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.1

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,2 nor to contracts not made within the State, even though made between citizens of the same State, 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 law.

New provisions for personal liberty, and for the protection of 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.

1 Ogden v. Saunders, 12 Wheat. 213.

2

Ogden v. Saunders, 12 Wheat. 213; Springer v. Foster, 2 Story, 387; Boyle v. Zacharie, 6 Pet. 348; Woodhull v. Wagner, Baldw. 300; Suydham v. Broadnax, 14 Pet. 75; Cook v. Moffat, 5 How. 310; Baldwin v. Hale, 1 Wall. 231.

'McMillan v. McNeill, 4 Wheat. 209.

Marsh v. Putnam, 3 Gray, 551.

Baldwin v. Hale, 1 Wall. 223; Baldwin v. Bank of Newberry, ib, 234; Gilman v. Lockwood, 4 Wall. 409.

6

Clay v. Smith, 3 Pet. 411; Baldwin v. Hale, 1 Wall. 223; Gilman v. Lockwood, 4 Wall. 409.

See ante, p. 11; post, pp. 299, 397.

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 it may be doubtful whether the further provisions of the same section surround the citizen with 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 decisions of the State courts upon laws which are supposed to violate it will be subject to review in that court on appeal.2

1

The complete text of this section is as follows: "Section 1. 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. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

See ante, pp. 12-14. Notwithstanding this section, the protection of all citizens in their privileges and immunities, and in their right to an impartial administration of the laws, is just as much the business of the individual States as it was before. This amendment of the Constitution does not concentrate power in the general government for any purpose of police government within the States; its object is to preclude legislation by any State which shall "abridge the privileges or immunites of citizens of the United States," or "deprive any person of life, liberty, or property without due process of law," or "deny to any person within its jurisdiction the equal protection of the laws"; and Congress is empowered to pass all laws necessary to render such unconstitutional State legislation ineffectual. This amendment received a very careful examination at the hands of the Supreme Court of the United States in the recent case of the Live Stock Dealers and Butchers Association v. The Crescent City, &c., Co., not yet reported. See Story on Const. 4th ed. App. to vol. 2.

[334]

*CHAPTER X.

* 295

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.3

66

'Litt. § 181; 2 Bl. Com. 92. "They originally held lands of their lords on condition of agricultural service, which in a certain sense was servile, but in reality was not so, as the actual work was done by the theows, or slaves. They did not pay rent, and were not removable at pleasure; they went with the land and rendered services, uncertain in their nature, and therefore opposed to rent. They were the originals of copyholders." Note to Reeves, History of English Law, Pt. I. c 1.

2 Litt. § 181; 2 Bl. Com. 92. "These are the persons who are described by Sir William Temple as a sort of people who were in a condition of downright servitude, used and employed in the most servile works; and belonging, they and their children and effects, to the lord of the soil, like the rest of the stock or cattle upon it.'" Reeves, History of English Law, Pt. I. c. 1.

For a view of the condition of the servile classes, see Wright, Domestic Manners and Sentiments, 101, 102; Crabbe, History of English Law (ed. of 1829), pp. 8, 78, 365; Hallam, Middle Ages, Pt. II. c. 2; Vaughan, Revolutions in English History, Book 2, c. 8; Broom, Const. Law, 74 et seq.

At the beginning of the reign of John 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.1 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 [* 296] steps by * which involuntary servitude at length came to an end in England. It was never abolished by statute,2 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 not be able to

2

1 Hume, History of England, Vol. I., App. 1. Barrington on the Statutes (3d ed.), 272.

3 Mr. Hargrave says, at the commencement of the seventeenth century. 20 State Trials, 40; May, Const. Hist. c. 11. And Mr. Barrington (On Stat. 3d ed. p. 278) cites from Rymer a commission from Queen Elizabeth in the year 1574, directed to Lord Burghley and Sir Walter Mildmay, for inquiring into the lands, tenements, and other goods of all her bondmen and bondwomen in the counties of Cornwall, Devonshire, Somerset, and Gloucester, such as were by blood in a slavish condition, by being born in any of her manors, and to compound with any or all of such bondmen or bondwomen for their manumission and freedom. And this commission, he says, in connection with other circumstances, explains why we hear no more of this kind of servitude. And see Crabbe, History of English Law (ed. of 1829), 574. This author says that villeinage had disappeared by the time of Charles II. Hurd says in 1661. Law of Freedom and Bondage, Vol. I. p. 136. And see 2 Bl. Com. 96. Macaulay says there were traces of slavery under the Stuarts. History of England, c. 1. Hume (History of England, c. 23) thinks there was no law recognizing it after the time of Henry VII., and that it had ceased before the death of Elizabeth. Froude (History of England, c. 1) says in the reign of Henry VIII. it had practically ceased. Mr. Christian says the last claim of villeinage which we find recorded in our courts was in 15th James I. Noy, 27; 11 State Trials, 342. Note to Blackstone, Book 2, p. 96.

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; so that to him the towns constituted cities of * refuge. 4. The lord treating him as a [* 297] 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; 2 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 (ed. of 1829), p. 79. But this was only as to third persons. The claim of the lord might be made within three years. Ibid. And see Mackintosh, History of England, c. 4.

2

Barrington on Statutes (3d ed.), 276, note; 2 Bl. Com. 93. But in the very quaint account of "Villeinage and Niefty," in Mirror of Justices, § 28, it is said, among other things, that "those are villeins who are begotten of a freeman and a nief, and born out of matrimony." The ancient rule appears to have been that the condition of the child followed that of the mother; but this was changed in the time of Henry I. Crabbe, History of English Law (ed. of 1829), p. 78; Hallam, Middle Ages, Pt. II. c. 2.

* In 1514, Henry VIII. manumitted two of his villeins in the following words: "Whereas God created all men free, but afterwards the laws and customs of nations subjected some under the yoke of servitude, we think it pious and meritorious with God to manumit Henry Knight, a tailor, and John Herle, a husbandman, our natives, as being born within the manor of Stoke Clymercysland, in our county of Cornwall, together with all their issue born or to be born, and all their goods, lands, and chattels acquired, so as the said persons and their issue