nent portions of the law of bailments, insurance, &c., &c., have been introduced in comparatively modern times by the force of usage alone. In other words, the rule of legal memory has been practically abandoned, even in England, in very many instances; and customs notoriously originating in modern times are admitted by the courts to form as much a part of the common law as those which can be traced back to the time of Richard I. And it is well worthy of remark, that if only such principles as can be traced back thus far form part of the common law, then the rule of legal memory itself forms no part of the common law, for it was not even dreamed of until about a century after that time.

As early as the Norman Conquest, a class of slaves existed in England, called Villeins. This system of servitude was not wholly extinct at so late a period as the 12th year of Charles II. (1661) (21 b., 96; Lloft's Rep., 8), though at this time we are told "there was hardly a pure villein left in the nation." Blackstone thus describes the condition of these slaves (2 Comm., p. 93): "Villeins belonging principally to lords of manors, were either villeins regardant, that is, annexed to the manor or land; or else they were in gross, or at large, that is, annexed to the person of the lord, and transmissible by deed from one owner to another. They could not leave their lord without his permission; but if they ran away or were purloined from him, might be claimed and recovered by action, like beasts or other chattels. They held, indeed, small portions of land by way of sustaining themselves and families, but it was at the mere will of the lord, who might dispossess them whenever he pleased." "A villein, in short, was in much the same state with us, as Lord Molesworth describes to be that of the boors in Denmark, and which Stiernhook attributes also to the traals, or slaves in Sweden." The slavery extended to the issue if both parents were villeins, or if the father only was a villein.

"Villenage of both kinds," says Sir William Scott, "had no other origin than ancient custom." It was not established by legislation. It was lawful solely because sanctioned by general custom. None of the requisites for a valid custom were deemed inconsistent with its complete establishment. For six centuries, therefore, slavery existed in England solely in virtue of CUSTOM, UNAIDED BY LEGISLATION. But it was a relation of master and slave which the common law sanctioned. Now, if general custom alone was a sufficient legal basis for

property in white men, it was also a sufficient legal basis for property in black men. If, by the law of England, general custom, unaided by legislation, had sufficient legal power to make and keep white men and their descendants slaves, by the same law general custom, unaided by legislation, had sufficient legal power to make and keep black men and their descendants slaves. The fact that the child of the villein followed the condition of the father, whilst the child of the negro slave follows the condition of the mother, makes no difference, for the legality of villanage is not based at all upon this difference. Therefore, by the law of England, general custom unaided by legislation constituted a sufficient legal basis for slavery generally. The principle in its actual application only supported villein slavery, but it was legally capable of being applied to the support of negro slavery.

The well known case of Somerset (Lloft's Rep., 1, &c.) is sometimes alluded to as conflicting with this view of the law, and even as settling that no legal slavery ever existed in England. In delivering the opinion of the Court of King's Bench, Lord Mansfield uses the following language: "The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory. It's so odious that nothing can be suffered to support it but positive law."

By "positive law," as here used, is sometimes understood statute law, and hence the inferences that custom, unaided by legislation, is not a legally sufficient basis for slavery, and consequently that villanage was a mere wrong, unsupported by law. It may well be doubted, however, whether by the expression "positive" law Lord Mansfield really meant " statute" law. Positive law, he says, "preserves its force long after the time itself from whence it was created is erased from memory," but we can always tell the time when a statute was passed. Besides, as Chief-Justice Shaw says, (18 Pick. Rep., 212) "by positive law, in this connection, may be as well understood customary law as the enactment of a statute." Thus Blackstone, speaking of a provision of the common law, says, (1 Comm., 70) "now this is positive law, fixed and established by custom." But the conclusive answer is this. If the court really intended to say that custom unaided by legisla tion was an insufficient legal basis for slavery, and that no le

gal slavery ever existed in England, the decision on these points is of no binding authority as law even in England, because these points were not legitimately before the court for decision. The decision of a court of common law upon the point necessarily involved in the case before it is an authoritative declaration of the law, but its decision upon any other collateral points is wholly extra-judicial, and does not settle the law. We cannot do better than to lay before our readers the following extract from an opinion of Sir William Scott. (2 Hagg. Adm. Rep., 106.)

"The real and sole question which the case of Somerset brought before Lord Mansfield, as expressed in the return to the mandamus, was whether a slave could be taken from this country in irons and carried back to the West Indies, to be restored to the dominion of his master? And all the answer, perhaps, which that question required, was that the party who was a slave could not be sent out of England in such a manner, and for such a purpose, stating the reasons of that illegality. It is certainly true that Lord Mansfield, in his final judgment, amplifies the subject largely. He extends his observations to the foundation of the whole system of the slavery code; for in one passage he says that slavery is so odious that it cannot. be established without positive law. Far from me be the presumption of questioning any obiter dictum that fell from that great man upon that occasion; but I trust that I do not depart from the modesty that belongs to my situation, and I hope to my character, when I observe that ancient custom is generally recognized as a just foundation of all law; that villenage of both kinds, which is said by some to be the prototype of slavery, had no other origin than ancient custom; that a great part of the common law itself, in all its relations, has little other foundation than the same custom, and that the practice of slavery as it exists in Antigua and several other of our colonies, though regulated by law, has been in many instances founded upon a similar authority."

By the decision in Somerset's case the unlawfulness of negro slavery in England may be considered as virtually settled. So far, however, was the court from even intimating its unlawfulness in the colonies, that its lawfulness is explicitly admitted both by the counsel and the court. Francis Hargrave, the eminent counsel for Somerset, said (1 Juris. Exerc., 6)-"The case before the court, when expressed in few words, is this:- Mr. Steuart purchases a negro slave in

Virginia, where, by the laws of the place, negroes are slaves, and saleable as other property." Lord Mansfield said, (Lloft's Rep., 17) "The now question is, whether any dominion, authority, or coercion can be exercised in this country on a slave, according to the American laws." Negro slavery was deemed unlawful in England, not because general custom unaided by legislation was legally insufficient to support it, but because it was in fact supported neither by such custom nor by legisla

tion.

We deem it unnecessary to examine into the legality of slavery in all the states. At the time of the adoption of the Constitution, about two thirds of all the slaves were found in the four Southern states. (Census of 1790.) Very nearly all of these slaves were negroes and their descendants. The legality of negro slavery in Virginia, North Carolina, South Carolina, and Georgia is, therefore, the question to which we shall confine our remarks.

The first settlers did not bring with them the whole body of the English common law, but "only that portion which was applicable to their situation." "No one will contend," says Mr. Justice Mc'Lean, delivering the opinion of the Supreme Court of the United States, (8 Pet. Rep., 658, 659) "that the common law, as it existed in England, has ever been in force, in all its provisions, in any state in this Union. It was adopted so far only as its principles were suited to the condition of the colonies; and from this circumstance we see what is common law in one state is not so considered in another. The judicial decisions, the usages and customs of the respective states, must determine how far the common law has been introduced and sanctioned in each."

The colonists in their discretion could reject any portion of the common law which they deemed unsuited to their condition. This discretion was unlimited, so far as the question of negro slavery is concerned. The English courts could not control this discretion in any case, for they had no appellate jurisdiction over the colonial courts. If Parliament could, it never attempted to control it, but, as we shall see, actually fostered negro slavery in the colonies. And though the king in council could reverse a decision of the highest colonial court, yet in no instance has any such decision been reversed

*By this expression we mean not only Africans, but their descendants by the mother's side.

because it sanctioned negro slavery. Therefore, if any part of the common law of England is found to be inconsistent with "the judicial decisions, usages, and customs" of the colonies, even though these decisions and customs go to support negro slavery, we must conclude that all such parts of the English common law did not form part of the colonial common law, but were rejected as unsuited to the condition of the colonies.

The English rule of legal memory was established in accordance with the equitable construction of that statute (13 Edw. I., c. 39,) which provided that no writ of right should be maintained, except on a seizin, from the time of Richard I. It was deemed reasonable that the same length of time which was sufficient to give a title to land itself should also be sufficient to give a title to an easement over land. Upon the same principle, when the limitation of a writ of right was reduced by the statute of 32 Henry VIII., c. 2, to sixty years, a similar reduction should have been made in the limitation of the time of legal memory. This was the opinion of several eminent legal writers. The English rule being intrinsically unreasonable, as well as not conformable to the very principle on which it was originally made, was also unsuited to the condition of a new country, and consequently the colonists might reject it. In doing this they were not obliged to reject other parts of the law with which it was associated. But they might reject the rule of legal memory and adopt the law of prescription. Thus the Supreme Judicial Court of Massachusetts say, (8 Pick. Rep., 510.) "The question then is, whether the courts of this country were not at liberty to adopt the English law of prescription, with a modification of the unreasonable rule adhered to by the English courts in regard to the limitation of the time of legal memory. Certainly the law without the rule of limitation might have been adopted, and the courts here had competent authority to establish a new rule of limitation suited to the situation of the country. They had the same authority in this respect that the courts in England had to establish the English rule of limitation."

If the colonists had the right thus to adopt the law of prescription, (which is nothing but a particular custom,) and change the time of legal memory, if they had the right to declare that a particular custom of sixty or forty years' standing was legally sufficient, a fortiori, they had the right to declare that a general custom of sixty or forty years' standing was legally sufficient; or, in other words, they had a legal