Topics of Jurisprudence... and Bondage

CONSTITUTION   |   SLAVERY   |   John HURD

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FIRST EDITION OF 19TH-CENTURY JOHN C. HURD'S TOPICS OF JURISPRUDENCE, 1856, BASIS FOR HIS LAW OF FREEDOM AND BONDAGE (1858-62), ESTABLISHING HIM AS "ONE OF THE MOST LEARNED LEGAL WRITERS IN THE COUNTRY"

HURD, John C. Topics of Jurisprudence Connected with Conditions of Freedom and Bondage. New York: D. Van Nostrand, 1856. Octavo, late 19th-century marbled paper wrappers, later spine label, cover title label in typescript; pp. (i-iii), iv-ix (x). (1), 2-113. $2400.

First edition of Hurd's influential and very elusive work, the foundation for his two-volume Law of Freedom and Bondage, here examining slavery's classical, international and American history, its legal principles and judicial decisions, a pivotal and highly contested assessment of state vs. federal sovereignty issued as America edged toward Civil War.

"Unlike many other slave societies, colonial America never developed a systematic law of slavery." Hurd's Topics of Jurisprudence was "contemporaneous with the shifting Southern rationales for slavery. The new Southern view was that slavery was not only necessary but a positive good" (Bush, Free to Enslave, 418, 422n). Variously seen as proslavery and antislavery, Hurd "dealt with the subject of political sovereignty, its nature and limitations," by seeking answers to: "Where is the seat of political sovereignty in the U.S.?… Are the states in the American Union mere administrative departments of the federal government? And, if not… has it from the first been permissible for a state of the Union to abjure its political existence?" (Richman, From John Austin to John C. Hurd, 354-55). "Critiquing statutes and judicial decisions on slavery… Hurd probed conflicts" between the natural and positive laws of slavery (Hadden & Brophy, eds., Companion to American Legal History). This is deemed the "first part of his magisterial" two-volume Law of Freedom and Bondage (1858-62) (Wiecek, Sources of Anti-Slavery Constitutionalism, 241n), which is viewed as "the most profound legalistic treatise on slavery" (Howes H827), and established him as "one of the most learned legal writers in the country" (ANB).

Arguing states were sovereign collectively, he maintained that the three branches of the federal government could be compelled to cease existence "through refusal, on the part of the states acting in union… [and] that any single state may abjure its political existence… by refusal or failure to choose representatives and presidential electors." To Hurd, sovereignty was "a question of fact to be settled not by what is said but by what is done," and states were collectively sovereign in that "the only persons invested with ultimate political power that have ever existed in the American Union… are the electoral bodies in the various states acting in union." As a corollary he asserted that the three branches of the federal government existed "only by the voluntary action of the collective states in sending representatives and in choosing presidential electors," and could be ended at any time "by the united action of states refusing to keep up its personnel" (Richman, 357-58). To scholar Robert Cover, Hurd's investigation, "into whether natural law propositions with respect to slavery have any place in the legal system," came after nearly a century in America in which "judges had chosen the language of natural law to express their moral doubts about the institution of slavery… almost all were constructed on or in response to a simple proposition: Slavery is contrary to natural law." As such Cover notes,"it is no wonder that both the underlying moral proposition and the language chosen to express it would be subject to analysis and criticism… It is the ambiguity, the vague richness of the language of natural law, that made it so convenient, yet threatening, a tool for expressing moral doubt and concern about slave law" (Justice Accused, 8-9). First edition, first printing. Sabin 33989. Drummond, 67. Cohen 9841. Small owner signature above title page.

Text generally with occasional gutter-edge toning, light edge-wear to wrappers. A near-fine copy.

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