sets foot in England he becomes free, by declaring that no reason could be found "why they should not be equally so when they set foot in Jamaica, or any other English plantation. All our colonies are subject to the law of England, although as to some purposes they have laws of their own." Not, however, as Lord Hardwicke implies, for the purpose of introducing a condition of slavery, or any thing else, which the law of England did not allow; and thus far, at least, the doctrine of this case is good law. (See Ambler, 76. Pearne vs. Lisle.)

So much for the pretended legalization of slavery in the crown colonies by statute. But even independent of any statute, our reviewer maintains that slavery might become legalized in those colonies by custom.

Now, admitting that the modern common law consists, to a great extent, of modern customs sanctioned by the courts, and admitting that the colonial courts had the same right of giving the character of law to colonial customs, yet it was not every custom, good, bad, or indifferent, that was capable of such a sanction. It must have been a custom good in itself, tending to promote the ends of justice, and not in contradiction to any established right previously existing. Will any body pretend that slavery was such a custom? The courts were under the same restrictions as the assemblies. What the assemblies could not do directly, the courts could not do indirectly. Nor does there exist the slightest evidence that any colonial court ever pretended to sustain slavery on this ground of custom. On the contrary, both courts and assemblies acted on the presumption that there was nothing in the English law which made negro slavery illegal, and that the colonial statutes authorizing it were therefore binding. They acted under a misapprehension of the English law; but their mistake on this point cannot affect any body's legal rights.

It was not the less true that negro slavery was not allowed by the laws of England. The decision of this point in Somerset's case set free not less than fourteen or fifteen thousand negroes held in bondage in that country-so we are told in the report of the case; and so far as the mere matter of legal right was concerned, it established the freedom, also, of every slave in the colonies; and this inevitable consequence of this decision had been foretold, as we have seen, by Lord Hardwicke, twenty years or more before.

At the time, then, when the first state constitutions were framed, slavery existed in the states not as a vested legal right,

but as a mere wrong and usurpation. The framers of those constitutions did not attempt to confer upon it any new character of right or legality. They left it exactly where it stood before, avoiding, indeed, all direct reference to it. But this is a point which we have fully handled in a former article, and with which it is not necessary again to weary our readers.

We will only add, that this matter of the legality of slavery is one we are glad to see discussed, because we feel satisfied that the more it is discussed, the plainer it will become that the only law upon which slavery rests is the lynch law of force and violence. We deny altogether that the states of this union have or ever had any power to legislate a part of their inhabitants into slavery. Though they claim to be sovereign and independent, they have been at all times, and still are, greatly limited and restrained in their legislative powers. While colonics they were restricted, as we have just proved, from making laws repugnant to those of England, and of course from subjecting any of the king's natural born subjects to slavery. There was, indeed, a very important distinction on this point, too apt to be overlooked in these discussions. Whatever the condition might legally be of those unfortunate aliens, purchased in Africa as slaves and brought to America and sold to the planters; suppose, even, that it might have been consonant to English law to retain them as servants for life, as Blackstone seems to have imagined; yet the case was very different as to their children born in the colonies, who were in every respect natural born subjects of the king of England, and entitled to all the rights of Englishmen, which the colonial legislatures had no power to invade. These alien Africans, be it observed, would furnish ample material for the colonial state laws, and all constitutional compromises to act upon, without involving any native born Americans in the fate of slavery.

Before the colonies escaped from this restraint of English laws, they had already subjected themselves to a new one by entering into a confederacy against Great Britain, of which the avowed object was, to maintain the rights of human nature. "Let it be remembered, finally," says Congress, in its address to the states, on the termination of the Revolutionary War, "that it has ever been the pride and boast of America, that the rights for which she contended were the rights of human nature.'

When the colonists set forth in their Declaration of Inde

pendence, as the justification and basis of the stand they had taken, the natural right of all men to life, liberty, and the pursuit of happiness, they must be esteemed as pledging themselves to the world and to each other for the recognition and maintenance of that right. Nor was this declaration the mere act of the Continental Congress, whose power might be disputed; for it was distinctly and solemnly ratified, adopted, and confirmed by every individual state in the union. From that moment, then, it was a solemn pledge on the part of all the states, and a tacit condition of the union, that slavery should be done away with as soon as possible. By adopting, two years before, the non-importation agreement, known as the American Association, the states had already pledged themselves to import no more slaves; a pledge from which they were never released, though the Carolinas and Georgia chose afterwards to violate it, and to insist on a constitutional permission to continue that violation for twenty years. The same understanding as to the abolition of slavery prevailed when the federal constitution was adopted; it was regarded as a transitory evil, to be speedily removed, and the greatest care was taken not to mention slavery by name, or to recognize in that instrument any such idea as property in man. The northern states have waited a great while, patiently, for their southern neighbours to carry out their agreement. If the conclusion should be arrived at that the southern states are unable or unwilling to redeem their pledge, certainly the least we of the North can do, is, to proclaim, everywhere, our conviction of the utter illegality of this accursed institution of slavery, and of the bad faith of the South in prolonging its existence.

ART. III.-A Treatise of the Law of Evidence. By SIMON GREENLEAF, LL. D., Royall Professor of Law in Harvard University. Boston. 1846. 2 Vols. 8vo.

A NEW work on the law of Evidence, from the learned and distinguished Royall Professor of Law in Harvard University, seems naturally to invite attention, as well from the unquestioned ability of the author, as from the importance of the subject. Of the work it may be observed, that it is a clear, concise, and satisfactory exposition of the law, with the reasons

upon which it rests. But it is not so much our intention to examine the professional merits of this work of Mr. Greenleaf, as to invite the public to a consideration of the present state of this branch of the law, and to the reforms which, we think, it imperatively requires. In doing this we write not so much for the profession as for the people. The subject should not be considered as referrible only to the peculiar and exclusive jurisdiction of the bar, but as one easily understood and fully within the intellectual scope of all possessing any claims to intelligence or general information.

In the whole field of law or legislation there is no subject of such vast practical importance as the law which determines the admission or rejection of evidence. The substantive portion of the law, that which prescribes and ordains, may be in the highest degree wise; the criminal code may be framed in the soundest philosophy, and with the most judicious combination of the principles of prevention and reformation; perfection, in fine, may be predicated of each and every portion of the substantive branch of the law, yet if the rules of evidence are erroneous, their wisdom is no better than so much folly, the will of the legislator is unheeded, his rewards unreapt, his penalties unimposed.

Important as is the subject, and its importance corresponds to that of all interests which may be judicially endangered, yet it is but recently that it has received the attention of the public either in Europe or in this country. In the Year-books and the earliest reports and digests, questions relating to the competency of witnesses or the admissibility of evidence, were of the rarest occurrence. The intricate tech

nicalities, the hairbreadth distinctions, the conflicting and contradictory decisions, which form so large a portion of any treatise of evidence, are not to be found in the Rollis and Fletas of our early jurisprudence. By the gradual accretion of decisions, this has now become one of the most important divisions of the law, so that he who is thoroughly versed in its rules may be considered almost prepared for the practice of the courts without any other professional learning.

In the trial of Warren Hastings, the injurious operation of those rules was seen and felt on a great scale. The indefatigable industry and perseverance, the deep philosophy of Burke; the strength and vigor of Fox; the thrilling and dramatic eloquence of Sheridan, were seen to be foiled during the whole course of that prosecution, by the technical learning and

legal quibbles of a Law and a Dallas. The future chief-justice of the king's bench, then just commencing that career which ended in the attainment of the highest honors of the profession, insisted that his client should be tried according to the rules of evidence as they were administered in courts of common law jurisdiction. The highest judicial tribunal of the nation, ignorant of the laws they were called on to administer, with a want of self-reliance naturally and appropriately incident to such ignorance, sought information of the common law judges as to what they might or might not properly hear, and as to what would and what would not afford instruction or aid in the elucidation of the cause then pending before them. The common law judges almost invariably excluded the evidence proposed. Burke, perceiving that the adoption of their rules. would end in the exclusion of the proof by which alone he could hope to convict the great proconsul of the Indies of the high crimes and misdemeanours with which he stood charged, was indignant that their opinions were followed by the House of Lords.

For the first time, "in a report from the committee of the House of Commons appointed to inspect the Lords' Journal, made April 30, 1794," the attention of the House of Commons was called to the rules of evidence, and particularly to those which had been laid down by the judges for the guidance of the House of Lords upon a variety of questions submitted to them for their opinion. Until that time, the law of evidence, like every other branch, had been assumed to be the perfection of human reason, and the assumption had remained unquestioned. In this report, Burke conceded the general fitness of those rules in cases between parties, but perceiving their effect in the exclusion of the proof necessary to sustain his cause, endeavoured to distinguish between rules proper to be adopted in ordinary civil cases, and those by which the imperial court of parliament should be governed. He thought that "the committee could not with safety to the larger and more remedial justice of the law of parliament admit any rules or pretended rules, uncorrected or uncontrolled by circumstances, to prevail in a trial which regarded offences difficult of detection, and committed far from the sphere of the ordinary practice of the courts." But Burke, while examining those rules and endeavouring, though ineffectually, to shield the law from the reproach of "disgraceful subtleties," and while urging that "the lords ought to enlarge and not to contract the rules of