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If the law can be supposed to attribute the legal character of a thing to that which has a natural capacity for choice and action, or which is a natural person, the legal condition of that natural person would not be explained by the term bondage as above defined; since that presupposes a recognition by the law of a capacity to act or not to act, or of the personality of that which is legally bound. That condition would be legally included under the law of things, or of the rights of persons in respect to things : property, or possession and control by legal persons, being the essential legal attribute of a natural person who can appear in legal relations only as the object of rights, while the attribution of legal personality, by implying capacity for choice and action, recognizes a legal capacity for individual and relative rights, and makes every condition of the person which may be opposed to freedom, to consist in obligations under relations to other persons. But where the law admits the contradiction of recognizing a natural capacity for choice and action, and at the same time attributing that incapacity for rights which belongs to the nature of a thing, this species of bondage would require a legal name distinguishing the subject from natural things and from legal persons. Under systems of law where this anomalous condition has been known, it has been included under the general terms bondage or slavery, and is sometimes more definitively known as chattel bondage or chattel slavery."
scribed under the name of caput or status, and divided into three parts; or rather described as existing under either one, two, or three conditions, each called status or caput, under each of which the condition of the individual might be variously affected. These were called libert18, civitas, familia. The law of the status libertatis however comprised the distinction between a personal condition as liber or freeman and the chattel condition of a servus or slave; and the law of the status, in its most general sense, may be taken as the Roman phrase for the law of freedom and of bondage. For the sake of a convenient term, it will be here sometimes used to designate the legal condition of a private person, considered under the American law affecting personal condition in these respects. See Thibaut, by Lindley, 106. Mackeldey, by Kaufman, $ 119, 120, 121.
Novel Theod., Tit. 17, “Servos ... quasi nec personam habentes.”
2 Austin : Prov. Jur., p. 279, note. “From the assumed inconsistency of slavery with the law of God, or nature, it is not unfrequently inferred by fanatical enemies of the institution that the master has no right, or cannot have a right, to the slave. If they said that his right is pernicious, and that therefore he ought not to have it, they would speak to the purpose. But to dispute the existence, or the possibility of the right, is to talk absurdly. For in every age, and in almost every nation, the right has been given by positive law; whilst that pernicious disposition of positive law has been backed by the positive morality of the free, or master classes." "Positive law,' according to this anthor's definition, which includes every rule that is law, not legislative enactment merely.
$ 45. The idea of chattel slavery, in the strict legal sense, is definite and easily conceived. When the term slavery is used to express the condition of a legal person, one having a recognized capacity for rights and duties, it may be attributed to various conditions of obligation on the part of one person opposed to the conditions of privilege on the part of others. Chattel slavery may exist under restrictions by municipal law on the power of the master, in view of the interests of society, without vesting the rights of a legal person in the slave.' The person held in slavery may continue to have the character of property, in the eye of the law, in states wherein, under the influence of public opinion or other moral causes, protection is in practice ensured to the slave as a natural person, unknown to other communities wherein the law upon which the relation rests is the same in judicial apprehension. By a greater or less legal recognition of rights in the slave, and of corresponding duties on the part of the master or owner, the fundamental character of that condition may be changed, and the property recognized by the law be made to consist in the right of one person to the labor or services of another. Every recognition of rights in the slave, independent of the will of the owner or master, which is made by the state to which he is subject, diminishes in some degree the essence of that slavery by changing it into a relation between legal persons.
$ 46. The term slavery has been popularly applied to various forms of servitude or bondage, instituted under municipal law. But in its general legal acceptation it may be defined as that condition of a natural person, in which, by the operation of law, the application of his physical and mental powers depends, as far as possible, upon the will of another who is himself subject to the supreme power of the state,' and in which he is incapable, in the view of the law, of acquiring or holding property, and of sustaining those relations out of which relative rights, as herein before defined ($ 40) proceed, except as the agent or instrument
Savigny : Heut. R. R., B. ii., c. 2, $ 65.
. But the legal condition of slavery may exist, even though the person to whom it is ascribed is not the bondman, or property of any particular person, or master. See Savigny : Heut. R. R., B. ii., c. 1, $ 55, note, a), c. 2, $ 65, for illustrations under the Roman law.
of another. In slavery, strictly so called, the supreme power of the state, in ignoring the personality of the slave, ignores his capacity for moral action, and commits the control of his conduct as a moral agent, to the master,' together with the power of transferring his authority to another. So far as it may hold the master and slave, as individuals, morally responsible to the state in their mutual relation, it so far recognizes the personality of the slave, and changes the property into a relation between persons.
$ 47. It is evident that there may be political or economical regulations in a civil state which, while not interfering directly with the freedom or security of the person, or denying the abstract right of any to the acquisition or enjoyment of property, may yet, in view of public or of partial interests, by prohibition of certain modes of action, or by the grant of superior privileges to others, so obstruct the industry of some classes of persons and repress their moral and physical energies, as to make their actual condition in the social scale lower than that of others living under the control of a private master who is guided in its exercise by wisdom and benevolence.
Municipal laws may so operate in disabling certain classes or races in a nation, with respect to their private or public relations, as to reduce them to a species of dependence upon more privileged classes deserving, in a general sense, the name of slavery or bondage. The distinction of these cases from slavery, properly so called, lies in the legal view of the slave or of his labor as private property, and the greater or less denial of his personality, making the disposal of his person and labor to depend
· Menander apud Stobous: Florileg lx., 34.
Έμοι πόλις έστι και καταφυγή και νόμος
'Odeonórns. Ipds ToûTOV éva dei Sijy gue. Spinoza: Tr. Theol. Pol., c. xvi. “Si finis actionis non est ipsius agentis sed imperantis utilitas, tum agens servus est, et sibi inutilis."
* For illustrations of the variety of meaning attached to liberty and slavery, see 20 Howell, State Trials, Somerset's case, p. 14, note of English editor, sneering at the boasts of the French lawyers in the negro case, 13th vol. of Causes Celebres, (temp. Louis XV.,) p. 492, ed. 1747. And compare Chancellor Harper's Essay, p. 23. See Molyneux: Case of Ireland, by Almon, p. 169. “I have no other notion of slavery but being bound by a law to which I do not consent.” In defining liberty, Dig. Lib. i., De statu hominum, Inst., Lib. i., Tit. 3, De jure personarum,-Libertas est naturalis facultas ejus, quod cuique facere libet, nisi si quid vi, aut jure prohibetur—the very idea of law is excluded.
EXTENT OF LAWS.
on the will of a single private individual, and not on a law proceeding immediately from the supreme political power.Under a system of caste personal liberty and the right of property are controlled by laws restraining the activity of a class of persons, more or less strictly defined, to a particular course of life, and allowing only a limited enjoyment of property and relative rights. Feudal slavery confines the person to a particular locality and a subordinate range of action. There is therein a certain degree of freedom within assigned limits, and the servitude is due rather to the state than to a single master, being the result of distinct laws more or less oppressive according to their nature and number.
$ 48. From what has been before said of positive law, in its most comprehensive sense, it appears that its existence in any one country, or nation, may be referred in its origin either to the legislation of some one possessor of sovereign power, (positive law, in the restricted sense, or to the judicial recognition of principles founded in natural reason; while its authority in any particular territory, and at any particular time, depends upon its being then and there supported by some one such possessor of sovereignty, whose existence and authority is independent of law in the ordinary sense. And, since, in the present condition of the world, being entirely occupied by nationalities of some sort, the actual extent of that territory over which any possessor of sovereignty shall exercise dominion results from the public international action of different states, it may be said to be determined by international law; though it is a fact taken in jurisprudence to be independent of the will of every other national power than that which is, within that territory, the source of the municipal (national) law, both public and private.
Or, more strictly speaking, those principles which apply to, and are said by way of analogy to be a law for the action or intercourse of nations, and which are public or private international law, according to the character of the persons upon whom they operate, may be taken to be divided into two portions. The first consisting of principles which are not laws in the primary sense, or not rules of action, but laws in the secondary sense only,—the statements of the mode of existence or of
NATURAL, OR NECESSARY LAW OF NATIONS.
action of states, or political bodies : which must essentially be acknowledged in every national jurisdiction as axiomatic and basal principles : (and which, therefore, enter also into municipal law.) The second portion consisting in rules of action, laws in the primary sense, which do not necessarily have the same universal recognition and extent; but which, if received by any states, or nations, regulate the reciprocal action of those states, or nations, and of the individuals of whom they are constituted, supposing such reciprocal action to take place. Each of these portions is public law, in reference to its effects on the relations of the state, or nation, regarded as a political unity, and private law, so far as it defines or affects the relations of private individuals.'
$ 49. The first of these portions of international law, (also entering into municipal law,) is expressed in the definitions of such terms as these,-a nation; a sovereign ; sovereignty; jurisdiction; forum; national territory; domain; subjection; native subject; domicil; alien ; alienage, &c.; which are terms necessarily used in the exposition both of municipal and international law. These terms are statements of the mode of existence of nations, or states, derived from the general reasoning of mankind in the social condition, independently of the legislative authority of any one of the states, nations, or political communi-. ties whose existence is defined by them. So far as these statements are constituent parts of positive law,-international, or municipal rules of action,—they belong to those principles which are judicially recognized as having the character of universal law, (herein also called from its universality the law of nations.) Although these principles are necessary axioms of all positive law, international or municipal, they are more frequently called principles of the law of nations in view of their application to the public existence of nations than in view of their origin and universal character. They form what has been frequently denominated, in reference both to their origin and application, “the natural, or necessary law of nations," and have been
Bowyer: Univ. Pub. Law, 22. Therefore Hermogenianus, Dig. L. 5. De Just. et Jure, describes civil society, and the necessary transactions among men, as springing from jus gentium, by which he means natural law; or that which, in the words of Gaius, naturalis ratio inter omnes homines constituit.