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QUESTION IN LAW OF NATIONS.
there shown, and indeed it is too well 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 discouraged or removed the disabilities incident to its contraries. But, independently of such changes as modifying the law of nations or universal jurisprudence particularly identified with the juridical will of the constituent people of the United States, the international and quasi-international laws which prevailed as between 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 persons, 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 Revolution (whatever may have been the principles sustaining the slavery of a heathen negro imported into any one of the colonies) the condition of an American-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 internationally recognized, in the several parts of the empire, as effects of universal jurisprudence, nor as such recognized by the common law of the nation, 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 quasi-international relations of the different portions of the empire.
$ 520. From the above argument it may appear that, in order to determine what is or is not property in view of the constitutional guarantee, it is necessary to discriminate an unwritten jurisprudence or a “common law” which may be judicially identified with the juridical will 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
specific recognition of them as property in other parts of the instrument, is equivalent to an assertion, that, unless declared un- ' lawful by positive legislation proceeding from the possessors of sovereign power to determine status or personal condition, (possessors known by the Constitution, regarded as evidence of the investiture 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 all other persons, will continue in such State or Territory by the unwritten or common law prevailing therein, whether such master and slave do or do not acquire a domicil, unless such right and obligations have been prohibited by positive 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 Constitution, 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 belonging or hereafter to be acquired, not included within the limits of an organized State of the Union, slavery is now and will 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 solitary 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 entitle their opinions to be
considered, at least, juristical, if not judicial or juridical. But it has never, probably, been so prominently and distinctly asserted 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 Bill. And since, in stating what he justly regards as “ fundamental” in the argument, the Senator so plainly presents 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 country, and not by a priori assertions, the statement of his position is here given, as extracted 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 competent for the Congress of the United States, directly, or indirectly, to exclude slavery from the Territories of the Union. The Supreme 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 underlies the argument in affirmation of this power, is the assumption 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 property beyond those limits; and that property in slaves is neither recognized nor protected by the Constitution of the United
? The last title was probably adopted for this speech, not so much in view of its being a vindication of the law of the majority of the Court in Dred Scott's case, as of its being partly a reply to Mr. Seward's censures, in the same debate, on the course of the majority of the Supreme Court as having been influenced by pelitical considerations. All such matter of exception or defence is, of course, foreign to the purpose of this treatise.
States, nor by international law. I controvert all these propositions, and shall 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 birthright. They adopted its principles for their government so far as it was not incompatible with the peculiarities of their situation 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 thirteen colonies did establish slavery in them, did maintain and protect the institution, did originate and carry on the slave trade, did support and 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 Revolution 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 assertion 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. Benjamin
The Senator, to maintain the legality of slavery in the Territories, attributes the existence of slavery in the colonies to a national law of the empire, a law derived from the powers vested by the public law of the colonial period in the crown and parliament 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 depended upon the local legislatures, and that the exercise of power over slavery by the imperial Government was rightfully resisted as usurpation. On this point compare, ante, $ 215 and note, 8 243.
relies, contains no essential fact which has not been considered more at length in the previous chapters of this work. The observations already made herein, on the question whether slaves are property in view of the Constitutional guarantee, apply equally to the propositions here laid down by the Senator. Far it has been shown that slavery, as a legal effect, depended on the common law having a national extent throughout the empire during the colonial period only, if at all, while it was attributable to the law 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 Americanborn negro, whether free 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 all parts of the empire.'
It follows, 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 slavery, 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-called 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 distinguishable from the judicial allowance of slavery under the doctrine, contained in Mr. Benjamin's propositions, that slavery is recognized by universal jurisprudence entering into all common
Compare ante, $$ 281, 284, 288, 292, 293, 315, 316. • Compare ante, SS 95, 96, 110, 113, 201.