« 이전계속 »
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 proportion with the respect due to the court is the strength of the presumption,) that the judge will conceive of property according to some standard, criterion, or definition known to, and customarily accepted by, the possessors of sovereign power whose will he is to apply as law; that the standard of property will not be merely such as he himself conceives to be proper, expedient, 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 possessor of sovereign power, whose will and whose will 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 judiciary in its application of the quasi-international law, in which rights and obligations are to be determined according to the law of one of the several States or a local municipal law; though
? Wynehamer agst. the People, (a case under the prohibitory liquor law,) 3 Kernan 385 ; 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 and intelligible proposition, admitting in the nature of the case no qualification, that that is property which the law of the land recognizes as such. It is, in short, an institution 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 immaterial whether negroes naturally are and ought, legally, to be held equal to whites, or whether they naturally are and ought, legally, to be held inferior creatures, and, as domestic animals, merely instruments in the possession of legal persons.
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 will 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 distinguishing 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 lawgiving authority of the nation, the constituting people of the United States. 3
$ 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 Congress 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 the Federal Government, through the domain of jurisdiction merely Federal, to recognize to be property." (p. 515 of rep.) As then, according to Judge Campbell's theory, there is no integral nation or people of the U. S., there can be no national law determining what is or is pot property.
3 From the whole of the extract from the Opinion, already given, it appears that the Chief Justice also referred to certain clauses in the Constitution as a legislative declaration that slaves are to be considered property. The reasons for excepting to this have already been stated, p. 560. It would be too much like arguing in a circle to cite these clauses as declaring that slaves are to be regarded as property, and, on the other hand, refer to the doctrine that slaves are property, to interpret these clauses.
diction,' still it is absolutely impossible, from the nature of positive legislation, that its enactments should be judicially applied 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 jurisprudence. Even should there be none such particularly identified with the juridical history of that particular possessor of sovereign power whose written law is to be applied, an unwritten jurisprudence is still judicially cognizable, that derived from the juridical history of civilized nations, the law of nations, universal jurisprudence; and hence, “the laws and usages of other nations and the writings and reasoning of statesmen and eminent 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 traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race,” &c.5
$ 515. The reference is to the law of nations in the sense of universal jurisprudence, the jus gentium in that sense in which the term was used by the Roman jurists, a law always presumptively existing in the municipal (national) law of every civilized country. In determining then what is or what is
? Ante, p. 479-482. Wheaton v. Peters, 8 Peters, 591. Curtis' Comm. $ 19, and cases noted.
? Lieber's Legal and Political Hermeneutics, ch ii. 9 Ante, $ 428. 1 Kent's Comm. 336.
Ante, S$ 33, 34, and pp. 200-202. See ante, p. 207, note.
• Ante, $$ 94, 95, 100.
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 applied as private and public international law.'
$ 516. It being a rule identified with the will 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-international 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 prevailed 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 nations of to-day, not that of some previous generation or previous century. It is a rule which depends for its juridical force, or for its acceptance as a judicial rule, not on the opinion of bygone 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 Rome 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
1 Ante, $$ 173, 176, 290.
? On this compare ante, ch. xü. * Compare ante, ch. xiv.
states as their index of natural reason. As the jus gentium of heathen Rome, making the captive and the child of an enslaved mother, of European or Caucasian race, a property, has been changed in the jurisprudence of Christian nations, so the law of nations of the modern world, including the nations colonizing 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 condition of natural persons ; it has no foundation in universal jurisprudence, 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 recognized 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 civilized world is the test, but one peculiar 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 political predecessors, but that law which was imperial or national in its authority, and intercolonial, national, or quasi-international 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 formation of the Constitution, is to be given hereafter. It will be
Ante, p. 29.