diction,' still it is absolutely impossible, from the nature of positive legislation, that its enactments should be judicially applied without reference to unwritten or customary rules,2 and the meaning of words in the written Constitution cannot be ascertained without some reference to an unwritten jurisprudence. Even should there be none such particularly identified with the juridical history of that particular possessor of sovereign power whose written law is to be applied, an unwritten jurisprudence is still judicially cognizable, that derived from the juridical history of civilized nations, the law of nations, universal jurisprudence; and hence, "the laws and usages of other nations and the writings and reasoning of statesmen and eminent jurists," customarily received by the judicial tribunals of other nations, are to be referred to as an exposition of natural reason, superior, for juridical purposes, to the individual opinions of the tribunal, because presumptively accepted by the possessor of sovereign power whose will it proposes to execute.'

And that such reference is recognized by the Court, in this case, as legitimate, particularly with reference to a standard of property and in distinguishing between natural persons as being either legal persons or chattels, appears from that portion of the Opinion in which it is held that negroes are not citizens, page 407 of the report; referring to "the public history of every European nation;" that the negro "was bought and sold and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race," &c.5

§ 515. The reference is to the law of nations in the sense of universal jurisprudence, the jus gentium in that sense in which the term was used by the Roman jurists, a law always presumptively existing in the municipal (national) law of every civilized country. In determining then what is or what is

1 Ante, p. 479–482. Wheaton v. Peters, 8 Peters, 591. Curtis' Comm. § 19, and cases noted.

2 Lieber's Legal and Political Hermeneutics, ch ii. 3 Ante, § 428. 1 Kent's Comm. 336.

See ante, p. 207, note.

4

Ante, §§ 33, 34, and pp. 200-202.

Ante, §§ 94, 95, 100.

not property, as secured against the national Government by the private law of the Constitution, the criterion is a universal jurisprudence, gathered, in the first instance, from the judicial practice of all nations, and, more definitively, those principles which the possessor of sovereign power, for whom the national judiciary acts, has before recognized as universal jurisprudence embraced in its own common, customary, unwritten law, and recognizable especially in that portion which is applied as private and public international law.1

§ 516. It being a rule identified with the will of the integral nation, in distinction from any dependent for its authority on the several will of any State or States of the Union, which is to be ascertained, the principles, maxims, or rules affecting status or the condition of private persons, which the national judiciary must thus recognize as universal principles and common law, are to be found only in the history of law having the same character and operating with national extent, and quasi-international effect in the British empire, the revolting colonies and the thereafter succeeding independent States of the American Union; and, as such, distinguishable from the common law which is historically known to have prevailed in any one or more States of that Union.3

§ 517. This law is mutable, as every other rule resting on human authority. And a tribunal determining to-day, what is property by the law of nations, is bound to take the law of nations of to-day, not that of some previous generation or previous century. It is a rule which depends for its juridical force, or for its acceptance as a judicial rule, not on the opinion of bygone nations and states, however powerful, or however wide their dominion or the fame of their arts, their arms, or their jurisprudence, but on the presently continuing assent of legislating nations. So far as the law of imperial Rome is now the index of the jus gentium, it is so not because it is, in itself, reason or natural justice; but because it has been, and so far only as it has been, continuously accepted by modern civilized 2 On this compare ante, ch. xii.

1

Ante, §§ 173, 176, 290.

3

Compare ante, ch. xiv.

states as their index of natural reason.

As the jus gentium

of heathen Rome, making the captive and the child of an enslaved mother, of European or Caucasian race, a property, has been changed in the jurisprudence of Christian nations, so the law of nations of the modern world, including the nations colonizing America in the sixteenth, seventeenth, and eighteenth centuries, has changed in respect to negroes held in servitude. Property in negro men as chattels, wherever they are by law chattels or property, rests now only on the local law, the jus proprium, common law or statute law, as the case may be, of some one state or possessor of sovereign power over the condition of natural persons; it has no foundation in universal jurisprudence, the common law of the civilized Christian world.

The proof of this has been given in the former part of this volume.

§ 518. And if it should be objected, that in this reference to a law of nations or a universal jurisprudence presumptively recognized as a jural rule by the nation or by the people of the United States, the authors of the American Constitution, to determine what is or is not property in view of the constitutional guarantee, not the law of nations of to-day, nor yet that of the whole civilized world is the test, but one peculiar to the people of the United States; or, that one recognized among the States at the time of the formation of the Constitution of the United States must be received in that connection; then the history of the law of the colonies and States is to be referred to, not as exhibiting the several or local laws of the States or their political predecessors, but that law which was imperial or national in its authority, and intercolonial, national, or quasi-international in its extent in the British empire and among the States at the period of the formation of the Constitution.

§ 519. The juridical history of the States, as connected with conditions of freedom and its contraries, from the period of separation from Great Britain, (the point of time to which it has been brought in the sixth chapter,) to the date of the formation of the Constitution, is to be given hereafter. It will be 1 Ante, p. 29.

there shown, and indeed it is too well known to be here stated as questionable, that the changes which occurred during that period in the private law of the States, were all such as favored or extended the rights incident to a free condition, and discouraged or removed the disabilities incident to its contraries. But, independently of such changes as modifying the law of nations or universal jurisprudence particularly identified with the juridical will of the constituent people of the United States, the international and quasi-international laws which prevailed as between the different parts of that empire in which the colonies had been included, to say nothing of the local laws of some districts, do not exhibit a criterion of property in natural persons, as recognized by the political predecessors of that people, different from that afforded during the same period by any more general law of nations.

That for many years before the Revolution (whatever may have been the principles sustaining the slavery of a heathen negro imported into any one of the colonies) the condition of an American-born negro held in involuntary servitude, whether chattel slave or bond person, and the correspondent rights of the master or owner rested exclusively on the local law, jus proprium, of some one several colony, and were not internationally recognized, in the several parts of the empire, as effects of universal jurisprudence, nor as such recognized by the common law of the nation, has, it is believed, been demonstrated in the former chapters, which contain the history of conditions of freedom and bondage in the colonies, and of their recognition or non-recognition in the international or quasi-international relations of the different portions of the empire.

§ 520. From the above argument it may appear that, in order to determine what is or is not property in view of the constitutional guarantee, it is necessary to discriminate an unwritten jurisprudence or a "common law" which may be judicially identified with the juridical will of the people of the United States, the authors of the written Constitution. And, in view of this circumstance, it seems that the assertion that slaves are property in view of that guarantee, independently of any

specific recognition of them as property in other parts of the instrument, is equivalent to an assertion, that, unless declared unlawful by positive legislation proceeding from the possessors of sovereign power to determine status or personal condition, (possessors known by the Constitution, regarded as evidence of the investiture of any sovereign power,) slavery is a lawful status in every part of the United States, whether a State or a Territory of the United States; or that (which is only stating the same doctrine under a different form,) when natural persons who, in any other jurisdiction or forum, have been by law in the relation of master and slave appear in any State or Territory of the United States, the right of the master and the correlative obligations of the slave and of all other persons, will continue in such State or Territory by the unwritten or common law prevailing therein, whether such master and slave do or do not acquire a domicil, unless such right and obligations have been prohibited by positive legislative enactment proceeding from the actual possessors of sovereign power to determine status or personal condition. And, it being assumed that the only possessors of sovereign power over status or personal condition, who are known under the Constitution, are either the people of an organized State of the Union legislating for such State, or Congress legislating for the Territories, &c., to such extent as may not have been prohibited by the Constitution, the doctrine is, further, (independently of the question whether slavery may be abolished by the power of Congress,) that in all Territory of the United States, now belonging or hereafter to be acquired, not included within the limits of an organized State of the Union, slavery is now and will be lawful under the local law thereof, that is both by the internal and the international law, the law applying to persons whether strangers or having a domicil therein.

§ 521. Although the opinion of Chief Justice Taney, in Dred Scott's case, supported by Justices Wayne and Grier, may be the solitary judicial authority sustaining the doctrine above stated, it has, with greater or less openness, been advanced on different occasions, during the twenty or thirty years last past, by persons, occupying stations which entitle their opinions to be