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in the French town, found, to his amazement and disgust, that the magistrates were bent upon giving the slave his freedom.
Barrington, in the statutes, p. 254, says_“It appears from Boulainvilliers, that the question was formerly much agitated in the French courts of justice; but in the Institutes Coustumières (1679), it is laid down with great precision, that a slave becomes free as soon as he enters the French territories, and is baptized. “Toutes personnes sont franches en ce Royaume, et si-tost qu'un esclave a atteint les marches d'iceluy se faisant baptizer est affranchi.” So in Remarques du Droit François (1680), the same doctrine, that the French kingdom knows no distinction of persons, bond or free. Although these passages are conclusive as to the theory of French law, and as bearing upon the general law of nations, yet, in fact, serfdom in a very stringent form existed at this time, and long after, in France. As regards “ the incompatibility of slavery with the soil or with the air of France," it is said, “ many persons (the serfs or mainmortables—they had other denominations) in different parts of that country continued, until its convulsive revolution, to exist in a condition which, if it were not, strictly speaking, slavery, undoubtedly bore a very strong resemblance to that status.'
Lack of space prohibits our following the authorities bearing upon the laws of other states, which may be found collected in the State Trials (vol. 20), and in the 8th chapter of Mr. Hurd's treatise. The latter writer comes to the conclusion which we will quote, as we think it is perfectly sound.—“If, then, at a date shortly before the American revolution, the practice of British and European judicial tribunals, and the writings of private jurists indicated any rule respecting the international recognition of the rights of an alien owner, and the correlative obligation of his slaves existing under the law of their domicile, that rule was, it would seem, that in a country wherein the condition of slavery could not exist as an effect of the internal or local law, or wherein no domiciled subject, of whatever race or complexion, could be held in slavery, the correlative rights and obligations of masters and
1 20 State Trials, 1370.
slaves domiciled in other countries, could not be protected and enforced by the judicial tribunals of the forum.”—($ 265.)
It is readily seen how the institution of slavery has been, during Jater periods, a fruitful source of questions arising between nations and governments, and has occasioned appeals to international law, a consideration of their “conflict” as it has been termed. Hence in a treatise like that of Mr. Hurd, it became essential to define, as he has undertaken in his first chapter, the terms used by writers on jurisprudence, and to consider the principles which lie at the base of recognised systems of law among civilized communities. The vague employment of language has produced at all times much ambiguity in this department of legal study, and causes, moreover, a great distaste to its study. As Dr. Maine has well said, in a paper read before the juridical society, the English language comprises no true juristical phraseology. “Our English law terms are strictly terms of art, and it would be absurd to attempt to strain them beyond their well-defined, long-accepted, and technical meaning. The language then which must be used for questions of universal jurisprudence is popular language, infected with all the vices of common speech, vague, figurative, and general. In employing it for such an examination of these questions as is appropriate to closet study, it is necessary to be constantly limiting and qualifying it, to be perpetually weeding it of metaphor, and to be carefully cleaning it from the misleading suggestions which lurk in mere arrangements of words and collocations of phrases.” The facts here mentioned will explain in great measure why it is so common to find in legal authors on these subjects, such hard writing, involved style, and sometimes repugnant doctrines. Another explanation is indicated in the following remark of Bentham :—“Of what stamp are the works of Grotius, Puffendorf, and Burlamaqui? Are they political or ethical, historical or judicial, expository or censorial ? Sometimes one thing, sometimes another, they seem hardly to have settled the matter with themselves. A defect this, to which all books must almost unavoidably be liable, which take for their subject the pretended law of nature; an obscure phantom,
which, in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws, sometimes to what law is, sometimes to what it ought to be.”
A third- element of difficulty is, that international law, or the law of nations, in the sense of a rule of which nations are the subjects—is subject to change, not simultaneous, among all the nations recognizing such law. Among the peoples of antiquity, for instance, slavery was universally recognized, by the “natural
” of mankind, as a legal condition. “Summa igitur divisio de jure personarum hæc est quod omnes aut liberi aut servi” (Inst. Lib. I. Tit. 3). But the history of civil and municipal institutions shows how the principles and language applicable in one century and one locality, are inappropriate in another, and how contradictions in authorities thus arise. Moreover, the older writers, whose opinions are so often invoked, confound their theories of wbat international law should be (if it conformed to the “law of nature"), with their statement of what the international law is. In the observations however, which we have here taken the opportunity of making, we have necessarily not been able to stop to explain any peculiar signification which the authors referred to have attached to the terms they have used.
In the United States of America the position of slavery, both in a legal and social view, necessarily assumes an importance and value which is by no means diminishing. The evils which this institution imposes on that noble country—the wonder of modern times-are undeniable and lamentable. It was thought no crime or error in the mother country to plant the tree; but the fruit is daily becoming more and more baleful and poisonous. The abolitionists on the one hand, in many instances, by their intemperate and narrow views of the real state of the case and its appalling difficulties; and slave-owners, on the other, by their selfishness and obstinacy, have so dealt with this vital question, that the constitution is endangered. In the mean time, general society and public opinion throughout the world is becoming more and more pronounced. Russia even—the mighty representative of absolute imperial government—is making huge efforts and sacrifices to throw off the degrading incubus. Any sincere or candid attempt madein America to escape from or mitigate the cruel evil they have inherited, should receive warm sympathy from Englishmen.
Inherent in the legal relation of the subject itself, we have seen there are great difficulties. Prejudices, leanings, sympathies, even on the Bench, are not the least sad features which one is obliged to note. It would be absurd for an English lawyer to point to them as belonging to our American brethren exclusively: they are only enduring what we have passed through. The administration of the law, when it is applied to questions of this mutable character, will, to some extent, follow and be coloured by the current feelings and ideas of the society whence judges spring, and where they mingle. And yet it is to be regretted that such marked and fundamental antagonism exists on the bench of the Supreme Court of the United States, as that exhibited in the wellknown case of Dred Scott v. Sandford. “It appears,” says Mr. Justice Carter, in his judgment in this case, “from what has taken place at the bar, that notwithstanding the language of the constitution, and the long line of legislative and executive precedent under it, three different and opposite views ase taken of the power of Congress respecting slavery in the territories. One is, that though Congress can make a regulation prohibiting slavery in a territory, they cannot make a regulation allowing it: another is, that it can neither be established nor prohibited by Congress, but that the people of a territory, when organized by Congress, can establish or prohibit slavery: while the third is, that the constitution itself reserves to every citizen who holds slaves under the laws of any state, the indefeasible right to carry them into any territory, and there hold them as property.”
These are, indeed, grave questions to have been left open so long. The learning brought to bear upon them, and the nature of the arguments urged, must be sought for in the report of the case, which will well repay perusal
Before the English jurist cast opprobrium at his American brethren, for the doubts and incongruities there subsisting on the “Law of Slavery,” he will do well to review the history of our
own judicial decisions, and the anomalies in our own reports, Too great vainglorying in our legislative achievement in 1833 may, to some extent, be neutralized, by considering how great men and great parties long opposed emancipation ; and how it was eventually forced upon those interested in the abolished system. Better cause for triumph will be shown when our West Indian colonies have recovered their prosperity, and the coloured population are seen to be exhibiting healthy industry, and using for social improvement the freedom which was gained for them. No agitation, argument, or combination, would be of so great force as that derived from the evidence of a free negro population elevating itself to an eminence the possibility of which is now plausibly denied.
In conclusion, we commend both the works of Mr. Hurd and Mr. Cobb to those interested in the “laws affecting slavery.” Mr. Hurd's is an elaborate and able law book; and Mr. Cobb's, in spite of the partisanship, and popular and declamatory discussion of some facts, contains much that is interesting, and not usually met with in treatises claiming to be law books.
Mr. Wright, in his interesting paper, where he has learnedly traced the course of ancient slavery in England, till it merged in the villenage of the Norman and subsequent government of the country, has remarked, that the copyhold tenures of the present day are the sole legal remains of villenage ; nor was it until the courts of justice, with a strong sense of equity, had interfered to establish legal rights between the cultivators of the soil and the feudal lord, that the former obtained an independent position in relation to property. Mr. Wright aptly quotes the remarks of Lord Wynford (in Garland v. Jekyll, 2 Bing. 292), with which we must conclude : “It is to lawyers in Westminster Hall and I speak of it with pride—that slaves (for such was the state of men in pure villenage) are indebted for the permanency of their property, and that right in society which permanency in property has conferred upon them. It is by the establishment of customs referable to copyholds, as established in courts of justice, that this permanent interest has placed copyholders in the happy situation