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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 reason ” 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 what 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 sacri
fices 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 are 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 in which they are now found. The copyholder now has a present interest in his estate so long as he performs his services; and the lords have certain rights and dues : and, so long as the copyholder performs his services and pays his dues, he has the same permanent interest in his estate as if it were freehold.”
ART. V.- EXTRACT OF LORD BROUGHAM'S LETTER
TO THE EARL OF RADNOR.
“BROUGHAM, October 9, 1859. TERTAINLY, therefore, we have a right to complain of the
late session in comparison with almost any of former years, both for the important measures of law amendment which were suffered to drop, and for those which were absolutely opposed and rejected. Of the latter, the loss most to be regretted is of the provisions agreed to by our House after full discussion and unsuccessful opposition, but thrown out in the Commons, for improving the procedure in the Divorce Court. One of the
very few subjects upon which you and I have always differed, was the House of Lords' jurisdiction (for, under the name of legislation, such it really was) to dissolve marriage. I have no manner of doubt, that with the same repugnance to divorce by a court you must be of opinion that at least the same security possessed by the Lords against fraudulent collusion which you deemed all too little, should be possessed by the new court, to whom substantially the jurisdiction is transferred, that it should have the means which we had of protecting itself from such frauds, and which in many cases proved effectual, though certainly not in all. Any person having an interest in preventing the divorce, or the remarriage of the parties, or any friend desirous of preventing it for the sake of the parties themselves, could suggest to the Peers circumstances within his knowledge, and thus lead to the examination of evidence wbich might occasion the rejection of the bill-suggestions and evidence which the parties would have carefully kept from the knowledge of the House. I have known many instances of this. Now, no such information can possibly reach the Divorce Court, no suspicions be raised in the minds of the judges, because no person can possibly communicate with a judge upon any matter judicially before him. I therefore proposed that the Attorney-general should watch each case, to whom any person might make a communication, and that he should have the power of calling the evidence suggested as likely to prove fraud and conspiracy. In the Privy Council no extension of a patent can be given without the presence of the Attorneygeneral, or some one on his part; yet all the facts are before the Judicial Committee ; and, therefore, the only advantage of the Attorney-generals assistance is, that he may argue the case, and act as assessor to the court. In the Divorce Court it is far otherwise ; facts may be brought to the Attorney-general's know
; ledge which, if proved before the court, would at once defeat the attempts to obtain a sentence. The opposition to this plan was grounded on the assertion, that in many cases there would be no such information conveyed to the Attorney-general, and that in all cases there would be the expense of his attendance. Suppose this to fall upon the parties, it would be a very immaterial addition to their costs; but why should it not be borne by the public, if it is as necessary to protect the judges in the discharge of a most delicate and important office, as to pay them their salary for discharging its duties ? For the short time tbat this jurisdiction has existed, I have myself known two cases of conspiracy which the intervention of the Attorney-general would have at once made desperate ; and a third case has been stopped by a mere accident leading the court to call for a document which, without any accident whatever, must of necessity have been produced had the Attorney-general assisted.
“The Chancellor highly approved of this provision, and upheld it with his usual ability ; indeed he had experience of it from having attended in divorce cases, as well as from what he had long known of the procedure in our House. He had always been