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576 AMBIGUITY OF PHRASES.
which may be either statute or customary law, or from universal jurisprudence, the unwritten law of nations. But the same term, positive laio, 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,"' 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.
1 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 qualification, is used to designate the origin of slavery. But in Neal tt. 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 pro- prium. 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," * • * "nssuming that there may be such a relation, it can only have a local existence, where it is tolerated by the particular law of the place, to which all 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 contiuue.'' Urn tlie term municipal law,is used to express the conception of a jus proprium; and see Lunsfoid 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 limit? i to the range of territorial laws." Rankin r. Lydia. 2 Marshall, (Ky.) 470, "positive law of a municipal character." Curtis, J., 19 Howard, 624; ante, p. 550. In Commonw. v. Avcs, 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; and the word is used to designate rules established by tacit acquiescence or by the legislative 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."
1 So in Hildreth's Despotism in America, p. 212; Spooner's Unconstitutionality of Slavery.
POSITIVE LAW J HOW UNDERSTOOD. 577
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 lie 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 positive law.
§ 525. As has been before observed, the discrimination of such laws is principally requisite in the application of interna
578 DEFICIENCY OF TERMS
tional private law.1 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 law 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 personal 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
• AiUe, §§ 101, 168, 306. « Compare ante, § 109.
AND A RESULTING CONFUSION. 579
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.1 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 Koman attributed to naturalis ratio whatever apud omnes populos pereeque 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 legis
'Ante, p. 109, note. * Ante, § 152.
580 CONFUSION RESULTING
lative act of any state, and which derive their force and authority from such acquiescence or enactment," Judge Shaw refers to other rules, as being also law; calling them "the dictates of natural justice, and as such of universal obligation;" apparently, however, without acknowledging any other index of these latter than the individual conscience of the tribunal exercising jurisdiction.
A passage from the same opinion has already been cited as giving what is probably the clearest instance of a judicial attribution of slavery to "local" or "particular" laws, as distinguished from a universal jurisprudence. But though in the conclusion of the passage, Judge Shaw particularly indicates that some objects of rights are to be recognized as "those commodities which are everywhere and by all nations treated and deemed subjects of property," thus distinguishing the true historical criterion by which (independently of local statute or custom) property may be known, still, in that which immediately follows, the Judge, virtually, makes himself the exclusive arbiter of what may or may not be legal property; saying, "But it is not speaking with strict accuracy to say that a property can be acquired in human beings by local laws. Each state may, for its own convenience, declare that slaves shall be deemed property, and that the relations and laws of personal chattels shall be deemed to apply to them; as for instance, that they may be bought and sold, delivered, attached, levied upon, that trespass will lie for an injury done to them or trover for converting them. But it would be a perversion of terms to say that such local laws do in fact make them personal property generally; they can determine that the same rules of law shall apply to them as are applicable to property, and this effect will follow only so far as such laws proprio vigore can operate."
It is evident that, in this instance, either a very distinguished jurist and judge of the largest judicial experience asserts, in contradiction to the history of the world, that it is morally impossible that a human being should be property by the law of any country, or else, if his argument recognizes a universal law independent of his individual judgment, the argument is a pe