constantly. They have lost none of the justice embodied
in the common law of their ancestors—but gained new
justice, and embodied it in their own forms.
This idea of the natural equality of all men in rights is inconsistent with slavery; accordingly it is expressed in the constitutions of but one slave State—Virginia. It is consistently rejected by the politicians of the South. This difference of ideas must appear in all the institutions of the North and South, and produce continual and conflicting modifications of the common law of England, which they both inherit; if the one idea adds justice thereto, the other takes it away.
Now among the institutions inherited from England were the trial by a jury of twelve men in all matters affecting liberty and life; the presumption in favour of life, liberty, and innocence; the right of every man under restraint to have a legal reason publicly shown for his confinement, by a writ of Habeas Corpus. The form of the latter is indeed modern, but its substance old, and of uncertain date. These three have long been regarded as the great safeguards of public justice, and in the legislation of the free States remain undisturbed in their beneficent action, extending to every person therein. In the slave States the whole class of bondmen is in fact mainly deprived of them all.
By the customs of England and her law, while villainage obtained there, the rule was that the child followed the condition of its father: Filius sequitur patrem. Hence the issue of a freeman, though born of a servile mother, was always free. In virtue of this maxim, and the legal presumption in favour of liberty, a presumption extending to all classes of men, the child of a female slave, which was born out of wedlock, was of course free. It was possible the father was a freeman. The child gained nothing but existence from his unknown father, and the law would not make that a curse. The child of a slave father, but born before the father was proved a slave, retained his freedom for ever.
If a freeman married a female slave, she became free during the life of her husband, and the children of course were free.
The slave, under certain circumstances, could possess
