The Law of Freedom and Bondage in the United States, Volume 1

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Contents

Comprehensiveness of the term jurisprudence
15
Use of the term law of nations 99
17
Of the distinction between persons and things
18
Relations consist of rights and obligations
19
Rights of persons and rights of things distinguished
20
Public and private law distinguished
21
Law applies to territory and to persons
22
National and international law are thus differently applied
23
Origin of lau 28 Natural reason acknowledged in positive law
24
4
25
Of customary law
26
xxxiii
27
Of the authority of private jurists
28
Of the authority of universal jurisprudence
29
Unwritten or customary law a part of positive law
30
In what manner international law is derived
32
CHAPTER VI
33
In what manner international law operates
34
The law of nature may be variously received
35
Of individual and relative rights
36
Of liberty as an effect of law
37
The legal and the ethical idea and objective and subjective apprehen sion of liberty
38
SEC PAGE 43 Of the condition of freedom and its contraries
39
Use of the term slavery
42
Different kinds of slavery distinguished
43
International law divided into two portions
44
The first portion described a law in the secondary sense
45
The second portion described a law in the primary sense
46
The exposition of law is always historical
47
Of native alien and domiciled subjects
48
The law has different extent to different persons
50
56 Its extent to persons depends on the will of the state
51
CHAPTER II
53
Private persons are distinguished by axiomatic principles of universal jurisprudence
54
Statement of the first two of these maxims
55
A distinction among the relations recognized in international law
56
Difficulty of finding a rule greater in respect to one class of relations than the other
57
Statement of the third maxim
59
The international law how distinguishable from internal law
60
Under which class of relations are those of which status or condition is an incident 74 The recognition of anterior subjection to a foreign law 75 Of ri...
63
Though disallowed slavery is not supposed to be contrary to justice
71
Duty of judicial tribunals applying international law 76 The tribunal must ascertain the will of the state in the case
76
Consequence of the recognition of the jural character of the laws of other states
77
True reason of the rule called comity
78
Hubers three maxims
79
Judicial comity is in fact customary law
80
How later jurists have followed Huber
81
Storys version of Hubers third maxim
82
Fælix concurring with Story
83
Practical effect of the ordinary doctrine of judicial comity
84
Judicial measure of the allowance of foreign laws under what is call ed comity
85
Laws of different origin but similar in effect
86
Laws of different origin and dissimilar in effect
87
The effect of foreign laws limited by laws having universal personal
88
Of exceptions to the extent of laws otherwise known as universal in extent
89
Effect of such exception in the allowance of foreign law under what is called comity
90
Individual rights may be attributed by laws of universal personal extent
91
Laws of universal personal extent discriminated by judicial action 93 The juridicial action of all or many nations is a criterion of the ex tent of laws
92
Universal jurisprudence developed by the application of interna
93
Universal jurisprudence cognizable from the history of the law among all or many nations
94
Universal jurisprudence derived a posteriori
95
Laws of personal condition or status may receive international
100
The recognition of chattel slavery under comity limited by universal
107
CHAPTER III
114
Of the force of legislative declarations by the local governments
123
Of the common law having personal extent as a political guaran
130
The liberties of the English colonists rested on common law
136
The relation of master and servant under the law so transferred
142
SEC PAGE
148
The same doctrine recognized in the jurisprudence of all the
154
130
162
Of difference of religious creed as a foundation of chattel slavery
163
Difficulty of deriving a rule of universal jurisprudence on this
169
Of the dictum in English air slaves cannot breathe and a statute
180
Case of Pearne v Lisle Hardwicks decision
186
TO WHOM THE LAW OF ENGLAND DID NOT EXTEND AS A PERSONAL
195
Necessity of recurring to principles of universal jurisprudence
201
liberty by English law
203
Term colonists in the charters how to be understood
207
National law affecting the subject distinguished from local law
213
Of the Roman law of manumission
214
Legal incidents of the condition of such persons
220
SEC PAGE
233
219
247
220
254
230
309
Of an international or quasiinternational law arising from such
315
alien of African or Indian race
321
becomes applied
326
Of the deficiency of legislative enactments on this topic
329
Authorities on the law of the Netherlands
335
The customary law of France as exhibited in the case of Verdelins
342
priori
348
Other proof from Vattel of the inapplicability of the rule
350
The doctrine of universal jurisprudence anteriorly applied to
356
CHAPTER IV
358
Nor by English common law nor the international rule of transit
362
of the evidence of the existence of a principle of universal juris
364
SEC PAGE
365
How a natural law is distinguishable in this connection
371
Nor sustained by the law having a national and personal extent
372
case
377
SEC PAGE
382
OTHER THAN THOSE RESEMBLING SOMERSETS CASE
383
The owners property was not quasiinternationally guaranteed
389
The possession of sovereign power is not determined by law in
396
International law divided into domestic international law and for
401
National and local power were not simultaneously transferred
403
SEC PAGE
409
CHAPTER XII
415
Liberty as secured by the Constitution is definable only by refer
420
Of the manner in which personal condition may depend on public
421
Distribution of power to modify the effects of common law includ
426
Common law in the Territories is a local law
432
Inconsistencies in that opinion
436
Where the functions of sovereignty are divided the judicial is
437
The slavetrade not then contrary to the law of nations in
442
National municipal law of the United States includes international 1
445
Powers of the States in respect to naturalization of domestic aliens
451
SEC PAGB
456
Enumeration of such limitations in the Constitution on the powers
463
The individual members are known by the then existing laws
471
State Constitutions like that of the United States are both evi
474
Distinction of the early State Governments as restricted or not
480
Law is in extent either territorial or personal
486
tion of sovereignty
487
Of the Roman law as an exposition of universal jurisprudence
492
Illustration in civil and criminal jurisdiction
493
The States may limit the application of their several judicial
499
Jurisdiction is to the tribunals matter of duty if of power
501
How judicial action may be discriminated
507
222
513
The private law of the colonics was not abrogated by the Revolu
521
SEC PAGE
523
Supposed sanction for legislation reducing free blacks to slavery
527
Opinions of Justices Wayne and Grier
533
SEO PAGK 497 Mr Justice Campbells opinion
535
The laws of the several States have no territorial extent beyond
536
Mr Justice Catrons opinion
539
Views taken by Justices McLean and Curtis
541
Mr Justice McLeans opinion
542
Mr Justice Curtis opinion
546
Doctrines of the equality of the States in respect to the territory of the United States
547
Of the doctrine as a principle of law
554
Of the doctrine as a political principle
555
Comparison of the views of the majority of the court on this point in Dred Scotts case
558
That in this case no principle for denying the power was support ed by a majority of the court
559
Fallacy in the doctrine that in the Constitution slaves are referred to as property by local law
560
Fallacy in the doctrine that by its operation slaves are property under national law
561
Of the support of the power by its former customary exercise
562
Of the rejection by the Chief Justice in this question of the laws and usages of nations 503
563
Necessity of a customary standard of property
564
The customary standard must be identified with the national juris prudence
565
The standard is found in the customary law of all civilized nations
566
Or in the universal jurisprudence of all juridical nations
567
Which was part of the American law having national extent and quasiinternational effect
568
Distinction of a universal jurisprudence peculiar to the United States
569
That slavery rests on national common law is implied in Chief Justice Taneys opinion
570
Senator Benjamins assertion of the doctrine in the Kansas debate
571
Ambiguous use of the term positive law
575
Illustrated in an extract from Senator Benjamins speech
581
The three functions of sovereignty are necessarily combined in
588
Variance of Judge Campbells theory with the local character
595
Political liberty in the States regarded as a private right depends
601
145
603
84
604
81
608
No such effect has been judicially ascribed to such national decla
610
85
616

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Page 472 - The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included and formed no part of the people who framed and adopted this Declaration...
Page 520 - The purposes for which men enter into society will determine the nature and terms of the social compact ; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature and ends of legislative power will limit the exercise of it.
Page 127 - It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime or criminal; this being the place where that absolute despotic power which must in all governments reside somewhere is intrusted by the Constitution of these kingdoms.
Page 128 - law itself, (says he,) [*91] you at the same time repeal the prohibitory clause, which guards against such repeal ( />)." 10. Lastly, acts of parliament that are impossible to be performed are of no validity : and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void (32).
Page 280 - That the laws made by them for the purposes aforesaid shall not be repugnant, but, as near as may be, agreeable to the laws of England, and shall be transmitted to the King in Council for approbation, as soon as may be after their passing; and if not disapproved within three years after presentation, to remain in force...
Page 514 - And to be commanded we do consent, when that society whereof we are part hath at any time before consented, without revoking the same after by the like universal agreement. Wherefore as any man's deed past is good as long as himself continueth ; so the act of a -public society of men done five hundred years sithence standeth as theirs who presently are of the same societies, because corporations are immortal ; we were then alive in our predecessors* and they in their successors do live still.
Page 246 - That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Page 463 - But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government.
Page 118 - Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions.
Page 259 - No man's life shall be taken away, no man's honor or good name shall be stained, no man's person shall be arrested, restrained, banished, dismembered, nor any...

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