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1. The several States have power to legislate on the subject of bankrupt and insolvent laws, subject, however, to the authority conferred upon Congress by the Constitution to adopt a uniform system of bankruptcy, which authority, when exercised, is paramount, and State enactments in conflict with those in Congress upon the subject must give way.1

2. Such State laws, however, discharging the person or the property of the debtor, and thereby terminating the legal obligation of the debts, cannot constitutionally be made to apply to contracts entered into before they were passed, but they may be made applicable to such future contracts as can be considered as having been made in reference to them.2

3. Contracts made within a State where an insolvent law exists, between citizens of that State, are to be considered as made in reference to the law, and are subject to its provisions. But the law cannot apply to a contract made in one State between a citizen thereof and a citizen of another State, nor to contracts not made within the State, even though made between citizens of the same State,4 except, perhaps, where they are citizens of the State passing the law. And where the contract is made between a citizen of one State and a citizen of another, the circumstance that the contract is made payable in the State where the insolvent law exists will not render such contract subject to be discharged under the law. If, however, the creditor in any of these cases makes himself a party to proceedings under the insolvent law, he will be bound thereby like any other party to judicial proceedings, and is not to be heard afterwards to object that his debt was excluded by the Constitution from being affected by the la w.7

New provisions for personal liberty, and for the protection of

v.

1 Sturges

Crowninshield, 4 v. Moffat, 5 How. 310; Baldwin 1. Wheat. 122 ; Farmers' and Mechan- Hale, 1 Wall., 231. ics' Bank v. Smith, 6 Wheat. 131 ; • McMillan v. McNeill, 4 Wheat. Ogden v. Saunders, 12 Wheat. 213; 209. Baldwin v. Hale, 1 Wall. 229.

5 Marsh v. Putnam, 3 Gray, 551. ? Ogden v. Saunders, 12 Wheat. 6 Baldwin v. Hale, 1 Wall. 223 ; 213.

Baldwin v. Bank of Newberry, 1 Wall. 3 Ogden v. Saunders, 12 Wheat. 231; Gilman v. Lockwood, 4 Wall. 213; Springer v. Foster, 2 Story, 387; 409. Boyle v Zacharie, 6 Pet. 348; Wood ? Clay v. Smith, 3 Pet. 411; Baldhull v. Wagner, Baldw. 300; Suyd- win v. Hale, 1 Wall. 223 ; Gilman v. ham v. Broadnax, 14 Pet. 75; Cook Lockwood, 4 Wall. 409.

the right to life, liberty, and property, are made by the thirteenth and fourteenth amendments to the Constitution of the United States; and these will be referred to in the two succeeding chapters. The most important clause in the fourteenth amendment is that part of section 1 which declares that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. This provision very properly puts an end to any question of the title of the freedmen and others of their race to the rights of citizenship; but sit may be doubtful whether the further provisions of the same section surround the citizen with v any protections additional to those before possessed under the State constitutions; though, as a principle of State constitutional law has now been made a part of the Constitution of the United States, the effect will be to make the Supreme Court of the United States the final arbiter of cases in which a violation of this principle by State laws is complained of/ inasmuch as the

ecisions of the State courts upon laws which are supposed to violate it will be subject to review in that court on appeal.3

1 See ante, p. *11; post, pp. *299, This amendment of the Constitution *397.

does not concentrate power in the 2 The complete text of this section general government for any purpose of is as follows : “ Section 1. All per- police government within the States; sons born or naturalized in the United its object is to preclude legislation by States, and subject to the jurisdiction any State which shall “ abridge the thereof, are citizens of the United privileges or immunities of citizens of States, and of the State wherein they the United States," or " deprive any reside. No State shall make or en person of life, liberty, or property force any law which shall abridge the without due process

of law," or privileges and immunities of citizens • deny to any person within its jurisof the United States; nor shall any diction the equal protection of the State deprive any person of life, lib- laws;" and Congress is empowered to erty, or property, without due process pass all laws necessary to render such of law, nor deny to any person within unconstitutional State legislation inits jurisdiction the equal protection of effectual. This amendment has rethe laws."

ceived a very full examination at the 8 See ante, pp. *124*14. Notwith- hands of the Supreme Court of the standing this section, the protection United States in the Slaughter-House of all citizens in their privileges and Case, 16 Wall. 36, and in United immunities, and in their right to an States v. Cruikshanks, 92 U. S. Rep. impartial administration of the laws, 542, with the conclusion above stated. is just as much the business of the See Story on Const. (4th ed.) App. to individual States as it was before. Vol. II.

[* 295]

* CHAPTER X.

OF THE CONSTITUTIONAL PROTECTIONS TO PERSONAL LIBERTY.

ALTHOUGH the people from whom we derive our laws now possess a larger share of civil and political liberty than any other in Europe, there was a period in their history when a considerable proportion were in a condition of servitude. Of the servile classes one portion were villeins regardant, or serfs attached to the soil, and transferable with it, but not otherwise,' while the other portion were villeins in gross, whose condition resembled that of the slaves known to modern law in America. How these people became reduced to this unhappy condition, it may not be possible to determine at this distance of time with entire accuracy; but in regard to the first class, we may suppose that when a conqueror seized the territory upon which he found them living, he seized also the people as a part of the lawful prize of war, granting them life on condition of their cultivating the soil for his use; and that the second were often persons whose lives had been spared on the field of battle, and whose ownership, in accordance with the custom of barbarous times, would pertain to the persons of their captors. Many other causes also contributed to reduce persons to this condition. At the beginning of the reign of John

1 Litt. § 181 ; 2 Bl. Com. 92. • a sort of people who were in a conThey originally held lands of their dition of downright servitude, used lords on condition of agricultural ser and employed in the most servile vice, which in a certain sense was works; and belonging, they and their servile, but in reality was not so, as the children and effects, to the lord of the actual work was done by the theows, soil, like the rest of the stock or cattle or slaves. . . . They did not pay rent, upon it.'” Reeves, History of Engand were not removable at pleasure; lish Law, Pt. I. c. 1. they went with the land and rendered 8 For a view of the condition of services, uncertain in their nature, the servile classes, see Wright, Doand therefore opposed to rent. They mestic Manners and Sentiments, 101, were the originals of copyholders.” 102; Crabbe, History of English Law Note to Reeves, History of English (ed. of 1829), pp. 8,78, 363; Hallam, Law, Pt. I. c. 1.

Middle Ages, Pt. II. c. 2 ; Vaughan, 2 Litt. § 181 ; 2 Bl. Com. 92. Revolutions in English History, Book " These are the persons who are 2, c. 8; Broom, Const. Law, 74 et seq. described by Sir William Temple as

it has been estimated that one-half of the Anglo-Saxons were in a condition of servitude, and if we go back to the time of the Conquest, we find a still larger proportion of the people held as the property of their lords, and incapable of acquiring and holding any property as their own. Their treatment was such as might have been expected from masters trained to war and violence, accustomed to think lightly of human life and human suffering, and who knew little of and cared less for any doctrine of human rights which embraced within its scope others besides the governing classes.

It would be idle to attempt to follow the imperceptible steps by * which involuntary servitude at length came to (* 296] an end in England. It was never abolished by statute, and the time when slavery ceased altogether cannot be accurately determined. The causes were at work silently for centuries ; the historian did not at the time note them; the statesman did not observe them; they were not the subject of agitation or controversy ; but the time arrived when the philanthropist could examine the laws and institutions of his country, and declare that slavery had ceased to be recognized, though at what precise point in legal history the condition became unlawful he might

1 Hume, History of England, Vol. more of this kind of servitude. And I. App. 1.

see Crabbe, History of English Law 2 Barrington on the Statutes (3d (ed. of 1829), 574. This author says ed.) 272.

that villeinage had disappeared by the 8 Mr. Hargrave says, at the com time of Charles II. Hurd says in mencement of the seventeenth century. 1661. Law of Freedom and Bond20 State Trials, 40; May, Const. Hist. age, Vol. I. p. 136. And see 2 Bl. c. 11. And Mr. Barrington (On Stat. Com. 96. Lord Campbell's Lives of 3d ed. p. 278) cites from Rymer a the Chief Justices, c. 5. Macaulay commission from Queen Elizabeth in says there were traces of slavery unthe year 1574, directed to Lord Burgh- der the Stuarts. History of England, ley and Sir Walter Mildmay, for in c. 1. Hume (History of England, quiring into the lands, tenements, and c. 23) thinks there was no law recogother goods of all her bondmen and nizing it after the time of Henry VII., bondwomen in the counties of Corn- and that it had ceased before the wall, Devonshire, Somerset, and Glou- death of Elizabeth. Froude (History cester, such as were by blood in a of England, c. 1) says in the reign of slavish condition, by being born in Henry VIII. it had practically ceased. any of her manors, and to compound Mr. Christian says the last claim of with any or all of such bondmen or villeinage which we find recorded in bondwomen for their manumission our courts was in 15th James I. Noy, and freedom. And this commission, 27; 11 State Trials, 342. Note to he says, in connection with other cir- Blackstone, Book 2, p. 96. cumstances, explains why we hear no

not be able to determine. Among the causes of its abrogation he might be able to enumerate: 1. That the slaves were of the same race with their masters. There was therefore not only an absence of that antipathy which is often found existing when the ruling and the ruled are of different races, and especially of different color, but instead thereof an active sympathy might often be supposed to exist, which would lead to frequent emancipations. 2. The common law presumed every man to be free until proved to be otherwise; and this presumption, when the slave was of the same race as his master, and had no natural badge of servitude, must often have rendered it extremely difficult to recover the fugitive who denied his thraldom. 3. A residence for a year and

a day in a corporate town rendered the villein legally free; [* 297] so that to him the towns constituted cities of * refuge.

4. The lord treating him as a freeman, — as by receiving homage from him as tenant, or entering into a contract with him under seal, thereby emancipated him, by recognizing in him a capacity to perform those acts which only a freeman could perform. 5. Even the lax morals of the times were favorable to liberty, since the condition of the child followed that of the father; and in law the illegitimate child was nullius filius, — had no father. And, 6. The influence of the priesthood was generally against slavery, and must often have shielded the fugitive and influenced emancipations by appeals to the conscience, especially when the master was near the close of life, and the conscience naturally most sensitive. And with all these influ

1 Crabbe, History of English Law Crabbe, History of English Law (ed. (ed. of 1829), p. 79. But this was of 1829), p. 78; Hallam, Middle Ages, only as to third persons. The claim Pt. II. c. 2. of the lord might be made within 8 In 1514, Henry VIII. manumitted three years. Ibid. And see Mackin- two of his villeins in the following tosh, History of England, c. 4. words : “ Whereas God created all

2 Barrington on Statutes (3d ed.), men free, but afterwards the laws and 276, note ; 2 Bl. Com. 93. But in customs of nations subjected some the very quaint account of “ Villein- under the yoke of servitude, we think age and Niefty,” in Mirror of Jus- it pious and meritorious with God to tices, $ 28, it is said, among other manumit Henry Knight, a tailor, and things, that “those are villeins who John Herle, a husbandman, our naare begotten of a freeman and a nief, tives, as being born within the manor and born out of matrimony." The of Stoke Clyınercysland, in our county ancient rule appears to have been that of Cornwall, together with all their the condition of the child followed issue born or to be born, and all their that of the mother ; but this was goods, lands, and chattels acquired, changed in the time of Henry I. so as the said persons and their issue

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