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that Lord Mansfield, in his final judgment, amplifies the subject largely. He extend his observations to the foundation of the whole system of the slavery code; for in passage he says 'that slavery is so odious that it cannot be established without posi tive law.' Far from me be the presumption of questioning any obiter dictum that fel from that great man upon that occasion; but I trust that I do not depart from th modesty that belongs to my situation, and I hope to my character, when I observe tha ancient custom is generally recognized as a just foundation of all law; that villenag of both kinds, which is said by some to be the prototype of slavery, had no other origin than ancient custom; that a great part of the common law itself in all its relations has little other foundation than the same custom, and that the practice of slavery, it exists in Antigua and several other of our colonies, though regulated by law, ha been in many instances founded upon a similar authority."

On one of the trials of the case of Oliver es. Weakly, in the U. S. Circuit Court, a case for harboring runaway slaves, Mr. Justice Grier said:-"On this subject Lord Mansfield has said some very pretty things, (in the case of Somerset,) which are often quoted as principles of the common law. But they will perhaps be found, by examination of later cases, to be classed with rhetorical flourishes rather than legal dogmas.” Newspaper Rep., and see American Law Register, vol. L Philadelphia, 1853.

HE ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES,-THE SUBJECT CONTINUED. PRINCIPLES DETERMINING THE CONDITION OF PERSONS TO WHOM THE LAW OF ENGLAND DID NOT EXTEND AS A PERSONAL LAW.

§ 192. Although the various rights and liberties which were known to the law of England as the privileges and immuities of a subject of English birth, and which are, in the third chapter, supposed to have been attributed to the English coloists in America, are ascribed in that law to an origin in natural reason, being often juridically called "the natural rights of Englishmen," their legal existence and enjoyment is still dependent on the sovereign will of the state; because, as has been shown in the first chapter, there is no natural rule having the force and power of law in juridical recognition, except as it forms part of the positive law-the law resting on the will of some sovereign political state or nation.' The legal conditions or status of private persons, under any national jurisdiction, whether determined by municipal (internal) or international law as before defined, are, within that jurisdiction, judicially held to be in accordance with natural reason, however widely the relations in which they consist may differ from those known to other jurisdictions. This is a result of the jural character of the state. But however natural they may be in an ethical point of view, that is, however consistent with the essential conditions

of human existence, these relations can be judicially known in any jurisdiction, (i. e., any territory wherein laws are judicially enforced,) only by a previous recognition of law in the ascer tained will of some state or national sovereignty, and of certain persons as its subjects, or as persons bound by its provisions. This law must be known both as territorial law-law operating within certain geographical limits, and as personal law-law operating on certain persons throughout the dominion of a certain national sovereignty.1

§ 193. It is for this reason that common law rights, or liberties, of private persons, though necessarily taken to be accordant with natural reason when attributed to persons born in England, were not judicially attributed, in the colonies, as by a personal law, except to those who had acquired those rights as jural rights under the territorial law of England; that is to say, subjects of English birth, and those aliens to whom, by international treaties, the terms of patents and charters for the plantations, and statutes of naturalization, the same personal law had been extended. And, since wherever laws of privilege or of disability have applied as personal laws they have generally an hereditable character, or are the law of a family as well as an individual, the same law of condition would, perhaps, on principles of common law origin, have continued to have a personal extent to their descendants.3 The claim of the descendants of English colonists to the benefits of the same personal law was,

See ante, § 26.

'Campbell vs. Hall, Cowp. 208. "The law and legislative government of every dominion equally affects all persons and all property within the limits thereof, and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the laws of the place." It is true that "the law and legislative power" has equal authority in respect to all persons and things, but it is not, in its operation, the same rule for all. Lord Mansfield said in continuation of the above," An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privilege distinct from the natives." This certainly could not have been said of the Indian territories of the empire, where the ancient laws applied to the native races. Compare Sir William Jones' various charges, in Calcutta, in vol. 3, Works, 4to. 1. 'The common law has been called "the greatest inheritance that the king and the subject have." See Bowyer's Univ. Pub. Law, p. 10,-" The common law is our birthright and inheritance,"-Story Commen. § 157,-" Freedom ** the inheritance of the inhabitants and their children, as if they were treading the soil of England."-2 Barn, and Cress., 463. "The laws of England are the birthright of the people thereof."-Stat., 12 & 13 Will. III., c. 2, The Act of Settlement. According to the ancient doctrine of the common law."-1 Bl. Comm. 128, notes Plowden.

66

ITS NATIONAL AND PERSONAL EXTENT.

197

however, as before shown, independently secured, by positive legislation, in the charters.

When this law of personal rights and liberties acquired also the character or extent of a territorial law in America, its authority as such was, strictly speaking, correspondent with the territorial limits of the separate colonies; being a territorial law for each singly; resting therein on the sovereignty vested in the local government and the Crown, or the Crown and Parliament, legislating for that colony only. Though, since the rights and privileges secured by this law had a like legal recognition in any part of the British empire, it had a certain general territorial extent also throughout all the colonies. But this took place, properly speaking, by reason of its personal character, and by its taking effect as a quasi international private law between those several jurisdictions; as will hereinafter be more particularly shown.

§ 194. In the various recognitions of the liberties of the colonists, which may be found either in patents and charters, or in colonial declarations and protests, it is to be observed that they are claimed or continued as prescriptive and hereditary; as being a consequence of national character, fixed by birth and descent; their foundation being nowhere based on principles assumed a priori, as a law of nature, but on precedent, custom and legislation. Whatever may have been the doctrines of the early colonists as to a foundation of legal rights and obligations in nature or revelation superior to that found in the common law, it cannot be said that they became sufficiently defined, or authoritatively expressed, to be considered in any degree a law of the land. There may probably be found in various instances

1 See ante, § 136.

*

'There were indeed two schools among the advocates of the liberties of the colonies; see Chalmers' Pol. Ann., p. 695. Jefferson, writing to Judge Tyler, Corresp. vol. IV., p. 178, (Randolph's ed.) said, "I deride, with you, the ordinary doctrine that we brought with us, from England, the common law rights. The truth is, we brought with us the rights of men, of expatriated men." In the same letter he advocates the rejection of all English decisions from the accession of George III., saying that this would give "the advantage of getting us rid of all Lord Mansfield's innovations, or civilizations, of the common law." If American law is based on the lawof-nature theory-is Mansfield or Jefferson the better authority; or will their agreement determine a point?

of colonial legislation some vague recognition of rights in individual members of society superior to legislative power, as in the preamble to the laws of Massachusetts Bay Colony, 1672: "Forasmuch as the free fruition of such liberties, immunities and privileges as humanity, civility and Christianity call for, as due to every man in his place and proportion, without impeachment and infringement hath been and ever will be the tranquillity and stability of churches and commonwealths, and the denial or deprival thereof the disturbance, if not ruin of both, it is therefore ordered by this court," &c. But though such declarations recognize a rule binding on the consciences of the authors and executors of human laws, they can have but little practical effect as a guarantee to the subject or citizen, while the demands of "humanity, civility and Christianity," and the "place and proportion" of every man are left undetermined, or to be ascertained by the actual holders of legislative and executive power; and such declarations might be consistently subscribed by the possessors of the most arbitrary authority.'

§ 195. The condition of those natural persons under the imperial and colonial dominion in America who had not, by national character or descent, a claim to the personal extent of the law of England, must also have been determined by positive law, that is, law derived either by the judicial application of natural reason, or from the positive legislation of those depos

'During the later part of the controversy between the colonists and the imperial government in respect to their political rights, there were indeed many instances in which the rights of the individual colonists were asserted on principles of wider extent. Some of these, which proceeded from public bodies, will be noticed hereafter. Otis, in his rights of the Colonies, p. 43, vol. I., Amer. Tracts, London, 1766, said: "The colonists are by the law of nature freeborn, as indeed all men are, white or black. There is nothing more evident, says Mr. Locke, than that creatures of the same species and rank, promiscuously born to all the advantages of nature and the use of the same faculties, should also be equal one among another, without subordination and subjection," &c. And p. 51: "Every British subject, born on the continent of America, or in any other of the British dominions, is by the law of God and nature, the common law and by Act of Parliament, (exclusive of all charters from the Crown,) entitled to all the natural, essential, inherent and inseparable rights of our fellow-subjects in Great Britain." But Otis's doctrine had not been law in the colonies. Mr. Locke, in his scheme of government for Carolina, expressly sanctions slavery, and in one of his dissertations contemplates it as a natural element in any civil state. See Locke's Works, vol. 2, p. 181. See 2 Kent's Comm. pp. 1, 2, as illustrating a very common want of discrimination in speaking on this point.