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lative act of any state, and which derive their force and anthority 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 his. torical 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
titio principii. For the question then being, are slaves property by a local law, or are they property by the universal law ?-the judge finds the answer by saying,' if they be considered property by universal law, they would be slaves everywhere ; they would be slaves in Massachusetts; therefore they are property by a local law, and not by the universal.
$ 528. A similar identification of the universal law with the moral judgment of the individual jurist occurs in the speech of Senator Benjamin, already referred to, when replying to a passage in the speech of Mr. Collamer, of Vermont, on the same subject, the whole of whose argument, he says, “ ingeniously as it
I See the last paragraph in $ 511.
• To the idea that the universal law, which is distinguishable from that peculiar to single states or nations, is not at the same time known as a rule set or laid down, (positum, jus constitutum, ante, $ 17,) by any judicial criterion of the will of the sovereign, distinguishable from the individual moral sense of the judge, may also be ascribed the remark on page 215 of the same report: “That slavery is a relation founded on force, not in right, existing where it does exist, by force of positive law and not recognized as founded in natural right, is intimated by the definition of slavery in the civil law: Servitus est constitutio juris gentium qua quis dominio alieno contra naturam subjicitur.” But this jus gentium is the very criterion of what a judge may recognize as a rule of universal law; and is to be received whether contrary to natural law or not. That, by it, slavery is not now judicially recognized in Massachusetts, as formerly, in the case of imported heathen negroes, is not owing to the better acquaintance of the judges with the law of nature, but to the fact that there is now no rule of universal jurisprudence, jus gentium, to support the master's right.
* The portion of Senator Collamer's speech to which Senator Benjamin refers, is as follows: “I do not say that slaves are never property. I do not say that they are, or are not. Within the limits of a State which declares them to be property they are property, because they are within the jurisdiction of that government which makes the declaration; but I should wish to speak of it in the light of a member of the United States Senate, and in the language of the United States Constitution. If this be property in the States, what is the nature and extent of it? I insist that the Supreme Court have often decided, and every body has understood, that slavery is a local institution, existing by force of State law; and of course that law can give it no possible character beyond the limits of that State. I shall, no doubt, find the idea better expressed in the opinion of Judge Nelson, in this same Dred Scott decision. I prefer to read his language. He declares:
"Every State or nation possesses an exclusive sovereignty and jurisdiction within her own territory, and her laws affect and bind all property and persons residing within it. It may regulate the manner and circumstances under which property is held and the condition, capacity, and state of all persons therein; and also the remedy and the modes of administering justice. And it is equally true that no State or nation can affect or bind property out of its territory, or persons not residing within it No State, therefore, can enact laws to operate beyond its own dominions; and if it attempts to do so, may be lawfully refused obedience. Such laws can have no authority extraterritorially. This is the necessary result of the independence of distinct and separate sovereignties.' [19 Howard, p. 460.]
“Here is the law; and under it exists the law of slavery in the different States. By virtue of this very principle it cannot extend one inch beyond its own territorial limits. A State cannot regulate the relation of master and slave, of owner and proporty, the manner and title of descent, or any thing else, one inch beyond its territory.
is put, rests upon this fallacy, if I may say so with due respect to him, that a man cannot have title in property wherever the law does not give him a remedy or process for the assertion of his title ; or, in other words, his whole argument rests upon the old confusion of ideas which considers a man's right and his remedy to be one and the same thing. I have already shown to you, by the passages I have cited from the opinions of Lord Stowell and of Judge Story, how they regard this subject. They say that the slave who goes to England, or goes to Massachusetts, from a slave State, is still a slave, that he is still his master's property ; but that his master has lost control over him, not by reason of the cessation of his property, but because those States grant no remedy to the master by which he can exercise his control.
“There are numerous illustrations upon this point, illustrations furnished by the copyright laws, illustrations furnished by patent laws. Let us take a case ; one that appeals to us all. There lives now a man in England who from time to time sings to the enchanted ear of the civilized world strains of such
Then you cannot, by virtue of the law of slavery, if it makes slaves property in a State, if you please, move that property out of the State. It ends whenever you pass from that State. You may pass into another State that has a like law, and if you do, you hold it by virtue of that law; but the moment you pass beyond the limits of the slave-holding States, all title to the property called property in slaves, there ends. Under such a law slaves cannot be carried as property into the Territories or anywhere else beyond the States authorizing it. It is not property anywhere else. If the Constitution of the United States gives any other and further character than this to slave property, let us acknowledge it fairly and end all strife about it. If it does not, I ask, in all candor, that men on the other side shall say so, and let this point be settled. What is the point we are to inquire into? It is this: does the Constitution of the United States make slaves property beyond the jurisdiction of the States authorizing slavery? If it only acknowledges them as property within that jurisdiction, it has not extended the property one inch beyond the State line; but if, as the Supreme Court seems to say, it does recognize and protect them as property further than State limits, and more than the State laws do, then, indeed, it becomes like other property. The Supreme Court rest this claim upon this clause of the Constitution : No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.' Now the question is, does that guarantee it? Does that make it the same as other property? The very fact that this clause makes provision on the subject of persons bound to service, shows that the framers of the Constitution did not regard it as other property. It was a thing that needed some provision, other property did not. The insertion of such a provision shows that it was not regarded as other property. If a man's horse stray from Delaware into Pennsylvania, he can go and get it. Is there any provision in the Constitution for it? No. How came this to be there, if a slave is property? If it is the same as other property, why have any provision about it?"
melody that the charmed senses seem to abandon the grosser regions of earth, and to rise to purer and serener regions above. God has created that man a poet. His inspiration is his ; his songs are his by right divine; they are his property, so recognized by human law. Yet here in these United States men steal Tennyson's works and sell his property for their profit ; and this because, in spite of the violated conscience of the nation, we refuse to give him protection for his property.
“Examine your Constitution ; are slaves the only species of property there recognized as requiring peculiar protection ? Sir, the inventive genius of our brethren of the North is a source of vast wealth to them and vast benefit to the nation. *** On what protection does this vast property rest ? Just upon that same constitutional protection which gives a remedy to the slaveowner when his property is also found outside of the limits of the State in which he lives. Without this protection what would be the condition of the northern inventor? Why, sir, the Vermont inventor protected by his own law would come to Massachusetts, and there say to the pirate who had stolen his property, 'render me up my property or pay me value for its use.' The Senator from Vermont would receive for answer, if he were counsel for the Vermont inventor, “Sir, if you want protection for your property, go to your own State ; property is governed by the laws of the State within whose jurisdiction it is found ; you have no property in your invention outside of the limits of your State ; you cannot go an inch beyond it.' Would not this be so? Does not every man see at once that the right of the inventor to his discovery, that the right of the poet to his inspiration, depends upon those principles of eternal justice which God has implanted in the heart of man, and that wherever he cannot exercise them it is because man, faithless to the trust that he has received from God, denies them the protection to which they are entitled.”
Here it is evident either, that it must be first admitted that legal property is determined by the speaker's own idea of what men should own by law or be protected by law in possessing, and depends upon his individual conception of "those principles
of eternal justice which God has implanted in the heart of man ;” or, else, that the reference to copy-rights and patentrights is singularly infelicitous for the purposes of his argument. For, by his own admission, such rights are legal rights, i. e., rights recognized in courts of law, only within certain limited jurisdictions ; and even therein are not known as property by customary law, and cannot be judicially recognized as legal rights in other countries though made such in some one country by its positive legislation. And yet Mr. Benjamin had proposed at the outset, (in the extract first given,) to show “ 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 ;” and the printed speech bears among its titles, Slavery protected by the Common Law of the New World ; while here slaves are classed with “species of property recognized [by the Constitution] as requiring peculiar protection," and not even recognized by common law in any state or nation.
$ 529. The Senator to whom Mr. Benjamin was replying, (Mr. Collamer,) had, in a part of his argument which has been noted, instanced horses, as objects of the action of legal persons which, when they are objects of rights,' can be nothing else than property. And, assuming it to be admitted that the Constitution recognizes some objects of rights as being property, he argued that the existence of special provisions, protecting rights in respect to slaves, proves that they are not recognized as property even when they are regarded as objects of rights. But his argument indicated no standard by which to prove that horses are property, more than are other objects of rights. Hence, Mr. Benjamin, in a passage immediately following the last extract from his speech, impeaches the argument on the ground, apparently, that horses are known to be property only by the same juridical evidence which shows slaves to be property. He remarks:
“Sir, follow out the illustration which the Senator from Vermont himself has given ; take his very case of the Delaware owner of a horse, riding him across the line into Pennsylvania.
? For this use of terms, see ante, SS 21-24.