Untitled - African American History

CCXXX APPENDIX.
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 satis-
factory reply to this inquiry is absolutely necessary to
the true resolution of many of the perplexing questions
which arise from that relation. In the laws of Henry I,
we find the declaration, " Servi alii natura, alii facto, alii
empcione, alii redempcione, alii sua vel alterius dacione
servi." 1 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. 2
Upon the
investigation of the truth of this proposition we propose
to enter.
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 Somersett's case, have
announced gravely, that slavery being contrary to the
law of nature, can exist only by force of positive law. 3
The course of reasoning, by which this conclusion is at-
tained, is very much this : That in a state of nature all
men are free. That one man is at birth entitled by na-
ture to no higher rights or privileges than another, nor
" Homo sed non persona." Heinec. Elera. Jur. Lib. I, 75. He was
considered "pro nullo et mortuo, quia nee statu familiaB nee civitatis nee
libertatis gaudet." Ibid. 77. See also Kaufmann's Mackeldey; State
v. Edmund, 4 Dev. 340 ; Neal v. Farmer, 9 Ga. Rep. 582.
1 Ancient Laws and Institutes of England ; Leges Henr. I, ch. Ixxvi,
l.i.
2 For the modification or explanation of this expression in the Insti-
tutes, see post, g 12.
3 Case of the Antelope, 10 Wheat. 120 ; State v. Jones, Walker's Miss.
Rep. 83.