considered, at least, juristical, if not judicial or juridical. But it has never, probably, been so prominently and distinctly asserted as by the Hon. J. P. Benjamin, of Louisiana, in his speech in the Senate of the United States, 11 March, 1858, on the Kansas Bill. And since, in stating what he justly regards as "fundamental" in the argument, the Senator so plainly presents that issue, in view of which this volume may be said to have been principally written, and also since he proposes to maintain his doctrine by that mode of reasoning which has herein before been used as legitimate, i. e., by an appeal to the history of jurisprudence in this country, and not by a priori assertions, the statement of his position is here given, as extracted from the printed speech, which bears the title, Slavery protected by the Common Law of the New World: guaranteed by the Constitution. Vindication of the Supreme Court of the United States.1

"Mr. President,―The whole subject of slavery, so far as it is involved in the issue now before the country, is narrowed down at last to a controversy on the solitary point, whether it be competent for the Congress of the United States, directly, or indirectly, to exclude slavery from the Territories of the Union. The Supreme Court of the United States have given a negative answer to the proposition, and it shall be my first effort to support that negation by argument, independently of the authority of the decision.

"It seems to me that the radical, fundamental error which underlies the argument in affirmation of this power, is the assumption that slavery is the creature of the statute law of the several States where it is established; that it has no existence outside of the limits of those States; that slaves are not property beyond those limits; and that property in slaves is neither recognized nor protected by the Constitution of the United

The last title was probably adopted for this speech, not so much in view of its being a vindication of the law of the majority of the Court in Dred Scott's case, as of its being partly a reply to Mr. Seward's censures, in the same debate, on the course of the majority of the Supreme Court as having been influenced by political considerations. All such matter of exception or defence is, of course, foreign te the purpose of this

treatise.

States, nor by international law. I controvert all these propositions, and shall proceed at once to my argument.

"The thirteen colonies which, on the 4th of July, 1776, asserted their independence, were British colonies, governed by British laws. Our ancestors in their emigration to this country brought with them the common law of England as their birthright. They adopted its principles for their government so far as it was not incompatible with the peculiarities of their situation in a rude and unsettled country. Great Britain then having the sovereignty over the colonies, possessed undoubted power to regulate their institutions, to control their commerce, and to give laws to their intercourse, both with the mother country and the other nations of the earth. If I can show, as I hope to be able to establish to the satisfaction of the Senate, that the nation thus exercising sovereign power over these thirteen colonies did establish slavery in them, did maintain and protect the institution, did originate and carry on the slave trade, did support and foster that trade, that it forbade the colonies permission either to emancipate or export their slaves, that it prohibited them from inaugurating any legislation in diminution or discouragement of the institution ;' nay, more, if at the date of our Revolution I can show that African slavery existed in England as it did on this continent, if I can show that slaves were sold upon the slave mart, in the Exchange and other public places of resort in the city of London as they were on this continent, then I shall not hazard too much in the assertion that slavery was the common law of the thirteen States of the Confederacy at the time they burst the bonds that united them to the mother country."

§ 522. The brief historical summary of juridical acts, given in the continuation of this speech, upon which Mr. Benjamin

1 The Senator, to maintain the legality of slavery in the Territories, attributes the existence of slavery in the colonies to a national law of the empire, a law derived from the powers vested by the public law of the colonial period in the crown and parliament of England. Mr. Justice Campbell's argument, maintaining that Congress has no power upon the subject, (19 Howard, 501,) involves the doctrine that its existence depended upon the local legislatures, and that the exercise of power over slavery by the imperial Government was rightfully resisted as usurpation. On this point compare, ante, § 215 and note, § 243.

relies, contains no essential fact which has not been considered more at length in the previous chapters of this work. The observations already made herein, on the question whether slaves are property in view of the Constitutional guarantee, apply equally to the propositions here laid down by the Senator. For it has been shown that slavery, as a legal effect, depended on the common law having a national extent throughout the empire during the colonial period only, if at all, while it was attributable to the law of nations or the universal jurisprudence of the time; that it was only the slave condition of imported heathen African slaves, if of any, which was so maintained or recognized by that law; that the condition of the Americanborn negro, whether free or slave, depended entirely on the powers held by the local colonial Governments, and that if the slavery of such persons was within the colonies sustained by a common law, that law was still only the local law of a colony, and one distinguishable from the common law having national extent in all parts of the empire.1

It follows, therefore, that when in any several jurisdiction or forum of the United States, either a State or a Territory of the United States, the question is of the judicial recognition of slavery, as the condition of a person introduced from some other jurisdiction or forum wherein such slavery had been lawful, such slavery cannot be recognized or maintained simply on the ground that it is a status known to and recognized by the common law prevailing in such State or Territory as its local law, or “law of the land," where not prohibited by any statute.2

§ 523. The question would be determined by those principles of private international law, including the so-called rule of comity, which have been set forth in the second chapter. These principles are indeed common law; but if by applying them slavery should be recognized, such recognition would still be distinguishable from the judicial allowance of slavery under the doctrine, contained in Mr. Benjamin's propositions, that slavery is recognized by universal jurisprudence entering into all common

Compare ante, §§ 281, 284, 288, 292, 293, 315, 316.

1

2

Compare ante, §§ 95, 96, 110, 113, 201.

law known in this country, and that it should, in the case supposed, be regarded as an effect already known to the law having territorial extent in the forum, and one which is maintained under that law, irrespectively of the distinction of domicil.

2

In any territorial jurisdiction of the United States, which should be like a State of the Union in having a local law, the continuance of the rights and obligations of masters and slaves emigrating thither would depend upon the question whether, by that law, rights inconsistent with slavery were attributed universally, or to all natural persons. If within the national dominion there can be any territory which, like the colonies at the time of their first settlement, is vacant of any local law, there could not, in such territory, be any such universal attribution of rights. And, in such case, it would appear that, on elementary principles, all rights and obligations of persons there found which had existed in their former domicil would continue to exist, so far as the relations to which they were incident continued to be physically possible in such territory. Slavery, if so recognized in such territory might, indeed, be said to exist therein, or be carried thither, by the operation of a common law principle, a principle of unwritten jurisprudence. But its existence would not be attributable to common law in the ordinary sense of customary law having territorial extent in some one jurisdiction or forum. It would not have been recognized as a condition supported by universal jurisprudence, the law of nations; as the slavery of captured Indians and imported heathen Africans had been recognized in the colonial law.

§ 524. A principal obstacle to agreeing on any conclusion in these questions of slavery, one fully equal in effect to that caused by the prejudices or sympathies of disputants, is occasioned by the want of terms by which to express existing distinctions. Thus the term positive law is sometimes used, as in this work, to designate any rule which, as made coercive by some state, is so distinguishable from mere natural equity or natural justice; such positive law being judicially derived either from the several juridical action of that state, creating a jus proprium,

1

Compare ante, §§ 88-92, 113-118.

2

Ante, §§ 123-126.

which may be either statute or customary law, or from universal jurisprudence, the unwritten law of nations. But the same term, positive law, is also very often used to designate statute law or positive legislation, as distinguished from customary or unwritten law derived by the judicial application of natural reason.

1

Now since it has repeatedly been said by judges both in states where it is lawful and where it is not, that slavery rests on "positive law," the proposition is assumed by many persons as admitted, as for example, according to Senator Benjamin in the speech referred to, by the Senators on the other side "in nearly all their arguments, that slavery is the creature of positive legislation and cannot be established by customary law or usage." Against which assumption Mr. Benjamin appropriately cites Lord Stowell in the case of the slave, Grace, 2 Haggard's R. 105, ante, p. 194, that in the English colonies slavery was legal by customary law alone.

1

The leading authority being Lord Mansfield, in Somerset's case. There is hardly any other decision in which the phrase positive law, simply or without qualification, is used to designate the origin of slavery. But in Neal v. Farmer, 9 Geo. R. 578, the court cites a large number of English and American cases as holding the same doctrine. In most of the cases, such other terms are used alone or are made to qualify the term positive law, as to designate, with sufficient accuracy, a jus proprium. Thus, Holroyd, J., in Forbes v. Cochrane, 2 Barn. and Cress. 461, "the plaintiff claims a general property in them * **"and he claims this property as founded not upon any municipal law of the country where he resides, but upon a general right," *** "assuming that there may be such a relation, it can only have a local existence, where it is tolerated by the particular law of the place, to which all persons there resident are bound to submit. Now if the plaintiff cannot maintain this action under the general law of nature independently of any positive institution, then his right of action can be founded only upon some right which he has acquired by the law of the country where he is domiciled." P. 463, "the right of the master, which is founded on the municipal law of the particular place only, does not continue." Here the term municipal law is used to express the conception of a jus proprium; and see Lunsford v. Coquillon, 14 Martin's La. Rep, 402; Prigg's case, 16 Peters, 611, “The state of slavery is deemed to be a mere municipal regulation, founded on and limited to the range of territorial laws." Rankin v. Lydia, 2 Marshall, (Ky.) 470, "positive law of a municipal character." Curtis, J., 19 Howard, 624; ante, p. 550. In Commonw. v. Aves, 18 Pick 212, Judge Shaw employs positive law in the same sense of a local or particular law distinguished from one generally recognized. For referring to Lord Mansfield's dictum that slavery, being odious and against natural right, cannot exist, except by positive law, he observes: "But it clearly admits that it may exist by force of positive law. And it may be remarked, that by positive law in this connection may be as well understood customary law as the enactment of a statute; and the word is used to designate rules established by tacit acquiescence or by the legislative act of any state, and which derive their force and authority from such acquiescence or enactment, and not because they are the dictates of natural justice and as such of universal obligation."

So in Hildreth's Despotism in America, p. 212; Spooner's Unconstitutionality of Slavery.