 How. 21, involving consti tutionality of State law punishing the secreting of fugitive slaves, (in State court, Eells V. The People, 4 Seammon's R. 498,) whore the decision of the Supr. Court in Prigg's oase, 16 Peters', 539, against the validity of Stota legislation regarding fugitive slaves wos urged oa authority. 1 Kent's Coinin. 389-896 ; Curtis' Comm. §§ 119-122, 132- 142; Teal v. Felton, 12 Howard, 231, 292. ' Federalict, No. 82 ; Story's Comm. §§ 1751-1754 ; Martin v. Hunter, 1 Wheaton, 837. " The same authorities. In theory, the rule may bo that Congress con olwoys moke tho national jurisdiction exchisivo iu cases wliore there would otherwise be a concurrent jurisdiction. But since tha limits of concurrent jurisdiction are hardly de terminable, except as cases arise in practice, the limits of a possibly exclusive uotiouol jurisdiction will always ho undetermined. Compare Riwlc, p. 205, note. CONCURRENT JURIDICAL POWER. 493 current jurisdiction with the national judiciary, though applying a rule resting on its own sovereignty and identified with its own local law. And it might be said that they will, exercise concur rent judicial power. But, strictly speaking, it is here the legis lative (juridical) wiU of the State (exercised by its three functions) which is manifested concurrently with the national le gislative (juridical) power, (also exercised by its three functions.) § 448. Thus, in reference to ordinary civU relations, the State courts may have concurrent jurisdiction to enforce certain obligations or maintain certain rights. And, even in reference to action which is the subject of judicial cognizance as being criminal against a certain pohtical sovereign, it has been held that the State court may have concurrent jurisdiction to punish the act when made criminal by State law, even though a de finitive punitory law may have been enacted by Congress.' For, though it is truly said that criminal jurisdiction can be exer cised only by a court instituted by the civU power which has declared the act to be a crime, and one whose executive may pardon the offence,"^ the act may be against the declared wiU of each possessor of power. In these instances, however, the com- patibUity of the State law with the exercise of power vested in the national Government must be determinable by the judicial power of the United States invested in their properly consti tuted courts'; that is to say, the national judiciary wiU not have a superior jurisdiction to the State courts in reference to the application of the rule (private law) resting on the v?ill of the several State, but wiU have jurisdiction (applying the Constitu tion as public law) to decide whether the application of the State law is consistent with the independent exercise of the national authority in reference to the same action or relations.^ 'Houston v. Moore, 6 Wheaton, p. 26, 24, 34; Teal v. Felton, 12 Howord, 284, 292: Curtis' Comm. §§ 119-122. State laws punishing the offence of circuloting counterfeit coin of the U. S. moy he enforced on the ground that counterfeiting the coin of the U. S. and circulating such coin are distinct ofiFencce. Fox v. tftate of Ohio, 6 Howord, 410; Stote v. Tufl', 2 Bailey S. C. Rep. 44 ; Commonw. v. Fuller, 8 Met calf, 313 ; State v. RandoU, 2 AUan's Rep. 89 ; 1 Kent's Comm. 898, and 404, note. ' ? 1 Kent's Comm. 408. • Federalist, No. 82 ; Martin v. Hunter, 1 Wheaton, 340-351 ; Cohens v. Virginia, 6 Wheaton, 413 ; Sturges v. .Crowninshield, 4 Wheaton, 192 ; Story's Comm. §§ 1731- 1747; Curtis' Comm. §§115-119; Duponceau on Jur. 80. 494 CONCURRENT JURIDICAL POWER. § 449. It is evident that the possession or enjoyment of in dividual (absolute') rights, as incident to some relations between natural persons, must be determinable by the powers of civil or criminal jurisdiction delegated to the national Government for the execution of specified objects, and that, therefore, in such cases the judicial power of the United States must be supreme in determining the possession of these rights. But since the possession of these rights must have been within the " original," ordinary or general jurisdiction of the States, independently of the formation of the present national Constitution, and since no general power to determine the possession of these rights has been delegated to the national Government," there is a pre sumption that their possession or non-possession is now de pendent upon the juridical wUl of the State in which the persons claiming them may be found. . It would appear, therefore, that the judicial power of the States, at least in applying the Constitution as public law, must always be concurrently exercised wherever these rights are claimed or denied ; the decision made in the exercise of that power being subordinate to the national judiciary, applying the private law derived from the national branch of powers where the question is made under such law, and also applying the Constitution as public law to determine whether the rights in question are dependent on the powers held by the national Gov ernment. § 450. Although the earher cases show a difference of opinion on this topic, these principles seem to have been recognized, by a great weight of authority, in reference to the right of personal Uberty. Thus, m cases of enlistment into the army of the United States, it seems now to be settled that the State courts will, under habeas corpus, or by the writ de homine replegiando, try the question of unlawful imprisonment, when it is " by an oflacer of the United States, by color or under pretext of the authority of the United States." Kent says, that the question in favor of a concurrent jurisdiction in such cases is settled in the ' Ante, § 40. » Ante, § 433. CONCURRENT JURIDICAL POWER. 495 State of New York, and that " there has been a similar decision and practice by the courts of other States."' So in other cases of the deprivation of that right under color or pretext of the authority of the United States, as where per sons have been detained under suspicion of treason against the United States,' or as ahen enemies,' or for violations ofthe laws of Congress,* and on other causes of imprisonment.^ So the State courts have issued the writ of habeas corpus, in cases of persons detained for extradition under treaties between the United States and foreign governments.' And the same con current jurisdiction has always been claimed by the State courts in cases of persons detained or committed as fugitives from jusr tice or from labor under the authority of the United States.'' ' 1 Kent's Comm. 401, and'in the matter of Stacy, 10 Johnson's R. 328. In the previous case of Ferguson, 9 Johns. 239, Kent, C. J.j was of opinion that the State courts had no jurisdiction by habeas corpus where the detention was under color of au thority of the U. S. ; Thompson, J., dissenting ; other judsjes reserving the question as the case was decided on another ground. Commonw. v. Harrison, 11 Mass. Rep. 63 ; Commonw. v. Cushing, ibid. 67 ; Commonw. v. Murray, 4 Binney, 487; Commonw. v. Fox, 7 Barr's R. Pennsyl. 336 ; Carlton's case, 7 Cowen, 47 ; Roberts' case, in I809j was ogainst issuing the writ ; Sergeant's Const Law, 283 ; 2 Hall's Law Journal, 195. ' Commonw. v. Holloway, 5 Binney, 5 12, the power to discharge or hold to bail claimed, except where death would bo the punishment under the statute. » Cose of Lockington, 5 Holl's Low Journ. 92, 313 ; 6 of same, 301-330. ' * Case of Joseph Almeida, in Maryland, 12 Niles' Weekly Reg. 115, 231. Cases of Booth and Rycraft, (1854 ;i 3 Wisconsin R. 1. ' Ex parte Sergeant, by Tilghman, C. J., 8 Hall's Law Journ. 206 ; Ex parte Pool and others, Naft InteU. Nuv. 10, Dec. 11, 1821. The earlier cases are noted here from Sergeant's Const. Law, p. 282-287: where also the opinion of Judge Cheves of South Corolino, in Ex parte Andrew Rhodes, 12 NUes' W. R. 264, (1819,) as against the concurrent jurisdiction is noted. Whether the State courts can inquire into imprisonments ordered by the Houses of Congress, is o question of the extent of the judicial power as compared with privUegeS necessary to the independent exercise of the co-ordinate legislotive function. Ante, t. 487, note. .... ' Metzger's case, where the prisoner had Keen committed by a U. S. district judge, (Supreme court, N. Y., 1847, Edmonds, J.,) 1 Borbour, 248; HeUbonn's case, where the commitment was by a U. S. commissioner, (same court, 1853, MitcheU, J.,) 1 Parker's Criminal Reports, 429. But compare 6 Opinions of U. S. Att'y General, p. 239. ' Commw. V. HoUoway, (1816,) 2 Serg. and Rawle, 305 ; case of George Kirk, Oct, 1846, 4 N. Y. Legal Observer, 456; case of Joseph Belt, Deo. 1848, 7 of same, 8, before Judge Edmonds, N. Y. Supreme Court ; Sims' case, 7 Cushing, 285. I'he decisions, in this class of cases, which mamtain the claimant's possession under the octs of Congress do not, necessarUy, also deny this concurrent jurisdiction of State courts to inquire into the lawfulness of the restraint exercised under color of those acts. Such power in the State courts seems to hove been admitted in Wright v. Deacon, 5 Serg. and Rawle, 62, and Jock ». Martin, 12 Wendell, 311 and 14 WendeU, 507, where tlie detention was justified. lora otvi In Jenkins' cose, (otlierwlse known as the Wilkesharro slave case,) in WM, i VVol- lace, jr., 526, Judge Grier thus stated the general rule : " But State courts and judges 496 CONCURRENT JUDICIAL POWER. § 451. Thus far, in considering (in the last two sections) by whom the national municipal law may be applied, the ques tion of concurrent judicial power exercised by State courts has been presented as subordinate to that of concurrent legislative (juridical) State power as manifested by its three functions, in cluding the judicial. But there is another form in which the question of concurrent judicial power arises more distinctly. ' In the exposition given, in the second chapter, of those ele mentary principles which take effect as private international law, it was shown that the. tribunals of one national jurisdiction may recognize the effects (rights and obligations) created by laws which have OTiginated in the juridical will of a foreign possessor of sovereign power, when the persons come within that jurisdic tion who have sustained- relations caused by anterior subjection to those laws. By applying these principles, it might be held, in many cases, that the State courts would, in. the exercise of the judicial power of the several States, have authority to en force the laws of Congre'ss, (criminal laws, perhaps, being ex cepted,'') when the persons are within the territorial jurisdiction have no power, under a habeas corpus, to review or sit in error upon the judgment or process of the judicial officers of the United States actina within the jurisdiction com mitted to them, OS has sometimes been done ;" and held that the Stote courts hod no concurrent jurisdiction in these coses ; applying the rule with an assumption that tbe law of Congress, of 1850, in making the certificote of a commissioner or a judge of the United States, " conclusive evidence of the right of the person or persona in whose favor it is granted to remove such fugitive," and forbidding " all molestation of such person or persons by ony process issued by any court, judge, mogistrate, or other person whomsoever," must be recognized as constUutional by every State court ; tliat is, as sumed that the officers -were judicial and were " acting within the jurisdiction," which might, under the Constitution, be committed to them. The original warrant for the arrest of a negro os o fugitive from lobor, which occosioned the conflict of jurisdiction in this case, had been issued out of the circuit court. Judge Nelson, in his charge to a grond jury, in the city of New York, April, 1861. Blotchford's C. C. R. p. 641, denies that the State courts moy issue the writ to inquire mto the legality of the detention under color of this law, either on the ground that euch. detention is not warranted by the statute, or that the statute is unconstitutional; saying, " it is obvious that the existence of either power on the part of the State tri bunals would be fatal to tho outhority of tho Constitution, laws, and treaties of the genial government," referring to U. S. v. Peters, (Olmstead's case,) 5 Cranch, 116. The question whether tho State courts have this power of concurrently inquiring mto the cause of detention, is distinct from that of the power of the States to determine on the claim of the owner exclusively of ony authority exercised under laws of Con- giess. The State lows^ond judiciol decisions which ore hosed on such a view of the public law of the. United States ore to bo noticed in onother place. ^' Houston 1), Moore, 5 Wheaton, p. 24; Curtis' Comm. p. 171-175. This delicate question has been the subject of much juristical discussion. It is not easy to marshal the authorities. In favor of such concurrent judicial power seem CONCURRENT JUDICIAL POWER. 497 of the State, who, under those laws, have acquired rights or incurred obligations. That exercise of judicial power, by the tribunals of any one nation applying laws in a forum wherein those laws have no proper territorial extent, was derived from the presumption that such laws are jural, and, therefore, presumptively identified with the juridical wUl of the supreme power. in the forum, from whose appointment those tribunals derive their existence. But in laying a foundation for the exercise of judicial power by a State tribunal, in support of rights and obligations arising under the national municipal law, including the legislation of Congress, there is an additional reason for a recognition, on the part of the State tribunals, of the jural character of that legislation. This is, that it is based upon the Constitution, to which the people of each State is a consenting or constituent party, and that the laws or rules of action comprehended in the national muni cipal law have territorial and personal extent within the forum of State jurisdiction, independently of the principle of comity, as it has herein before been set forth. • § 452. This idea appears to be the foundation of the opinion of Judge Piatt, dissenting from the other judges of the Supreme Court of New York, in United States v. Lathrop, 17 Johnson, pp. 11-22 ; in which he refers to a passage in No. 82 of the Federalist, by HamUton, in which these principles of a universal jurisprudence and private international law are recognized ; " I am even of opinion that in every case in which they [the State courts] were not expressly excluded by the future acts of the national legislature, they wiU, of course, take cognizance of the to be, the majority of tho court in Houston v. Moore, 6 Wheaton, 1 ; Federalist, No. 82 ; 1 Kent, 398-400 ; Rawle on Const, ch. xx, note ; Judge Piatt, dissenting, in U. S. v. Lathrop, 1 Johns. R. 5 ; Buckwalter o. U. S., 11 Serg. ond Rowle, 196. Against the exercise of such power. Story and Johnson, Justices, dissenting, in Houston v. Moore, 6 Wheaton, 32, 47 j Story Comm. § 1761 ; Story J., in Martm v. Hunter, 1 Wheaton, 337; Commonw. v. Feely, Virginia Coses, 321 ; Ely v. Peck, 7 Conn. R. 239 ; U. S. v. CampbeU, 6 HaU's Law Journ. 113, U. S. ». Lathrop, 17 Johns. 6, 7, a suit for penalty under act of Congress conferring jurisdiction on Stote court. In U. S. v. Dodge, 14 Johnson, on the bond of o U. S. coUector, where jurisdiction was given by an act of Congress to State courts, the suit was sustained. See comparison of authorities in Sergeant's Const. Low. ch. 27 ; Rowle on Const. cL 20, 24 ; 1 Kent's Oomm. 396-404, Lect. 18 ; Curtis' Comm. §§ 134-144. 32 498 CONCURRENT JUDICIAL POWER. causes to which those acts may give birth. This I infer from the nature of judiciary power and from the general genius of the system, [i. e., American Constitution.] The judiciary power of every government looks beyond its own local or municipal laws, and in civU cases, lays hold of aU subjects of Utigation between parties within the jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national Government, as they truly are, in the Ught of kindred systems and as parts of one whole, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in aU cases arising under the laws of the Union, where it was not expressly pro hibited." ' § 453. The general principles from wluch a concurrent juris diction in the State courts, it is here supposed, may be derived, would appear to support that jurisdiction over persons or things witlun the territorial limits of the StatQ forum, in aU cases. But it seems to be generaUy admitted that the con current judicial power is, at least, apphcable where the action and relations affected by the national law are such as " origi nally" or " previous to the Constitution" were within the juris diction of the State ; that is, its legislative or juridical power, including the judicial power of its courts." § 454. It has generaUy been admitted that not every grant ' And see Stor/s Comm. §§ 1751-1753 ; Duponceau on Jurisd. p. 26. s Ante, § 447; 1 Kenfs Comm. 397; Curtis' Comm. §§ 119-122; Story's Comm. § 1751, and in Martin v. Hunter, 1 Wheoton, 337 ; " and it can only be in tliose cases, where, previous to the Constitution, State tribunals possessed jurisdiction independent of national authority that they con now constitutionaUy exercise a concurrent juris diction." FederaUst, No. 82, " Bnt this doctrine of concuiTont jurisdiction is oidy cleorly apphcable to those descriptions of causes of wliich the Stote courts hove previous cognizonce. It is not equoUy evident in relation to coses which moy grow out of, and be peculiar to, the Constitution to be estobUshed ; for not to aUow the State courts a right of jurisdiction in such coses, con hardly be considered as the abridgment of a pre-existmg authority," cited hi Story's Conuu. § 1752. In anoilier sentence of the some number of the Federolist the expression is used, " the State courts wiU retain the jurisdiction they now have unless," &o. Most of the opimons which are agamst the exercise of the State power in enforcing the penol law of tho U. S., {ante, p. 497, note,) may have been based on this distinction. _Compare Curtis' Comm. § 187. THE STATES MAY RESTRICT IT. 499 of power to Congress to legislate, in reference to certain objects, requires the inference that such power is either exclusive or may at any time be made so by Congress.' In some of the cases, while it was admitted that there might be a legislative power in the States in reference to many subjects which the Constitution places witliin the reach of the national organ of legislation, it has been further held that the actual legislation of Congress precluded the operation of all legislative aption on the part of the States in reference to the same subject matter." The doctrine, pushed to this extent, has always been veiy generally disputed. If taken Uterally or strictly, there can be no such thing as concurrent legislation, even if it can be said that there ' is such a thing as concurrent legislative power. But whatever may be the true doctrine as to the concurrent legislative power, the principles which would restrict it would not have equal force in Umiting the concurrent exercise of ju dicial power in applying rules which, having derived their ex istence from, or having originated in the national branch of powers and not in the State's powers, may still be assumed by the State's tribunals to be identified with the juridical ' wiU of the State. § 455. If the States, in their possession of sovereign powers, can hold the judicial function, in any degree, with reference to the national municipal law, yet, on the other hand, in consider ing whether their courts shaU exercise it, it must be supposed, (since there is no provision in the Constitution of the United States respecting the exercise of the judicial function of the States,) that the States may confine the jurisdiction of tribunals created by themselves within any hmits they may see fit. They ' 1 Kent, 388 ; Houston v. Moore, 6 Wheaton, 49. ' 1 Kent's Comm. 391 ; Story's Comm. §§ 441-447 ; Sturges v. Crowninshield, 4 Wheaton, 193 ; Steamboat Co. v. Livmgston, 3 Cowen, 714, 716 ; Jack v. Martin, 12 Wendell, 817, 318, 320; Prigg v. Pennsylvania, 16 Peters, 642, against concurrent le gislotive power in the Stotes relative to the execution of the constitutional provision for the delivery of fugitive sloves, held by Justices Story, Boldwin, Wayne, and McLeon . Taney, C. J., and Justices Thompson and Daniel, dissenting. I ' "The use o( juridical, as o more comprehensive term than legislative, must be ad mitted in explaining how the judiciol power of the Stotes moy he exercised in ref erence to action and relations determined by the national branch of powers, and in respect to which the State cannot, or has not exercised its legislative power concur rently. 500 DISTINCTION OF COURTS. might then allow their judicial officers to administer only that law which rests upon State authority solely, or restrict them from exercising jurisdiction in applying any part of the national law or some specific parts of that law : ' though the State courts would still, in any case, as was above said, be obliged to apply the national law so far as it may be public law or the evidence of political powers and obligations. § 456. But if the above argument derived from principle is correct, the State courts will, unless expressly prohibited by the State, have jurisdiction to apply the national law when that law affects persons and things, within their forum of jurisdiction, in reference to circumstances (action and relations) which would be within the State's legislative or juridical power, " before the Constitution," or, if the present national or federative organiza tion did not exist ; provided the State courts are such as hold, or are invested with, the ordinary or general judicial power of the State, or are tribunals " proceeding according to the course of common law ;" or, negatively, are not courts of limited or ' Sergeant's Const. Law, Ist ed. p. 274 ; Story's Comm. § 1756 ; 1 Kent's Comm. pp. 400-404, p. 402. " The doctrine seems to he admitted that Congress cannot compel a State court to entertain jurisdiction in any case ;" noting Dewey, J., Mass. Supreme C, Low Reporter, April, 1846, Word v. Jenkins ; "The doctrine now is, thot Congress connot compel a State court to take any jurisdiction. But where the State court has jurisdiction otherwise, it is no objection to its executing it that the rights arise under a statute of the United States." Story, J., in Prigg v. Commonw. of Pennsylvania, 16 Peters, 614, " since every State is perfectly competent and has the exclusive riglit to prescribe the remedies in its own judicial tribunals, to Umit the time as well as the mode of redress, and to deny juriBdiotiou over all cases which its own policy and its own institutions either prohibit or discountenance." Mr. Justice McLean, iu the same cose, p. 665, assuming that the Governors of tlie States, in delivering up fugitives from justice, when demanded by other States, in the manner prescribed by the act of Congress relating to such persons, de rive their power io do so from the U, S. and not from the State, says, " Now, if Con gress may by legislation require this duty to be performed by tho highest State officer, may they not, on the same principle, require appropriate duties in regard to tbe sur render of fugitives from labor, by other State officers ? Over these subjects the con stitutional power is the same." The term, " appropriate duties," is apparently used in the senso of duties appropriate to the functions held by tho State officers ; and since, on pp. 667, 669, Judge McLean speaks of the State officers to whom ho refers as being "judiciol officers," it would seem to be his opinion either that persons clotliod with the judiciol function ofthe State wero bound to exercise it, to corry out o law of Congress when required by the national legislature, or olso that by some principle of public low such persons were bound to accept tho judiciol function derived from the United States. Toney, C. J., said in some cose, p. 030, "The State officers mentioned in tho law ore not bound to execute tho duties imposed upon thom by Congress, unloss they choose to do so, or are required by a law of the State ; and tli4 State legislature has tlio power, if it thinks proper, to prohibit thom." COURTS OF ORDINARY JURISDICTION. 501 special jurisdiction, not proceeding according to the course of common law. ' § 457. In such case it may not only be within the power, but also be within the duty of the State courts to apply the national law, whether found in the Constitution taking effect as private law, or derived from the legislative powers of Con gress.' ' Jurisdiction is here called general or ordinary in reference to the possession of the judical function for the enforcement of tho entire body of rules whose authority rests on tho juridical will of the sovereign power,— the law of the lond, the municipol law. Somo courts having such gonornl or ordinary jurisdiction may still be limited Or inferior courts, in reference to the fact of their holding this function in and for a lim ited forum or geographical jurisdiction, a subdivision of the entire territorial dominion of the sovereignty, whose low they apply, and in reference to the existence of higher courts to which an appeal m.-iy bo made from their judgments. For a distinction of such courts, see Kempe's lessee v. Kennedy, 6 Cranch, 185 ; Murray v. Fitzpatrick, 17 WendeU, 483, ond coses there cited. That, in relying on o judicial decision, the juris- ' diction of this class of courts is presumed, while that of courts of special jurisdiction must be traced bock to some enabling act of the sovereign, see Jones v. Reed, 1 Johns. Coses, 20, ond 1 Caines' R. 594, note. WeUs v. Newkirk, 1 Johns. Cases, 228 ; Bloom ' V. Burdick, 1 HiU, 139. And compare CUnton, Senator, m Yotes ii. Lansing, 9 Johnson R. 431-437. ' 1 Kent's Comm. 397-400 ; Word v. Maim, Supr. Court of Mass. ; Low Reporter, March, 1847. _ By the act of Congress, of 12 Feb. 1793, § 3, the judges of the U. S. Circuit and District Courts and certain persons therein described as " any magistrate of o county, city, or town corporate," are authorized to perform certain octs in reference to persons claimed os fugitives from lobor. In Prigg's case, 16 Peters', ,639, the question de cided was of the validity of o statute of Pennsylvonia offecting persons to whom that law of Congress applied ; ond, as preliminary to the question of the force of the State law, the question ofthe power of Congress and the constitutionality of the law of 1793 was examined. To this extent, of recognizing the power of Congress and its having been exercised in such a manner as to exclude the operotion of State legislation, (a-nte, § 462,) the constitutionoUty of the law of 1793 was affirmed. Under the circumstances of thot cose, no right, power, or authority derived from ony such " State magistrate was claimed for or relied upon by any of the parties. The only members of tbe court who, in their several opinions, refer to the action of " State magistrates" under the act were Mr. Justice Story, deUvcring tho Opinion of tho Court, p. 622, and saying, that the constitutionality of the act, in its leaduig provisions, wos free from reasonable doubt or difficulty " with the exception of the part which confers outhority on State magis trates," but that no doubt wos entertoined that they might, if they chose, exercise that authority, unless prohibited by State legislation ; Chief Justice Taney, p. 630, saying, " The State officers montioned oro not bound to execute the duties impcsed upon them by Congress, unless thoy cliooso to do so, or are required to do so by the law of the State ; and the State legislature has the power, if it thinks proper, to prohibit thern ;" ond Mr. Ju.stice McLean, p. 604, 665, who, alone, held that the duty might be im posed on the State officers by Congress. But it would appear, from every thing said by the Justices on this point, that they held thot, whotever power should be exercised by the Stote officers in the supposed cases, would be the concurrent judicial power of the State. Tho author may ronsonobly hesitate in making this assertion, in view of the opinion ofthe Supreme Court of Mossochusetts, pronounced by Chief Justice Shaw, in Sims' case, 7 Cushing, 286, who, after noticing, p. 302, that it had in that case been " insisted that the Commissioner, before whom the petitioner [the fugitive] hod been brought, is in the exercise of judiciol powers not warranted by the Constitution because not commis- 502 POWER ONLY WITHIN THE STATE. § 458.' This concurrent judicial power in the State courts would, it wiU be noticed, be Umited, even while applying a rule of the national municipal law, by the same political conditions which Umit their judicial function in the application of local law. It wUl be operative only within the Umits of the State, whether the law applied is derived from the juridical authority of the United States or from that of the State. It is the ju dicial function of the United States only, which is equally au thoritative in aU parts of the dominion of the people of the United States,' and that this function cannot be exercised by the State court is a proposition directly deducible from the Constitution, aud there is no judicial decision which attempts to support a contrary doctrine." From these necessary hmitations of the extent of State ju dicial power, the rule of action which they thus concurrently apply will, although the same, in its origin and in its purpose sioned as a judge, nor holding his office during good behavior," orgued that Con gress, in the act of 1793, monifestly did not deem that the action of the State magistrates would be judicial in the premises ; and, in referring to the cases orising under that law as sustaining this doctrine, cited the obove opinion of Ithe Supreme Court of the U. S. as most conclusive, adding, p. 308, " In the only particular in which the constitutionality of the law of Congress, of Sept. 1850, is now called in question, that of 1793 was obnoxious to the same objections, that of authorizing a summary proceeding before officers and magistrates not qualified under the Consti tution to exercise the judiciol power of the general Government." The same view of the point decided in Prigg's case seems to have been adopted hy Judge Nelson, in his charge to the grand jury, Blatchford's Cir. 0. R. 643 ; Blinding to the objected unconstitutionality of the low of 1850 in its grant of powers to the U. S. Commissioners ; " It is sufficient answer to this suggestion that the same power wos conferred upon State magistrates by the act of 1793, and which, in the cose of Prigg, was held to be constitutional by the only tribunal competent under the Consti tution to decide that question. No doubt wos entertained by any of the judges in that case that these magistrates had power to act, if not forbidden by the State author ities." It seems to hove been assumed, by these authorities, tliat the court in Prigg's case intended to sanction the application of the law of 1793, by some persons who could neither hold the judicial power of the U. S., (post, § 460,) nor exercise tho concurrent judicial power of o Stote, (ante, § 456.) It wUl, in a later portion of this work, be urged thot this assumption is unwarrantable : 1st, because it is, ot leost, doubtful whether the action of any such person under that law was involved in any of tho earUer cases which were approved by the court iu Prigg's case, (16 Peters', 621,) and the court does not otherwise define the "State' magistrates," whose action it sanctions; and, 2d, be cause the court in that case speaks of such action only as an exercise of iudicial power. ' Ante, g§ 876, 379. "^ " But Judge Crawford, of tho Supremo Court of Wisconsin, in the matter of Bootli, 8 Wisconsin R. p. 81, 82, dissenting from tho majority of the court in respect to the constitutionality of tho law of 1850, seems to have held that, in maintaining the action of State magi.strates under tho law of 1793, and of U. S. Commissioners under that of 1 850, the doctrine is involved, that they may constitutionaUy exercise judicial power derived from the United States. SUBJECT TO NATIONAL JUDICIARY. 503 or direct effect on private persons, as that applied by the na tional judiciary, be essentially local in its authority and terri torial jurisdiction, and equivalent to a law derived from a dif ferent political Source, that is, to a local municipal law. This wiU certainly be so if, on the authorities, this concurrent appU cation of a national law by the State's judicial power is to be Umited to cases where the action and relations affected are such as were " originally" within the juridical power of the State, or such as may be within the concurrent legislative (juridical) power of the State, according to the standard already stated in considering the extent of that power. § 459. Though it should be admitted that a rule in reference to certain action and relations is supported both by the juridical authority of a State and that of the United States, and, there fore, as above held, may be applied by the judicial power ema nating from either ; yet, since it is supposed that the Consti tution assigns the power over such action and relations to the national Government, the judicial power of the State in this case of its concurrent exercise must be subject to that of the United States. The judgment of the State court, applying the national law in reference to such action, must always be subject to the na tional judiciary,' and if the law involved criminal punishment, the sentence of the State court might properly, it would seem, be annuUed by the pardoning power of the national executive.'' In this instance the national judiciary would control the State judiciary in the appUcation of private law : not, as in the instance before mentioned, (§ 448,) control the juridical action of the State by applying the Constitution as public law. § 460. With the consent of the State, from which they derive their existence and legal personality, and subject to the control of the judicial power vested in the national Government, the State ' Martin v. Hunter, 1 Wheaton, 337, 362; Federalist, No. 82; 1 Kent's Comm. 820, 896, 397 ; Const. Art. III. seo. 2, 1. "The judicial power shaU extend to all cases in law ond equity, arising under this Constitution, the laws of tho United States, and treaties made, or which shall be made under their authority." _ ^ ' See the difficulties suggested as to concurrent criminal jurisdiction, 1 Kents Comm. 404 ; Mattison v. the State, 3 Missouri II. 301. 504 APPOINTMENT OF JUDICIARY. courts might, it would appear, be invested with the judicial potoer of the United States in reference to persons and things within the Umits of their State jurisdictions and be considered inferior courts, such as are mentioned in the first section of the third Article of the Constitution ; if the tenure of office by the judges of all courts holding the judicial power of the United States were not so prescribed as to be inconsistent with its in vestiture in persons known or described as representatives of State powers.' A person holding the judicial power of a State might, apparently, be also appointed, in the manner prescribed in the Constitution, a judge of one of those courts in which the judicial power of the United States is to be invested ; in which case there would be two separate tribunals represented in liis person. But if the judicial power of the United States should be conferred on a person only in virtue of his official character derived from the State, or as being a State officer, his tenure of that judicial power would be dependent on the wiU of the State. Therefore, State judicial officers or magistrates cannot, as such, or in their public capacity, hold the judicial power of the United States to apply the national municipal law.° § 461. According to the first section of the third Article, the judicial power of the United States, whatever that may be, is to be invested " in one Supreme Court and in such inferior courts as Congress may ordain and establish." Judges of the Supreme Court must, according to the second section of the second Article, be appointed by the President and Senate. By ' Ai-t. HI. sect. 1. " The judicial power of the United States shaU be vested in ono supreme court and in such inferior courts as tho Congress may from time to time ordain and establish. Tho judges both of the supromo and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compeiiaation, which shall not be dimuiished during tlieir continuance in office." Art. n. sect. 2, (of the powers of the President) parag. 2. " He shall nominate and, by and with the advice and consent of the Senate, shaU appoint ambassadors, other public ministers, and consuls, judges of the supremo court, imd oil otlier officers of the United Stotes whoso appointmoiits oro not heroin otherwise provided for, and which shall be established by law. But the Congress may, by low, vest the oppointment, of such inferior officers as they thhik proper, in the President alone, iu the courts of law, or in the heads of departments." ' Martin a. Hunter, 1 Wheaton, 330. Story J. " Congress cannot vest any portion of the judicial power of the United States except in courts ordained and establisliod by itself." Story's Comm. g 1756; 1 Kent's Comm. 899 ; caso of Almeida, from 12 Niles' W. R. 115, 218 ; Pool and others, from Nat. Litelligencer, Nov. 10, aud Deo. 11, 1821, cited in Sergeant's Constitutional Low, 1st ed. 274. OF MINISTERIAL OFFICERS. 505 the various acts relative to the national judiciary the judges of the Supreme Court are severally the judges ofthe different Circuit Courts, the highest of the courts inferior to the Supreme Court. The Circuit Courts and the Supreme Court being distinct in their jurisdiction, although the same persons are judges in each.' The judges of the District Courts have been appointed in Uke manner by the President and Senate ; though, according to the language of the second section of the second Article, they might be otherwise appointed. The judges of these courts are under stood to hold office according to the terms of the first section of the third Article, — " The judges both of the supreme and infe rior courts shaU hold their offices during good behavior, and shaU, at stated times, receive for their services a compensation, which shaU not be diminished during their continuance in of fice."'' § 462. If the judicial power of a state is exercised only when its laws are applied by persons having the name of judge or ju dicial officer, performing their duties with that style and manner which iucludes times, terms, and places of action pub Ucly determined, with a permanent record by subordinate offi cers of that appUcation in its details, accessible to public in spection, it may be said that the judicial power of the United States has been vested by Congress only in courts whose judges hold their office according to the constitutional requirements. But if the nature of the judicial power is independent of the name or title of the official person exercising it, the times and places in which it is exercised, and the degree of solemnity with which it is surrounded, there is a question of the comparative ex tent of that power which, in the Constitution, is caUed the judicial power of the United States. Or, in other words, it being supposed that there is an administrative or ministerial appUcation of the national municipal law, as well as a judicial one, the inquiry must be made, how far the administration of the national municipal law can bo intrusted to persons who are not judges of courts, holding office with the constitutional quaU fication. ' Brightly's Digest, p. 124-126. See note on the opposite page. 606 OP MINISTERIAL OFFICERS. This inquiry is distinct from that question of the appUcation, by State judicial officers, of the national municipal law which has already been considered. § 463. In every state wherein the three functions of sov ereignty are divided or separately invested, those who exercise the executive and legislative functions have a power of applying the existing law as a coercive rule for private persons ; though it is herein supposed that, in a state wherein this division of func tions has a constitutional character and the Government exists under law, the Umits of the power so exercised must be subor dinate to the review of those who hold the judicial function.' In every state wherein the administration of justice is dis tinguished from the arbitrary exercise of poUtical power,' the ex ercise of the judicial function by courts or judges has required the concurrence of officers holding a kind of power which, ac cording to the use of terms among such states, is rather admin istrative or ministerial in its nature than judicial ; though aux- Uiary or ancUlary to the exercise of judicial power by others. Those who, under the Government of the United States, exer cise a discretion thus ancUlary to that of the courts, or of the judges holding the judicial power of the United States, may, undoubtedly, hold their office otherwise than in the manner prescribed for those judges, without any violation of the Consti tution. Since, wherever law is appUed under political authority to determine the action of private persons, there is a greater or less exercise of judgment on the part of some one invested with public authority, it is not always easy to distinguish the ad ministrative from the judicial power, or this latter from that ancUlary ministerial power which is connected with it. It is a question of public law, and the line of separation will be differ ently placed in states having different poUtical constitutions.' The rule of discrimination under the American Constitution must be found in the usages of states wherein the functions of ' Ante, 487. But see lessee of Livingston v. Moore, 7 Peters, 546-649, and p. 668, in Appendix ; 2 Brockenborough's R. 479, 480. " Ante, § 863. " On this subject see Bowyer's Universal Public Law, ch. xxv. WHAT IS JUDICIAL ACT. 507 sovereignty are divided, and especially in the antecedent usages of England, where they have the character of common law. § 464. An ordinary definition of the term judicial, is given by connecting it with the existence of some judge or court ; a judicial act is said to be one exercised or performed by a judge or court. But the question here being whether the act to be performed under the authority of the United States is that ju dicial power of the United States which may be vested only in a court whose judges hold office in accordance with the consti tutional requirement, the term judicial must be defined with out reference to the pubhc character or quaUty of the person performing the act : for his capacity is to be determined by the intrinsic nature of the act, not the nature of the act by the quality of the person.' A judicial act must, from the nature of law, be one in which the coercive authority of the law is made manifest — not in the original creation of rights and obligations between private persons, but in giving them real force by ancU lary rights or legal remedies. It is an act of judgment or deci sion having reference to the elements oi jurisdiction — a coercive superior, and a certain geographical territory and its inhabitants.' Not every act done by a public officer in reference to the ex istence of a law is a judicial act, or judgment ; otherwise the whole mechanism of a republican or constitutional Government' might be caUed judicial. In interpreting the Constitution, as before shown, the previous juridical use of words by the pos sessors of sovereign power who established the Constitution must be referred to ; and, as used by them in the technical language of EngUsh common law, a judgment or judicial act not only im- phes a law and persons to be affected by it, but a suspension or determination of that ordinary choice of action which those per sons might have had in relation to it,* and a coercive per formance or aUowance, in reference to some Umited territorial ' 3 Bl. Comm. 23. " A court is defined to be a place whore justice is judiciaUy administered:" noting Co. Litt. 68. Iloro the meaning o( judicially mmt be oscor- tained as preliminary to thot of court or judge. ' Ante, % 26. ' » ^«te, §§ 367-864. * That is, to exercise the natural power of choice and action before the law has been applied as a coe " Ue, ante, § 2. 508 ADMINISTRATIVE LAW. jurisdiction, of that action the right to which had been contro verted ; so that the relation in which that right is a constituent part is actuaUy estabUshed in and for a certain forum or juris diction ; this determination, decision, or judgment being there after supported by the power of the state, as its expressed wUl in reference to the persons and things involved in that relation. § 465. In the judiciary department of the Government of the United States a number of officers are included whose du ties are not judicial, though they involve the appUcation of law to a certain condition of persons and things. Such, without question, is the action of the clerks of the courts, and of the United States Commissioners and State justices of the peace, under the earUer statutes defining their powers.' Their office is ministerial, and subordinate to the duties of the judges of the several courts. In the exercise of their ordinary power they do not determine or enforce a legal relation, with its rights and ob Ugations, in reference to a definite jurisdiction, as above de scribed ; but only certain temporary relations or remedial rights, ancUlary to the action of the judges of the courts in their exer cise of judicial power.' § 466. This interpretation of the tevm. judicial power, in the Constitution, must also be made with reference to distinctions in the nature of laws resting on the authority of the United States. For as there are ministerial or executive officers in every state, altogether distinct from its judiciary, there is a ' For tlie various Acts respecting tlieu: powers ond duties, see titles Commissimtera and Justices qf tite Peace, iu Brightly's Digest. The opinion prevoils with the public ond the legal profession that tho action of the U. S. Commissioners in executing the provisions of the fugitive slave law of 1860, has been determined not to be an exercise of the judicial power of the U. S., by on over whelming weight of judicial decision. The question whetlier such action is or is not an exercise of the judicial fvmction, is to be considered in a later portion of tliis treatise. But it may here be observed with reference to the existence of judicial opinion sup porting tlie negative, (and without questioning tlio existence of judiciol authority af firming the constitutionoUty of that statute in other respects,) that it oppeors to rest, olmost entirely, npon the correctness of thot view of the opmion of the Supreme Court, in Prigg's cose, os to the power of State magistrates under the low of 1793, which was taken by Chief Justice Show and Mr. Justice Nelson, as has been oheady noted. Ante, p. 601, note. ' See the older coses of Almeida and Rhodes, in 12 NUes' Weekly Register: ex parte Poole, &c., Nat. InteU. Nov. 10, Dec. 11, 1821, cited m Serjeant's Const. Law, 1st ed. p. 274 ' i fa APPLIED INTERNATIONAL LAW. 509 particular personal law for the regulation of such ministerial in struments of the state ; the administration of which is distinct from that of the ordinary territorial law. Thus there is a rule of action for those by whom the ordinary operation and admin istration ofthe Government is continuously maintained.' And it appears that the power of pronouncing judgment under the mUitary and naval laws of the United States is not that judicial power of the United States which is referred to in the third Ar ticle of the Constitution. For although judicial in its nature, and performed under the authority of the United States, it has been by the constant usage of all nations exceptional to the civil administration of justice ; though, in England and America, subordinate to it where the rights of persons under civil laws, as distinguished from military, are concerned.' § 467. So there is an important class of legal relations (i. e., relations composed of legal rights and obligations) which arise out of that international law which has more ofthe character of pubhc than of private law, and which, as such, may be distinguished from the ordinary positive or municipal law. From the exterior character of this law, that is, from the fact that it must operate in places not included within the territorial forum of ordinary ju dicial tribunals, the rights and obligations incident to these rela tions must be coercively maintained by the executive or adroin- istrative function of the Government, acting independently of the judicial function, in a greater or less degree ; a degree deter mined partly by the general rules observed by civUized states in reference to such objects of human interest and action as cannot, from their nature, be distinctly divided among and in cluded under the limits of different states,' and partly by na tional customary law derived from the action of the predecessors of the existing Government in similar circumstances ; each ' In the French, Droit gouvememental; German, Regierungs Reclii, including police law and the lows of financial economy. Droit financier, cameral und Finanzrecht, jus camerale; see Falck's Juristiche Encycl. §§ 41-44. And, in popular or republican governments, those rules by which the existence, continuance, and action of legislative bodies ore determined. See Cushing's Low of Legislative Assemblies, Introduction. ' See 1 Kenfs Comm. 341, note ; U. S. v. Mackenzie, Judge Betts' decision, U. S. District Court, in 1 New York Legal Observer, 371. ' Ante, § 10. 510 APPLIED INTERNATIONAL LAW. nation having in this respect a pecuUar law,' a jus proprium, differing more or less froni that of other nations, according to the greater or less degree in which it may be historically con nected with them, or in which it may have with them a oom- I munity of origin and language, and a poUtical affinity.* ' Though always supposed to conform to a general low prevaUing among aU na tions, pubUc intemational law, the " law of nations" in that sense ; and by English and American jnrists it is rarely distinguished by any other name. Compare ante, p. 88, note. By the French writers it is designated droit gouvememental exterieur ; by the Germans, dusseres Regierungsrecht, or dusseres jStaatsrecht ; Falck's Jurist. Ency. §§ 45. 135. ' Thus, whether an administrative Government (not identical with the ultimate possessor of sovereign power) may or moy not ot its discretion deUver, to the custody of foreign states, persons who ore demanded as obnoxious to the punitory law of such states ; or, if it may so surrender such persons, whether the act requires the co-oper ation of two or more of the three functions of power, when separately invested, are questions not determinable by public intemational law alone, simply as a general rule among nations, but depend very much ou the internal puhUo law of the state and of its form' of government; which, therefore, must always be taken into account in the appUcotion of an intemational treaty for such extradition or rendition. Falck's Jnrist. Encycl. § 136, Fr. ed. " On distingue aveo raison, dn droit des gens positif de chaque Itat particuUer, le droit des gens positif universel, attendu qu'on pent apercevoir, ou moins entre les peuples qui entretiennent ensemble beaucoup de relations, un accord sux les regies de droit positif aux-queUes ils couforment leurs ac tions et d'aprfes lesqueUes ils veuleut qu'eUas soient jugfies." CHAPTER XVI. THE LOCAL MUNICIPAL LAWS OF THE UNITED STATES, AF FECTING CONDITIONS OF FREEDOM AND ITS CONTRARIES, CONSIDERED IN CONNECTION WITH PRINCIPLES OP PUBLIC AND PRIVATE LAW WHICH HAVE BEEN STATED IN PREVIOUS CHAP TERS. § 468. Eeference has already been made, in the eleventh chapter,' to the fact that at the date of the Eevolution the geographical Umits of the original colonies were not definitively settled. The present Umits of the older thirteen States and of the States Kentucky, Vermont, and Maine, were determined by various agreements between the States, to which it is not ne cessary to refer more particularly, and by the cession or grant of portions of the territory claimed by them, or by some of them, to the Confederation or to the United States in their national or federal capacity. These older States wiU herein be taken to have had their present boundaries from the period of the sepa ration of the colonies from the British empire. The effect of the different cessions of territory made by some of those States to the United States, in determining the existence of local laws in and for certain Umits, wUl be considered in the history of the laws of the Territorial jurisdictions and new States afterwards formed in the territory ceded. § 469. It has already been shown that the people, who (under the name of " the people of the United States" m the preamble to the Constitution) appear as the constituting and delegating Ante, % 347. 512 THE PEOPLE OF THE STATES. person, and the people who, in the tenth Article of the Amend ments, are declared to be, in the alternative with the States, the possessor, by reservation, of the powers not granted to the na tional Government, are of necessity to be recognized as already existing in the form, organization, and poUtical personality of the people of " several States," although having, antecedently to the Constitution, a national organization and integral poUtical personality. The existence of the poUtical people of each sev eral State is, therefore, not a result of the Constitution, (as of a law in the primary sense,) but only a fact proved or asserted by it, (as by a law in the secondary meaning of the term.) ' And, in accordance with the view which is herein before taken of the nature of the Constitution of the United States and of the meaning of the term law when spoken of as determining the actual investiture of sovereignty, the supreme and independent powers which, according to that Constitution, are vested in the several States or the several pohtical people of those States are not taken to be held by such States or people under a law in the strict sense contained in the Constitution ; but that pos session must be considered antecedent to law, in the sense of a rule, and co-ordinate with the possession of other sovereign powers by the same States, or the people of the same States, united. The Constitution, in determming this relation also, being a law in the secondary sense only, the statement or evi dence of an existing fact. Though in reference to persons who are the instruments or the subjects of that power, it has the effect of law in the primary sense, or of a rule of action. § 470. As, therefore, the possession by the united people of those powers which in the Constitution are granted to the na tional Government is a fact underlying the national municipal law, it is m Uke manner the first or basal principle of the local law of each of the several States of the Union that the people thereof, as a political personality, pre-existent to the State Gov ernment or the organized instrument of that sovereignty, are the actual continuing and original possessors of that separate share of sovereignty spoken of in the Constitution of the United ' Ante, §§ 330-346. POLITICAL PEOPLE OF THE STATES. 513 States as being " reserved to the States or to the people." As the political existence of the people of each State is not caused by the Constitution of the United States, neither is the posses sion of those powers by that people an effect of the same ; neither fact being established by it for the future ; unless the guarantee for a republican government ' has the effect of secur ing such a popular or public (national), as opposed to private,' investiture of the political sovereignty to be exercised severally in such State over persons and things therein. § 471. Although the fact of the possession of this share of powers by the several people of one of the States is thus a fact antecedent to the recognition of the positive law of that State, its local municipal' law, yet the mode in which individual in habitants are to participate in that sovereignty and be indi vidual members of the political people, (which is pohtical lib erty considered as the right of private persons, according to previous definition,*) is the consequence of a rule of action made positive law by the will of that political integer, the political people of the State. Which law is private law, in respect to its effect upon natural persons, though pubUc law in its relation to the existence of the State. § 472. In each State of the Union, on the assumption of political sovereignty by the confederated colonies in the Revo lution, the laws determining the actual constitution or compo sition of the pohtical people of the colony continued, by the very fact of the assumption of independent supreme power by the people of the United States, and were established in the successful maintenance of that assumption.' ' Ante, § 424. ' Ante, § 364 and note. ' Municipal law of the State, meaning that law which is both internal and inter national in personal extent, and which, in its hind, is more properly called national, as derived from the exercise of independent sovereign power such os belongs to stotes or nations, ante, 8 9. But, to ovoid confounding it with thot law which is herein called national from its origin in the will of tho United Stotes as an integral nation or stote, the word municipal is here used for the State low. Comporo a-nte, p. 222, note. * Ante, § 352. • Ante, §§ 335-346. The people of the U. S. ore primarily known as the people of the several States {ante, § 343). If, tiierefore, the doctrine of the social compact has ever been realized in tlie political history of this country, it must have been in the existence of some several State or States. But neither the history of the States nor that of the Union exliibits ony Ulustration of the compact which might not, with equal 33 514 BASIS OP STATE GOVERNMENTS. § 473. The law of poUtical rights, or of the political liberty of private persons, is the fundamental law of any state wherein sovereignty is a public or popular (national) right, as contrasted with private right, and the essential fact of its constitution, whether written or unwritten.' In the several States of the Union this law, of the possession of poUtical Uberty by private persons, has been determined by the same acts by which Gov ernments, distinct from and subordinate to the poUtical people of such State, have been founded, formed, or constituted. And, from the mode of existence of that *' people of the United States," which established the national Constitution, the pos session of political liberty by private persons is, in reference to the sovereign powers which are, in each State, held by that people with national extent or for the purposes of their national (federal) existence, determined by the same acts. In other words, the laws, which in the several States determine the in dividuals composing the poUtical people of each State, determine also the composition of the political people of the United States acting as one, or so far as they are one people or integral body. § 474. In all the existing States of the American Union the poUtical people of each have founded Governments for the ad ministration of their share of sovereign powers, delegating to those Governments, with limitations, the powers of the State or propriety, be called a usurpation (ante, p. 120, note 2). Using the metaphysical dis tinction between an idea of the reason and a conception of the understauding, it may be said: "Reflect on on originol social contract, os an event or historical fact, and its gross improbability, not to say impossibility, will stare you in the face. But an ever origmating !;ocial contract as an idea, which exists and works contiuuoUy and efSca- ciously in the moral being of every free citizen, though in the greater number nncon- soiously, or with o dim and confused consciousness, — what o power it is !" Coleridge's Literary Remains, vol. iii. p, 34, in note to the followhig from Hooker's Epclesiastical PoUty, c. X. 8, p. 308 : " Of this point, therefore, wo are to note, that sitli men natu rally have no free and perfect power to command whole politic multitudes of men, therefore utterly without our consent we could in such sort be ot no iiian's command ment living. And to be commanded we do consent, when that society whereof we are part, hath at any time before consented, witiiout revoking the same after by the Uke universal agreement. Wherefore, as any man's deed past is good as long as himself oontinueth, so the act of a public society of men done five limidred years sithence stondeth os theirs who presently ore of the some societies, because corporations are immortal ; we yere then olive in our predecessors,- ond thoy in thoir successors do Uve still. Lows therefore humon, of what kind soever, ore available by consent." And see Coleridge On the Constitution of tite Church arul Slate according to the Idea of each, ch. i. ' Ante, §. 855. LIBERTY UNDER STATE GOVERNMENTS. 615 people ; the limitation of the power of the Government being made in written Constitutions, both by absolute reservations of power and by prescribing forms, in which only the powers granted shall be exercised. The Constitutions of the several States, like that of the United States, are evidence of the fact that the people of those States hold the supreme power, and have the same character of public and private law (in the primary- sense of a rule) determining the political liberties of private persons, because they have rights secured to them thereby as individual members of the integral body-politic. ' § 475. The modal existence of the sovereignty of a state and the form of its instrumental government being, essentially, its constitution, and these State Governments being founded on the political rights of individuals, who, as natural persons are also subject to the Government of the State, these Govern ments are republican, according to the definition before given.' Although the meaning of the term in the Constitution of the United States has never been judiciaUy determined, yet, since no appeal has hitherto been made to the Government of the United States, under that guarantee, from ahy quarter,' it is to be presumed that all the State Governments have a repub hcan form. ¦ § 476. There being then in aU the States a law, proceeding from the ultimately sovereign people, estabhshing a Government distinct from and subordinate to that sovereign, that freedom of action which has herein before been called social or civil liberty may also have, in the local law of each State, a constitutional basis ; or, by being acknowledged' or established by the author ity which constitutes the Government, may be independent of the power held by the latter. § 477. When the powers held by the national Government ' Ante, g 359. ' Ante, g§ 355-357. ' That is, no direct oppeal to the odministrntion. There ore many publications by private persons, singly or ossociated, appealing to public sentiment, in which it is held that the holding of slaves is now Ulcgol in every one of the States, because contrary to natiohal low contained in this ond otlier provisions of the Constitutioii ; see the Un- constitutionaUty of Slavery, by Lysander Spooner, p. 105 ; Abolition Documents,No. 2, containing o speech in House of Rep. April 4, 1856, by Mr. Granger, of New York, among many other pubUcations of " anti-slavery" associations. 516 EXTENT OF THE STATE POWER. and those possessed by the several States, or by the people of each respectively, are to be discriminated in reference to their possible effect upon civU Uberty, there is this very important difference between them, that the powers of the first are ascer tained by their being distinctly and separately enumerated in the Constitution of the United States, and its aUotted share of supreme powers consists only in those specified and such as are necessarily concomitant in order to render them operative. These powers, therefore, being granted in words having a pre cise and ascertained legal meaning, their boundaries may be defined with some degree of certainty. But the powers which, according to the evidence of the same instrument, are vested in the States or the people of the States severaUy, are described by way of residue, or reservation ; or, as being all sovereign state power not granted to the national Government nor prohibited to the States. § 478. It was herein before considered a necessary judicial doctrine and the first principle of positive law, (the subject of jurisprudence,) that sovereign power may always ordain that to be law which it has the physical force to make a coercive rule. ' ' Ante § 15. Since the distribution ofthe sum of powers (inherent in civil society and separately held by each independent nation or stoto) which ore to be exercised in each State ofthe Union, is known by the delegation of specified powers to the national Government, the proposition in the text is more immediately connected with the local municipal laws than with tlio national inuiiicipul law of tho U. S. It is hero as sumed as axiomatic ; no other proof being attempted than that offered in the first chapter, so far as that may show its hirmony with other principles of general jurLs- prudence.- That there are many persons occupying distinguished social and politicol positions in this country, who hold that o condition of slavery, whether chottel slovery or the involuntary sei'vitude of a legal person, is not, cannot be, and never has been lawful or legal, is not disputed. But they do not, for that reason alone, constitute ju ridical authority, nor ore they juristical authority, if the doctrine advocated involves a denial of the fundamental principle of all positivo law. It will not be attempted to select, fram the writings of such persons, any as being of more authority than others, But among them Mr. (Senator) Seward's will be allowed a distinguished position ; and, in illustration of sueh opinions, reference may be mode to his Works, particulnrly vol. i. pp. 66, 71, 80, 312, 494, 514. Such assertions may bo perfectly unanswerable, because they are stated as a priori principles requiring uo proof; or, the only proof is founded on un assumption that the author's idea of right is the state's conception of a jural rule, regula juris. Iu this respect they ore neither better nor worse than propo sitions diametrically contradictory, such os ore sometimes put forth by defenders of negro slavery. Compare the writings of ChonccUor Harper, Governor Hammond, Dr. Sims, aud Professor Dew, in a publication entitled. The Pro-slavery Argument, 12mo. PliHo. 1856. These writers have ratiier tho better, in tills at least, that tliey do ill some degi'ee recognize a standard of right derived a posteriori, and independeut of their individual moral judgment, and profess to find it in the history of civil societies. POWER OF STATE GOVERNMENTS. 517 But it was also insisted that there may be such a recognition of a moral rule for states or nations, that it must always be ju dicially presumed to be the constant wiU of the sovereign power, until positively repudiated by it. ' If it were supposed that a constituted Government could receive from the sovereign people, by grant, the whole of their power over each subject person or thing, then the Govelnment might, as sovereign, repudiate all former restrictions acknow ledged by the sovereign people, its creator and predecessor. But since by the fundamental law (law in the secondary sense) of each State of the Union the lUtimate sovereignty of the people confessedly subsists as fully as at the time of the original con stitution of the Government, if any abnegations of power on the part of the people existed at the time of the creation of the Government, they would still remain as the expressed will of the ultimate sovereign and limit the power of the administrative instrument. Upon the supposition then, that in a state wherein the su preme power is publicly or popularly (nationaUy) invested, the organized Government may hold, by representation, all the power, belonging to the political sovereign creating it, which is not necessarily withheld by the fact of its subordinate existence, it is first of all important, for ascertaining the power of the sev eral State Governments to affect civU liberty, to determine whether there are any principles, besides the laiu contained in the Constitution of the United States, which can be taken to be a moral rule restraining the action of the ultimate sovereignty in any of those States or in the people thereof, and, therefore. Whether their induction is correct is onother question. In a misceUany, entitled. Leisure Labors, by Joseph B. Cobb, Esq. 12mo. New York, 1858, it is asserted, p. 360, not only that neither the national nor any State Government can abolish slavery m any local jurisdiction of the JU. S., but even, pp. 367, 387, that in Greece and Rome the government could not (i. e., had not the political power to) " destroy the relation of master and slove, or deprive the first of the labor and value of tiie lost." From the longuage of Mr. Justice Catron, in Dred Scott's case, 19 Howard, 519, it might be inferred that in his view man is properly described as property, or tiint under tho term property men, as well as other things, ore included ; and that o freeman is well defined as a man owned by himself.' " The plaintiff [Scott] claims to have, ac quired property in himself, and became free by being kept in lUinois durmg two yearn." , 'Ante, pp. 460, 46L 518 POWER OF STATE GOVERNMENTS. necessarUy binding on their several subordinate or constituted Governments. 4 § 479. But where any administrative Government subsists under a form determined by law, properly so called it is evident that it cannot itself wield the whole of sovereign state power, one of whose characteristics is to be exercised in any form or mode fts possessor may choose to employ. ' In each State of the Union there is such a Government, acknowledged to subsist by the wUl of the sovereign people thereof, or to be subject to the pubhc law creating it. So far as civU Uberty consists in being controlled only by known laws proceeding from rightftil authority, it is secured under each State Government, as under the Government of the United States, by those provisions of the public law which separate the functions of power and prescribe the forms of legislation.' § 480. In most of the older fifteen States a written Consti tution of Government replacing the former colonial public law, and expressly founded on the assertion of the existence of a sov ereignty in the people of the State, distinct from and superior to the powers exercised by the Government, was established during the revolutionary period, or before the establishment of the existing Constitution of the United States. But in two, viz., Connecticut aud Rhode Island, while the people were ac knowledged by the acts of the local legislative body, as well as in the formation of the national Constitution, to be the actual possessors of sovereignty, the form of the local Government re mained such as it had been under the colonial charters, untU a much later period, there being no specific acts of assumption of sovereignty by the political people of the former colony in any delegation of powers to newly constituted State Governments. In these States, however, the popular investiture of local sovereignty had been more distinctly recognized, during tho co lonial period, than in the other provinces. In these States, therefore, anterior to the adoption of a written State Constitution, the distinction between the power * Ante, p. 424. » Ante, g 363. 2 Curtis' Hist. Cous. 8. Wynehamer agst. The People, 3 Kernon, 391. POWER OF STATE GOVERNMENTS. 519 of the State and that of the administrative Government may not have been so clearly defined as in others. The separate or residuary powers of the State or of its people under the national (federal) Constitution being held by its administrative Govern ment very much in the same manner as the sovereignty of the British empire is by parliament ; or, at least, as the local colo nial sovereignty claimed by the colonists had been held by the colonial Governments ;' there being no positive restriction of the legislature other than the anterior colonial legislative de clarations of rights, corresponding to the EngUsh BiU of Eights and the Great Charters.' There was, therefore, no visible re striction of the power of the legislatures of those States, during the period referred to, more than on that of the ultimately sov ereign people, except such as was found in the nature of its political form or mode of existence with the three functions of power separately invested.' § 481. But though this might be the strict view ofthe then existing constitution, in these instances, stUl it could never have been practicaUy held that the power of the legislative body was absolute over all private rights and relations, even where not controlled by the poUtical union with the other States. The common law of England, having a distinctly personal character as the law of individual rights,^ and the principles of civU Uberty proclaimed in the previous legislative history of the colony had, practically, the force of a written Constitution in restraining legislative discretion, and with greater distinctness than the common law of England in restraining parliament." ' Ante, § 131. ' Ante, g§ 129, 130. • • See the case of Wilkinson v. Leland ond others, 2 Peters, 627, where the powers of the legislature of Rhode Island, there then being no other Constitution than the Colonial Chorter, were considered. • Ante, § 137. , , , • Fletcher v. Peck, 6 Cronch, 135 ; MnrshoU, C. J., " It may weU be doubted whether the nature of society and of government does not prescribe some limits to the legislative power." Calder v. Bull, 3 DaUas, 387; Mr. Justice Chase, "I cannot sub scribe to the omnipotence of a State legislature or that it is absolute and mtliout control ; although its authority should not he expressly restrained by the Constitution or funda mental law of the State. The people of the United States erected their Constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their person* and property from violence. The put- 520 STATE CONSTITUTIONS. § 482. In each of the several States written Constitutions are now in existence, adopted by the political people of each, having the effect of private as weU as of pubUc law. The scope of legislative power in the local Government is, therefore, more definitely determined than during the colonial period ; though its extent must stiU be a question in many cases, since it is im possible to define it completely by any written mstrument, even if such instrument should be enlarged to the dimensions of a code. The judiciary of each State in deciding upon the consti tutional extent of the legislative power is obUged to refer, in all cases, to previously existing rules, affecting relations of private persons, as guides to the construction and interpretation of the poses for which men enter into society wiU determine the nature and terms of the socio/ compact; and as they are the foundation of the legislative power they will decide what are the proper objects of it. The nature and ends of legislative power will Umit the exercise of it. ' This fundamental principle flows from the very noture of our free Re publican governments, that no man should be compelled to do whot the lows do not require, nor to refrain from acts which the laws permit. There are acts which the Federal or State legislature cannot do without exceeding their autliority. There are certain vital principles in our free republican Governments, which wiU determine and overrule ou apparent and flagrant abuse of legislative power ; as to authorize manifest injustice by positive law ; or to take away that security for personal liberty or private property, for the protection whereof the Government was established. But an Act of the legislature (for I cannot call it a law) contrary to the great flrst principles of the social compact, cannot be considered a riglilful exercise of legislative authority. The obligation of a law in governments founded on express compact and on republican princijiles, must be determined by the nature of the power on which it is founded. A few instances," &c., &c. (Italicised as in Rep.) See also Wilkinson v. Leland, 2 Peters, 056 ; Dash v. Von Kleeck, 7 Johnson, 477 ; Goshen v. Stonington, 4 Conn. 225. To the contrary seem to be, Brodde v. Bramfield, 2 Watts and Serg. 285 ; Harvey V. Thomas, 10 Watts, 66 ; Senator Verphmk in Cochran v. Von Surloy, 20 Wendell, 381. See the opinions compared in E. Fitch Smith's Comm. ch. vii. Wynehomer v. The People, 3 Kernan, 891, Comstock, J., " I entertain no doubt tbat, aside from the speciol limitations of the Constitution, the legislature cannot exercise powers which ore in their nature essentially judiciol or executive. These ore by the Constitution distributed to other departments of the Government It is only the ' legislative power' which is vested in the Senate and Assembly. But where the Constitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and greot danger in attempting to define the limits of this power. Chief Justice Morshall sold, (Fletcher v. Peck, supra,) ' How for the power of giving the low may involve every other power in coses where the Constitution is silent, never hos been and perhaps never can be definitely stated.' That very emi nent judge felt the difiiculty ; but the danger was less apparent then than it is now, when theories alleged to be founded in natural reason or inalienoble rights, but sub versive of the just ond necessary powers of Government, attract the belief of consider able classes of men, and when too much reverence for government and law is certainly among tho least ofthe perils to which our institutions are exposed. I am reluctant to enter upon this field of inquiry, satisfied as I am that no rulo con bo laid down in terms which may not contain the germ of great mischief to society, by giving to private opinion and speculation a license to oppose themselves to tlie just and legitimate powers of Government." POWERS ORIGINAL IN THE STATES. 521 written Constitution itself ; and, therefore, in some degree, to recognize another law existing independently ofthe constituted le gislature. It will always be difficult to determine what portion of tlie law existing at any one particular time is fundamental and constitutional ; what part is to be regarded as fixed in the wiU of the constituting authority and to be judicially supposed to have been taken by it for a principle limiting all repubUcan govern ments. It is also always necessary to discriminate a " natural and necessary law of nations," applied to the internal existence of states. This, perhaps, is nearly the same as the distinction of laws into laws in the primary and in the secondary senses ;' a law or usage being considered to have the character of natural or necessary law of nations, (whether affecting private persons or states,) where it has always been judicially viewed as the statement of a mode of action or a recognition of a condition of things ; as, for example, the principle aUuded to by Holt, of a man's not being ever a judge in his own cause.' Being private as well as public law, the various constitu tional provisions which may affect freedom or its contraries in the limited sense herein particularly considered, will be properly comprehended in a historical summary of the legislation of the several States affecting this topic. , § 483. It has been herein before supposed that by the Revo lution a certain national or general authority became transferred from the king and parliament of England to the integral people of the United States. This is taken to be a necessary assump tion from the recognition of the present Constitution and the events which caused that recognition. But the same reasoning led to the conclusion that whatever powers the present Consti tution declares to be vested in the several States, were in fact vested in them by the Revolution, or rendered by it entirely in dependent and sovereign, and were not derived from that Con stitution.' According to this view there was no longer a national central power, maintaining within each State the common law of rights " Ante, §g 48, 49. ' Ante, p. 127. ' Ante, § 469. 522 POWER OVER PERSONAL CONDITION. and privileges of persons of European or Caucasian race, as it had been sustained under the British imperial power ; except as it might, be sustained internationally or g'Masi-internationaUy between the States, operating as public and private law. And, if there had been any national law affecting the condition of other, persons to whom the common law of England did not apply as a personal law, it also ceased to have a national extent on the occurrence of the same events ; or had, thereafter, only such effect as was derived from the international provisions of the Constitution. ' Hence, whether there would have been a common law in each State which, in the absence of a State Constitution, could have been judicially recognized as a check on the legislature, would be, in each State, before and after the adoption of a State Constitution, a question of the same sort as that of the effect of common law in England against the power of parUament. § 484. But though the common law or every national law of the rights of persons may have ceased to have any continuing basis in a national authority, it is plain that, on the principle of the continuous existence of laws, the distinction of two races and of two personal laws applying to those races would continue to be recognized by the judicial tribunals of each State, in the same degree as before, untU changed by the thereafter several and independent legislative power thereof ; and that the laws which before were received in the State, as personal laws applying to aliens and as private international law, would continue to be recognized ; untU changed by the State for its own limits, or by the national power held by the general Government over this class of persons in all the States. § 485. The fourth of the Articles of the Confederation of November 17, 1777, may have been intended to secure in the several States some international allowance of rights and obli gations which had before had a personal and national tixtent in all the colonies as parts of the British empire. But the effect of this Article on personal condition does not seem to have ever been made a subject of judicial inquiry during the existence of the Confederation. The Article may be thought to have the THE POWER IN THE STATES. 523 form ot private law, that is, law which of itself maintains the existence of legal rights in private persons. But since the enacting power was not represented by a general administrative Government, organized with an investiture of the three functions of sovereignty for the purpose of applying municipal (internal) law, the rights declared by that Article had no national guar antee available for the private persons by whom they might have been claimed ; and the Article must have depended on the several juridical will of each State for its coercive effect, having in that respect only the force of a public international compact. It would appear, therefore, that until the formation of the present Constitution of the United States the only restriction on the legislative power of the several States, in reference to per sons domiciled in other States of the Union, would (irrespec tively of restrictions in the Constitutions of these States them selves) have been these treaty provisions in the Articles of Confederation, and the undetermined force of common law to preserve itself, in its own courts, against the action of a legis lating Government. § 486. The sum of all sovereign powers to affect private persons in any part of the United States may, or may not, have been exercised, during the Revolutionary period or during the Confederation, in a different manner, or according to a somewhat different distribution of those powers, from that existing under the present Constitution. But, for the present purpose, it is enough to know that the powers vested in the Continental Con gress or in the Congress of the Confederation were certainly not greater, in any respect, than those now vested in the present national Government, and did not, in legislation, act so directly on private persons within the Umits of the several States. No change, therefore, could have been made in the status or con dition of private persons within the several States by the na tional legislation of the United States anterior to the present national Constitution, § 487. Since the provisions of the Constitution of the United States which create or maintain relations of private persons do not determine the possession of individual rights, except inter- 524 POWER OVER PERSONAL CONDITION, nationally or g'Masi-internationaUy, and the powers of the na tional Government over persons and things within the limits of the several States can determine only certain relative rights not primarUy entering into the relations of legal status or condition,' the laws affecting individual rights and relations incident to conditions of freedom or its contraries' within the States, must ' Ante, p. 483. ' The expression "freedom and its opposites," hos been used repeotedly in previous chapters. A note in Coleridge's Church and State, p. 24, has suggested that the term contrary shonld have been employed instead of opposite. " Let me call attention to tbe essential difierence between ' opposite' oud ' contoory.' Opposite powers are olwoys of the same kind, and tend to union, either by equipoise or by a common product. Thus the + and — poles of the magnet, thus positive aud negative electricity are opposites, sweet and bitter are contraries. The feminine character is opposed to the masculine ; but the effeminate is its contrary. Even so in the present instance, [the topic which he here considers,] the interest of permanence is opposed to that of progressiveness ; but so far from being contrary interests, they, Uke the magnetic forces, suppose and require each other." In some recent defences of negro slavery the argument is based on the idea that freedom and slavery are not contraries, but opposites ; or that they " suppose and require each other." A prominent exomple is found in the speech of Senator Ham mond, of South Corolino, in the recent debates ou the Kansas question, iu tiie U. S. Senote, March 4, 1858. " In aU social systems there must be o class to do the menial duties, to perform the drudgery of Ufe. That is, a closs requiring but o low order of inteUect and but Uttle skill. Its requisites ore vigor, docility, fideUty. Such o class yon must hove, or you would not hove that other class which leads progress, civiUzo- tion, and refinement. It constitutes the very mud-sill of society and of political govern ment ; and you might as weU attempt to build a house in the oir, as to build either the one or the other, except on this mud-siU. Fortunately for the South, she foimd a race adapted to that purpose to her hand. A race inferior to her own, but eminentiy quoUfied in temper, in vigor, in dociUty, in copacity to stand the climate, to onswer oU her purposes. We use them for our purpose, ond call them slaves. We found them slaves by the ' common consent of mankind,' which, according to Cicero, ' lex noturis est,' the highest proof of what is Nature's law. We are old-fashioned at the South yet ; it is a word discarded now by ' ears poUte.' I wUl not characterize that class at the North with that term ; but you have it ; it is there, it is everywhere, it is eternal. " The Senotor from New York sold, yesterday, thot tiie whole world hod ohoUshed slavery. Aye, the name, but not the ihing ; oil the powers of the eorth connot obolish thot. God only con do it when he repeals the flat, ' the' poor ye always have with you ;" for tiie man who lives by daily labor, and scarcely Uves at that, and who has to put out his lobor in tho morket, ond take the best ho can get for it ; in short, your whole hholing class of manual laborers ond ' operatives,' as you coU tliem, are essen tiaUy slaves. The difference between us is, that our sloves aro hired for Ufe aud well compensated; thero is no starvation, no begging, no want of employment, among our people, and not too much'employment eitiier. Yours are hired by the day, not cared for, ond scantUy oompensotod, which may be proved in the most painful manner, at ony hour, iu any street in any of your large towns. Why, you moot more beggars in one day, in any single street of the city of New York, than you would meet iu a life time in the whole South. We do not think thot whites should he slaves either by low or necessity. Our sloves ore block, of another ond inferior roce. The status in which we hove placed them is on elevation. They are elevated from the condition in which God first created them, by being mode our sloves. None of that race on tho whole face of the globe can be compared witii the slaves of the Soutii. They are happy, content, unaspiring, and utterly incapable, from intellectual weakness, ever to give us any trouble by their aspirations. Yours ara white, of your own race ; you are brothers CONSTITUTIONAL RESTRICTIONS. 525 rest on the exercise of the powers held by the several people of each State since the period of the independent existence of the United States, subject only to the international provisions of the Constitution, and also, though in a different sense of sub jection, to that international rule which is law in an imperfect sense only when states are spoken of as its subjects. § 488. According to the view -herein before taken of the • powers of the national Government over the Territories of the United States, the District of Columbia, &c.. Congress, in the exercise of the legislative power of the United States, stands in the same relation, towards persons and things in those several jurisdictions, which the several State Governments occupy in reference to persons and things within the Umits of their re spective States, and is controUed only by the provisions of the Constitution operating as public or as private law, and, perhaps, also by a " common law," identified with the juridical wiU of the people ofthe United States.' § 489. The question how far any one of the State Govern ments, or the national Government legislating in and for the Territories, &c., has power to determine the existence of cpn- ditions of freedom or its contraries within one of these several jurisdictions, is properly to be made a separate question under the local law of each. There is, however, an inquiry which may be considered generally with reference to aU these Governments, which is this : it being assumed that the legislative power held by any one such Government is limited by constitutional pro visions having the effect of private law ; or, in other words, by those provisions in the Constitutions which, like the English bills of rights and the colomal charter guarantees, secure rights of one blood. They ore your equols in natural endowment of intellect, flnd they feel goUed by their degradotion. Our sloves do not vote. We give them no political power. Yours do vote, and being the mojority, they ore the depositaries of all your political power. If they knew the tremendous secret, that the ballot box is stronger thon " on army with bonners," and could combine, where would you be ? Your so ciety would be roconstruoted, your government overthrown, your property divided, not as tiiey have mistakenly attempted to initiate such proceedings hy meetings in porks, witii arms in their hands, but by the quiet process of the ballot box. You have been making war upon ns to our very hearth stones. How would you like for us to send lecturers ond ogitotora North, to teoch these people this, to aid in combinmg, and to lead them ?" ' Compare ante, § 481, note. 526 CONSTITUTIONAL RESTRICTIONS. to private persons,' and it being also assumed that Uke clauses, having Uke effect, may be found in all these Constitutions, in cluding the Constitution of the United States, whether the Governments organized imder such Constitutions are thereby restricted either in estabhshing, or in abrogating, conditions either of freedom or of its contraries ; or in their power to es tabhsh, or to abrogate, relations incident to conditions of freedom or of bondage.' § 490. In this inquiry it is proper first to refer to whatever juridical authority ^ may exist on this topic, and afterwards to ' That is, written guarantees, distinguished (rom that indefinite restriction which may or may not exist by reason of the fact thot the organized Government is not the ultimate possessor of the sovereign powers exercised by it. Ante, § 481. ' On the principle of the continuation of laws, it has already been insisted that rights and obligations, incident to relations existing mider previous laws, would con tinue after the estabhshment of the new Governments, until changed by their author ized legislotion. It is needless to refer to judicial action, under both the national and the State Governments, maintaining conditions of freedom and its contraries under pre existing laws. These Constitutions might however contain enacting provisions alter ative of pre-existing laws. It wiU be shown hereinafter tiiot in Massachusetts a declaration in the Constitution of 1 780, that the enjoyment of " natural rights" is one of the ends of Government, and attributing to oU persons c'ertoiu rights, as natural, which are inconsistent with a condition of slovery, was taken by the courts to be a legislative abrogation of slavery. See Parsons, C. J., in 4 Mass. R. 123. In other States, whose (institutions contain declorotions very similar, the same effect has never been attributed to them. See H. St. George Tucker, President, in the Ourt of Ap peals of Va., iu Betty et oh v. Horton, (1833,) 5 Leigh's R. 622. The question here is of the personal extent of the law attributing rights, as described in the second chopter, or whether it has universal extent or not (ante, §§ 87, 88). In this connection it is a question of internal low, though it is snnilar to that distinction of lows of universol extent which arises in applying the rule of comity in private international low. But such constitutional provisions os guarmiteo individual rights as existing rights, without attributing them to oU persons, more thon is done in the clouso " no man shaU be deprived of life, liberty or property without due process of law," have never been held to operote as a legislative abrogation of slavery or institution of freedom. ' This juridical authority may be distinguished into two portions ; 1, judicial de cisions of porticular cases, in the determination of which the topic is supposed to be in volved : 2, juristical opinion ; and in tiiis may be included legislative proctice, as being an assertion of pubhc law by persons who, from their position, must be supposed to be conversant with the subject. And it may here be observed, that a rule or principle of law is never estabUshed hy judicial action alone. This proposition may not be readily accepted j but it never theless appears, from the nature of the judicial fimction, that o decisiou by o judicial tribunal binds private persons only as to the rights and obUgations involved iu the particular case. In every science rules ore derived by induction, and to tills, there must be a coUation and comparison of a number of otiierwise unconnected instonces or coses, corresponding to experiments in physics. In jurisprudence, general rules are thus obtiuned by juristical action. In Englond ond Americo this juristical deduction takes place principally in the reported judicial opinions, and hence, in these countries it is very common to speak of a rule us depending on some decision of a coso, in which this juristical action has been exhibited. In continental Europe the judges confine themselves more to o simple decisiou of the cose before them. But the juristical de- AS TO STATUS OF WHITE PERSONS. 527 compare the principle, declared by any such authority, with the general principles of jurisprudence and those doctrines of public law which are received as fundamental in this country ; taking them in connection with, or as they are indicated in, the history of free condition and its contraries, as it has herein before been exhibited. § 491. If the conditions of freedom and bondage are properly described as contraries, the legislative establishment of the one is also the abrogation of the other. There is probably no judicial opinion on the question of the power of the ordinary legislature, under these Constitutions, to make free white persons slaves ; either chattel slaves or legal persons held in involuntary servitude for Ufe. It seems to be generaUy supposed that no instances have occurred of such per sons being reduced to such slavery under legislative enactment. But from the summary of State legislation, to be herein after given,' it wiU appear that under the statute law of some of the States, negroes, mulattoes and, generally, persons not of European or Caucasian race, who before enjoyed personal Uberty, might be reduced to slavery. And it would appear that such laws have received judicial sanction ; no question, it is believed, having been made of the power of the legislature in respect to such persons.' § 492. No judicial opinion earUer than that of the Supreme • dnction is completed by privote writers. Hence the treatises hove with them greater authority than the so-called "elementary works'' have with us. Compare the lan guage of Ram, on Legal Judgment, p. 2, with that of Falck, Juristiche Ency. § 10, ante, p. 25, u. 2, p. 26, n. 2. See also, on this subject. Bacon's Aphorisms, 21-31, in Advancement of Learn. B. 8, c. 3. Senator Piatt (afterwards Judge of the Supreme Court) m Yotes v. Lan sing, 9 Johnson, 414, " The decisions of Courts are not the law, they are only evidence of the law. And this evidence is stronger or weaker according to the number ond uniformity of odjudicotions, the union or dissension of the Judges, the solidity of l;lie reosons on which the decisions are founded, ond tho perspicuity ond precision vnth which those reasons are expressed. The weight and authority of judicial decisions de pend also on the character and temper of the times in which they are pronounced. An adjudication at a moment when turbulent passions or revolutionory frenzies pre vail deserves much less respect than U'it wore made at a season propitious to impartial inquiry nnd calm deliberation." ' And see Stroud's Sketch, 2d ed. p. 24-30. . j . ' Whether under those statutes white persons hove not sometunes been reduced to slavery moy depend on the answer to the question, how is a negro, mulatto, &o., to be distinguished from o person of white, or European or Caucasian race ? 34 528 SLAVERY IN THE TERRITORIES. Court of the United States, in Dred Scott v. Sandford, 19 Howai'd, 394, appears to be on record to the effect that, if the po Utical power and jurisdiction over the Territories, &c., is vested in the national Government,' Congress has not the power to deter mine whether slavery shaU or shaU not exist therein, or whether a presently legal right of ownership, in a domiciled inhabitant, in respect to a negro slave shall or shall not continue ; nor any which declares that such power is one not within the ordinary scope of powers belonging to such limited Governments as have existed in and for the United and several States. Nor is there any other holding that, if by the Constitution of a State, or by that of the United States operating with Uke effect, the right of private property or to private property is guaranteed by a declaration that no man shaU be deprived of his property without due process of law, the right of a person, being a resi dent or domicUed inhabitant or citizen of one of these jurisdic tions, in respect to a negro lawfuUy held by him, before and presently, as a slave or in involuntary servitude, is a right of property or to property, which under this constitutional guar antee cannot be affected by the legislative power held by the State Government, in and for a State, or by that held by Con gress in and for a Territory, &c., as the case may be. § 493. In this case, however, it was held by the majority of tho court that Congress has no power to abolish or prohibit slavei-y in the Territories of the United States.' And in the Opinion of the Court, delivered by Chief Justice Taney, it is held that the provisions in the Constitution, which have already ' Whether the supreme governmental power or sovereignty, or any portion of it, is severally or separately vested in the inhabitants of such 'Territory, so that Uiey ore in its exercise independent of tiie notiontU power as ore the people of a State in tiieir several sovereignty, is au entirely different qnestion, one of public law, oud to ho con sidered in onother place. Compare ante, §§ 348, 397. ' Mr. Justice Catron, 19 Howard, 519, reciting tiie words of the oct of Congress of 1820, commonly coUed the Missouri Compromise, " Thot in aU thot torritoi-y, ceded by Fronce to tiie United Stotes, which lies north of tiiirty-six degrees thirty minutes north latitude, slavery and involuntary servitude shaU be, and are hereby, for ever prohibited ;" soys, " The first question presented on tliis act is whetiier Congress had power to molte such o compromise. For if power was wanting, tiien no freedom could be ocquired by the defendant under the act." In denying tiio power of Congress, cou- curred Chief Justice Taney, Justices Wayne, Grier, Daniel, CanipbuU and Cutrou. Justices McLean ond Curtis dissenting, and Mr. Justice Nelson thinking the decision of the question not necessary for the decermiuatiou of the case. DRED SCOTT V. SANDFORD. 529 been referred to as having the effect of private law throughout the entire dominion of the United States, especially the clause guaranteeing to the private citizen his possession of property, " No person shall be deprived of life, liberty, or property with out due process of law," apply to slaves as property, or that, in reference to such guarantee they are to be considered property, in the same degree as domestic animals and inanimate chattels. The passage in which this is enunciated, is on page 451 of the report, and in continuation of that part of the Opinion which has herein already been cited in a note to pages 463, 464 : — " And if Congress itself cannot do this — if it is beyond the powers conferred on the Federal Government — ^it wiU be ad mitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution. " It seems, however, to be supposed, that there is a difference between property in a slave and other property, and that dif ferent rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments may exercise over it, have been dwelt upon in the argument. " But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enu merated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have re- 530 OPINION OP THE COURT. served. And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the pro visions and guarantees which have been provided for the protec tion of private property against the encroachments of the Gov ernment. " Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution.' The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words — too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights. " Upon these considerations, it is the opinion of the court that the act of Congress which prolUbited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void." ' Referring apparently to pago 425, where it is said, in discussing tiie question, whether a negro maybe a citizen, "The only two provisions which point to tiiem and include them, [the refeienoe is here to the " African race,"] treat tiiem as prop erty, and make it the duty of the Government to protect it ; no other power, in relation to this race, is to be found in tiio Constitution, ond as it is o Govornmont of special, delegated powers, no authority beyond tiiese two provisions can bo constitutionaUy ox- •ercised. The Government of the United States had no right to interfere for any otiier purpose hut th)it of protecting the lights of the owner, leaving it oltogother witii the several States to deal with this race, whether emiuicipated or not, as each State moy think justice, htunouity, ond the interests ond safety of sooiety may require. The States evidentiy intended to resorvo this power exclusively to themselves." The Chief Justice does not explain how, from the fact that by the Constitution the condition of negroes is left to the powers of tiio several States, it may follow tiiat tho chottel con dition of o ncgi-o is maintained by the law which rests upon the notionol powers, ond has national extent. DRED SCOTT V. SANDFORD. 531 §494. Mr. Justice Wayne particularly noticed only the question of pleading, but said, on page 454 ofthe report, " Con curring as I do entirely in the opinion of the court as it has been written and read by the Chief Justice— without any quaU fication of its reasoning or its conclusions— I shaU neither read nor file an opinion of my own in this case, which I prepared when I supposed it might be necessary and proper for me to do so." And at the conclusion ofhis remarks, page 456, said : " I have already said that the opinion of the court has my unquah- fied assent." Mr. Justice Grier, on page 469 of the report, after express ing his concurrence in the opinion of Mr. Justice Nelson on the questions discussed by him, said: "I also concur with the opinion of the court as delivered by the Chief Justice, that the act of Congress of 6th March, 1820, is unconstitutional and void." It does not otherwise appear how far Judge Grier agreed in the reasoning of the Chief Justice as weU as the conclusions, though there is a strong presumption that that reasoning was approved of by him. § 495. Justices Daniel and CampbeU appear to have rested their opinions, against the constitutionality of the act of Con gress, not so much on this view of the Constitution operating as private law in the Territories for the protection of individual slave owners, the doctrine of the Chief Justice, as on their views of that instrument regarded as the evidence of antecedent pos session of sovereign power, or on one of those theories of State sovereignty by which 'the instrument, as public law, may be construed. Both Justices appear to have thought that the legislative (juridical) power, by which the status or condition of private persons in the Territories is to be determined. Is not vested in the national Government as representing the integral people of the United States. Though Judge Daniel is not so clear as is Judge Campbell in indicating by what other possessors of sov ereign power such status or condition is to be determined. § 496. Mr. Justice Campbell speaks of the act of Congress as an infringement of rights of the States. Judge Daniel's Ian- 532 SLAVERY IN THE TERRITORIES. guage conveys the idea that, in prohibiting slavery, it is the right of private persons, a right under private law that would be violated in the case of the immigrant slave owner ; rather than the sovereign juridical right of the State from which he came which would be infiinged. On page 488, Judge Daniel observes, "it has been attempted to convert this prohibitory provision of the act of 1820, not only into a weapon with which to assaU the inherent, the necessarily inherent, powers of inde pendent sovereign Governments, but into a mean of forfeiting that equality of rights and immunities which are the birthright or the donative from the Constitution of every citizen of the United States within the length and breadth of the nation. In this attempt there is asserted a power in Congress, whether from incentives of interest, ignorance, faction, partiaUty, or pre judice, to bestow upon a portion of the citizens of this nation that which is the common property and privilege of aU ; the power, in fine, of confiscation, in retribution for no offence, or, if for an offence, for that of accidental locahty only." After referring to the " territory or other property " clause, Mr. Justice Daniel, on the next page, observes : " And upon every principle of reason or necessity, this power to dispose of and to regulate the territory of the nation could be designed to extend no farther than to its preservation and appropriation to the uses of those to whom it belonged, viz. the nation. Scarcely any thing more iUogical or extravagant can be imagined than the attempt to deduce from tlus provision in the Constitution a power to destroy or in any wise to impair the civU and political rights of the citizens of the United States, and much more so the power to estabhsh inequalities amongst those citizens by creating privUeges in one class of those citizens, and by the dis franchisement of other portions or classes, by degrading them from the position they previously occupied. ''There can exist no rational or natural connection or af finity between a pretension like this and the power vested by the Constitution in Congress with regard to the Territories ; on the contrary, there is an absolute incongruity between them. " But whatever the power vested in Congress, and whatever MR. JUSTICE DANIEL'S OPINION. 633 the precise subject to which that power extended, it is clear that the power related to a subject appertaining to the United States, and one to be disposed of and regulated for the benefit and under the authority of the United States. Congress was made simply the agent or trustee for tlie United States and could not, without a breach of trust and a fraud, appropriate the sub ject of the trust to any other beneficiary or cestui que trust than the United States, or to the people of the United States, upon equal grounds, legal or equitable. Congress could not appro priate that subject to any one class or portion of the people to the exclusion of others, politically and constitutionally equals ; but every citizen would, if any one could claim it, have the like rights of purchase, settlement, occupation, or any olher right in the national territory. " Nothing can be more conclusive to show the equality of this with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to ex clude or to disfranchise a portion of them because they are the owners of slaves, than the fact that the same instrument which imparts to Congress its very existence, and its every function guaranties to the slaveholder the title to his property, and gives him the right to its reclamation throughout the entire extent of the nation ; and, farther, that the only private property which the Constitution has specifically recognized, and has imposed it as a direct obligation both on the States and tho Federal Gov ernment to protect and enforce, is the property of the master in his slave ; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a simUar guaranty. " Can there be imputed to the sages and patriots by whom the Constitution was framed, or can there be detected in the text of that Constitution, or in any rational construction or im plication deducible therefrom, a contradiction so palpable as would exist between a pledge to the slave-holder of an equality with his fellow-citizens, and of the formal and solemn assurance for the security and enjoyment of his property, and a warrant given, as it were unojlatu, to another, to rob him of that prop erty, or to subject him to proscription and disfranchisement for 534 SLAVERY IN THE TERRITORIES. possessing or for endeavoring to retain it ? The injustice and extravagance necessarily impUed in a supposition like this, can not be rationaUy imputed to the patriotic or the honest, or to those who were merely sane." In thus speaking, in this last paragraph, of " the formal and solemn assurance for the security and enjoyment of his prop erty," the aUusion seems to be to those provisions of the Con stitution which relate to rights in respect to slaves, and which were particularly referred to in the preceding paragraph. It is not clear whether Judge Daniel would agree with the Chief Justice in declaring slaves to be recognized, independently of those provisions, as property ; and protected, as other property, by the fifth article of the Amendments to the Constitution operating as a biU of rights. § 497. Mr. Justice Campbell said, " I concur in the judg ment pronounced by the Chief Justice, but the importance of the cause, the expectation and interest it has awakened, and the responsibUity involved in its determination, induce me to file a separate opinion." On page 513, Judge Campbell observes that "the advocates for Government sovereignty in the Territories have been com pelled to abate a portion of the pretensions originally made in its behalf, and to admit that the constitutional prohibitions upon Congress operate in the Territories. But a constitutional prohibition is not requisite to ascertain a limitation upon the authority of the several departments of the'Federal Government. Nor are the States or people restrained by any enumeration or definition of their rights or liberties. To impair or diminish either, the department must produce an authority from the people themselves, in their Constitution," &c. It seems to be Judge Campbell's doctrine that the organized Government of the United States, has not, as a whole, any power whatever in the Territories, or that the powers of the Executive and Judiciary are only incidental or ancillary to the legislative powers which may have been granted to Congress,' and that Congress has in ' The necessity of determining, in tho first instance, the mode of existence of tho people of the U. S., tiie autiiors of the Constitution, as a question involved in the do- MR. JUSTICE CAMPBELL'S OPINION. 535 the Territories only the general powers which it may exer cise for any part of the United States, and certain special powers, in relation to lands, &c., belonging to the United States, derived from the " territory and other property" clause. Judge Campbell does not, therefore, rely, with the Chief Justice, on that part of the Constitution which protects the individual sub ject equally against every department of the national or federal Government. From the greater part ofhis argument on this point, pp. 506 — 514, it would seem to be his opinion that the inhabitants of the Territory, or a certain portion of them, forming a political people, have therein the residue of sovereignty,' or the powers not specifically granted to the national Government, although another doctrine is at the same time enunciated as antagonis tical to the power claimed for Congress, which would, apparently, confiict with the theory of a residuary sovereignty inherent in the people of a Territory. This (if rightly apprehended) is, that the States severally, and as political persons, have juridical power in the Territories ; or, that they may and do extend their laws into the Territories to determine the rights and obligations of persons therein, who anteriorly had been domiciled within their several State Umits ; that " the Constitution and laws of one or more States determining property," cannot be "pro scribed " by altering or destroying the effects of those laws upon the relations of such persons after their emigration and settle ment in the Territory ; that the duty of the national Govern ment is, as the agent of the States severaUy, to maintain these effects in the Territories. See page 516 of the report. In other words (using the nomenclature herein before adopted) the doc trine is, that the national Government is bound to actuahze or reahze, in the Territory, the rights and obUgations of private persons which have become existent under " the Constitution and laws determining property" in the State wherein such teraimation of private rights, has never been more apparent than in these questions respecting the low of the territories. Judge CampbeU's view seems to coincide with that stated ante, in the second paragraph of note on p. 409, that there is no integral people of the U. S., and to go to the extreme of that theory. ¦ Compare ante, §§ 376, 397. 536 SLAVEHY IN THE TERRITORIES. persons were previously domiciled, and has no power to deter mine the continuance of those rights and obligations, even when the persons to whom they have been attributed have become domiciled in the Territory. The same doctrine would seem to Umit the power which Mr. Justice Campbell supposed to belong to the people of the Territory. Although this is properly a question of pubUc law, or one of the location of sovereign power, the doctrine is, as stated by Judge Campbell, also operative as private law' ; that is, it is a rule by which judicial tribunals may determine rights and obU gations of private persons in the Territories. On page 514, Judge CampbeU proceeds to say, after enumerating certain sub jects of legislation as being within the power of Congress : "I admit that to mark the bounds for the jurisdiction of the Gov ernment of the United States within the Territory, and of its power in respect to persons and things within the municipal subdivisions it has created, is a work of deUcacy and difficulty, and, in a great measure, is beyond the cognizance of the judi ciary department of that Government. How much municipal power may be exercised by the people of the Territory, before their admission to the Union, the courts of justice cannot de cide. This must depend for the most part on poUtical con siderations, which cannot enter into the determination of a case of law or equity. I do not feel caUed upon to define the juris diction of Congress. It is sufficient for the decision of tliis case to ascertain whether the residuary sovereignty of the States or people has been invaded by the eighth section of the act of 6th March, 1820, I have cited, in so far as it concerns the capacity and statua of persons in the condition and circumstances of the plaintiff and his family.' " These States, at the adoption of the Federal Constitution, were orgaiuzed communities, having distinct systems of niuni- ' On page 509, Mr. Justice Campbell says of " the expedient contained in the eighth section " of the Act of Congress, i/ie Missouri Compromise, " For the first time in the history of tho coimtry has its operation been embodied in a caso at law, and beeu presented to this court for their judgment. The inquiry is, whether there are conditions in the Constitutions of tho Territories which subject the capacity and status of persons within their Umits to the direct action of Congress. Con Congress deter mine the condition and status of persons who inhabit tho Territories? " MR. JUSTICE CAMPBELL'S OPINION. 637 cipal law, which, though derived from a common source, and re cognizing in the main simUar principles, yet in some respects had become unUke, and on a particular subject promised to be antagonistic. " Their systems provided protection for life, Uberty, and property, among their citizens, and for the determination of the condition and capacity of the persons domicUed within their Umits. These institutions, for the most part, were placed be yond the control of the Federal Government. The Constitution allows Congress to coin money, and regulate its value ; to regu late foreign and Federal commerce ; to secure, for a limited pe riod, to authors and inventors, a property in their writings and discoveries ; and to make riUes concerning captures in war ; and, within the limits of these powers, it has exercised rightly, to a greater or less extent, the power to determine what shaU and what shall not be property. " But the great powers of war and negotiation, finance, postal communication, and commerce, in general, when em ployed in respect to the property of a citizen, refer to, and de pend upon, the municipal laws of the States, to ascertain and determine what is property, and the rights of the owner, and the tenure by which it is held. " Whatever these Constitutions and laws validly determine to be property, it is the duty of the Federal Government, through the domain of jurisdiction merely Federal, to recognize to be property. " And this principle foUows from the structure of the re spective Governments, State and Federal, and their.^ reciprocal relations. They are different agents and trustees of the people of the several States, appointed with different powers and with distinct purposes, but whose acts, within the scope of their re spective jurisdictions, are mutuaUy obligatory. They are re spectively the depositories of such powers of legislation as the people were wiUing to surrender, and their duty is to co-operate within their several jurisdictions to maintain the rights of the same citizens under both Governments unimpahed. A pro scription, therefore, of the Constitution and laws of one or more 538 MR. JUSTICE CAMPBELL'S OPINION. States, determining property, on the part of the Federal Gov ernment, by which the stabUity of its social system may be en dangered, is plainly repugnant to the conditions on which the Federal Constitution was adopted, or which that Government was designed to accomplish. Eafch of the States surrendered its powers of war and negotiation, to raise armies and to support a navy, and all of these powers are sometimes required to pre serve a State from disaster and ruin. The Federal Government was constituted to exercise these powers for the preservation of the States, respectively, and to secure to aU their citizens the enjoyment of the rights which were not surrendered to the Fed eral Government." On page 516, the same judge observes : " This court have determined that the intei-migration of slaves was not committed to the jurisdiction or control of Congress.' Wherever a master is entitled to go within the United States, his slave may accom pany him, ivithout any impediment from, or fear of, congres sional legislation or interference. The question then arises whether Congress, which can exercise no jurisdiction over the relations of master and slave within the limits of the Union, and is bound to recognize and respect the rights and relations that validly exist under the Constitutions and laws of the States, can deny the exercise of those rights, and prohibit the contin uance of those relations, within the Territories. And the cita tion of State statutes prohibitmg the immigration of slaves, and of the decisions of State courts enforcing the forfeiture of the master's title in accordance Avith their rule, only darkens the discussion. For the question is, have Congress the municipal sovereignty in the Territories which the State Legislatures have derived from the authority of the people and exercise in the States ? And this depends upon the construction of the article in the Constitution before referred to. And, in my opinion, that clause confers no power upon Congress to dissolve the rela tions of the master and slave on the domain of the United States, either within or without any of the States." ' Referring probably to Groves v. Slaughter, 15 Peters, 449. MR. JUSTICE CATRON'S OPINION. 539 On the supposition then that the national Government does hold, in and for tho Territory, those powers which a State Gov ernment holds in and for a State, ' it does not appear that Judge Campbell would agree with the Chief Justice, that the slave holder's right is protected there by the private law of the Con stitution, operating like a biU of rights in the guarantee of private property. § 498. Mr. Justice Catron, on pages 519-523, maintains, as firmly as any other member of the court, that the only valid leg islation operating in the Territories is that proceeding from power held by Congress, and appears to be of the opinion that aU the ordinary powers of a State Government have, by the words of the Constitution, been granted to Congress. But Judge Ca tron finds that the power of Congress in the Territory of Louisiana is restricted by the conditions of the treaty, of cession, made with France in 1803 (see pages 524-528). This doctrine, which is the ground principaUy relied on by Judge Catron in the decision of the question, wUl be further considered in a later portion of this work. But notwithstanding his view of the powers of Congress in the Territories, as above stated. Judge Catron appears at the same time to be, in some degree, with either Judge Daniel or Judge Campbell in their doctrines of the limitation of the power of Congress in all the Territories, as respects a right of " equality " belonging to the States or to the citizena of the States. On page 526 of the report, after referring to the cessions made by Georgia and North Carolina of western territory, and to the fact that no guaranty was required by Georgia from the United States for the protection of slave property, Mr. Justice Catron says, " The Federal Constitution was reUed on to secure the rights of Georgia and her citizens during the Territorial condition of the country. She reUed on the indisputable truths, that the States were by the Constitution made equals in po Utical rights and equals in the right to participate in the com mon property of all the States United, and held in trust for them. The Constitution having provided that the ' citizens of ' Ante, p. 628. 540 MR. JUSTICE CATRON'S OPINION. each State shaU be entitled to all privUeges and immunities of citizens of the several States,' the right to enjoy tho territory as equals was reserved to the States, and to the citizens of the States respectively. The cited clause is not that the citizens of the United States shaU have equal privileges in the Territories, but the citizen of each State shall come there in right of his State, and enjoy the common property. He secures liis equaUty through the equaUty of his State, by virtue of that great fimda- mental condition of the Union, the equahty of the States. " Congress cannot indirectly what the Constitution prohibits directly.' If the slave-holder is prohibited from going to the Territory with his slaves, who are parts of his family in name and in fact," it wiU foUow that men owning lawful property in their own States, carrying with them the equality of their State to enjoy the common property, may be told, you cannot come here with your slaves, and he wUl be held out at the border. By this subterfuge, owners of slave property, to the amount of thousands of mUlions, might be almost as eftectuaUy excluded from removing into the Territory of Louisiana north of thirty-six degrees thirty minutes, as if the law declared that owners of slaves, as a class, should be excluded, even if their slaves should be left behind. Just as well might Congress have said to those of the North, you shall not introduce into the ter ritory south of said Une your cattle and horses, as the country is already overstocked, nor can you introduce your tools of trade, or machines, as^the policy of Congress is to encourage the cul ture of sugar and cotton south of the line, and so to provide that the Northern people shall manufacture for those of the South, and barter for the staple articles slave labor produces. And thus the Northern farmer and mechanic would be held out, as I The clause in Art. iv, sec. 2, " The citizens of each State sliaU be entitied to aU privileges and immunities of citizens in tho severol States." It would oppear from this that, in the judge's opinion, the slave-holder's right under tJie law of his former rosidenoo is guaranteed even when the Territory becomes a State, ond if so, it must be equally guaranteed iu oil the older States. ' Referring, apparently, to tho clause above cited. ' Here a soniewhot different tiieory of tiie right of slove-holders is intimated, that slavery is o relation between persons, one of the relations of family, like that of husband and wife, parent and child. It can hardly be meant that in the slave-holding States wives und children aro property. SLAVERY IN THE TERRITORIES. 541 the slave-holder was for thirty years, by the Missouri re striction. " If Congress could prohibit one species of property, lawful throughout Louisiana when it was acquired, and lawful in the State from whence it was brought, so Congress might exclude any or all property." ^ And in concluding the opinion,—" My opinion is, that the third article of the treaty of 1803, ceding Louisiana to the United States, stands protected by the Constitution, and cannot be re pealed by Congress. " And, secondly, that the act of 1820, known as the Mis souri compromise, violates the most leading feature of the Con stitution, a feature on which the Union depends, and which seciu-es to the respective States and their citizens an entire EQUALITY of rights, privileges, and immunities. ' " On these grounds, I hold the compromise act to have been void." And although Judge Catron does not aUude to those clauses of the Constitution which operate as a biU of rights and as pri vate law, yet it might, from the portion of his opinion before cited, be inferred that he should, in consistency, have agreed with the Cluef Justice in holding that slaves are, by them, pro tected as property, in the same degree as domestic animals and inanimate chattels ; that is, if he admits that the guarantees of private rights, in the Constitution, operate In the Territories, which, however, does not appear from his opinion. For he finds the restriction in a clause in the treaty which secured the in habitants in the " free enjoyment of their Uberty, property, and religion." And this, the Judge supposes, applies to all slave holders there ; whether they were resident under the former dominion, or are those who have acquired their rights through them, or are immigrants from the States. (See pp. 524, 525.) And it would seem that, in determining what is or is not prop erty in view of the treaty provision, the same criterion should be adopted which, according to the Chief Justice, determines slaves to be property in view of the constitutional guarantee. § 499. In the same case Justices McLean and Curtis main tained the power of Congress to prolubit slavery in the Terri- 542 'slavery IN THE TERRITORIES. tories, and, in their dissenting opinions both equaUy opposed the doctrine that the right of the immigrating slave-holder is pro tected under the constitutional guarantee of private property and the doctrine that it is maintained in the Territory by the law of the State in which he formerly resided. In their exam ination the two questions are hardly distinguished as separate inquiries. § 500. Mr. Justice McLean's opinion seems to be that Con gress has power to aboUsh or prohibit slavery in the Territories, but has no power to estabhsh or introduce slavery. In denying the latter power. Judge McLean rehes on the fact that it is not granted by the Constitution, and is " contrary to its spirit," though appearing to admit that where slavery has before existed or been lawfril in a Territory it may thereafter be maintained or recognized by the national Government ; and he derives the power of prohibiting it only from his own view of what " sound national poUcy " may justify, as a " needful rule and regulation " under the "territory and other property" clause. Judge McLean's language, on page 542 of the report is : " Did Chief Justice MarshaU, in saying that Congress gov erned a Territory, by exercising the combined powers of the Federal and State Governments, refer to unlimited discretion ? A Government which can make white men slaves ? Surely, such a remark in the argument must have been inadvertently uttered. On the contrary, there is no power in the Constitution by which Congress can make either white or black men slaves. In organizing the Government of a Territory, Congress is limited to means appropriate to the attainment of the constitutional object. No powers can be exercised which are prohibited by the Constitution, or which are contrary to its spirit ; so that, whether the object may be the protection of the persons and property of purchasers of the public lands, or of communities who have been annexed to the Union by conquest or purchase, they are initiatory to the establishment of State Governments, and no more power can be claimed or exercised than is necessary to the attainment of the end. This is the limitation of all the Federal powers. MR. JUSTICE Mclean's opinion. 543 " But Congress has no power to regulate the internal con cerns of a State, as of a Territory ; consequently, in providing for the Government of a Territory, to some extent, the combined powers of the Federal and State Governments are necessarily exercised. " If Congress should deem slaves or free colored persons in jurious to the population of a free Territory, as conducing to lessen the value of the public lands, or on any other ground con nected with the public interest, they have the power to prohibit them from becoming settlers in it. This can be sustained on the ground of a sound national poUcy, which is so clearly shown in our history by practical results, that it would seem no con siderate individual can question it. And, as regards any un fairness of such a policy to our Southern brethren, as urged In the argument, it is only necessary to say that, with one-fourth of the Federal population of the Union, they have in the slave States a larger extent of fertile territory than is included in the free States ; and it is submitted, if masters of slaves be re stricted from bringing them into free territory, that the restric tion on the free citizens of non-slaveholding States, by bringing slaves into free territory, is four times greater than that com plained of by the South. But, not only so ; some three or four hundred thousand holders of slaves, by bringing them into free territory, impose a restriction on twenty mUlions of the free States. The repugnancy to slavery would probably prevent fifty or a hundred freemen from settling in a slave Territory, where one slaveholder would be prevented from settling in a free Territory. " This remark is made in answer to the argument urged, that a prohibition of slavery in the free Territories is inconsistent with the continuance of the Union. Where a territorial Government is estabUshed in a slave Territory, it has uniformly remained in that condition untU the people form a State Constitution ; the same course where the Territory is free, both parties acting in good faith, would be attended with satisfactory results." ' ' Here Judge McLean seems to orgue only for a power to prevent the introduction of slaves into territory previously vacant, not for power to change the condition oi 35 544 SLAVERY IN THE TERRITORIES. In concluding his examination of this point of the case. Judge McLean observes, on page 547, " If Congress may estabhsh a Territorial Government in the exercise of its discretion, it is a clear principle that a court cannot control that discretion. This being the case, I do not see on Avhat ground the act is held to be void. It did not purport to forfeit property, or take it for pubUc pur poses. It only prohibited slavery ; in doing which it foUowed the ordinance of 1787." Judge McLean then proceeds to the international question of " the effect of taking slaves into a State or Territory, and so holding them, where slavery is pro hibited." Although the argument here assumes that there is no local (internal) law in the Territory maintaining slavery as the condition of domicUed persons, some passages in this part of his opinion are a reply to those doctrines of other members of the Court which would maintain its existence, as between mas ters and slaves emigrating thither, irrespectively of the legis lative (juridical) action of the national Government, and thus make it an effect of the local (internal) law of the Territory.' Judge McLean first refers to the principle that slavery exists by local law, or municipal law, in the sense of jus proprium, as re cognized by the Supreme Court, in Prigg's case, 16 Peters, 611, " The state of slavery is deemed to be a mere mimicipal regu- persons who, before, had been lawfully held as slaves, and does not consider the act as one abolishing slavery. Judge Catron, ou the other hand, (p. 525,) says, " The Mis souri Compromise line was vory aggressive ; it declared that slavery was abolished for ever throughout a country reaching from the Mississippi river to the Pacific ocean," &c., and assuming this extent for tho country ceded by France, designates the portion in which slavery was prohibited as four-fiftlis of the whole. The term " aggressive " would be more appropriate on some other theory tiiau that which Judge Cation prin cipaUy relied on in denying the power of Congress, i. e. the treaty securinc the in habitants in their property, &c. For at the dato of cession, and even iu 1820° the date of the Act of Congress, there probably was not a single negro slave in the whole ref ion n which it appUed. ° ' The relations of persons immigrating into a coimtry or forum ore determined by low, which is private international law in tho first instance, or while such persons are distinguished as still domiciled in their former resldonco. If the same relations con tinue, after they have acquired a new domioil, tiiey must be called effects of the local or internal low ofthe forum. Comp. ante, §§ 121, 195, 240. The question, whether the correlative rights and obUgations of master and slave immigrating into the Terri- - . ^- J power of Congress in respect to slavery, seem not to hovo beeu clearly distiiiguislicd by somo of the Justices in their opinions. MR. JUSTICE Mclean's opinion. 545 lation, founded upon and Umited to the range of the territorial laws." Uo then observes, on page 548 of the rojiort, " By virtue of what law is it that a master may take his slave into free territory, and exact from him the duties of a slave ? The law of the Territory does not .sanction it. No authority can be claimed under the Constitution of the United States, or any law of Congress. Will it be said that the slave is taken as property, the same as other property which the master may own? To this I answer, that colored persons are made property by the law of the State, and no such poAver is given to Congress. Does the master carry with him the law of the State from which he removes into the Territory ? and does that enable him to coerce his slave in the Territory ? Let us test this theory. If this may be done by a master from one slave State, it may be done by a master from every other slave State. This right is sup posed to be connected with the person of the master, by virtue of the local law. Is it transferable ? May it be negotiated, as a promissory note or bill of exchange 1 If it be assigned to a man from a free State, may he coerce the slave by virtue of it 1 What shaU this thing be denominated ? Is it personal or real property? Or is it an indefinable fragment of sovereignty, which every person carries with him from his late domicU? One thing is certain, that its origin has been very recent, and it is unknown to the laws of any civilized country." On the same page. Judge McLean also says, " It is said the Territories are common property of the States, and that a man has a right to go there with his property. This is not contro verted. But the court say a slave is not property beyond the operation of the local law which makes him such. Never was a truth more authoritatively and justly uttered by man." Judge McLean probably here refers to what was said by the court in Prigg's case, above cited.' ' In this connection, Judge McLean remarks, on tho same page, as to the authority of that part of the Opinion of the Court, which maintains thot slaves are recognized os property by the Constitution : " In this case, a majority of the court have said that a slave moy he taken by his master into a Territory of the United States, the same as a horse, or any other kind of property. It is true, this was said by the court, as also many other things which are of no authority. Nothmg that has been said by them, which hos not a direct bearing on the jurisdiction of the court, agoinst which they de- 546 MR. JUSTICE CURTIS' OPINION. § 501. Mr. Justice Curtis, who in the same case very fuUy examined the several points involved in the question of the con stitutionality ofthe Missouri Compromise, considers, on pp. 604- 619, the preliminary inquiry, or what may be distinguished as being more particularly the question of public law, that of the source and extent of the powers of Congress over the Territories, as determinable from the language of the Constitution and from the practice of the Government in its several departments.' On page 619, Judge Curtis proceeds to say : " It appears, however, from what has taken place at the bar, that* notAdth standing the language of the Constitution, and the long hne of legislative and executive precedents under it, three different and opposite views are taken of the power of Congress respecting slavery in the Territories. " One is, that though Congress can make a regulation pro hibiting slavery in a Territory, they cannot make a regulation allowing it ; another is, that it can neither be established nor prohibited by Congress, but that the people of a Territory, when organized by Congress, can establish or prohibit slavery ; while the third is, that the Constitution itself secures to every citizen who holds slaves, under the laws of any State, the indefeasible right to carry them into any Territory, and there hold them as property. " No particular clause of the Constitution has been referred to at the bar in support of either of these views. The first seems to be rested upon general considerations concerning the social and moral evils of slavery, its relations to republican Govern ments, its inconsistency with the Declaration of Independence and with natural right. cided, can be considered as authority. I shall certainly not regard it as such. The question of jurisdiction, being before the court, was decided by them outhoritatively, but nothing beyond that question. A slave is not o mere chottel. He bears the im press ofhis Maker, and is amenable to the laws of God and man, and he is destined to on endless existence." Here, as is common in these questions, the judge determines whether notural persons mav or may not be property occording to liis individuol sense of naturol right, without seeming to recognize any exterior judiciol criterion. It seems that, of tho six Justices who declared the Act of Congress to be uncon stitutional, only four, or perhaps only three, held tiiat slaves ore recognized by the notional jurisprudenco as ordinary property. ' 'Ibis practice is hcreinufter to be described in the history of the local law of the several Territories aud States formed in thein. SLAVERY IN THB TERRITORIES. 547 " The second is drav/n from considerations equally general concerning the right of self-government, and the nature of the political institutions which have been established by the people of the United States. " While the third Is said to rest upon the equal right of all citizens to go with their property upon the public domain, and the inequality of a regulation which would admit the property of some and exclude the property of other citizens ; and, inas much as slaves are chiefly held by citizens of those particular States where slavery is established, it is insisted that a regulation excluding slavery from a Territory operates, practically, to make an unjust discrimination between citizens of different States, in respect to their use and enjoyment of the territory of the United States. " With the weight of either of these considerations, when presented to Congress to Influence its action, this court has no concern. One or the other may be justly entitled to guide or control the legislative judgment upon what is a needful regu lation. The question here is, whether they are sufficient to authorize this court to insert into this clause of the Constitution an exception of the exclusion or allowance of slavery, not found therein, nor in any other part of that instrument. To ingraft on any instrument a substantive exception not found in it, must be admitted to be a matter attended with great difficulty. And the difficulty Increases with the importance of the instrument and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible — because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict Interpretation of the Constitution, according to the fixed rules which govern the in terpretation of laws. Is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution ; we are under the government of indi- 548 MR. JUSTICE CURTIS' OPINION. vidual men, who, for the time being, have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with Umited and defined powers, we have a Government which is merely an exponent of the will of Congress ; or what, in my opinion, would not be preferable, an exponent of the individual pohtical opinions of the members of this court. " If it can be shown, by any thing in the Constitution itself, that when it confers on Congress the power to make all needful rules and regulations respecting the territory belonging to the United States, the exclusion or the allosvance of slavery was ex cepted ; or if any thing in the history of this provision tends to show that such an exception was intended, by those who framed and adopted the Constitution to be introduced into it, I hold it to be my duty carefully to consider, and to allow just weight to such considerations in interpreting the positive text of the Con stitution. But where the Constitution has said all needful rules and regulations, I must find something more than theoretical reasoning to induce me to say it did not mean all. " There have been eminent instances in this court closely analogous to this one, in which such an attempt to introduce an exception, not found in the Constitution itself, has failed of success." After referring to settled constructions of the grant to Con gress of power of exclusive legislation in all cases whatsoever within the District of Columbia, and power to regulate commerce with foreign nations, — Jutige Curtis, on page 623, proceeds to say: " While the regulation is one ' respecting the territory,' while it is, in the judgment of Congress, ' a needful regulation,' and is thus completely within the words of the grant, while no other clause of the Constitution can be shown, which requires the in sertion of an exception respecting slavery, and while the jiractical construction for a period of upwards of fifty years forbids such an exception, it would, in iny opinion, violate every sound rule of in terpretation to force that exception into the Constitution upon SLAVERY IN THE TERRITORIES. 549 the strength of abstract political reasoning, which we are bound to believe tho pcoplo of the United States thought insufficient to induce them to limit the power of Congress, because what they have said contains no such limitation. " Before I proceed further to notice some other grounds of supposed objection to this power of Congress, I desire to say, that if it were not for my anxiety to insist upon what I deem a correct exposition of the Constitution, if I looked only to the purposes of the argument, the source of the power of Congress asserted in the opinion of the majority of the court would answer those purposes equally well. For they admit that Congress has power to organize and govern the Territories until they arrive at a suitable condition for admission to the Union ; they admit, also, that the kind of Government which shall thus exist should be regulated by the condition and wants of each Territory, and that it is necessarily committed to the discretion of Congress to enact such laws for that purpose aa that discretion may dictate ; and no limit to that discretion has been shown, or even suggested, save those positive prohlbltloHS to legislate, which are found in the Constitution. " I confess myself unable to perceive any difference whatever between my own opinion of the general extent of the power of Congress and the opinion of the majority of the court, save that I consider it derivable from the express language of the Consti tution, while they hold It to be silently implied from the power to acquire territory. Looking at the power of Congress over the Territories as of the extent just described, what positive pro hibition exists in the Constitution, which restrained Congress from enacting a law in 1820 to prohibit slavery north of thirty- six degrees thirty minutes north latitude ? " The only one suggested is that clause in the fifth article of the amendments of the Constitution which declares that no person shall be deprived of his life, liberty, or property, without due process of law. I will now proceed to examine the question, whether this clause is entitled to the effect thus attributed to it. It is necessary, first, to have a clear view of the nature and incidents of that particular species of property which is now in question. 550 SLAVERY IN THE TERRITORIES. " Slavery, being contrary to natural right, is created only by municipal law. This is not only plain in itself, and agreed by all writers on the subject, but is inferable from the Constitution, and has been explicitly declared by this court. The Constitu tion refers to slaves as ' persons held to service in one State, under the laws thereof ' Nothing can more clearly describe a status created by municipal law. In Prigg v. Pennsylvania, (16 Pet. 611,) this court said : ' The state of slavery Is deemed to be a mere municipal regulation, founded on and limited to the range of territorial laws.' In Eankia v. Lydia, (2 Marsh. 12, 470,) the Supreme Court of Appeals of Kentucky, said : ' Slavery is sanctioned by the laws of this State, and the right to hold them under our municipal regulations is unquestionable. But we view this as a right existing by positive law of a municipal character, without foundation in the law of nature or the unwritten common law.' I am not acquainted with any case or writer questioning the correctness of this doctrine. (See also 1 Burge, Col. and For. Laws, 738—741, where the authorities are collected.) " The status of slavery Is not necessarily always attended with the same powers on the part of the master. The master is subject to the supremo power of the State, whose will controls his action towards his slave, and this control must be defined and regulated by the municipal law. In one State, as at one period of the Roman law, it may put the life of the slave into the hand of the master ; others, as those of the United States, which tol erate slavery, may treat the slave as a person, when the master takes his life ; while in others, the law may recognize a right of the slave to be protected from cruel treatment. In other words, the status of slavery embraces every condition, from that in which the slave is known to the law simply as a chattel, with no civil rights, to that in which he is recognized as a person for all pur poses, save the compulsory power of directing and receiving the fruits of his labor. Which of these conditions shall attend the status of slavery, must depend on the municipal law which creates and upholds it. " And not only must the status of slavery be created and measured by municipal law, but the rights, powers, and obliga- MR. JUSTICE CURTIS' OPINION. 551 tions, which grow out of that status, must be defined, protected, and enforced, by such laws. Tlie liability of the master for the torts and crimes of his slave, and of third persons for assaulting or injuring, or harboring or kidnapping him, the forms and modes of emancipation and sale, their subjection to the debts of the master, succession by death of the master, suits for freedom, the capacity of the slave to be party to a suit, or to be a witness, with such police regulations as have existed in aU civihzed States where slavery has been tolerated, are among the subjects upon which municipal legislation becomes necessary when slavery Is introduced. " Is it conceivable that the Constitution has conferred the right on every citizen to become a resident on the Territory of the United States with his slaves, and there to hold them as such, but has neither made nor provided for any municipal regu lations which are essential to the existence of slavery ? " Is it not more rational to conclude that they who framed and adopted the Constitution were aware that persons held to service under the laws of a State are property only to the extent and under the conditions fixed by those laws ; that they must cease to be available as property, when their owners voluntarily place them permanently within another jurisdiction, where no municipal laws on the subject of slavery exist ; and that, being aware of these principles, and having said nothing to interfere with or displace them, or to compel Congress to legislate In any particular manner on the subject, and having empowered Con gress to make all needful rules and regulations respecting the territory of the United States, it was their intention to leave to the discretion of Congress what regulations, If any, should be made concerning slavery therein ? Moreover, If the right exists, what are its limits, and what are its conditions ? li citizens of the United States have the right to take their slaves to a Terri tory, and hold them there as slaves, without regard to the laws of the Territory, I suppose this right is not to be restricted to the citizens of slaveholding States. A citizen of a State which does not tolerate slavery can hardly be denied the power of doing the same thing. And what law of slavery does either take with 552 MR. JUSTICE CURTIS' OPINION. him to the Territory P Tf it be said to be those laws respecting slavery which existed in the particular State from which each slave last came, what an anomaly is this ? Where else can we find, under the law of any civilized country, the power to intro duce and permanently continue diverse systems of foreign muni cipal law, for holding persons in slavery ? I say, not merely to introduce, but permanently to continue, these anomalies. For the offspring of the female must be governed by the foreign mu nicipal laws to which the mother was subject; and when any slave is sold or passes by succession on the death of the owner, there must pass with him, by a species of subrogation, and as a kind of unknown yws in re, the foreign municipal laws which con stituted, regulated, and preserved the status of the slave before his exportation. Whatever theoretical importance may be now supposed to belong to the maintenance of such a right, I feel a perfect conviction that it would, if ever triedj prove to be as im practicable In fact, as it ia, in my judgment, monstrous in theory. " I consider the assumption which lies at the basis of this theory to be unsound ; not in its just sense, and when properly understood, but in the sense which has been attached to it. That assumption is, that the territory ceded by France was acquired for the equal benefit of all the citizens of the United States. I agree to the position. But it was acquired for their benefit in their collective, not their individual, capacities. It was acquired for their benefit, as an organized political society, subsisting as ' the people of the United States,' under the Constitution of the United States ; to be administered justly and impartially, and as nearly as possible for the equal benefit of every individual citizen, according to the best judgment and discretion of the Congress ; to whose power, as the Legislature of the nation which acquired it, the people of the United States have committed its administration. Whatever Individutd claims may be founded on local circumstances, or sectional differences of condition, cannot, in my opinion, be recognized in this court, without arrogating to the judicial branch of the Government powers not committed to it ; and which, with all the unaffected respect I feel for it, when acting in its proper sphere, I do not think it fitted to wield. SLAVERY IN THE TERRITORIES. 553 " Nor, in my judgment, will the position, that a prohibition to bring slaves into a Territory deprives any one of his property without due process of law, bear examination. " It must be remembered that this restriction on the legis lative power is not peculiar to the Constitution of the United States ; ' it was borrowed from Magna Charta ; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of the great charter. It existed in every political community in Ame rica in 1787, when the ordinance prohibiting slavery north and west of the Ohio was passed. " And if a prohibition of slavery in a Territory in 1820 vio- .^lated this principle of Magna Charta, the ordinance of 1787 also violated it ; and what power had, I do not say the Congress of the Confederation alone, but the Legislature of Virginia, or the Legislature of any or all the States of the Confederacy, to consent to such a violation ? The people of the States had conferred no such power. I think I may at least say, if the Congress did then violate Magna Charta by the ordinance, no one discovered that violation. Besides, if the prohibition upon all persons, citizens as well as others, to bring slaves into a Territory, and a declara tion that if brought they shall be free, deprives citizens of their property without due process of law, what shall we say ofthe le gislation of many of the slave-holding States which have enacted the same prohibition ? As early as October, 1778, a law passed in Virginia, that thereafter no slave should be Imported Into that Commonwealth by sea or by land, and that every slave who should be Imported should become free. A citizen of Virginia purchased, in Maryland, a slave who belonged to another citizen of Virginia, and removed with the slave to Virginia. The slave sued for her freedom, and recovered it ; as may be seen in WUson v. Isabel, (5 Call's R. 425.) See also Hunter v. Hulsher, (1 Leigh, 172 ;) and a similar law has been recognized as valid in Maryland, in Stewart v. Oaks, (5 Har. and John. 107.) I am not aware that such laws, though they exist in many States, were ever supposed to be in conflict with the principle of Magna Charta incorporated into the State Constitutions. It was cer- 554 POLITICAL DOCTRINES tainly understood by the Convention which framed the Constitu tion, and has been so understood ever since, that, under the power to regulate commerce, Congress could prohibit the impor tation of slaves ; and the exercise of the power was restrained till 1808. A citizen of the United States owns slaves in Cuba, and brings them to the United States, where they are set free by the legislation of Congress. Does this legislation deprive him of his property without due process of law ? If so, what becomes of the laws prohibiting the slave trade ? If not, how can a similar regulation respecting a Territory violate the fifth amendment of the Constitution ? " § 502. The proposition, that the several States of the Union, or their citizens, are equally entitled to the use and benefit of the territory belonging to the United States ; that the maintenance of slavery in every part of such territory is essential to enable the slave-holding States, or their citizens, to enjoy equally with the non-slaveholding States, or their citizens, that use and benefit of the territory ; and that, therefore. Congress had no poioer to abolish or prohibit slavery in the Louisiana Territory is, as main tained by some of the Justices in this case, a judicial or legal rule, or a rule of law, one by which the rights and obligations of natural persons may be coercively maintained and judicially de termined. And it is equally so whether the right which is as serted by the denial of the power is one vested in the individual citizens of the slave-holding States, or one vested in the slave- holding States as political persons ; that is, whether the principle is applied as public or as private law.' For in either case the obligations which are enforced, as correlative to the right which is maintained, are obligations of private persons. § 503. As such judicial or juridical rule, the proposition should be distinguished from one which may be expressed iu very similar terms. This is, that the several States, or their citizens, are equaUy entitled to the use and benefit of the territory be longing to the United States ; that the powers held by the na tional Government in respect to this territory are held under the obligation or trust of securing to the several States, or their ' Ante, § 25. AS TO THE TERRITORIES. 655 citizens, this equality ; that the maintenance of slavery in every part of such territory is essential to enable the slave-holding States, or their citizens, to enjoy equaUy with the non-slave holding States, or their citizens, that use and benefit of the ter ritory ; and that, therefore. Congress has no right to abolish or prohibit slavery in any of the Territories. ^ ^ For whether the States, as political persons, or the individual citizens of the several States are the persons thus supposed to be equally entitled to the use and benefit of the territory, this pro position is only a pohtical rule ; or, negatively, it is not asserted as a rule of law, or one by which the rights and obhgations of. private persons are coercively maintained and judicially deter mined. The obligation, correlative to the right asserted, is one on the part of the Government as a political agent, and beyond the reach of the judiciary, which is a part of the same Govern ment. § 504. It may be doubted whether a majority of those mem bers of Congress, or persons in other spheres of public action, who have contended against the legislative prohibition of slavery in the Territories, have maintained the above proposition as a rule of law judicially applicable, or as being other than a political principle. The late Mr. Calhoun, who Is well known to have in sisted on the strictest construction of all powers of the national Government, when the question was of their exercise for the re striction of slavery, may on many occasions have advocated propositions which, as now read, may be understood to assert the doctrine as a rule of public law and one judicially cognizable.' ' See Calhoun's Works, IV., 339-349, the resolutions presented by him in the Senate of the U. S., Feb. 19, 1847, and Mr. Calhoun's remarks on that occa sion. Ibid. 535-541, Remarks on the proposition to establish territorial Governments in New Mexico and California, Feb. 24, 1849. Ibid. 562-565, in his speech, March 4, 1850, where Mr. Calhoun asserts to the fullest extent the power of Congress over slovery in the Territories, while claiming, as a constitutional right, its exercise in sus- toining slovery. Compare remarks on Mr. Colhoun's position in this question ond on the distinction of the doctrine, ns o political rule or as a legal one, in the review of Dred Scott's caso, in Monthly Law Reporter, April, 1857, p. 35. "The resolutions of Feb. 1847, were as follows : "Resolved, Thot the Territories of the United States belong to the several Stotes composing this Union, and are held by thom as their joint and common property. " Resolved, That Congress, as the joint agent and representative of the States of this Union, has no right to make any law, or do any act whatever, that shall directly, or by its effects, moke any discrimination between the States of this Union, by which 556 POLITICAL DOCTRINE DISTINGUISHED But Mr. Calhoun appears to have asserted the doctrine as a po litical rule only. Such an interpretation of his language would not be inconsistent with the doctrine of private law which he is believed to have held, that slavery is legal, or judicially cognizable, in all territory belonging to the United States, independently of positive legislation ; that is, even when no statute has been enacted on the subject by the possessors of sovereign power in and for the territory, (whoever they may be,) and that it wUl continue to be lawful there, untU prohibited by such statute.' This question, which is purely one of positive law, that is, of law applicable by judicial tribunals, is to be examined in a later portion of this treatise. . § 505. On page 448 of the report. Chief Justice Taney says of the powers of the Government in this respect, " Whatever it acquires it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interest of the whole people of the Union in the exercise of the powers specifically granted." And on the same page, " it [the Territory] was ac quired by the General Government as the representative and trustee of the people of the United States, and it must, therefore, be held in that character for their common and equal benefit, for it was the people of the several States, acting through their agent and representative, the Federal Government, who, in fact, ac quired the Territory in question, and the Government holds it any of them shaU he deprived of its fuU ond equal right in any territory of the United States, acquired or to be acquired. Resolved, That the enactment of any law, which sliould directiy, or by its effects, deprive the citizens of any of tho States of this Union from immigrating, with their property, into any of tho territories of tiie United States, Avill moke sucli discrimination, and would, therefore, be u violation of tho Constitution mid the rights of the States from which such citizens emigrated, and in derogation of that perfect equality which belongs to them as members of this Union, and would tend ducctly to subvert the Union itself " Resolved, That it is a fundomental principle in our politicol creed, that o people in forming o Constitution hove tho unconditional right to form ond adopt tho govern ment which they may tiiiuk best calculated to secure tiieir liberty, prosperity, and happiness; ond that, in conformity thereto, no otiier condition is imposed by the Federal Constitution on a Slate in order to be admitted into tliis Union, except that its constitution shall be repubUcan, and that the imposition of any other by Congress would not only be iu violation of tiio Constitution, but in direct conflict witli the prin ciple upon which our poUticol system rests." ' Ante, p. 4'J3, note. FROM THE JUDICIAL RULE. 557 for their common use untU it shall be associated with the other States as a member of the Union." But It would appear that so far as this doctrine of the equality of the States or of the people of the States in respect to the use and benefit ofthe Territory was recognized by the Chief Justice and by Justices Wayne and Grier affirming the opinion of the court, that they agreed with Justices McLean and Curtis, In considering it as a political principle only ; a rule to govern Con gress in the exercise of the power of determining all rights and obhgations of private persons In the Territory lohere not limited by provisions in the Constitution of the nature of a bill of rights operating as private law. As to the extent of the guarantee of private property in this part of the Constitution, there was a dif ference of opinion ; but no one of these members of the Court appears to have taken the principle either as a rule determining the location of juridical power, in respect to the status or con dition of private persons, or as one which could in itself enable judicial tribunals to determine any rights or obligations of private persons. Justices Daniel, Campbell, and Catron, on the contrary, all, with more or less consistency, recognize the proposition aa a ju ridical rule, one by which the status of persons in the Territories may be judicially determined. Judge Daniel, on page 489 of the report, {ante, p. 532,) re gards the right asserted, in denying the power of Congress, as one belonging to the individual citizens of the slave-holding States as those who, with the individual citizens of the non-slaveholding States, are equally entitled to whatever use or benefit private persons may have of the territory. Judge Daniel therefore ap plies the rule as private law. Judge Campbell, on the other hand, regards the right thus vindicated as one belonging to the States in their political per sonality ; or, taking the principle as a rule of public law, holds that the rights and obligations of natural persons residing in the Territories, which are incident to personal condition or status, are not dependent on the national powers or those vested In the fed eral Government, but depend upon the juridical will of some 558 SLAVERY IN THE TERRITORIES. other possessors of sovereign power, for whom that Government is, in the Territory, only the agent or trustee. Judge Catron also spoke of the right vindicated against the power of Congress as the right of the States, asserting that the slave-holder's right is protected in virtue of the equijlity of his State, (p. 527 of the report, ante, p. 540.) At the same time Judge Catron seems to rely on the protective effect of the treaty with France as creating an exception to the ordinary powers of Congress in respect to status of persons in the Territory, and to recognize Congress as the only possessor of juridical power in such Territory. § 506. The opinions of the several justices in Dred Scott's case, on the question of the constitutionality of the act of Con gress of 1820 in prohibiting slavery, have been here cited under the general Inquiry whether State legislatures, or (assuming that the national Government has in the Territories the powers ordi narily held by a State Government) Congress legislating for the Territories, &c., has the power to prohibit or abolish negro slavery.' It appears that of the six members of the Court who denied the constitutionality of the Act, four based that denial on the ground that slaves are property, in view of the Constitution op erating as a bill of rights, and that the act of Congress was an infringement of that guarantee. Of these members of the Court, Chief Justice Taney, and Justices Wayne and Grier adopting the opinion written by the Chief Justice, held that slaves are property by tho national law, because rights of property in respect to them are specially recog nized in the written Constitution, and also because slaves are property by common law, or an unwritten jurisprudence embraced in the national jurisprudence, independently of any specific re cognition of slavery in the written Constitution. Mr. Justice Daniel, in maintaining the protection of slavery in the Territories under the constitutional guarantee of private property, appears to have relied solely on the clauses of the written ' Ante, §§ 488, 489. DRED SCOTT V. SANDFORD. 659 Constitution referring to slaves, as containing the recognition of slavea, as property, by the national law. Mr. Justice Campbell denied the power of Congress on the ground that the relation of master and slave in the Territories depends upon some other possessor of legislatlve'or juridical power. And Judge Daniel seems to have been with Judge CampbeU in this doctrine, to some extent. Mr. Justice Catron's assertion of the exclusive power of Con gress in reference to the Territory and his distinct reliance on the treaty of cession, as limiting the power In respect to Louisiana, prevent the inference that he agreed in either of the doctrines above stated ; however much his language, In some parts of his opinion, may accord with one or the other. Three distinct grounds of denying the power of Congress were therefore relied on in this case ; but no one of these was sup ported by more than four of the nine members of the Court.' Independently of the question whether the opinion on the con stitutionality ofthe act of Congress was extrajudicial, if it is the reason of a decision, or the ground on which it is made, which is authoritative,'' this diversity of opinion, as to the governing prin- ' In cose of o majority of votes in Kansas Territory for Constitution with no slav ery, the (Lecompton) constitution to be odopted for the Stote by that vote under the organic law contained this clause : " no slavery shaU exist in the State of Kansas, ex cept that the right of property in slaves now in the Territory shaU in no manner be interfered with." AUuding to this. President Buchanan, in his message, Deo. Sth, 1857, observes, " These slaves were brought into the Territory under the Constitution of the United States, nnd are now the property of their masters. This point has at length been finally decided by tbe highest judicial tribunal of the country, and upon this plain principle, that when a confederacy of sovereign States acquire a new terri tory at their joint expense, both equality and justice demand that the citizens of one ond all of thera have the right to take into it whatever is recognized as property by the common constitution." ' The decision in Dred Scott's case was, that slavery had always been sanctioned in that Territory by the local law ; Congrc.«i.'i liaving had no power to alter the local law in thot respect. From tho President's reference to the cose, it would be thought that tho court hod dcclrlod that slaves cnriiod into nny 'Territory of the U. S. lire slaves still. That doctrine mny be a iicccssnry conclu.sinn from a denial of tho power in Congress on the ground that slaves are " property by the common constitution," or on the ground that the equality of the States or their citizens in the use nnd benefit of the Territories forbids the abolition of slavery. ]5ut neither of thoso two grounds was maintained by a mnjority of tho Court, 'f hoy are entirely distinct, nnd though some passages in Judge Catron's opinion nro verj' similar in Innguogo, no member of tho Court connected the two doctrines as the President has done in this instance. ' Rom on Legal Judgment, pp. 19-23. 36 560 ARGUMENT ON THE CONSTITUTION. ciple, should be taken into account in estimating the legal force of the decision. § 507. It has frequently been asserted that in and by those clauses in the Constitution which recognize some persons as not being free by the laws of the States wherein they are found, or from which they may have escaped,' the rights of other persons, in respect to them, under the State law, are thereby maintained by the national law as rights in respect to property as distin guished from persons. The process of reasoning which should support such a con clusion has not been stated iu asserting the proposition. It may be supposed to resemble the foUowing. The Constitution here recognizes rights In respect to natural persons which exist under a State law. The Constitution and the State law recog nize here a right in respect to the same object.* By the State law these natural persons may be property, and not legal persons. Now if the State law recognizes the object of the right as prop erty or a chattel, the Constitution in recognizing the same ob ject of the right, must recognize the natural person as that ob ject which the State law recognizes ; but that is a chattel or property. Therefore, — conclusion, that the Constituticn recog nizes the object of the right as a chattel, and, iu saying persons, means property as distinguished from persons. The argument rests on the fallacy that it is impossible for one juridical person to recognize a right, in respect to a natural person as its object, which is created by another juridical person, without recognizing him as a chattel, if so considered by that other. ' The Constitution contains those clauses. Art. I. sec. 2. " lleprosentativos and direct taxes shall be apportioned omong the several States which may be included within this Union, according to their respective numbers, which shall be determined by odding to the whole number of frco persons, including those bound to service for o term of years, and excluding Indians not toxed, tliree-fifths of all other persons. Sec. 9. " The migration or importation of such persons os any of tho States now existing shall think proper to admit, shall nut bu prohibited by the Congress prior to the year one thousand eight hundred and eight ; but a tax or duty may be imposed on such importation, not exceeding ten dollars for eacli person." Art. rv. sec. 2. " No person held to service or labor in one State, under tlie laws thereof, escaping into another, slioU in consequence of any law or regulation therein, bo discharged from such service or hibur, but shall be delivered up on claim of the party to whom such service or labor may bo due." ¦¦' Ante, § 24. CONSTITUTIONAL RECOGNITION. 561 § 508. In the proposition above noticed, it is merely asserted that the slave Is recognized, by the national juridical authority, as property, whUe he is subject to some State law, either as being within its territory, or a fugitive from it." It may be doubted whether, before this opinion of the Chief Justice, sup ported by Justices Wayne, Grier, and Daniel, it has ever been maintained by any persons, that not only, by these clauses, are slaves recognized as property within the State jurisdiction and when fugitive, but also, in these clauses, they are, by the juridical action of the nation, recognized as property throughout the entire dominion of the United States. No argument has been put forth as leading to such a conclusion. It seems to be founded on an assumption that there is no distinction between rights supported by a law of national authority and rights supported by law having national extent ; that If the national authority sup ports the master's right, in any case, as a right of property, the national law supports it as a right of property everywhere. The doctrine requires, apparently, the admission of two faUacies. This question of the proper interpretation of these clauses of the Constitution, or whether, in them, slaves are recognized as persons or as property, will be more fully considered In another portion of this treatise as a question of the quasi-xntexnatJionaS. law of the United States, or that law which Is national in its au thority and international In its effect as between the States, and by the character of the persons whose rights and obligations it determines. § 509. But in the first part of the extract from the opinion delivered by the Chief Justice, the broader ground seems to be relied on that the slave-holder's right comes within the guarantee, because there is no " difference between property in a slave and ' So even Judge Story, in Prigg's case, 16 Peters, 613, holding that by the operation ofthe constitutional provision the fugitive slave was still in the some condition ho had been in, in the State from which ho had escaped, and, thereiore might bo seized by his owner and carried back without pubUo authority notwithstanding it was declared in the same provision that the fugitive person should be de/t.W up on f^f^^^jfj^u Baldwin, in Groves .. Slaughter, 15 Peters, 615, holdmg that ^^^^f ''^«'°S P^ rf by the law of any State, the owners are protected fr<>™ ""V'°'^.''°? °/ ,,*' ['Sl'ts^ nronertv bv Congress under the fifth Amendment of the Constitution, only claim That wMle their cLditiou is determined by State outhority to be property, the national Government must also recognize thera as property. 562 LEGISLATIVE CRITERION. other property ;" or, perhaps, the doctrine held may be thus expressed : that there is no distinction in law, or in the juris prudence which may be applied by the national judiciary, be tween rights of property in respect to slaves, and, rights in respect to slaves as property. § 510. In any inquiry into the extent of terms used in the definition of chartered rights, (I. e., rights which have long been secured by written charters or bills of rights,) it is to be noticed that whether the judicial function is relatively superior, or co-or dinate, or subordinate, the practice of the legislating bodies, whose power in this respect Is to be ascertained, and that of their actual predecessors, is the admitted ordinary exponent of the rule which is to determine the question. For, since in the very great majority of instances the action of the judiciary follows that of the legislature, if any conflict should arise as to the extent of the legislative function, a public customary law known by the continued, before-undisputed exercise of the leg islative power. Is all that can be appealed to. Now the legislative exposition of the law, which is given in asserting legislative power to create, modify, or terminate the right of ownership in respect to natural persons has, in the his tory of the worid, been constant, concurrent, and continued, from the " time whereof the memory of man runneth not to the contrary ;" and the same power, as exercised solely with reference to the slavery of negroes, Indians, and others not of Caucasian or European race, has been illustrated in the legislative history of tbe British empire and of the colonies, as presented in the former part of this work, in the claims of the revolting colonies against parliament,' and in the history of local law in all the States, both those wherein negro slavery has been abolished and thoso wherein it has continued. As will be more particularly shown hereafter in that connection, the entire power over slavery of persons not of European or white race, to establish, modify, or abolish it, has in roost of the States been assumed by the constituted legislatures, without question from the ju diciary ; unless specific provibions limiting the legislature in this * Ante, p. 225, note i. CRITERION OF PROPERTY. 563 respect have, as in some of the southern States, been introduced into the written Constitution. It appears never to have been ju dicially doubted, before this decision, that the entire power over the subject was in the constituted legislatures ; in that of the State Governments for the States, and In Congress for the Ter ritories, &c., unrestrained by common law or by bills of rights. And, until the Act of Congress of May 30, 1854, popularly known as the Act repeaUng the Missouri Oorapromise,'^ the power had been exercised without question by Congress legis lating for the Territories. § 511. The Chief Justice, in that part of the Opinion which has been referred to, notices the fact that " the laws and usages of nations and the writings of eminent jurists upon the relation of master and slave, and their mutual rights and duties and , the powers which governments may exercise over It, have been ' Entitled, An Act to organize tJif Territories of Nebraska and Kansas. In sec 14, it is provided, " That the Constitution and all laws of tho United States, which ore not locally inopplicable, shall have the same force aud effect within tho said Territory of Nebraska as elsewhere within tbe United States ; except the eighth section of the act preparatory to the admission of Missouri into the Union, approved March sixth, eighteen hundred and twenty, which being inconsistent with the principle of non-in tervention by Congress with slavery in the States and Territories, as recognized by the legislation of eighteen hundred and fifty, commonly called the Comproraise Measures, is hereby declared inoperative and void; it being the true intent and mean ing of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leove the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United Stotes, Provided, that nothing herein contoined shall be construed to revive or put in force any law or regulation which may have existed prior to the act of 6th March, eighteen hundred and twenty, either protecting, establishing, prohibiting, or abolish ing slavery." Sec. 32, applies the same words to Kansas. 'The acts of 1 850, referred to here, ore not particularized. Those popularly known as the Compromise Measures, are laws 31st Congress, ch. 47, entitled An Act proposing to the State of lixas the Establishment of her Nartkem and Western Boundaries, the Retinqm.shment by the said State of all Territory claimed by her exterior to said Boundaries, and of all lier claims upon the United States, and to estoMish a Territorial Government for New Mexico. Sec. 2, of this oct provides, "That, when admitted as a State, the said Territory, [of New Mexico,] or ony portion of the same, shall be received into the Union, with or without slovery as their constitution may prescribe at the time of their admission." Also, ch. 50, An Act for the Admission of the State of Calif ornia into the Union ; ch. 51, An Act to establish a Territorial Government for Utah ; in neither of which last is any thing said about slavery ; ch. 60, The fugitive slave low, and ch. 63, An Act to suppress the Slave Trade in the District of Columbia. The act of Mar, 6, 1820, was entitled, for the admission of Missouri and "to prohibit slavery in certain territories.'" Sec. 8, provided, " That iu all that territory ceded by France to the United States, under the name of Louisiano, which lies north of thirty- six degrees and thirty minutes north latitude, not included within the Umits of the State contemplated by this act, slavery and involuntary servitude, otherwise thon in the punishment of crimes whereof the parties shall hove been duly convicted, shoU be ond is hereby for ever prohibited." 564 CRITERION OF PROPERTY. dwelt upon in the argument" of this case, as determining whether, as was urged or supposed on one side, " there is a dif ference between property in a slave and in other property, and that different rules may be applied to it in expounding the Con stitution of the United States." If the term " law of nations," is here taken in the sense usuaUy given to it in English and American jurisprudence,' the sense of pubhc international law, a law of imperfect obligation, acting on states or nations as its subjects, the very definition of that law maintains the declaration of the Chief Justice, " that there is no law of nations standing between the people of the United States and their Government and interfering with their relation to each other." So, too, it must be admitted by all who recognize the Constitution as the supreme pubUc law, that " the powers of the Government and the rights of the citizen under it are positive and practical regulations plainly written down. The people of the United States have delegated to it cer tain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted." It foUows also, from the recognition of the constituting people of the United States as a sovereign, that " no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government or take from the citizens the rights they have reserved." These propo sitions seem to be unquestioned. As Mr. Justice Catron says, on page 519 of the report, " That Congress has no authority to pass laws and bind men's rights beyond the powers conferred by the Constitution is not open to controversy." § 512. But when the question before a judicial tribunal is, as it was stated by the Chief Justice, on page 444 of the report, " what power Congress can constitutionaUy exercise in a Terri tory over the rights of persons or rights of property of a citizen ;" or, when, as said by Mr. Justice Catron, on page 519, " it is insisted that, by the Constitution, Congress has power to legis- ' Cumparo ante, § HU. CRITERION OF PROPERTY. 565 late for and govern the Territories of the United States, and that by force of the power to govern, laws could be enacted, prohibiting slavery in any portion of the Louisiana Territory, and, of course, to abolish slavery in all parts of it, whilst it was, or is, governed as a Territory ;" and when the tribunal refers to those provisions of the Constitution which are in the nature of a bill of rights, or operate as private law in securing rights to private persons throughout the whole dominion of the people of the United States, as against the constituted Government, and designates the clause declaring that no person shall be deprived of property without due process of law, as securing a particular right in controversy ; it is to be presumed, (and in direct pro portion with the respect due to the court is the strength of the presumption,) that the judge wiU conceive of property according to Some standard, criterion, or definition known to, and cus tomarily accepted by, the possessors of sovereign power whose wiU he is to apply as law ; that the standard of property wiU not be merely such aa he himself conceives to be proper, expe dient, morally or politically desirable, or conformable to the law of nature, simply as he conceives it to be.' If there is no written or statute law, derived from this pos sessor of sovereign power, whose will and whose wIU alone the tribunal can enforce, which declares what is or is not property, the definition must be found in an unwritten or customary law which has been maintained by that possessor of sovereign power. § 513. There may be cases, coming before the national judi ciary in its appUcation of the gMasi-international law, in which rights and obUgations are to be determined according to the law of one of the several States or a local municipal law ; though ' Wynehomer agst. the People, (a case under the prohibitory liquor law,) 3 Kernan 386; Comstock, J., "The foundation of property is not in philosophic or scientific speculations, nor even in suggestions of benevolence and philanthropy. It is a simple ond intelligible proposition, admitting in the nature of the case no quolifaoation, that that is property which the low of the land recognizes as such. It is, in short, an in stitution of law, and not a result of speculation in science, in morals, or economy. And so in determining this question of property in negroes, it is equally immotenol whether negroes naturally are and ought, legally, to be hold equal to whites, or whether they naturally aro and ought, legally, to he held inferior creotures, and, as domestic animals, merely mstruments m the possession of legal persons. 566 CRITERION OF PROPERTY. they are to be enforced or maintained by the national authority.' But in the case before the court, the question was not of a standard of property accordant with the juridical will of some one State, or with that of any number of the several States.' The question was, indeed, one of a local municipal law, the law prevailing in one of the Territories, but a law derived from the juridical wiU of the nation, the integral people of the United States. There was no written or statutory enactment, proceeding from that integral people, which defined property, nor any dis tinguishing between legal persons and legal things, much less any declaring that natural persons held in servitude are or may be property in the juridical sentiment of that integral people. The standard or criterion of property was, therefore, only to be found in unwritten or customary law, identified with the law giving authority of the nation, the constituting people of the United States.^ § 514. Now although it may be admitted that there is no separate, distinct rule of action, derived only from precedent and custom, which has territorial extent within the entire domain of the United States as one nation ; that the law of the United States is found in the written Constitution and the acts of Con gress passed in pursuance of it ; that, in civil cases, the national judiciary applies common law as the rule obtaining within some one State or several jurisdiction of the United States, and has no common law to apply in the exercise of Its criminal juris- ' Ante, §§ 368, 429. ' According to Mr Justice Campbell's view it is always the Constitution or law of some one State of the Union which in any place within the United States furnishes the legal criterion of what is or is not property, and " what these Constitutions and laws validly determine to be property, it is the duty of tho Federol Government, through the domain of jurisdiction merely Federal, to recognize to bo property." (p. 515 of rep.) As then, according to Judge Campbell's theory, there is no integral nation or people of tho U. S., there can be no national low determining what is or is not property. " From the whole of the extroot fi-om the Opinion, already given, it appears thot the Chief Justice olso referred to certain clauses in the Constitution as o legislative doclo- rotion thot slaves aro to be considered property. The reasons fur excopting to this have already been stated, p. 660. It would be too much like arguing in a circle to cite these clauses as declaring that slaves are to be regarded os property, and, on the otlier hand, refer to tho doctrine that slaves ore property, to interpret tlieso clauses. PROPERTY BY LAW OF NATIONS. 567 diction,' still it is absolutely impossible, from the nature of positive legislation, that its enactments should be judicially ap plied without reference to unwritten or customary rules,' and 'the meaning of words in the written Constitution cannot be ascertained without some reference to an unwritten jurispru dence.' Even should there be none such particularly identified with the juridical history of that particular possessor of sove reign power whose written law is to be applied, an unwritten jurisprudence is still judicially cognizable, that derived from the juridical history of civihzed nations, the law of nations,^ uni versal jurisprudence ; and hence, " the laws and usages of other nations and the writings and reasoning of statesmen and emi nent jurists," customarily received by the' judicial tribunals of other nations, are to be referred to as an exposition of natural reason, superior, for juridical purposes, to the individual opinions of the tribunal, because presumptively accepted by the possessor of sovereign power whose will it proposes to execute.^ And that such reference is recognized by the Court, in this case, as legitimate, particularly with reference to a standard of property and in distinguishing between natural persons as being either legal persons or chattels, ' appears from that portion of the Opinion in which it is held that negroes are not citizens, page 407 of the report ; referring to " the public history of every European nation ;" that the negro " was bought and sold and treated as an ordinary article of merchandise and traf&c whenever a profit could be made by it. This opinion was at that time fixed and universal in the civUized portion of the white race," &c.' § 515. The reference is to the law qf nations in the sense of universal jurisprudence, the jus gentium in that sense in which the term was used by the Koman jurists, a law always pre sumptively existing in the municipal (national) law of every civiUzed country.' In determining then what is or what is ' Ante, p. 479-482. Wheaton v. Peters, 8 Peters, 691. Curtis' Comm. § 19, and cases noted. ' Lieber's Legal and Political Hermeneutics, ch ii. ' Ante, § 428. 1 Kent's Comm. 336. " AntB, §§ 33, 34, and pp, 200-202. » See a-nte, p. 207, note. ° Ante, §§ 94, 95, 100. 568 LAW OF NATIONS WHERE FOUND. not property, as secured against the national Government by the private law of the Constitution, the criterion is a universal jurisprudence, gathered, in the first instance, from the judicial practice of all nations, and, more definitively, those principles which the possessor of sovereign power, for whom the national judiciary acts, has before recognized as universal jurisprudence embraced in its own common, customary, unwritten law, and recognizable especially in that portion which is appUed as pri vate and pubUc international law.' §,516. It being a rule identified with the wiU of the integral nation, in distinction from any dependent for its authority on the several will of any State or States of the Union, which is to be ascertained,' the principles, maxims, or rules affecting status or the condition of private persons, which the national judiciary must thus recognize as universal principles and common law, are to be found only in the history of law having the same character and operating with national extent, and quasi-intei- national effect in the British empire, the revolting colonies and the thereafter succeeding independent States of the American Union ; and, as such, distinguishable from the common law which is historically known to have prevaUed in any one or more States of that Union.' § 517. This law is mutable, as every other rule resting on human authority. And a tribunal determining to-day, what is property by the law of nations, is bound to take the law of na tions of to-day, not that of some previous generation or pre vious century. It is a rule which depends for its juridical force, or for its acceptance as a judicial rule, not on the opinion of bygoiio nations and states, however powerful, or however wide their dominion or the fame of their arts, their arms, or their jurisprudence, but on the presently continuing assent of legislating nations. So far as the law of imperial Eome is now the index of the jus gentium, it is so not because it is, in itself, reason or natural justice ; but because it has been, and so far only as it has been, continuously accepted by modern civilized ' Ante, §§ 178, 170, L'90. ' On this comporo ante, ch. xii. " Compare ante, ch. xiv. PROPERTY BY LAW OF NATIONS. 569 states as their index of natural reason.' As the jus gentium of heathen Eome, making the captive and the cliUd of an en slaved mother, of European or Caucasian race, a property, has been changed in the jurisprudence of Christian nations, so the law of nations of the modem world, including the nations colo nizing America in the sixteenth, seventeenth, and eighteenth centuries, has changed in respect to negroes held in servitude. Property in negro men as chattels, wherever they are by law chattels or property, rests now only on the local law, the jus proprium, common law or statute law, as the case may be) of some one state or possessor of sovereign power over the condi tion of natural persons ; it has no foundation in universal juris prudence, the common law of the civilized Christian world. The proof of this has been given in the former part of this volume. § 518. And if it should be objected, that in this reference to a law of nations or a universal jurisprudence presumptively re cognized as a jural rule by the nation or by the people of the United States, the authors of the American Constitution, to determine what is or is not property in view of the constitutional guarantee, not the law of nations of to-day, nor yet that of the whole civiUzed world is the test, but one pecuhar to the people of the United States ; or, that one recognized among the States at the time of the formation of the Constitution of the United States must be received in that connection ; then the history of the law of the colonies and States is to be referred to, not as exhibiting the several or local laws of the States or their poUtical predecessors, but that law which was imperial or na tional in its authority, and intercolonial, national, or quasi-in- ternational in its extent in the British empire and among the States at the period of the formation of the Constitution. § 519. The juridical history of the States, as connected with conditions of freedom and its contraries, from the period of separation from Great Britain, (the point of time to which it has been brought in the sixth chapter,) to the date of the forma tion of the Constitution, is to be given hereafter. It will be ' Ante, p. 29. 570 QUESTION IN LAW OF NATIONS. there shown, and indeed it is too weU known to be here stated as questionable, that the changes which occurred during that period in the private law of the States, were all such as favored or extended the rights incident to a free condition, and discour aged or removed the disabilities incident to its contraries. But, independently of such changes as modifying the latv of nations or universal jurisprudence particularly identified with the jurid ical wUl of the constituent people of the United States, the in ternational and gMast-interhational laws which prevaUed as be tween the different parts of that empire in which the colonies had been included, to say nothing of the local laws of some districts, do not exhibit a criterion of property in natural per sons, as recognized by the political predecessors of that people, different from that afforded during the same period by any more general law of nations. That for many years before the Eevolution (whatever may have been the principles sustaining the slavery of a heathen negro imported into any one of the colonies) the condition of an Amer ican-born negro held in involuntary servitude, whether chattel slave or bond person, and the correspondent rights of the master or owner rested exclusively on the local law, jus proprium, of some one several colony, and were not internationaUy recognized, in the several parts of the empire, as effects of universal juris prudence, nor as such recognized by the common law of the na tion, has, it is believed, been demonstrated in the former chapters, which contain the history of conditions of freedom and bondage in the colonies, and of their recognition or non-recognition in the international cr g'Masi-international relations of the different portions ofthe empire. § 520. Prom the above argument it may appear that, in order to determine what is or is not property in view of the con stitutional guarantee, it is necessary to discriminate an un written jurisprudence or a " common law " which may be judi ciaUy identified with the juridical wUl of the people of the United States, the authors of the written Constitution. And, in view of this circumstance, it seems that the assertion that slaves are property in view of that guarantee, independently of any ^ QUESTION IN COMMON LAW. 571 specific recognition of them as property in other parts of the in strument, is equivalent to an assertion, that, unless declared un lawful by positive legislation proceeding from the possessors of sov ereign power to determine status or personal condition, (possessors known by the Constitution, regarded as evidence of the investi ture of any sovereign power,) slavery is a lawful status in every part of the United States, whether a State or a Territory of the United States ; or that (which is only stating the same doctrine under a different form,) when natural persons who, in any other jurisdiction or forum, have been by law in the relation of master and slave appear in any State or Territory of the United States, the right of the master and the correlative obligations of the slave and of aU other persons, wiU continue in such State or Territory by the unwritten or common law prevaihng therein, whether such master and slave do or do not acquire a domicU, unless such right and obligations have been prohibited by posi tive legislative enactment proceeding from the actual possessors of sovereign power to determine status or personal condition. And, it being assumed that the only possessors of sovereign power over status or personal condition, who are known under the Con stitution, are either the people ¦ of an organized State of the Union legislating for such State, or Congress legislating for the Territories, &c., to such extent as may not have been prohibited by the Constitution, the doctrine is, further, (independently of the question whether slavery may be abolished by the power of Congress,) that in all Territory of the United States, now be longing or hereafter to be acquired, not included within the Umits of an organized State of the Union, slavery is now and wUl be lawful under the local law thereof, that is both by the internal and the international law, the law applying to persons whether strangers or having a domicil therein. § 521. Although the opinion of Chief Justice Taney, in Dred Scott's case, supported by Justices Wayne and Grier, may be the sohtary judicial authority sustaining the doctrine above stated, it has, with greater or less openness, been advanced on different occasions, during the twenty or thirty years last past, by persons, occupying stations which entitie their opinions to be 572 SPEECH OF HON. J. P. BENJAMIN. considered, at least, juristical, if not judicial or juridical. But it has never, probably, been so prominently and distinctly as serted as by the Hon. J. P. Benjamin, of Louisiana, in his speech in the Senate of the United States, 11 March, 1858, on the Kansas BiU. And since, in stating what he justly regards as " fvmdamental " in the argument, the Senator so plainly pre sents that issue, in view of which this volume may be said to have been principally written, and also since he proposes to maintain his doctrine by that mode of reasoning which has herein before been used as legitimate, i. e., by an appeal to the history of jurisprudence in this countiy, and not by a priori assertions, the statement of his position is here given, as ex tracted from the printed speech, which bears the title. Slavery protected by the Common Law of the New World : guaranteed by the Constitution. Vindication of the Supreme Court of the United States.^ " Mr. President, — The whole subject of slavery, so far as it is involved in the issue now before the country, is narrowed down at last to a controversy on the solitary point, whether it be compe tent for the Congress of the United States, directly, or indirectly, to exclude slavery from the Territories of the Union. The Su preme Court of the United States have given a negative answer to the proposition, and it shall be my first effort to support that negation by argument, independently of the authority of the decision. " It seems to me that the radical, fundamental error which underUes the argument in affirmation of this power, is the as sumption that slavery is the creature of the statute law of the several States where it is established ; that it has no existence outside of the limits of those States ; that slaves are not prop erty beyond those limits ; and that property in slaves is neither recognized nor protected by the Constitution of the United ' The lost title was probobly adopted for this speech, not so much in view of its being o vindication of the law of the mojority of the Court in Dred Scott's cose, os of its being partly a reply to Mr. Seward's censures, in the some debate, on tho course of the majority of tho Supreme Court as having been iuliuenced by p«/iticul considerations. AU such matter of exception or defence is, of course, foreign tc the purpose of this treatise. SLAVERY BY COMMON LAW. 573 States, nor by international law. I controvert aU these propo sitions, and shaU proceed at once to my argument. " The thirteen colonies which, on the 4th of July, 1776, asserted their independence, were British colonies, governed by British laws. Our ancestors in their emigration to this country brought with them the common law of England as their birth right. They adopted its principles for their government so far as it was not incompatible with the peculiarities of their situ ation in a rude and unsettled country. Great Britain then having the sovereignty over the colonies, possessed undoubted power to regulate their institutions, to control their commerce, and to give laws to their intercourse, both with the mother country and the other nations of the earth. If I can show, as I hope to be able to establish to the satisfaction of the Senate, that the nation thus exercising sovereign power over these thir teen colonies did estabhsh slavery in them, did maintain and protect the institution, did originate and carry on the slave trade, did support aud foster that trade, that it forbade the colonies permission either to emancipate or export their slaves, that it prohibited them from inaugurating any legislation in diminution or discouragement of the institution ;' nay, more, if at the date of our Eevolution I can show that African slavery existed in England as it did on this continent, if I can show that slaves were sold upon the slave mart, in the Exchange and other public places of resort in the city of London as they were on this continent, then I shall not hazard too much in the as sertion that slavery was the common law of the thirteen States of the Confederacy at the time they burst the bonds that united them to the mother country." § 522. The brief historical summary of juridical acts, given in the continuation of this speech, upon which Mr. Benjamm • The Senator, to maintain the legality of slavery in the Territories ottributes the existence of slavery in the colonies to a national law of tho empire, a law derived from the powers vested by the public law ofthe colonial period in the crown and pariiament of England. Mr. Justice Campbell's argument, maintaining that Congress has no power upon the subject, (19 Howard, 501,) involves the doctrine that its existence de pended upon the local legislatures, and that tho exercise of power over slavery by the imperial Goveniment was rightfully resisted as usurpation. On this point compare, ante, § 215 and note, § 243. 574 THE QUESTION OF COMMON LAW. reUes, contains no essential fact which has not been considered more at length in the previous chapters of this work. The ob servations already made herein, on the question whether slaves are property in view of the Constitutional guarantee, apply equaUy to the propositions here laid down by the Senator. For it has been shown that slavery, as a legal effect, depended on the common law having a national extent throughout the em pire during the colonial period only, if at all, while it was at tributable to the latv of nations or the universal jurisprudence of the time ; that it was only the slave condition of imported heathen African slaves, if of any, which was so maintained or recognized by that law ; that the condition of the American- born negro, whether fi-ee or slave, depended entirely on the powers held by the local colonial Governments, and that if the slavery of such persons was within the colonies sustained by a common law, that law was still only the local law of a colony, and one distinguishable from the common law having national extent in aU parts of the empire. ' It foUows, therefore, that when in any several jurisdiction or forum of the United States, either a State or a Territory of the United States, the question is of the judicial recognition of slaveiy, as the condition of a person introduced from some other jurisdiction or forum wherein such slavery had been lawful, such slavery cannot be recognized or maintained simply on the ground that it is a status known to and recognized by the common law prevailing in such State or Territory as its local law, or " law of the land," where not prohibited by any statute." § 523. The question would be determined by those principles of private international law, including the so-caUed rule of comity, which have been set forth in the second chapter. These principles are indeed common law ; but if by applying them slavery should be recognized, such recognition would still be dis tinguishable from the judicial allowance of slavery under the doctrine, contained in Mr. Benjamin's propositions, that slavery is recognized by universal jurisprudence entering into aU common ' Comporo ante, §§ 281, 284, 288, 292, 293, 315, 810. " Compare ante, gg 95, 96, 110, 113, 201. DEFICIENCY OF TERMS. 575 law known in this country, and that it should, in the case sup posed, be regarded as an effect already known to the law having territorial extent in the forum, and one which is maintained under that law, irrespectively of the distinction of domicil. In any territorial jurisdiction of the United States, which should be like a State of the Union in having a local law, the continuance of the rights and obligations of masters and slaves emigrating thither would depend upon the question whether, by that law, rights inconsistent with slavery were attributed uni versally, or to all natural persons.' If within the national do minion there can be any territory which, like the colonies at the time of their first settlement, is vacant of any local law,' there could not, in such territory, be any such universal attribution of rights. And, in such case, it would appear that, on ele mentary principles, all rights and obligations of persons there found which had existed in their former domicU would continue to exist, so far as the relations to which they were Incident con tinued to be physically possible in such territory. Slavery, if so recognized in such territory might, indeed, be said to exist therein, or be carried thither, by the operation of a common law principle, a principle of unwritten jurisprudence. But its ex istence would not be attributable to common law in the ordinary sense of customary law having territorial extent in some one ju risdiction or forum. It would not have been recognized as a condition supported by universal jurisprudence, the law of na'- tions ; as the slavery of captured Indians and imported heathen Africans had been recognized in the colonial law. § 524. A principal obstacle to agreeing on any conclusion in these questions of slavery, one fuUy equal in effect to that caused by the prejudices or sympathies of disputants, is occa sioned by the want of terms by which to ' express existing dis tinctions. Thus the term positive lata is sometimes used, as in this work, to designate any rule which, as made coercive by some state, is so distinguishable from mere natural equity or natural justice ; such positive law being judicially derived either from the several juridical action of that state, creating a jus proprium, ' Compare ante, §§ 88-92, 113-118. ' ^"i^, §§ 123-126. • 37 576 AMBIGUITY OF PHRASES. which may be either statute or customary law, or from universal jurisprudence, the unwritten law of nations. But the same term, positive latv, is also very often used to designate statute law or positive legislation, as distinguished from custoinary or unwritten law derived by the judicial application of natural reason. Now since it has repeatedly been said by judges both in states where it is lawful and where it is not, that slavery rests on " positive law," ' the proposition is assumed by many persons as admitted, as for example, according to Senator Benjamin in the speech referred to, by the Senators on the other side " in nearly aU their arguments, that slavery is the creature of posi tive legislation and cannot be established by customary law or usage." ' Against which assumption Mr. Benjamin appropri ately cites Lord Stowell in the case of the slave, Grace, 2 Hag gard's E. 105, ante, p. 194, that in the English colonies slavery was legal by customaiy law alone. ' The leading authority being Lord Mansfield, in Somerset's cose. There is hardly any other decision in which the phrase positive law, simply or without qualifi- cotion, is used to designote the origin of slavery. But iu Neal v. Former, 9 Geo. R. 578, the court cites a large number of EngUsh oud American coses as holding the same doctrine. In most of the coses, such other terms are used alone or are made to qualify the term positive law, as to designate, with sutficient accuracy, a jus pro prium. Thus, Holroyd, J., iu Forbes v. Cochrane, 2 Rom. ond Cres-i. 461, "tlie plaintiff claims o generol property in thein "»*»«' nud he claims this property as founded not upon any municipal law of the country where he resides, hut upon n general right,'' ***** Assuming that there may be such o relation, it can only'have a local existence, wliere it is tolerated by the particular law of tlie place, to which all persons there resident ore bound to submit. Now if the plaintiff cannot mulutuiu this action under the general law of nature iudepeudontly of any positive institution, then his right of oction can be founded only upon somo right which he luis acquired hy the law of the countiy whoro ho is domiciled." P. 463, " the right of the muster, which is founded on the municipal law of the particular place only, does not continue." Here tbe term municipal law is used to express the conception of o jus proprium ; and see Lunsfoid V. Coquillon, 14 Martin's La. Rep, 402 ; Prigg's case, 16 Peters, 611, "The state of slavery is deemed to he a mere municipal regulation, founded on and limited to the range of territorial laws." Rankin v. Lydia, 2 Marshall, (Ky.) 470, " positive law of o municipal character." Curtis, J., 19 Howord, 624 ; ante, p. 5ii0. In Com monw. I/. Aves, 18 Pick 212, Judge Show employs positive law in the same sense of a local or particular law distinguished from one generally recognized. For referring to Lord Mansfield's dictum tliut slavery, being odious und against natural right, cannot exist, except by positive law, he observes: "But it clearly admits that it may exist by force of positive low. And it imiy be remarked, that by positive low in this con nection may be as well understood custonioi-y law us the enactment of a statute; ond the word is used to designate rules establislied by tacit acquiescence or by the legis lative act of any state, and which derive their force ond authority from such acqui escence or enactment, and not because they are the dictates of natural justice and as such of universal obligation," .' So iu HildreUi'a Despotism in America, p. 212; Spoonor's Unconstitutionality of Slavery. POSITIVE LAW ; HOW UNDERSTOOD. 577 On the other hand it has been supposed by some persons that, if slavery be attributed to positive law in the sense Inclu sive of unwritten law, it cannot be attributed at the same time to a law which, like statute, is pecuUar to some one state or possessor of sovereign power. Thus in Neal v. Farmer, 9 Geo. E. 581, the court observes that Chief Justice Shaw, in Sims' case, and in Commonw. v. Aves, 18 Pick. 212, attributing slavery to positive law defines it as including customary law. And because the same Judge, in the latter case, refused to re cognize the relation of master and slave, or the condition of slavery, in Massachusetts (in cases not coming within the fugitive slave provision in the Constitution of the United States), the Georgia court supposes an inconsistency. Although Judge Shaw, by his definition of positive law, discriminates some cus tomary law as particular or local, In respect to some one state or nation, and so distinguishable from a universal law. So Senator Benjamin, in the instance above, supposes that he has proved his point in showing that slavery does. not rest upon positive law, in the sense of positive legislation ; and in another place says ; " As to the right in them, [slaves] that man has to overthrow the whole history of the world, he has to overthrow every treatise on jurisprudence, he has to ignore the common sentiment of mankind, he has to repudiate the author ity of all that is considered sacred with man, ere he can reach the conclusion that the person who owns a slave, in a country where slavery has been established for ages, has no other prop erty in that slave than the mere title which is given by the statute law of the land where it is found." Now, although it be admitted or proved that property in slaves does not rest upon positive statute, but upon unwritten law, it is not thereby proved that it rests on a law which origi nates in " the common sentiment of mankind," and which ju dicial tribunals are bound to recognize as presumptively accepted by that possessor of sovereign power whose wUl they are to apply as positive law. § 625. As has been before observed, the discrimination of such laws is principally requisite in the apphcation of mterna- 578 DEFICIENCY OF TERMS tional private law.' Thus the EngUsh case of Forbes v. Coch rane, in which Holroyd, J., in a part of his opinion already noted, distinguished slavery as resting on a " municipal," local, or "particular" law of some one country in contradistinction to " general right" or " general law of nature," was one involving the application of that international law. And the same opinion is cited by Chief Justice Shaw, in Commonwealth v. Aves, 18 pick., in deciding that, independently of any provision in the Constitution of the United States, the right of a master in re spect to a slave, which was valid or legal in Louisiana, the place of their domicil, could not be recognized in Massachusetts by international private law. And Judge Shaw, giving his con ception of the distinction in his own language, . says, p. 216, " This view of the law applicable to slavery marks strongly the distinction between the relation of master and slave, as estab Ushed by the local law of particular states and in virtue of that sovereign power and independent authority which each in dependent state concedes to every other, and those natm-al and social relations which are everywhere and by all people recog nized, and which, though they may be modified and regulated by municipal law, are not founded upon it, such as the relation of parent and child, and husband and wife." Such also is the principle upon which the general right of property Is founded, being in some form universally recognized as a natural right, independently of municipal law. " This affords an answer to the argument drawn from the maxim that the right of personal property follows the person, and, therefore, where by the law of a place a person there domi ciled acquires personal property, by the comity of nations the same must be deemed his property everywhere. It is obvious, that if this were true, in the extent in which the argument em ploys it, if slavery exists anywhere, and if, by the laws of any place a property can be acquired in slaves, the law of slavery must extend to every place where such slaves may be carried. The maxim, therefore, and the argument can apply only to ' Ante, §§ 101, 158, 306. ' Compare oiite, § 109. AND A RESULTING CONFUSION. 679 those commodities which are everywhere, and by aU nations, treated and deemed subjects of property." § 526. But, from not distinguishing any other visible origin of law than the several wIU of single states or nations, jurists of the highest eminence sometimes, (as in the instance of the Georgia case and of Senator Benjamin's argument, last cited,) assume that, if a relation is proved to exist by unwritten, cus tomary law, judicial application of natural reason, in one forum or under one possessor of sovereign power, it is thereby proved to have legal existence in every other country as customary law, judicial application of natural reason. Or, sometimes, whUe discriminating a law which has judicial recognition in every forum by reason of its universality, and which is to be distin guished from the local or particular law (statute or customary) of some one country, they confound their own (subjective) idea of right, or what they call " natural law," the judgment of their individual mor,al sense, with the (objective) conception of right furnished by the juridical history of the world, or of those nations with whose international relations they are conversant, the his torical law of nations.^ In other words, instead of strictly ob serving what rules are recognized among all or many nations, assuming that they are founded in natural reason, (as the Eoman attributed to naturalis ratio whatever apud omnes populos per- Beque custoditur,') and applying these as universal jurisprudence, (jus gentium,) they determine what, by their individual natural reason, should be recognized among all nations, and apply that as the universal rule, calling it " the general law of nature," " the dictates of natural justice ; " or using some simUar term appropriate to designate a rule of ethics. Illustrations of this latter error are given both by those who demand that slavery shaU be everywhere judicially recognized, as supported by customary law, and by those who deny it that , recognition. § 527. Thus in the definition, in Commonw. v. Aves, already given, of positive law, where he distinguishes it as the rules which are " established by tacit acquiescence or by the legis- ' Ante, p. 109, note. ' Ante, § 162. 580 CONFUSION RESULTING lative act of any state, and which derive their force and au thority from such acquiescence or enactment," Judge Shaw refers to other rules, as being also law ; calling them" " the dic tates of natural justice, and as such of universal obligation ;" apparently, however, without acknowledging any other index of tjiese latter than the individual conscience of the tribunal ex ercising jurisdiction. A passage from the same opinion has already been cited as giving what is probably the clearest instance of a judicial attri bution of slavery to "local" or " particular " laws, as distin guished from a universal jurisprudence. But though in the conclusion of the passage. Judge Shaw particularly indicates that some objects of rights are to be recognized as " those com modities which are everywhere and by all nations treated and deemed subjects of property," thus distinguishing the true his torical criterion , by which (independently of local statute or custom) property may be known, stiU, in that which imme diately follows, the Judge, virtually, makes himself the exclu sive arbiter of what may or may not be legal property ; saying, " But it is not speaking with strict accuracy to say that a property can be acquired in human beings by local laws. Each state, may, for its own convenience, declare that slaves shaU be deemed property, and that the relations and laws of personal chattels shaU be deemed to apply to them ; as for instance, that they may be bought and sold, delivered, attached, levied upon, that trespass will lie for an injury done to them or trover for converting them. But it would be a perversion of terms to say that such local laws do in fact make them personal property generally ; they can determine that the same rules of law shall apply to them as are applicable to property, and this effect will follow only so far as such laws proprio vigore can operate." It is evident that, in this instance, either a very distin guished jurist and judge ofthe largest judicial experience asserts, in contradiction to the history of the world, that it is morally impossible that a human being should be property by the law of any country, or else, if his argument recognizes a universal law independent of his individual judgment, the argument is a pe- FROM DEFICIENCY OF TERMS. 681 titio principli. For the question then being, are slaves property by a local law, or are they property by the universal law ? — the judge finds the answer by saying,' if they be considered property by universal law, they would be slaves everywhere ; they would be slaves in -Massachusetts ; therefore they are property by a local law, and not by the universal.' § 528. A similar identification of the universal law with the moral judgment of the individual jurist occurs In the speech of Senator Benjamin, already referred to, when replying to a pas sage in the speech of Mr. Collamer, of Vermont, on the same subject,' the whole of whose argument, he says, "ingeniously as it ' See the last paragraph in § 611. ' To the idea that the universal law, which is distinguishable from that peculiar to single states or nations, is not at the same time known as a rule set or laid down, (positum, jus constitutum, ante, § 17,) by any judicial criterion of the will ofthe sov ereign, distingTiishoble from the individual moral sense of the judge, may also be os cribed the remark on page 216 of the same report: "That slavery is a relation founded on force, not in right, existing where it does exist, by force of positive law and not re cognized as founded in natural right, is intimated by the definition of slavery in the civil law : Servitus est constitutio juris gentium quo quis dominio olieno contra no- turam subjicitur." But this jus gentium is the very criterion of what o judge may recognize os a rule of universal low ; and is to be received whether contrary to natural law or not. That, by it, slovery is not now judicially recognized in Massachusetts, as formerly, in tho cose of imported heathen negroes, is not owing to the better ac quaintance of the judges with the law of nature, but to the fact that there is now no rule of universal jurisprudence, jus gentium, to support tho master's riglit. ' The portion of Senator Collamer's speech to which Senator Benjamin refers, is as follows : " I do not soy that slaves are never property. I do not say that they are, or are not. Witliin the limits of a State which declares them to be property they ore property, becouse they ore within the jurisdiction of that government which makes the declaration ; but I should wish to speak of it in the light of a member of the United Stotes Senate, ond in the language of the United States Constitution. If this be prop erty in the States, what is the nature ond extent of it? I insist that the Supreme Court have often decided, ond every body has understood, that slavery is a loc.il insti tution, existing by force of State law; and of course that law can give it no possible character beyond the limits of that State. I shall, no doubt, find the idea bettor ex pressed in the opinion of Judge Nelson, in this some Dred Scott decision. I prefer to read his languoge. He declores : " ' Every State or notion possesses an exclusive sovereignty and jurisdiction within her own territory, and hor laws affect and bind nil property and persons residing within it. It may regulate the manner and circumstances under which property is held and the condition, capacity, and state of all persons therein ; and also the remedy and the modes of administering justice. And it is equolly true that no State or nation con affect or bind property out of its territory, or persons not residing within it No State, therefore, Can enact laws to operate beyond its own dominions ; and if it attempts to do so, may be lawfully refused obedience. Such laws con have no authority extro- territoiially. This is the necessary result of the independence of distinct and separate sovereignties.' [19 Howard, p. 460.] " Here is the law; and under it exists the law of slavery in the different States. By virtue of this very principle it cannot extend one inch beyond its own territorial limits. A State cannot regulate the relation of master and slave, of owner ond prop- >.rty, the manner and title of descent, or anything else, one inch beyond its territory. 582 DEFICIENCY OF TERMS is put, rests upon this fallacy, if I may say so with due respect to him, that a man cannot have title in property wherever the law does not give him a remedy or process for the assertion of his title ; or, in other words, his whole argument rests upon the old confusion of ideas which considers a man's right and his remedy to be one and the same thing. I have already shown to you, by the passages 1 have cited from the opinions of Lord StoweU and of Judge Story, how they regard this subject. They say that the slave who goes to England, or goes to Massachu setts, from a slave State, Is still a slave, that he is still his master's property ; but that his master has lost control over him, not by reason of the cessation of his property, but because those States grant no remedy to tho master by which he can exercise his control. " There are numerous illustrations upon this point, illustra tions furnished by the copyright laws, illustrations furnished by patent laws. Let us take a case ; one that appeals to us aU. There Uves now a man in England who from time to time sings to the enchanted ear of the civilized world strains of such Then yon cannot, by virtue of the law of slavery, if it mokes sloves property in » State, if you pleose, move that property out of the State. It ends whenever you pass from that State. You may pass into onother Stato that has o like low, and if you do, you hold it by virtue of that law ; but the moment you pass beyond tho Umits of the slave-holding States, all title to the property called property in sloves, there ends. Under such a law slaves coimot be carried as property into tlie Territories or any where else beyond the States authorizing it. It is not property anywhere else. If the Constitutioii of the United States gives any other and further character than thia to slove property, let us ocknowledge it fairly and end all strifo about it. If it does not, I ask, in all candor, that men on tho other side shall suy so, and let this point bo settled. Whot is the point we are to inquire into ? It is this : does the Constitution of tbe United States make slaves property beyond the jurisdiction of the States author izing slavery ? If it only acknowledges them os property within that jurisdiction, it has not extended the property ono inch beyond the State Une ; but if, ns the Supreme Court seems to say, it does recognize and protect them as property further thou State Umits, and more than the State laws do, then, indeed, it becomes Uke other property. The Supreme Court rest this claim upon this clause of the Constitution : ' No person held to service or labor in one State under tlie laws Uiercof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be deUvered up on cluini of the party to whom such service or labor may be due.' Now the question is, does that guarantee it? Does that make it the same as other property? The very fact thot this clause makes provision on tlie subject of per sons boimd to service, shows that the framers of the Constitution did not regard it aa other property. It wos o thing that needed some provision, other property did uot. Tho insertion of such a provision shows that it was not regarded us other property. If o man's horse stray from Delowure into Pennsylvania, he can g-o and get it Is there ony provision in the Constitutioii for it ? No. How cume tliis to bo there, if a slave is property ? If it is the same us other property, why have any provision ubout it ?" IN DEFINING PROPERTY. 583 melody that the charmed senses seem to abandon the grosser regions of earth, and to rise to purer and serener regions above. God has created that man a poet. His inspiration is his ; his songs are his by right divine ; they are his property, so recog nized by human law. Yet here in these United States men steal Tennyson's works and sell his property for their profit ; and this because, in spite of the violated conscience of the na tion, we refuse to give him protection for his property. " Examine your Constitution ; are slaves the only species of property there recognized as requiring peculiar protection ? Sir, the inventive genius of our brethren of the North is a source of vast wealth to them and vast benefit to the nation. '^ '¦' ® On what protection does this vast property rest ? Just upon that same constitutional protection which gives a remedy to the slave owner when his property is also found outside of the limits of the State in which he lives. Without this protection what would be the condition of the northern inventor ? Why, sir, the Vermont inventor protected by his own law would come to Massachusetts, and there say to the pirate who had stolen his property, ' render me up my property or pay me value for its use.' The Senator from Vermont would receive for answer, if he were counsel for the Vermont inventor, ' Sir, if you want protection for your property, go to your own State ; property is governed by the laws of the State within whose jurisdiction it is found ; you have no property in your invention outside of the limits of your State ; you cannot go an inch beyond it.' Would not this be so ? Does not every man see at once that the right of the inventor to his discovery, that the right of the poet to his inspiration, depends upon those principles of eternal justice which God has implanted in the heart of man, and that wher ever he cannot exercise them it is because man, faithless to the trust that he has received from God, denies thepa the protection to which they are entitled." Here it is evident either, that it must be first admitted that legal property is determined by the speaker's own idea of what men should own by law or be protected by law in possessing, and depends upon his individual conception of " those principles 584 DEFICIENCY OF TERMS of eternal justice which God has implanted in the heart of man ; " or, else, that the reference to copy-rights and patent- rights is singularly infelicitous for the purposes of his argument. For, by his own admission, such rights are legal rights, i. e., rights recognized in courts of law, only within certain limited jurisdictions ; and even therein are not known as property by customary law, and cannot be judicially recognized as legal rights in other countries though made such in some one country by its positive legislation. And yet Mr. Benjamin had pro- pos'ed at the outset, (in the extract first given,) to show " that slavery was the common latv of the thirteen States of the con federacy at the time they burst the bonds that united them to the mother country ; " and the printed speech bears among its titles. Slavery protected by the Common Latv of the New World ; while here slaves are classed with " species of property recog nized [by the Constitution] as requiring peculiar protection," and not even recognized by common law in any state or nation. § 529. The Senator to whom Mr. Benjamin was replying, (Mr. Collamer,) had, in a part of his argument which has been noted, instanced horses, as objects of the action of legal persons which, when they are objects of rights,' can be nothing else than property. And, assuming it to be admitted that the Consti tution recognizes some objects of rights as being property, he argued that the existence of special provisions, protecting rights in respect to slaves, proves that they are not recognized as prop erty even when they are regarded as objects of rights. But his argument indicated no standard by which to prove that horses are property, more than are other objects of rights. Hence, Mr. Benjamin, in a passage immediately following the last ex tract from his speech, impeaches the argument on the ground, apparently, that horses are known to be property only by the same juridical evidence which shows slaves to be property. He remarks : " Sir, follow out the illustration which the Senator from Vermont himself has given ; take his very case of the Delaware owner of a horse, riding him across the line into Pennsylvania. ' For tills use of terms, soo ante, gg 21-24, IN DEFINING PROPERTY. 585 The Senator says : ' Now, you see that slaves are not property like other property ; if slaves were property like other property, why have you this special clause in your Constitution to protect a slave ? You have no clause to protect the horse, because horses are recognized as property everywhere.' Mr. President, the same fallacy lurks at the bottom of this argument, as of all the rest. Let Pennsylvania exercise her undoubted jurisdiction over persons and things within her boundary ; let her do as she has a perfect right to do, declare that hereafter, within the State of Pennsylvania, there shall be no property in horses, and that no man shall maintain a suit in her courts for the recovery of property in a horse ; and where will your horse-owner be then ? Just where the English poet is now ; just where the slave holder and the inventor would be if the Constitution, foreseeing a difference of opinion in relation to rights in these subject mat ters, had not provided the remedy in relation to such property as might easily be plundered. Slaves, if you please, are not property like other property in this, that you can easily rob us of them ; but as to the right in them, that man has to overthrow the whole history of the world, he has to overthrow every treatise on jurisprudence, he has to ignore the common sentiment of mankind, he has to repudiate the authority of all that is con sidered sacred with man, ere he can reach the conclusion that the person who owns a slave, in a country where slavery has been established for ages, has no other property in that slave than the mere title which is given by the statute law of the land where it is found." It appears that both Senators were arguing on the supposition that the Constitution protects some rights of private persons, or rights of private persons in respect to some objects, as rights in respect to property; but that, to determine whether either horses or slaves, or both horses and slaves, or neither horses nor slaves, are property, neither Senator designated any other standard than either the legislative wiU of some State of the Union or his own individual judgment. And for the reason, apparently, that whUe each had in mind the idea of a universal jurisprudence, entirely distinct from their own several judgments, they had no terms by 586 stowell's and story's authority. which to distinguish — 1st, that part of positive law which, whether customary or statute, aU equaUy originates in the several legislative (juridical) action of a single state or pos sessor of sovereign power, jus proprium, and 2d, that part of positive law which, being customary or unwritten, differs from every part of the former by being attributable to the legislative (juridical) action of aU or many states or possessors of sovereign power, jus gentium. And to the same want of proper terms are attributable the contradictions observable in the judicial deter mination of these questions.' § 530. In the extract given. Senator Benjamin has referred to Lord Stowell and Judge Story as authorities for the juristical contradiction in terms, that a natural person may be property in a place where the law allows no one to treat him as such, nor aUows any to exercise dominion over him. The portions of Lord StoweU's opinion, which were referred to, had been given in another part of the speech. Their citation in this connection was probably an inadvertence ; they are to another point y^ and other parts of the opinion might, with some propriety, have been referred to for the doctrine, such as pp. 100, 112, 113, of 2 Haggard's Eep. And particularly page 117, where Lord StoweU quotes ChanceUor Northingtou's brief opinion in Shanley v. Harvey, " As soon as a man sets foot on English ground he is free. A negro may maintain an action against liis master for Ul-usage, and may have a habeas corpus if restrained of his ' Compare ante, p. 378, notes. Illustrating Lord Bacon's remork in De Angmentia, Lib. v., ch. iv., when defining the eidolon fori, idol of the market ; Credunt homines rationem suom verbis imperare, sed fit etiam ut verbo vim snom super mtcUectum re ¦ torqueoiit et rcfloctont. " For words generoto words!, however men may imagine they hove commond over words, oud con easily say they will speak with the vulgor nnd tliink with the wise." ' The citations are, case of the slave, Grace, 2 Hagg. p. 126-128. In these nothing else is declared but that slavery, being in Antigua tho eftect of ca'^toniary law, having beeu " o very favored introduction into tlio colonies," and ulsu introduced hy the mother country as profitable to herself, could not, by any English court, be re garded as a malus usus in the colony, and declared ^unlawful there on the maxim maltu usus abolendus. Tho extract given from Story's letter to Stowell is, " I hove read with great attention your judgment iu tlie slave case. Upon tlio fullest consideration which I have been able to give the subject, I entirely concur in your views. If I had been called upon to pronounce a judgment iu a like case, I should have certainly arrived at the same result." This result was, that on returning to Antigua the woman, Grace, was there, by the rules of private international law, in the same stotus uf slavery iu which she had beeu before going to England. lord stowell's argument. ' 587 Uberty," and, with an ingenuity that is best designated ludicrous, endeavors to extract from it the recognition of slavery as co-ex isting with its contrary ; upon which idea to support his judg ment that, on returning to the colony, the negro returns a slave. His reasoning involves the doctrine, utterly inconsistent with every definition of law, that while the rights and obligations of a natural person are judicially determinable by one law, another law producing effects incompatible with those rights and obli gations may still ' be operating on the same person in the same jurisdiction.' In another place, p. 109, Lord Stowell excepts to the argu ments advanced by Hargrave and the reasoning given by Lord Mansfield to show that Somerset became free or acquired the status of a freeman by being in England ; such as the rhetorical phrase that " the air of England was too pure for slaves to breathe in," and those denials of the ethical fitness of slavery which, if they were the ground for declaring the slave free in England, should, on Lord Mansfield's and probably Lord Stowell's ' Lord Stowell would hardly have sympothized with Tennyson in praising Eng land ns a land " Where Freedom broadens slowly down From precedent to precedent." 2 nofc. 117; "The Lord Chancellor Northington, in dismissing the bill with costs, said, that as soon ns a man sets foot on English ground he is free. It must be observed that this was the first time, probably, that thia doctrine was so broadly stated in an English court, and. perhaps, fl little prematurely; but it must likewise be ob served that his Lord.ship here mentions only two effects of it, for he adds, ' A negro moy maintain an action ogainst his master for ill-usage and miiy hove o habeas corpus if restrained of his liberty.' This is au instance in which the law of England differed essentially from the law of the slave code in the West India colonies, for there every acquisition by the slave, whether by legocy or otherwise, went to the moster, but not so here,'where the low of England adjudged it to the slave. And tbe Lord Chuncellor enumerates another difference, whicli is, that the law of England empowered the slave to bring an action against his muster for ill-treatment. Both of these are direct con- triidictions to the rules of the slave code ; but nobody could infer from thence that the whole of the slave code wos by that decision intended to be vacated in the colonies on that account. The error ot the opinion seems to be, that because the slave code was overruled in Enghmd, where the law of England dillered from it, it wiis therefore ab rogated in the c'olonies m toto. The slave continues a slave, though the low of Eng land relieves him in those respects from the rigors of that code while ho is in England, and thot is all thot it does. Witli respect to other severities which it refuses to indict it is spinis de pliinbus una, which does not at nil dislodge the other severities of that code, all of wliich he miiy avoid by continuing in this country." In the cose before Nortbino-ton, nothing could be decided about the colony, and nothing was said obout it. See°ante, § 187. To moke out "the error of the opinion," Lord Stowell supposes thot the existence of slavery in the colony was questioned by it. 588 functions of the government theory ofthe foundation of colonial law,' have made slavery uut lawful in the colony. But in the same place he admits the appUcation of the argument, that, even if it was not shown how the glave became invested, in England, with the rights of a freeman, there was on the other hand no law in England to sup port the master's claims while there ; or, that since the law gave him no legal remedy the law attributed to him no legal right. " The arguments of counsel do not go further than to estabhsh that the methods of force and violence which were necessary to maintain slavery were not practicable in this spot ; and Mr. Hargrave, almost in direct terms, asserts that they cannot go beyond it." This is the doctrine which Lord StoweU does not venture to impeach ; the doctrine recognized by Lord Mansfield when he said of the detention exercised by the master, " So high an act of dominion must be recognized by the law of the country where it is used," and, because it was not so recognized, added, " the black must be discharged.'"' This is the doctrine that where the law gives no remedy the law recognizes no right; the doctrine asserted by Mr. Collamer, and designated by Mr. Benjamin, a " fallacy." § 531, On the principle that Congress cannot legislate where no power is granted by the Constitution, Judge McLean denies ' Ante, pp. 374-376. ' Ante, p. 191. Lord Stowell's position resembled that of Lord Mansfield, in Som erset's case ; he was unoble to find the judicial reoson for o judgment which may prob ably be justified on the distinctions of domicil which were stated, ante, pp. 384-386. As has been remarked, ante, p. 379, and note 3, the opinion seems to have ob tained at one time, among English lawyers, that though the slave was no longer prop erty in Englond for which trover would lie, yet the moster's right to perpetuol service might continue. Though this doctrine was clearly against the authorities even before Somerset's case, it may have been the basis of Lord Stowell's opinion. Blackstone, I Comm. p. 424. " And now it is laid down that a slave or negro, the instant he lands in England becomes a freeman ; that is the law will protect him in the enjoyment ofhis person oud his property. Yet with regard to ony right which the master may have lawfully acquired to tho perpetual service of John or Thonios, this will remain exoctly in the same state os before ; for this is no more tlian,the same state of subjection for life which every apprentice suhmits to for tho space of seven years or sometimes for a longer term." Mr. Christian notes that " the meaning of this sentence is not very intelligible," and denies the validity of any contract mode by the slave to serve for life. Blackstone olso soys, " whotever service the heathen negro owed of right to his owner or master, by general, not local law, the same, whatever it may be, he is bound to render when brought to England and made a Christian." But, as has boon shown, there is no service due by "general law" when the slave is no longer o chottel jure gentium. in the TERRITORIES. 689 that Congress may legahzo slavery by statute.' But on the same principle it would seem that freedom could not be legalized by statute. Mr. Justice Nelson, in his opinion in Dred Scott's case, 19 Howard, 464, says : " If Congress possesses the power under the Constitution to abolish slavery in a Territory, it must necessarily possess the like power to establish it. It cannot be a one-sided power, as may suit the convenience or particular views of the advocates. It is a power, if it exists at all, over tho whole subject." Judge McLean finds tho legislative power to establish slavery " prohibited by the Constitution or contrary to its spirit." The same, if true, should prevent the executive and judiciary created by the Constitution from recognizing or maintaining slavery under laws already existing in the Territo ries. But it is by resorting to the spirit of the Constitution that Judge Campbell invests the national . legislature and the national judiciary and executive with the power and duty of ex tending and maintaining, in the Territories, the laws of the slave-holding States. Legal rights and obligations exist only by the co-operation of the three functions of sovereign power. The reasoning of more than one member of the Supreme Court, in Dred Scott's case, involves the doctrine that rights and obligations incident to the status of persons are maintained, in the Territories, by the executive and judicial functions held by the national Gov ernment, while the legislative, or, more correctly, the juridical function, by which those rights and obUgations are determined, , is not invested in any body ; but remains in nubibus until a new State of the Union is created which may assume it. § 532. Whatever power the national Government may, of right, exercise in the Territories has either been expressly or im pliedly granted by the words of the Constitution, or it has not so been granted. It must be admitted that the Constitution grants to the executive and judiciary created by it power to maintain and enforce only such rights and obligations as are referable to the ' 19 Howard, 632, and ante, p. 642. 590 POWERS OF THE GOVERNMENT. law of the United States, that is, a rule resting on the juridical will of the people of the United States, the authors of the Con- stituti(fti. Now the oiUy law of the United States, affecting private per sons, which is described or referred to in the Constitution is either law contained in the Constitution itself, or derived either from the legislation of Congress or from the treaty-making power' held by the President and Senate.'' And, if, as is com monly said, there can be no other law of the United States, or rule identified with the juridical will of the people of the United States,^ it would appear that the rights and obligations of pri vate persons which may be maintained by the executive and ju dicial functions of the national Government, in virtue of power granted in- the Constitution, are only such as are determinable and determined by one of these three indicators of the national wUl. The Constitution gives the executive and judiciary created by it power to enforce rights and obligations created by the law of ar State of the Union only in certain specified cases ; when, by the provisions of the Constitution taking effect as pri vate law, those rights and obUgations become actually effects of the national law.^ Now, even admitting that the several legis lative or juridical power of a State of the Union may determine the status of persons domiciled in the Territory (Judge Camp bell's theory), the Constitution does not grant to the national executive and judiciary the power of maintaining, in such case, the rights and obligations which would be created by the State law. If then the rights and obUgations incident to the status of persons in tiio Territories are not fixed by the private law of the Constitution, nor by legislative power exercised in the con clusion of a treaty, nor by legislative power exercised by Con- ' Ante, pp. 480, 481. 2 Const. Art. II. sec. 2. » Curtis' Comm. § 19. " The law of tho United States is to be found in the Con stitution and the Acts of Congress passed in pursuance of it," citing Wheaton ii. Peters 8 Peters, 591. It is ditficult to say how for rights and obUgations°ln relations betweeu private persons can be judiciaUy recognized under o treoty alone, independently of the principles of private international low which would oponito whore dominion hod been acquired without a treaty. This question is to bu liirllicr considorod horcinoftor * Ante, § 445. POWER IN THE TERRITORIES. 591 gress, it follows that tho executive and judicial functions of the national Govornment cannot bo applied to maintain such rights and obligations in virtue of any grant of power, con tained in the Constitution, to the national executive and ju diciary. § 533. And if these functions of sovereign power, the exec utive and judicial functions, may be exercised by the national Government to maintain in the Territories any rights and obli gations of private persons, not determined by the private law of the Constitution nor ascribable to an exercise of juridical power in some treaty, there are only two theories or views of public law on which their exercise can be justified. Either the legislative or juridical power which determines those rights and obligations has been granted to Congress in the Constitution, (being limited by the Constitution operating as a bill of rights,) or else the three functions of sovereign power are, in reference to the Territories, held by the national Goveniment as an in tegral political personality, representing the people of the United States, independently of separate grants of power in the written Constitution to its executive, legislative, and judiciary depart ments, (being, nevertheless, Umited by the Constitution oper ating as a bUl of rights,) and the rights and obUgations main tained and enforced by the executive and judicial functions, held by that Government, are derived from or dependent on the legislative (juridical) power held by Congress. There is certainly no consistency in denying the legislative power of Congress over the rights and obhgations incident to the status of persons in the Territories, by alleging that the power to create, estabhsh, or determine such rights and obUgations, has not been granted, while at the same time the exercise of executive and judicial power, in reference to the same subject, is maintained ; though equaUy unsupported by any grant in the Constitution. For whether the executive and judicial functions are employed to enforce a rule derived from statute or from un written jurisprudence, and whether the rule enforced by them was or was not first promulgated by Congress, the juridical 38 592 FREEDOM OR ITS CONTRARIES power of the nation is as much exercised in one case as in the other.' Whether the power to determine the status or condition of private persons in the Territories has or has not been granted to Congress, by the Constitution, in terms, there is but one conclusion ; either Congress has the power, (Umited only by the Constitution operating as a biU of rights,) or else the executive and judicial functions of the national Government can not be exercised in reference to rights and obUgations incident to the status or condition of such persons. In other words, either the rights and obligations incident to status in the Territories are maintained by the three functions of sovereignty held by the Government created by the Constitution, (Umited only by the Constitution operating as a blU of rights and as private law,) or else they are maintained by those functions invested in some other depositary or possessor of sovereign power. A judge adopting any other theory for the action of the ex ecutive and judiciary, in reference to the subject, must himself virtually assume the legislative (juridical) power which he de- mes to Congress." § 534. The attribution of relative rights is possible only under particular circumstances of natural condition, or circum stances in which it is not necessary that all persons should be found, and those rights, therefore, are not necessarily either attributed or denied to each person under positive law. But aU natural persons are in circumstances in which individual rights and capacity for relative rights may be attributed to them, and each person under positive law must be either a legal person, by the attribution of those rights and that capacity, or be a chattel or thing, by being only the legal object of rights attributed to other natural persons. ' See North Am. Rev., April, 1858, p. 477, in on orticle on Duer's Coustitntiontl Jnrisprudence. " Compare the longuage of Mr. Justice Curtis, in 19 Howard, 620, 621, (on(«, p. 547, 548j) concluding : " we ore under the government of individual men, who for the time being have the power to declare what tlie Constitution is, occoi-ding to their own views of what it ought to moan. When such a method of interpretotion of the Constitution obtains, in place of a republican Government, with limited and dafined powers, we have a Government which is merely an exponent of the will of Congress ; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of tha members of this court." ARE NECESSARILY EXTENDED. 593 Although no legal right Is herein supposed to exist of neces sity or by a natural law, independently of positive law as herein defined, yet individual rights are, in this sense, natural or pri mordial, that, wherever a natural person exists in a state or organized civil society, these rights must either be legaUy at tributed to him or be denied by the maintenance of antagonistic rights in others. And since Status or personal condition consists in the attribution or denial of individual rights and capacity for relative rights, a status of freedom or of some of its contraries is necessarily attributed to each person living under positive law.' The rights of masters immigrating with slaves into the Territories may be there maintained, as they existed under the law of their State domicil, by enforcing obligations correlative to those rights on the part of the slaves and of all other per sons ; or those rights may be disallowed, and the slaves placed in different relations towards their former masters and other persons. But either the national juridical power must be mani fested in the Territories, in the maintenance, by the executive and judicial functions of the national Government, of those rights and obligations by whose realization status or personal condition exists, or else the sovereign power of determining status or condition must be abandoned to whomsoever may there have the force to maintain those obligations for themselves and others. Of necessity, therefore, whether Congress should or should not legislate on the subject, either freedom or its contraries are maintained and extended by the action of the national Govern ment in the condition of every natural person acquiring a resi dence in the Territories. And it is, absurd to say, that in respect to the extension or non-extension of slavery and freedom in the territory of the United States, the national Government may do neither." ' For this use of terms compare ante, §§ 40-44. ,.,_,,, u ' In the address of the Southern delegates in Congress, to their constituents, Feb. 1849, drown by Mr. Calhoun, and published among his Works, vol. vi., on pages 301, 802. is the following ! . . . ,. ^i t. j » j i,_ " The North no longer respects the Missoun compromise hne, though adopted by their almost unanimous vote. Instead of comproniiso they ovow thot their detormi- nnt on is to exclude slavery from all the territories ofthe United States, ocquired or to betcqu red; and of course, to prevent the citizens of the Southern Stotes from emi- grathig Witt their' property u slaves into ony of them. Then: object, they oUege, is 594 REMARKS ON INCONSISTENCIES § 535. The questions, what conditions of freedom or its con traries may exist by law in the Territories, independently of statute ; whether negro slavery may or may not exist there by law, and whether it may be lawful or wUl continue there in the case of slaves brought from the slave-holding States independ ently of positive legislative enactment, and to what possessors of sovereign power the law affecting conditions of freedom and its contraries may be ascribed in any one of the several Terri tories of the United States, regarded as juristUctions having a several local municipal law, as distinguished from the national municipal law, are to be considered In another volume, in the historical exposition of the laws of the several jurisdictions em braced within the entire domiiuon of the United States. But if the method of determining the status of private per sons in the Territories which was indicated by Mr. Justice CampbeU and supported to some degree by Justices Daniel and Catron, in the passages cited from their opinions in Dred Scott's case, is legitimate, it is evident that the distinction of tho laws prevaUing within the dominion of the United States as being to prevent the extension of slavery, and ours to extend it, thus making the issue be tween them and us to he the naked question. Shall slavery be extended or uot ? We do not deem it necessary, lookuig to die object of this addi-ess, to exoiuiiiu the question so folly discussed ot the last session, whether Congress has the right to exclude the citizens of the South from emigi-ating with their property into territories belonging to tbe confederated States of the Union. What we propose in this connection is, to make a few remarks on what the North alleges, erroneously, to be the issue between us aud them. " So far from maintaining the doctrine which tlie issue implies, we hold that the Federal Government has no right to extend or restiict slavery, no more than to estab lish or abolish it, nor has it any right whatever to distinguish between the domestic institotions of one State, or section, and another, in order to favor the one and dis courage the other. As the federal representative of each and all the States, it is bound to deal out, within tho sphere of its powers, equiU aud exact justice and favor to oil. fo act otherwise, to undortoko to discrlniiuoto botween tho domestio insti tutions of the one aud onother, would bo to oct iu total subversion of tho end for which it was estabhshed, to be the common protector and guardian of aU. Entertiiinino' these opinions, we ask not, as the North alleges we do, for the extension of shivery. That would make a discrimmatiou in our favor, as unjust aud unconstitutional us the dis crimination thoy ask against us in their favor. It is not for them uor fi.r the federal Government to detei-miue whetlier our domestio iustitutiou is good or bad ; or whether it should be repressed or preserved. It belongs to us, and to us only, to decide such questions. What then wo do insist on, is, uot to extend slavery, but that we shall not be prohibited from emigrating >vith our property into the Territories of the United States because we are slaveholders ; or, iu other words, that we shall not on that occount bo disfranchised of o privilege possessed hy oil othei-s, citizens ond foreigners, without discrlniiiiiitidii os to chaiactor, pnifuaslon, or color. All, whetlu'r it.ivago, bar barian, or civilized, may freely outer aud remain, wo only being oxcludoj." IN MR. JUSTICE CAMPBELL'S THEORY. 595 either national or local in extent, (which was made in the thir teenth chapter,) would be improper. The law derived from the separate or reserved powers of a State of the Union would be improperly described as local in respect to the limits of the State, if any persons before domiciled In such State, were found in the Territories. And the law prevaUing in a Territory, or, at least, all law determining the possession of individual rights and legal capacity, would not be local as to the Territory, but a variable aggregate of tho laws of a greater or loss number of the States, having there a personal extent. Or the only local law determming that class of rights would be those applying to persons not known to have been formerly domiciled in some one ofthe States.' § 536. And, since rights cannot be maintained except by the enforcement of obligations existing correlatively in some relation between persons, in supposing that the law of a State operates in the Territory to determine the rights of persons therein who before had been domiciled In that State, correlative obligations on the part of persons in tho same Territory, though coming from another State, are necessarily supposed to be determined by the laws of the first. In determining the various relations which may exist between the inhabitants of a certain forum or juris diction, juridical power may be divided ; so that f3ome relations are determinable by one juridical person and others by another. As, for example, in each State of the Union the powers held by the national Government and the "reserved" powers of the State determine different relations. But it is impossible that in any one relation the rights and obligations of those between whom it exists should be respectively determined by different legislators. The individual right of property Involves the ex istence of obligations on the part of the community ; and the right of a slave owner in respect to his slave as the object of his right of property, involves various obligations on the part of other persons in the same jurisdiction.' The doctrine that the - ' And it would seem that under that theory the State law would govern the con dition of the descendants of the emigrants from the States; carrying out the idea of personal laws having a heritable character. Compare ante, § 193. ' Compare ante, p. 309, note 1. 596 CONTEMPLATED VIEW juridical authority of a State shall proprio vigore maintain the rights of its slave-holding citizens and status of their slaves in the Territory is, by involving the determination of the obliga tions of other persons not coming from the same State, incom patible with the idea that the laws of the States may, in the Territory, respectively determine the rights and obligations of persons previously domiciled within their several jurisdictions.' § 537. The further exposition of the local municipal laws of the United States will therefore be given in the form of an his torical or chronological abstract of the various legislative enact ments in and for the several States, the Territories of the United States, &c., affecting personal condition or status ; being a continuation of the abstract of the colonial laws, having Uke effect, which was given in the sixth chapter. In this wiU be included a notice of those provisions of the several State Consti tutions which affect this topic of private law. Where such legislation refers to persons as alien to the jurisdiction, it wUl be noticed in its chronological order among the provisions of in ternal law, the law applying to resident or domiciled persons. Though its effect and constitutionahty, in reference to the na tional Constitution, (national municipal, jMast-internatlonal law,) win be more particularly considered in a separate chapter, under the head or topic of that International law which is law in the imperfect sense, when the several States are regarded as its subjects, by reason of their independent authority, and which is, therefore, in each State, as private law, or when taking effect on private persons, identified in authority with the local muni cipal law of that State. § 538. In considering the various statutes and constitutional ' Difi'erent systems of laws, having different personal extent, moy exist together within the same dominion. Such laws may, historically, be of different origin. But while co-oxistlng in some one State or territurial jurisdiction, their legal foreo or authority is derived from one and tlie same sovereign having the power to determine tlie conflict of laws which would arise, (Ante, pp. 25, 100.) It is a novel idea iu jurisprudence that laws differing in personal extent, and deriving their autliority from different sovereigns, sliould co-exist within tho fioinu territorial dominion. See Judgo McLean's observation, ante, p. 545. Judgo Campbell's idea, assuming that tlie States BOveroUy ore sovereign in the Territory, seems to be that they colonize lands vacant of law, and that the citizens of each carry with them the laws of tho motlicr Stato; us tho Kngliali colonists brought tho laws of England. Ante, p. IIG. OF THE LAWS OF THE STATES. 597 provisions of the several States, a distinction wiU sometimes be noticed between such as refer to persons and to their relations, rights, and obligations as determined by laws already existing, and which are therefore to be appUed according to the personal quality of those laws, and provisions whose terms require a broader application, or which seem to attribute rights or obU gations to all natural persons, irrespectively of personal distinc tions previously known ; which provisions, therefore, may be held to be proclaimed by the supreme legislating power as uni versal. Since the universaUty of a law, however, properly be comes matter of judicial recognition only by the apphcation of private international law,' the existence of law having this uni versal personal extent in any State wUl be more properly noticed in considering the international and g'Mast-internatlonal laws of the United States, or, in other words, the laws which in each State apply to persons known as aliens, either to the State alone or to the State and the United States, that is, foreign and domestic aliens, accokling to the phraseology herein before adopted for convenience of distinction.' § 539. In making this summary of legislative and constitu tional provisions, it will not be attempted to show In what cIvU or social liberty consists in each State or local jurisdiction of the United States. Determined as it is by the existence of a va riety of relations, it could only be described under a compre hensive view of all individual and relative rights under private law and the guarantees for their maintenance in the public law. Neither is it intended to give a summary view or description of slavery, as contrasted with a free condition under the common law of England or of the United States, either as a condition of per sonal bondage, bondage of a legal person, or as a chattel con dition. The purpose in view will be to present the existence or non-existence, and the juridical modification, extension, or re striction, in each State or several local jurisdiction of the United States, of those two systems of personal laws, the origin and existence of which, in those colonies of the British empire which ' Ante, §§ 97-101. ' Ante, § 384. 598 CONTEMPLATED VIEW OF THE LAWS OF THE STATES. now constitute a portion of the American Union, have been con sidered in the former part of this work, so far as that may be accomplished by describing the legislative action of the posses sors of sovereign power, affecting the enjoyment of so caUed " per sonal rights," and by noting in connection the leading judicial de cisions in cases arising under such legislation, or in which impor tant doctrines of common law affecting those rights are prominent ly declared. And whether as an effect of local or Slate law, or as one oi the national law ofthe United States, the subject of free condition and its contraries will, throughout, be in this work regarded exclusively as a topic of jurisprudence, or in the purely legal point of view, entirely distinct from aU ethical and poUtical considerations. INDEX. The numerals in ( ) indicate notes, and the reference is to the page. Abbott on Shipping, 29 (2). Abolition Documents, 515 (3). Aboriginal inhabitants, law applied to them, ] 99 ; slavery of hy cnptivity, 200. Sre Indians. Abraham's .uncrifico of his son, 300 (6). Absolute rights, 61. power of the state, 12; its in vestiture during the colonial period, 1 20-1*28; how held in the U.S., 414. Acquisition of territory by Goveniment of U. S, 410. Adam.s, J. Q., 414 (2). , William, Law of Slavery in British India, 203 (2). .Ethiopian race, 217 (2). Africon shivery, antiquity of, IGl; exten sion ill 15tli century, 162 ; slave trade under English statutes, 174. Company, the, 175 (2), 181 (1). Africans. See Negroes. Ahrens, Noturrecht, 19 (1), 37(1), 40(1). AUens, 48, GO ; to the colony and to the empire distinguished, 318 ; physical distinction among, 320 ; foreign and domestic defined, 446 ; power over their condition in the U. S., 450. Ambassador, case of slave of, 337. America, laws of England extended to, 118. American Jurist, 21 (1), 31 (1), 46 (2). Law Register, 194. Tracts, 118(1), 129(1), 198(1). Analytical school of jur'sprudence, 47 (2). AngUcon liberty, 31 (1). Animols ferns naturoe, 386 (1). Annual Register, 216 (1). Antmomiaiiism in Rh. Island, 274. Apprentices, minor, in the colonies, 218 (2), 326. A priori, a posteriori methods distinguished, 10 (4), 516 (1). Aquinas, 150 (1). Archiv fiir die Civil. Praxis. See Wtechter. Argentr6, 339. Aristippus, 1 (I). Aristotle, 3 (1), 10 (3), 18 (2), 27 (1), 154 (3). Assiento, contract acquired by England, 175. Asso y Manuel, Institutes of Spanish Law, .'!44 (2). Austin's Province of Jur. Determined, 1 (I), 6(1), 11 (3), 12 (2), 13(2,6), 15 (1), 19 (3), 21 (1), 36 (3), 41 (2), 52, 93 (1), 146 (1), 148 (1), 398 (1). Autonomic oclion in international law, 112. oction of Congress in admitting new States, 412 (1). Ayala, 204 (2). Ayliffe, Pandects, 1 (1), IG (1). B Bacon's Abridgment, 127 (1). Laws of Maryland, 247-254. ¦, Lord, Essays, 13 (4) ; Advance ment of Leaming, 15 (2), 18 (1), 26 (1), 26(2), 28(2), 81 (1), 80(2), 116 (1), 130 (1), 526 (3), 586 (1). Nathaniel, Historical l)i.«course on the Uniformity of the Government of England, 125 (2), 136 (3), 265 (2). Baldwin, Judge, Constitutional Views, 405 (2), 408 (2); on property in slaves, 661 (1). Bancroft, in CoU. N. Y. Hist. Soc, 229 ; 600 INDEX. Hist, of U. S., 119 (4, 5, 6), 120 (3, 4), 121 (1, 2, 4), 126 (1, 4), 157 (1), 161 (1), 162 (3, 4), 174 (2), 204 (1), 205 (1,2, 3, 4), 200(1, 2), 208 (2), 210, 217 (21, 219 (5), 221 (1), 232 (1), 254 (•!), 255 (2), 2G1 (1), 263 (1), 273 (2), 276 (I), 289 (1), '293 (I), 310(1). Baptism, effect on slavery by unwritten law, 165, 210, 358 ; altered by statute, Va., 232, 234, 240, 243; Md., 2,50 (I), 252 ; N. Y., 281 ; S. C, 297, 300. Borbarous punishment law of Mass., 259. Barbary states, their piracies, 160. Barbeyrao, 337 (1). Barrington on the Statutes, 177 (1), 179, 211 (I), 332(2), 339. Bartlett, J. R., Records of R.I. coh, 273 (3). BosiUca, the, 18 (2). Belknap. Letter to Tucker on slavery in Mass., 258 (1), 204 (1); Hist, of N. Hamp., 205 (1, 2), 2G7 (1). Benedict's Adrairalty, 29 (2). Benjamin, Senator, speech in debate on Kansas, 672, 582-587. Bentham's Morals ond Legisl, 6 (1), 9 (I), 16 (4), 18 (2), 26 (1), 32 (1) 48 (2), 146(1), 469(1); Papers relative to codification, 25 (4) ; Plea for the Con stitution, 129 (1). Benton's E. lamination of the Dred Scott case, 423 (1), 429 (3), 440 [2). Berkeley's Works, 210 (1). Best, Ch. J., on Somerset's case, 376 (3). BethoH, Sir Richard, 81 (1), 144 (2). Bottle's Essay on Slavery, 206 (1). Beverley's Virginia, 205 (4), 230 (1). BiUs of rights during tbe colonial period, 123 ; that in the Cons. U. S. 463 ; does not restrict the States, 476. Birth, alien or native, 40 ; effect of, com pared with that of domicil, 316 ; from slave mother in Roman low, 151 ; of status by, iu modem Europe, and col onies, 211 ; status by, under statute Vo., 241; Md., 249, 251 (1), 252; N. y. 281 ; S. C. 299, 303. Blackstone's Comin., 1 (1), 7 (3), 9 (I), 12, 20(1), 27 (¦>), 29 (2), 31 (I), 88 (1,2), 115, 120(11,127, l-.;8, 130(1), 132 (1), 136 (1, 4), 137 (2), 140 (2), 196 (3), 211 (I), 218 (2), 259(1), 879 (1, 3), 380 (5), 507 (I), 588 (2), and see Tucker's Blackstone. Blair, Slavery among the Romans, 156 (4), 157 (I). Board of Trade and Plantations, 309 (2). Bodin's Republic, 12 (2), 159 (1), 1G5 (1), 107 (iS I, 214(2), 314 (I), 387, 339 (I), 841(1), 354 (2J. BoUan's Colonise AngUcance lUustratse, IGO (5) Bondage of legal persons, 39 ; replaced chattel slavery iu Europe, 157; of in- ' dentured servants, 218, 325. Boston, town of, ou negro slaveiy, 263 (1. 2). Boswell's Life of Johnson, 333 (1) Bosworth's Anglo-Sax. Lex., 18 (2), Boucaut, or Borcaut, case of, in France, 338. Bouvier's Inst. Am. Law, 399 (1). Bower's Popes, 160 (2). Bowyei-'s Universal Pub. L., 1 (2), 3 (1), 4 (1), 8 (1), 11 (2), 12 (I), 15 (4), 16 (2, 4), 23 (1), 45 (1), 47(1), 49(1), 58 (1), 99 (1), 144 (3), 196 (3), 814 (1), 506 (3). Bozius, de Jure Status, 94 (1). Bracton, 127 (1), 144 (2), 207 (3), 419 (1). Bradford, Gov., patent to, 254 (2). , Judge, on Foreign Law, 71 (1). Brande's Diet., 1 (1), 15 (1). Brehon low, 28 (1). Brevard's observations, 293 (1). British empire, public law of, during co- loniol period, 126; distinction of ju risdiction in it, 317. British precedents, their authority before revol., 333. Broodhead's Hist of N. Y., 206 (1). Brompton, 131 (2). Brougham's Political Philosophy, 18 (2) ; Colonial Policy, 208 (2). Browne's CivU aud Admiralty Law, 46 (I), 144 (3). Browulow, 218 (2). Buchanan, President, reference to Dred Scott's cose by, 559 (1). BuUs, Papal, decreeing slavery, 1 60 (2, 6). Bunsen's Signs of the Times, 12 (I). Bureaucracy, 420 (4). Burge's Comm. on Col. and For. L., 83 (1), 71 (1), 181 (1), 209 (1), 308 (1), 333 (1), 378 (1). Burke, speeches of, 225 (4), 461 (1) ; Ac count of the Brit. SettL in Am., 381 (2). Burning, dooth of slave by, in Mass., 259 (1). Butler, HoRO Juridicoe, 18 (2), 28 (2), 29 (1), 31 (1), 94 (1), 144 (1). , B.F. Discourse ou the Const. Hist. ofN. Y., 221 (1). Bynkei-shoek Quiest. Jur. Pub., 161 (3), 204 (2); De Foro Legatoruui, 837 ( 1 ) ; Essay ou the Patria Potestas, 360 (5). Byzontiuo Jurists, 18 (2). INDEX. 601 Ctesor, de BoUo Gnl., 158 (1). Colifornio. See Compromise measures. Calhoun's Works, 7(1), 313(1), 400(2), 405(2), 407(1, 3, 4), 408(2), 413 (2), 421 (I), 423 (1), 424 (1, 2), 432 (1), 488 (1), 565 (1). Camponius, 206 (1), 219 (2). Campbell, Lord, Lives of the Chief Jus tices, 874 (1), 376 (3). Campbell, Mr. Justice, iu Dred Scott's case, citing Bodin, 338 (2) ; on Ver delin's slaves, 340 (1), 342 (1), 343 (1) ; statement of rule of internat. law, 373 (I) ; on Missouri Compromise, 634-638, 557, 566, (2), 673 (1). Canodion Freeholder, 124 (3). Canciani, Logos Barbarorum, 23 (1), 158 (2)- Canon Law, force of, 29 (1), 95 ; tho De cretals cited, 157 (1), 160 (1). Copocity for rights, on element of status, 134. Capitulation ofthe Dutch at N. Y., Articles of, 278(1). Coptivity in war, cause of slavery, 160 ; of American Indions, 200. See Indians. Caput, a synonym of status, 40 (2, 3). Corneodes, 2 (2). Cases reported. See the Table of. Caste, defined, 44. Catron, Mr. Justice, in Dred Scott's case ; on property in oneself, 616 (1); Mis souri Comp., 539-641, 543 (1), 657, 659 (1). Coucosian, the term, 217. Causes Ci'lebres, slave cases in, 337 (1), 338, 339 (1), 342, 344. Cession of territory by tho States, 410. Chalmers, Pol. Annals, 120 (1), 121 (1), 197 (2), 219 (1), 388 (3). Hist, of Rev., 118 (1). Opmions, 117 (2), 122 (2), 126 (2), 129 (2, 8), 218 (1), 242 (1). Charlemagne, slavery in his tirae, 159 (1) ; law of, for rendition of slaves, 340 (1). Charters, colonial, their personal guaran tees, 119; construed by personal dis tinctions embraced in universal ju risprudenco, 207 ; of English liberty, 135(1); ofVirginia, 228(1), 234(1); of Lord Boltimore, 247 (I); Mass. 254 (2), 250 (3); Commission to Cutts, 2G5 (1); Conn. 270 (1), 278 (2); Providence PI. 273 (3), and Rh. L 276 (1); of Duke of York, 278 (2); of W. Penn, 286 (1) ; Carolina Proprie tors, 293 (1) ; Trustees of Ga. 309 (2). Chattel slavery defined, 40 ; its prevalence in antiquity, 154 ; why cognizable by universal jurisprudence, 104 ; when not cognizable by reason of a uni versal attribution of rights, 106 ; how modified on introduction of Chris tianity, 156; became lawful in the colonies, 206 ; may hove chongcd in some of the colonies into a different bond status, 210, 8G8. Chose, Judge, on distribution of sover eignty, 469 (2), on limitation of leg islature, 519 (6). Chicago Press, case on negro citizenship, 437 (1). Chipmon ou Government, 130 (2). Chitty, Commercial law, 119 (1), 120 (I). on Prerogative, 118 (1), 119 (1), 120 (1), 126 (2). Choate, address before N. Y. New England Soc, 125 (2). Christianity, iti oifect on slavery during the Roman empire, 155 ; in sustaining slavery of heathen barbarians, 159 ; how for a part of common law, 172; recognition in some colonial codes, 198 ; negro slavery said to be an in stitution of, 165(1). Christian's notes to Blackstone, 1 (I), 29 (2), 128, 130 (2), 588 (2). Christina3U3, 335, 384 (2). Church, the, not authority in law, 12 ; doctrines of, respecting slavery, 157 ; enslaving by the Roman, 160, (2, 5). membership, quaUfication for voting, 121. Cicero, 5 (2), 24 (1), 29 (2), 87 (2), 154 (3), 426 (2). Citizen defined by Ch. J. Taney, 412 (2) ; negroes held not, in Dred Scott's case, 434; contra by McLean, 435, and Curtis, 436 (2) ; different meanings of the term in the Constitution, 435. Civil law, use of the word, 7 (3) ; in Dutch colonies, 221 (1), 277 (2). Civil liberty, its guarantees in EngUsh law, 134 ; connection with political Uberty, 419. Claim in pais, for deUvery of slave, 330 n. Clay, ou extension of the Constitution, 423 ; on State low in U. S. courts, 490 (2). Cobb, Joseph B., Leisure Labors, 616 (1). Code, civil, Projet du, 15 (U Codo noir of Louis XIV., 843. Coke's Institutes, 4 (8, 4), 18 (3), 27 2^, 28 (1), 82 (1), 127, 128 (1), 131 (1), 135(1), 136(1), 137(1), U 1(1), 174, (1), 211(1), 218(2), 607(1). Colebrooke, Paper on Slavery m India, 203 (2). 602 INDEX. Coleridge, S. T., 513 (5), 524 (2). CoUomer, Senator, on property in slaves, 581 (1). Collision of laws, use of term, 97 (3). Colonial Governments, views of their powers, 120, 126 ; how obrogotcd by tlie' revolution, 400 ; law for slavery, 209, 225. ' Colonies, origin of law in, 228; negro slavery, when introduced, 205 ; low of those not first settled by English, 221 ; private law of, continued after the Revolution, 467. Colonists, their doctrine of the public low ofthe empire, 120-126 ; personal lows determining their condition, 196.' Colored races, basii of their status in the colonies, 215. Condition of things, 2 ; personol, defined, 39 ; two distinct lows of, m the colo nies, 216, 226. Congress, its recommendation to colonial conventions, 267 (1), 402 (2); pro ceedings relative to St. John Parish aud the Mecklenburgh deck, 406 (1) ; of the Revolution had no power over status, 469 ; question of its power over slavery in the Territories, 525 ; outonomic power in admission of States, 412, (1). Correspondence between Gov. of New Neth. and N. E. Commissioners, 268 (5). Confederacy of New England colonies, 268 (6), 329. Confederation, state sovereignty in, 407 (1); oi-ticle offecting status in, 522. Conflict of laws, 62, 97. Connecticut, sovereignty in the freemen of, 126 (4) ; origin of Gov. 267 (2) ; slavery in, 212 (2), 359 (4); statute low of colony, 207-273. Conquered countries, their lows continue, 114. Conspiracy of slaves. See Slaves, insur rection. Constitutio juris gentium, meaning of, 152. Constitutions, force of written, 396 ; if changeable except in occordonco with their own terms, 413; authority is of the natnre of custoinary low, 27, (2) ; containing legihlutive changes of ex isting low, 526, (2) ; of the several States us restrictive of legislature, 620. Constitution of the United States, hy what people estabUshed, 400; evidence of the locution of sovereign power, 422 ; contains private law also, 423, 4.">2 ; whether it 8puid;d of sluvus us prop erty or us persons, 5UU. Constant, M. Benj., 35 (3), 420 (3), 461 (1). Contrary ond opposite, tiie terms distin guished, 524 (2). Conversion to Christionity. See Baptism. Convention, revolutionary, at Exeter, N. H. 2G7 (1). Convicts, statute against Importation of, Va.,232 ; Md., 250 ; Conn., 272 ; Pa., 290. Coode on Legislative Expression, 20 (3). Cooper's version of lust., 214 (1). Cornbury, Governor, of N. Y. and N. J., 283, 280; his instructions, 280 (1). Corpus Juris Civilis. See Roman Law. Comity, reason of the judicial mle so caUed, 69 ; error prevalent on this topic, 73, 76, 352 ; substitute for Uie ordinary rule, 81 ; appUcotion of tho rule to slave cases during the colonial period, 366 ; question of, in Dred Scott's case, 490 (2). Commerce, law of, maritime, embracing universal jurisprudence, 89 (1) ; sla very under it, 1 74. Commissioners of the united N. E. CoL, 268 (5). of the U. S. Courts, their office ministerial, 508 ; judicial au thority on their oction under the fu gitive slave hiw, 501 (2), 508 (1). Common law, what is, 31 ; Jefferson's view, 119 (1); its personal extent in America, 124-129 ; its extent in tlie British empire, 131 ; its effect as a law of condition, 132; its local devel opment in each colony, 209 ; none having a national territorial extent in tlie U. S., 478-482 ; may operate as a personal law, 480 ; wheu sus taining and when not sustaining sla very in the colonies, 324, 390. Compact, the theory of the social, not U- lustrated in the U. S., 400 (2), 513 (5) ; of voluntary compacts in the first settlement of the colonies, 120, 254, 265 (1), 267. Compromise, the uiioonstitutionaUty of the Missouri, 5^8 (1); the compromise measures of 1850, 563 (1). Comstock. Judge, on power of legislature, 529 (5) ; on the foundation of prop erty, 565 (1). Comte, 'fraite de Legislation, 7 (2) ; de lo ProprifitA, 4G9 (2). Corvinus, Jus Canonicuin, 94 (1). Courts of ordinary juri^dictioll in the States, their concuneut judicial power, 501. Covarrnvliis, 204 (2). i Cousin, 7(1). INDEX. 603 CoweU's Inst., 207 (8). Crawford, Jiiilgc, on jndiciiil power under fug slave law, 6t)2 (2). Criminals, surrender of in Conn., 272 ; in N. E. Articles of Confod., 268 (5). See Convicts. Cruikshoiik, Slavery on the Gold Coost, 203 (2). Curtis, G. T., Commentaries on the Jurisd. &c., of the U. S. Courts, 429 (3), 402 (1), 493 (1, 3), 496 (1, 2), 498 (2), 567 (1), 590 (3); History ofthe Con stitution, 120 (1), 126 (2), 314 (2), 400 (2), 401 (1), 406 (1, 2, 5), 408 (2), 518 (2)._ , Mr. Justice, in Dred Scott's case, 834 (3) ; slavery o variable status, 868 (6) ; meaning of citizen, 436 (2) ; criterion of State law, 490 (2); on the Missouri Compromise, 546-554. Cushuig, L. S., on Study of Roman Law, 15 (1),25 (3), 29 (1). Law of legisla tive Assemblies, 486 (1), 509 (1). Custom, effect and not cause of law, 26. Customary law, included in positive law, 80, 677; origin of on international, 84 ; Ibundatloti of negro slavery, 206 ; international in case of slaves during the colonial period, 834 ; an inter national, recognized in slave cases, 353 ; none for slavery iu England, 880. D D'Aguesseou, 4 (1), 9 (1), 10 (1), 12 (1), 14 (2), 18 (1), 24 (1), 31 (1). Dane's Abridgment, 408 (2). Daniel, Mr. Justice, on the Roman law of Libertini, 214 (1, 2) ; on the status of Africans by the law of nations, 321 (1); on slavery in the Territories, 631-534. Danish settlements, low in, 219 (2), 221 (1), 291 (1), 344 (2). Debtors required to satisfy by personal ser vice, statute Conn., 271 ; Pa., 288. Decisions, judicial, their force, 25, 626 (2) ; in internationol law, 33, 330 ; of the coloniol courts, 209. Declorotion of Rights of continental Cong., 126 (2) ; of Virginia, 246. Declarotion of Independence, its effect on personal condition, 467-471 ; the MecUenburg, 296, 402 (1), 406 (1). Decretals. See Canon Law. Deferriere, 28 (2). Definitions, maxim in Digest, 3 (2') ; who should make them in science, 469 (2). Uolownro, slavery In tho settlements on the, 21)6 ; statutes of tlio Col., 291- 298. Delivery of fugitives on claim, 330. Do Maistre, IG (4), 396 (2). Demosthenes, 5 (2). Denisort, Decisions Nouvelles, 343 (1), .344 (2). De TocqueviUe, 16 (2), 404 (2), 408 (2). De Tracy, comment. Montesq. 1 (1), 417(2). Descent of personal lows, 196, 466 ; sla very by. See Birth. Despotic power. See Absolute power. Dew on Slovery, 616 (1). Digest. See Roman Law. Diogenes, Lncrtius, 2 (2). Dionysius HolicarnasSensis, 144 (1). Distributed sovereignty. See Sovereignty. District of Columbia, 453, 563 (1). Doctor and Student, 3 (2), 13 (3), 15 (1), 29 (2), 36 (2). Domat, 1 (2), 4 (1), 7(1), 16 (4), 144 (3), 315 (1). Domicil, personal extent of laws deter mined by, 49, 112 ; law of dotermin-. ing status, and the exception, 109 (1) ; its importaiico iu tlio intermitioiial law of the colonies, 316 ; case of slave's return to, 384. Douglas, Summary, 274 (1). Dred Scott's caso, opinion of the court, who arc citizens, 412 (2) ; negroes not citizens, 434 ; constitution operating OS bill of rights, 440 (2), 463 (1), 529 ; effect of Declaration of Independence, 471 (2) ; criterion of State law, 490 (2) ; conEtitutionality ofthe Missouri Comp., 528 ; opinions of Justices Wayne and Grier, 631 ; of Justices Daniel ond CampbeU, 531-538 ; Mr. Justice Catron, 539 ; Mr. Justice McLean, 641 ; Mr. Justice Curtis, 646 ; summary of the opinions, 567 ; argument against the decision, 560- 670. Droit, use of term, 146 (1). Dromond's slave, Va., 231. Duck's Treotise, 145 (1). Duer on Insurance, 29 (2). Duke's Laws, the, 278. Dummer's Defence of the N. E. Charters, 118 (1), 129 (1). Dunning, in Somerset's cose, 376 (4), 377. Dumont's Corps Diplomatique, 175 (1). Duponceau on Jurisdiction, 16 (2), 18 (1), 31 (1), 47 (3), 140 (3), 145 (1), 481 (1, 3), 482 (3), 498 (1). Dutch settlements, negro slavery in, 206 ; civU law m, 277 (2). Dwarris on Statutes, 127 (1). 604 INDEX. E Edrians, 162 (3). Edward the Confessor, common law in his time, 131(2), 172(1). Elective franc'nise, 227 ; colomal statute law respecting, Va., 232, 238, 242, 246 ; Md., 254 ; Mass., 255, 256, 261, 262; Conn., 268, 271; Rh. L, 273 (3); N. J., 286; S. Car., 298, 301. EUenborough, Lord, on recognition of fo reign low, 68 (2) j on personal laws m India, 216 (1). EUiot's Hist of N. E , 219 (5), 259 (1), 277 (1). EUiotf s Debates, 408 (2). Emancipation. See Manumission ; Slaves. Encyclopedia Am. vol vii. See Story. England, local customs in, 99 (1), 116 (2); low of, its extent in conquered coun tries, 117; negro slovery in, during colonial period, 170-188; slaves being there, stat of Va. respectmg, 239, 243. England, Bishop, Letters on Slovery, 150 (1), 157 (1), 160 (1), 167 (3). EquaUty of men, effect of its assertion in the Declaration of Independence, 468. Equity, distinguished from law only as o method of remedy, 31, n. Euripides, Hec, 459 (2). European race, extent of laws to, the, 217, 320, 324. Evidence. See Testimony. Existence aud realization of relations dis tinguished, 59. Extent of law, 80 ; criterion of it, 96 ; of English law of personol condition in the empire, 140, 196; not changed by the Constitution, 465. Extradition by the executive, not demand- able in case of slaves during the colo nial period, 387. Falck, Juristiche Encyclopadio, 5 (1), 15 (3), 26 (2), 28 (2), 40 (2), 509 (1), 510 (1, 2), 526 (3). Foucher, 22 (1), 46 (2). FederaUst, No 89, by Modison, 405 (2), 406 (5) ; No. 82, by HamUton, 492 (2), 493 (2), 496 (2), 498 (2). Feudal slavery, nature of, 44 ; replaced chattel slovery in Europe, l57. .^—^— institutions, on iUustration of dis tributed sovereignty, 314 (1), 408 Ferse nature, animals, distinguished &om slaves, 385 (I). Ferguson, Report on Divorce, 383 (2). Fichte, 35 (I). Final arbiter of power under the Constitu tion, 430. Finch, Sir Henry, 27 (2), 29 (1), 32 (1). Fitzherbert, 179 (2). Fleta, 127(1), 207(3). Fletcher, Studies on Slaverv, 157 (1), 158 (2), 160(2). FoeUx, Droit International Priv6, 9 (1), 15 (1), 29 (2), 65 (1), 76, 78 (1), 86 (1), 99 (1), 100 (2), 109 (1). Foreign commerce, negro slaves in, during the colonial period, 823; power of imperial Government over, 126. law, its authority, 28, 33, 68, 82; measure of the aUowance of its effect, 79, 82. - precedents, their force in inter national law, 84, 334. Fortescue de Laudibus, 13 (5), 211 (1). Forum of jurisdiction or of domicil, 83. Foster's Lecture, 7 (1). France, serfdom in, 158, 159, 339 (I), cus tomary law of iu case of slaves, 337— 344. Franchise. /See Elective. Finmcisque, case of negro in Fronce, 344. Free condition, on whot power resting in tbe colomes, 215. Freemen, who, ui the sense of electors, in tlie N. E. colonies, 121 ; in Mass.,262 ; tlieir oction in the Revolution, 401. Free negroes. jSee Negroes. Free persons, sole of such os slaves, statute agamst, Va., 239, 243, 244 ; Md. 251 ; Del. 293. . reduced to servitude by statute, 249, 251 (1), 252, 253. Freedom, how it may be described, 394 ; howit mo'iy exist, 419, 894 ; civU, so cial, and political distdnguished, ISO, 415 ; how distinguishable under the laws of the U. S., 459 ; how, in a souse, impossible, 459 (2). Fueros, the Spanish, 160 (1). Fugitive. iSee Slaves, servants. slave law. See Compromise measures. Commissioners, U. S. Functions of sovereignty, their separation, 814 (2); how held by the national Government, 424 ; theory of their ex ercise in the Territories, 589-592. Fundamentals, the, general, of Plymouth Col., 254; of Massachusetts Boy Coh, 258. INDEX. 605 Goius, 89 (I). Gentilis; Albericus, 337 {!). Georgia, slavery when introduced, 206- 212 (2); statute law of tho colony, 809-311. German empire, an intemotional law of, 100 (1). Germany, slovery in ancient, 168 (1) ; slavery not recognized in modem, 161 (2) ; but law of some districts as to liberty of strongcrs, 340. Gerry, Elbridge, Ufe of, 401 (1), 408 (2). Gibbon, 160 (1). Glanvill, 131 (2). Godwin's Commonwealth, 219 (4). Goethe's Faust, 466 (1). Gordon's Hist. Am., 266 (1). Government, forms of, distinguished, 417 ; of o constituted, 421. Governments, the coloniiil, their origin, 117-125 ; held the locol sovereignty, 128 ; were divested of it by the Rev olution, 399 ; not oU changed simul- toneously, 403. , the notional ond the State, do not possess sovereign power, 424, 613-620; powers of the notional,! 425-427 ; those of the States are not I restricted by the Conot. of U. S. as a biU of rights, 476, 477 ; power of the State G. over slavery, 517; of the nationol G. in the Territory, 589-59. Graham, Hist of U. S., 219 (5), 122 (2), 401 (1). Granger, speech in Ho. of Rep. 615 (3). Gray, F. C, on Mass. Fundomentols, 258 (2)- Gravina, 16 (4), 147 (3). Greonleaf's Evid., 74 (1), 88 (1). Grier, Mr. Justice, observations on Som erset's case, 194 ; on habeas corpus by State judiciary, 495 (7) ; opinion in Dred Scott's case, 531. Grimke, on a distributed sovereignty, 408 Groenewegen, law of the Netherlands in slave cases, 335. Grotius, 2 (2), 3 (1), 7 (3), 9 (2), 14 (1), 16 (4), 24 (1), 28 (2), 29 (I), 33 (1), 166(3), 168(4), 846, 417,(2). Guadentius, de Justinian^i Stec. Mor., 166 (4). Guarantees distinguished from liberty, 420 (3); the, of liberty in English law, 131 ; in the constitution of o repub- Uoon government, 616 ; guarantee of private property in Cons, of U. S., as protecting slavery, 529. Gudelin, dc Jure Novissimo, 157 (1), 158 (4), 160 (1), 167 (8), 884, 885 (l). H Hakluyt, 164(1), 177(1). Hole, Ch. J., 20 (1), 128, 146 {'\).'\ HoUam's Mid. Ages, 159 (1) ; Literature of Europe, 204(2). HaU, J. P., address before N. E. Society, 122 (2). Ham, issue of, 165(1). Hamilton. Sec Hedaya. Alexander. See Federalist Hammond, Senator, speech on slave ques tion, 624 (2) ; writings, 616 (1). Hardwicke, Lord, 185. Hargrave's argument in Somerset's cose, 376 (2), 378 (1). Harper, Chancellor, 43 (2) ; 516 (1). Harrington's Analysis, 203 (2). Harrison. See Holinshed. Hartford, government at, 267. Hayward. See Savigny. Hazard's Annals of Pa., 206 (1); Collec tions, 254 (2), 256 (3), 268 (5), 275 (2), 278 (3). Heathens, slavery of, 160. Hebrew low in Conn., 268 (2). Hedoya, Mussulman Law of slavery in the, 23(1), 167(1,2). Heffter, 21 (2), 22 (1), 28 (3), 33 (1), 34 (1), 35 (1), 93 (3), 156 (1). Hegel, 6 (2), 35 (1), 47 (2). Heineccius, 88 (1), 94 (1), 144 (1), 147 (1), 161 (3), 152 (1), 154 (1), 158 (2), 211 (1). Hening, statutes of Va., 119 (6), and see Vo, statutes. Herrera, 1C7 (3). Hertius, 97 (2), 99 (3). Hewit, Hist ofS. C, 205(1). Hildreth, Desp. in Am., 185 (2), 576 (1) ; . Hist, of U. S., 121 (3), 122 (2), 123(1), 124 (I), 160 (4), 173 (1), 175 (2), 204 (1), 205 (1), 206 (1), 212 (2), 219 (3, 5), 220 (4), 226 (2), 233 (1), 249 (1), 254 (2), 261 (1, 2), 262 (2), 268 (4 , 271 (1), 275 (1), 279 (I), 287 (1, 2), 301 (1), 809 (2), 376 (3), 402 (2), 403 (1). Hindoo law, 115 (1). Historical element in low, 47. low of nations. See Universol jurisprudence. J school of J jurispradence, 47 (2). Hobort, Chief Justice, on power of por liament, 127. 606 INDEX. Hobbes, 2 (3). 5 (2), 6 (2), 22 (3), 27 (1). 127. Hofiman's Legal Outlines, 29 (2), 33 (1). HoUnshed's Chronicles, 179 (1). Holm. See Companius. Hohnea' Annols, 121 (4), 262 (2). Holroyd, Judge, 216 (1), 576 (1), 578. Holt, Ch. J., 127, 145 (1), 181 (1), 224 (1)- HorsQ Juridicse, 29 (I), 31 (1), 94 (1), 144 Horses, how known to he property, 585. Horsmonden, 282 (1). Huberas, De Conflictu Legum, 70, 71-74, 147 (3); De Jure Civit, 149 (1), 156 (3) ; Pralectiones, 340 (1). Hughes, Gr. Abridg., 138 (1). Hugo, Encyclopiidie, 14 (1), 20 (2). Hutobiuson, Collections, 219, (4); Hist, of Mass.,120 (1), 121 (1, 4, 5), 122 (1, 2), 123 (1), 205 (5), 262 (2). Hume, Hist, 219 (1). Hiine, DarsteUung iiber Sclavenhondel, 151 (3), 158 (1), 159 (1), 160 (3), 161 (1), 162 (1, 2, 3, 4), IG3 (1), 164 (1), 174 (2), 176 (I). lovolemus, in Dig., 8 (2). Idol of the morket, illustrated, 586 (1). lUicit intercourse of blacks and whites, statute law, Va., 229, 238, 240 ; Md., 251 (1), 252, 253; Mass., 263; Pa., 290; Deh, 292; S. C, 302. Immoral laws. 111 (1). Imperial power of cro^vn and parUament, 126, 208. Importation. See Slaves. Indentured servants, 219. See Servonts. ludio, slavery in British dominions, 208 (2) ; extent of English law in, 216 (1). Indians, slaveiy of, 164; in Mass., 256; Conn., 268; basis of their condition in the colonies, 204, 215; how re garded as aliens, 821 ; when property by colonial law, 828. , statute law respecting; trading with, Va., 229, 234, 236, 241 ; uiter- course with N. C, 293 (I), 295; uot to have Christian slaves, Va., 233 ; enslovement of, sanctioned, Vo., 230, 283, 235, 241; Muss., 256; Conn., 268; R. L, 275; order of Commis sioners of United N. E. Col., 268 (5) ; instraction of Conn., 272 ; N. Y., 280 (1) ; transportation of, ordered, Vo., 237, 241, 246; Moss., 261; Conn., 269; R. L, servonts, Va, 230, 231 ; slaves, duty on export, S. C, 298; importation prohibited, Mass., 265 ; N. H., 266 ; Conn., 271 ; R. I., 276 ; Pa., 288 ; their civilization, Mass., 204 (1), 257; evidence, S. C. 305, and see Slaves, Testimony, Individual rights, 37; may be attributed universally, 53, 83. Inductive melJiod in jurisprudence, 87, 62U (2). Ingenuus, meaning of, 214 (1). Inhabitants of tho colonies classified, 199. luheritance of slavery, 211. See Birth. of common law, 19G. Intermarriage of negroes ond vrhites, statute law, Va., 236, 240; Md., 249, 250, 251 (1), 253; Mass., 263; Pa., 290, Del., 293; N. C, 295. Internal law. 48. Intemotional law defined, 9, 11, 34, 48; nature of its outhority, 10, 68 ; when identified with national low, 10, 53, 97 ; not identical with naturol law, 1 1 ; is pubhc and private, 22, 97 ; how derived, 83 ; how divided, 44, 54 ; how changed, 86 ; discriminated from law of nations, 46 ; fundamental maxims of private, 55-60 ; operates as a per sonal law, 64 ; determining personal condition in the colonies, 200, 317, 829, 884 ; is part of the law of the U. S., 442 ; how determined in each State of the Union, 490 (2) ; how ap plied by administrative officers, 510. Institutes. See Roniau Law. Coustumi^res, 389. . Insurrections. See Servants, Slaves. Irving, CivU Low, 27 (2). , W., Knickerbocker's History of N. Y., 124 (1), Hist of Columbus, 162 (4), 1G4 (1), 107 (3). Issue, of slovo. See Birth. , that hud in view in this volume, 572 ; statement of tliot betweeu the North and South, 593 (2). Jay, P. A., in N. Y. convention, 418 (1). Jefferson, his views of the common law, 119 (1), 197 (2); his connection with tlie Declaration of Independence, 472 (2) ; his first draft of, 225 (4). Jews not peiTuitted to hold slaves, 160. Johnson, Judge, on powera of Congress in the Territories, 453 (3). Jones, Sir Wm., on Romon Low, 144 (2) j on Hindoo law, 23 (1), 115 (1); on extent of English law, 196 (2), 216,(1). INDEX. 607 Jones, C. C, on tho Religious Instruction _ ofthe Negroes in the U. S., 2C3 (2). Judiciol oct, whot is, 607. Judicial decisions o source of law, 26 ; ju dicial recognition of foreign law, 73 ; power, of the U. S., its extent, 427 ; the power described, 432; persons who moy exercise it, 487 ; power held by legislotive bodies, 486 (I). power, concurrent of the Stotes, 490 ; they may restrict it, 498. Judiciory of the U. S., 429, 604. Juridlcol, use of the term, 5 (1), 499 (3) ; Society of London, 5 (1), 31 (1). : — power of the States ond of the U. S., may be concurrent, 491. Jurol, use ofthe term, 5 (1) ; charocter of the stote, 15. Jurisdiction defined, 22; in international law, 316 ; in the Territories of the _ U. S., 463. Jurisdictions, several in the British islands, 817 ; national ond local in the U. S., 439 ; jurisdiction, presumption of, in judicial tribunal, 601 (1). Jurisprudence defined, 14 ; general or uni versal, 16, 28, 86; is mutable, 36; a histoiical science, 47 ; described in the Institutes. Juristical, use of word, 5 (1) j phrase ology, defioiency of, 62 ; in the slavery discussioa, 5 . Jurists, authority of, 28. Jus, two significations ofthe word, 19(8) 146. ^' constitutum, 14 (1) ; primsevnm et secundarium, ISO (I). in the Roman law, proprium or civile, 87, 148; naturale, 147; geutium, 148; publicum, 149. Jus gentium, has been used in two senses, 72 (2) ; 88 (2). " - slavery supported by it, 154. Jus proprium supporting slavery in the colonies, 212, 358, 361. Justice, notiirol, recognition of, in juris prudence, 6, 24. Justices of the peoce, powers under the fugitive slave low, 608 (1). Justinian, low of, respecting fl-eedmen, 213, Justinian's Institutes, analysis of low in, 146. See Romon low. Juvenol, 161 (2). K Koimes, Principles of Equity, 89 (1). Konsas, slavery under the organic law of proposed State, 669 (1) ; act organ izing Kansas Territory, 663 (1). 39 Kant, 4 (1), 13 (4), 36 ( ). Kaufmann. See Maokeldey. Keble's Statutes, 179. Kent?s Coram., 13 (2), 22 (I), 27 (2), 28 (1), 83 (I), 99 (1), 183 (1), 138 (2), 140(2), 145(1), 161(8), 198(1), 204 (2), 216(1), 404(1), 406(8), 407(1), 429 (3), 432 (2), 476 (2), 481 (8 487 (1), 490 (2), 492 (1), 493 (1, 2 495 1), 496 (2), 498 (2), 499 1, 2 500 11, 501 1), 603 (1, 2), 504 (2 609 (2), 567 (3). ^ '' Kidnopped Africons, cose of in Mass., 261 (1). See Monstealuig. of Indians not sanctioned by law, 205. -of Africons, 261(1). ¦ persons in England, 219. ICieft, Gov., corresp. with N. E. Commis sioners, 268 (5). KUling slave, law colonial respecting, Geo., 188(3); Va., 232 ;N. C, 296(1). King of Englond, power of, in the colonies, 118-125, 209, 224. Kirchener, 837 (I). KnoUes. See Bodin. Laetantius, 2 (2), 6(2), 156 (3). Lalaure, Servitudes RfieUes, 167 (1), 159 (1). Lamennais, 16 (4). Lang, Freedom, &c.. Lands of AustraUa, 129 (1). Lonjuinais, Constitutiona, 417 (2), 420 (2). Las Casas, 164 (1). Lavie, Abr«g4 of Bodin, 341 (1), 346. Law, the term used in two senses, 1 ; im plies a superior, 2 ; authority derived from the state, 2 ; distinguished from ethics, 3, 11, 13; its origin, 24-32; its extent, 44-62 ; its effect, 18, 20. definitions and divisions, naturol, 6-13, 24 ; positive, 14 ; nationol or municipol, 7, 12; international, 9, 11, 34, 48 ; internal, 48 ; customary, 26 ; pubUc and private, 21 ; personal, 23, 47; territorial, 22; universal, 18; having universal personal extent, 50 ; unwritten, 31 ; of nations, 17, 29, 86, (and see Universal jurisprudence, and International law;) natural and neces sory law of nations, 45 ; administra tive, 608. of the U. S., notional and loco), 440-445 ; divided into intemol ond intemational, 466 ; quasi-intema- 608 INDEX. tional, 452 ; contained in the Consti tution of the U. S., 423. Lowreuce, W. B., Introduction to Wheo ton's Elements, 161 (1). Leaming and Spicer's CollectionB, 125 (1), 278 (2), 280 (1), 283. Lechford's Ploiu DeoUng, 123 (1). Legislotive power, if Umited, of ParUament, 127; of colonial Governments, 129, 228, 225 ; of State Governments, 519. Leo Africanus, 162 (3), Letters to Pro-Slovery Men, 160 (5). Leyser, ad Pondectas. 62 (1). Lieber, Political Ethics, 2 (2), 3 (1), 4 (3), 5 (I), 6 (2), 7 (2), 11 (2, 4), 24 (l), 37 (1), 414 (1), 417 (1,2), 420 (4); Civil Liberty oud Self-Government, 31 (1), 38 (I, 2), 135 (1), 314 (1), 315 (1), 420 (4), 462 (1), 469(1); tegol and Political Hermeneutics, 667 (2). Libertinus, Roman law of, 213. Liberty, its definition a problem, 88 ; civil and poUtical distinguished, 180, 415 ; guorontees of, 134 ; how attributed by English law, 140 ; on effect of law, 129 ; fovored by low, 371 ; connection of, with constitutions, 420. Liberties of the snbject, statute low re specting, English, 380 (5) ; colonial, Md., 248 ; Mass., 255, 258 ; R. I., 274 ; N. Y., 280 ; S. C, 298. Lilbume, 179 (1). Ijndley. See Thibaut. Locke, on equality of men, 198 (1) ; his constitution for Carolina, 293 (1). Longs, Discourses, 16 (1), 20 (3), 90 (1). Long Island, in State of N. Y., settlement of eastern portion, 278. Louis XIV., Code Noir, 843. XV., Edict of, 843. XVL, Edict abolishing serfdom, 839 (1). Loysel's Institutes, 887 (1). M Maokeldey, Compendium, 15 (I), 20 (2), 21 (1), 36 (3), 40 (2, 3),. 47 (2), 145 (2), 146 (I), 147 (2), 148(1), 153(1), 161 (2). Mackintosh, Progress of Ethical PhUos- ophy, 8 (1), 6 (I), 156 (2). Madison. See Federolist. Popers, 208 (2). Magna Chorto, 128 (1), 181 (1), 136 (1), 137 (1), 141. Moine, Readings before the Juridical Soc, _ 52, 398 (1). > Minority, principle of, not exemplified in formation of the Cons, of U. S., 405. Manning, Law of Notions, 16(4). Monsfield, Lord, on positive law, 27 (2) ; on law in the colonies of G. B., 115 (2), 190 (2), 374 ; his decision m Som erset's case, 183 (1), 189, 191, 373- 882. Mansteoling, coloniol statutes against, Mass., 261 ; N. H., 265 ; Conn., 270 ; R. L, 274 ; N. Y., 279, and tee Free Persons, sale of. Manou, law of, in India, 115 (1), 164 (2). Manumission, in Roman law, 150. in Colonial law, 213, 214 (2). Maritime Commerce, the law of, embraces universal jurisprudence, 89 (1). MarshaU on Insurance, 29 (1). , Life of Washington, 420 (1). Martens, 11(3), 46(2). Martyn, Peter, 164 (l). Maryland, statute low of the colony, 247- 254. Mason's Potent, 265 (1). Massachusetts Bay, Company of, their pa tent, 256 (3), 121 ; Colony of, united with Plymouth colony, 262. Massachusetts, Charters ond general laws, 256, 268. • Fundamentals, 258. Records, 121 (6), 124 (2), 219 (6), 261 (1), 262. • Hist Soc. CoUections, 123 (1), 205 (6), 268 (2), 264. • Provincial Congress Jour nals, 264 (1). -, slavery introduced in, 205, 258 (1); statute law of the coL, 254- 265 ; iuternational recognition of sla very in, 370. Mass6, Droit Commercial, 6 (2), 60 (1). Master ond servont, the relotion of, under English law, 135-138. Mourenbrecher, 97 (2). Moxims, of internotionol private law, 65- 58, 81. favoring liberty, 381 (2), 382 (1). McLean, Mr. Justice, iu Prigg's case, 600 (1), 501 (2); in Dred Scott's case, 437, 542-545, 589; his decision ou negro citizenship in C. C, 437 (1). Mechlin, slove cose there, 335. Mecklenburg, Declaration of ludependence, 296, 402(1), 406(1), Menonder, 43 (1). Menu. See Manou. Mercantile low, mistoken view of its foun- dotiou, 29 (2). Merchants, custom of, iu EngUsh low, 174. mention of, in Magna Charto, 141. MerUn, Repertoure, 99 (1), 150 (1). INDEX. 609 Metz, case of slave at siege of, 838. Miller, Hugh, 169 (1). MUton, Defensio pro Populo Angl., 172 (1). Ministerial officers, 605. Mirrour, 127 (1), 189 (1), 211 (1). Missouri Compromise, 663 (1), and see Dred Scott Mittermaier, Privatreoht, 159 (I). Mohammedan low in India, 115 (1). doctrine on enslaving in fidels, 160; as to effect of conversion, 167 (1), MoUoy, de Jure Marit. 4 (8), 188 (1), 379 (3). Molyneux, cnso of Ireland, 43 (2). Montesquieu, Spirit of Laws, 1 (1), 80 (2), 159 (1), 426 (2) ; Lettres Persones, 376 (3). Moors, slavery of, 162, 234, 341. Morhof, Polyhistor., 16 (4). Motley, Rise of Dutch RepubUc, 204 (2). Moulton, Hist of N. Y., 206 (I), 221 (1). Miihlenbruch, Pondectarum Doctrina, 163 Mulford, Hist, of N. J., 221 (1). Municipal low, origin of tho term, 7 (3) ; Blackstone's definition of, 12 1 how used 03 equivalent to national law, 222 (1), 513 (3). N National Government, use of term, 408. law, how distinguished, 17 ; di vided into internal and international law, 49, and see Municipal law. municipal low of the U. S., 440. sovereignty, how exhibited in the Revolution, 403. ¦ states, distinction of, by De Trocy and others, 417 (2). Nations, foreign, how o source of low for some one state, 28-35. of antiquity, aU allowed slavery, 154. , low of. See Intemational Law and Universal Jurisprudence. Notive subject distinguished from olien, 49, 64. subjects in the colonies distin guished, 199. Naturol low, its recognition in juriipru- dence, 2, 5, 11, 13, 16, 24; how identified with universol jurispru dence, 93, 96 ; its exposition in the Roman Civil and Canon law, 20 (I), 86, 94 (1); doctrine of, in the Insti tutes, 147, 148; how not the legal basis of rights of the colonists, 197 ; nor the basis of American Constitu tions, 418. Natural reason, its constant recognition in jurisprudence, 15 ; how applicable in the absence of local territorial law, 200 (1). rights, how for recognized in the national law of the U. S., 460. ¦ and necessary law of nations, 46. Naturalization, colonial low of, 218 (1) ; statute, in Va., 233, 234, 239 ; Md., 248 ; N. Y. 279, 282 ; S. C, 298. powers of the States in re spect to, 450. Nature, law of, 1-7. Navarete, 162 (I). Nebroska Territory, Act to organizB,663(l). Negro plot In New York, 282 (1). slavery. See Slave,', Slavery. Negroes, held in slavery in England, 176. , basis of their legal condition in the colonies, 216, 321, 390. -, when property by the law of com merce, 323, 349. free, their character described in colonial statutes, Va., 242 ; N. J., 284; Pa., 289; Del., 298; reduced to servitude by law, R. I., 276 ; Pa., 290; {see Illicit intercourse,) prohib ited from holding slaves, Va., 233, 240 ; from bearing arms in the miUtia, Va., 241, 244; or training, Mass., 261; Conn., 270; from keeping anns and araraunltion, Vo., 244 ; Mass., 267 ; Pa., 288; S. C, 300; from holding real estate ; N. Y., 281 ; N. J., 284. Nelson, Mr. Justice, on the fugitive slave law, 495 (7), 601 (2), 508 (I)j in Dred Scott's cose, 628 (2), 689. Netherlands, international law of, iu cose of slaves, 277 (2), 335. New England, slavery introduced into col onies of, 206. Great Patent of, 254 (2). United Colonies of, 268 (5). New Hampshire, statute law of the col., 265-267. Hist. Soc. Collections, 267(1). New Haven, origin of government at, 268. New Jersey, statute law of the col., 282- 286. New Mexico, Territory of. See Compro mise Measm-es. Now York, considered a part of New Eng land, 124 (3). statute law of the col., 277-282. Hist Soc. Collections, 229, 278. Nodler, Jean Sbogar, 459 (2). Norraans, their alteration of Saxon viUe nage, 136. 610 INDEX. North CaroUna, statute law of the col., 293-296. Northington, Chancellor, decision on sla very in England, 186 ; StoweU's criti cism on it, 586. 587. Noy's Maxims, 172 (1). 0 Object of action, 18. of right, 20. , use of term, compared with subject, 20 (2). Objective meanings of liberty, 38 ; of law, 78 ; ofthe word jus, 146 (1). O'CaUagan, Hist of New Netheriands, 221 (!)• Office, statute law providing who should hold, Va., 238 ; Md., 251, Origin of law, 24 ; of universol jurispru dence, 92, 93. Otis, Rights of the Colonies, 198 (1). Ownership iu slaves, during the coloniol ' period, how for supported hy uni versal jurisprudence, 188, 206, 362, 364 ; how for by common law of England, 133, 225, 828, 389. Oxford Chronological Tables, 159 (1). Persons, natural ond legol, 41 ; distin guished from things, 19, 20, 40 ; sloves when not, 42, 153. Personal condition, 39, 41. extent of laws, 48-51 ; shown in Paley, Mor. and Pol. Philo., 12 (2), 316 (1), 400 (2). Polgrove, Sir Francis, 159 (1). Papal Bulls recognizing slavery, 160 (5). Poris, on osylum for Uberty, 342 (1). Porish of St John's, Go., 406 (1). PorUament, power of, 13 (3), 127. Partidas, Las Siete, 344 (2). Partus sequitur ventrem, 211 (1). Porsons, Ch J., on slavery in Mass., 263 (3). Pascal, Lettres Provincioles, 24 (1). Patents, the colonial, their i"oice, ll9. of N. E., 254 (2); of Va., 228 (n. Paternal power, its ancient extent, 860 (5). Patrol, statute low of, S. C, 305. Peckius, de Re Noutica, 29 (2) ; de Reg. Juris, 87 (8). Penn, W., his proposed legislation for ne groes, 287 (1) ; viewsof governments, 420 (1). Pennsylvania, statutes of col., 286-291. Hist Soc Memoirs, 219 (2). People, the political, distinguished, 399 ; who so called in the Constitution, 399, 465; their oction in tho Kevolution, 400; thoir power uiiliuiitcd, 414. intemotional low, 64 ; in colonization, 116; its exhibition in the British empire, 116, 196, 388. laws, 23. rights, 101. statutes, 99. Personality, legol, under o law of uni versal extent, 107. Perthes, Life of, 413 (3). Peters' Hist of Conn., 268 (2). PhiUimore, J. G., 380 (4). Robert, Commentaries on In ternational Law, 11 (1), 22 (1), 33 (1), 95 (1), 109 (1), 818 (2), 336 (2), 342 (1), 344 (2), 349 (2). Phraseology, ambiguity of legol, 52 ; U- lustroted in discussion of the slavery question, 675-587. Pierce's Patent, 254 (2). Piracy, the slave trade was not, during the colonial period, 393. Pitkin, Hist, of U. S., 121 (1), 403 (1), 407 (2). Political liberty, 180, 414; how deter mined in the U. S., 474. Ploto, recognition of lawfulness of slavery, 154 (8). Piatt, Judge, on concurrent judicial power, 497. Senator, on judiciol decision, 526 (3). Plymouth colonists, their compact, 120. colony, charters of, 254 (2), laws of, 254-256. Pole, case of refugee, 336. Portugal, negro slavery in, 162. Positive law defined, 14; the term, how used in the discussion of slavery ques tions, 576. morality, name appUed to iuter national law, 10 (2). Postliniiiiiuin, if applicable in slave re turning to domicil, 384, 886. Pothier, 29 (2), 100 (2). Potter, E. R., Report ori Abolition Pet, 275 (1), 276. Powell, Judge, on slavery in Englond, 182. Precedents, judiciol, force of, 25, 526 (3) ; iu iiiternotionul low, 84, 834. British, during the colonial pe riod, 333. Prescott, Hist Ferd. and Isob., 162 (4). Presumption, in favor of liberty, 38 (2), 881, 882. statutory oguiiist liberty. S. C, 2U9, 808. INDEX. 611 Price, Dr. Richard, 118 (2). Primary meaning of word law, 1. — ' laws so called, I (2). Primordial rights, 37 (1), 59. Prince, Chroiiol. Hist, of N. E., 265 (2). Prisoners of war, enslaved, 160 ; when not by Christian nations, 158 ; law re specting, during seventeenth centurv. 204 (2). ¦" Property, standard of, in the colonial law, 183, 323; in the law of the U. S., 666. guarantee of, in tho constitution, 463. ¦ in transitu. doctrine of interna tional law respecting, ¦346-364, ¦ in slaves, not recognized by Vattel and Puffendorf, 348 ; how far not re cognized by international law, durin" the colonial period, 357-3G0 ; not protected ogainst the legislative pow er of Congress by o constitutionol guarantee, 5G1-571. Proprietary Governments, 120. Providence Plantations, laws of, 273, 276. , town ofj resolution againat slavery, 276 (1). Provincial Governments, 120. Prussian code, partial recognition of slove ry in, 161 (2). Public low, 21, 22 ; common law of Eng lond operoting os such, 125 ; that in the Constitution of the U. S., 422. Pnchto, Gewohnheit's Recht, 27 (2). Puffendorf, 4 (3), 9 (2), 16 (4), 316 (1), 345-35 L Putnom's Magazine, 167 (1). Pyrrho, 2 (2). Quakers, reason of the legislation against them, 256 (1). ordered to he sold, 261. Quosi-international law, operation of com mon law of England as such in the British Empire, 197 ; such law under tho Constitution of the U, S., 452. Quintus Curtius, 161 (2). R Races, distinction of, determining condition, none among ancients, 164 ; Mr. Web ster's statement of Grecian opin ion, ib. (2) ; the modern, ib., 199, 821. Ram on Legal Judgment, 25 (2), 26 (2), 28(2), 29(1,2), 31 (1), 32(1), 83 (1), 669 (2). ^ " Raynal's W. Indies, 162 (3). Roynevol, Inst., 10 (I). Rowle on the Constitution, 481 (2), 492 (3), 496 (2). ^ " Realization ond existence of relations, 69. Heal estote, slaves declared, Vo. Stat., 239. Recht, Ger. use of term, 6 (2), 146 (1); , biirgerliohes, 21 (2). Reddie, Inquiries in the Science of Law, 1 (I), 2 (1), 3 (1), 4 (1), 6 (2), 6 (1), 7(3), U (2), 16(1), 16 (2, 3, 4), 19 (3), 20(1), 26 (2, 4), 29 (1,2), 81(1), 34 (1), 86 (3), 47 (2), 60 (1), 69 {1), 72 (2), 469 (2) ; Inquiries in Interna tional Law, 9 (1), 10 (3), 11 (3), 34 (1), 46(1,3), 48(1), 99(3, 4); Hist Law of Marit Com., 7 (3), 10 (2), 28(2), 83(1), 89(1). Redemptioners, 218. See Servonts. Reeves, Hist, of English Law, 144 (2) ; Law of Shipping, 118 (2), 121 (2). Domestic Relations, 273(1), 359 (2). Register Brevium, 185 (1). Relations, the effect of law, 19. how determinable by more than one state, 6G-58. ReUgious freedom in the N. E. col., 122 (2). Remarques du Droit Francais, par M. H. M., Advocat, 339. Rendition, not applicable to slave oases,387. Reports, judicial, see the table of coses. Republic, meoning of, 418. Eepublican Government, guarantee of, iu the Constitution, 475. Responso Prudentum, 28 (2). Review, Moss. Quart, 27 (2), 113 (1), 469 (2). N. Am. Quort, 122 (2), 192 (I). London Low, 144 (1). New Englander, 214 (1). North British, 418 (2). South. Quart, 401 (1), 402 (2). Revolution, its place in reference to law, 36 (I) ; American, organs of the, 401 . Rhode Island, statute law of col., 273-277. Right, different senses of the term, 146. Rights, of persons and of things, 19, 20 ; and duties, correlotive, 19 ; individu al and relative, 37; how attributed with different personal extent, 61 ; not ottributed to oil by nationol law of. U. S., 466; necessary conditions of their recognition in international low, 66; how guaranteed iu the Cons. of tho U. S., 460. See Bills of rights. Robertson's Hist of Charles V., 145 (1), 167 (1), 164 (1) ; Hist of Am., 164 (1). 612 INDEX. Robertson, Lord, on Somerset's case, 381 (1). Rogron, Code CivU ExpUqn6, 416 (1). Roman Law, universal jurisprudence in, 87, 142 ; reason of its judiciol recog nition, 29 (1), 144,668; is the foun dation of English law, 144 (2) ; was not compatible with international law in modern sense, 147. Citations from ihe Corpus Juris. Institutes, Procemium, 156 (4). " Lib. L t. i. 145-150, 152. " L t U. 40 (1), 98 (1), 152. L t m. 43 (2), 150, 151, 153. Ltv. 150,213(1), 214(1). " 1. 1 viu. 152, 153. " L t. xiL 385 (1). " IL t. i. 162, 153. n. t v. 152 (2). Digest, Lib. L t i. 45 (1), 70 (1). 87 (2), 146(1), 162 (2), 213 (1). 28 (2), 33 (1). 382 (2). 25 (4). 40 (1), 211 (1). 3 (2), 4 (4 70(1 154 (1). 882 (1). 882 (1). 228 (1). 70 (2). 161 (2), 385 (1), 386 (1). " L. t. xviL 382 (1). Codex, Lib. L t. x. ICO (1). " m. t xxxviU. 154 (1). " VL t i. 886 (I). VH. t V. and vi. 214 (1). " VIIL t. UiL 381 (1). NoveUiB C, Justiniani, 156, 157, 158 (2). " " Leoni3,9, 10, 11, 157(1). " » 38, 39, 158 (2). Romance languages, use of terms subject and object in, 20 (2). Royalist theory of location of sovereignty in the colonies, 118. Ruffin, Judge, on Umitation of the legisla- tuiji, 464 (1). Runaway. iSee Servants, slaves. Rushworth, 179 (1). Ruskin, 469 (1). Russel, Lord John, Hist of English Gov., 416 (1). Rutherfurth's Inst, 2 (2), 3 (1). 1. 1 a. I. t Ui. 1. 1. iv. Lt v. 1. 1 xvu. n. t i. xvni. t. i. XL. t. V. XLIIL t xxix. XLVII, t. X. XLVIIL t. xxu. XLIX. t XV. Sochsenspiegel, 23 (1). Sole of oneself^ slavery by, 151 ; prohibi tion of by Roman emperor, 158 (2). of free persons as slaves See Free persons. Savigny, Heutige Rom. Recht, 4 (2), 15 (1), 21 (2), 23 (1), 27 (2), 28 (2), 29 (2), 32 (2), 42 (1, 2\ 63 (1), 78 (1), 86 (1), 93 (1, 2), 97 (2), 99 (1), 100 (1), 109 (1), 112 (1), 144 (2), 148 (1). 162 (1). Geschichte des Rom. R. im Mit telalter, 23 (1), 47 (1), 86 (1), 144 (2), 146 (1). on the Vocation of our Age for Legislation, Hoyword's Tronsl., 28 (2), 31 (1), 36 (2), 94 (1), 192 (1). Scoccio, Troctotus de Commer., 6 (2), 80 (2). SchiEffher, 22 (1), 58 (1\ 62 (1), 74 (1), 82 (1), 99 (4), 109 (1), 112 (1). Schwobenspiegel, 23 (1). Scotloud, coses of negroes there, 332 ; col liers in slavery there, ib. (2). Soldon, do J. Nat. et Gen. juxta discipUnam Hebrseomm, 2 (2), 3 (1), 18 (1, 2), 27(1). _ _ Serfdom, not ascribed to umversal jnris pmdence, 159, 168; replaced chattel slavery in Christian Europe, 159. Sergeant^s Constitutional Law, 495 (I), 496 (2), 500 (I), 504 (1). Servants, meaning of the term in colonial statutes, 331. , indentured, origin of their condition, 218, 219. importation of, encouraged, statute N. IL, 266 ; S. C, 208, 301 ; Ga., 309 ; duties on, Po., 289, 290. insurrection of, iu Virginia, 232 (1). in Mossochusetts, having the elective franchise, 121 (1), 255. statute respecting their term of ser vice, Va., 229, 230, 239, 240 ; Md., 248 ; Mass., 257 ; H. I., 276 ; DeL, 292 ; S. C, 297. maniages of, statute Va., 229, 239, 240, and see intermarriage. runaway, statute Vo., 2'29, 280, 231, 232, 236 ; Md., 248, 249, 252 ; Moss., 257, 260; Conn., 271; N. Y., 279; N. J., 284 ;.Po.; 287; S. C, 298. treatment of, statute Va., 230, 231, 289, 240, 243; Md., 248; Mass., 255, 257, 260; N. H., 266, 267; N. Y., 279 ; N. J., 284, 285 ; Pa., 287; Del., 292 ; S. C, 808. INDEX. 613 Servants, trading with, statute Va., 229 ; Conn., 270. , women, having bastards, Deh, 292 ; N. C, 295; S. C, 302. Service, contract for personal, common law respecting it, 139. Servitude, penal, 219 ; obolished by stot- ute, Vo., 229, 230 ; ordered, Mass., 267, 261 ; Conn., 272. See lUicit in tercourse ; Negroes. Seward, Senator, on lawfulness of slovery, 193, 207 (2), 616 (I); on Dred Scott's cose, 672 (1): Sowell's Hist, of Quakers, 261 (3). Sharpe, Granville, 185 (1), 188, 207 (3). Shaw, Ch. Justice, 27 (2), 82 (1), 501 (2), 508(1), 677,681. Slave trade, not piracy during coloniol pe riod, 892 ; time of its first restriction by English statute, 870 (2). Act of Congress abolishing, in Dis trict of Columbia. See Compromise Measures. Slavery, use of term, 39, 47 ; distinction of from political bondage, 342 (I); origin ond nature of by Roman law, 160, 153 ; chattel, in ancient Europe, 154 ; how changed by influence of Christianity, 156 ; antiquity of in Af rica, 161 ; principles determining its international recognition, 103-111; their opplication during the colonial period, 353-866. — — in England, a question of internal low, 178—192; a question of interna tional law, 365-871. , negro, its extension in the fifteenth century, 160; called by Sup. Court in Go. an institution of Christianity, ~ 166(1); in the colonies introduced ..- by universal jurisprudence, 206 ; sup- , — ^ported by local common law, 212; power over it, vested in the colonial -i-r~government, 225 ; was not necessarily »-- chottel slavery, 359 ; when not sup ported by common law of the empire, 362 ; not now supported by the na tional municipal law of the U. S., 670 -576 ; power over, where placed by the public law of the U. S., 484; power of the State governments over, 615-627; power of Congress over, in the Territories, 525-595 ; in what sense ascribed to positivo low, 576. Slaves, how protected by Roman law, 164 ; Roman law respecting, when taken by the enemy or stolen, or fu gitive, 386 ; condition of on return ing to domicU, 384^386. , stotute law of colonies respecting; thoir charocter described, Va., 242 ; Md., 263; Moss., 265; N. H., 268;- Conn., 271 ; S. C, 299. being in England, not to enfranchise, Vo., 2,39, 243. — clothing of, N. C, 296 ; S. C, 297, 802, 806. dismemberment of, Va., 241, 242, 244, 245; Md., 259, 260; N. H., 207 ; Conn., 268 (2) ; Del., 292. disorderly conduct of, punishment, Vo., 244; Md, 258; N. H., 266; Conn., 270. deoth of. See Killing, Owners com pensated. Dromond's slaves, Va., 231, enlistment of, N. J., 285; S. C, 298. estate in, personal or real, Vo., 239, 242, 243 ; S. C, 297. importation of, encouraged, Vo., 230 ; Md., 249, 250, 251 ; N. Y., 282. importation, colonial objections to, Pa., 209(1); Va., 246, n., 247; S. C, 209, (1), 308. importation, tax on, Va., 238; Md., . 260, 254 ; Mass., 263 ; N. H., 260, n. ; N. Y., 282 ; N. J., 284, 285 ; Pa., 288, 289, 290; Del, 292; S. C, 298, 800, 302, 308. importation of, prohibited. Conn., 272; R.L, 276. importation of Indion, prohibited, Mass., 265 ; N. H., 266 ; Po., 288. — insurrection of, Va., 234, 236, 244; N. Y., 281 ; N. C, 295 ; S. C, 308. instruction of, in reading forbidden, S. C, 307; Geo., 311. klUing, Va., 232, 234, 236, 243, 244, 246; Md., 253; N. H., 267; N. Y., 280, n. ; N. C, 295, 296 ; S. C, 297, 306; Gee, 118 (3), 311, n. manumission of, restrictions on, Va, 237, 241, 244; Md., 254; Mass., 263; R. L, 276; N.Y, 281; N. J., 284, 285 ; Po., 289 ; Del., 292, 298 ; N. C, 296. marrioges of, Po., 287 ; Mass., 263 (2) ; and see Intermarriage. outlying, Va., 234, 236, 241, 244, 245, 246. owners of executed slaves how com pensated, N. C, 296 ; S. C, 801, 802, 306. owners of thievish, N. C, 296. passes, required for, S. C, 804, 806 ; Geo., 311. prohibited to meet, Va., 234, 244 ; Md., 250, 253 ; Conn., 272 ; N. Y., 280; N. J., 285; Pa., 288; Del, 614 INDEX. 292 ; to have stock, Md., 253 ; S. C, 301; to rent homes, S. C, 307; to have arms and ammunition, Del., 292 ; N. C, 296 ; S. C, 300. 304. Slaves, muawav, N. Y., 279, 280'; N. C, 295 ; S. C, 297, 298, 800. spooking defamatory words. Conn., 272. striking white persons, Va., 234, 244 ; Md., 253 ; Mass., 263 ; Conn., 270; N. Y., 280; N. J., 284; S. C, 300, 301, 306. , trading with, Mass., 262 ; Conn., 270 ; N. Y., 280 ; N. J., 283 ; S. C, 297, 300, 301 ; Ga., 811. trial of, Vo., 237, 288, 241, 244, 245 ; Md., 253 ; N. Y., 281., N. Y.. 283, 284, 285 ; Pa., 287 ; Del., 291 ; N. C, 296; S. C, 297, 300, 301, 802,305; Ga., 311. SteaUng of, S. C, 297, 800, 308 ; Ga., 311. ' working tirae limited, S. C, 307. who, declared, Va., 283, 235, 239, 243 ; Md., 249, 251, n., 252 ; Mass., 260 ; N. Y., 278 ; S. C, 299, 303. Smith, Compend. of Merc. L., 29 (2), 68 (!)• E. Fitch, Comm. on Const, ond Statutory Constraction, 13 (3), 461 (!)¦ , Diet of Antiquities, 7 (3), 18 (1), 89 (1), 154 (1), 158 (21, 214 (1), 399 (2). , Hist, of N. Y., 124 (8). , Wealth of Nations, 126 (2). Social compact.