The Carolina Spartan. [volume] (Spartanburg, S.C.) 1852-1896, 1857-07-02
From tho Charleston Mercury.
The Dred Scott Case.


tied "of Old" ("antiquitus,") by the Roman
Law, viz: if the slave of Roman passed
into the territory Of a people by whose laws
he ceased to DO the slave of the Roman,
and then again returned either to Rome or
any State allied with her, his masters right
10 him (and, If a female to her issue) i'm
mediately revived, and was, in fact, consid.
cred as never suspended.
This was by the Jus Postliminii; which.
in the few remarks we shall here make, we
shall not attempt TO discuss fully. This
would be not only unnecessary, but beyond
the scope Of our purpose, as we merely wish
briefly TO indicate the strong and perhaps
curious coincidence, between the bred Scott
case decision aud the Roman Law. Intend.
ing, therefore, to coniine ourselves strictly
TO the case of slaves under this Law, we
shall at once give our authority for apply
ing 1t TO them. Ii is as follows: "Postlimi.
! MUM omnibus hominibus est, cujuscunque
sexus conditions We sint, nee interest liberi
an seryi sint." "All men, whether bond or
fee, enjoy the law of Postlimnium."-F
10, 10 de capt. ct de Postl. (49,l5) cf; also
fr. II Ia; fr. 10, 5, 6, and fr. 80. h. t.
"Postliminium," says Paulus, ais the law
by which we recover from foreign state
thing lost, and Of restoring it 10 its pristine
condition" ("Postlin,inium est jus an,is,
S@ rei recipieaU ab ertrdneo ct "a Statuna
PristinUm restituende.w-Fr. 10 pr. h. t.
From this it follows that slave which
was lost to his Roman owner, by coming
into the possession of some foreign people,
and then again recovered from them, " as
restored TO his former state, l. e. became
again the slave Of his quondam owner.
Modern writers upon international law full
| ly admit that this jus poStiiminii forms a
! part cf it, but would seem to limit it TO
times of war. However, though this is the
very natural result of the great change
which has taken place in the intercourse
between foreign nations, and though we
freely admit that, ow-adays, the chief and
almost only practical use of this law is in
! times of war; still this restriction finds no
justification either in Roman law, or in the
earlier writers.
International law-the jas inter gentes,
amorg the Romans, if such it may DO call.
ed-consisted in denying 70 a stranger,
when on foreign soil, all rights whatsoever,
save such as were expressly Sunrsaiied TO
him by Treaty, or some iof< <6t kse1fa sgree.
meut Hence If n Roman citixeB went in.
TO a country not bound to Rome by some
treaty, &c, not only did all that he had
with him become the property Of whoever
chose 10 seize it, but he himself became the
slave OF his captor. Aud so firmly was this
established rs principle Of their law, that
We doub. much il tho Romans ever rode.
mandel their citizen III such a case.-Fr.
5, ,, h. l.
But as time rolled on, and commerce be-
came a necessity, tho Romans formed trea.
ties with almost all the world; and hence
there was but little necessity for this law,
save in time Of war, when the treaty, DC,
having been soleInny declared by the Fet-
/ dicS broken, and the Romans absolved from
It's observance, everything relapsed into the
| old state, and the hostile stranger was de-
prived of al! protection. And this is the
reason, perhaps, why, even in the Digests,
this law is mentioned chiefly in connexion
either with war or with the Parthians and
Germans, with whom alone of the then
known world, the Romans probably had
generally no treaty, &c.
Again: when Christianity had abolished,
10 great extent, ancient barbariiies, and
by teaching that there was but one God
for all mankind, and not local separate and
independent gods for each country, with
power confined to its limits, had given to
the world q great centre point of union
thus laying the foundation for an altogeth-
cr different law Of intercourse between ma.
tions--this law of posttiminiuns was still
less needed than beiore-in fact, even less
now in time of war than ancientiy in peace
For, instead OF being now the prey of any
one who may seize him, even the hostile
stranger is, in any of the nations OF Chris.
tendon, (between whom alone, strictly
speaking, International law obtains,) safe
from personal scrvilude. and from being
despoiIcd Of his property.
And ii is not little curious, rs marking
tho change in the law, to notice the differ
enco with which successive writers on the
law OF nations have treated this subject.
Grotius (dcj,rs JtlH ct pdcis, lib III, cap.
o. discusses fully the doctrine as laid down
by the Roman law, rs obtaining both in
peace and war; and giving its application
to land only slight prominence, concludes
with these words:
But in our times, not only among Chris
tisns, but also amongst most Mahomoiaus,
has the night to make captiveS, except in
war, and with it the jus postlimiaH also
ceased; the necessity for both being remov-
cd by the restored power Of the relationship
which nature has wiIed should exist among
men. But this ancient law of nations may
We, be required, il we ever have to deal
with a nation so barbarous as should, with.
out any notice or cause, treat rs enemies all
foreigners and their property"
And Vatlcl lie Droii des Gems, Hv Ill,
chap. Il, 2OD in his definition of it con
fines it expressly to times Of war: ("less
personneset loschoses prisos par reueme;')
aul while affirming (2o0) that naturally,
all things are capable OF being recovered
10y it, restricts it in fact to real estate only.
And Wheaton elements la droit inter
tt,f n - -t.I