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than it does here. Perhaps it will be said that this would not be advisable for a work intended for beginners. But on the one hand, facts are much easier and better learned when we have a principle to string them on, and an interest is thus given to some who would not otherwise be attracted, — and on the other, if students are to learn by rote, they may as well and better learn principles than bare facts.

Considered as mere empirical Natural History the work before us has immense advantages over most similar ones in having been executed and superintended by thoroughly scientific men, and not by smatterers, as is generally the case.

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In some passages we trace the marks of a foreign idiom, indicating that they were conceived in another language from that in which they are written: hence occasional obscurities; for example, p. 107" Wheat taken from the catacombs of Egypt has been made to sprout and grow in some well-authenticated cases." Page 73, Life is made to consist in the equilibrium of nourishment and waste-the opposite of the truth. Death, and not Life, being equilibrium. What is meant is antagonism. Some expressions are too technical: e. g., p. 169, familiar animals will not be recognized under the names of Limulus and Bassaris ; — p. 171, paved teeth" would not be intelligible to the beginner;-p. 16, Incessores is translated "Birds of Prey";-p. 135, instead of groups of individuals, should stand parts, &c. There are some uncertainties of orthography, &c., e. g., polypi and polyps ; and the commas might be somewhat reformed in another edition. The work has, we believe, been somewhat delayed, and therefore probably hurried at the close. Prefaces in this way are apt to show marks of haste, as one of which we presume the very slight mention of Mr. E. Desor must be considered, as, if we are rightly informed, the elaboration of a large part of the work is due to him. This is doubtless owing merely to want of consideration of the force of phrases in this comparatively unimportant part of the work.

ART. IV. CONSTITUTIONALITY OF SLAVERY.

Or the great questions which are now agitating the community not one deserves a more careful and earnest investigation, not one involves higher considerations of duty than this: Does the Constitution of the United States, when rightly interpreted, support Slavery? We propose to consider the question as briefly as is consistent with clearness.

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Of course only that slavery which is legal can be constitutional. But it is argued that all slavery is illegal. Law is defined to be a "natural, permanent, unalterable principle; any rule," it is said, "not existing in the nature of things, or that is not permanent, universal, and inflexible in its application, is no law." The civil rights of men, it is contended, are defined by the "immutable and overruling principle of natural justice.'

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Justice must be either absolute or relative. An absolutely just act is just at all times, in all places, and under all circumstances. A relatively just action is just only at some particular time and place, and under some particular circumstances. Consequently, the rule of relative justice is constantly changing with time, place, and circumstances. Therefore it cannot be unalterable. On this theory, therefore, it cannot be law, because law is unalterable. Law, on this theory, then, must be synonymous with absolute justice. Without denying that it is possible for the human race ultimately to acquire a knowledge of the test of that which is absolutely just and right, it is sufficient for the purposes of our argument that it is evident that no such test at present exists. But if law is synonymous with absolute justice, if we cannot tell what is absolute justice we cannot tell what is law; and, consequently, cannot prove even slave-holding to be unlawful. But law is a practical science. To remain so, we cannot take our notions

*It seems unnecessary to argue this point. The author of this theory, strangely enough, admits the present non-existence of a test of what is naturally just. He says, "whenever the natural law is sufficiently certain to all men's minds to justify its being enacted, it is sufficiently certain to need no enactment. On the other hand, until it be thus certain, there is danger of doing injustice by enacting it; it should, therefore, be left open to be discussed by any body who may be disposed to question it, and to be judged of by the proper (?) tribunal, the judiciary." He therefore admits that in some cases we cannot now tell what natural justice demands of us. But if we had a test of natural justice we could decide all cases now.

of relative justice as its test, and declare not to be law every rule which we believe to be unjust; because if we do this law will necessarily be constantly changing, like our notions of relative justice, with time, place, and circumstances, and it needs no argument to show that a law which is thus constantly changing, with whatever name we may please to dignify it, is only another word for despotism. We would not, however, be misunderstood. Every legislator should endeavour to make the laws carry out the highest present idea of justice. But if, as has always hitherto been the case, every legislator fails in the attempt, the laws are none the less laws although they prescribe a rule at variance with the requirement of relative justice.

This fundamental objection being disposed of, we proceed to state briefly the law of England specially bearing upon the question before us.

The common law of England (1 Black. Comm., 67,) “ is properly distinguishable into three kinds. 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification. 2. Particular customs; which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws," (the civil and canon law) "which by custom are adopted and used by some particular courts."

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The existence and validity of general customs are determined by the courts. To be valid a general custom must have existed beyond the memory of man. In England this time of legal memory extends back to the commencement of the reign of Richard I. (1189.) The existence of a particular custom is proved as a question of fact, unless the court recog nizes its existence. To make it valid certain things are required. Among these it is necessary that it should have existed beyond the memory of man Thus, to establish a title by prescription to an easement, a man must be able to show that he and those under whom he claims have immemorially used to enjoy it.

The remark," Law is a progressive science," was frequently made by the late Judge Story. It is eminently true of the common law, for it is not true that the common law has existed ever since the close of the twelfth century. Many exceedingly important portions of it, as the English law of the Road, (1 Ib., p. 74, note,) the presumption of a lost grant from twenty years adverse possession of an easement, very promi

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

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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." 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

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