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

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Contents

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
In what manner international law operates
34
The law of nature may be variously received
35
Of individual and relative rights 9
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
Use of the term slavery
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 maxims
55
A distinction among the relations recognized in international law
56
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
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
Judicial comity is in fact customary law
71
How later jurists have followed Huber
73
Storys version of Hubers third maxim
74
Felix 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
SEC PAGE
95
Judicial allowance of effects ascribed to universal jurisprudence
96
How laws of universal personal extent may be judicially discrim
102
Laws of personal condition or status may receive international
108
Action of judicial tribunals distinguished from the autonomic
112
The common law of England accompanied the English colonist
118
Of the common law having personal extent as a political guaran
124
The entire body of common law was not as a personal law trans
126
The common law of England had the character of a national
129
The right of property under this personal law existed only in refer
133
Of universal jurisprudence affecting personal condition forming
139
THE ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIESTHE SUBJEOT
142
Conception of jurisprudence by the civilians as including ethics
145
SEO 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
Difficulty of deriving a rule of universal jurisprudence on this
169
Why the common law of every state must exhibit its own recep
173
English statutes recognizing the lawfulness of commerce in negro
176
Case of Chambers v Warkhouse
182
Attempted statement of the legal distinction in these cases
189
443
243
219
247
220
254
221
265
Effect of a conversion to Christianity upon slavecondition how
268
Why universal jurisprudence must be taken as determining prop
271
223
273
225
282
227
291
SEC PAGE
294
229
297
230
309
SEC PAGE
314
Origin and continuance of law determining the condition of
320
The law applying to such persons is properly described as interna
326
OF THE PRIVATE INTERNATIONAL LAW OF THE COLONIAL PERIODTIE
328
Of the deficiency of legislative enactments on this topic
329
Conditions not so supported may still be sustained by what is called
333
Authorities on the law of the Netherlands
335
Of the distinction of race as noticed or not in these authorities
340
His limitation of the extent of this right
347
Inquiry into this why postponed
349
Quality of political liberty variable according to its distribution
353
CHAPTER IX
355
Slavery therefore not supported by universal jurisprudence
361
Supremacy of the national judiciary in determining the law con
365
Effect of former international recognitions of slavery
367
The recognition of chattel slavery under comity limited by universal
368
Nor sustained by the law having a national and personal extent
372
Application of the foregoing to Lord Mansfields reasons for
373
Attempt to state the correct doctrine of international law in such
377
Necessary variety in the personal extent of law
380
OTHER THAN THOSE RESEMBLING SOMERSETS CASE
383
66
384
This international law is determined by the different sources of
386
that law
389
The possession of sovereign power is not determined by law in
396
Change in the location of sovereign power which occurred in
400
Domestic international law subdivided
402
The same integral nationality was manifested in the Revolution
406
SEC PAGE
420
How State sovereignty must yet be independent of judicial power
430
Of its extent to cases under certain laws and cases between certain
432
Inconsistencies in that opinion
436
The Constitution of the United States a part of the national
445
Applied in the United States to two classes of aliens called foreign
446
Public and private character of international law comprehended
452
SEC PAGB
456
Enumeration of such limitations in the Constitution on the powers
463
The individual members are known by the then existing laws
471
May still not be recognized though a bondage exists under the local
472
Of that international law which is derived from the several jurid
473
Political liberty as a personal right is not determined by the Con
474
The laws of the several States have no territorial extent beyond
477
Distribution of power to modify the effects of common law includ
478
Twofold nature of the Constitution being evidence of fact and
479
The States determine the status of persons in respect to the action
484
A separate judicial power follows from the constitutional distribu
487
Illustration in civil and criminal jurisdiction
493
The States may limit the application of their several judicial
499
The State judicial function is here subordinate to the national
503
The exterior application of international law is not within the
509
The distribution of power over status is not the same as during
520
The private law of the colonies was not abrogated by the Revolu
521
Historical proof that slavery rests on local common law
522
Supposed sanction for legislation reducing free blacks to slavery
527
Illustrated in an extract from Senator Benjamins speech
528
Opinions of Justices Wayne and Grier
533
The idea that the national Government may remain neutral in
534
Mr Justice McLeans opinion
542
Of the doctrine as a principle of law
554
That in this case no principle for denying the power was support
559
The customary standard must be identified with the national juris
565
That slavery rests on national common law is implied in Chief
570
International law in the Territories regarded as jurisdictions having
575
Variance of Judge Campbells theory with the local character
581
Inconsistency of the conclusion with the doctrine to which it
588
Political liberty in the States regarded as a private right depends
601
Reasons for not first distinguishing those laws as either national
604
Quality of the power held by the Government of the United States 423
605
No such effect has been judicially ascribed to such national decla
610

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Page 370 - That the said report 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 430 - The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included and formed no part of the people who framed and adopted this Declaration...
Page 115 - 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 must in all governments reside somewhere is intrusted by the Constitution of these kingdoms.
Page 477 - ... there is a difference between property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments may exercise ove'r it, have been dwelt upon in the argument. But in considering the question before us, it must be borne in mind that there is no law...
Page 470 - The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature, and ends of legislative power will limit the exercise of it.
Page 116 - law itself, (says he,) [*91] you at the same time repeal the prohibitory clause, which guards against such repeal ( />)." 10. Lastly, acts of parliament that are impossible to be performed are of no validity : and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void (32).
Page 254 - That the laws made by them for the purposes aforesaid shall not be repugnant, but, as near as may be, agreeable to the laws of England, and shall be transmitted to the King in Council for approbation, as soon as may be after their passing; and if not disapproved within three years after presentation, to remain in force...
Page 496 - They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables congress to make all needful rules and regulations respecting the territory belonging to the United States.
Page 466 - And to be commanded we do consent, when that society whereof we are part hath at any time before consented, without revoking the same after by the like universal agreement. Wherefore as any man's deed past is good as long as himself continueth ; so the act of a -public society of men done five hundred years sithence standeth as theirs who presently are of the same societies, because corporations are immortal ; we were then alive in our predecessors* and they in their successors do live still.
Page 244 - It is also agreed that the commissioners for this confederation hereafter at their meetings, whether ordinary or extraordinary, as they may have commission or opportunity, do endeavor to frame and establish agreements and orders in general cases of a civil nature...

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