165. A slave is one who is by law deprived of his liberty for life, and who is the property of another. One who has been kidnapped or stolen away, or a freeman who has been taken by robbers and reduced to slavery, is not a slave. And a citizen of the United States, taken captive by barbarians and reduced to slavery, does not lose either his political or civil rights on that

account.

166. By the natural law all men are created free,25 and no man can be reduced to slavery but by virtue of some law. The general government of the United States did not sanction or establish slavery: the state governments, where that institution existed, have authorized it by law; for without such authority it had no existence whatever.26

167. It is a maxim of law, that the child follows the condition of the mother, partus sequitur ventrem." The child of a female slave is therefore a slave, whoever may have been its father.28 But the child of a female slave, born in a free state where slavery is not recognized by law, is free.29

168. A slave has no political nor any civil rights, while subject to his condition of slavery. But in a state where slavery is not allowed, a man, who is a slave by the laws of his domicil, may maintain an action in his own name for a personal tort committed against him within that jurisdiction;31 for by the law of nations no state is bound to recognize slavery in another state.32

The Constitution of the United States provides that "no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor may be due." Interpreted by the common rules of construction, by which alone it must be understood, the clause is not clear of difficulty; but as the supreme court has given it a judicial construction, the subject must now be considered at rest.

Another important consideration has been urged, since this subject has unhappily agitated our country, whether congress possess any power to legislate upon the subject. From a very early period of our history, and when many of those who formed the constitution were in the councils of the nation, a law was passed by congress to give this clause its full operation. The act of 12th February, 1793, s. 3, was passed; and a still more stringent law was enacted

25 Declaration of Independence.

27 Code 8, 25, 1.

26 Jones v. Vanzandt, 2 McLean, C. C. 596.

By the Roman law, the child of a female slave was free, if, at the time of the conception, the mother was free; or if, being a slave, she was manumitted during the pregnancy, and again became a slave before the child's birth. Justinian, Inst. lib. I, t. 4. In Kentucky, it was held that when a testator by his will directed that a female slave should be free at a certain age, her children, born after the death of the testator, and before the period arrived, were held to be slaves. Ned v. Beale, 2 Bibb, Ky. 298. In New Jersey, where a testator directed his executors to sell a slave for fifteen years, and "at the end of that time to be free," she was considered free from the time of the sale; and a child born afterwards, and before the end of the fifteen years, was adjudged to be free also. State v. Anderson, Coxe, N. J. 36. In Pennsylvania, it has been held that when a pregnant slave absconded from another state, and gave birth to a child in Pennsylvania, the child was free. Commonwealth v. Halloway, 2 Serg. & R. Penn. 305; Benjamin v. Armstrong, 2 Serg. & R. Penn. 392.

Jackson v. Bullock, 12 Conn. 38.

30 Amy v. Smith, 1 Litt. Ky. 326; Lenoir v. Sylvester, 1 Bail. So. C. 633; Catiche v. The Circuit Court, 1 Miss. 608; Vincent v. Duncan, 2 Miss. 214; Hall v. Mullin, 5 Harr. & J. Md. 190; The State v. Hart, 4 Ired. No. C. 246; Gist v. Toohey, 2 Rich. So. C. 424; Jenkins v. Brown, 6 Humphr. Tenn. 299.

"Polydore v. Prince, Ware, Dist. Ct. 402.

Prigg v. Pennsylvania, 16 Pet. 539. 33 U. S. Const. art. 4, s. 2.

by congress in 1850, to enable the owner of a fugitive from labor to recover him when he has fled into a free state.34

36

169. Slavery in the United States is now a matter of history. The rebellion of the southern states in 1861 inevitably culminated in its abolition, though at first by gradual steps. In 1861 it was provided that any slave employed by his owner in any work against the United States should be free.35 In 1862 slavery was abolished in the District of Columbia, compensation being given to loyal owners, and the state of West Virginia was admitted into the Union upon abolishing slavery. In the same year slavery was prohibited in the territories of the United States,38 and the slaves of persons engaged in rebellion were declared free. On the 22d of September, 1862, the president issued a proclamation declaring that all slaves in states which should be in rebellion on the 1st day of January, 1863, should become free, and on that date another proclamation was issued designating the states then in rebellion. This proclamation included all the states in which slavery then existed, except Delaware, Maryland, Kentucky, Tennessee, Missouri, West Virginia, and parts of Louisiana and Virginia. On the 1st day of February, 1865, congress proposed an amendment to the constitution providing that neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. This amendment having been duly ratified has become a part of the constitution.10

170. Manumission, which is an express act by the owner of the slave by which the latter is rendered free, has the effect to change the state of the slave, and he then acquires all the rights of a free man of color.

A slave may acquire his freedom, not only with the consent of his owner as above-mentioned, but by implication, or by operation of law alone, as when a master takes his slave into a free state for the purpose of continued residence; or by a continued residence there, whatever may have been his intention, beyond the time allowed by the laws of such state, the slave becomes free. He may also be manumitted by the last will of his master.

"It is not a little singular, that among the Romans there were laws not dissimilar to the acts of congress mentioned in the text. They declared a slave as a fugitive who stayed away from the house of his master with an intention of running away and escaping from his search: the slave was not considered a fugitive who had only had the design of running away, even though he should have divulged his intention-he must have executed it. Dig. 21, 1, 17 and 43; Dig. 50, 16, 225; Code, 6, 1, 1. After the slave became a fugitive, if any one received him into his house in order to shelter him from the anger of his master, he became liable to an action, and the master could recover damages in an action called de servo corrupto. The law treated him who concealed a fugitive slave, in order to cause his evasion, with much severity: Is qui fugitivum celavit, fur est. Dig. 11, 4, 1. By a senatus consultum, authority was given to every military man, or even an individual, to enter into the lands of senators and other persons to search for fugitive slaves; and, by another law, the houses of the prince himself might be examined to search for them. But in order not too much to infringe on the rights of individuals, the persons who made the searches were to be authorized by the president of the tribunal, who would give an injunction, and send a serjeant to obtain access to the house intended to be examined. Pothier, Pand. lib. 11, tit. 4, art. 1, n. 5. When found, the slave was to be brought before a magistrate, whose duty it was to deliver him to his master, if the latter's claim was established. In the provinces, when arrested, the slave was carried before the president of the province or the proconsul, who decided as to the right of the supposed master. Pothier, Pand. lib. 11, 42, 7.

35 Act of Congr. Aug. 6, 1861; 12 Stat. 319. 36 Act of Congr. April 16, 1862; 12 Stat. 376. 37 Act of Congr. Dec. 31, 1862; 12 Stat. 633. 38 Act of Congr. June 19, 1862; 12 Stat. 432. Special acts were passed for Arizona and Idaho; Feb. 24, 1863; 12 Stat. 664; March 3, 1863; 12 Stat. 809. 39 Act of Congr. July 17, 1862; 12 Stat. 590.

40 U. S. Const. amend. 13.

171 A white person is one who is of the Caucasian race, without any mixture of African or aboriginal blood, or at most not a fourth part of such blood." In the southern states, when a question as to the quantity of African blood in a person arises, it is left to the jury to find it as a matter of fact."2

The acts of congress 43 which authorize the naturalization of aliens, confine the description of such aliens to free white persons. And many of the state constitutions require, as one of the qualities of a citizen or elector, that he shall be white.

A rule was adopted in the slave states that color is presumption of slavery;" but in the free states this rule would probably have been reversed, because there the presumption is that all men are free, and he who would rebut the presumption must establish the contrary fact.45

172. In some countries a distinction exists between noblemen and plebeians. A nobleman there is one to whom some special privileges are granted, generally at the expense of the more deserving classes of the people.

A plebeian is one who belongs to the common people.

Happily, in this country, the order of nobles does not exist: the Constitution of the United States provides that "no title of nobility shall be granted by the United States."46 And no state shall "grant a title of nobility."47

173. Sanity is the state of a person who has a sound mind; one who in his actions conforms to those of the bulk of mankind; one whom the law regards as capable to perform all civil duties, and to be responsible for his acts Sanity is always presumed.

Insanity is that state which induces a continued impetuosity of thought, which, for the time being, unfits a man for judging and acting in relation to the affairs of life with the composure requisite for the maintenance of the social relations; one who is deprived of the use of reason, after having attained the age when he ought to have it, either in consequence of a defect at his birth, or because of some accident which has happened since.48

This state is never presumed, but if once proved to exist, it will be presumed to have continued.

The insane man is deprived of his political and civil rights. He is represented by a guardian, curator, or committee."9

174. Infamy, in a general sense, is the condition of a person who is regarded with contempt and disapprobation by the generality of men, on account of his vices. But, in a legal sense, it is the state of one who has been lawfully convicted of a crime, followed by a judgment,51 by which he has lost his honor.'

41 Gentry v. McMinnis, 3 Dan. Ky. 382.

43

Except the act of July 17, 1862; 12 Stat. 597.

42 State v. Davis, 2 Bail. So. C. 558.

Davis v. Curry, 2 Bibb, Ky. 238; Burke v. Joe, 6 Gill & J. Md. 136; Rawlings v. Boston, 3 Harr. & M'H. Md. 139. The same rule prevailed in New Jersey, 3 Halst. N. J. 275.

The presumption of law is in favor of freedom. State v. Dillahunt, 3 Harr. Del. 551; State v. Griffin, 3 Harr. Del. 559; Kinney v. Cook, 4 Ill. 232.

46 U. S. Const. art. 1, s. 9, n. 7.

"U. S. Const. art. 1, s. 10, n. 10.

Domat, Lois Civ. Liv. 2, s. 1, n. 11; Ray, Med. Jur. 24.

The rule that sanity is to be presumed calls for no special remark except where it is set up as a defence in a criminal trial. Here there are two conflicting presumptions; on the one hand the prisoner is presumed to be innocent, and on the other to be sane. The doctrine now held is that the jury are authorized to find the prisoner insane if the preponderance of evidence is in favor of his insanity. Commonwealth v. Rogers, 7 Metc. Mass. 500; Commonwealth v. Andrews, Mass. Dec. 1868. In some cases the jury are instructed to give the prisoner the benefit of any doubt. People v. McCann, 16 N. Y. 58. 50 Woolffius, Inst. 148.

State v. Valentine, 7 Ired. No. C. 225; United States v. Dickinson, 2 McLean, C. C. 325; 1 Ashm. Penn. 57.

The crimes which render a person infamous are, treason; 52 felony; frauds; which come within the notion of the crimen falsi of the Roman law, as perjury and forgery," piracy, swindling and cheating, barratry," and bribing a witness to keep away.

58

55

56

The consequences of infamy are the loss of political rights and incapacity to testify as a witness.59

Officers of the United States who are removed from office by impeachment and conviction may be disqualified to hold any office of honor, trust or profit under the United States, and the same punishment may be imposed on officers of the army by courts martial for certain offences.

175. Birth is the act of being wholly brought into the world; the fact of having acquired an existence independent of one's mother. A child born differs in many respects from one in ventre sa mère.

But unless the child be born alive, it is not a birth, but a miscarriage. The consequence is, that such child neither acquires nor transmits to others any rights.61

Persons who are born are generally entitled to all the rights which are exercised by others except those which are gained by age, and are the objects of the care of the law.

One who is not born, technically called an infant in ventre sa mère, is treated as a man, but this is only in the hope of his being born alive.

176. The rights of a child in ventre sa mère are numerous:

For all beneficial purposes to himself, such a child is considered as born.62 But a stranger can acquire no title through him, unless he be afterwards born alive.

An estate may be limited to his use.63

He may have distributive share of an intestate property.64

May take a devise of lands.65

Takes under a marriage settlement a provision made for children living at the death of the father.66

May be appointed executor, at common law.67

A guardian may be assigned to him."
Others may act on his behalf."9

68

58 Fort. 208.

59 1 Greenleaf, Evid. 28 372, 376. 60 U. S. Const. art. 1, s. 3, n. 7.

40

177. Having considered the rights and duties of natural persons, the next object of our inquiries will be to examine the law as it relates to artificial persons, or corporations. This will be done by taking a view, of what is a corporation; how it is created; the kinds of corporations; of their powers; and how they are dissolved.

178. A corporation is an intellectual body politic, created by law, composed of one or more persons who act under a common name, are endowed with perpetual succession, and with various other powers, by its charter or the law which created it, and which, for certain purposes, is considered as a natural person. It is, as is well observed by Chief Justice Marshall, "an artificial being, invisible, intangible, and existing only in contemplation of law."1

A corporation created by and doing business in a particular state, is to be deemed, to all intents and purposes, as a person, an inhabitant of that state, and for the purposes of its incorporation as a citizen of that state. The residence of its stockholders does not affect in any way the citizenship of the corporation.2

179. Unlike the law of England, which allows the existence of corporations by implication, by prescription, or by the express or implied consent of the king, corporations by our law owe their origin to a legislative act, called a charter; and this is the source of all their power.3

"Being the mere creature of law," says the late learned Chief Justice Marshall, in the case already cited, "it possesses only those properties which

1 Dartmouth College v. Woodward, 4 Wheat. 626.

Louisville R. R. v. Letson, 2 How. 558; Ohio R. R. v. Wheeler, 1 Black, 286; Covington Bridge v. Shepherd, 20 How. 227; Marshall v. Baltimore R. R. 16 How. 314; Regina v. Arnaud, 9 Q. B. 806.

3 Head v. Providence Ins. Co. 2 Cranch, 127; 4 Wheat. 636. The statement that a corporation exists by prescription only means that its foundation dates from a time beyond memory, and its existence furnishes a legal presumption that its creation was legal. And in this country the existence of a corporation for a long time is good evidence in default of other, that it was legally incorporated. Dillingham v. Snow, 7 Mass. 547; Bow v. Allenstown, 34 N. H. 351. As a matter of fact, however, there will rarely be a case of a corporation existing otherwise than by a charter, which is within the memory of man and can be proved. 41

VOL. I.-F