“Allegiance to that Power that gives us the forms of men commands us to maintain the rights of men; and never yet was this truth dismissed from the human heart,—never in any time, in any age,—never in any clime where rude man ever had any social feeling, or where corrupt refinement had subdued all feelings; never was this one unextinguishable truth destroyed from the heart of man, placed as it is in the core and centre of it by his Maker, that man was not made the property of man.”[151]
The same sentiment reappeared in the immortal outburst of Curran, which was the highest testimony to English law. And yet none of these are recognized by our Chief Justice.
In assertion of the general principle, France was not behind England. Schoell, in his “History of Treaties of Peace,” referring to this principle, says that in France “the beautiful maxim has always been followed, that whoever sets foot on French soil in Europe is free,—a maxim which, as we have said, the English tribunals did not adopt till 1772.”[152] Doubtless the general principle may be traced to an early period of French history. It was a frequent boast, and there are instances of its application. An edict of Louis the Tenth, called Le Hutin, or The Quarreller, in 1315, and another of Henry the Second, in 1553, are quoted as declaring the right of all men to liberty by the Law of Nature. At the siege of Metz, in 1552, the Spanish general of cavalry applied to the French commander for the return of a fugitive slave; but the latter replied, that the freedom acquired by the slave, according to the ancient and good custom of France, did not permit his rendition. In 1571, the same principle was maintained against an ambassador, although by the Law of Nations the persons an ambassador brings with him do not change their condition.[153]
These cases are mentioned in the “Causes Célèbres,” a well-known French collection of important trials; and the principle is attested by French authorities in jurisprudence, among which may be named Lebret, and also Loysel, whose works are found in the Library of Congress. I mention especially the “Institutes Coutumières” of Loysel, with the various notes of Laurière, Dupin, and Laboulaye, the last being the very loyal ally of our country, where this principle is stated and illustrated.[154]
The case of the slave at Metz deserves further mention. He had escaped from the besieging general, and taken with him a Spanish horse. The Duke of Guise, who commanded in the city, returned for answer to the application for his surrender, that he could not comply; that his hands were tied by the law of France from time immemorial; that, entirely free as it had been and is, it would not receive a slave: and so it would be, if he were the most barbarous and foreign in the world; having only set foot on the land of France, he is immediately at liberty and beyond all slavery and captivity, and is free as in his own country. The slave could not be returned; but the horse was sent back. The gay and lively Brantôme, who lived for pleasure, was struck by this incident, and, after repeating it “among other beautiful actions,” adds:—
“Truly, we must praise and admire that noble freedom, beautiful and Christian, in France, not to admit such servitudes and slaveries, too cruel, and which savor more of the Pagan and Turk than of the Christian.”[155]
Bodin, in his work on Government, which first appeared in French in 1576, must be quoted also. I copy from the old translation by Knolles, published in 1606.
“But in France, although there be some remembrance of old servitude, yet is it not lawful there to make any slave, or to buy any of others: insomuch that the slaves of strangers, so soon as they set their foot within France, become frank and free; as was by an old decree of the Court of Paris determined against an ambassador of Spain, who had brought a slave with him into France. And I remember that of late a Genoa merchant, having brought with him unto Toulouse a slave whom he had bought in Spain, the host of the house, understanding the matter, persuaded the slave to appeal unto his liberty. The matter being brought before the magistrates, the merchant was called for. The Attorney General out of the records showed certain ancient privileges given (as is said) unto them of Toulouse by Theodosius the Great, wherein he had granted, that slaves, so soon as they came into Toulouse, should be free: the merchant alleging for himself, that he had truly bought his slave in Spain, and so was afterward come to Toulouse, from thence to go home to Genoa, and so not to be bound to the laws of France. In the end, he requested, that, if they would needs deal so hardly with him as to set at liberty another man’s slave, yet they should at least restore unto him the money he cost him: whereunto the judges answered, that it was a matter to be considered of. In the mean time, the merchant, fearing lest he should lose both his dutiful slave and his money also, of himself set him at liberty, yet covenanting with him that he should serve him so long as he lived.”[156]