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

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Contents

Insufficiency of Blackstones definition of municipal law
12
Who may ascertain the law of nature for the state
13
Positive law and jurisprudence defined
14
Comprehensiveness of the term jurisprudence
15
Use of the term law of nations
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
Of the authority of judicial precedents
25
Of customary law
26
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
Of bonda of legal persons
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
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 máxims
55
A distinction among the relations recognized in international law
56
A necessary difference of international coöperation in determining these relations
57
Statement of the third maxim
59
The international law how distinguishable from internal law
60
Difference in the power of any one state to determine one or the other class of international relations 0
61
Difficulty of finding a rule greater in respect to one class of relations than the other
62
Under which class of relations are those of which status or condition is an incident
63
The recognition of anterior subjection to a foreign law
64
Of rights which may and which may not continue after a change of jurisdiction
65
The tribunal must ascertain the will of the state in the case
66
Consequence of the recognition of the jural character of the laws of other states
68
True reason of the rule called comity
69
Hubers three maxims 70 79 Hubers three maxims 80 Judicial comity is in fact customary law
71
How later jurists have followed Huber
73
Storys version of Hubers third maxim
74
Fælix concurring with Story
75
Practical effect of the ordinary doctrine of judicial comity
76
Judicial measure of the allowance of foreign laws under what is call ed comity
79
Laws of different origin and dissimilar in effect
80
The effect of foreign laws limited by laws having universal personal extent
81
Of exceptions to the extent of laws otherwise known as universal in extent
82
Effect of such exception in the allowance of foreign law under what is called comity
83
Laws of universal personal extent discriminated by judicial action
84
Universal jurisprudence cognizable from the history of the law among all or many nations
85
Universal jurisprudence derived a posteriori becomes applied a priori
87
These principles may operate as internal law as well as interna
88
Universal jurisprudence developed by the application of interna
93
Laws of personal condition or status may receive international
100
The recognition of the bondage of legal persons limited by the uni
107
OF THE ESTABLISHMENT OF MUNICIPAL NATIONAL LAW IN THE ENG
114
On a change of sovereigns the territorial law of a country con
123
colonists
129
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
risprudence
160
The traffic in negro slaves was recognized by all the maritime
166
The question might be differently answered at different times dur
172
It would be determined either as a question of the international
179
Cases of Smith v Brown and Cooper and of Smith v Gould Holts
185
Inconsistencies in that opinion
191
TO WHOM THE LAW OF ENGLAND DID NOT EXTEND AS A PERSONAL
193
The law applicable to the original inhabitants how derived
199
liberty by English law
203
Of such principles supporting the introduction of negro slaves
205
The condition of slavery an effect of the local law of a colony
212
National law affecting the subject distinguished from local law
213
Origin of the servitude of white persons for terms of years
218
221
265
Effect of a conversion to Christianity upon slavecondition how
268
138
270
Why universal jurisprudence must be taken as determining prop
271
223
273
225
282
227
291
486
302
The law applying to such persons is properly described as interna
322
The term servants in intercolonial agreements probably included
331
Authorities on the law of Germany
339
How Puffendorf and Vattel are commonly cited on this point
345
Inquiry into this why postponed
349
CHAPTER IX
355
139
357
Slavery therefore not supported by universal jurisprudence
361
SEC PAGE
365
ESTABLISIIMENT OF MUNICIPAL LAW IN THE COLONIES
366
How a natural law is distinguishable in this connection
371
Nor sustained by the law having a national and personal extent
372
Attempt to state the correct doctrine of international law in such
377
Necessary variety in the personal extent of law
380
THE SUBJECT CON
383
Opinion of Gudelin on this point
384
This international law is determined by the different sources of
386
TO FREEDOM AND ITS OPPOSITES ENTERING INTO THE COMMON
389
teed by a national law
390
How the possession of sovereign power may be determined
394
Powers of the States in respect to naturalization of domestic aliens 451
395
Change in the location of sovereign power which occurred in
400
SEC PAGE
401
The same integral nationality was manifested in the Revolution
406
SEC PAGE
409
CHAPTER XII
415
Liberty as secured by the Constitution is definable only by refer
420
Distribution of power to modify the effects of common law includ
426
law
429
Common law in the Territories is a local law
432
Argument that in this connection the term means any free person
435
Of the evidence of the existence of a principle of universal juris
437
CHAPTER XIII
438
test of power
439
The slavetrade not then contrary to the law of nations in
442
The distribution of power over status is not the same as during
445
eign international law
455
SEC PAGB
456
Effect of a universal attribution of any rights in the Constitution
461
The private law of the colonies was not abrogated by the Revolu
467
BEC PAGE
474
Of the Roman law as an exposition of universal jurisprudence
492
A principle of universal law supporting the jurisdiction in all cases
496
Jurisdiction is to the tribunals matter of duty if of power
501
How judicial action may be discriminated
507
222
513
Presumption that the existing State Governments are republican
515
Similarity of this inquiry to that of the extent of the power
521
SEC PAGZ
523
Supposed sanction for legislation reducing free blacks to slavery
527
SEC PAGK 497 Mr Justice Campbells opinion
535
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
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 laio
575
Illustrated in an extract from Senator Benjamins speech
581
Of Lord Stowell and Judge Story as cited by Senator Benjamin
586
Inconsistency in denying the legislative power in Congress
591
Limitation of the view hereafier to be taken of liberty and slavery
597
Political liberty in the States regarded as a private right depends
601

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Page 259 - 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 the
Page 428 - where no government sufficient to the exigencies of their affairs has been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general.
Page 432 - with the resolutions and letter accompanying the same, be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof, in conformity to the resolves of the convention made and provided in that case.
Page 262 - To the end that the body of freemen may be preserved of honest and good men: It is ordered that henceforth no man shall be admitted to the freedom of this commonwealth, but such as are members of some of the churches within the limits of this jurisdiction.
Page 568 - in the Constitution itself, that when it confers on Congress the power to make all needful rules and regulations respecting the territory belonging to the United States, the exclusion or the allowance of slavery was excepted ; or if any thing in the history of this provision tends to show
Page 488 - any form of government becomes destructive of those ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers
Page 437 - The words ' people of the United States' and ' citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the
Page 120 - such just and equal laws and ordinances, acts, constitutions and officers from time to time as shall be thought most meet and convenient for the general good of the colony;
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 in all governments
Page 454 - Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by

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