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law known in this country, and that it should, in the case supposed, be regarded as an effect already known to the law having territorial extent in the forum, and one which is maintained under that law, irrespectively of the distinction of domicil.
In any territorial jurisdiction of the United States, which should be like a State of the Union in having a local law, the continuance of the rights and obligations of masters and slaves emigrating thither would depend upon the question whether, by that law, rights inconsistent with slavery were attributed universally, or to all natural persons. If within the national dominion there can be any territory which, like the colonies at the time of their first settlement, is vacant of any local law, there could not, in such territory, be any such universal attribution of rights. And, in such case, it would appear that, on elementary principles, all rights and obligations of persons there found which had existed in their former domicil would continue to exist, so far as the relations to which they were incident continued to be physically possible in such territory. Slavery, if so recognized in such territory might, indeed, be said to exist therein, or be carried thither, by the operation of a common law principle, a principle of unwritten jurisprudence. But its existence would not be attributable to common law in the ordinary sense of customary law having territorial extent in some one jurisdiction or forum. It would not have been recognized as a condition supported by universal jurisprudence, the law of nations; as the slavery of captured Indians and imported heathen Africans had been recognized in the colonial law.
§ 524. A principal obstacle to agreeing on any conclusion in these questions of slavery, one fully equal in effect to that caused by the prejudices or sympathies of disputants, is occasioned by the want of terms by which to express existing distinctions. Thus the term positive law is sometimes used, as in this work, to designate any rule which, as made coercive by some state, is so distinguishable from mere natural equity or natural justice ; such positive law being judicially derived either from the several juridical action of that state, creating a jus proprium, Compare ante, &$ 88–92, 113-118.
· Ante, &$ 123–126.
which may be either statute or customary law, or from universal jurisprudence, the unwritten law of nations. But the same term, positive law, is also very often used to designate statute law or positive legislation, as distinguished from customary or unwritten law derived by the judicial application of natural reason.
Now since it has repeatedly been said by judges both in states where it is lawful and where it is not, that slavery rests on “positive law,” i the proposition is assumed by many persons as admitted, as for example, according to Senator Benjamin in the speech referred to, by the Senators on the other side "in nearly all their arguments, that slavery is the creature of positive legislation and cannot be established by customary law or usage.”! Against which assumption Mr. Benjamin appropriately cites Lord Stowell in the case of the slave, Grace, 2 Haggard's R. 105, ante, p. 194, that in the English colonies slavery was legal by customary law alone.
The leading authority being Lord Mansfield, in Somerset's case. There is hardly any other decision in which the phrase positive law, simply or without qualifcation, is used to designate the origin of slavery. But in Neal v. Farmer, 9 Geo. R 578, the court cites a large number of English and American cases as holding the same doctrine. In most of the cases, such other terms are used alone or are made to qualify the term positive law, as to designate, with sufficient accuracy, a jus proprium. Thus, Holroyd, J., in Forbes v. Cochrane, 2 Barn, and Cress, 461, "the plaintiff claims a general property in them” * * * "and he claims this property as founded not upon any municipal law of the country where he resides, but upon a general right," * * * "assuming that there may be such a relation, it can only have à local existence, where it is tolerated by the particular law of the place, to which al persons there resident are bound to submit. Now if the plaintiff cannot maintain this action under the general law of nature independently of any positive institution, then his right of action can be founded only upon some right which he has acquired by the law of the country where he is domiciled.” P. 463, "the right of the master, which is founded on the municipal law of the particular place only, does not continue." Here the term municipal law, is used to express the conception of a jus proprium ; and see Lunsford v. Coquillon, 14 Martin's La. Rep, 402; Prigg's case, 16 Peters, 611, “The state of slavery is deemed to be a mere municipal regulation, founded on and limited to the range of territorial laws." Rankin v. Lydia, 2 Marshall, (Ky.) 470, " positive law of a municipal character.” Curtis, J., 19 Howard, 624; ante, p. 550.' In Commonw. v. Aves, 18 Pick 212, Judge Shaw employs positive law in the same sense of a local or particular law distinguished from one generally recognized for referring to Lord Mansfield's dictum that slavery, being odious and against natural right, cannot exist, except by positive law, he observes: “ But it clearly admits that it may exist by force of positive law. And it may be remarked, that by positive law in this connection may be as well understood customary law as the enactment of a statute; sad the word is used to designate rules established by tacit acquiescence or by the legis lative act of any state, and which derive their force and authority from such acquiescence or enactment, and not because they are the dictates of natural justice and as such of universal obligation."
So in Hildreth's Despotism in America, p. 212; Spooner's Unconstitutionality of Slavery.
On the other hand it has been supposed by some persons that, if slavery be attributed to positive law in the sense inclusive of unwritten law, it cannot be attributed at the same time to a law which, like statute, is peculiar to some one state or possessor of sovereign power. Thus in Neal v. Farmer, 9 Geo. R. 581, the court observes that Chief Justice Shaw, in Sims' case, and in Commonw. v. Aves, 18 Pick. 212, attributing slavery to positive law defines it as including customary law. And because the same Judge, in the latter case, refused to recognize the relation of master and slave, or the condition of slavery, in Massachusetts (in cases not coming within the fugitive slave provision in the Constitution of the United States), the Georgia court supposes an inconsistency. Although Judge Shaw, by his definition of positive law, discriminates some customary law as particular or local, in respect to some one state or nation, and so distinguishable from a universal law.
So Senator Benjamin, in the instance above, supposes that he has proved his point in showing that slavery does not rest upon positive law, in the sense of positive legislation ; and in another place says ; “As to the right in them, [slaves that man has to overthrow the whole history of the world, he has to overthrow every treatise on jurisprudence, he has to ignore the common sentiment of mankind, he has to repudiate the authority of all that is considered sacred with man, ere he can reach the conclusion that the person who owns a slave, in a country where slavery has been established for ages, has no other property in that slave than the mere title which is given by the statute law of the land where it is found.”
Now, although it be admitted or proved that property in slaves does not rest upon positive statute, but upon unwritten law, it is not thereby proved that it rests on a law which originates in “ the common sentiment of mankind," and which judicial tribunals are bound to recognize as presumptively accepted by that possessor of sovereign power whose will they are to
apply as po As has been beforeite in the applicati
$ 525. As has been before observed, the discrimination of such laws is principally requisite in the application of interna
tional private law. Thus the English case of Forbes v. Cochrane, in which Holroyd, J., in a part of his opinion already noted, distinguished slavery as resting on a “municipal,” local, or “particular” law of some one country in contradistinction to “ general right” or “general låw of nature,” was one involving the application of that international law. And the same opinion is cited by Chief Justice Shaw, in Commonwealth v. Aves, 18 Pick., in deciding that, independently of any provision in the Constitution of the United States, the right of a master in respect to a slave, which was valid or legal in Louisiana, the place of their domicil, could not be recognized in Massachusetts by international private law. And Judge Shaw, giving his conception of the distinction in his own language, says, p. 216, “ This view of the law applicable to slavery marks strongly the distinction between the relation of master and slave, as established by the local law of particular states and in virtue of that sovereign power and independent authority which each independent state concedes to every other, and those natural and social relations which are everywhere and by all people recognized, and which, though they may be modified and regulated by municipal law, are not founded upon it, such as the relation of parent and child, and husband and wife. Such also is the principle upon which the general right of property is founded, being in some form universally recognized as a natural right, independently of municipal law.
“ This affords an answer to the argument drawn from the maxim that the right of persoral property follows the person, and, therefore, where by the law of a place a person there domiciled acquires personal property, by the comity of nations the same must be deemed his property everywhere. It is obvious, that if this were true, in the extent in which the argument employs it, if slavery exists anywhere, and if, by the laws of any place a property can be acquired in slaves, the law of slavery must extend to every place where such slaves may be carried. The maxim, therefore, and the argument can apply only to
Ante, ss 101, 158, 306.
· Compare ante, $ 109.
those commodities which are everywhere, and by all nations, treated and deemed subjects of property.”
$ 526. But, from not distinguishing any other visible origin of law than the several will of single states or nations, jurists of the highest eminence sometimes, (as in the instance of the Georgia case and of Senator Benjamin's argument, last cited,) assume that, if a relation is proved to exist by unwritten, customary law, judicial application of natural reason, in one forum or under one possessor of sovereign power, it is thereby proved to have legal existence in every other country as customary law, judicial application of natural reason. Or, sometimes, while discriminating a law which has judicial recognition in every forum by reason of its universality, and which is to be distinguished from the local or particular law (statute or customary) of some one country, they confound their own (subjective) idea of right, or what they call “ natural law," the judgment of their individual moral sense, with the (objective) conception of right furnished by the juridical history of the world, or of those nations with whose international relations they are conversant, the historical law of nations. In other words, instead of strictly observing what rules are recognized among all or many nations, assuming that they are founded in natural reason, (as the Roman attributed to naturalis ratio whatever apud omnes populos peræque custoditur,) and applying these as universal jurisprudence, (jus gentium,) they determine what, by their individual natural reason, should be recognized among all nations, and apply that as the universal rule, calling it “the general law of nature,” “the dictates of natural justice ;” or using some similar term appropriate to designate a rule of ethics.
Illustrations of this latter error are given both by those who demand that slavery shall be everywhere judicially recognized, as supported by customary law, and by those who deny it that recognition.
$ 527. Thus in the definition, in Commonw. v. Aves, already given, of positive law, where he distinguishes it as the rules which are “established by tacit acquiescence or by the legisAnte, p. 109, note.
· Ante, $ 152,