THE LAW OF NEGRO SLAVERY. I PROPOSE to consider the Law of Negro Slavery as it exists in the United States of America; to examine into its origin, its foundation, and its present condition; to note the striking differences in the legislation of the various slaveholding States, and occasionally to suggest amendments to the existing laws. WHAT CHAPTER I. WHAT IS SLAVERY, AND ITS FOUNDATION IN THE NATURAL LAW. § 1. Absolute or Pure Slavery is the condition of that individual, over whose life, liberty, and property another has the unlimited control. The former is termed a slave; the latter is termed the master. Slavery, in its more usual and limited signification, is applied to all involuntary servitude, which is not inflicted as a punishment for crime.' The former exists at this day in none of the civilized nations of the world; the latter has, at some time, been incorporated into the social system of every nation whose history has been deemed worthy of record. In the former condition the slave loses all personality, and is viewed merely as property; in the latter, while treated under the general class of things, he possesses various rights as a person, and is treated as such by the law.3 § 2. A preliminary inquiry presents itself, and demands our first consideration, viz.: By what law or authority does this dominion of one man over another exist? by the law of nature, or by municipal law? And a satisfactory reply to this inquiry is absolutely necessary to the true resolution of many The definitions of slavery have been various. According to the Institutes it was "constitutio juris gentium, quâ quis domino alieno, contra naturam subjicitur." This definition was adopted verbatim from the Stoic philosophers. See Heinec. Opera V, p. 20. Heineccius defines slavery as follows: "Servi sunt personæ; qui ad dominorum utilitatem operis suis, vel pro certâ mercede alimentisque, vel pro solis alimentis promovendam obstricti sunt." Jus Nat. et Gent. cap. iv, § 77. The Civil Code of Louisiana defines a slave to be "one who is in the power of a master, to whom he belongs." Arts. 35 and 173. • See Preliminary Sketch, &c. 8 Among the Romans, the slave was classed as a thing: Res. He was "Homo sed non persona." Heinec. Elem. Jur. Lib. I, § 75. He was considered "pro nullo et mortuo, quia nec statu familiæ nec civitatis nec libertatis gaudet." Ibid. § 77. See also Kaufmann's Mackeldey; State v. Edmund, 4 Dev. 340; Neal v. Farmer, 9 Ga. Rep. 582. of the perplexing questions which arise from that relation. In the laws of Henry I, we find the declaration, "servi alii naturâ, alii facto, alii empcione, alii redempcione, alii suâ vel alterius dacione servi." The Institutes, on the contrary, declared all slavery to be" contra naturam," and this declaration, which might be true of a system which ignored entirely the existence of the slave as a person, has been almost universally adopted by courts and jurists. Upon the investigation of the truth of this proposition we propose to enter. § 3. That slavery is contrary to the law of nature, has been so confidently and so often asserted, that slaveholders themselves have most generally permitted their own minds to acknowledge its truth unquestioned. Hence, even learned judges in slaveholding States, adopting the language of Lord Mansfield, in Somerset's case, have announced gravely, that slavery being contrary to the law of nature, can exist only by force of positive law. The course of reasoning, by which this conclusion is attained, is very much this: That in a state of nature all men are free. That one man is at birth entitled by nature to no higher rights or privileges than another, nor does nature specify any particular time or circumstances under which the one shall begin to rule and the other to obey. Hence, by the law of nature, 3 1 Ancient Laws and Institutes of England; Leges Henr. I, ch. lxxvi, § 3. For the modification or explanation of this expression in the Institutes, see post: § 12. Case of the Antelope, 10 Wheat. 120; State v. Jones, Walker's Miss. Rep. 83. no man is the slave of another; and hence all slavery is contrary to the law of nature. § 4. For a proper inquiry into the truth of this proposition, it becomes very important that we should have a definite understanding of what is meant by the law of nature. Jurists have declared it to be the only true foundation of all law. International law is defined to be but the law of nature as applied to the conduct and affairs of nations. Philosophers have vied with each other in pronouncing encomiums upon its pure morality and unadulterated justice; and in the prophetic vision of the greatest of Roman orators, it was calculated to bind the world in one great bond of justice, when, in process of time, there should be "non alia lex Romæ, alia Athenis, alia nunc, alia posthac, sed una lex et sempiterna prevalebit." Hooker, in strains no less sublime, has said, "Of this law, no less can be said than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, the greatest as not exempted from her power; both angels and men, and creatures of what condition soever, though each in different sort and manner, yet all, with uniform consent, admiring her as the mother of their peace and joy." § 5. Yet we find it very difficult to cull from them all, a clear, concise, tangible definition of what is meant by the law of nature. The Roman lawyers and others applied the term to that "law which nature teaches all living creatures," thereby causing ! Ecclesiastical Polity, conclusion of Book I. it to include all animals, beasts as well as men.1 To this others have demurred, and insist that law can be applied only to creatures who have reason and will, to perceive an obligation and to adapt their acts accordingly. And Potgiesseri very properly observes, that even when applied to men it assumes a double aspect: "Vel, ut concipiuntur omnes et singuli homines in naturali libertate, nullique imperio subjecti vivere; vel, ut intelliguntur cum aliquibus tantum in societatem civilem coivisse, cum reliquis autem nullo, nisi communi humanitatis vinculo colligari." § 6. As great diversity exists when we come to examine the rules deduced from this law. Hobbes found one of its fundamental rules to be, that war was the natural condition of mankind. Montesquieu, on the contrary, declares peace to be the first law of nature. Cicero, as we have seen, supposed its obligations to be sufficient to be a rule of conduct for all 'Just. Lib. I, tit. 2. "Jus naturale," says Ulpian, "est quod natura omnia animalia docuit." Puff. Bk. II, ch. iii, §§ 2, 3; Ward's Law of Nat. vol. i, 41. St. Ambrose, upon this principle, declared the copulation of asses and mares, by which mules are produced, forbidden, the same being an unnatural connection. Hexæmeri, Lib. V, c. 3, quoted by Puff. 2 Puffendorf, Bk. II, ch. iii, § 2; Rutherforth's Just. I; Ayliffe's Civil Law, Bk. I, tit. 2. Thus Hesiod, Op. & Dier. Lib. I: "This law did Jove for human race ordain; The beasts, the fishes, and the feathered train, De Statu Servorum, Proleg. § 3. 4 Montesquieu, Spirit of Laws, Bk. I, ch. ii. |