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INCONSISTENCIES IN THE OPINION. 191
become a villain in gross by confessing himself such in open court. We are so well agreed that we think there is no occasion of having it argued (as I intimated an intention at first) before all the judges, as is usual, for obvious reasons, on a return to a habeas corpus; the only question before us is, whether the cause in the return is sufficient? If it is so, the negro must be remanded; if it is not, he must be discharged. Accordingly, the return states, that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different in different countries. The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political; but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged." § 191. However correct the decision of the court may have been in declaring that the negro could not be held in slavery in England, the arguments given in support of it by Lord Mansfield are open to obvious criticism under well-established principles. Admitting that the statutes and public acts relating to the commerce in negroes were not operative in England, and that there was no "positive law" meaning positive legislation, to sustain the servitude of the negro in this case, the reason given, for not sustaining it, is not a good judicial reason. Lord Mansfield says—" the state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political." If he intended to say that the moral and political reasons against slavery were such that even positive legislation, intending to produce it, was not to be sustained; that it was contrary to a law of nature which must be presupposed in all legislation, and which limited the highest power in the state,— (that is, a law in the secondary sense—a necessary condition of things), then it was superfluous and contradictory to say " that 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.1 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 introduction 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 America, 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 judicial recognition of natural reason, and of universal jurisprudence, or the historical law of nations, taking effect as international and municipal law, because an exposition of natural reason which must be presumed to be received by the state
1 The language of the court in this case is an illustration of the remark of Savigny: Vocation of our Age for Legislation and Jurisprudence, Hayward's Transl., p. 136: "Thus it appears, that when old nations reflect how many peculiarities of their law 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 the concurrent testimony of civilized nations or of reasoning mankind,—and it will be admitted that he did so, if ever an English judge—it would be important to know whom he considered nations, or whom reasoning, or reasonable, men. It is related of him that he once said in debate, alluding to Otis' Essay on the Rights of the Colonies, that 'he seldom looked into inch things: though in Chamberlain of London v. Allen Evans, in the House of Lords, he expressed his admiration of President De Thou's dedication of his history, which he said he never could read without rapture." (See North American Review, Jan'y, 1826, p. 183. Life of J. Quincy, jr.) It would appear, therefore, that he had some private rule to measure authorities on the concurrent testimony of mankind, which may not be orthodox with all who quote his opinions, and that he thought that some persons and nations were not entitled to have an opinion >
EFFECT OF Somekset's CASE. 193
promulgating law as & jural rule; and it has very rarely, if ever, been originally established in a country by positive legislative enactment.1
The true nature of this decision, and its force as a juridical precedent in the colonies, will be noticed in another chapter. Whatever may be thought of the arguments by which it is supported, its efficacy in determining the question, as one of the effects of the municipal law of England, must be admitted: followed as it has been by so long a period of continued approval: and the doctrine taken to be established, that in England no person can be held in involuntary servitude unless by the force of some statute.
1 Mr. Seward, in his speech in the U. S. Senate, March 11, 1850, (Works, vol I., p. 80,) says: "Slavery has never obtained any where by express legislative authority, but always by trampling down laws higher than any mere municipal laws—the law of nature and of nations." The fact that it has so "obtained," that is—has become recognized as lawful—without " express legislative authority," is the best possible proof that its existence is accordant with " the law of nature and of nations:" unless the individual moral judgment of the speaker is the standard of "laws higher than any mere municipal laws."
Note.—In the case of the slave Grace, (1827,) 2 Hagg. R., p. 105, (Scott,) Lord Stowell said: "It appears that Lord Mansfield was extremely desirous of avoiding the necessity of determining the question: he struggled hard to induce the parties to a compromise, and said, he had known five cases so terminated out of six; but the parties were firm to their purpose in obtaining a judgment, and Lord Mansfield was at last compelled, after a delay of three terms, to pronounce a sentence which, followed by a silent concurrence of the other judges, discharged this negro; thereby establishing that the owners of slaves had no authority over them in England, nor any power of sending them back to the colonies. Thus fell, after only two and twenty years, in which decisions of great authority had been delivered by lawyers of the greatest ability in this country, a system, confirmed by a practice which had obtained, without exception, ever since the institution of slavery in the colonies, and had likewise been supported by the general practice of this nation, and by the public establishment of its government, and it fell without any apparent opposition on the part of the public The suddenness of this conversion almost puts one in mind of what is mentioned by an eminent author, on a very different occasion, in the Roman History, 'Ad primum nuntium cladis Pompeians populns Rom arms repente factus est alius:' the people of Rome suddenly became quite another people.
"The real and sole question which the case of Somerset brought before Lord Mansfield, as expressed in the return to the mandamus, was, whether a slave could be taken from this country in irons and carried back to the West Indies, to be restored to the dominion of his master? And all the answer, perhaps, which that question required was, that the party who was a slave could not be sent out of England in such a manner, and for such a purpose: stating the reasons of that illegality. It is certainly true
194 THE DOCTBINE CRITICISED.
that Lord Mansfield, in his final judgment, amplifies the subject largely. He extends his observations to the foundation of the whole system of the slavery code; for in one passage he says 'that slavery is so odious that it cannot be established without posi" tive law.' Far from me be the presumption of questioning any obiter dictum that fell from that great man upon that occasion; but I trust that I do not depart from the modesty that belongs to my situation, and I hope to my character, when I observe that ancient custom is generally recognized as a just foundation of all law; that villenage of both kinds, which is said by some to be the prototype of slavery, had no other origin than ancient custom; that a great part of the common law itself in all its relations, has little other foundation than the same custom, and that the practice of slavery, as it exists in Antigua and several other of our colonies, though regulated by law, has been in many instances founded upon a similar authority."
On one of the trials of the case of Oliver rs. Weakly, in the D. S. Circuit Court, a jase for harboring runaway slaves, Mr. Justice Grier said:—" On this subject Lord Mansfield has said some very pretty things, (in the case of Somerset,) which are often quoted as principles of the common law. But they will perhaps be found, by examination of later cases, to be classed with rhetorical flourishes rather than legal dogmas." Newspaper Rep., and see American Law Register, vol. L Philadelphia, 1853.
THE ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES, THE
SUBJECT CONTINUED. PRINCIPLES DETERMINING THE CONDITION OF PERSONS TO WHOM THE LAW OF ENGLAND DID NOT EXTEND AS A PERSONAL LAW.
§ 192. Although the various rights and liberties which were known to the law of England as the privileges and immunities of a subject of English birth, and which are, in the third chapter, supposed to have been attributed to the English colonists in America, are ascribed in that law to an origin in natural reason, being often juridically called "the natural rights of Englishmen," their legal existence and enjoyment is still dependent on the sovereign will of the state; because, as has been shown in the first chapter, there is no natural rule having the force and power of law in juridical recognition, except as it forms part of the positive law—the law resting on the will of some sovereign political state or nation.1 The legal conditions or status of private persons, under any national jurisdiction, whether determined by municipal (internal) or international law as before defined, are, within that jurisdiction, judicially held to be in accordance with natural reason, however widely the relations in which they consist may differ from those known to other jurisdictions. This is a result of the jural character of the state. But however natural they may be in an ethical point of view, that is, however consistent with the essential conditions
1 Ante, §§ 7, 8, 16.