페이지 이미지
PDF
ePub

INHERITANCE OF SLAVERY.

211

where both were slaves ; and that, in the case of mixed marriages and of births out of wedlock, the civil law rule-partus ventrem sequatur-obtained, irrespectively of the rules of condition by descent derived from the customary law of England. It is however probable that the chattel character was generally ascribed to the captived slave, and that the rule of descent derived from the civil law was judicially received, in all cases, to determine both the condition of the issue and the right of ownership in the offspring of slaves of different masters. The law arising from the judicial determination of these points, having never been questioned under the royal right of supervision, created a common law in and for the colony, and was, independently of statutes, a sanction for slavery, even though this judicial application of common law may have differed widely from the doctrine sustained by the English courts of law : though, as has been shown in the previous chapter, it is very questionable whether the doctrine contemporaneously received in England, during the period which elapsed between the introduction of heathen slaves and the existence of local customary

The rule of the Roman law-determining the condition of the issue by that of the mother applied only when there was no legal marriage. Dig. L. I. t. 5, § 24; Lex naturae hæc est ut qui nascitur sine legitimo matrimonio matrem sequatur, nisi lex specialis aliud inducit. Blackstone II. 94, says—“But no bastard can be born a villein," citing Co. Litt. § 188; but this is probably incorrect, see the note on Coke by Hargrave and Butler, and in Mirrour c. 2, s. 28;—“Those are villeins who are born of a freeman and a neif, and born out of matrimony." The rule applied where either parent was a chattel slave, because, not being legal persons, the legal relation of marriage could not exist, and also because the issue of a female slave was regarded as the natural increase of a chattel: see Heinec. Jur. Nat. et Gent, L. ii. & 81. If the Roman law contained any rule determining the condition of those born in wedlock, it was that the child should be of the father's condition. The Roman law knew no slaves but such as were chattels; but under the feudal codes the bondman and bondwoman were legal persons; the issue therefore was not regarded merely as the increase of property, and though they followed the condition of their parents, yet, with some Germanic or Gothic nations, the children of serfs belonging to different feudal lords, were divided by an “alterna vernarum partitio.” Heinec. u. s. note. Where the parents were of different conditions the issue generally followed that of the father as in the English law: Bla. ii. 94, Co. Litt. $ 187, and notes; though a rule of alternation as between the children of a neif and a freeman prevailed in some parts, see Glanvill, lib. 5, c. 6; and the same general rule seems, from Littleton and Houard, to have been Norman law, though Barrington on Stat. p 249, 11., supposes the rule in France to have followed the civil law, citing the proverb--La verge annoblist et la vontre affranchist. The phrase-partus sequitur ventrem is not, I believe, to be fond in the Corpus Juris, and probably originated with the modern civilians. But the point to be noticed is, that the condition of the issue of legal persons in bondage, whether born in wedlock or not, depended on a local law or custom,-jus proprium, not jus gentium. Compare Fortescue de Laud. c. 42.

212

SLAVERY BY COMMON LAW.

and statute laws establishing slavery, was different from that of the colonial courts. And however far the colonial courts may have been bound by the local law of England, as ascertained at the time of the first exercise of their judicial power, they were not held to modify the common law, as it had thus grown up under their own exposition and acquired' a local character, by following the later English decisions.

$ 205. Thus the condition of slavery, if unknown to the law of England, nevertheless became established under the common law of the several colonies; which however, being a local law only, was entirely distinct, in its origin and authority, and in its territorial and personal extent, from that common law which was national, in those attributes, and which was, in each part of the Empire, the common measure of the personal rights of the English-born subject and his descendants. The colonial Governments appear to have exercised, without question, an unlimited control over the condition of such persons of the African and Indian races as were domiciled inhabitants of their several territories ; that is to say, their legislation, in respect to such persons, does not appear to have been at any time restricted by any of the charter provisions. The legislation of the several colonies in reference to slaves will be collected in the next chapter : but under the view which has been herein taken it is not necessary to cite it in this place as establishing chattel slavery. It will be seen that, in the statutes of each colony, slavery is viewed as an existing institution of law.'

1 This point will be farther considered in the commencement of the next chapter.

Seville v. Chretien, (1817,) 5 Martin's Louisiana R. 275. “It is an admitted principle, that slavery has been permitted and tolerated in all the colonies established in America by the mother country. Not only of Africans, but also of Indians. No legislative act of the colonies can be found in relation to it.”

Connecticut Revised Laws of 1821; Title 93, Slavery; note " Slavery was never directly established by statute; but has been indirectly sanctioned by various statutes, and frequently recognized by courts, so that it may be said to have been established by law."

“By custom or statute, whether legal or illegal, slavery existed [A. D. 1750) as a fact in every one of the Anglo-American colonies,” 2 Hild. 419, which see also for a summary of the condition and numbers of slaves at that time.

Even in Georgia, where until the year 1749 (see Stevens' History of Ga, 285, 312) it was not permitted, it is held not to have been introduced by positive legislation. By the Court, in Neal v. Farmer, (1851) 9 Geo. R. 580, it is said "The title to a slave in Georgia now and under the colonial government is not and was not derived

[blocks in formation]

$ 206. According to the definitions given in the first chapter, legal relations can exist only as the effects of some law,some rule identified with the juridical will of the state. A natural person held in chattel bondage cannot acquire individual or relative rights, except under such law or juridical will ; to be ascertained from positive legislation or by the judicial application of natural reason. It is by the recognition of universal jurisprudence or the law of nations, under this judicial action, that the act of the master renouncing his right in respect to the slave, or setting him free from his bondage, has been held, wherever chattel slavery has been known, to invest the natural persons so set free or manumitted, with individual rights and a capacity for relative rights. Manumission, that is, the legal consequence of the master's act, and the condition of a libertinus or freed person, is, in the Institutes, ascribed to the jus gentium. During the earlier centuries of the Roman Empire, three conditions were recognized among the Libertini or Freedmen; all, however, inferior to that of the Ingenuus or Free-born. But the descendants of a libertinus were not distinguished from other free born persons. Justinian not only

from positive law. The faculty of holding slaves was derived from the Trustees of the Colony acting under authority of the British crown, as a civil right in 1751, by an ordinance of that board. Before that time their introduction was prohibited. The regulation of slave property is as much the province of municipal law as the regulation of any other property and its protection equally its obligation: but we deny that property in slaves and the title by which they are held, are creatures of statutory law.” It is not very clear what meaning is to be attached to the term "a civil right;" or how the right can have been derived from the Trustees and yet not have originated in positive law, i. e. legislation. The idea is that before 1751, the colonists of Georgia were under a disability inflicted by the policy of the imperial Government, (see p. 575 of the report,) in acquiring a certain kind of property, or from enjoying their individual right to acquire property, in the same degree as others ;-which disability was removed by the administrative regulation or ordinance of the Trustees. Whether important results which might follow a general recognition of the doctrine that at the present day slavery is a constitutio juris gentium were considered in this decision, does not appear. The question actually before the court was whether the owner could recover from the slayer the value of a slave killed by him, without first suing him to conviction in a criminal court.

'Inst. Lib. I. tit. 5, procem. (ante p. 150,) and Dig. Lib. I. tit. 1, $ 4. The state having jurisdiction of the person who is held as a slave, may, of course, set him free by its legislative power. This will be the effect of a jus proprium : but, the resulting condition or status will be jure gentium in this case, as where the manumission was the master's act. It will therefore be afterwards judicially recognized everywhere; unless some local law, jus proprium, forbids it. The importance of this distinction can only be shown in the application of private international law.

[graphic]

ROMAN LAW OF MANUMISSION.

abolished this distinction among the libertini, but also made all free persons (libertos) citizens of Rome, abolishing 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 Republic. The rule of the Roman Imperial law, as the exposition of a universal jurisprudence, received judicial recognition in the American colonies.?

6 207. If the law of nations has in modern times, or had during the colonial period, a limited personal extent or was different 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. 5, 1. 1, tit. 6, 1. 2. Smith's Dict. antiq. voc.--Ingenuus, Libertus. Mr. Justice Daniel, in 19 Howard, p. 477, Dred Scott's case, appears to have adopted Cooper's version of the Institutes, in which ingenuus is mistranslated freeman. For the changes in the Roman law on these points, according to the latest researches, see The New. Englander, Aug. 1857, in an article on Judge Daniel's statement of them; by President Woolsey, of Yale College.

? To some it may seem a singular refinement to suppose juridical authority necessary in ascribing individual (absolute) rights to the slave, when the master relinquishes his legal claims. But, if legal rights exist by the ascertained will of the state, (ante $ 21 and p 37, n. 1,) how otherwise can a chattel or thing become 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 “ instar 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 that sense, which became manifest in the possession of individual rights whenever the antagonistic right of the master was relinquished. See Inst. Lib. 1, tit. 5. De Libertinis. Definitio et origo libertinorum et manumissionis. The reasoning 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 gentium, and therefore judicially recognized everywhere, unless such recognition had been forbidden 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 the investiture of rights which the sovereignty alone had power to impart," &c. The question in the case was of the rights of citizenship; but the 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 the will of that sovereignty in the jus gentium, if there is no jus proprium,- local statute or customary 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. c. 5, Knolle's Tr. p. 41, after stating the Roman law which law, for all that, we use not; for in this realm [France] he must of necessity obtain the prince his letters patents, which have always used to restore unto manumised men and of servile condition, the state of freeborn men, and to blot out all stain of their old slavery."

BASIS OF FREE CONDITIONS.

215

passing out of the chattel or bond condition, the subsequent condition of the emancipated African or Indian would be determined by the same principles which regulated the condition of other persons in the same jurisdiction. But though the law which in any colony determined the condition of the enfranchised African or Indian may have, in its effects, been similar to that determining the condition of the colonists of English birth or descent, it was not the same law either in its political foundation or in its territorial and personal extent. The fact of emancipation did not of itself place the African or Indian within the pale of the law applying to the English colonist, at least not so far as it was a law resting, as was before shown, upon a national as well as a provincial authority. The condition of the free African or Indian was determined by statutes proceeding from the colonial or from the imperial authority, according to the nature of the powers separately held by each under the public law of the empire, or by a judicial application under either colonial or imperial authority, of rules derived from natural reason. But the law so obtaining was always the local law of a colony in respect to its extent, and not a national law. When once recognized as a legal person, the law of England was indeed the exposition of a law of natural reason, judicially receivable in determining the private relations of the African or Indian subject, as well as those of the English colonist. But the basis of the rights of the former was not necessarily the same as that of the last. The law under which they existed bad not, necessarily, the same national character, or the same territorial and personal extent. That was determined according to the public law, by a distinction of race or des@ent. The condition or status of the emancipated negro or free Indian was in none of the colonies equal, as a free condition, to that of the white colonist ; even where the law of the colony made no distinction in social relations between him and the white inhabitant. The public law took no notice of his rights, and the foundation of private rights in public law was an essential feature in the civil liberty of the English colonist. Whatever degree of liberty of action the negro or Indian might enjoy in practice,

« 이전계속 »