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586 Stowell's And Story's Authority.
which to distinguish—1st, that part of positive law which, whether customary or statute, all equally originates in the several legislative (juridical) action of a single state or possessor of sovereign power, jus proprium, and 2d, that part of positive law which, being customary or unwritten, differs from every part of the former by being attributable to the legislative (juridical) action of all or many states or possessors of sovereign power, jus gentium. And to the same want of proper terms are attributable the contradictions observable in the judicial determination of these questions.1
§ 530. In the extract given, Senator Benjamin has referred to Lord Stowell and Judge Story as authorities for the juristical contradiction in terms, that a natural person may be property in a place where the law allows no one to treat him as such, nor allows any to exercise dominion over him. The portions of Lord Stowell's opinion, which were referred to, had been given in another part of the speech. Their citation in this connection was probably an inadvertence; they are to another point ;* and other parts of the opinion might, with some propriety, have been referred to for the doctrine, such as pp. 100, 112, 113, of 2 Haggard's Rep. And particularly page 117, where Lord Stowell quotes Chancellor Northington's brief opinion in Shanley v. Harvey, "As soon as a man sets foot on English ground he is free. A negro may maintain an action against his master for ill-usage, and may have a habeas corpus if restrained of his
1 Compare ante, p. 378, notes. Illustrating Lord Bacon's remark in De Augments, Lib. V., ch. iv., when defining the eidolon fori, idol of the market; Credunt homines rationem suam verbis imperare, sed fit etiam nt verba vim suam super intellectum retorqueaut et reflectant. "For words generate words, however men may imagine they have commend over words, and can easily say they will speak with the vulgar and think with the wUe."
* The citations are, case of the slave, Grace, 2 Hagg. p. 126-128. In these nothing else is declared but that slavery, being in Antigua the effect of customary law, having been " a very favored introduction into the colonies," and also introduced by the mother country as profitable to herself, could not, by any English court, be regarded as a maliu urtu in the colony, and declored^unlawful there on the maxim malst tuus abolendut. The extract given from Story's letter to Stowell is, " I have read with great attention your judgment in the slave case. Upon the fullest consideration which I have been able to give the subject, I entirely concur in your views. If I had been called upon to pronounce a judgment in a like case, I should have certainly arrived at the same result." This result was, that on returning to Antigua the woman, Grace, was there, by the rules of private international law, in the same status of slavery in which she had been before going to England.
LORD STOWELL'S ARGUMENT.' 587
liberty," and, with an ingenuity that is best designated ludicrous, endeavors to extract from it the recognition of slavery as co-existing with its contrary; upon which idea to support his judgment that, on returning to the colony, the negro returns a slave. His reasoning involves the doctrine, utterly inconsistent with every definition of law, that while the rights and obligations of a natural person are judicially determinable by one law, another law producing effects incompatible with those rights and obligations may still be operating on the same person in the same jurisdiction.1
In another place, p. 109, Lord Stowell excepts to the arguments advanced by Hargrave and the reasoning given by Lord Mansfield to show that Somerset became free or acquired the status of a freeman by being in England ; such as the rhetorical phrase that "the air of England was too pure for slaves to breathe in," and those denials of the ethical fitness of slavery which, if they were the ground for declaring the slave free in England, should, on Lord Mansfield's and probably Lord Stowell's
1 Lord Stowell would hardly have sympathized with Tennyson in praising England as a land
"Where Freedom broadens slowly down From precedent to precedent."
2 Hagg. 117; "The Lord Chancellor Northington, in dismissing the bill with costs, said, that as soon as a man sets foot on English ground he is Tree. It must be observed that this was the first time, probably, that this doctrine was so broadly stilted in an English court, and. perhaps, a little prematurely; but it must likewise be observed that his Lordship here mentions only two effects of it, for he adds, • A negro may maintain an action against his master for ill-usage and may have a habeas eorjius if restrained of his liberty' This is an instance in which the law of England differed essentially from the law of the slave code in the West India colonics, for there every acquisition by the slave, whether by legacy or otherwise, went to the master, but not so here, where the law of England adjudged it to the slave. And the Lord Chancellor enumerates another difference, which is, that the law of England empowered the slave to bring an action against his master for ill-treatment, lioth of these are direct contradictions to the rules of the slave code; but nobody could infer from thence that the whole of the slave code was by that decision intended to hi" vacated in the colonies on that account. The error ol the opinion seems to be, that because the slave code was overruled in England, where the law of England differed from it, it was therefore abrogated in the colonies m tola. The slave continues a slave, though the law of England relieves him in those respects from the rigors of that code while he is in England, and that is all that it does. With respect to other severities which it refines to inflict it is Sfrini* tie pliiribus una, which does not at all dislodge the other severities of that code, all of which he may avoid by continuing in this country." In the case before Northington, nothing could be decided about the colony, and nothing was said about it. See ante, § 187. To make out "the error of the opinion," Lord Stowell supposes that the existence cf slavery in the colony was questioned by it.
588 FUNCTIONS OF THE GOVERNMENT
theory of the foundation of colonial law,1 have made slavery unlawful in the colony. But in the same place he admits the application of the argument, that, even if it was not shown how the slave became invested, in England, with the rights of a freeman, there was on the other hand no law in England to support the master's claims while there; or, that since the law gave him no legal remedy the law attributed to him no legal right. "The arguments of counsel do not go further than to establish that the methods of force and violence which were necessary to maintain slavery were not practicable in this spot; and Mr. Hargrave, almost in direct terms, asserts that they cannot go beyond it." This is the doctrine which Lord Stowell does not venture to impeach; the doctrine recognized by Lord Mansfield when he said of the detention exercised by the master, "So high an act of dominion must be recognized by the law of the country where it is used," and, because it was not so recognized, added, " the black must be discharged."2 This is the doctrine that where the law gives no remedy the law recognizes no right; the doctrine asserted by Mr. Collamer, and designated by Mr. Benjamin, a "fallacy."
§ 531. On the principle that Congress cannot legislate where no power is granted by the Constitution, Judge McLean denies
1 Ante, pp. 374-376.
* Ante, p. 191. Lord Stowell's position resembled that of Lord Mansfield, in Somerset's case; he was unable to find the judicial reason for a judgment which may probably be justified on the distinctions of domicil which were stated, ante, pp. 384—3(*6.
As has been remarked, ante, p. 379, and note 3, the opinion seems to have obtained at one time, among English lawyers, that though the slave was no longer property in England for which trover would lie, yet the master's right to perpetual service might continue. Though this doctrine was clearly against the authorities even before Somerset's case, it may have been the basis of Lord Stowell's opinion. Blackstone, 1 Comm. p. 424. "And now it is laid down that a slave or negro, the instant he lands in England becomes a freeman; that is the law will protect him in the enjoyment of his person and his property. Yet with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before; for this is no more than the same state of subjection for life which every apprentice submits to for the space of seven years or sometimes for a longer term." Mr. Christian notes that "the meaning of this sentence is not very intelligible," and denies the validity of any contract made by the slave to serve for life, Blackstone also says, "whatever service the heathen negro owed of right to his owner or master, by general, not local law, the same, whatever it may be, he is bound to render when brought to England and made a Christian." But, as has been shown, there is no service due by "general law" when the slave is no longer a chattel jure gentium.
IN THE TERRITORIES. 589
that Congress may legalize slavery by statute.1 But on the same principle it would seem that freedom could not be legalized by statute. Mr. Justice Nelson, in his opinion in Dred Scott's case, 19 Howard, 464, says: "If Congress possesses the power under the Constitution to abolish slavery in a Territory, it must necessarily possess the like power to establish it. It cannot be a one-sided power, as may suit the convenience or particular views of the advocates. It is a power, if it exists at all, over the whole subject." Judge McLean finds the legislative power to establish slavery " prohibited by the Constitution or contrary to its spirit." The same, if true, should prevent the executive and judiciary created by the Constitution from recognizing or maintaining slavery under laws already existing in the Territories. But it is by resorting to the spirit of the Constitution that Judge Campbell invests the national legislature and the national judiciary and executive with the power and duty of extending and maintaining, in the Territories, the laws of the slave-holding States.
Legal rights and obligations exist only by the co-operation of the three functions of sovereign power. The reasoning of more than one member of the Supreme Court, in Dred Scott's case, involves the doctrine that rights and obligations incident to the status of persons are maintained, in the Territories, by the executive and judicial functions held by the national Government, while the legislative, or, more correctly, the juridical function, by which those rights and obligations are determined, is not invested in any body ; but remains in nubibus until a new State of the Union is created which may assume it.
§ 532. Whatever power the national Government may, of right, exercise in the Territories has either been expressly or impliedly granted by the words of the Constitution, or it has not so been granted.
It must be admitted that the Constitution grants to the executive and judiciary created by it power to maintain and enforce only such rights and obligations as are referable to the
1 19 Howard, 532, and ante, p. 542.
590 POWERS OF THE GOVERNMENT.
law of the United States, that is, a rule resting on the juridical will of the people of the United States, the authors of the Constitution.
Now the only law of the United States, affecting private persons, which is described or referred to in the Constitution is either law contained in the Constitution itself, or derived either from the legislation of Congress or from the treaty-making power' held by the President and Senate.* And, if, as is commonly said, there can be no other law of the United States, or rule identified with the juridical will of the people of the United States,3 it would appear that the rights and obligations of private persons which may be maintained by the executive and judicial functions of the national Government, in virtue of power granted in the Constitution, are only such as are determinable and determined by one of these three indicators of the national will.
The Constitution gives the executive and judiciary created by it power to enforce rights and obligations created by the law of a State of the Union only in certain specified cases; when, by the provisions of the Constitution taking effect as private law, those rights and obligations become actually effects of the national law.4 Now, even admitting that the several legislative or juridical power of a State of the Union may determine the status of persons domiciled in the Territory (Judge Campbell's theory), the Constitution does not grant to the national executive and judiciary the power of maintaining, in such case, the rights and obligations which would be created by the State law. If then the rights and obligations incident to the status of persons in the Territories are not fixed by the private law of the Constitution, nor by legislative power exercised in the conclusion of a treaty, nor by legislative power exercised by Con1 Ante, pp. 480, 481. » Const Art. II. sec. 2.
* Curtis' Comm. § 19. "The law of the United States is to be found in the Constitution and the Acts of Congress passed in pursuance of it," citing Wheaton v. Peters, 8 Peters, 591. It is difficult to say how far rights and obligations in relations between private persons can be judicially recognized under a treaty alone, independently of the principles of private international law which would operate where dominion had been acquired without a treaty. This question is to be further considered hereinafter.
* Antt, § 445.