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.Hi ill (itJVHkX QJIIItbt

BOBTQHi
LITTLE, BROWtf & COMPANY.

w yoek: :

D. VAN NOSTRA KB.

M.DOCCJ.VIII.

Enteeed according to Act of Congress, In tho year 1858, by

JOHN COiDllAN IIURD,

in the Clerk's Office 0/ the Bistri'ci Court of the tJnited States, for tho Southern

District of New York,

Y- i

JOHtf F. TROW,
Not 377 & 379 Broadway, New Yoilc.

25463

MY FATHER,

THIS WOBK,
THE RESULT OP STUDY
ALWAYS PROMOTED BY HIS GENEROSITY

AND INCITED BY HIS SYMPATHY,
IS GRATEFULLY
INSCRIBED.

P E E F A C K.

O2* the imhl&ztwn cf a volume whr&i Utte mlk&fs® its
amnectwn mth queztwns arming from the gzhtenee of negro
slavery in the "United Btetzz, & recelteetum <ti the number &n&
variety of the existing works on that mlqeet villi suggest the yzo~
nriety of some prefatory exposition of the author's \mnt of view.
Although, the questions considered In this work are not fre-
quently matters of controversy in courts of law, and derive their
principal interest from their connection mth objects of mote
political and public importance than are the litigated rights of
private persons, yet it is designed and published as a legal or
juristical treatise, or one which, if not technical, may still with
strictness he called a C£ law book." It is intended to present
statements of law only, without the introduction of any consider-
ations of the effect of such law on the moral or religious, the
social or political interests of the nation or of the several States-
Having this character exclusively, it follows that the pro-
posed work cannot he expected to contain any thing essentially
new: simply because, if such, it could not he law. The merit
of a treatise of this \kmd must always consist i \ presenting no
proposition without adequate reference or deduction, showing
that the same has already been said, or, at least, if not said, has
been implied in former juridical expositions. H ' f -

foul \.Wi i'M ItfiMi't fi.V.,;', Mfaitff :>h')\Usfiif ftl4 Hf of fitffi-

{/tit*;- bipjt'i ftnf, ?>l •''(' /.{' \sNi(i fiWMf Ui fM?(* frf't^f tiM\tWityif Of

h}\i\Htt4 flff MWwif Of (iiUUtttii;/ d'-ffittiVM ftOpftMoitti,

y/h-iifv/,,/ ri'V/Mif;/ itikjf ki foiiitd Ui IhO H\(Htiii$ (>'■''//■ i -//Vl'f
Hifi«U(. m Ihft tfff'ihjM iftfuiiy/'tn^ni ot tit$4<u0ilh ftt.dttfj M
H'ix'Util {in(>(t,u*'<(ff k'/// ('.(ffftiMted tilth ffa tuti/ftf, tit IMrf
ffffrfcW t>r(W j iyrti$ff- )ii dtnity tinfy \ti ttiirj fit) titdb f/> fi^Mi
ifai pfofMtii^irfi i/hkii/iir {fa difatimiott of tfo tvartjuf, of

hiMtirjmdof tfa km of {fa (Mud m&U&j m mtromiy tub
mmd m mimdibtoty of htitogohUtte, a% k mitty ttoi 00,

itffidffitM in itihg » tormb MMmtib of tbe W m tba
mi>i$6bf iho tfopmd tmtitts atumi b& of a pttiim ohmttot^
Of emmb fa* otfawim tbm lmp^ttki \u respect; to tbe objects*
of foiiti&tt f«ife/ fo? tbe exposition of existing law k merely
t\i& ^idm&nt of tfa fact, md fa entirety distinct ftom any ap-
proval 6f (ttmfpfov&l of that kw, on grounds of moral or politi-
cal expediency, Thk will probably be admitted by all who
have made the law to any great extent their study Bat the
popular manner of treating the subject of slavery may warrant
the belief that a very large proportion of those who participate
in snob discussions would not admit the proposition, and do not
'ordinarily discriminate between tlie legal or j mistical view pf
subjects of social interest and other views essentially ethical or
political.

The failure to distinguish between the science of law' and
that of ethics has been common in every country, and manifested
in connection with many subjects of social interest ; but never
nor in any country more plainly than in this, at the present
time, in controversy excited by the subject herein considered.
The connection between private rights and public law, which
.everywhere exists, is particularly visible in the jurisprudence of
- republican states, and is in this country not merely a matter of

MM Mb,

•<tn

iibprliih"'' '''f-V/jiii k H'tyttuU'-ti uwi U <foM'j ttp'fuiiM tft

Mlf't'1 \ii tfai C'tiutiw bi'tytwJ, (<f ihfj MthUtuiufyf fih« tit"

tikUlmi um&m </f mUfy may tfaf 10m entity Uw

Sn iUf hdkf tfat thin tetttkm? mimn pfitidp&tiy f/om &,
mtib <i ptmMm he tfaj 6AMoa§ of hw md in the fmmim
wMtih express if/e teftl pt</po4tioii& (A 'ftn&pitt&ettce, the follow*
kg ezaiMti&tiv® (A the fam of the XSiAtad Kitties &ffeetkg per-
mit&l (ioii(iUi6n hm teeri eommerje&l hy & prelimimry exposition
of thorn principles of general jurisprudence vrhieh would he
flecessan'Iy involved m considering the incidents of free condition
and its contraries in whatever country they might exist ; and it has
lawn attempted at the same time to discriminate for me m the
succeeding inquiry each terms, already adopted by writers of
admowledged. reputation, as are requisite to express the neces-
sary distinctions.

Some principles are necessarily assumed without proof ; and
when stated, as abstract propositions, without; being illustrated
by application to cases, only those already familiar with the
questions to which they apply can be supposed to perceive their
relevancy. The value of the abstract or elementary portions of
this treatise may be tested by their attempted application to the
practical cases presented in the succeeding portions. It must
be confessed that while a great deal of the literature of jurispru-
dence may illustrate the constant need of such reference to ele-
mentary principles and discrimination of language, it will also
illustrate the -fact that they do not ordinarily receive much
attention. And the dictum attributed to Bartolus, "de verbi-
hus non curat - Jurisconsultus," if regarded as the statement of a

viii

l'IUCFA.015.

fact, \h perhaps now'iero better vindicated than whero the inci-
dents of bond and free < 'idition have been the topics of legal
investigation.

Since il, \h principally as connected with public or constitu-
tional law that the incidents of free condition and itH contraries
have been made the subject of logal inquiry, and now excite
inoHt discussion, they have, in the greater portion of the following
pages, been presented in that connection.

It seems natural to Bupposo that, in the jurisprudence of
every country, that which in its place in the system is most fun-
damental must also bo that portion which is least the subject of
legal doubt, or that which may the most easily be ascertained
in tho harmony of judicial determinations. So it will probably
be thought by most persons that in the exposition of any class
of private rights and obligations arising under American law
the constitutional law connected with the subject, or the meaning
and effect of the Constitution of the United States in that con-
nection, espec'illy as determining the political source to which
existing rights of private persons are to be referred and on
which the continuance of their rights depends, must be that
portion of the inquiry giving the least occasion for independent
investigation or original reference to elementary principles of
construction and interpretation.

But that, in some of the most important questions of consti-
tutional law, the private inquirer cannot so implicitly refer to
their determination by judicial opinion, or could not, at least, so
lately as the yea." 1837, might be believed from the strong ex-
pressions used by the late Judge Baldwin of the Supreme Court
of the United States, in his General View of the Origin and
Nature of the Constitution and Government of the United
States, &c, &c., commonly cited as Baldwin's Constitutional
Views, published in that year. See page 2, where he says, " It

IMtKFACK.

had long beer to mo a subject, of deep regret that, notwithstand-
ing the numorouH, consistent, most solemn, and (with some few
and mostly late exception**), to my mind, most satisfactory ad-
judications of thin court Jtho Supremo Court of the United
States], in expounding the Constitution, its meaning yet remains
aa unsettled, in political, professional, and judicial opinion, as it
was immediately after its adoption. If one is to judge of the
next, by the results of tho past half century, there is but a slight
•issurance that that instrument will be hettei understood at the
expiration, than it is at the beginning of the period."

And were not tho apprehension hero expressed well founded,
it would generally be felt that the exposition of the fundamental
princip^s of American constitutional law must be as easily at-
tainable by any private writer as is that of the ordinary law of
private rights and obligations. An industrious collation of ex-
isting judicial decisions should be as sufficient to establish a
deduction of the true principle in that department as in any
other of our law. Yet, in no portion of juristical literature, does
the reader so commonly expect that the author undertaking the
exposition should be supported by the prestige of a precedent
reputation which may give his views an authority beyond any
they could have by being simply impartial deductions from the
ordinary elements cf legal knowledge : as if it were generally
understood that in treatises on constitutional law the writer,
instead of relying, as in other departments of jurisprudence, on
the force of judicial decisions, should himself enter, more or less,
on an independent construction and interpretation of the Consti-
tution, and test the value of the decisions by his own several
deduction from the bare text of the instrument.

And, indeed, Judge Baldwin's further observations, in con-
tinuation of the passage just cited, indicate that this idea has
been countenanced by the practice of the court itself. " It is to

PREPACK.

be feared," he proceeds to Hay, " that unless Homo mode of inter-
pretation different from what has been usually pursued in argu-
ment is adopted, the present uncertainty must become utter con-
fusion. In reviewing the course of argument on both sides in
these cases, the remark is fully justified that we have been re-
ferred, for the true interpretation of the Constitution, to books,
essays, arguments, opinions, speeches, debates in conventions
and legislative bodies, by jurists and statesmen, and by some
who were neither, which would not be offered or suffered to be
read in any court, as entitled to respect, in construing an ordi-
nary act of legislation, or a contract between individuals."

The generous reader will not believe that, in this allusion to
the miscellaneous nature of former inquiry in this department,
the writer would insinuate an argument for the favorable recep-
tion of his own observations on one of the most important sub-
jects of constitutional law. No one can be moro sensible that,
in proportion to the interest of the inquiry and the deficiency of
the ordinary means of attaining juridical certainty must be also
the demand for special qualifications in the writer for such inves-
tigation, and be more aware of his exposure to the charge of pre-
sumption in their absence. The testimony of Judge Baldwin is
here adduced not merely as showing that the decisions of the
highest courts may not in this matter have been successful as
harmonious expositions of the fundamental principles of Ameri-
can public law, but more particularly because in that connection
he has maintained the authority of common law as the control-
ling juridical instrument for attaining a knowledge of the pur-
pose and legal effect of the Con jtitution of the United States ;
and because that view is in harmony with the method which has
been pursued in the following work. In the place referred to,
Judge Baldwin also said, " I have long since been convinced
that there are better and safer guides to professional.and judicial

TREFACE.

inquiricH after tnith, on constitutional questions, than those
which havo been bo often resorted to without effecting tho do-
fliied result, a clear and settled understanding of the terms and
provisions of an instrument in writing which operates with su-
premo authority wherever it applies. To mo it seems that it
can be made intelligible in all its parts by applying to it those
established rules and maxims of tho common law, in the con-
struction of statutes, and those accepted definitions of words,
terms and language in which they had been used and been
received, as well known and understood, in their ordinary or legal
sense, according to the subject matter. In appealing to the
common law as the standard of exposition in all doubts as to the
meaning of written instruments, there is safety, certainty, and
authority. The institutions of the colonies were based on it,"
&c, &c. ; and on page 7 of the same, " I know no other guide
which is safer, which better conducts the mind to certainty, nor
do I feel at liberty to follow any other than thu principles of the
common law that are well established and applicable to a case
arising under the Constitution, and which turns upon its inter-
pretation ; their adoption has been, in my judgment, most clearly
made by every authority which can impose the obligation of
obedience."

The question indeed will have to be answered, what is com-
mon law ? or, rather, what is that common law which is to be
made the standard ? This can only be a historical question — a
question of fuct ; requiring a preliminary examination of the
history of jurisprudence, or of laws deriving their authority from
those possessors of sovereign power who established the Constitu-
tion, or from their political predecessors. And this again in-
volves the recognition of those elementary principles which enter
of necessity into the jurisprudence of every country, and by
which its origin, continuance, and extent, may be determined ;

xii

rilKFACE.

and which, in their connection with tho aul ject of free condition
and its contraries, are discriminated in the elementary or theo-
retical portion of this treatise.

This inclination or practice of deferring to extrajudicial au-
thority in questions of constitutional law far more than is cus-
tomary in other departments of legal science, must indeed bo
ascribed in part to tho fact that in republican states such ques-
tions are always more or less political, as well as legal questions
so much so that, whether they are one or the other, whether
they are to be decided by the judiciary or by some other branch
of the government — itself a constitutional question—can hardly
be decided by either branch alone. It may be thought that the
attempt made in the eleventh chapter of this treatise to answer
the basal question of our constitutional law, From whom does the
written Constitution derive its authority ? or, Who are the pos-
sessors of sovereign power to whom its existence and continuance
is to be ascribed ? or, What is the political organization — na-
tional or federative — of the United States ? is beyond the scope
of this treatise, as confined to subjects of legal inquiry only.
Yet that the same questions have been frequently objects of
judicial consideration, is abundantly illustrated by the reports,
and in no class of cases, probably, more commonly than those in
which the rights of slaveowners under the Constitution have been
the subject of controversy. It is however, essentially, a political
question, and one which, no judicial tribunal whose authority is
dependent upon its answer can, in the nature of the case, deter-
mine. And that its settlement has not been attained by such
decisions is certified by Judge Baldwin in the work referred to,
page 36 ; where, after presenting that view which had been sup-
ported by the decisions, and which was his own opinion, he ob-
served, " These considerations, however, have utterly failed to
settle the true meaning of the term, ' We, the people of the

PREFACE.

xiii

United States,' as the granting or constituent power of the
federal government. So far from thero being any general assent
to that meaning which, to my mind, is so apparent in the Con-
stitution, with its necessary practical resultH, which its framers
and adopters must have known and foreseen to bo inevitable, the
reverse may bo tho cominou opinion."

The question, Who makes the law of the land I live in ? is
one which each private person, required to yield obedience in tho
name of the law, is always supposed to be able to answer for
himself, independently of judicial decision. It is the question of
allegiance, Who is the actual possessor of sovereign power ?
which in most countries is never asked if the decision of a judicial
tribunal would be a sufficient answer. That, here, the question
is asked and answered by judicial tribunals is the best indication
that ours is a constitutional government. But tha intrinsic
character of the question, as one above law not under law, is still
the same, and in saying that in every State of the Union each
private person owes an allegiance divided between the State and
the United States, there is an implication that he may be
obliged to answer the question in circumstances where no judicial
decision would be taken for an answer. And in American courts
of law, as everywhere else, the answer is to be attained by his-
torical investigation, not by the ordinary juridical standards of
judicial determination. No common law even will decide it ;
except as history may show from whom common law, public and
private, has proceeded. The method, therefore, of inquiry, in-
dependently of judicial decisions, which is here pursued, is not
inconsistent with that deference to such authority, as the best
exponent of law, which is professed in the outset.

Of the first two chapters of this work a few copies were pub-
lished in August, 1856, with the title, Topics of Jurisprudence
connected with conditions of Freedom and Bondage. And it

xiv

PREFACE.

may bo pertinent to add that the third and fourth chapters wore
also printed at tho sanio time, though, hy the failuro of eyesight,
the writer was prevented from proceeding with tho publication
as then intended, end the plan of the remaining portion waa
afterwards enlarged, in view of considering more fully tho ques-
tions Involved in tho case of Bred Scott v. Sandford, decided De-
cember term, 1856, in the Supreme Court of tho Unitod States.

Nkw York, Augutt, 1858.

CONTENTS.

[Observation. — The several chapters of this work, though numbered continu-
ously, may be classified into three parts or divisions. First^ The Elementary or Ab-
stract Portion, contained in the first and second chapters ; Second, The Historical
Portion, contained in the third and following chapters, to the eleventh, inclusive ; and
Tlrird, The Practical Portion, contained in the remaning diopters of tho work. A
corresponding arrangement into Books or Parts, such U5 is sometimes made in the
treatises, has not been adopted, from believing that such subdivisions practically di-
minish facility of reference, and tta\t "it will be sufficient to call the attention of the
reader to this essential feature La the composition.]

CHAPTER I.

LAW DEFINED AND DIVIDED. ITS OBJECT, ORIGIN, EFFECT AND EXTENT.

Law defined.

SEC PACK

1. The primary and secondary meanings of the word law, . . 1

2. The law of nature, whether so called in the primary or in the sec-

ondary sense, . . . . . .1

3. Two different views taken of the source of law, so called in the pri-

mary sense, . . . - . . .2

4. Meaning of the term jurisprudence, and whether it includes ethics, 3

5. Jurisprudence is the science of a rule identified with the will of the

state, ........ 3

6. The natural law, being law in the secondary sense, is recognized in

jurisprudence, . . . . . . -4

7. The natural law, being law in the priiwry sense, is determined by

the state when recognized in jurisprudence, . . .5

8. In jurisprudence the natural law is not contrary to the will of the

state, ........ 7

xvi

CONTENTS.

, Law divided.

hKC. PAOK

9. Of national law, otherwise called municipal, . . .7

10. International law, a rule anting on nations as its subjects,, 8

11. The authority of national and international law compared, . . 9

12. International law, acting on nations, is not law in the strict pense, 10

13. The recognition of natural law in national arid international law, . 10

14. Natural law becomes a coercive rule in being identified with the will

of the state. . . . . . . .11

15. Insufficiency of Blackstone's definition of municipal law, . 12

16. Wbo may ascertain the law of nature for the state, . . .13

17. Positive law and jurisprudence, defined, .... 14

18. C jmprehensivr nesa of the term jurisprudence, . . .15

19. General or universal jurisprudence defined. ... 15

20. Use of the term " law of nations," . . . .17

Object of the lavs.

21. Of the distinction between persons and things. . . .18

22. Relation?, consist of rights and obligations, ... 19

23. Rights of persons and rights of things distinguished, . . 20

24. Subjects and objects of rights, ..... 20

25. Public and private law distinguished, ... . .21
23. Law applies to territory and to persons, .... 22

27. National and international law are thus differently applied, . . 23

Origin of law.

28. Natural reason acknowledged in positive law, . . .24

29. Of legislation and the judicial function, ... 24

30. Of the authority of judicial precedents, . . . .25

31. Of customary law, ...... 26

32. Of the authority of private jurists, . . . . .28

33. Of the authority of foreign laws, ... . . 28
34 Of the authority of universal jurisprudence, . . .29

35. Unwritten or customary law, a part of positive law, . . 30

36. In what manner international law is derived, . . .32

37. In what manner international law operates, ... 34

38. Universal jurisprudence, a part of national and of international law, 34

39. The law of nature may be variously received, ... 35

Effect of law.

40. Of individual and relative rights, . . , . .36

41. Of liberty as an effect of law, ..... 37

42. The legal and the ethical idea, and objective and subjective apprehen-

sion of liberty, ...... 38

CONTENTS. XVii

■kc. rkjax

43. Of the condition of freodom and its contraries, - .39

44. Of legal pcrsonn and cliattel slaves, .... 39

45. Of bondage of legal persons, . . . . .42

46. Use of the terra slavery, . . ... 42

47. Different kinds of slavery distinguished, . . .43

Extent of law.

48. International law divided into two portions, . . . .44

49. The first portion described, a law in the secondary sense, . 45

50. The second portion described, a law in the primary sense, . . 46

51. Of the dominion of a state and its national Uw, • • 46

52. The exposition of law is always historical, . . . .47

53. The national law is internal or international according to its personal

extent, . . . . . . .47

54. Of native, alien, and domiciled subjects, .... 48

55. The law has different extent to different persons, . . .50

56. Itf extent to persons depends on the will of the state, . . 51

57. Of laws of universal personal extent, . . . .51

58. The extent of laws manifested in the application of international

law, . ••».... 51 1

CHAPTER n.

FAKTHEB CONSIDERATION OF THE NATURE OF PRIVATE INTER NATIONAL
LAW; ITS ORIGIN AND APPLICATION. ITS EFFECT UPON CONDITIONS
OF FREEDOM AND BONDAGE.

Joneeptiont preliminary to the existence o f private international law.

59. Connection of the subject with axioms already stated, . . 53

60. International law acts on private persons in being enforced by some

one state, . . . . . . .53

61. Private persons are distinguished by axiomatic principles of universal

jurisprudence, . . . . . . .54

62. Of the universal reception of such maxims in international law, 54

63. Statement of the first two of these maxims, . . .55

64. These maxims are law in the secondr.ry sense, ... 55

65. A distinction among the relations recognized in international law, . 56

66. A necessary difference of international cooperation in determining

these relations, . . . . . . .67

67. Statement of the third maxim, .... 58

68. Necessary identity and coexistence of these maxims, . . 59

69. The interna tioncl law, how distinguishable from internal law, . 60

xviii

CONTENTS.

In what manner private international law in developed.

■ft FAOK

70. Possibility of a maxim of international law which shall be a rule of

action, . . . . .GO

71. Difference in the power of any one state to determine one or the

other class of international relations, . . .61

72. Difficulty of finding a rule greatev in respect to one class of relations

than the other, . . .62

73. Under which class of > slatione are those of which status or condition

is an incident, . . . . . .63

74. The recognition of anterior subjection to a foreign law, . . 64

75. Of rights which may and which may not continue after a change of

jurisdiction, . . . . . . .65

Duty of judicial tribunals applying international law.

76. The tribunal meat ascertain the wiu of the state in the case, . 66

77. Consequence of the recognition of the jural character of the laws of

other states, . . . . . . .68

78. True reason of the rule called comity, G9

79. Huber's three maxims, . . . . . .70

80. Judicial comity is in fact customary law, . . . 71

81. How later jurists have followed Huber, . . . .73

82. Story's version of Huber's third maxim, ... 74

83. Foslix concurring with Story, . . . . .75

84. Practical effect of the ordinary doctrine of judicial comity, . 76

85. Judicial measure of the allowance of foreign laws under what is call-

ed comity, . . . . . . .79

86. Laws of different origin but similar in effect, 79

87. Laws of different origin and dissimilar in effect, . . .80

88. The effect of foreign laws limited by laws having universal personal

extent) . . . . . . .81

89. Of exceptions to the extent of laws otherwise known as universal in

extent. . , . . . . .82

90. Effect of such exception in the allowance of foreign law under what

is called comity, . . . . . .83

91. Individual rights may be attributed by laws of universal personal

extent, . . . . . • .83

92. Laws of universal personal extent discriminated by judicial action, 84

93. The juridical action of all or many natictn is a criterion of the ex-

tent of laws, . . . . . . .84

94. Universal jurisprudence cognizable from the history of the law

among all or many nations, . . . : .85

95. Universal jurisprudence, derived a posteriori, becomes applied a

priori, . . . . . . . .87

CONTENTS. XIX

BSC. PAQK

00. Judicial allowance of effects ascribed to universal jurisprudence, 87

97. But universal jurisprudence lias not authority independently of the

authority of some national law, . . . .89

98. Universality prodicablc of law with reference to different, subjects of

ita extent, nations, and individuals, . . . .90

99. Effects of universal jurisprudence may be limited by laws of uni-

versal personal extent, . . . . .91

100. Justification of the recognition of a universal jurisprudence notwith-

standing this limitation, . . . . .92

101. Universal jurisprudence developed by the application of interna-

tional law, . . . . . . .93

102. How Ip.ws of universal personal extent may be judicially discrim-

inated, . . . . . . . .95

103. Of legislation as limiting the judicial application of elementary prin-

ciples, . . . . . . . .96

Of international law determining status or personal condition.

104. Of international law re^-arded as a department of private law, . 97

105. Impropriety of the term conflict of laws, ... 97

106. In having iiitfrnational recognition laws have a personal extent, . 98

107. Their international recognition is not dependent oi their personal

character, .... . . 98

108. Laws of personal condition or status may receive international re-

cognition, ....... 100

109. Personality or legal capacity a necessary topic of private interna-

tional law, . . . - • • 101

110. Relations incident to status are internationally recognized when as-

cribed to universal jurisprudence, . . . 102

111. Principles of a universal jurisprudence may be applied to a partic-

ular class of persons, ...... 103

112. How far conditions of freedom or of bondage can be attributed to

universal jurisprudence, ...... 103

113. Conditions supported by universal jurisprudence become conditions

under the law of the forum, ..... 104

114. Conditions not so supported may still be sustained by what is called

comity, . . . . . . • • 104

115. The recognition of chattel slavery under comity limited by universal

attribution of pereonality, ..... 105

116. The recognition of the bondage of legal persons limited by the uni-

versal attribution of individual rights, .... 107

117. Slavery created by foreign law recognized where liberty is not uni-

versally attributed, . 109

118. May still not be recognized, though a bondage exists under the local

law, . ..... . • ♦ .110

CONTENTS.

SEC. PAGE

119. Though disallovred, slavery is not supposed to be contrary to justice

in the place of doraicil, . . . 110

120. Though disallowed in the forum, its incidental effects in the foreign

jurisdiction may be recognized, .... Ill

121. These principles may operate as internal law, as well as interna-

tional law, . . ... . . 112

122. Action of judicial .tribunals distinguished from the autonomic act

of the sovereign, ...... 112

CHAPTER HI.

OF THE ESTABLISHMENT OF MUNICIPAL" (NATIONAL) LAW IN THE ENG-
LISH COLONIES OF NORTH AMERICA. PERSONAL EXTENT OF THE
COMMON LAW OF ENGLAND.

Political foundation of law in the colonies.

123. On a change of sovereigns the territorial law of a country con-

tinues, . . . . . . .' . 114

124. The personal quality of laws manifested in colonization, . 115

125. Of the extent of English law in countries acquired by the British

crown, . . . . . . . 116

126. The common law of England accompanied the English colonist as

a personal law, . ... . . . 118

127. Local laws of the colonies required not to be contrary to that law3 119

128. Of political authority in America derived from the compacts of the

colonists, ....... 120

129. Of the force of legislative declarations by the local governments of

the rights of private persons, . . . . . 123

130. Of the common law, having personal extent, as a political guaran-

tee of the rights of the colonists, .... 124

131. Of English common law as limiting the legislative power of the

Government, . . . . . . 126

132. The common law of England had the character of a national law

in the colonies, ....... 129

Of personal condition as an effect of English law in the colonies.

133. Of freedom or liberty as the result of positive lawj both public and

private, ....... 129

134. Civil and political liberty, liberty by public and by private law,

distinguished, ....... 130

135. The idea of civil freedom includes that of a political guarantee, 130

CONTENDS. SSl

sec. : PAGE

136. The liberties of the English colonists, rested on common lew of

national character, . ... . . 131

137. The entire body of common law was not, as a personal law. trans-

ferable to the colonies, . . . . . 132

138. The right of property under this personal law, existed only in refer-

ence to things known to the law of England, . . . - 133

139. The English law of individual rights, and. capacity for relative

rights, was the law of status for the English colonist, . . 133

140. Cf the guarantees in English law of the rights incident to free con-

dition, . . . . . . . . 134

141. Villenage at common law was never transferred to the colonies

under personal laws, . . . . . . 135 •

142. The relation of master and servant under the law so transferred

was one founded on consent, . 137

143. Of the rights of the master, incident to that relation, in respect to

third persons, . . . . . . . 138

144. Of universal jurisprudence, affecting personal condition, forming

a part of English common law, .... 139

145. Ordinary apprehension of the extent of the attribution of personal

liberty by English law, . . . • . . 140

146. In what sense the law of nations is said to be part of the law of

England, . ... . . . 140

• CHAPTER IV.

ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES,— THE SUBJECT CON-
TINUED. OP PRINCIPLES OF UNIVERSAL JURISPRUDENCE, RELATING
TO EEEEDOM AND ITS OPPOSITES, ENTERING INTO THE COMMON LAW
OF ENGLAND.

Of the evidence of the existence of a principle of universal juris-
prudence.

147. Proposed exhibition of doctrines of universal jurisprudence "affect-

ing status at the planting of the colonies, . . . 142

148. Of the Roman law as an exposition of universal jurisprudence, 143

149. Conception of jurisprudence by the civilians, as including ethics,

pointed out, . . . . . . 145

Of the analysis of law which is made in the Institutes.

150. Of the jus publicum in the Roman law, .... 146

151. Analysis of jus privatum according to its supposed origin j recog-

nition of a jus naturale, ..... 147

SXil CONTENTS.

SEC. PAGE

152. Of the jus gentium and jus civile or jus proprium ; recognition of

. naturalis ratio, ....... . . . 148

Of the attribution of chattel slavery to jus gentium ly the Soman

jurists.

153. The Romans held slavery arising from captivity to be based on

natural reason, . • . . . . . • . 149

154. The Romans ascribed all slavery to the jus gentium and to natural

reason, . . . .- ... . 151

155. Illustration of the meaning of constitutio juris gentium in the Ro-

man law, . . . . . . . 152

156. In Roman law slavery was the chattel condition of a natural person, 153

157. The same doctrine recognized in the jurisprudence of all the an-

cient states, ....... 154

Of changes which have taJcen place in universal jurisprudence affect-
ing personal condition.

158. How the fact of such change may be known, . . . 155

159. Changes occurring in international law are not simultaneous among

all nations, . . .... . . 155

160. Effect of Christianity in modifying slavery under the Roman

empire, ....... 156

161. By this modification slavery was no longer attributable to univer-

sal jurisprudence, ...... 157

162. Similar effect of Christianity on slavery among the nations of north-

ern Europe, . . . . . . . 157

Of universal jurisprudence supporting the slavery of Negroes and

Indians.

163. Of difference of religious creed as a foundation of chattel slavery

in modern times, . . . . . . 159

164. Chattel slavery of infidels and heathens supported by universal ju-

risprudence, ....... 160

165. In the fifteenth century the holding of heathen negroes as slaves

was so supported, . . . . . . 161

166. The traffic in negro slaves was recognized by all the maritime na-

tions of Europe, ...... 163

167. Modern universal jurisprudence supporting chattel slavery has had

limited personal extent, ..... 164

168. Effect of a conversion to Christianity upon slave-condition, how to

be known, ....... 165

CONTENTS.

xsiii

tiZQ. page

169. Difficulty of deriving a rule of universal jurisprudence on this

point from the practice of modern nations, . . . 166

170. How in the law of nations in respect to slaves its reception of uni-

versal jurisprudence may be known, . . . 168

171. Analogy probably found in the effect of Christianity upon the ear-

lier slavery of Europeans, ..... 170

172. The question might be differently answered at different times dur-

ing the colonial period, ..... 170

Of the rule of universal jurisprudence particularly exhibited oy the
juridical action of Great Britain.

173. "Why the common law of every state must exhibit its own recep-

tion of universal jurisprudence, .... 171

174. Christianity a part of common law as it may have the character of

universal jurisprudence, ..... 171

175. Slavery not regarded by a state as contrary to Christianity if sus-

tained in any part of its dominions, • . . . . 172

176. English statutes recognizing the lawfulness of commerce in negro

slaves, . . . . . . . 173

177. Inference that property in negro slaves was recognized by the law

prevailing in England, ...... 176

178. The condition of a negro brought to England, determined either by

universal jurisprudence or local law, .... 177

179. It would be determined either as a question of the international or

of the internal law, ...... 177

The question of the lawfulness of negro slavery in England consid-
ered as one arising under internal law.

180. Of the dictum, "in English, air slaves cannot breathe," and a statute

of Edward VI., .......

181. Case of Butts v. Penny, . .

182. Case of Chambers v. Warkhouse, • . . .

183. Case of Gelly v. Cleve,

184. Case of Chamberlayne v. Harvey, . . • .

185. Cases of Smith v. Brown and Cooper, and of Smith v. Gould, Holt's

decision, .......

186. Case of Peame v. Lisle, Hardwick's decision, .

187. Case of Shanley v. Harvey, Northingtoa's decision,

188. Inferences from the decisions that trover would not lie for a negro,

189. Attempted statement of the legal distinction in these cases,

190. Lord Mansfield's decision in Somerset's case, .

191. Inconsistencies in that opinion, .....

xxiv

CONTENTS.

CHAPTER V.

TIIK BSTABI.JHIIMENT OF MUNICIPAL LAW IN TIIR COLONIES — TIIR BtrBJEOT
CONTINUED. I'lUNOIPI.KH DETERMINING THE CONDITION OK I'KItSONB
TO WHOM TIIK LAW OK KNOLAND DID NOT EXTEND AS A rEHHONAL LAW.

Circumstance* determining the extent of loins of condition in the

colonics.

HTC. PACK

192. Tho territorial and personal extent of laws of condition c* spends on

Bomo possessor of sovereign power, . . . 195

193. Distinction between tho personal and territorial extent of tho

English law of free condition, ..... 196

194. The liberties of the colonists ascribed to positive law, not to natu-

ral law, ....... 1.97

Of law determining the condition of persons not of European race.

195. Classification of natural persons in tho colonies who were alien to

the law of England, ...... 198

196. The law applicable to the original inhabitants, how derived, . 199

197. The law applicable to persons coming from other countries was a

part of international law, ..... 200

198. Necessity of recurring to principles of universal jurisprudence, 201

199. Of such principles determining the condition of tho aboriginal in-

habitants, ....... 202

200. Oi such principles supporting the introduction of negro slaves, 205

201. Negro slavery an effect of customary law, . . . 206

202. Term colonists in the charters how to be understood, . . 207

203. Power of the imperial government to determine the condition of

imported negroes, ...... 208

204. Status of the baptized African or Indian, how determined by custo-

mary law, ....... 209

205. The condition of slavery an effect of the local law of a colony, 212

206. Of the Roman law of manumission, .... 213

207. Condition of the free Indian or emancipated negro was an effect of

the local law of a colony, ..... 214

208. The two systems of personal laws were equally jural in character, 217

Of other laws determining the condition of white persons.

209. Extension of the English law of free condition to colonists of other

European nations, ......* 217

210. Origin of the servitude of white persons for termB of years, . 218
212. Legal incidents of the condition of such persons, . . . 220
212. Extension of English dominion in territory first occupied by other

Europeans, ...... .Ji.221

CONTENTS.

XXV

CHAPTER VI.

THE ESTABLISHMENT OF MUNICIPAL LAW IN THK OOLONIKB — THK SUBJECT
OONTINUKI). LOCAL LBHIHLATION DETERMINING CONDITIONS OF FUKE-
I»OM OK OF BONDAGE.

Of the power of the colonial governments over slavery under the pub-
lic law.

PAGE

National law affecting tho subject distinguished from local law, . 222
Tho local legislative power, in respect to Africans and Indians, was

not limited. by English common law, .... 223
Nor in respect to slaves by the guarantee of the right of property to

the English owner, ...... 224

Of the actual legislation of tlie colonics.

210. Apparent necessity of some legislation in reference to the condition

of slavery, ....... 225

217. Object and extent of the view here taken of colonial legislation, 226

218. Legislation of Virginia, ...... 228

219.

((

Maryland,

247

220.

.«

Massachusetts,

. 254

221.

((

New Hampshire,

264

222.

((

Connecticut,

. 267

223.

Rhode Island,

273

224.

((

New York,

. 277

225.

New Jersey,

282

226.

Pennsylvania,

. 286

227.

((

Delaware,

291

228.

North Carolina,

. 293

229.

South Carolina,

297

230.

Georgia,

. 309

CHAPTER VII.

OF THE PBIVATE INTERNATIONAL LAW EXISTING FOR THE SEVEBAX PABT8
OF THE BBITISH EMPIRE DUBING THE COLONIAL PEBIOD, AND RELATING
TO CONDITIONS OF FREEDOM AND BONDAGE — OF THE CONDITIONS UNDER
WHICH 8UOH A LAW MIGHT EXIST.

General principles respecting the existence of international law.

231. International law based on the possession of sovereign power by dis-

tinct persons, ....... 312

232. Of an integral possession of sovereign power by states or nations, 312

BF.C.

213.
214.

215.

xxvi

CONTENTS.

HKO. I-AOr

233. Of a distributed possession of tho sovereign powers of a state or

nation, ........ 314

234. Of an international or quaai-intcrnational law arising from such

distribution, . . . . . . .315

Of the international relations of tho different parts of the British

Empire.

235. Sovereign powers, how distributed in tho empire during the colo-

nial period, ....... 315

286. Of jurisdiction, and its recognition in private international law, 31G

237. Of domicil us distinguished in tho international law of status, . 316

238. Of tho portions of the British empire distinguished in respect to

jurisdiction and domicil, ..... 317

Characteristics of the law determining the condition of persons not

domiciled.

239. Public and private character of the law determining tho condition

of aliens in a colony, 318

240. The condition of such persons as affected by circumstances already

stated, ........ 318

241. Of a distinction among such persons according to differences of

physical constitution, 319

242. Origin and continuance of law determining the condition of tho

alien of white race, ...... 320

243. Origin and continuance of law determining the condition of the

alien of African or Indian race. . . . 321

244. The condition of the last, whether bond or free, determined by the

local sovereignty, ...... 322

245. The right of the owner of slaves how far resting on national law

of the empire, ....... 323

246. Franchises enjoyed by persons of African or Indian race were not

supported by the national law, . . . . 324

247. Bondage of indentured white servants partially sustained by the

national law, . . . . . . , . 325

248. The law applying to such persons is properly described as interna-

tional law, ....... 326

249. Character of the law applicable to minor apprentices, . . 326

CONTENTS.

xxvii

CHAPTER VIII.

OP THE riMVATIt INTKItNATIONAL LAW OF THE COLONIAL PERIOD AFFKCTIN«
CONDITIONH OF FREEDOM ANI) BONDAGE — TUB BUBJEOT CONTINUED —
OF ITS ACTUAL EFFECT Oil OPERATION.

Of law on this subject derived from a colonial source.

FAQE

lo^. Of tho origin of the law to bo ascertained, either in legislation or

in judicial decision, ...... 328

251. Of tho deficiency of legislative enactments on this topic, . 329

252. Of the deficiency of recorded colonial judicial decision on this

topic, ........ 330

253. Probable international practice with reference to white servants

and minor apprentices, ..... 330

254. The term cervants in intercolonial agreements probably included

slaves also, . 33X

Of law on this subject derived from British precedents.

255. Of the case of Somerset as a precedent of international law, . 331

256. Of two Scotch cases having the like character, . . 332

257. Authority of such cases compared with that of foreign precedents, 333

Of law on this mtyect as derived from foreign precedents.

258. Reasons for recognizing a customary international private law, in-

dependent of what is called comity, . . . .333

259. Authorities on the law of the Netherlands, . . . 335

260. Case of the Polish refugee in Holland, .... 336

261. Authorities on the law of France, . . . . 336

262. Authorities on tho law of Germany, .... 339

263. Of the distinction of race as noticed or not in these authorities, 340

264. The customary law of France as exhibited in the case of Verdelin's

slaves, and of Francisque, ..... 342

265. The rule against the recognition of slavery, as derived from these

authorities, . . . . . . .344

Of the rule of property of alien owner in transit protected by inter-
national law.

266. How Puffendorf and Vattel are commonly cited on this point, . 345

267. Vattel's statement of the stranger's right of transit, . . 345

268. His limitation of the extent of this right,' .... 347

269. The criterion of property is to be taken from these writers, . 348

270. Neither writer recognizes men as objects of property, . . 348

xxviii

00NTKNT8.

BKO. PAOK

271. Why universal jurinprudonoo must bo taken oh determining prop-

«rty under the rule, ... . . 349

.272. Inquiry into thin, why postponed, . . . 340

273. Other proof from Vattel of the inapplicability of the rule, . 350

274. Ths duly of the gtato under international law differs according to

circumfctances, ....... 351

275,. Duty of judicial tribunals compared with that of the state, . 352

276. Tho duty of the tribunal is found in the customary judicial prac-

tice of foreign nations, ...... 353

277. Slavery recognized, under tho rule only when maintained by uni-

versal jurisprudence, ...... 353

CHAPTER IX.

OF THE PBIVATK INTERNATIONAL LAW OF THE COLONIAL PEBIOD AFFECT-
ING CONDITIONS OF FIIEKDOM AND BONDAGE — THE SUBJECT CONTINUED
— EXAMINATION OF SOMERSET'S CASE IN TIIIB CONNECTION.

View of the general principles applicable to tJie circumstance) of t7tis

case.

278. In what connection such cases are here considered,

279. Reference to doctrines of private international law stated in the

second chapter, .......

280. The doctrine of universal jurisprudence anteriorly applied to tha

negro race, .......

281. How far, as part of English co*nmon law, it had sustained slavery,

282. Slavery of negroes attributable to it only while heathens,

283. Slavery not attributable to it if not an absolute chattel condition,

284. If not so attributable, slaves not property at common law nor un-

der the rule of transit, ......

285. Universal jurisprudence, known in the practice of nations, might

have changed, .

286. Proof that it had changed, again stated,

287. Slavery therefore not supported by universal jurisprudence,

288. Nor by English common law, nor the international rule of transit,

289. Might be recognized on this ground in places where slavery con-

tinued, ........

290. But not known as effect of universal jurisprudence when rejected

in the internal law, ......

291. Hence, not so known in Massachusetts and the British isles ; inde-

pendently of foreign precedent, ....

292. Nor sustained by the law having a national and personal extent for

the master, .......

CONTENTS.

xxix

It EC PAGE

293. Classification of the preceding views of tho question, . . 305

294. After these considerations tho refcrenco to what is called comity

remains, . . . . . . . 3C6

295. Reference to the means of distinguishing the extent of Jaws, . 366
290. Personal liberty not then attributed to all in Massachusetts and

tho British Islands by legislation, .... 366

297. Effect of former international recognitions of slavery, . . 367

298. If liberty attributed by internal law to all in Massachusetts and the

British Islands, . . . . ... 367

299. Legal personality may have been attributed to all, . . 368

300. Supposed insufficiency of such attribution, if of tegal personality

merely, ....... 368

301. Attribution of individual rights where some do not actually enjoy

personal liberty, ...... 369

302. How this may have been in Massachusetts or the British Islands, 370

303. Reasons against admitting their universal extent in Massachusetts, 370

304. Personal liberty not then enjoyed by all in tho British Islands, . 370

305. How a natural law is distinguishable in this connection, . 371

306. The extent of the local law determinable by reference to foreign

decisions, ....... 872

307. Its extent, so determined, in Massachusetts and the British Islands,

precluded comity, ...... 372

Application of the foregoing to Lord Mansfield's reasons for hi*

decision.

308. The judgment vindicated by international law operating in three

forms, ....... 373

309. Inconsistency of Lord Mansfield resulting from his doctrine of pub-

lic law, ....... 374

310. The nature of the inconsistency further explained, . . 375

311. Further illustration of the same, .... . 375

312. - Attempt to state the correct doctrine of international law in such

case, ... .... 377

313. Whether negro slavery had, before that case, been lawful in

England, ........ 378

314. Stowell's over-statement of the previous recognition of its law-

fulness, . . . . . . . 378

315. The previous practice of holding negroes in bondage there, why

not legalized, . . . . . . . 379

310. How legal conclusions might be different for England and the

colonies, ....... 381

XXX

CONTENTS.

CHAPTER X.

Or TtIK PRIVATE INTERNATIONAL I,AW OF THE COLONIAL PBRtOD — THE

SUBJECT OOimmiKI) OF DOCTRINES OF TI1M LAW AI'PLYINO TO OASBfl

OTUEQ THAN TnOSK UBSBMBLINO BOHEBSET' J CAJJB.

General principle derived from the jural character of all law.

BKO. PAGE

317. The tribunals of the forum recognize tho lawfulness of slavery in

the place of doraicil, ...... 383

Question of status on return to slave domicil.

318. Opinion of Gudelin on this point, .... 384

319. Position of slave, in the modern case, like that of manumitted

slaves, ....... 384

320. If he had before been a chattel slave he must have acquired person-

ality and domicil, ...... 386

321. How possibly other ^ite if not a chattel but a legal person u*

bondage, ....... 386

Other questions of private international law.

322. The master's claim customarily decided by the judiciary, not the

executive, ....... 887

323. Deficiency of juristical opinion on other supposable cases, . 388

324. International effect of common law as a law personal to the Eu-

ropean colonist, ...... 383

825. The owner's property was not j«a«i-internationally guaranteed by

that law, . . . . . . . 389

326. The condition of a free negro was not jMflwi-internationally guaran-

teed by a national law, ...... 390

327. "Whether any disabilities of the emancipated negro were ascribed

to a universal jurisprudence, . . ... • 390

328. Negro slavery not longer ascribable to the law of nations, meaning

universal jurisprudence, . 391

329. The slave-trade not then contrary to the law of nations, in the

sense of international law, . 392

CONTENTS.

XXX i

CHAPTER Xf.

OF THE INVE3TITI/RK IN THE FISOPTJC OP TIIE SEVERAL STATES AND OF
THE UNITED BTATKB OF THAT BOVKPEIGN POWER WHICH 10 TDK BA8I8
OF CONDITIONS OF FREEDOM OR OF I ONDAGE.

How tlvt possession of sovereign power may le determined.

PICO, paok

330. Change of sovereignty in the Revolution, .... 394

331. Of the relation between freedom and law, . . . 394

332. The possesion of sovereign power is not determined by law in the
ordinary sense, ...... . 395

333. Its possession is an historical question, . . . 390

334. The written constitutions of the United States presuppose an exist-

ing sovereignty, ....... 396

335. The facts indicating the possession of novercignty may bo differently

understood, ....... 398

History of the change which occurred in the Revolution.

336. The word people in the constitutions designates only a portion of

the inhabitants, ...... 398

337. How this people was discriminated at the time of the Revolution, 399

338. Sovereignty before that time had been held by the local govern-

ments, . . . . . . 399

339. Change in the location of sovereign power which occurred in the

Revolution, ....... 400

340. The people distinguished by their action in the Revolution, . 401

341. National and local power were not simultaneously transferred, . 403

342. The people of the United States assumed a national sovereignty, 403

Of the manner in which sovereignty has been held ly the people of

the United States.

343. Their corporate existence as the people of distinct States continued

of necessity, . . . .. . . . 404

344. But the principle of majority did not necessarily obtain in their na-

tional existence, ...... 405

345. The same integral nationality was manifested in the Revolution, in

the Confederation, and in tho Constitution, . . . 406

346. Statement of the theory of the location of sovereignty under the

Constitution which is her© adopted, .... 407

CONTENTS.

I'h'ttmt and nature of tho authority held by the jwoplv of (ho United

Htatm

HKO. 1-AClK

347. Of ;,ho torritoiy occupied by tho original thirteen StatoH, . . 40'.)

348. Of tho territory afterwards acquired by tho United Status, . 410

349. Of the formation of States in territory held by tho United StatoH. , 41 1

350. Tho power of tho political pcoplo of tho United States in independ-

ent of law and of consent of individuals, . . . 412

351. That power is unlimited, or absolute in its nature, . . 413

CHAPTER XII.

CONDITIONS OF FREEDOM AND BONDAGE CONSIDERED WITH KEFEKKNOK TO
TUB l'UBI.IO LAW OF TIIK UNITED STATES.

Liberty considered in connection with the investiture of sovereign

power.

352. Political and civil liberty distinguished, . . . 415

353. Quality of political liberty variable according to its distribution, 41G

354. Two classes of state3 distinguished according to the location of ul-

timate sovereign power, , . . . . . 417

355. On the use of tho terms republic and constitution, . . 418

356. Conditions of the connection between political and civil liberty, . 419

357. Of a constituted government distinct from the possessor of sove-

reign power, ....... 420

Relation of the Constitution of the United States to the condition

of private persons.

358. Of the manner in which personal condition may depend on public

law, . . ... . . . . 421

359. Twofold nature of the Constitution, being evidence of fact and a

rule of action, ...... 422

360. Quality of the power held by the Government of the United States, 423

361. Sovereignty, how distributed between the national Government and

the States, ....... 424

362. Of powers whose nature may vary by their investiture in the na-

tional Government or in the States, .... 426

Means of distinguishing the sources from which the private law may

proceed.

363. Law as opposed to liberty is, under the Constitution, a rule already

determined, and not arbitrary will, .... 426

CONTKNTB.

XXX111

KKO. 1'AOR

3(54. Of tho extent of judicial power under the Constitution, to deter-
mine the source of law, ..... 427

8fi5. Supremacy of tho national judiciary in determining the law con-
tained in the Constitution, ..... 428

«1G0. For all private persons its decisions are tho supremo criterion of

law, ........ 429

3f>7. How State sovereignty must yet bo independent of judicial power, 430

Of the extent of the judicial power of the national Government as
defined in the Constitution.

3C8. Of its extent to cases under certain laws and cases between certain

persons, ....... 432

3G9. Of the terms State and citizen employed in describing the extent

of judicial power. ...... 433

370. Meaning of the term State in this connection, . . 433

871. Decision of Supreme Court that negroes ~ not citizens as the

term is used in tho Constitution, .... 434

372. Argument that in this connection the t. :m means any free person

having a domicii, ...... 435

373. Extent of the judicial power held by tho State Governments, . 437

CHAPTER XIII.

CONDITIONS OF FREEDOM AND BONDAGE CONSIDERED WITH BEFEBRNCE TO
THE PUBLIC LAW OF THE UNITED STATES — THE SUBJECT CONTINUED —
OF THE DISTBIBUTION OB CLASSIFICATION OF PBIVATB LAW AFFECTING/
THOSE CONDITIONS WHICH HAT BE MADE UNDER X BEFEBKNOE TO
PUBLIC LAW.

Private law in the United States distinguirhed by its territorial extent.

374. Law is, in extent, either territorial or personal, . . . 438

375. Variety of the territorial jurisdiction of the powers of the national

Government, . . . . . . 438

376. The Territories of the United State3 are under the jurisdiction of

the national Government, . . . . 439

377. National municipal law and local municipal law, . . 440

378. The Constitution of the United States a part of the national mu-

nicipal law, ....... 441

379. The laws of the several States have no territorial extent beyond

their limits, . . . . . . 441

OONTKNTH.

Private law in tho United States distinguished by its personal extent.

380. Necessary variety in the personal extent of law, . . . 411

.'581. Alienage in international and internal law, . . . 442

382. International relation of those among whom tho sum of sovereign

power is distributed, ...... 443

383. In their local sovereignty tho States nro towavds each ether like in-

dependent nations, ...... 443

384. Alicnago in respect to national and local law ; foreign and domestic

nliena distinguished, ...... 444

Of international law as a part of the internal laws of the United

States.

385. National municipal law of tho United States includes international

law, ........ 445

386. This international law is determined by tho different sources of in-

ternal law, ....... 445

387. Applied in tho United States to two classes of aliens, called foreign

and domestic aliens, ...... 446

388. How far necessarily the same in all the States ; how far may be

different, ....... 447

389. A portion of this law may be contained in the Constitution of the

United States, ....... 448

390. Incidents of naturalization to be considered, . . . 449

391. Powers of the States and of the national Government in respect to

naturalization of foreign aliens, .... 450

392. Powers of the States in respect to naturalization of domestic aliens, 451

393. Basal questions in determining the relations of foreign aliens, . 451

394. Basal questions in determining the relations of domestic aliens, 451

395. Public and private character of international law comprehended in

the national law, ...... 452

396. Of that international law which is derived from the several jurid-

ical powers of the States, ..... 452

397. International law in the Territories regarded as jurisdictions, having

a local law, ....... 453

Classification of the laws of the United States with reference to

these incidents.

398. Reasons for not first distinguishing those laws as either national or

local, ........ 454

399. First distinction of those laws as either internal or international, 455

400. Internal law divided into national and local internal law, . . 455

CONTENTS.

XXXV

HIW. PAOK

40.1. International law divided into domestic international law and for-
eign international law, ...... 455

402. Domestic international law subdivided, . . . 450

40.1. Foreign international law Hiibdivided, .... 450

404. Personal status to bo considered an an effect of those divisions of

the law, ....... 457

CHAPTER XIV.

TIIK NATIONAL MUNIOIPAL (iNTEKNAI.) LAW OF THE UNITED STATES — ITS
EFFECT UPON CONDITIONS OK FItEEDOM AND IT8 OPPOSITE8.

Of the Constitution as a legislative determination of the rights of

private persons.

405. National municipal law to be considered as affecting individual

rights and legal capacity, ..... 458
400. Reference to the distinction between legal persons and legal things, 458

407. Power over personal liberty may have been disclaimed by the

ultimate sovereign, ...... 459

408. Effect of a universal attribution of any rights in the Constitution, 4C1

409. Of limitations on the powers of the Government as securing

rights of private persons, ..... 462

410. Enumeration of such limitations in the Constitution on the powers

of the national Government, . . . . - 462

411. Of limitations on the powers reserved to the States, . . 464

412. Of the character of the Constitution as a bill of rights, . . 464

Consequences from the recognition of the preexisting constituent people.

413. Rights which must be attributed to the individuals composing that

people, . . . . . • • • 465

414. The individual members are known by the then existing laws of

personal condition, ...... 466

415. The private law of the colonies was not abrogated by the Revolu-

tion, 467

416. The Declaration of Independence was not intended to operate as

private law, ....... 467

417. The Congress declaring it had no powers in respect to personal

condition, ....... 469

418. No such effect has been judicially ascribed to such national decla-

rations of right, . . . ... • 471

419. There is no national abnegation of power to limit personal liberty, 471

xxnvi

CONTENTS.

Of liberty as the general olycct, of the public law contained in the

Constitution.

BICO. l'AUK

420. Liberty aa nccurcd by tho Constitution is definable only by refer-

ence to customary law, ..... 472

421. How far provisions in the Constitution restrict the States in their

powers, ....... 473

422. Of political liberty regarded as nn clement of personal condition, 473

423. Political liberty as a personal right is not determined by the Con-

stitution of the United States, .... 474

424. It is determined by tho local law of the several States, . 475

425. The Constitution of tho United States is not a bill of rights as

against the States, . . . . . .476

Of customary or common law included in the national municipal law.

426. Distribution of power to modify the effects of common law, includ-

ing universal jurisprudence, ..... 477

427. In respect to territorial extent common law is local and not

national, . . . . . . . 478

428. But common law is incidental to the exposition of the written

national law, ....... 479

429. Rules of common law origin may have national extent as personal

laws, ........ 480

430. In applying natural reason the rational power is limited to speci-

fied relations, . . . . . . .481

431. Common law, including universal jurisprudence and Christian

morals, is alterable by the States, .... 482

432. Common law in the Territories is a local law, . . . 482

Constitutional location of power over personal condition.

433. The determination of personal condition is not included under the

national branch of powers, ..... 483

434. The States are not restricted in determining status under their in-

ternal law, ....... 483

435. The States determine the status of persons in respect to the action

of the national Government. ..... 484

436. The distribution of power over status is not the same as during

the colonial period, ...... 484

CONTENTS.

xxxvii

CHAPTER XV.

OF TIIIC NATIONAL MUNICIPAL LAW OK TIIK UNITKI) 8TATK8 — THE HUOJKOT
OONTINUKI) — OF TIIK PKKBONH WHO MAY APPLY THAT LAW BY TIIK
KXKItOIHK OF JUDICIAL POWKIt.

Of the exercise of judicial power liy the national Government and

the State*.

SKC. PAGE

437. Where the functions of sovereignty are divided the judicial is the

test of power, ....... 486

438. Connection of private condition with the question of judicial juris-

diction, ....... 480

439. A separate judicial power follows from the constitutional distribu-

tion of sovereignty, ...... 487

440. Possibility of a concurrent exercise of the judicial power, . 487

441. The doctrine belongs to local as well as to national law, . . 488

442. The law concurrently applicable may bo that which is quasi-inter-

national, . . . . . ... 488

443. Presumption that the national law is also applicable by State tri-

bunals, ....... 488

444. The National and the State power each supreme in the application

of its own law, ...... 489

445. Apparent exception in State laws applied by national jurisdiction

over persons, ....... 489

National law applied in the concurrent jurisdiction of the State courts.

446. Admitted supremacy of the national judiciary in application of

national law, ....... 491

447. Where national and State judicial power may concurrently support

the same rule, ....... 491

448. Illustration in civil and criminal jurisdiction, . . . 493

449. Where ind>/idual rights are in controversy the judicial power of the

States is concurrent, ...... 494

450. This doctrine supported by judicial decision, . . . 494

451. A principle of universal law supporting the jurisdiction in all cases, 496
_ 452. Statement and application of the principle in the Federalist, . 497

453. Jurisdiction undisputed in cases originally within the State power, 498

454. Question of concurrent judicial power distinct from that of concur-

rent legislative, ...... 498

Of restrictions on the concurrent judicial power.

455. The States may limit the application of their several judicial

power, ....... 499

lixviii

C0NTKHT8.

B1CC. 4 PAG1I

450. The ji : ' (diction can bo cxorcisod only by courts of ordinary or

common law jurisdiction, ..... 500

4f>7. Jurisdiction is to the tribunale matter of duty, if of powor, . 501
!. The national rule when applied by State power is local in territo-
rial extent, ....... 502

459. The State judicial function is here subordinate to the national, 503

Of the persons in whom national judicial power may be vested.

460. The national judicial powor cannot bo vested in tho judicial officers

of a State, ....... 503

461. Constitutional provisions for the investiture of the judicial power of

tho United States, . . * . . .504

462. Distinction of the administrative and the judicial application of

national law, ....... 505

463. Judicial power and ancillary ministerial powor, how distinguishable, 506

464. How judicial action may be discriminated, . . . 507

465. Office of Commissioners of United States courts and of State Jus-

tices of tho Peace, ...... 508

466. Of portions of national law not applicable by judicial tribunals, 508

467. The exterior application of international law is not within the ju-

dicial power, ...... 509

CHAPTER XVI.

THE LOCAL MUNICIPAL LAWS OF THK TOTTED STATES AFFECTING CONDI-
TIONS OF FREEDOM AND ITS CONTRARIES, CONSIDERED IN CONNECTION
WITH PRINCIPLES OF PUBLIC AND PRIVATE LAW WHIOl HAVE BEEN
STATED IN PREVIOUS CHAPTERS.

Political existence of the people of the several States.

468. Of the territorial limits of the States, . . . .511

469. The corporate existence of the political people of a State is extrin-

sic of any law, ...... 511

470. Their possession of sovereignty is a fact above the national Con-

stitution, not under it, . . . . . . 512

471. The individual constituents of the people of the State are desig-

nated by a law, ....... 513

472. The political people of the States identified with the people of the

colonies, ....... 513

Of liberty in its relation to the State sovereignty.

473. Political liberty in the States, regarded as a private right, depends

altogether oa State law, ..... 514

CONTENTS.

xxxix

MM1. FAG IE

474. State Constitutions, like that of the United Statctt, are both evi-

dence of sovereignty and a rule of action, . . . 514

475. Prcnuniption that the existing State GovernmontH arc republican, 515
470. Civil liberty in each of the States may have a constitutional basin, 515

Conditions of the tenure of power by State Government/!.

477. Powers of the States are residuary in respect to those held by the

national Government, ...... 515

478. Question of a limitation of the residuary power held by tho people

of each State, . . . . . . . 516

479. Constituted governments cannot be possessed of unlimited sove-

reignty, ....... 518

480. Distinction of the early State Governments ns restricted or not by

written constitutions, ...... 518

481. Of common law restraining a State Government in the absence

of written constitutions, ..... 519

482. Customary law referred to in the construction of written consti-

tutions, . . . . . . . . 520

483. Similarity of this inquiry to that of the extent of the power of

parliament, ....... 521

484. Continuation of the customary distinction of two systems of per-

sonal laws, . . . . . . . 522

485. Restraint on State power by international provisions in the Arti-

cles of Confederation, ...... 522

486. State power over personal condition has not been increased since

the Confederation, ...... 523

487. Except as restrained by yttosi-international provisions, pc sonal

status depends on State power, .... 523

488. The power of the national Government in the Territories, &c., is

like that of a State Government, . . . . 525

Of power held by the local Governments to determine personal status.

489. Of constitutions operating as a local bill of rights, . . 525

490. Proposed method of inquiry, . . . . . 525

491. Supposed sanction for legislation reducing free blacks to slavery, . 527

492. The guarantee of private property as extending to rights- in respect

to slaves, as property, ...... 527

Judicial opinions on this point in Dred Scott v. Sandford.

493. Opinion of the Court delivered by Chief Justice Taney, . . 528

494. Opinions of Justices Wayne and Grier, . . . 531

495. Views taken by Justices Daniel and Campbell, . . . 531

496. Mr. Justice Daniel's opinion, . . . . . 531

CONTENTS.

SKO. TAOK

41)7. Mr. J ufltico Campbell's opinion, ..... 534

408. Mr. Justice Catron's opinion, .... 539

409. ViewH taken by Justices McLean and Curtis, . . . 541

500. Mr. Justice McLean's opinion, .... 542

501. Mr. Justice Curtis' opinion, ..... 540

Doctrines of the equality of the States in respect to the territory of

the United. States.

502. Of the doctrino as a principle of law, .... 554

503. Of the doctrino as a political principle), . . . 554

504. View taken by Mr. Calhoun and others, .... 555

505. Comparison of the viows of tho majority of the court on this point,

in Dred Scott's case, ...... 556

Argument that the legislative potcer is not thus restricted.

506. That, in this case, no principle for denying tho power was support-

ed by a majority of tho court, ..... 558

507. Fallacy in tho doctrine that in the Constitution slaves are referred

to as property by local law, ..... 560

508. Fallacy in the doctrine that by its operation slav us are property

under national law, . . . . . .561

509. The doctrine of property in slaves as set forth in Chief Justice

Taney's opinion, ...... 561

510. Of the support of the power by its former customary exercise, 562

511. Of the rejection by the Chief Justice, in thia question, of the laws

and usages of nations, ...... 563

512. Necessity of a customary standard of property, . . 564

513. The customary standard must be identified with the national juris-

prudence, ....... 565

514. The standard is found in tho customary law of all civilized nations, 566

515. Or in the universal jurisprudence of all juridical nations, . . 567

516. Which was part of the American law having national extent and

yt/flwi-international effect, ..... 568

517. Property in human beings is not now known by universal juris-

prudence, ....... 568

518. Distinction of a universal jurisprudence peculiar to the United

States, . . . . . . . .569

519. Historical proof that such law is not tho foundation of slavery, 569

Slavery in the United States does not rest on a national common law.

520. That slavery rests on national common law is implied in Chief

Justice Taney's opinion, ..... 570

521. Senator Benjamin's assertion of the doctrine in the Kansas debate, 571

CONTENTS.

Xli

HKO. PAOH

522. Historical proof that slavery rests on local common law, . . 573

523. The question of tho lawfnlncHH of slavery in tho Territories is one

of international private law, ..... 574

Of conf union arising from deficiency of terms.

524. Ambiguous use of tho term positive law, .... 575

525. Use of terms by Justice Ilolroyd, in an English case, and by Chief

Justice Shaw, ....... 577

520. Tho failure to recognize natural reason in tho historical law of

nations, ....... 579

527. Illustrated by Chief Justice Shaw in Commonwealth v. Aves, 579

528. Illustrated in an extract from Senator Benjamin's speech, . . 581

529. And in his reply to Senator Collamcr, .... 584

530. Of Lord Stowcll and Judge Story as cited by Senator Benjamin, 58G

TJieories of the power of the national Government in the Territories.

53 1. The three functions of sovereignty are necessarily combined in the

manifestation of juridical power, .... 588

532. Conditions of the exercise of executive and judicial power in tho

Territories, ....... 589

533. Inconsistency in denying the legislative power in Congress, . 591

534. The idea that the national Government may remain neutral hi re-

spect to slavery, ...... 592

535. Variance of Judge Campbell's theory with the local character of

State law, ....... 594

536. Inconsistency of tho conclusion with the doctrine to which it is

attributed, ....... 595

Of the further exposition of the local municipal law.

53 Proposed abstract of local legislation, .... 596

538. Distinction of State laws as ^aving universal personal extent, 596

539. Limitation of the view hereaiter to be taken of liberty and slavery, 597

INDEX OF CASES.
— « • « —

THE REFERENCE IS TO THE PAGE.

Albany Firo Ins. Co. v. Bay, 4 Comstock, 1, 133

Alfred v. Marquis of Fitzjames, 3 Espinasse, 3, .... 380
Almeida, case of, 12 Niles' Weekly Reg., 115, 213, . . . 495,504,508
American and Ocean Ins. Cos. v. Canter, 1 Peters, 511, . . . 453

Anonymous, 2 Peere Williams, 75, 115

Attorney General v. Stewart, 2 Merivale, 143, . . . 116, 117

Bank of Augusta v. Earle, 13 Peters, 519, 74

Bank of the United States v. Norton, 3 Marshall's Ky., 422, . . 430
Beaumont v. Barrett, 1 Moore's Cases, P. C, 75, . . . .116

Belt, case of, 7 N. Y. Legal Obs., 80, 495

Betty v. "Tarton, 5 Leigh, 615, 526

Blankard v. Galdy, 4 Mod.. 215, and Salkeld, 411, . . 115.116,200

Bloom v. Burdick, 1 Hill, 130, 501

Bodley v. Gaither, 3 Munroe, Ky., 57, 430

Bonham's Case, 8 Coke, 118, 127

Booth and Rycraft, cases of, 3 Wisconsin, 1, 495, 502

Boucaut, case of the negro, 15 Causes Calibres, .... 341
Braddee v. Brownfield, 2 Watts and Serg., 275, .... 520
Braynard v. Marshall, 8 Pickering, 194, . . . . . .430

Buckner v. Finley, 2 Peters, 586, 144

Buckwalter v. the United States, 11 Serg. and Rawle, 193, . . .497

Butler v. Craig, 2 Harris & McHcnry, 214, 249

butt v. Rachel, 4 Munford, 209, 236

Butts v. Penny, 2 Levins, 201, and 3 Keble, 785, .... 179

INDEX OF CA8E8. xliii

Oalder v. Bull, 3 Dallas, 380, 13, 140, 519

Calvin'8 case, 17 Coke. 7, 115, 110, 118, 100

Campbell v. Hall, Cowpcr, 204, 115,1%

Campbell v. Claudius, Peters' C. C. It., 484, 490

Carpenter v. Providence Ins. Co., 10 Peters, 495} .... 491

Carlton, cane of, 7 Cowcn, 471, 495

Chambers v. Warkhousc, 3 Lcvinz, 330, 180

Chambcrlayno v. Harvcj', 1 Ld. Raymond, 147, Carthew, 390, and 5

Mod. 187, 181, 379

Chinn v. Rcspass, 1 Munroc, Ky., 25, . . . . . . 243, 859

Chisholm v. Georgia, 2 Dallas, 419, ....... 408

City of London v. Wood, 12 Modern, 088, ...... 127

Clark, case of Mary, 1 Blackford, Ind., 122, . . . . . 139

Cochran v. Van Surlay, 20 Wendell. 305, . . . . . .520

Cohens v. Virginia, 6 Wheaton, 204, 431, 493

Collctt v. Keith, 2 East, 200, 11G

Collins v. Blantire, 2 Wilson, 351, ....... 27

Commonwealth v. Alger, 7 Cushing, 53, 127

" " Aves, 18 Pickering, 193, . . . 258,570-579

" <; CuBhing, 11 Mass., 07, 495

" " Feely, Virginia Cases, 321, . . . ... 497

" " Fox, 7 Ban's Pa. R., 336, ..... 495

" " Fuller, 8 Metcalf, 313, 493

" " Harrison, 11 Mass., 63, \ 495

" " Holloway, 5 Binney, 512, 405

" " Holloway, 2 Serg. and Rawle, 305, .... 49,>

" " Leach, 1 Mass., 59. 133

" Lewis, 6 Binney, 206, . . . . . 430

" " Murray, 4 Binney, 487, . . . . . . 495

Corporation of New Orleans v. Winter, 1 Wheaton, 91, 433

Coventry v. Woodall, Hobart, 134, 218

Craw v. RamFiy, Vaughan, 292, 116

Dash v. Van Kleeck, 7 Johnson, 477, 520

Davis v. Curry, 2 Bibb, 238, 208

Dawson, ex parte, 3 Bradford, 130, ....... 71

Day v. Savage, Hobart, 87, 127

Dred Scott v. Sandford, 19 Howard, 393, . 204, 207, 214, 321, 334, 338,

340, 342, 358, 373, 400, 408, 409, 412, 435-437, 440-463, 171, 490,

491, 517. 528-558, 589.
Dutton v. Howell, Shower's Pari. Cases, 24, 116

xliv

INDEX OF CAHMH.

Kells v. TIi« People, 4 Scammoii, 49H, .... . 1912

Klmcndorf v. 'I'uylor, 10 Whnntoti, 152, 490

Ely v. iVck, 7 Connecticut, 239, 41)7

'Krskiuo v. Murray, 2 I<d. Raymond, 1542, 88

Kulmiik v. Poston, 5 Munroo, Ky., 285, . . ... 430

Ferguson, case of, t) Johnson, 239, . . 495

Fletcher v. Peck, fi Cranch, 87, . 519

Foot v. Stevens, 17 Wendell, 483, 501

Forbes v. Cochran, 2 Barnw. and Cress, 4-48, . . 110, 198, 216, 377, 570

Foster and others v. Neilson, 2 Peters. 254, 433

Fox v. the Stato of Ohio, 5 Howard, 410, .... 492,493
Francisi|ue, caso of negro, Denisart's Decisions Nouvclles, . . . 344

Gelly v. Clcve, 1 Ld. Raymond, 147, 181

Gifford v. Yarborough, 5 Bingham, 167, ...... 29

Gloucester Ins. Co. v. Younger, 2 Curtis C. C. R., 322, . . .491

Goshen v. Stonington, 4 Connecticut, 209, 520

Grace, case of the slave, 2 Haggard's Adm., 94, . 194, 208, 37G, 385, 576,

586, 588

Grantham, case of Sir Thomas, 3 Modern, 120, 331

Groves v. Slaughter, 15 Peters, 449, . ■ . . . . 490, 538, 561

Haggin v. Squiers, 2 Bibb, 334, 433

Harvey v. Thomas, 10 Watts, 63, 520

Harvey and others v. Decker and Hopkins, 18 Walker's Mississippi, 36, 414

Heathfleld v. Chilton, 3 Burroughs, 2015, 140

Heilbonn, case of, 1 Parker's Crim., 429, 495

Hemps ted v. Reed, 6 Connecticut, 480, 430

Hepburn v. Elzey, 2 Cranch, 445, 433

Hobbs v. Fogg, 6 Watts, 553, 208

Hoke v. Henderson, 3 Devereux, N. C, 12, 464

Holden v. Smallbrooke, Vaughan, 187, 7, 14

Houston v. Moore, 5 Wheaton, 1, . . . .492, 493, 496, 497, 499
Hudgins v. Wrights, 1 Hen. and Munford, 134, .... 236, 246

Jack v. Martin, 12 Wendell, 311, and 14 Wendell, 507, . . 495,499
Jackson v. Bullock, 12 Connecticut, 38, .... 273, 492, 493

INDKX OF CABEH. xlv

Jackson, Lckhco of, v. liiiniH, 3 Itinney, 74, 4.'!0

.1 anion v. Lcchincre, WnHliburn'H |>a[>cr before Mrkk. Hist. Hoc, . . 204

Jenkins, cane of, 2 Wallace, jr., 521, 41)5

Jones v. IVrry, 10 Yeiger, 59, 4(54

Jones and others v. Kcuil, I Johnson's Oases, 20, 1 Caines, 594, note, 501

Kcmpo, Lessee of, v. Kennedy, 5 Cranch, 174,
Kirk, case of Ccorgo, 4 N. Y. I-iegnl ObB., 45G, .
Knight against W eddorburno, .33 Morrison's Diet. Decisions,

Livingston, Lessee of, v. Moore. 7 Peters, 4G9, . . .404, 480, 506
Lockington, ease of, 5 Hall's Am. Law Journal, 92, . . . . 495

Lonsdale v. Brown, 4 Wash. C. C. It., 148, 444

Louis, the, 2 Dodson's Adm., 210, 6

Lunsford v. Coquillon, 14 Martin, La., 401, 570

Luther v. Borden, 7 Howard, 1, 390, 410, 413

Martin v. Hunter's Lessee, 1 Wheaton, 304, . 431, 491, 492, 493, 497, 498,

503, 504

Mary v. the Vestry of Wm. and Mary Par., 3 Harris, and McHenry,

501, 176

Mattison v. the State, 3 Missouri, 421, 503

Mayer v. Foulkrod, 4 Wash. C. C. R., 349, 490

McCullooh v. Maryland, 4 Wheaton, 316, 406

Mcllvaine v. Coxe's Lessee, 4 Cranch, 209, 408, 469

Metzger, case of, 1 Barbour, 248, 495

Moore v. State of Illinois, 14 Howard, 13, . . . . . . 492

Mdstyn v. Fabrigas, Cooper, 161, 115, 116

Murray v. Fitzpatrick, 3 Caines R., 36, 501

Neal v. Farmer, 9 Georgia, 555, . 14, 32, 137, 154, 165, 172, 188, 207, 212,

220, 311, 577

Oliver v. Weakley, 1 Am. Law Register, . . . ... . 194

Pallas and others v. Hill and others, 2 Hen. and Munford, 149, . 236

Pearne v. Lisle, Ambler, 75, 185

Potter v. Brown, 5 East 124, 68

Prigg v. Pennsylvania, 16 Peters, 539, . 492, 499, 500, 501, 502, 561, 576

501
495
332

xlvi

INDEX OF OA HIGH.

Rankin v. Lydia, 2 Marshall, Ky., 407, ,r)7f»

Randolph, case of,' 2 Brockenborough, 447, 500

Rcspublica v. Cobbot, 3 Dallas, 407, 432

" " Do Longchamps, 1 Dallas, 111, 88

Rex v. Brampton, 10 East, 281, 11!)

'< Picton, 30 Howell's State Tr., 225, 115

" Vaughan, 4 Burrow, 2704, 110

Roberts, case of, 2 Hall's Am. Law Journal, 192, .... 495

Rhodes, ex parte, 12 Niles' Weekly Reg., 204, 495

Robinson v. Bland, 2 Burrow, 1077, Ill

" " Campbell, 3 Wheaton, 212, 482

Rowan v. Runnclls, 5 Howard, 134, 491

Saul v. His Creditors, 17 Martin's La., 509, 03

Schooner Exchange v. McFaddon, 7 Cranch, 116, ... 9

Scott, (the negro Dred,) v. Emerson, 15 Missouri, 570, . . . 490

Scrimshire v. Scrimshire, 2 Hagg. Consis., 395, 88

Sergeant, ex parte, 8 Hall's Law Journal, 200, 495

Seton v. Hanham, R. M. Charlton, 374, 433

Seville v. Chretien, 5 Martin's La., 275, 212

Shanley v. Harvey 2 Eden, 126, 580, 587

Sheddan against a Negro, 33 Morrison's Diet. Decisions, . . . 332

Sims, case of, 7 Cashing, 285, 32, 313, 408, 495, 501

Smith v. Brown and Cooper, Salkeld, 666, and Holt, 495, . 116, 118, 182, 359

Smith v. Gould. Salkeld, 666, and 2 Ld. Raymond, 1274, . . 116, 184

Somerset, case of, Lofft, 1, and 20 Howell's St. Trials, 1, . 27, 43, 130,

189, 358, 576

Stacy, case of, 10 Johnson, 328, 495

State v. Bowen, 3 Strobhart, 573, 307

:i Hale, 2 Hawks, 582, 226, 290

" Hunt, 2 Hill, S. C, 1, 408

" Mann, 2 Devereux, 263, 290

Manuel, 4 Devereux, and Battle, 23, 50

" McGee, 1 Bay, 300, 306

" /Randall, 2 Aikens, 89, 493

" Fleming, 2 Strobhart, 464, 300

w Post, 1 Spencer, 368, and Zabriskie, 699, 285

" Reed, 2 Hawks, 454, 296

' Tutt, 2 Bailey, 44, 493

" Welch, 1 Bay, 172, 307

u Van Beuren, 1 Spencer, 388, 285

INDEX OF CA8KH. xlvii

Steamboat Comp. v. Livingston, 3 Cowon, 713, .... 499

Stradcr v. Graham, 10 Howard, 82, 490

Sturgis v. Crowninnhielri, 4 Wheaton, 122, 499

Sturgis v. Davis, 1 Pnino and Ducr's Pnict., 12, 433

Swift v. Tyson, 16 Petcrn, 1, 491

Talbot v. Janscn, 3 Dallas, 133, 408

Tanistry, le case de, Davis, 28, 28, 110

Tate v. O'Neal, 1 Hawks, 418, 29(5

Taylor v. Porter, 4 Hill, N. Y., 1 10, 4*34

Teal v. Felton, 12 Howard, 284, 492, 493

Triquet v. Bath, 3 Burrows, 1478, 88, 140

United States v. Dodge, 14 Johnson, 95, 497

" " Campbell, 6 Hall's Am. Law Journal, 113, . . 497

" " . Lathrop. 17 Johnson, 4, 497

" " Peters, 5 Oranch, 115, 496

" " Smith, 5 Wheaton, 153, . . . . . .393

" « Wonson, 1 Gallison, 5, 490

Warder v. Arrel, 2 Washington, 1, Va., 282, 444

Ware's Administrator v. Hylton, 3 Dallas, 1991, . . . 408, 469

Ward v. Jenkins, 8 Law Reporter, 538, 500

Ward v. Mann, 9 Law Reporter, 493, 501

Watson v. Tarpley, 18 Howard, 517, 491

Wells v. Newkirk, 1 Johnson's Cases, 228, 501

Wheaton and others v. Peters and others, 8 Peters, 591, , . 133, 567
Winchendon v. Hatfield, 4 Mass., 123, .... 263,264,359,526

White v. Chambers, 2 Bay, 70, 306

Wilkinson v. Leland, 2 Peters, 627, 519, 520

Wright v. Deacon, 5 Serg. and Rawle, 62, 495

Wynehamer v. People, 3 Kernan, 378, 519, 520, 565

Wytham v. Dutton, 3 Modern, 160, 116

Yates v. Lansing, 9 Johnson, 395, . 501, 527

CORRECTIONS.

Paok 89, noto, lino 8 from bottom, for " the result cither," read, 41 either tho result.*
Pago 75( lino 14 from top, for 41 Tho motives for that practice aro immaterial," read,

44 The motives which may have actuated tho State, in this, are immaterial."
Pago 119, noto 1, line 8, for 44 18 East," rtad, 44 10 East."
Pago 133, note I, for " i Comstock," read, " 4 Comstock."
Pago 158, noto 2, lino 6, for 44 Novell. 162, c. 8," read, 44 NovelL 156."
Pago 180, line 5 from bottom, after 44 Warkhouse," insert, 44 3 Levinz, 336."
Page 211, line 6 from top,/or " captived," read, "baptized."
Pago 211, lino 6 from bottom, for 44 vontre," read, 44 ventre."
Pago 221, noto 1, line 1, after 44 Swedish," tfwert, " or Danish.''
Pago 228, line 5 from bottom of the text, for "farther," read, " fuller."
Page 230, line 19 from top, for 44 1559," read, " 1659."
Page 265, note 1, line 8, for 44 restructed," read, "restricted."

Page 285, note 1, for 44 1 Zabriskie'a R., 368, 378," read, 44 1 Spencer, 368, and State

v. Post, 1 Zabriskie, 699."
Page 829, lino 18 from top,ybr " laws. No laws," read, " laws, no laws."
Page 344, line 7 from top, for "Code Noir," read, 44 Edict of Louis XV."
Page 349, lino 12 from top, insert 44 the," before 44 question."
Pago 362, for the numbers of the notes, "3, 4," read, 44 1, 2."
Page 369, in the note, dele 59, after R.

Page S77, line 18 from top^or " primitive," read, 44 punitive."
Page 381, note 2, line 12, for "casa," read, 44 casu."
Page 382, note 2, liny 5, for " aportet," read, "oportet."
Page 447, line 9 from bottom, for 44 nature," read, 44 name."
Page 486, note 1, line 2, for 44 1 Peters," read, 44 7 Peters."
Page 493, note 1, line 5, for 44 Tuff," read, 44Tutt."

Pages 494, 495, for "concurrent," in the running title, read, " contested."
Page 495, note 8,/cr ,492, 313; 5 of same, 301, 330," read, 44 92-103, 301-380."
Page 496, line 1, for 44 two," read, 44 four."

Page 501, note 1, line 9, after 44 Fitzpatrick," insert, 44 3 Caines, 36, and Foot v. Ste-
vens."

Page 605, last lino in note, for 44 See note," read, 44 (2) See note 1."
Page 520, line 18 of note, for "Bramfield," read, 44 Brownfield."

^m THE LAW

Off

FREEDOM AND BONDAGE.

CHAPTER L

LAW DEFINED AMD DIVIDED ITS OBJECT, OEIGIN, EFFECT,

AND EXTENT.

§ 1. The word law has, in common use, two leading signifi-
cations ; one, which is generally considered the primary sense
— that of a rule of action^ prescribed by a superior to an in-
ferior ; in the idea of which the possibility of action contrary
to the rule is implied : the other — a meaning sometimes con-
sidered secondary to that first given, by a metaphorical use of
the word — that of a mode of existence, or of action, excluding
the idea of the possibility of action contrary to that mode ; — a
relation necessary in the nature of the thing existing or acting :
whether the co-exiBtenee of a superior author or cause of that
relation be supposed or not.1

§ 2. Every being, existing under conditions over which it
has no control, is subject to law in the secondary sense ; — there-
fore, called the law of its nature. The nature of man, or the
conditions of his existence, are to him a law in this sense — the
law of nature ; and, being by this law capable of choice and
action, he may also be subject to law in the primary sense.'

1 Brande's Diet, Law. Blackst. Com., Introd., sec. 2, note by Christiaa Austin :
Produce of Jurisp., pp. 19, 130, 184. Montesq. : Spirit of L., cn. L ; and De Tracy's
Comment. Reddie's Inquiries Elementary &c, pp. 4, 16, 17.

1 The primary and secondary meaimgt of the term law must not be confounded

LAW OF NATUK1C.

Tho idea of law in the primary sense implies tlio relation of
superior and inferior ; and tho elementary principle in tlio sci-
ence of law, in this sense of tho word law, is the existence of tho
legislator anterior to the law. When the word law is applied
to rules of action for man, tho existence of such a legislator, as
to man, must ho taken for a fact, or relation, independent of the
rule itself ; or as hoing a principle of tho law of nature, in the
secondary son; _ of the word law.1

§ 3. In tho various views of the conditions of man's exist-
ence— that is, of tho law of his nature (law in the secondary
sense), which have been advanced by authors who have pro-
fessed to treat of jurisprudence, or the science of law, there
have been two theories as to the existence of this legislator, or
the source of law in the primary sense. According to some
authors, the first principle of the science of law is, that man
exists in society organized into political states, and that the
etate is the highest source of law as a rule of action? This
principle being assumed to be a law of nature, in the secondary
sense of the term, and the law of nature, in this sense, being
considered as the only law of nature which can, in any system
of jurisprudence, be regarded as having an existence independ-
ent of the state.1

According to others, there is a law in the primary sense, an-
terior to the legislation of the state; by which actions are

with a primary and secondary law ; whether so called in reference to order of time
or of authority. Conditions of things are necessarily presupposed in the enunciation
of a rule of action, and in this connection the former may he called the primary and
the latter the secondary law. Some elementary writers speak of a primary and secon-
dary law of nature. Their primary law being a condition of things — a law in the
secondary 6ense : e. g. Bowyer : Univ. Pub. Law, p. 20. Ayliffo's Pandects, pp. 5, 6.
Wood's Civil Law, p. 92. Domat : Loix Civ. Traite des Loix, ch. L, § 3.
1 Keddie's Inq. Elero. Ac, p. 16-19.

* In illustrating the assertion of this doctrine, writers on jurisprudence usually cite
Carneades, apud Lactantium, Lib. v., c. 15; and Aristippus and Pyrrho, apud Diog.
Laert., Lib. k, c. 8 : see Selden, De J. Nat. et Gen. juxta Disc Eb., ch. 3 ; Rutherf.,
B. ii , c. 1 ; Pnfend., B. ii., c. 3 ; Grot, B. et P. Proleg. 5. But these are only early
dogmatisms on one side of a never-ending ethical controversy ; of which more syste-
matic assertions might be found nearer our own day. It is not, in fact, possible to cite
any system of jurisprudence or any legislative or juridical authority, ancient or modern,
heathen or Christian, which denies the pre-existence of natural justioe — tho jural char-
acter of every rule which is a rule of law ; unless piratical communities and robber
feudal barons can be called juridical authority when denying the oxistence of any law :
compare Lieber : PoL Ethics, vol. L, 281.

1 Spinoza : Ethices, Pars iv., prop. 87, schoL 2 : Tract Politici, cap. ii. : Tract.
Theologico-Polit., cap. xvi. Hobbes is commonly misrepresented as having denied
the existence of natural law otherwise than in this sense.

JUItlflPIttJDKNOR D1MTNKD.

enjoined, allowed or prohibited, independently of the rnlo pro-
ceeding from the Btuto, and under wliicli, as a law of nature, and
a law in the primary sense also, the state is to be considered as
existing ; which law is to be recognized in jurisprudence as con-
stantly binding on mankind.*

§ 4. The questions of the existence of natural law, — in the
primary sense of the word law, of tho nature of its injunctions,
and of the limits of the power of the state as a source of rules
of action for mankind, are questions regarding the nature of
man. or of the law of his nature, in the secondary sense of the
term law : they are questions of ethics, — the science of his nature
as a being capable of choice and action in reference to a rule
which it is possible for him to disobey; whether they are deter-
mined by the precepts of a religious creed, taken to be the reve-
lation of a divine will, or by the dictates of human reason.
Whether they also belong to jvHsprudence, or not, is merely a
question of definition : that is, depends on the meaning of law,
and of jimsprudence as the scien ce of law.*

§ 5. A law in the secondary sense is spoken of as something
which exists absolutely ; which necessarily both exists and
operates ; which is necessarily enforced, if it exists at all ; such
a law being a state of things. But a law in the primary sense —
a rule of action, may be supposed to exist without being en-
forced ; or without operating except in creating a moral obliga-
tion : because a possibility of action contrary to the rule is im-
plied in the idea of a law in this sense. A law of this kind may
therefore be recognized either as a law merely existing, or as a
law operating oi* being enforced..

Now, jurisprudence is taken to be the science of a rule not
merely existing, but one which is actually operative or enforced

' Lieber : PoL Ethics, B. I., § 30. Rutherford, B. ii., c. 2. Mackintosh : Prog.
Eth. PhiL, Sect iv. v. : Grotius : B. et P. Prolegom., §§ 6, 7, 8, 16, and notes. Vattel :
o. iL, § 1. Aristot. : Rhet, Lib. i., cap. 13 et 15, and various other ancient authorities
cited by Selden, De J. Nat. &c, Ebr. Lib. i., ch. vi. Beddie'a Inquiries &©., p. 19 ;
also, ch. ii., and the citations.

A very recent comparison of the best authors on this point in Bowyer Mn Universal
Publio Law, ch. ii., iii., iv., vii., Vol. 84, of Philad. Law Library. -

1 Comp,, Doctor and Student, oh. L, ii

In connection with the subject of this chapter, there will be frequent occasion to
recall the maxim of Iavolenus, Dig., Lib. L, Tit 17, § 202. Omnis definltio in jure
civili periculoea est, parum est enim ut non subverti possit

BUBJK0T OF JUKIflPttUlMWOlC.

in or by tho will of society or the state. Tho science of what
rulo ought to bo made operative by the will of the state is a
different thing ; it is a scionco of rules regarded only as existing,
whether operativo in civil society- — that is, enforced — or not.1

A rulo made operative by the authority of society, or of the
state, is a rulo identified with the oxprebsed will of society or of
the state. The will of the state, indicated in some form of ex-
pression, is thela/w* the subject of jurisprudence, and no natural
rulo which may exist, forms a part of the law unless identified
with the will of the state so indicated. What the state wills is
the conterminous measuro of law ; no pre-existing rule is the
measure of that will.*

§ 6. But a law in the jprimary sense must be founded on a
recognition of the nature of the things which it affects : — that is,
of a natural law in the secondary sense of the word : for a rule
founded on a contradiction of the nature of things is a rule im-
possible to be executed, or cannot subsist as a rule.* There
fore, all laws made for man must recognize some conditions as
the conditions of bis existence ; and hence a recognition of his
moral nature, or of a necessity in his nature to regard actions as

1 Domat includes natural law, derived by a priori reasoning, in the law — tbe sub-
ject of jurisprudence ; and speaks of somo rules as being evident without reasoning,
and of others which require reasoning to make them evident. Domat : Civil Law.
Treatise on Laws, ch. ii., §1 — 87 ; and see Bowyer, Univ. Pub. Law, p. 108. In this
system, the mind of the individual jurist determines the law ; it is his subjective ap-
prehension of a rule of action : and only that rule which, in bis judgment, the state
ought to enforce. Chanc. D'Aguesseau approves of Domat' s system in this respect :
see (Euvres, Tom. I., p. 645-6. Mr. Reddie, Inquiries El. Ac, p. 48, says of Kant's
Metaphysische Anfangs Grilnde der Rechtelehre, and Fichte's Grundlage des Natur-
rechtg, that " they established in Germany the complete recognition of the distinction
between ethics aud law, or jurisprudence, between the legality and the morality of
human actions." But Mr. Reddie sometimes speaks of jurisprudence as if it compre-
hended the science of what ought to be law ; see Inquiries El. dec, pp. 24, 25.

• Savigny : Heut Rom. Recht, § 7. TV. : " With reference to this quality of the
law, by which it has an actual determined existence in reference to any given state of
things in which it may be appealed to, we call it positive luw."

• Molloy de Jure Marit. B. iii., c. 9, § 1, 2. Pufendorf, B. i., o. 6, § 1. Co. Lit.
fo. 97, b. Liobor : Pol. Eth., vol I. p. 98, 249. " Law is the direct or indirect, ex-

£ licit or implied, real or supposed, positive or acquiesced in expression of the will of
luman society represented in the state ; or it is the publio will of a part of human
society constituted into a state.'* Compare Encyc. Am., vol. vii., Append. Law, Ac,
by Judge Story.

• Dig. Lib. 1., Tit 17, § 186. Qua re rum natura prohibentur nulla lege confir-
mata sunt. Co. Lit, 92 a. " Lex spec tat naturae ordinem, the law respecteth the
order and course of nature. Lex non cogit ad impossibilie. The law compels no man
to impossible things. The argument ab impoBiibili 'ia forcible in law. Impossibile est
quod natnrsc rei repugnat"

I,AW — A ltVLK OF UIGIIT.

being right or wrong, is necessarily made, as the recognition of
a fact, in the act, of prcBcribing a law for him founded on the
idea of distinguishing between actions as right or wrong, or on
the oxistoneo of a moral obligation in the rule ; that is, an obli-
gation founded on hit; nature, and also resulting from a law in
the primary sense.1 Now, since, in point of fact, all laws, en-
joinod by society or the state, have been founded on this idea,
the law prescribed by the state recognizes the existence of a
natural law in the primary sense of the word law.*

§ 1. But since the state makes this acknowledgment of
natural law by classifying or distinguishing certain actions as
actions to be done or not to bo done, as permissible or not per-
missible,* it so far interprets this law of nature by asserting it

1 Who well : Elements of Morality, including Polity, B. I, o. 4, 90. " Bights are not
law only nor justice only, (meaning by law » tho law of society, and by justice that
which is right,) they aro both Law and Justice ; Law, because Justice ; Justice ex-
pressed in Law ; " and Bee the same, §§ 105, 10G, 107. Liebor : PoL Eth., B. ii., § 81.
" The state, I said, is founded on the relations of right ; it is a jural society, as a
church is a religious society, an insurance company a financial association ; the idea
of the just, and the action founded upon the idea called justice, is the broad foundation
and great object of the state." The same, §§ 88, 85 : " The state being a jural society,
and rights being imaginable between moral beings only, it follows that the state has
likewise a moral character, and must maintain it." The word jural is also employed
by Whewcll, B. i., c. 4, 90 : " By the adjective jural we shall denote that which has
reference to the doctrine of rights and obligations ; as by the adjective moral we donote
that which has reference to tho doctrine of duties." And therefore, the state, in es-
tablishing coercive rules of action, acts juridically. The term juridical is commonly
used as if synoaymous -with judicial. A tribunal in acting judicially, necessarily, also
acts juridically : that is, declares what is justice or right. But the state, when it pro-
mulgates laws, promulgates them as rules of right. The word juridical will herein be
employed to designate the declaration of law, whether made by the legislative or the
judicial function.

The term juridical is sometimes used to designate the province of the private jurist :
the proper word for whioh is juristical, {Gar. juristisch.) A society of jurists in Eng-
land have called themselves " the juridical society." In the French version of Falck s
Juristische Encyclopedic, translated Enoy. Juridique, viL, note, it is said : " nous avona
ordinairement traduit I'adjectif Momnnd jurutiscfi fax juridique, quoique le mot francais
signific, dans l'usage plut&t ce qui se rapporte a la juridiction que ce qui se rapporte an
droit. Nous aurions pu souvent lo remplacer par ligal, mais comma il est necessoire,
surtout dans un expose de prinoipes, de ne pas confondre le droit et la hi, nous avons
evito d'employer Fun pour l'autre, juridique (repondant a jurintuch, reckllich) et Uyal
(repondant a gctetzlick)'"

' Keddie's Inquiries Elem. &c, p. 9, 58. There are noble passages in the writings
of Cicero, and others, which are frequently cited by authors who base juritprudence
upon natural law; (e. g. Cic. De Rep. in , 22 — the passage given by Lactantius, Inst,
vi., 8 ; Demosthenes Or. contra Aristogit i.) Whether they have been used to the
purpose depends entirely on the definitions assumed for these words. Their force differs
essentially as they are used either in a legislative or a judicial point of view.

8 Hobbea : Leviathan, He Civitate, c. xxvi. Do legibus civilibus. " Legem igitur
oivilem sic definio : lex civilis unicuique civi eet regulu qua civitas verbo scripto, vel
alio quocunque voluntatis signo idoi.eo, ad distinctionem boni et mali uti imporat"

Eucy. Am., vol. vii., p. 581. Appendix by Judge Story : By a law we understand

LAW — THH WILL OK THE STATK.

to be accordant with those distinctions.1 The maintenance ot
thoso distinctions being, therefore, tho will of the state, thoHo
whom it appoints to carry out its will are bound, from their
rotations to the state, to accept and onforco those distinctions, as
the criterion of the law of nature. Judicial tribunals consti-
tuted by the Btate, must, therefore, in interpreting tJie law, ro-
ceive these distinctions as the exposition of the law of nature,
and as the highest rule to which they can refer. The natural
law is included in the law, in this ordinary sense, only bo far as
the law iB the judgment of the state upon what Bhall constitute
right or wrong action ; and it is immaterial, for the judgment
of the subordinate tribunals, whether the jurisprudence which
they have to interpret is considered to admit, in theory, the ex-
istence of natural law, or to refer all rules of action to the
authority of the state ; since, supposing it to admit the pre-ex-
istonce of natural law, as a rule of action, it assumes the inter-
pretation of it, given by the state, to be the guide for legal
decision.'

§ rale prescribed by the sovereign power of a state to its citizens or subjects, declaring
some right, enforcing some duty, or prohibiting some sot."

1 This recognition of moral obligation in jurisprudence is entirely independent of
the foundation of that obligation, as a question of Ethical Philosophy. It is im-
material in jurisprudence whether the law of nature is called " moral sense ; common
sense ; understanding ; rule of right ; natural justice ; natural equity or good order ;
truth ; doctrine of election ; repugnancy to nature," or any such term. Bentham, in
quoting these various denominations of the law of nature, asserts the propriety of his
own favorite term, "the law of utility," or " greatest happiness principle : " which is
equally vague, as the description of a rule of action, until some legislator is assumed
to exist, who shall determine what is uteful, or what is the greatest happineui. See
Bentham's Morals and Legislation, ch. ii., 14, note. And compare Austin : Prov.
Jurisp., p. 188 ; note, p. 174 ; Austin being of the same ethical school. Also, Reddie's
Inquiries Elem. Ac, 2d ed., p. 54 — 72. Utility has, in fact, always been recognized
in juridical action as an exponent of what the law ought to be. See the same, p. 73 ;
and that there is herein no real inconsistency, see Mackintosh : Progress of Ethical
Philosophy.

* 2 Dodson's Adm. Rep., The Le Louis. 247. Speaking of the slave-trade, Lord
Stowell says : " I must remember that, in discussing this question, I must consider it,
not according to any private moral apprehensions of my own, (if I entertained them
ever so sincerely,) but as the law considers it." ... (p. 249) : " An act must be legally
criminal — I say legally criminal because neither this court ntr any other can carry
its private apprehensions, independent of law, into its public judgments on the quality
of actions. It must conform to the judgment of the law upon that subject ; and act-
ing as a court in the administration of law, it cannot impute criminality to an act
where the law imputes none. It must look to the legal standard of morality

Hobbes : Leviath., c. 26 — "Leges natura: et leges civile* in eadem civitate se rautuo
continent." Masse Droit Commer., Tom. i., 42. Scaccia Tractat de Commer. Qurest.,
VIL, Par. iL, AmpL It), § 4, 19. Hegel, Grundlinien der Philosophic dee Rechti,

NATIONAL LAW.

§ 8, Since tho powor of the state, or of society, is assumed
by the state to bo tho result of natural law in the signification
either of a necessary condition or of a rule, tho only natural
principles, which the law can recognize as such, are thoso which
admit tho existence of society, as natural ; and no principles
can form a part of it which are founded upon a supposed state
of nature, anterior or opposed to society, or on the supposed
law of such a state, as being the true law of nature.1

§ 9. The actual conditions of human existence have divided
mankind into separate communities or states, each called sovereign,
because each exercises, independently of the rest, those powers
of society which are essential to the purposes of such separate
existence.'

The rules of action prescribed by any single sovereignty or
state are known to the individuals under its dominion as the
law, in the ordinary sense (in contradistinction to ethics) ; or
national law (commonly termed in English, municipal),* as

§ 212 : " Im positiven Rechte ist daher das was gesetxmassig ist, die Quelle der Erkent-
niss dessen was Recht ist, oder eigentlich, was Rechtens ist : " —

This proposition is almost untranslatable from the want of an English word cor-
responding with the German Recht, Latin Jus, French droit. Law being used not to
designate that only but what is meant by the Ger. Gesext, Lat. tee, Fr. toL (Lieber*s
Pol. Eth., sect. 80, n.). The passage is equivalent to : — In law — the rule identified
with the will of the state, that which is legal, or according to law, {lex, loi, Gesetz,) is
the means of ascertaining that which is the rule of right — the jural rule, jus, droit,
Recht : — and not vice wrsa.

The American Literature on the Slavery question affords numberless instances, in
which the converse of this proposition is made the foundation of the argument.

'Spinoza: Tractatus Politic!, cap, ii, 15. DSmat: Loix Civ. 1c, ch. ii., §2.
Cousin : Introd. Hist Phflo., p. 11 : "In the place of primitive society, where all things
were in confusion, man created a new society upon the basis of one single idea, that
of justice. Justice established constitutes the state. The use of the state is to cause
justice to be respected by means of force. * * * . Hence arises a new state of society,
civil and political society, which is nothing less than justice acting by means of that
legal order which the state represents."

Professor Foster's Introductory Lecture before the London University. Law Maga-
zine, N. Y., Feb. 1852. "If asked, therefore, to explain the expression employed at
the outset — natural law,— the answer would be, that portion of moral obligation which
is enforceable by public authority." Comte : Tr. de Legislation, Liv. i, oh. 6. Com-
pare Calhoun, A Disquisition on Government; Works, voL L, p. 58.

* A fact assumed in every system of jurisprudence. Comp. Lieber : PoL Eth., B. ii.,
§ 61. Bla. Com., vol. i., Introd., p. 42.

' This portion of the subject of jurisprudence is ord'narily denominated municipal
law by English writers. Blackstone (Comm. I., Introd., p. 44) is most commonly cited
as authority for its use : but it was employed by English lawyers long before his time,
(see L Vaughan, R, 191, anno 17, Car. ii.,) to signify the law of any one state or
nation ; or, what is commonly called " the law of the land." According to the analogy
of tha languages of Continental Europe municipal law would imply the local law of
tome political body less than a state or nation — the law of a municipium, a town or

law mn STATES.

proceeding from the authority of & single polity or flt&to, and
having effect only within tho territorial limite of its dominion.
These rules may or may not he consistent with the law of nature,
or true principles of ethics, but in being prescribed by tho
highest power within the limits of such fifcato, and constituting
the judgment of such power on the principles and effect of
natural law, they must be taken, within thofje limite, in all legal
or judicial considerations, as tho highest rule of action,
i § 3.0. Since the whole variety of human interests and action
cannot, from their siature, be distinctly divided among and in-
cluded under the b'mits of different states,* the powers of society,
in reference to such interests and action m are beyond tho sepa-
rate control of single states, can only be exercised among states
recognizing no superior among themselves, by a united, or re-
ciprocal reference to principles of antecedent authority and
universal obligation. They must, therefore, refer to the condi-
tions of man's existence (a law in the secondary sense), and to
human reasoning in regard to those conditions, as giving the
only law (independent of agreements which themselves rest on
that law for their obligation) which can be recognized as a rule of
action and one of . natural origin— an origin distinct from their
own juridical will. But because they recognize no superior
among themselves in determining that law of nature, the only
exposition of it which can have legal force— that is, a force like

city, or at most, of a province. For a justification, of ibis use of the term national
law, compare Bentham's Morals and Legislation, ch. xviiL, 26. Reddle's Inquiries
#c.,.pE, 93, 94, 236, and the; same . aathor'a jffifltorioal View of the La* .of Mailt*
Commerce, p, 1. - ■

/;al;Xn^°jtirist8.Trlio. have used the Latin. language, Jut. civile Is employed as tuoeqair-
aient of that which is hero denominated national law, as by Grotios, B. ofc P. Prolog.,
§. 1 : "Jus civile, eive Eomanum, sive quod caique patrium est " &c;, and compare Hobbes*
definition of jiu -civile (ante § 7, n.) .The term, has generally the; same, force with
the classical Roman jurists: ; but. it was also sometimes used by .them, in other senses,
as will be shown hereafter, j(cb. iv.,) .and compare Smith's Diet. Antiq., Jos, The
name " civil law " cannot well be^given to that which is here called national law, since
it is. already used to indicate the Roman law, or the Roman law as. generally received
in . Europe, in contradistinction with English common law, and' is also employed to
designate that portion of the law which , docs not include punitive, or the so-called
"crimimil'' law. ; . ,y\,\ ■ .' ■■'

X,* Bowyer ■ i'.JSj&r. Pub. Law, p. 139 : " For it is impossible- to confine the cl&cts of
municipal, laws absolutely within the territories of each state and, therefore, the laws
of di&rent ^onntieis^ve^ints'.df contact which arise from the general intercourse
• «f Vsp&noV a^'t^aj]be;loolEe3. tipbn . as a necessary part of the scheme of laws which
regulate the wori^&vided as it is into Mependmt nations and jroveieigntios,";, , .

imt -Mil-tin** Alt htWf &

that of tha tmf In tho rtrdlmry f '-mu, m ahovti Mmd- }<*
ha that, whUsh lm iwm allnwA hy wwli MftfMf twdi tutu-*
nllUitlnft an Indmondwt aulhurity in iwmlfdnlnfl tho tmu \it\n>
alpha of that, lawt

From thin mutwd wkMrnkdyiMitt, of pilmlpb-n of hbUmd
law, and tho a^mommt of mvuwtyn utalm fiwdud on thin*,
attem that vrhloh in properly cslM iMmmfimml lmt in ri^ii^t,
ti) lis ohjwstH and }nMlGllnnt lmt ofuuitiFf purlmimf tho »faw uff
national" & wiroe usually tafam to ho mom appropriate Umimm
tho term may mmn Mm a fav/ of whinh milium nm tlm
author^ or ono of whinh nation® am tho mi}$(i(it®, And, fn/frft/J,
this hw Hmfto In mm rmpMi^Rnd in otlwm (wtmdii, tho Italian
or authority of mparato natlom and Mvom\0\iw $ hut v/hlfo It
dorlvcB Ite form and origdn mninly from pnimlplm wm wnrlly
acknowledged among natiom tm Iiavfng tlm (dmrwlor of a pw
QxkUmt natural law, it Mill k mada to liftvo llm tiffant, or attUml
fovea of law hy tho aotlon of thorn mtlotm, nlmo rmah olninm m
eqiml right to dojlno or Jntornrafc tho mppomd natural Jaw»
equivalent to equal powor of kfihlaUon,'

§ 11, Whm thfo International law or tow of nation* in viowod
08 a rule of condrnt hotwom nation* or Matm m tlm mhjjtmt® of

» 7 Crunch, WW, MmUM, 3, Mtiwm (Mmh m\ U0»l. n,l(l,$ 8} pro*

writing, UH7, aniDr, Kotwh, JflfiO, wlw MitinmiUhri Jim Inter nwlnUiMm urn"
iluntf tm fteddln; Etem, InUamniimfA Jawi Wmtan'it J, hi wMimd'n (mllWM
of do. f FosJix, Droit rntemfttfonal J?HvA, fi I,

HI. Cora,, 35, J, 5 Intro,, p, in, IJ, to,, (J7» 8mm 1 Utfthwi, ft**,, Uh, it,, n, Q, ft,
"Nnrwjuam enira cl?ltftt«s mnt mil turn tnMmUm ^mm m\(rmi rnntm ^mmtm ^%
eocietatfy Interdnm e4 m»JoFom atilitntflm, loterrttim oh nmMH*t*m mnrn\mn, ISsa
Igitiir ratiom indigent slf^wjure qtio MfyMtnrat rente onllmntMln hm finmrn mr\f>-
UtU. Et qnaravw magna, experts hm M per ratlomm mtimUm mm tmmn #«fif)d<t»*
tcr ct immediate qwm4 omnk, I4ao<jiw #p§ci4!i»» Jur» \#Uimti \m fismnttm mniUm
introduci," VftumrtU J2I. of Mormf, Ao,f B, II,. oh, vf,, S 3J4, fiirt
rnlcs and amlQafaa of Rfttnrftl /«* HoA tii Hmrmlmiinna nf Hw rfgfot* »r>4 fii(ifptift»s
of nfttionswhlcfe&nris body of Bcknowleto/l law T/if« l)o4/«f hw h Jim inter
ffenien.&ml may be terme/l—Intflrnattal Jut?

9 Pofondorfi Droit d« Ift Nftt §t to aans,, I, 9, <j, |{f ,r $ 7» Oro«w*» II, fit £*,
Prolog., § 17. <' Et hoc Joe eat apod gentium dfoitnr, (jiwliou M nornon a J»rfl ri^|rtm?f
dUttoffairaiw." CSrotiua here ro/ere m international hw> tfi<p Iaw of wJiinft nnlUim «r»
tho Bnbjcctfl, nnd urines from tiwir conwnM' Jta into? ciwta&s, ft«t on?nw »ut piunwwjue,
ex consonau iuro qw(edo,m naficipotn«ri!nt"-'in tlie mm& mtton, defining tiiUjungm-*
Hum, In other pikes, Grofclus «>e»k6 of tiio term i«» gentium m Jwsing tiuaii fr/r wfea*
bo calls Jub natural*, as oh, J,, 1 14^-"jiM netarttio, qnwl ipsnro qiw|n« /{swtiiiw riffit
eolot 5 "in garao cimptor, 11, 1, he tho dictinotion wr4o in flio Jlornan Iaf fm^
tiwwnjufnaturale waft jut gentium, considering it m mt ®tmo, fi uaim vi» uWnm haiw6,w
Tho necessity of prowrving encJi of theiw significations of ju» gsntlum will bo ebown
hereinafter in tbU chapter and in tin) wcoan,

- * r.i ■■! ,

F if If

if'!' , it r ■.

it ii :irH,'

-.-if'

. ?" s.' '*•?' - ' .1-

I .f/t) fa Iff

I- t ■ ■•/."■ .o

'I!

: i , 'J

(i%4btt.t$ hi /i U t<?&/?W/- !jj s^>}ifi fa?1;' /* /■:/:' ,:>;;;7;a°

if Iff //V^/>//'//*? 'f Iff h^tr'^ P^:r:Jrh: ^%y-p'i^/i

f Mm, ■■■j1*'1 ^'^/f jfPk*1. >////'■/■ W-Ht.V:

£/. of t*s.o ia-y-r; oexr-g lit pari derived from
o:h:of>'oi of eCcicz.: z:\d liu the
/s.'-rl'fi ~..hf .or sz:,:y.:r.& d^-f al of tho mor&fovxi.-'

■,c o: f' V;.'' .of fr'\o df//f or.;- ;:he ;aw jr; the .o;.'.# iio-r*
„v;v-.v.'„ /afoi,~of *vf. o^ Oo, :ho .'::;.rj} each .of those
f^oxf^.o ;.f ;;ho povrOi'cf code's/ ^a.thor ;'. v y/t; their exist-
. :i. -\.,^/f/ s /ssdCJ;zg 0O7ror oik the-g^Gimd feat
- v&.L o. & > -;,fo. ofhoo o&%-*- oy such. xag^featatioii.1

e c&lled * fee law of nations/'

■s. ,vf -2 :.f tfV&fc .-.tatef; are the mx/(^<i/&3 ~mll.&&

„;« :J. i- 'A\..i.'roC^uy o^o^at^-roay' or^ia/netbe couftLle;**
. .. :2'iiz-.-y.i of .literal mmo^y o:* ~/hat ccgjh&to be

;.' /o> .iiv.or,/ *K iSf^o.- as A&tsr&l ;a~-7:, Eaoh of these dM-
'.i -\a~> ^: v. ^sd? ohlle eo:. -. ! '.• .'1/ claimrfi^. to agree

•. .^./.i/f vf fhoto" 'or have hoen. toe specula-
:/,-:.f or.', vf .hi. v;o>h '^j.-al jar", o? r^ght, has always
.:, -,^;f . .7/ tsJ/.z aod ^u^sfe.to e^rist, and to 'be of eon-
7; ff'^fv;. ,f v-/:, has ./.ad r;ffoot&s. i:\the .gonso of the
;kof a.v* f • of /:.d "cia1 f-eohlor,,, only so far 23 acknow-
/V *v 't: p-r.-r >itiJ. nat;or,.;i> or etates.

f. o orJ :A tLa'; the trae la~7,o£ y-afLi/e, the

V:.y./:-j*5r> dl-c^vr. of ^u:f;/oa;,o:7 . oehagv 07 the supposition^
: C'i' y<*':~*$ oi^za., m~«d* oe ■ .v^j-Sx.u'Cij binding

/f f ; '! . '^'j^'; erifl/ of. ihe j>7C*rkh7*s of 'kam&K.:l8.w*3

/?,.,.•> ;f :f: e ^'i«o l>^r^'iueh:'tl'-at:^ar. is caorn>3i of moral
. •' -^o:: —f / of .aJ . ea.-^a:^ o6">rer, * .• Eie agreement of
;-*!!f'. /.'; ^tura! or diy" r> e opts must in each.
/. \Cu each ^ '.• ■ ',rij, g-abjeot to botb/XQust &&-
co:' vo'' oi\co fo? >inn^olf though the btunar*
i5.T^ an/ practical effect in

f-h"f -

... . r ' ■ . -

, ;■■ te-\txi, .<■:; «/u:v/ 250/.:^ -fc' «^>.; •the; ■•sw&fttf 03 fiie s.V!i';<;d
^VfOi" , i-ic- •-•^'.•r - < / WrA -aa^ •• «r.fJ5a»J- jaeansati^I-lsw as fc^r, with fnieT"

if'/M&SS' "■ •/.- -*/ v. .••.^^r.r.'r.r^ y,r.';^.fr^ r-Hch ths/ 3^5 tie k7T

WILL OF THE STATS SUFEESfiB.

excusing a violation of its own provisions ; it being essential to
its own existence that it should itself deeide as to such agree-
ment, and enforce its own commands without regard to any
other judgment. And in this respect it is immaterial whether
the individual opposes to the will of the state his single judg-
ment of the natural law, or refers to a recognized "body, or
church, as authoritative in such questions. The authority of
such church in matters of taw, resting on its being supported
by, or identified with, the supreme power of the state ; and in
the absence of such identification, acting on the individual by
his voluntary choice, or the judgment of his conscience.1

§ 15. Municipal law, according to Blac&stone's definition, if*
<{a rule of civil conduct prescribed by the supreme power in &
State, commanding what is right, and prohibiting what is
■?5Tong." The latter clause of this definition has been criticised
as snperfiuons, if that be right which the supreme power may
call such j or inconsistent, in denying the supremacy of that
called supreme, by implying another legal criterion Of right
than its own judgment. And in Blackstone's analysis of this
definition, speaking of "the declaratory part" — "declaring
what is right, and prohibiting what is wrong," he says, " it de-
pends not so much Upon the law of revelation or of nature as on
the will of the legislature."

The supreme power in the state must necessarily be absolute,
in being subject to: no judgel3 It may give to its own will the
name of right, and enforce it as law ; but as the essential con-
ditions of man's nature, and the ends of society, must always be
the same,— -to support which states exist, a violation or denial
of their existence would be to the same degree a destruction of
the basis of the state, and would free the individual subject from
the obligation of obedience. The limits of the definition are a
question of political ethics rather than any part of a view of
the two f wh^ii should be a statement of itikai is, rather, than

i I/Agaesgezat (&gv., Tom. tt p. 688. There ars, of course, many writers who
znfghtbe citetJ against this view. Compare BowyerV Unfa Pub. Law, p. 73 — 87.
B-nmen'd Signs of the Times, ck. v.

'.Lessee ofLmngston v. Moore and other?, 7 Peters R.^ 516. , Jobnson J. — " The
power existing la every1 body politic is an absolute despotism.'' Paley : Mor. and Pol
PML, B.-vLjC. 6. Bodin j Eepub., B. i, c. 8. Atistin : Prov. Joi*., p. 295.

ACTIO!? OF 8BPBE2D3 TOWER. IB

of what otigfd to de/1 for -which purpose the abridged definition
is comprehensive enough. — " municipal law i3 a rule of action
prescribed by the highest power of a state;"* not regarding it
as capable of being wrong : thai- is, not judging it by any rule
out of itself.*

§ 16. The supreme power of a state, or* more correctly, the
person or persons holding that power, may always claim to inter-
pret their own legislation by a reference to natural law, as hav-
ing been always the guide and exponent of their intention. And
in every sovereign nationality this power must exist, and be
somewhere vested. Such interpretation from the source of the
law is practically identified with the sovereign act of legisla-
tion. But the administrators of the law, as subordinates of this
sovereign power, or of its possessors, either executive or judicial,
cannot assume to themselves the right of annulling, by a de-
cision under the law of nature appealing to their consciences,
the decrees of that sovereignty which gives them their powers,
and determines the limits of their judgment.* And where, by
the law of that sovereign will, the ordinary course of legislation
is delegated to limited governments, the possessors of legislar
tive power cannot alter the limits assigned to them on grounds
derived from the law of nature. ' So far, however^ as the
supreme power adopts the natural law in the expression of its
own will, and, which is essential to such adoption, refers to a
settled interpretation of it, it becomes municipal, °* inter-
national law, and the rule for private action and judicial de-
cision.8

1 Qmd sit juris, naa qxiid at jusram ant injustom. Austin : Prov. Jnr., p. 276.

s Eentfs Comm., ilecfc. xx^ pr. "Mtmlcipa! Jaw is a role of civil conduct pre-
tcribed by the supreme power of a state." /

' Co. lit, fo. 110, a : Of the power of Parliament, f Qa© S erf de ires grani honor
et justice, et que zrol doit naaginer cixm dishonorable i* cites PL Com., #98, b. Doctor
and Student, ca, 55, foil I&L Compare a Bmnrnarjr of vaaions aothorMcs on tMo
point in Comment, on Const and Stat. Law, by E. F. Smithy ch. vK.

* Bacon's Essays, 67. Colder «. BuB, 3 Dallas, 398. Kan?* W., vol Ess* >
on the Faculties.

* Fortescue: do Landibns, cb. ariii.

e Austin : Prov. of Jm^radent^.Detern&iedj p. 173. u The portion of the posi-
tive law, which is parcel of ih6 teas of nature (or, in the language of the classical
jurists,' which is psreel of the jus gentium) is' often supposed to emanate, even as posi-
tive la if, from a divine, or natural sotrrce. But (admitting the distinction of positive
law into law aataral and law positive) it is manifest thai law natural, considered as a
portion of positive, is the creature of htnnanr sovereig/ty and no* of the Divine monarch.'

POSHTVB L&W.

§17. Ifnatiiral law were to be recognized in jorispradenee
as a rale existing anterior to the will, and independent of the
action of states, or society, the portion of law which is confessed
to originate solely inthe will* or decree of states, might properly
"be distiagrnslied in jurisprudence as a separate division of fow?,1
When; this distinction is made, sucb portion is known as posi-
tive law y i which designation is proper for the purpose when the
term is xsnderstood to refer only to the origin of that portion in
the' wiH of the stats.? > Btst if/the t^nn^^^ is nsed to ex-
press thd a^th6iitative iiatnre' of the law, no on© part of the law
is more entitled to the term thaft> another ; it is all equally an*
thbritative* whether a rule of natural ori|^n, or brigmating- id
the antonombus decree of the state. If the term is used to mean
that whicli is determined upon by the; state w its wiUj—^set, set-
tled npbny^wsj^,^positive law inclndes all law recognized as
a judicial rule, or ifteldio in the sense herein nefore given as the
ordinary senses those roles of aeHon which are enforced
by the authority of the state.*' Some term is necessary to ex-
press a rule ori gmating in tlie decreeoftbe state, and since this
term positive law is commonly used to distmgaisk such law
from rnle^ 'of natcral origin enforced by the state, and is also
used to express tlie whole of law in the ordinary sense, the term
p08vtii/&G taw has become a somewhat ambiguous one. Positive
law is now nsed.by the best authors to signify every role that is
law. Jurisprudence' is defined by Austin as being tne science
of positive law j that is, the science of what. the; role given Gr

To ssey that it emanates as positive law from a Dhme, or natural scttrce, 13 to confound
poafava'law -with lstf h^Beraoii it is fasJiioiiefl, or -with law -whereonto it conforms.''

-•■-•* Groims: B;.elP.r.Iib.i./C»i^ jir ati Estettertia jots' sjgnificatioqnffliSein
valet qaod lex, qootics srat legxs largjssxme sntoitar, nt sit regnla aetonm moraSnm
obligans ad id grv^reefenic^ etc " 2. Juris ita accepti optima .partitio est qns
apewi Aristotelem exifa^ ti6 at sEud jus natarale,- aEu3 voTmitSThmj,;qnod Blelegiti. mm
va^legis vocaWorst^^ et ?2r I? Taf«, consStntnm. Idem dia-

crimen apod HeJjwoszepcrire ^"efe. -r t . • f

; Hogoit Eacycttfpsdia, p. 15, 110. 2, takes. Jos constftutam, of qaod ipse popnlns sibi
constitait, for the Latin term corresponding to what is in the test called positive late.
Snares: T>« Legibos etc, lib. u, e. 3, eec 18.' -

IMgiiesseaaj flSavre%-Toin..i,;p. 2S0^ r "Jbr nnKeo. d'tm grand iwiribrerda'loix1
pd^tives folates p^ I^moeaTff d^ Sonveraina Ls^s-

kteor." iBaS in tfi3 eame toL, pv 447, natural zsduenminafed from jpo«&as law. - ' r
a -? ITatggfcaa 192/ (anao' 19 CarV JL) ^ For the freehold is not a natural Ufiagi?
bat hat3r its essence by its poa4ive munic^^ law of the ldngdoiia.w ?.-;..-

JUBISPBUBEKCE DEEXNEBi'

allowed by the state The science of what <mgM to ~b& the
rale is. the science of political ethic3.s

§ 18. If jurisprudence is taken to he the science of law in
lie strict and proper sense; only (which involves the relation ol
a superior and inferior, §1), it is the science of the law of a
single nation: only, a, the science'of sonte one r/wnieijpaZy or$
more correctly, of some one n&fiqnal law:|* and: the ■vn£&r->
nati/mal law. is known in jnrispradenee, only ; as : a ;snbordxnaie
part of some one such national law; or* ia other wordsy the
international law is known in jnrisprndence only as it may be
applied by one national source of law to relations of private
persons wiich grow out of the existence of otherr nations ; since
international Law is not law in the strict i^iise/except as it may
be enforced by some one nation, (ante,- § 12), . 3he Uxm generali
or universal jtmspricdeiiee, -would signify only, the aggregated
science of different systems of national or municipal law.

§19. But since the jnrisprndence of each state (as a conse?
qnence of its jural character) recognizes natural reason as a rale
of intrinsic force/ and in its municipal and international law .

?Savigny: Heat, Bom.- BechtJ % 5. - Austin: J?renr.: Jirrisp., rp; 18I,r and abteaj
also, p., 197, andante,' p. 11, u. 3. Sfackeldey, by Katfrnajmi'Iirtroi, §§3, 9, aaa
tbanote?, distinguishing the pnSosophy bfposinvelawfirom fpli3os<^li!cd law; Com-*
pare Doctor and Student ch. iv. '. : , :v

Jurisprudence is sometimes used in the sens® of the science of abstract right. Long's
Discourses, (Law Lib., N. S., voL 44,) p. 5. " Jnrisprndence is the science of right." —
Brande's Diet. Mr; Cashing (Introd, to ae' Stadjr of the Soman Law1, Boston, 1854, p. Sj
fakes it in the sense of the application of law ti1 particular cases; and!, m p, 168, gives
it the sense of unwritten law, common law, aid judicial law- he also tisJs the tens
"jurisprudential" as synonymons vnfhjtauL With the French \mjzsd,jv3ispraSaka is
contrasted with tlra fcfe, Frojet (of tfe.(>xieCrril),X>i8Ccnr3pTelm^ -»,*
" On ne pent pas pins se passer de jnrispradenee que de loiij" . Foslis, Dr. : Int. Pr,
p. '882. "Lois positrras et jnrisprndence."' Mr. Beddieinses it: in the sense ofl&e
-arhole national law. of some state, of the'whols of that role of action which is applied
within a certain national domain. Beddie: Inq. EL &c., ch. v. Law Beview, Los-
don, Nov., 1865,p.'128: M Some term is necessary to denote the science of law, and
■we shall so employ the word jurisprudence." *. * ' "By law is here understood
positive law,— that is^ the law existing by position, or the law of human enactment.
Jurisprudence is tins science - of positive law," &&, citing Susrez : de Lag. etc, li. L,
ch. 103, Kscvlft v ^ • - -- ■ ■

.;-* 'fForv-W wisdom of -ib» law-maker is one; aid of alawyefia another." Bacon'?
Adv. Learns Works, AnvEd^ l y.^ 23& : '■,:-'-■•

* Falek : Jurist. Ency., § 11, (French tiv) "Comma Ie droit prend naissaace dans
la. volonte collective d*une society cmle, 3 doifcy avoir antani- de droits qnll exist© de
eoeietes civilesou d'etats," ' V- -r •• '-..-r-rh t\ v.- .

. 4 Bowyer: Univ.' Pnb. law,- pp. 34, 35. WJ^cffs Sesneats-Mor. fic^^B. fiV/
cfcvvi> §21&> Since in all nations the definitiona .of righto and^ebh'gations are in*
tended to be right and just, it is natural that there .should be Touch .tact is common1

uvtvessal jrtrsrsntujncircK.

applies that reason to the unalterable conditions of human ex-
istence, thus recognizing the law of nature, in the primary 'and
secondary senses of the word law, it may be anticipated that
some principles or rules will be found to be the same in the law
of many different states: and these rules, so fonnd to obtain
generally, may be distinguished from the rest of the law of any
one state by their extent; that is, by their being generally
recognized and enforced by the several possessors of the power
of society. And though the whole law of each nation is judi-
cially taken to be conformable to natural reason,* those princi-
ples, when thus known by their general extent, may be judicially
considered founded on the necessary conditions of human exist*
ence, and therefore be judicially taken as having universal
application in all countries, and under the sovereign authority
of every nation.* They may be considered, in the jurispru-
dence of ar y one country, as natural principles ; not only be-
cause recognized by the national law, but because founded on
the general reasoning of men living in the social state.* They
may, therefore, be considered the subject of a jurisprudence
distinct from that of any one nation— a general, or universal
jurisprudence ; general, or universal, because historically known
to prevail among all nations, or among the more powerful and
enlightened.*

In the view* and determination of all nation* on the subject. That which b com-
mon in the detenni nation of all nation* respecting right* and obligation* la called
Jut Nciura, or Jut Gentium, That which ia peculiar to tha law of a particular state,
or city, ia caned Jut OiviU, or Jut Municipal*. Wa may distinguish these two kind*
of Jus a* Natural Jut and National Jut." Abo, tha *ame, B. vL, c. I, § 1189.
' Aylrf&e Pa Sects, p. 6.

* De Tacqnerilis : Dam. in Am., vol il, p. 84. " A general kw — whtoh bear* tha
nam* of Justice— has been made and sanctioned, not only by a majority r4 tbls or
that people, bat by a majority of mankind. * * * A nation may be considered
in the light of a jury which ia empowered to represent society at Urge, and to apply
the great and general law of Justice."

In Bowyer7* Univ. Pob. Law, eh. It,, where jurisprudence is exhibited by the
a priori method, following Domat, wiiwrrtal jurisprudence is eqniraUnt to political
ethic*. Daponceaa on Jurisdiction, '/p. 126. 12$, recommending the study of " gen-
eral jurispradence," which, be aays, ii part or the common law, and which he laments
" has fallen too much into neglect,1'' d»* not distinguish it from " universal jostift* "—
"the eternal principles of right and wrong."

' Arbtot : Rbet, L. I, e. 18 IS. Reddle's Inq. Elem,, Ac., SA-87.

* Here universal jtufopruden'* ia derived by reasoning a poitoriori, according to
Grot 16** method $ and, so derived, it ha* no necessary Identity with that derived
a priori, In the manner pomei by Domat, (*ee Lois civile* j It. das Lolx, and the
mm unary given by Bowyer, Unlv, Feb. Law, p. &S,\ and also by Pufendorf, and other*,

LAW Or MATJOH1.

§ 20. Tho term Jaw ^ nation*, pis gentium, had been origi-
nally employed by the Roman jnrUtt to designate legal princi-
ple* having tbU general extent, before it became applied to that

as Manning t v. Comm. Writers on isrtee.etioasllaw, or tbe lew of MtiotM, to tbe some
sense, may b« divided Into two cIammi JSose who derive It a prforf are, however,
property speaking, wrHer* on emfav i thorn only who & -to H a potUrUri at* writers
on W Low dotaymtood In tho amir pui sued by tbo toot is derived by tbo inductive
method, or empirically, to tho language of tho Germ** writers. (For a similar distinc-
tion 0010110 wafton on poHtfeel end religious systems, oompawi La MetraeJei Eeeai oar
rirdlnVreooe esc., Ton*. U., a 1*8 Do Motrin : Soiree* do St. Petewburg, Tom. L,
p. MO.)

Bowyor** Com ea Mod. Ctrfl Lowf Load., 1*46, p. J6. "Tbe Romans giro tho
reason or tbo imiverselity of what thoy call tbo low of notion* fa thoos word*, — auod
Mtanlb ratio Jeter omnes hotnfaoo eeaetrtalt Bat tho drIHens of modorn times
bora drown their olowMeorton from tbo rooooa of wo alleged universality of tbo law,
end not from that universality itself, wbloh, owing to tho ignorance of oomo nation*,
does not in point of foot exist. That reason U, beceoM tbo obligatory fore* of tho bw
i* pointed out by tbo mental faculties of men. This universally obligatory low (thou (h
not universally observed) 1* called natural Urn. and i* tbu* donned by Grotius," As.,
oitlaf B. etP, Lib. L, o. L, §40. L Now Grotto* eWrly dletinguisbea in § It, of be
mom chapter, botwora thooo tm mtthodt of tmortaMng tho unr j and though ho u
tbo loading eothor following tbo inductive method, bo otfll attributes U* avlktnUg,
whm aeosrtolaed, to nature, or to tho Creator, not to tbo will of political state*. The
qiiootton, wbat rnlo* do tho mental faculue* of man doelaro to bo obligatory t is solved
by tbo history of man'* exercise of hi* montal moultles, and not by tbo mental facnltie*
of Jae individual toriet. Mr. fioddlo adhere to wbat may bo called tbo oarly Roman
schooL and iaoUto tho modorn drill us* have orrod so far a* nay have derived
tboir jot gentium a priori. Showing, too, tbtvt. la fact, tbo principles of th#> law of
nataro, a* anfcldod by Puiendorf, Cooeotos, Wolf, and others, are littlo else than propo-
sftton* taken from tho Roman law: stripped of all that identified then* with the
national system of wo Romans. (Roadie's Inf. Elem. 4o~ 74-76, 81.) Gravins, do-
olarot, Do Orta ice, L. 1. Prtooip. i " Qnonkm nihil allod oat too dvilo, sM natural!*
ad Romans) Rotoublioa) motltotioaem relate, Romanisque morum* ot Uteris explkato
ratio. " «tc.

Bontham < Moral atvl Log^ oh. xriL " Of wbat atamp are the work* of Grotln*,
Pelbndorf, and Itorlamaani f Aro they polltieal or owieal, hiotoffeal at todioial, ox-
poiitory or cotuoiialf oomotiznoe ono wing, Monetbnoa another; they teem hardly
to bar* aottlod wo matter -rlth tbomaolrea. A defect wis, to whioh *-U books most
almost unavoidably bo liable whkb take for their sabjoet wo pretend* ' 'mo of nature ;
an obseoro phantom, which, to we imagtoadons of those who go in chase of it pointo
somotfmef to mamun, somsdme* to Uuoti somomnos to what law u, sornoqavw to
what It ought to bt.n And the author hero refers to eh, !L, 14, of ibrj tame work, and
his note to toe passage, whkb is herein before cited, p, 6; and oompare Morhof's
Polyhistor, roL ill.. J J", rl, a 1. Do Jari*prndenti*s aniversaUs S^ptonbos.

Grotius I* not, indeed, altogether oonstaat to tbe method todioatod in tho passage
referred to. Grottos i B. ot P., cb. I, 19. "Now thatany thing is, or is not the law
of nataro,,!* generally prorod either a priori, — that it, by argaaswt d^mwn from tbe
very nataro of tbo thing } or a potUrivri, — that is, by reaeona oaken from something
external. The forme/ war of reasoning la more aabtflo and nbetraoted; tbe 'letter,
mora popular. Tie proof try tbe former la by showing tbe ner«»sery fltaese or onfit-
neie of any Udng vrlut a reasonable and sociable nature. But tbe proof by thr> Utter
is, when wo cannot with absolute certainly, yet with rery great probability, conclude
that to bo tho law of nataro which is generally bettered to be so by all, or, at least,
the most drilked nattoua. for a universal eflect reqoiref^ a universal ewase 5 sad
there cannot well be any other souse aarigced for this gene/al opinion than what is
called common tense." i >

UMTVEBSAL LAW.

law which ib herein before called the international law, and
which had not with the Romans any recognized existence, aft
distinct from their own public law, jus pubtivum Romomum.
These principles will always constitute a part of the inter-
national law, the rules of which are in a great degree founded
on their existence, as will be shown in the next chapter. But
they exist independently of it, and are equally a const: tu^i
part of municipal (national) law,1 There will always be a
necessity for their distinct recognition, and for" some appropriate
term by which to distinguish them. The term universal law
has been employed by late English writers to designate these
principles, corresponding to the law of nations, jus gentium,
of the Roman jurists.'

§ 21. Law, in being a rule of action, necessarily regards
both agents and objects of action ; and thus in its inception con-
stitutes the first distinction known to the law, in determining
who or what are agents, and who or what are the objects of

1 D'Agnesseau : GDuvres, Tom. L, p. 444. Duponceau on Junwliction, pp. 18,
110, 126, 128. Compare, also, Bacon: De Augmentis, Lib. viiL, Do justitia univer7
aali, sen de fontibus juris. Seidell : De J. nat. et Gen. &c, Lib. i., c in., vL

* Bentham uses the term univertal to describe those principle* which are commonly
received among all nation*. See Moral* and Legisl&t., ch. xviii., 24. " In the first
place, in point of extent, what is delivered concerning the laws in question may have
reference either to the laws of such or snch a nation, or nations, in particular, or to the
laws of all nations whatsoever ; in the first case, the book may be said to relate to
local, in the other to universal jurisprudence."

" Ealra theoda riht, (the right of all nations,) jut gentium.'" Bosworth's Lexicon
Anglo-Sax., verb, Riht.

There is no classic Greek term answering to the Latin jut. r6pos corresponds to
lex. The distinction between a jus "Ciiov, proprinra, id est popniis vel civitatiboe sin*
golis civile, and a jns Kotrbr, commune, is remarked by Aristotle, Rhet, Lib. i., c 18,
15, where he also designates the latter as being that which is kvt& <p6g-w, secundum
natoram ; but recognizing it to be so from the fact that i'; is universally received.
Comp. Time, B. iii, 59, rk «owa t&v 'EAAiJw rifjufxa. The Byzantine jurist*, who,
about A. d. 876, prepared the Greek version of the Corpus Juris, known as the Basilica,
(v. Smith : Diet. Antiq. Butler's Horn Juridica, app. h.,) used the term vipuftav
IBrucbr, and also coined from juris-gentium the word 'lovpayarrtos. See Selden : De J.
Nat et Gent, kc, lib. L, c yi.

Brougham : Polit. Philos., Prelim. Disc. " It is a very common error t* confound
with this branch of the law" [referring to international Uw, here denominated by Lord
Brougham "the law of nations,"] many of those general principles of jurisprudence
common to all nations, and to term these a portion of th ; law of nations." With equal
justice it may be said the error lies in calling intematicuil lam by the name " law of
nations ; " or rather, it lies in calling by one name twe distinct sets of legal princi-
ples, vis,, principles known, or denominated from their general recognition, or applica-
tion by ufvdcms, and those rules which are applied at a law between nations ; which
last art derived both from the first — the principles universally recognized — and from
the agreement* and customs of particular states.

PERSONS AND THIHQB.

action. Agents, under a rule of action for moral beings, being
necessarily snch as are considered by the author of the rule
capable of choice and action ; or persons, to be distinguished
from things : the latter being only the objects of action, and
incapable of personality — that ip, of capacity for choice and
action.

The action of persons may be in direct relation to other per-
sons as the objects of action ; and even in relation to things, as
such objects, is of legal significance only in respect to other per-
sons. In other words, all legal relations are relations of persons
to persons — directly, or through things.1

§ 22. A legal relation betv een persons consists in a privilege
and obligation as mutually essential. This privilege and obli-
gation exist in each of these classes of relations, constituting
rights and duties as correlative, or as necessary co-efficients of
each other. 9

When rights and duties are classified, they must always be
taken as rights and duties of persons, since it is only by the
prior recognition of persons that relations, privileges, aud obli-
gation can be said to exist. Bights and duties cannot be sepa-
rately classified in any system of jurisprudence, because, being
correlative, they cannot be separately described ; the definition
of one is involved in the definition of tihe other.

§ 23. The prominent distinction between rights (with their
correlative duties) is that of being rights in relations wherein
persons are the objects of action, and rights in relations wherein
things are the objects of action. But since persons and things
are associated in every action of natural persons, it is impossible
to make an accurate classification on this distinction." Bights

* Aniens : Natnrrecht, p. 88. TV. "A being endowed with Mlf-oonsciouaness, rea-
son, and freedom [power of choice] is called a person, or hat, personality. "

" The law relates to person* aa it* groundwork and aim, (Zweck.) That is, it hat an
essentially personal character. The distinction which is ordinarily made between the
law of persons and the law of things, as of two co-ordinate parts of the law, is there-
fore inaccurate. All law is throughout a law of persons.*'

" The law necessarily relates to things also, inasmuch as these compose the physi-
cal conditions of Iranian development. Bat the law relative to things constitutes only
a subordinate division of the law relating to persons."

* Jos et obligatio sunt correlata. Tbibant : Syst Pond, rtechts, Elementary Part,
f 1. (Lindley't TransL in voL 86 of Law Library.)

* Compare Austin: Prov. of Jnrisp., Appendix, xriiL — xzv. Wesenbedi Comm.
ad Pandect, Lib. L, tit v., num. 1, n. "Omno jus quo utimnr, vol ad per-

RIGHTS — THZIS SUBJSCT AMD OBJECT.

considered without reference to specific things as the objects of
action may be called right* qf permits, and distinguished from
rights considered with reference to specific things, or classes of
things, as the objects of action : which may in a certain sense
^ called rights qf ihUuja- mutmiug, however, rather the rela-
tions of things to persona having rights and duties in respect to
those things.*

§ 24. A right may be considered as to its subject or its
object. The subject of a right is the person in relation to whom
it exists ; its object is the matter to which it relates.*

Persons, both as agents and objects of action, are the subjects
of rights. Things can only be the objects of rights, as well as
the objects of action.

As, from the nature of things^ they can be regarded in a
rule of action only so far as they are in the power and posses-
sion of agents, or persons, property is an essential attribute of
the nature of things.*

sonaspertinet quibus jus rediiitor, vel ad res de quibus jus reddltur, Tel ad actiones lira
judioia per quae jut red Mtur." Here, in the first instance, jut signifies the Jural rule ;'
stfterwards, it has the sense of a right, or privilege.

See Reddle's Inquiries Elem. Sec., pp. 146 — 159, for the distribution or arr nge-
ment of private law made by Gains, Grottos, Bodkins, Bacon, LeibniU, Cocciens,
Pettier, and MOIar of Glasgow.

' Buddie's Inq. Elem. dec, p. 171. "Now rights and obligation* axe manifest!/
the attributes of persons, not of things. And to divide' rights, like Judge Blackxtone,
into the rights of persons and the rights of things, if by the latter words are meant
righto, not over, in or to, but belonging to, or inherent, and vested in things, we have
seen, either evinces inaccuracy of thought, or is, at best, misapplication of language.
Again, rights and obligations are not merely the attributes of persons singly ; they
presuppose and exist only in referenoe to other persons, A single man existing on
the surface of this earth would have certain physical powers over external things, but
no legal rights.''

"But although rights and obligations are in reality, and correctly, the relations of
individual persons, to other individuals, they are plainly correlative terms."

Hale, whom Blackstone followed in this distribution, used also the Latin terms
jura rerum and jura pertonarum. The word jut signifies law, as well as a right — the
effect of law. Jura rerum, in the sense of the law relating to things, would have a
meaning. Compare 1 Starke's Ev., p. 1, n. 6. Austin : Prov. of J., append, xlr-

* In the languages of which the Latin is the principal basis, (toe Romance lan-
guages,) tubject (e. g, eujet, Fr.) is oommonly used to designate that which is here
called the object of a right. Mackeldey*s Civil Law. Comp. In trod., } 14. "In con-
nection with every right, we find a subject and an object. The subject of the right is
tike person on whom the right is conferred } thn object of a right is the matter to which
H relates." The German writers generally, when employing the words as German
words, use them in tne manner her* followed in the text See Hugo t EneyoL, p. 11.
Lindley*s Translation of Thibaut, append, ii.

' Compare on these sections, Long's Due, p. 109 — 115. Good* on Legislative
Expression, p. 9.

LAW — FTJBLIO AJTO PKIVATB. SI

§ 25. By regarding states, or sovereign powers, m determin-
ing either the laws of their own existence, or the rule* of action
for persons subject to their supremacy, international and munici-
pal (national) law may each be divided into two parts — via.,
publio and private ; though, since the relations of individual
persons are in the end the objects of each division, the distinc-
tion cannot throughout be accurately observed.1 It is, perhaps,
more correct to say, municipal (national) and international law
may each be distinguished as either public or private law,
according to the public or private character of the persons
whom it affects.*

That may be called private municipal (national) law which
determines, within the limit*, of a state, the relations of persons
towards each other in all incidents of the social state distinct
from the political existence of the supreme power.

The public part of municipal (national) law is that by which
the supremo power defines or asserts its own nature, bounds,
and purposes within its own limits ; and the investiture or seat
of that power; either, as existing undivided, or centralized in a
whole people, or in a larger or smaller portion of it, or in a
single family, or person ; or, as being divided and distributed,
according to its objects, among various depositaries.

1 MacVeldey's Compead. Intzod., % 8. « With nr/Mt to Its object, «Ii positive
l»w may be divided into public and private law. The public law (jut publicum) com-
prehends those rale* of law which relate to the oonttitntion and government of th*
state ; consequently, it concerns oJ\j the relations of the people to the government.
The private law (jut privatum) comprehend* those rules which pertain to the juridical
relations of citizens among themselves." This division of the law into public and pri-
vate is found in the Institutes, and observed principally in the writings of the civilians.
If not very philosophical, or dial' active, it is convenient, especially in treating of con-
ditions of freedom, or its opposite*; whioh an spoken of in • political, as well as a
social connection. It is not, however, essential that the subject of jurisprudence should
be thus divided. Austin, in Prov. Jurisp., Appendix, lxi., observes : M As I shall show,
also, every department of law, viewed from a certain aspeot, may be styled private \
whilst every department of law, viewed from another aspect, may be styled public.
As I shall show further, public law uni private law are names whioh should, be banished
the science ; for since each will apply indifferently to every department of law, neither
can be used conveniently to the purpose of signifying any. As I shall show, more-
over, the entire corpus juris ought to be divided at the outset into law of things and
law of persons ; whilst the only portion of law that oon be styled public law with a
certain, or determinate meaning, ought nor to be contradistinguished with the law of
things and persons, but ought to be Inserted in the law of persons as one of Its limbs,
or members."

Mr. Beddie: Inquiries Element. Ate., 261-2, regards the distinction between pobUo
and private law as essential in every system.

* Savigny : Heut Kom. Reoht, B. L, c. 2, § 0. The German term bUrgeriicbes
Recht corresponds to private law. Heffter: Europ. Volkerr., f 87.

ptUok iji/tfi-Mbsv'M *-•■•/.= •■.■-■,-.-■ :

fj,^« t'mk vbiri, \rj -y^ y^'fi/- ■ u- ■■

fuW *)',*: y hvU^.-^U ^^''--M/i a , /./,•• .v

H-tiiiiv /. //f *//y<-A''-^« tfoJA* **r v/fi.^t. i» «. ; <iv ••, ^. A-

*/f i'.'M'h }vhtf'stWt tv'..'j, \'tf tU .;/ = y

#f territory: iha lw<j ^miwii^, is*uuk'ij/;jl •Uatwt.^ •'

awjr4'm% to tlm ■Mmp^rkil ^rl;/iU:tl-ju ixwl-.j- \«'.:Wr\, «.>v/ :

f^UJi^l* 'jli^j iliti ni:'v-v!..:! law ./ s'.^*^^ '^y.v/

ject to -01" uii9tli<;*" s«Vfitfcui ^? jsutuk'^u v,v.;rt'
jag t<j> ihxh l^Uty, lu ihU yli-v l^xsi ;uv Vvr'v^*^' tv?;i-»
/J&l'Jf<e; JLi>V)»^ <*lS^*t ^i^aki %wy/r.}>kl',;i- i^uiv

oyer a cti-tdii territory j *>* war <;«•/'.?•/.'• j^A»y^ : uui .e!v.v
ti&iun jw-r&jm mnhi i\lw&y$ -tht t^vf'itk- .^l;J«/i'. .*y' d.
J^ws, thy jujrifid.Uy-tiw Jiiw>;^y-t:/- ii^n&u ^mtu^- jj.v^Ui. .vxjt

* «ie of U>e t*rai yr'.i-iU iMmM/xi^. -k K7 ^<-;^','af.?.j».i-,v,---y! :
vide J K«»f* *'/Aa».f p. .2, *4s&wnris^{ fc> ^. lfj*f/w. *>k>>'

lA.wtf.% Phti&'Mxtt t luUxx&ti-'M&l f+vt Vt*. .A.»-t a. >V,-iv*"'

f^/Vtt /titemjiSk^isl § ,1,. MV -eUsji* is«Hc/.s«»tisfti*J ^i^k '*;>■.«' r ¥i

<Jro*it '/Ask? 'iehn^Smf t Ym:S. •'/.',. '.{4*.$ W^nuUm^ t'- i-is:h;i'. /"i B*i;' ^" .

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."f"' ' '. ,7''. ' .• *, . .?'7 ;„-^ ic : ,-.7: -" : horr.xm tpza^y^xA

7' ^ 7 >,.-' 7 ■ 7* ' ' •g'fy £j:*!ti>7, y/Ai&. Sir V/rn. Jor.ss :

.; y"'", 7- ' 7 ... .'v7..'. j'.;t/m;;--y \ Ac';."'.., v7i. j>, 2-7/. iJacr.seoapiegel—

. ' ...7-;r' '^-T •7;..". 7.i '..c.v, -&■■£:/ ATr.of tee Saxcsa arid S^a-

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■ "' 7 y' , :/„. .*.>..- ■ :.-l;Y. . r' c--....:' ^ i 'J. : ■ ' / ' ■: 37:V;r"dr Vj

2£

OP.IGU? OF LAW.

p:i:oii:il law, taking effect "by their recognition by separate
states, or nations, each applying them in municipal,- or inter-
national Jaw, as "before defined.

§ 28. Although it is herein "before assumed that natural law
has no recognition in jurisprudence as UgcdVy mtAoritotvoe, ex*
c^pt as it is supported by the power of society, or of the state,
and therefore, when legally or judicially operative, must be iden-
tified with positive law, yet it is also considered as being ferae in
point of fact that all sovereign states have acknowledged in
some form the pre-esistenee of natural principles of right, and
as the originators of positive law have claimed to correspond
with them. Among authors and legislators these principles
have always been recognized under names indicating the differ-
ence of their origin from that strictly called positive law, such
as the law of nature, the divine law, the law of right reason, &C.1

Whether all interpretation of these principles, given by
sovereign states in their nranicipal laws, can be cOfi^dered as
actually corresponding with the real divine, or natural rule,
which they suppose to be pre-existing, may be judged from the
various decisions which successive generations of lawgivers have'
passed on the acts of their predecessors, each in tarn founding
their own judgments and corrections upon a claim to more just
views of truth and right reason.

§29. The application of jurisprudence to the relations of
persons and things is in most modern states made by judicial
tribunals, distinct from the supreme legislating authority of the
state.3 But whatever rules or principles such tribunals may
apply as law, they apply them as being the will of the supreme
authority, and as being themselves only the instruments of that
will, 'the will of the state is to be ascertained by the tribunal
in one of the following methods : —

First. Direct, or positive legislation, is the first and ruling
indication of the will of the state, whether it acknowledges or
refers to any rule of natural origin or not*

Second. Since the will of the state is to be presumed to*

2 Gtothxn : B. efcP,, Lib. I, <s. i., § 20. I/Agncsseaa i GEtrr., Tom. J„ pp. 446— 41%
Premiers Xisefrne. WWeH : Pol and Mo/., § 477. Cicero: Da Rep,, ill, 22.

3 Lieber : Political EtMcs, § 133. Pascal : Leftres Provinciates, xiv.

jxtdiciai*' mmg&mrs.

accord with natural law, -where th© positive legislation of tie
state does not decide, the tribunal must ascertain the natural
law which is to b» enforced as the will of the state.1 But this
law can only he determined by such criteria as are supposed to
be recognized by the supreme power of the state, if such criteria
exist ; and this law whea bo determined hecomes identified m
its autlwrity with positive law.*

If a state is supposed to be in the eoinmenceiaent of its
existence as a state administering law, or governing by law, the
only exposition of this natural law would be the reason and
conscience of the judicial tribunal.8

§ 30. But since every judgment of the tribunal which has
been executed and upheld by the power of the state must be
received as accordant with its will, every such judgment becomes
an indication of the natural law, as received by the state, and,
therefore, equal in authority, for the judgment of future tribunals,
to the law received by positive legislation, Tribunals estab-
lished by the state have, therefore, of necessity, a qiiasiAegi&lar
tive power ; or — the tribunal, the object of whose institution is
to apply the law given by the state, is incidentally a source of
law.*

But there is this difference between its powera in this respect
and those of the state itself, that the latter is not, in any legal

' To T2S9 the terms of Bomsa jurisprudence— the law proceeding from £ho legislate
is expressed by etto / that proceeding from the tribunal by mdeiur. Bacon de Aug. Sc.,
Lfb. viii., c. 8, 10. Apborlsmua 32. " Curia eonto et jarisdietiones qua statnant, ex
arbitrio boni viri eft discretion© eana, xzbi legia noma deficit. Lex emm, ttt antea die-
torn est, non sufficii casflrus sed ad ea quas p!ernmi|ne accidunt sptator. Sapicnfesima
antes* res Teropua, (at ab antiquis dietam est,) et novorora caraum quotidis etJttor et
invent©?." -

* Bam on Judgment, p. 2 : "A judgment that is constructed of certain materials
which ore law, and is, -when delivered, a p&rfc of the kw of th$ laod." legislation is
first in respect to authority, knt &8 n&toral order of existence the judicial rule
appears first Reddie's Inquiries, <£c, p. 110 — 112.

3 See Encyc Am., yoL viL, pp* 576, 580, 586. Appendix ; Law, Legislation, Codes :
by Judge Story— do.- p. 68-i. "The legislation of no country probably ever gavtf origin
to its whole body of law& In thet formation of sociely,'the principles of natural justice
and ths obligations of good faith most have been recognized before any cosrunon legis-
lature was acknowledged," &c Gashing: In trod, to Stedy c^ta&Boni&a Law. Bos-
ton, 1854, p. 22,

* Beddie's Xnq. Flem, &c., p. 193-5. Benfharov objecting against this source of
law, calls the common law, a law ex posSfasto : see FsjxJra relative to Codification,
No. L, § 8, and Reddia'a Inq. Elem. &c., SuppL, p. 104. Dig.; L. i., Tit 4, § 88.
Consnetudinem, ant rernm psrpetao einuHter jxHiicatarrna raictoritatesi, vim iegis
oMinere debere.

28 CUSTOMABLE- IAW.

sense, hound by any previous interpretation of the natural law,
and is? in the theory of jurisprudence, to he considered as the
criterion of the provisions of that law, while the tribunal is
presumed always to follow standards of interpretation of natural
law already acknowledged or accepted by the state, so far as
they exist.*

The decision made by any judicial tribunal may, ther^im7,,
be always compared by succeeding tribunals with other standards
of natural law which are presumed, equally with that decision,
to indicate the natural law as received hj the state. "With the
lapse of time, by the accumulation of concurrent expositions of
the natural law, the power of each tribunal, successively, to make
law in this incidental manner, "becomes more limited ; because
the recognition of natural law by the state, through anterior
tribunals, has become more definite by being more widely
applied.'

§ 31. The principle by which judicial precedent becomes an
exposition of the legal rule of action, is also that which causes
cmiom to be juridically recognized as having the coercive force
of positive law. It is not that any number of similar actions

3 Bentham: Morals and Legislation, ch. xvii., 20 (of Appendix to the original ed.,
1823, vol. iL, p. 274). " In that enormous mass of confusion and inconsistency, the
ancient Roman, or. as it is termed, by way of eminence, the civil law, the imperative
matter and even ell traces of the imperative character, seem at last to have been
smothered in the expository. Exio had been the language of primaeval simplicity :
ato had been the language of the twelve tables. By fho time of Justinian (so thick
was the darkness raised by a cloud of commentators), the penal law bed been crammed
into an odd corner of the civil — the whole catalogue of offences, and even of crimes,
lay buried under a heap of obligations — will was hid in opinion — and the original esto
had transformed itself into videtur in the months of even the most despotic sovereigns."
It depends upon the intention, whether this was hlamable or not. It was perhaps only
an affectation on the part of the prince to speak like an expounder of existing law
when called upon, by att exercise of autonomic juridical power, to relieve the law of
obscurity, caused by conflicting opinions of -Juridical persons who "were not sovereign.

x Bam : Legal Judg., c L, xiv„ Bacon, do Aug. Lib., viii., c. 8, 10. Aphor., 21 — 31.
Lindley's Thibaut, Append., xii, and note. Falck : Jurist. Ency., § 10. (French Tr.) :
"A cote da droit coutumier vient se placer la pracliguejudiciaire, Gtrkhls-gebranch,
l'asags du palais, (utiis/ori, Observam, stylus eurux) c*est a dire, l'ensemble dea regies
de droit qui se foment par la practique uniforms des fonctionaires publics dans les
ftfiairesjuridigues. :

" Les maximes aura ctablies ont aassi force des lois; mois quand commencent
eltea h 1'avoir ? C'est ce qu'il n'est pas possible de preciser ; tout se rednit h ceci ; il
fant que le noinbia des preddtnits (pragudicatffl) soit sufBsant pour constitner une
opinion sur un point de droit. H est evident qu'il serait irrational d'attribuer un pareil
east & une seule decision jadiciaire. Quelquefoi* cependant I'autoribS d'un fonctioncira
oil d'un corps a 6te assez grande pony mettre how 4a deute, par une seule decision, des
points de droit controverses."

CUSTOH — AH EFFECT OF LAW.

hj private persons in certain supposed circumstances can make
a law for others in similar circumstances, ITo.one person subject
to the supreme power of civil society is legally held to do, or
refrain from doing, this or that act, simply because others before
have, or have not, done the same ; nor have any number of pri-
vate individuals the power, by their example, to establish &
coercive rule for another individual. Custom is juridically re-
garded as an effect of law, not as a cause of law. It is judicially
received as an exposition of law, because that which, has been
generally received and acted upon by the subjects of a civil
state as a rule of action is presumptively identified with the will
of the supreme power of the state,1 and is, therefore, judicially
held to be reasonable or jural. The existence of the custom is
judicial evidence of a rule accepted by the state for a rale of
natural reason applied to certain circumstances :a and hence a

1 Aristbt. s Rhet, Lib. i, c 2. Motapliy., lib. i,, & 8. Selden : De J. Nat. etc.,
Heb., lib. L, c. 6. Cicero: de Ihventione, lab. i. <£<a» Hobbes: De Civitate, eh. 26.

1 Savigny : Bent. Rom. B., § 12. " &> ist also die (rewohnheit das Kennzeicb?n
d-33 positiven Eechte, nicht ctcssen EntstehoDgsgrond." Custom is therefore the
mark by which positive law is known to exist, no* the cause of its existence. Tr.,
and refers to Puchta : "Das Gewohnheits Kecht." ** Every custom supposes a law,"
perVaughanCh. J. "VH. 'Viner's Abr., 188. Statute law and common law as contrasted
with Statute law, in English jurisprudence, haw, therefore, the same theoretical foun-
dation. And herein lies the essential correctness s£ G. J. Wiltnot's sayings in 2 Wilson,
348. " The statute law is the •will of the legi _^are in writing ; the common law is
nothing else but statutes worn oct by time. AH our law began by consent of the
legislature, and whether it i«»now law by usage or writing is the same thing,"-— and p.
850 : " And statute law and common law both originally flowed from the same foun-
tain." But compare the doctrine of BL Com., IntrotL, Sect. 8.

" Positive law," in English and American jurisprudence, is not always taken to
mean statute law. Thus, iu Somerset's case, Lord Mansfield says : " Positive law,
which preserves its force long after the time itself from whence it vrm created, is
erased from memory," — bat. a legal rule is not a statute rule if the time of its enact-
ment cannot be shown. So C. J. Shavr says^ 18 Pick. R., 212 : "by positive law in
this connection may be as well understood customary law as the enactment of a
statute; " and Blackstone, speaking of a provision of the common law, says, 1 Comm.,
70: "now this is positive law fixed and established by custom."

Properly speaking, when custom has this general extent, its antecedent continua-
tion is not inquired into, it is simply Jam. "A custom cannot, be alleged generally
within the kingdom of England ; for that is common law." Co. lit. fo., 110 b., and
fo. 116 b. Sir Henry Finch, Tr., p. 77. Only particular customs xeqnire proof of
their having been received for a certain length of time, to give them the force of law.
Thus the authority of the Constitution of the United States rests on general custom,
and much of the law of the several states not derived from England is customary law,
although it has not had an existence such ns is required by the law of England to give
authority to a particular custom. Compare Mass. Quarterly Key., voL L, p. 4S6, On
the legality of Slavery.

Of laws losing their force by desuetude. 1 Kent, 467, marg. p. 517, 7th,ed., note.
Dr. Irving's Introduction to the Study of tbe Civil Law, pp. 128—127. Woodes : Leek
prel., p. irrxiii.

PBI\TATK JO BIST* — FOBRIOK STATICS.

custom must be tested by other indication* of natural reason
which, in judicial recognition, are identified with the will of the
supreme power.'

$ 82. Not only may judicial tribunal* compare together the
judgment* of their predecessors in applying natural law to new
relations of persons and thing*, but they may also adopt, *imitar
comparison* made by private individual*, either oral or written,
and »uch private writing* or exposition of the law may, by foreo
of continued judicial recognition, becomo a farther limitation
on the discretion of subsequent tribunal*.'

§ 83. Besides, since all state*, though independent of each
other, are equally possessors of the powers of society, and hold
it for the same ends, they may be equally presumed to intend to
conform their laws to the natural law.' The law* of foreign

1 This tatting the legality or lawfulntu of ft custom ti a judicial ant, and to be dis-
tinguished from autonotnlo reoogrltion or disallowance of customs by the sovereign.
Co. Lit, to. lit, a. t " Mains usus abolendus. and every nseU evil that Is (asonrsutnor
■aith), against reason { qnla In consaetudinlbns non dlulut-nitas temporis, sed wliditas
rati on is est conslderanda. And by tills rule cited by onr author at the parliament
holden at Kilkenny In Ireland, (40 E. 8) Lionel, Duke of Clarence, being then the
Lientenftnt of that realme, the Irish customs, called then the Brehon law (ror that the
Irish call their judges Brehons), was wholly abolished ; for that (as the parliament Mild)
it was bo law, but a lewd custom, et malus usns abolendus est. But our strident must
know that King John," See The gist of Coke's following observations aprxar to be-
that it was by • sovereign legislative act of the Conqueror that the Brerion law was
changed. In Le caae de Tanlstry, Davis Rep., the validity of a Brehon custom of in-
heritance was argued before the courts, and thn usage decided to be Invalid | because,
according to tlte established judicial tents, it was no cuttom at all : the term onstom
having a fixed technical meaning.

! Kent's Comm. Lect, zxi., xxll. Faickt .Tur. Ency. {French Tr.), % 10 1 "La
doctrine, e'est a dire la theorie de ce qnl est droit, exposle an vive vol* on par ocrit,
par les aavante voues a l'etude de la jurisprudence devralt, d'apies sa nature, fitre seule-
ment un rooyen aaxilliaire pour apprendre a connaltre le droit en vlguenr ; cependant
elle eat devenue, a plutleurs egards, nne veritable scarce du droit. La literature Jurl-
dlque en particnlier a exercee, a oertaines epoques, comme le montrent Unites les hlt-
tofres da droit, une si grande influence, que be&uooup d'ouvrages de lurUpriidenoa
ont obtenu formellement force de lot Mais, il faut le dire, oW la un alms veritable,
qui n'a pas d'antro motif que la pares**- d'esprit on la foi a I'autorittj."

Dig., Lib. I., Tit. II., c, 2, ( 12. Ita in civitste nostra, nut jure, id est lege, eon-
stltuitur, aut est proprium jus civile, quod sine scrlpto in solu prudeutum Interpretation*
ooneistit.

Grotfas, B. et P., Lib. I., o. 1., §14. Bavlguy, on the vocation «if our age for
legislation and jurisprudence, Hay ward's Trans!., pp. 28, 2?), 80. I turn on Legal Judg-
ment, ch. 18, scot. ft. Iteddie i Law of Mailt. Com., p. 488.

This authority of private jurist* must depend upon sojne juridical recognition : com-
pare Bacon r de Aug. 8cl., Lib. vlii., c. 8, | 10. De Ju/.titla Universal!, App., 72—02.

Though in the Roman system, an intrinsic anthority seems to have been attributed to
tlte Reaponsa Prudentum : see Savlgny : Hmit. It. it, B, I., o. 8, }| 14, 20. Bittlor's
Hons Jnrldicsr, Essay, Roman Law. De Ferriere i Hist, of Roman Law, oh. Ix.

1 Heffter i Kurop&ischts VOlkorroolit, p. 22, spuak* of a olasu or school of publlolsts

LAW OF NiTIOWB.

states (i. o. their municipal, or, more correctly, their national
lawn), whether arising from positive legislation, or from the
judgment of their tribunals, applying the law of natural reason,
may alto bo received by the tribunals of any one state as an
exposition of tho law of nature, where its own positive legisla-
tion or judicial interpretation of natural law does not afford
sufficient guidance.1

§ 84. And when any principles or rules of action have been
so long and so generally recognized among many nations that
they have been historically known as the law of nations, or
wrwowsal principles forming the subject of a general or universal
jurisprudence, they will, for tho same reason, which here applies
still moro forcibly, bo presumed to conform to natural reason or
natural law;* and bo judicially received as the presumptive will of

who find the natural law of jurisprudence in the exprrjted will of states, by assuming
that they have intended to do juitioe— " Dm Wollen der Gerechtigkeit in den Willen
der Natfonen fclngetchloaten betrachten."

1 Sir Henry Finch t Treatise on the Common Law, p. 6. Ram : Legal Judgment,
p. 60—71, 70. Marshall i on Ins* Prelim, hoc p, 24. Reddle's Inq. Elem. Ac., p. 196.
" Finally, in tb. exposition of common law. Judges havo been aoonstomed to look to
the legal systems judicial oxperieuou of other nations, if not as standards, or im-
perative eonroes oi tho law, at least as affording praotical guides by which they may
do led to decide aright, Stc." On this principle, the Roman law is referred to in Eng-
lish and American jurisprudence. Wood's Inst., Introd i Speuce ; Equity Juried, of
Court of Ch., vol. L, 110, 122-8. 5 Bingham, 167. Long's Discourses, passim;
Rwldie's Hist. View of Marit. Com., pp. 428. 488. flushing's Roman Law, §§ 250,
888, 4, 5. Butler's Horn; Juridical, }>. 60. So also the Canon Law, even in Protes-
tant countries, Ilor. Jurid. p. 122.

In the tribunals of Continental Europe, the Roman law has so long been received
on this principle, that it Is looked upon by many of the civilians, as being in and of
itself an authoritative exposition of natural reason. In their language—Valet pro
ratione, non pro introdnoto jure. Non habet vim legis, sed rationis. Serraturubique
jut Roinanum, non ratione imperii, sed rationis imperio.

• Savlgny : Heut. R R, B. i., o. 8, « 22. Grotius : B. et P., Lib. L, 12, 2. Cio. L,
Tuso. Kp., 117 — " In omni ro oonsensio omnium gentium jus nature tratanda est"

2 Bla. Comm., 11, note by Christian. "I know no other criterion by which we
oan determine nny rulu or obligation to be founded in nature than by its universality, and
by inquiring whether it has not in all countries and ages been agreeable to the feelings,
affections, and reason of mankind."

Doctor and 8tudent, p. 68. Dod. "Therefore it seemeth that contracts be
grounded upon the Ifiw of reason, or at least upon the law that is called /u* gentium ; "
and p. 170 1 Stud. " First, it is to be understood that contracts be grounded upon a
custom of the reabn, and by the law that is called jut gentium, and not directly by. the
law of reason."

It is this asoortalned standard which apparently Pothier, in Treatise on Obligations,
15, intends by "pare natural right" And see definition of Afaxknt, in Ram : Legal
Judgment, p. 14, and the citations.

Whatever principle a tribunal may admit to be a principle of universal jurispru-
dence must be Uken to be received in the national law which that tribunal is ap-
poiuted to administer. (Suarez : De Leg. et Deo LegisL, lib. ii., c. 19, § 2—6.)

LNTVKB8AL JOBI8PEUDRNOK.

the state : and though these principles must originally have acquir-
ed that character of universality from the independent legislative
wills of single states, yet, when they have acquired that histori-
cal character, they may be judicially received hy the tribunals
of any one state as an independent indication of natural law,
presumed, from the fact of being received in universal jurispru-
dence or for universal jurisprudence, to be adopted as a priori
principles by that national power whoso juridical will the tribu-
nal is intended to execute.

§ 35. When the natural law, or law of natural reason has
thus been judicially interpreted, and thu3 made a part of the
positive law of any one ntate or nation,1 (i. e. positive in respect to

The tribnnal refers to the historical indicia of this universal jurisprudence as being one
of the criteria of the legislative will of the state, which is to be juridically applied.
In the Roman jurisprudence, no principle was ascribed to the jut gentium, which was
not included in the civil law (i. e., national law) of Rome. Comp. Fcelix : Droit
Int ernational Prive, § 5. Reddie's Inq. El. Ac , p. 26, and see post eh. ii., and iv.

Bat for an opposite theory of natural law in Jurisprudence, see Hoffman's Legal
Outlines, sect, viii.

Smith's Merc. Law, p. 2. Speaking of the comparative utility of historical re-
searches in the law of real estate and mercantile law : — " Our mercantile law, on the
contrary, is wholly founded on considerations of utility ; and though many of its rules
are derived from the institutions of ancient times and distant countries, still is their
introduction into our system owing, not to a blind respect for their origin, but to an en-
lightened sense of their propriety. No one, unless acquainted with their feudal source,
could assign any reason for those xules which respect fines, escheats, or recoveries;
but it is not necessary, for the purpose of enabling the reader to see the justice and
good sense of the law of general average, to show him that it formed part of the mari-
time code of the ancient Rhodians. At the same time, it cannot be denied that the
history of our commercial law is a subject of great interest and rational curiosity, &c."

Here is an example of a very common misapprehension of the origin of law in
general, and particularly of the derivation of that branch called mercantile law.
The author misapprehenda-the reason why the rule of general average has the force
of law in cases of maritime losses. It is not law became agreeable to justice and good
sense. If it were not that the maritime nations of Europe (the Rhodians being the
first, perhaps, as matte/ of history) had actually given it the binding force of a law
within their several jurisdictions, the judges of English courts would have had no right
to apply it in enforcing a contribution. If the judges of our courts should to-morrow
be of opinion that the rule hitherto pursued is not " agreeable to justice and good
sense," they might — according to the author's argument— decline to apply it any
longer.

And see another instance in Abbott on Shipping, Preface to the First Edition ;
where the author gives the reasons for referring to the maritime code of Louis XIV.,
as authority for English tribunals; and see Benedict's Admiralty Pr., § 5. Duer, on
Insur., p. 2. Emerigon, c. i., § 6, note, by English editor. That the Roinan tribunal
made judicial reference to the laws of the Rhodians on the ground of its being an exist-
ing foreign law, see Peckius : De Re Nautica, Ad leg. Rh. De Jactu. Jtubnoa.

1 Yinnius Comm., Lib. L, Tit 2, § I. " 4 Vocaturque jus civile.' — In specie nimi-
rum, nam jus civile sumptum pro eo jure quo in universum civitas utitur, etiam jus
naturale et gentium, quatenus receptum est, comprehendit ; eoque sensu, obligations,
qose ex contractions juris gentium descendunt, dicuntur civile* : licet a legislatore

UNWaiTTEN LAW.

it» authority, v. ante, § 17,) it may still bo distinguished as the
unwritten law, the customary law, the common law of the land.'

civili nihil habeant prater approbationem, (§ 1, inf. de oblig.) Hoc igitur dicitor
civile a causa efficiento, qua? est voluntas alinnjus oivitatis ant ejus qui jus legis ferendss
in ea habet, non communis gentium aut naturalia ratio. Ab Aristotele legitimum
dicitnr : vulgo positivum."

1 Even under a written code, this part of the law muet continue. See, as to the
recognition of this, under the French Code, Savigny : Vocation of our Age, &c.
Hayward's Tr., p. 90. Also, Duponccau on Juried., p. 106. Reddie's Inq. Elem. &c.,
pp. 190—202.

In this deitcription of the mode in which positive law becomes judicially ascertained,
there is no distinction of any part of the law which can be distinguished from the rest
as equity, or as an equitable rule of action. The distinction which exists in English and
American jurisprudence between law and equity is not in the nature of tho rule, but in
the moans by which it is enforced. " In England and America Equity, in tho techni-
cal legal sense of that term, as opposed to or distinct from the common law, is in reality
as much as the common law, customary or judiciary law ; a part of the general law
of the realm." Reddie : Inq. Elem., p. 124. Blac. Comm., 8, c. 27, p. 432. Every
rule of action which the supreme power in England or America enforces as law is
equally jural — equally a lex juris. The distinction here is one of jurisdiction, or of
remedy — tho application of the rule of action, arising from the authority allowed to
judicial precedent, and a consequence of that supremacy of law as opposed to arbitrary
discretion, which is a characteristic of " Anglican liberty." (For the use of this term,
•ee Lieber : Civil Liberty and Self Government, voL i., ch. v.) The occasion given to
a common misconception of the nature of positive law by the existence of an " Equity
Jurisprudence," may excuse an attempt to set this forth in the limits of a note.

The rule of action to which the state gives the authority of law must be enforced
or vindicated by the state, if it is to be efficacious in accomplishing the object of the
state, i. e., justice. This can only be done by judicial remedies. In a state where
precedents have great force as an indication of tho will cf the supreme power, the
remedy which has been applied to enforce the rule of action becomes itself a precedent,
that is, it becomes a rule or law of remedy, and thus the efficacy of a rule of action
becomes limited to circumstances in which only a remedy has been before applied.
The same effect would take place if the remedial mode of enforcing the rule of action
were prescribed by statute.

The rule of action will thus, in course of time, fail in many instances of its original
intention, i. e., justice : because new circumstances of disobedience to the rule will
occur, differing from those to which the known law of remedy applies. The state
must, therefore, in order to effect its intention, i. e., justice, either directly prescribe a
remedy in those new circumstances, or direct that its tribunals should go beyond pre-
cedent in the law nf remedy, and enforce the rule of action according to its original
intention. The state may establish a separate tribunal with power to carry out the rule
of action beyond the remedy given by the precedents of existing tribunals.

In cour-o of time, the remedy given by the new court becomes also a precedent ;
and has a law of its own. There are thus two systems of remedy intended to carry
out one and the same law of right. In English and American jurisprudence, this
double system of remedy exists. Equity is not a different rule of action from law ; it
is a law of remedy.

Papers read before the Juridical Society, Vol. L, Part I., 1855. London : Stevens
& Norton. Inaugural Address by Sir R. Bethell, S. G., M.P., p. 8—" And the rules
and maxims of the common law were so broad and comprehensive, that they admitted
of being made the basis of an enlarged system of jurisprudence. A portion of the
statute of Westminster the second (13 Edw. I.) was passed with a view of effecting
this object, and of expanding the maxims of the common law, so as to render it ap-
plicable to the exigencies of an advancing state of society. For this purpose, new
write were directed to be framed, as new occasions for remedial justice presented them-
seivefc ; and if this had been fully acted on, the law of England might have been ma-

COMMON LAW.

It ia this which constitutes the common law in the jurisprudence
of England and America, when distinguished from statute law.'

§ 36. This recognition and adoption of the natural law
occurs in international as well as in municipal (national) law.

As was before said, each nation being independent of other
nations, whatever is enforced by its own tribunals as law rests
upon its own authority, or is identified, in respect to its author-
ity, with the municipal law of that state. International law,
though differing from municipal law in the objects or relations
which it affects, does not, as administered by its tribunals, rest
on any other authority than the state itself: it is then a part of
the municipal (national) law ; being then distinguished from other
portions of the municipal law only by its application to persons,
or as one personal law is distinguished from another.* What-
ever rules the tribunal may administer as international law, are

tared into at uniform and comprehemiTe system. For it tu justly obMrved by one
of the judges in the reign of Henry the Sixth, that if actions on the case had been
allowed by courts of law as o(ten as oocaslcm required, the writ of subpoena would
have been unnecessary ; or, in other words, there would have been no distinctions be-
tween courts of law and courts of equity, and the whole of the present jurisdiction of the
court of chancery, would have been part of the ordinary jurisdiction of courts of law.*

See on this point, Story ; Equity Jurisprudence, voL I. Bacon : Advano. Learn.,
B. viii,, c. 8, of Univ. Just. Aphorisms, 22 to 46. Ram on Legal Judgment, ch. ii.,
and authorities ; also, Am. Jurist, vol. xviL, p. 258, on reform in remedial law.
D'Aguesteau : CEuvres, Tom. L, p. 209. Lessee of Livingston v. Moore and others,
7 Peter's R., p. 547 Butler's Horse Juridicse, p. 44—46.

In the states of Continental Europe, where the administration of justice is on the
model of the Roman law, judicial tribunals are less fettered by judicial precedent, and
have always had a greater latitude in applying the rule of action. The judicial
officer has in practice a large share of administrative power. His power to make law
for future cases is less than that of judges under the English system ; but his autono-
mous or discretionary power over the case in hand is far greater. Hence the rights
of individuals depend less on pre-existent law, and more on arbitrary discretion.

1 Sir H. Finch : Treatise, p. 74. Sims* Case, 7 Gushing R , p. 818. Shaw, C. J.,
using the term positive law : — " and this may be mere customary law, as well as the
enactment of a statute. The term 4 poiitive law,' in this sense, may be understood to
designate those rules established by long and tacit acquiescence, or by the legislative
act of any state, and which derive their force and effect, as law from sn*h acquies-
cence and legislative enactment, and are acted upon as such, whether conformable to
the dictates of natural justice or otherwise." And comp. Neal v. Farmer, 9 Georgia
R., 581.

Ram, on Judgment, ch, ii. Savigny : Heut. R. R., 8 18. Reddle's Inq. Elem.
4c., p. 288 — 252, -a description of the establishment of municipal (national) law,
abridged from Savigny.

Bentham : Prino. Morals and Legisl., pref., xiii. " Common law, as it styles itself
in England ; judiciary law, as it might more aptly be styled everywhere," Ac. Com-
pare Ency. Am., vol. viL, Appendix, Law, Ac, by 8tory.

Co. Lit., fo. 11., a. An enumeration of the " proofs and arguments of the common
law ," drawn from twenty several fountains or places ; common law being taken in the
limited sense ; because in the same place oommmit lex Angiia is included en la fejr.

8 Seejwrt, § 5a

mTEBKATIOirAL LAW — HOW DEHIVKO.

derived by it in the same manner as municipal law ; viz. firstly,
from tho positive legislation of the state in referenoe to relation!
which are international in their character; -hat is, relation!
arising ont of the existence of foreign states, and from the
recognition of their authority to give laws and hold jurisdiction
over persons and things. Such legislation must be recognised
by the tribunal on the authority of the state alone to which it
belongB, whether it be made by the state singly, or jointly with
other states, in the form of treaties and agreements. Bocondly :
from the recognition of natural law by such criteria or exposi-
tions of that law, applied to the same international relations, as
may be supposed to be adopted by the state to which the tribunal
belongs, and whose will it executes in the administration of in-
ternational law as well as of the municipal : and these are the
same as are adopted in ascertaining the municipal law — deci-
sions of preceding tribunals having the same national authority,
the writings of private jurists, and the laws and decisions and
customs of all other states ; 1 comprehending herein, also, the
recognition of universal jurisprudence, the science of a law of
nations historically known : which recognition by judicial tri-
bunals is particularly manifest and necessary in the administra-
tion of private international law, as will be shown in the follow-
ing chapter. International law, thus applied by the judicial
tribunals of any state, is only to be distinguished from the
municipal law of that state in the nature of the relations which
it affects ; it is identified with it in respect to its authority over
all persons within the jurisdiction of the state.*

» Grotius » B. et. P. Prolog., 8 40, Lib. I., c. I., 8, 12, 14. L Kent** Comm., 18,
19. Reddie : Hist. View L. of Marit Com., 26, 27, 42e, 429. Hoffman's Course of
Legal Study, voL I., p. 415-16. Barge ; CoL and For. Law, voL L, xvi. Ram, on
Legal Judgment, p. 94. Phillimore : Internal L., p. 61.

It is only civilized nations, or those of a certain kind of culture, that are thus
recognized by their several tribunals u the sources of universal jurisprudence See
Selden : De J. Nat. Ac, Lib. L, o. vi., who designates them as " genUt murafaru* in
the language of G roths •„ B. et P., Lib. 1., 12, 2. Phillimore : Int. L., c. ill. Heffter
designates bis work — Das Heutige EurypAitck* Vftlkerrecht.

This discrimination between different nations as sources of jural rules, is not an a
priori assumption by the tribunal making it. It is rather a part of the customary law
of the state whose will the tribunal is bound to apply. This act of a judicial tribunal
must not be confounded with the sovereign legulative act of a state in adopting a
foreign law, as when in the XII. tables, the Romans adopted some of the laws of Greece.
Dig. L. I., Tit. 2, c. 2, 8 4 ; "peterentur leges a Onecis ciTitattbua."

* This point is more fully oonsi dared in the second chapter.

relstloa b<;tw^ii «trit<A-v i>r.fi'c«ic. tut; ti^*t U-v;;^
of jxatuir.l ]x i -,/.■'.. , aubjfc*;'. to \hv *
Ji&vo a difctinot <:.*:1..1,«;?.«.-. and ;/yv>x*f of is iv-.-,

Other, as wall as Hi ;-^;';t >o j*fivaU; h*tiiv&u&*
would dwidv ou tks .relative of «Ut»*. **v wivl- . ;v
Other, and iOu'Ai.'".! their oom-'IatiH- r%hu -#i^c
bo an hA<:rr:-/wi.l kw, Jiul .fsrv^u tLv ija'.u:v •;/ s'^vu
their mutual judvj^dvJice, *Wv is $iy fcucl *r>u* . u«^'<>' ;
word faw in the tsiriet 5 atitf tLuxipyUcartivi; *v5.. .... ■? '

or Jaw could not be miui^ Uv" *iio judicial gfipiuuak -•
or nation. A «;•/»;»<;! v<$ d«ter*mtjtt!:iou 'I**;**; .r^;au
tions cam bo wyj^/l wdv tVo-t<* *Jta: .ainvM^k*,' 'yj v;
parties to wjioui tliij? lew mav aU/ibu'«*

But from th<, J^i|>rvusl ii^feruyu fcckuy>v'«v'*£a*f;i'.
whidi all states or juatioiis bav*; In £*ct iio*tiv
natural reason, -or ftosa that -^viu^ -of j*.w;»k.y vriiki. i- « -►>-
posed to be founded on » .wij-H-v^ isfiwuw iy.*uei. ^uci^iU*
In Uieir rt;ls.» -yiib with aa#b -o*.h«;r. lat^ti f«oH: ti**.-
actuaUy allowed to the -etUieiil n^v-t-yf >*rlv>»ii.-
reference to eu<;U 'Jkt;o?«nl }sn,*rXv, w *?.y^\v*s,*z ■>/. ■'ri%<i**;i '*,«w

ascertained niunieipal Otatiostuij .lav of «;^^^. *
practice the char^ei^r of a mly of aet^u fy* • -V-'rw ^'-.u

tlioir joJatiozte to awi tUv -*,-->«-rs?ks*»>-t.

obJi^atio-us of mvh, tU'-'V-yl tUvr^ k i>v *.€ii»t*s*a.I ^

cufor<je t3i« /i^iite and'obU^rutio'^'i &ri$\ug i*u<*yjr r.. k ^«i^r*v :.;»•✓
esses.'

reelproe&ii j J^^r as to as .k<i%;'-;ii::*.v.'.'' k^v i^ii^/.fii^^^v';,;^.

K',' • Jilljig IB* pW* ■'X H4w <AKSC>Af -ytk*»iti -U'^fiWSi •»*-«1.- 'J«ia."Sw5 >Si(..i-w#-

»&d I05. to Xuteow&wMi X«^, 1^ «*U 4^, 46$.

f. 2, c, 2, il* ktter fe«t&?<f t&*i .ijr. ^wenfci*. W awj.vi**~<-;v

{*■..; fir Hi

: ; f/r<.'?;r-,- \un

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y ' a/

.< * . -» * > * * i * ., -i -i

■: v. .<"-■ ~< '. A V ■:■•/■/, re •-/■/.
"''''-V'": /. 'r\f r.'/p- A A 0," for Ao:/j
"-vr*fV/v '/'A'; -r',r;?. i* rnayVj called

" - A:";. ';-';:r'. 'ys/fA'A .z ■?:■;( A. ts>% to

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:":*yV; -^'or.^ Vy sirigle jiOTftr^gnti^

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■'.«*■-'■«• '[y :<:,-*[ y.#te -if,?. ?ftf$, in ihiff^.-AceA TtMnm h<m

/S<Ssr ~.%.fr'. '/.r:vyMU ■■. rvrzr&'M* ia^A -frith t/i<5s4

'.j^-v-f ^* ;-- >*;rf .^*- ysrt*#. JaWfe !a^lts4r$7<>I'teil^J

whangs ssay be either gradual or sudden,, peaceful or vio-
lent3 ' . ■

' G?»this reconsideration may be made by sovereign national
powers in/mternationaHaw ; either in that law which each state
applies by its. own tribunals to persons in international relations,
for the private international law, or those reciprocal rales of in-
tercotoBe, which, as the parties to be governed by the rule, they
may mutually adopt for public international law, (in the imper-
fect sense of a law.) Both which divisions of international law
have been constantly changed and extended during the time of
-recorded history, according to altered views of natural equity.

Universal jurisprudence or the law cfnatiom, whether 'taken
to be a rule determining the relations of states or ' of private
persons, being thns a conseqnence ©f the juridical action of
states or nations, is always liable to changes, which (from the
a priori principle before stated, viz. that the legislative action
of ; states is always j uridical or jural, that is conformed to natural
reason) mast be taken' to be progress or improvement.9

' § 40. Under the preceding view of the nature and extent of
the la-w, every action and relation which is tha subject of juris-
prudence may be taken to be determined either by international
or by municipal (national) law.

The rights of persons, though all relative in: respect to other
persons owing or bound to corresponding obligations, may be
distinguished as rights in correspondence with obligations on the
part of the community at large, or as rights correspondent to
obligations on the part of partictdar persons.*

' 1 Bevolntien is- resistance against the legalti^msat of sovereign power. But it
is founded on tie assertion of a share of sovereignty, or right of supreme control, ia the
revolntfonist, (aright above ftar,) end incase of bqcccss, the change, whether ethically
rightfoi or not, becomes lut&ful, hy hemg tho act of the actual sovereign. •

3 Scares: de X<cgi&. et l*eo LegisL, ch. 20, § 6, 8. Doctor and Student, p. 63:
"For though the law called/cu gent ium ha ranch necessary for the people, yet it may
he changed."

, Whewell: EL Mot. and toi, g 1143. "The law of nations, kcludingiathicinter-
sational law, i* subject to* the conditions of which we have already spoken aa belong-
ing to the law of any one nation. It is capable of progressive standards: it is fixed
for a given time, and obligatory while it is fixed: but it must acknowledge the au-
thority-cfsiwral^, and mt^ in order to conform to the moral nature of man, "become
constancy TOor&itnd taore.ssoral.. The progreas of international law in this respect is
mora slow sod irregular than that of a well guided national law, &&" And compare
Semgaf* Vocation of cttr'age for LegM&tioa and Jurisprudence, Hayward's Transla-
ison, p. 134.

* Reddle's Inquiries Elem. p. 171. See citation, anfe, page 20, notes' "But

INDIVXBUAI, -Am EELATTVB 'SIGHTS.

The first class may be called imdimd/dd rights^ belonging
to persons each necessarily or absolutely recognized before the
law as individual members of society. : The mdividM righto of
persons, (called by Blackstone, absolute,) have ordinarily "been
taken to.be three, denominated : the right of personal liberty^
the right of personal security ; and the right of property/

The second- class may be called relative rights, as belonging
to persons in consequence of a relation established between
them and others, riot necessarily arising from their being indi-
vidual members of the community.

✓These relative rights have been classed as the rights of parent
and child ; of husband and wife ; of master and servant.

Both individual and relative rights, considered with reference
to the persons to -whom they are attributed^ may be .called pri-
vate rights ; while, in view of their existence in relation to the
supreme power of society or the state, and tbe persons of whom
it is composed, they may also be termed' civil and public rights.

§ 41. From the nature of law, in its ordinary sense, includ-
ing the idea of inferiority and subjection, corresponding with
superiority and authority, the term a right implies a liberty in.
the person to whom the right is attributed ; Jim est faettltas
agendi. The idea of freedom associated with the idea of law;
or legal freedom,, as the condition, of a person, consists in the

though rights and obligations ere in reality and correctly, the relatipnsjof individual
persons to other mdividuals, they are plainly correlative terms. And it is .manifest, in
the first place, that they may exist between- any one individual, or a definite < number
of individuals, and all other radmdnals generally and indefinitely, the right being
positive against all others, adversta omAes, and the obligation on all others being only
negative. Or they may exist between particular individuals, and instead of being
adveriut om.net, directed against all other individoals indefinitely, may exist or ha
directed only against one or more particular individuals, who are under corresponding
obligation, not merely; negative not to interfere, but positive.to do, exbeaiyor soffeE
something for the behoof of the person having the right" And T see Austin: Prov. of
Jurisp., Appendix xxiv., xxv., definitions of rights t» rem and : in : personaini • Also;
MacEeldey: Compend,'.Mb& &vfl I^w, Introd., §§ 15, 16.. " • :- '.■>■,..■..■'. ...

lDr. Lieber denominates such, rights primordial. PoL Eth.,' voL L, p. 218. Civil
Lib. and Self Gov., , vol. i., p. 52. The terms absolute or primordial coaveytbe idea
of rights anterior or independent of positive Jaw as herein before defined : . rights exist*
ing nnder some independent law of nature:' which, as before shown,' has no eaastence,
— no judicial recognition in jurisprudence, as independent of positive law.' Primordial
is a term liable to the same objections which Dr. Lieber advances against tie term
absolute in the place referred ■ to. ' He also uses the term individual as a synonym.
P. E., vol. i., p. 402 : " We speak of individual primordial rights." Droits individude
is a common term la this sense with the French jurists. Ahrens: Natarrechr, p. 160.
speaks of Individudkn HechU. '< . ■

ranDOM ob ltbjebtt.

possession of legit rights of action, or in thai liberty which is
allowed by law.

Where liberty ifl attributed to a being existing under condi-
tions over which it hag no control, it cannot be defined except
with reference to those conditions, or laws in the secondary
sense of the word law. And when attributed to a moral being
governed by rules of action, (laws in the primary sense,) liberty
can be defined only by stating the source, authority, and extent
of those laws, as well as their object, or the direct effect of their
injunctions.

§ 42. The definition of liberty, when attributed to individual
members of a state or political body, has been a. problem for
publicists.1 There are evidently two modes in which such
liberty may be conceived of. In one, liberty is determined by
ethical considerations, or as that freedom of action which ought
— in accordance with the nature of man — to be the effect of the
laws of a political state. This is a subjective apprehension of
liberty, because the moral judgment of the concipient is the
highest criterion of its real nature, and the test of its very
existence.

In the alternative mode of conception, liberty is the object
of a legal apprehension. That is, it is viewed as that actual
degree of freedom which exists, or is allowed to the individual
member of the civil state under the power of society and the
unalterable conditions of human existence. Its conception is
entirely independent of the moral sense of the concipient, and
may be said to be the objective apprehension.

Liberty, in the first named aspect, is a subject of that science
which relates to that necessary condition of man's existence as
a moral being ; and belongs to the province of political ethics.
It is in the last described point of view that it becomes a topic
of jurisprudence, in the sense herein before given to that term,
viz. the science of positive law. No definition of liberty, when
thus regarded, can be given but by defining it as the effect of
the law of some state or nation, and without describing the
law of some state or independent political society.*

1 See Lieber: On CtrO liberty and Self GorermxMsiit, ch. iL, and the citations.

* Compare Dr. Lieber : Crril Liberty and Self Government, ch. ir^ v. Therefore,

BOND AOS OF LEGAL PZBSOlfS.

§ 43. Since the nature of a legal right implies a duty or ob-
ligation as a correspondent constituent of some relation between
persons, that obligation or duty may be considered as the op-
posite of a liberty : or, the duties made obligatory upon a person
by law may be said to constitute a condition opposed to legal
freedom. As the oondilion of freedom in this sense is indefinite,
and is determined according to the nature and extent of the rights
given by the law, so is all that is in this manner opposed to it
determined by the nature and extent of the obligations or duties
imposed by the law.

Win n a state of freedom, in this sense, is attributed to any
subject, t power of choice and action is, 'by the signification of
the words, necessarily supposed to exist in that subject, in the
absence of law limiting or defining that freedom. According
to the use of words, freedom cannot be predicated of anything
which is without powers of choice and action. Therefore, ac-
cording to the definition of a person in jurisprudence, (ante § 21,)
freedom can be attributed to persons only. The same may be
said of any state or condition opposite to freedom ; only persons,
as having the power of choice and action in the absence of
restraint, can be said to be bound by law, (in the primary
sense ;) and, therefore, bondage, as expressing a condition oppo-
site to freedom, can be properly ascribed to persons only.

§ 44. The individual and relative rights of persons are capa-
ble, under the supreme power of the state, of such various
modification between the extremes which constitute on the one
hand a state of license, and on the other, the extremity of coer-
cion which is physically possible, that the laws of freedom and
bondage, as constituting opposite conditions of legal persons,
might be considered under the description of these various rights
and their corresponding obligations, as they exist under munici-
pal (national) and international law.

a presumption in favor of thfepersonal liberty of any private person is not a necessary
principle in jurisprudence. There may be in some states a constant legal presumption
against the freedom of certain persons, and hence a presumption that some other per-
son must have over them a right of control. The law, in resting on the authority of
civil society, can derive no roles of action, and therefore no rights or obligations, from
that state of nature which some authors have supposed to have existed anterior to civil
society or the state, The natural freedom of man is known in jurisprudence only so
far as it is the result either of laws in the secondary sense—conditions of things, or
has been acknowledged and realized in the rules of natural reason which are identified
with positive law.

chattel ooarornoN of xatukai, pkiibons.

But sinco the won-posuoBsion of legal right h may bo said to bo
the opposite of freedom, and Binco th'mgt, in tho idea of tho law
(being only tho objects of action, und never tho subjects of
righto) can havo no legal righto, every object which tho law con-
templates on a thing, may, by a somewhat looso uho of language,
be said to bo in a logal condition opposed in the farthost degree
to freedom. Positive law being necoBsarUy understood to bo a
rule of action for mankind,1 it might from this alono bo inferred
that tho law attributes capacity for choice and action, or person-
ality, to all men ; or that tho legal personality of all men is to
be taken as a necessary or natural iirst principle of all law rest-
ing on tho authority of society, or of the states holding tho pow-
ers of society. But in accordanco with the proposition that thoro
is no other legal criterion of natural law than such as is sanc-
tioned or adopted by tho state, thoro is room in tho jurispru-
dence of every country for an inquiry into tho absoluteness or
extent of such legal recognition of munkind as persons/ or for
the question, whether some part of mankind may be legally
wanting in tho character of personality, distinguishing thorn
from tilings, and may bo in legal relations, thing* /-—only the
objects of tho rights of persons, and never tho subjects of rights.'

' Big. L. i. Tit. K, $ 2. Qutim Igltnr oinno jus liomlnum causa oonstttutum sit,—
Inst L. L Tit 2. | 12 — param est jus noun, Hi persona*, quimini causa oonstltutum est,
ignorentur.

• Thlbaut : 8yst d. Pand. Reehts.— Vol. t. f 1 1ft. Tr : " The third topln which l«
to bo considered in relation to rights and obligations li their iwbjeot, Unit l« to say, th«
person who has the capacity or obligation. And hern the quoit Ion directly arises : who
can be the subject of a right, — either in rcspuct to the nature of the thing (imturnl ca-
pacity for rights) or in respect to the proocpts of positive law, (civil capacity for rlghU.)
He who in any respeot is coniidered as the subject of a ri>rht. In to that extent denom-
inated Ajttrton ; particularly ooniidered a* the subject or divll rights. On tho other
head, that is called a thing which constitutes the oppoilte of a person t olvil capacity for
rights is what the Romans call status or mput. The. modern* give it the name of Hatut
ciiAHi, us consisting of all tile capacities attributed by the laws, to which particular
rights nre attached ; the natural capacity (br rights on the other hand, as consisting of
physical capacities which are followed by particular relations, Is milled by thein Matm
naiuralit." Compare Llndley'a Tranal. tj 101. Mackeldny's Comp. by Kiiufmimn, g
110, 117. Ahrens' Naturrecht, p. 81), R4, also puhlliiheil In French.

Fnlck : Jurist Encyo. g 27. French Tr. " On peut oonsldtirer ootntn* uno Introduc-
tion gonorole la theorlo du Status, ou Ton rosout la question do no voir jusqu'a (jut I point
l'6tut a reconnu la oapaoitAJuridlque aux ctrea humalns qui vivent sous «n protection,
de inaulero qu'en lenr en suppossmt ia posslblllte physique, lis pulssnnt eutrer duns oor-
tains rapports da droit ety porsistor. Ce point otnlt bcauooup plus important duns l'an-
olen droit, que dans le droit actuel ; oar nou* ne connalMous guere aujourd'hul d'autros
causes ^'exclusions dos rapports jurldlques, que oellos qui les re ndent pityslquement
impossibles."

1 Iu the Roman law the condition of sJi natural persons as subjeota of law was da-

CHATTEL. BL> "HBT.

" If tho law can bo supposed to attribute the legal character of
n thing to that which has a natural capacity for choice and ac-
tion, or which is a natural person, the legal condition of that
natural person would not bo explained by the term bondage as
above defined ; since that presupposes a recognition by the law
of a capacity to act or not to act, or of the personality of that
which is legally bound. That condition would be legally inclu-
ded under the law of things, or of the rights of persons in re-
spoct to things : property, or possession and control by legal
persons, being the essential legal attribute of a natural person
who can appear in legal relations only as the object of rights,
while the attribution of legal personality, by implying capacity
for choice and action, recognizes a legal capacity for individual
and relativo rights, and makes every condition of the person
which may bo opposed to freedom, to consist in obligations
under relations to other persons. But where the law admits the
contradiction of recognizing a natural capacity for choice and
action, and at the same time attributing that incapacity for rights
which belongs to the nature of a tkmgy this species of bondage
would require a legal name distinguishing the subject from natural
things and from legal persons.1 Under systems of law where
tliis anomalous condition has been known, it has been included
under the general terms bondage or slavery, and is sometimes
more definitively known as chattel bondage or chattel slavery."

scribed under the name of caput or ttaius, and divided into three parts; or rather de-
scribed as existing under either one, two, or three conditions, each called flatus or caput,
under eacli of which the condition of the individual might be variously affected. These
\, ore called tiberim, civitat, familia. The law of the ttaius liberlati* however comprised
tho distinction between a personal condition as liber or freeman and the chattel condition
of a §erv"i or slave ; and the law of the ttaius, in its most general sense, may be take?
an thi" Uoman phrase for the law of freedom and of bondage. For tho sake of a con-
venient term, it will be hero sometimes used to designate the legal condition of a private
person, considered under the American law affecting personal condition in these re-
upocts. See Thibaut, by Llndley, g 106. Mackeldey, by Kaufman, § 119, 120, 121.

' Novel Theod., Tit. 17, " Servos . . . quasi ceo personam habentes."

9 Austin : Prov. Jur., p. 270, note. " From the auumed inconsistency of slavery
with the law of God, or nature, it is not unfrequently inferred by fanatical enemies of
the institution that the master has no right, or cannot havo a right, to the slave. If
they said that his right is pernicious, and that therefore he ought not to have it, they
would speak to the purpose. But to dispute the existence, or the possibility of the
right, 1* to talk absnraly. For in every age, and in almost every nation, the right has
been given by positive Jaw ; whilst that pernicious disposition of positive law has been
backed by tho positive morality of the free, or master classes." " Positive law,'* ac-
cording to this author's definition, whioh includes every rule that is law, not legislative
enactment merely.

RLA.VKBY DEFINED.

§ 45, The idea of chattel elavery, in the Btrict legal sense,* is
definite and easily conceived. When the term slavery is used
to express the condition of a legal person, one having a recog-
nized capacity for righta and duties, it may be attributed to
various conditions of obligation on the part of one person op-
posed to the conditions of privilege on the part of others. Chat-
tel slavery may exist under restrictions by municipal law on the
power of the master, in view of the interests of society, without
vesting the rights of a legal person in the slave.1 The person
held in slavery may continue to have the character of property,
in the eye of the law, in states wherein, under the influence of
public opinion or other moral causes, protection is in practice
ensured to the slave aa a natural person, unknown to other
communities wherein the law upon which the relation rests is
the same in judicial apprehension. By a greater or less legal
recognition of rights in the slave, and of corresponding duties on
the part of the master or owner, the fundamental character of
that condition may be changed, and the property recognized by
the law be made to consist in the right of one person to the labor
or services of another. Every recognition of rights in the slave,
independent of the will of the owner or master, which is made
by the state to which he is subject, diminishes in some degree
the essence of that slavery by changing it into a relation between
legal persons.

§ 46. The term slavery has been popularly applied to various
forms of servitude or bondage, instituted under municipal law.
But in its general legal acceptation it may be defined as that
condition of a natural person, in which, by the operation of law,
the application of hia physical and mental powers depends, as
far as possible, upon the will of another who is himself subject to
the supreme power of the state,8 and in which he is incapable, in
the view of the law, of acquiring or holding property, and of sus-
taining those relatioris out of which relative rights, as herein be-
fore defined ( § 40 ) proceed, except as the agent or instrument

1 Savigny : Heut R. R., B. ii., c. 2, § 66.

* But the legal condition of slavery may exist, even though the person to whom it
U ascribed is not the bondman, or property of any particular person, or master. See
Savigny : Heut R. R., B. ii., c. 1, § 55, note, a), c. 2, § 65, for illustrations under the
Roman law.

SLAVERY DEFINED.

of another. Tn slavery, strictly bo called, the supreme power of
the slate, in ignoring the personality of the slave, ignores his ca-
pacity for moral action, and commits the control of his conduct as
a moral agent, to the master,1 together with (ho power of trans-
ferring his authority to another. So far as it, may hold the mas-
ter and slave, as individuals, morally responsible to the Btato ia
their mutual relation, it so far recognizes the personality of the
slave, and changes the property into a relation between persons.

§ 47. It is evident that there may be political or economical
regulations in a civil state which, while not interfering directly
with the freedom or security of the person, or denying the ab-
stract right of any to the acquisition or enjoyment of property,
may yet, in view of public or of partial interests, by prohibi-
tion of certain modes of action, or by the grant of superior
privileges to others, so obstruct the industry of boiiio classes of
persons and repress their moral and physical energies, as to
make their actual condition in the social scale lower than that
of others living under the control of a private master who is
guided in its exercise by wisdom and benevolence.

Municipal laws may so operate in disabling certain classes or
races in a nation, with respect to their private or public relations,
as to reduce them to a species of dependence upon more privi-
leged classes deserving, in a general sense, the name of slavery or
bondage.* The distinction of these cases from slavery, properly
so called, lies in the legal view of the &lave or of his labor as
private property, and the greater or less denial of his personal-
ity, making the disposal of his person and labor to depend

1 Menander apud Stoboaus: Florileg lx., 84.

'EfjLol t6Ms itrri ical tcaraipvyij Ka\ v&fios
Kal tow Siitafov tov rd&icov vtwrht itpeHjr
'O itavSrtfs. Tipbt rovroy iva tit ifit.

Spinosa : Tr. Tbeol. PoL, o. xvi " Si fiuis actionis non est ipsius agenda sed im-
perantis ntilitas, tarn agens servos est, et siM inutilis."

* For illustrations of the variety of mjanins; attached to liberty and slavery, see
20 Howell, State Trials, Somerset's case, jr.. 14, note of English editor, sneering at the
boasts of the French lawyers in the negvo case, 13th vol. of Cannes Celebres, (temp.
Louis XV.,) p. 492, ed. 1747. And compare Chancellor Harper" f, Essay, p. 23. See
Molyneux: Case of Ireland, by Almon, p. 169. "I have no other notion of slavery
but being bound by a law to which I do not consent" In defining liberty, Dig. Lib. i.,
De statu hominum, Inst, Lib. i., Tit 8, De jure personarutn, — Libertas est naturalis
facultas ejus, quod cuique f acare lito.it, nisi si quid vi, ant jure prohibetur — the very
idea of law is excluded.

EXTENT OF LAWS.

on the will of a single private individual, and not on a law
proceeding immediately from the supremo political power. —
Under a system of caste personal liberty and the right of prop-
erty are controlled by laws restraining thu activity of a claw of
persons, more or less strictly defined, to a particular course of
life, and allowing only a limited enjoyment of property and rel-
ative rights. Feudal slavery confines the person to a particular
legality and a subordinate range of action. There is therein a
certain degree of freedom within assigned limits, and the servi-
tude is due rather to the state than to a single master, being the
result of distinct laws more or less oppressive according to their
nature and number.

§ 48. From what has been before said of positive law, in its
most comprehensive sense, it appears that its existence in any
one country, or nation, may bo referred in its origin either to
the legislation of some one possessor of sovereign power, (posi-
tive law, in the restricted sense,) or to the judicial recognition
of principles founded in natural reason ; while its authority in
any particular territory, and at any particular time, depends
upon its being then and there supported by some one such pos-
sessor of sovereignty, whose existence and authority is indepen-
dent of law in the ordinary sense. And, since, in the present
condition of the world, being entirely occupied by nationalities
of some sort, the actual extent of that territory over which any
possessor of sovereignty shall exercise dominion results from
the public international action of different states, it may be said
to be determined by international law ; though it is a fact taken
in jurisprudence to be independent of the will of every other
national power than that which is, within that territory, the
source of the municipal (national) law, both public and private.

Or, more strictly speaking, those principles which apply to,
and are said by way of analogy to be a law for the action or
intercourse of nations, and whioh are public or private inter-
national law, according to the character of the persons upon
whom they operate, may be taken to be divided into two por-
tions. The first consisting of principles whioh are not laws in
the primary sense, or not rules of action, but laws in the secon-
dary sense only, — the statements of the mode of existence or of

NATURAL, Oil NEOK88AEY LAW OF NATIONS.

action of states, or political bodies : which must essentially bo
acknowledged in every national jurisdiction as axiomatic and
basal principles: (and which, therefore, enter also into mu-
nicipal law.) The second portion consisting in rules of action,
laws in the primary sense, which do not necessarily have the
game universal recognition and extent ; but which, if received
by any states, or nations, regulate tho reciprocal action of those
states, or nations, and of the individuals of whom they are con-
stituted, supposing such reciprocal action to take place. Each
of these portions is public law, in reference to its effect* on the
relations of the state, or nation, regarded as a political unity,
and private law, so far as it defines or affects the relations of
private individuals.'

§ 49. Tho first of these portions of international law, (also
entering into municipal law,) is expressed in the definitions of
such terms as these, — a nation ; a sovereign ; sovereignty ; juris-
diction ; forum ; national territory; domain; subjection; na-
tive subject; domicil; alien; alienage, &c. ; which arc terms
necessarily used in the exposition both of municipal and inter-
national law. These terms are statements of the mode of exist-
ence of nations, or states, derived from the general reasoning of
mankind in the social condition, independently of tho legislative
authority of any one of the states, nations, or political communi-
ties whose existence is defined by them. So far as these state-
ments are constituent parts of positive law, — international, or
municipal rules of action, — -they belong to those principles which
are judicially recognized as having the character of universal
law, (herein also called from its universality the law of nations.)
Although these principles are necessary axioms of all positive
law, international or municipal, they are more frequently called
principles of the law of nations in view of their application to
the public existence of nations than in view of their origin and
universal character. They form what has been frequently de-
nominated, in reference both to their origin and application,
" the natural, or necessary law of nations," and have been

1 Bow/ef: Unir. Pub. Law, 22. Therefore Hwmog* jiantH, Dig. L. ft. D« Joci.
et Jure, OMcribM civil society, and the necesnarj transaction! among men, at springing
from j\u gentium, by which he meant natural law ; or that which, in the word* of
Gains, naturalii ratio inter omses horainei or<n»tituit.

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INTKBSAL AND INTKKN ATI0 W AX, LAW.

the existence of states and nations, or their mutual intercourse,
and which are manifested, or employed in rules having an inter-
national application. In this manner, when the international
law is applied, or enforced by any state, or nation, upon per-
sons within its jurisdiction, and becomes identified in mtlwriiy
with the municipal (national) law thereof, it ia at the same time
distinguished as a personal law.'

In view of this difference of application, the private law pre-
vailing within any national jurisdiction may bo distinguished
into municipal private law, (which, with propriety, may be
called internal1 private law,) and international private law,
according to the character of the persons to whom it applies.

§ 54. To illustrate more fully this distinction in the applica-
tion of the local, or territorial law of any on© state to persona :
— It is an axiomatic principle of universal law, included in that
" natural and necessary law of nations," which was described as
forming the first portion of international law, under the division
herein before given, that the effect of sovereign power upon the
legal relations of the person is cc^-existent with the presence of
such person within the limits which the public law (international
and municipal) assigns to the jurisdiction of the state, or sove-
reign. This actual presence, and the relation of subjection
which is incurred by it, may commence either by the birth of
the person, or by his entry from some foreign jurisdiction.

' Roddie'n inq. in internet. Law, pp. 463-6. International, at well a* municipal
law, mnrt aluo apply to thing* as well a» persons ; that is, the right* (with their cor-
respondent obligations) -which are determined by international law may be rights in
respect to things ; bat whenever rights, or obligations, in respect to things, are ascribed
to international law, as contrasted with municipal (internal) law, the law has a per-
sonal extent from the character of the persons who sustain the relations constituted by
those rights and obligations.

' The law prevailing locally thus becomes distbgtrisbed into internal and international
according to Bentham's terminology. Or it might be said to be distinguished as acting
internally or internationally, according to " the political quality t< the persons whose
conduct is the object of th* law. These may on any given occasion be distinguished
as members of the same state, or as members of different states ; in the first case, the
law may be referred to the bead of internal, ia the second to the head of mtanatkmal
jurisprudence " Betrtham : Morals and Legislation, ch. xix-, g 2, (xxv.)

Bowyer's Commentaries on Modem Civil Law, Loud., 1848, p. 18. " Thus jurists
of modern times have divided public law into internal and oriental. The former is that
which regulates the constitution and government of each community, or common-
wealth, within itself, and die latter is that which concern* the intercourse of different
oommonwealths with each other : this is properly known by the name of misrmaticmal
lav."

DISTINCTION OF PERSONS.

Thus, there is a natural possibility that the same person may,
at different times, be subject to different jurisdictions; and
there is in every state a natural and necessary distinction be-
tween native-born subjects and alien-born subjects ; which, so
far, is a necessary, or axiomatic principle. But the different
legal relations which make the legal distinction between native
and alien subjects, or between temporary subjects and domi-
ciled subjects, depend upon some rule of action enforced by the
state.

The fact of being present within a particular jurisdiction,
with or without concomitant circumstances, might be taken,
irrespectively of the circumstances of native, or foreign birth,
to be 'hat which should determine the operation of the laws of
a state upon persons within its territorial jurisdiction : in which
case, the recognition of such fact becomes an axiomatic princi-
ple, in determining the relations of persons thus distinguished.
A residence, or continuance, under certain conditions, to which
it is not necessary here to allude more particularly, is, under
the name of domicil, actually thus recognized: that is, it is
actually taken to have a certain effect in determining the opera-
tion of the local law. The local, or territorial law of any one
state or country might possibly make no distinction, between
persons subject to its authority, in respect either to the circum-
stance of native or alien birth, or to that state of circumstances
which is known as domicil : and if it were possible that there
should be no recognition of legal rights and obligations arising
out of relations caused by previous subjection to another do-
minion, there would, in that case, be no manifestation of inter-
national law, operating as private law.' When the local or
municipal law is spoken of as applying territorially, without
reference to persons as alien and native, or alien and domiciled,
it is contrasted with international law — taken in the sense of a
rule of which states are the subjects.

But when the rights and duties of private persons within
any national^ dominion differ according to the circumstance of
domicil or alienage ; or vary as they may or may not have
been subject to a foreign jurisdiction, the local or national law

1 Eowyer : Unix. Puk J_*w, 151-8.

PKBSONAJL BXTKNT OF LA.WB.

is spoken of as applying differently to the persons so distin
gnished : and in acquiring the character of a personal law, (in
contrast with a territorial law,) may be itself divided into
strictly municipal, (or internal), private law, and international
private law ; though each part rests on the same political au-
thority : and the condition of private persons, whether regarded
as the subjects of rights and duties, or as only objects of action,
(ante, § 21), is a necessary topic of one or the other of these
divisions of the local, municipal, civil, or national law of each
country.'

§ 65. According to what has been before said, every law
determining the relations of natural persons, whether alien oi
native, is to be ascertained either from positive legislation, or
by judicial recognition of laws founded in natural reason, and
identified with the will of the state, (§ 29.) The autonomous
decree (e*to) of a sovereign power may attribute any rights or
obligations, (being restrained only by the necessary conditions
of things — § 6,) to particular persons, or may attribute them
generally to all persons within the territorial jurisdiction of that
sovereign source of law.' The tribunal, which administers law
as the pre-existing will of the state, is restricted to declaring
what law is (pidetur), and in the personal extent which it gives
to laws must be guided by certain existent criteria.

The ascertained will of the state is binding on all within its
jurisdiction; though it has unequal effect upon different per-
sons ; creating different rights and obligations, in relations in
which they are the subjects of rights and duties, or the objects
of action. The action of men in society being different, the
relations, rights and duties of all cannot be alike.

But an individual or absolute right may be ascribed by the
law of a country to any number of natural persons within its
domain, though it must be exercised by each, relatively to
different persons and things — the objects of action.

1 Mr. Reddie ate* the term internal law as synonym era* with that law which he
call* the national law — Blackatone's municipal law, — and thus loee* tile benefit of the
distinctive term imterwil to mark thia divuion of the national (municipal) law according
to its application to different person*. See Inq. Elero. &c., p. 97.

Compare Maa*6 : Droit Commer., Tom. L, % 87, and |§ 57-60, denning le droit
cusil, including le droit commercial.

* Compare State c. Manuel, 4 Dev. A Batt, N. C. Rep. p. 28.

LAWS OF UNIVERSAL PERSONAL KXTENT.

§ 56. Such a right may attach to all domiciled persons, or
to all alien persons. A certain condition or status of natural
persons, whether consisting in rights and duties of a legal per-
son, or in a chattel condition, may, whether determined by posi-
tive legislation or by a judicial application of natural reason,
be the effect of either municipal (internal), or of international
law, or of both ; the extent, or application to persons, of a law
originating in positive legislation, depending upon that legisla-
tion only; and there being no necessity for supposing that the
dictates of natural reas ^ on this point will be the same, in rules
of action applying to alien persons, as in those relating to the
native or domiciled inhabitants of any supposed national juris-
diction.

§ 57. Or the state, or supreme power, may attribute any
individual right or rights to each natural person within its
domain, whether domiciled or alien. In this case, the law at-
tributing those rights, would, in the jurisprudence of that state,
be & universal principle in respect to its personal extent; that is,
in applying equally to each natural person. In this case, the
individual rights so attributed are not only distinguishable
from relative rights by existing in respect to the whole com-
munity, independently of relations towards specific persons and
things, (rate, § 40,) but they may be called absolute, or primor-
tuxl, or natural rights, becaufie the law attributes them to
i^atural persons simply as such, or as beings possessing the
human form and nature, and aa an intrinsic element of their
human character.

§ 58. The extent of any principle or rule affecting the
status of private persons is always subject to the supreme legis-
lative power. But in the absence of such legislation, it must
be determined by judicial criteria of natural reason as before
set forth. (§§ 29 to 36.) Rules or principles determining the
condition or stakes of natural persons may be derived from
universal j ufisprudence. But it is to be borne in mind, that, in
being bo derived into the jurisprudence of any one state, they
do not, therefore, have the universal personal extent which is
above spoken of. This extent of a personal law being dependent
upon the will of the state in which it is applied ; while a uni-

UWWTUUUUTY — HOW rUKDIOATKl).

vernal ohwraater, nBcribod to any principle*, has roforonoo to itn juri-
dical Bouroo or origin ; that Ib, depends upon tho fact of Us having
boon applied by all nations, or tho greater part, (auto, — 88 :)
which application may havo boon in rospoot to a greater or loss
proportion of persons.

Tho different oxtont of laws to natural persons according to
their subjoction at different times to different national jurisdic-
tions, and tho mode in which, by tbo application of international
law to tho relations of privato pontons, universal j\iriBprndonco
may bo distinctly recognized, and local or territorial laws,
affecting condition or stafius, may rocoivo universal personal
extent, will bo considered in tho following chaptor.

None — The following extract from on Essay by Henry Sumnur Main*, LI* D.,
On the Conception of Sovereignty, end lta Importance In International Law*— Papers
read before the Juridical Society, London, June, 18H5 — p. 80, may, with Mine read**™,
servo to justify expressions in tlie text, whtoh may at first appear to be an attempt
after a useless novelty of exprewion. Speaking of Austin's Province of Jurisprudence
Determined, Dr. Maine says, p. 89 1 " And here, a* I have alluded to Mr. Austin's
treatise, I trust I may be pardoned flvr aaylng that I know no reason, but o**, why it
has not long ainoe dispelled the indifference to the systematic atudy of Jurisprudence *
which waa ao eloquently lamented at the inaugural meeting of title aoolety. [My Sir
Richard Bethell, p. 1, of the same tract] The one drawback on ita usefulness has
been ita $iyle — which la auoh aa to repel a auperfloial reader, and not to attract even a
patient one ; but it would be iboliah not to admit that there are abundant excuse* for
tho peculiarity. England hai no literature of jurisprudence , consequently, the Kngliah
language comprise* no true juristical phraseology. Our Kngliah law terms are strictly
terms of art, and it would be absurd to attempt to strain thorn beyond their w*ll-
defined, long accepted, and technical meaning. The lauguag*, then, which must be
used for questions of universal jnvisprudenoa ia popular language, iulbotetl with all the
vloes of common speech, vague, figurative and general. In eu>ploylng it fur such «n
examination of these questions as is appropriate to closet study, it Is necessary to be
oonstantly limiting and qualifying it, to be perpetually weeding it of metaphor, and to
be oarefuHy cleaning It from the misleading suggestions whtoh lurk in mere arrange*
menta of words and oollooatlons of phrase. Among the numberless advantages which
may be looked for from an extended study of Roman law, I am not sure tha' the high.
eat will not be the introduction of a terminology, neither too rigid for employment
npon points of the philosophy of law, nor too lax and elaatio for their luciil an \ ac
rate discussion."

CHAPTER II.

FARTHER CONSIDERATION OF THE NATURE OF PEIVATE DfTER-
NATIONAL LAW: ITS ORIGIN AND APPLICATION. ITS EFFECT
UPON CONDITIONS OF FREEDOM AND BONDAGE.

§ K9. In the definition of international law which was given
in the first chapter, it was shown to have tho name of a lew
only by an improper use of the term, when considered m a rule
of action for states in their several entity or personality ; since,
though it consiste of a recognized body of rules distinct from
tho municipal (national) law of each state or nation, it is not
prescribed to them by a superior, but operates upon them as
political persons, or upon private persons within their respective
domain, only by their own several allowance1 or consent. This
being the legal or juridical view of the obligation of that law ;
whatever may be its source in a divine rule of action, or law of
nature. "When, therefore, private international law operates
upon private persons, in any national jurisdiction, by the allow-
ance of the supremo power of the state, it has, in respect to
such persons, the same sanction and force as the municipal
(national) law, and, as to all persons who are distinct from the
state or sovereign, it has equally the effect and authority of
law in the proper meaning of the term. The distinction of
private international law from private municipal (internal) law
arising, not from a difference in the nature of their authority
over individuals, but in the character of the relations which
they severally affect.

§ 60. When considering, in the first chapter, the mode in
which positive law becomes known as the law of some one

INTERNATIONAL LAW HOW DISCRIMINATED.

state or country (§ 48), the international law was described as
being divided into two portions. The first consisting of )aws
in the secondary sense only, — necessary axioms, or definitions
of the political existence of states, — entering into both inter-
national and municipal (national) law. The second, consisting
of laws in tho primary sense — rules of action — which may, or
may not, exist, or be observed, between specified states. The
first portion, which, as was remarked in the same place, cor-
responds with that which is sometimes called " the natural, or
necessary law of nations," but which indicates at the same time
relations of private persons, as well as the relations of states-
may indeed be taken to be antecedent to, and independent of,
the power of any one state : but the rules of action which com-
pose the second portion, whatever authority they may have in
natural reason, become law for private individuals only by
being enforced by the power which promulgates the municipal
(national) law of that jurisdiction or state in which the person
may be found.

§ 61. If, then, it is asked — wherein does private international
law consist, as a rule of action in any one national jurisdiction,
distinct from the municipal (internal) law of that jurisdiction?
— the answer must be found by ascertaining the effect of the
necessary axiomatic principles or definitions composing the first
part of the international law, as before described, upon private
persons and upon things ; and next — the actual allowance or
creation of rights and obligations of private persons, as the
incidents of legal relations which have an international charac-
ter from the fact that the agents and objects of action presup-
posed in them are persons, or persons and things, not altogether
or exclusively under the juridical power of a single nation or
state: those persons-, or those persons and things being dis-
criminated, by the application of the axiomatic principles above
spoken of, as persons subject to different jurisdictions ; such
persons being alien, or native, domiciled, or temporary subjects
in reference to some one jurisdiction or forum.

§ 62. The terms or phrases by which the nature or mode of
existence of states or nations is set forth or defined, are so gene-
rally known in the maxims of public law, that it is- not neces-

FIRST AND SECOND MAXIMS. 55

sary here to attempt any separate exposition of them : though
it may become necessary hereafter to consider particularly the
meaning of some of those terms, as they may be used in stating
international or municipal (internal^ i-uie* of action.

The general principles or maxima which are contained in
the definition of these terms, aro set forth most at large by
wrif/ers who treat of public international law, regarded as a rule
of imperfect obligation {ante, § 11,) of which states or nations
are the subjects ; though they aro equally presupposed in rules
determining the relations of private persons towards those states
or nations, and having the force of law in the strict sense — i. e.,
public municipal (national) law.

§ 63. Upon an examination of these maxims, as stated by
writers on public law, it will be seen that there are three which
may be taken for the most general or fundamental ; and which
are in fact but one and the same definition of sovereignty ;— or
they are assertions, in different forms, of the essential character
of sovereignty ; or, again, — descriptions of sovereign national
power in three different relations. The first being a definition
of sovereign national power considered, , as it may be said,
absolutely ,~=or in relation to its own materials, or constituent
parts ; without reference to the existence of any other manifes-
tation or embodiment of that kind of power : which may be
thus stated : —

I. The power of every state, or nation, is absolute, self-de-
pendent, or supreme, within that space, or territory, which it
possesses, or occupies, as its own domain, and owr all persons
and things therein.

The second maxim is but the same assertion expressed rela-
tively to the co-existence of several states, or nations ; recog-
nizing the limitation of each by the fact of the equally inde-
pendent existence of the others ; this is, that —

II. The sovereign power of one state, or nation, is not to be
recognized as sovereign, or has no existence, as such, beyond its
own domain, or territory, or within the space, or territory, which
constitutes the domain of another possessor of national sovereignty.

§ 64. TheBe two maxims, when taken for maxims of inter-
national law, belong to the first portion of international law,

RELATION TO BPAOK AND TIKE.

according to the division herein before made, {ante. § 48,) since
they can be called laws in the secondary sense only ; not being
properly rules of action, but statements of a mode of existence,
or of action. They must lie at the foundation of all positive
law ; and they have in jurisprudence the character, or extent
of imiversal law — the law of nations, (Jus gentium,) because
actually asserted, or proclaimed, and universally received, by
nations, or states, as being natural and necebcary principles.1

In the manifestation of this sovereign power, over persona
and things, by states, or nations, originates law in the primary
sense — rules of action ; forming relations botween persons in
respect to other persons, and in respect to things. Since these
relations are legal, — that is, are known as the effects of law, it
is a consequence of the two maxims just stated, that they have
existence only in some one jurisdiction in which that law is
known as a coercive rule proceeding from the sovereign of such
jurisdiction, and the rights and obligations composing those
relations have no legal force beyond it.

§ 65. It was remarked in the first chapter that international law
(public and private) arises from the necessarily existing circum-
stance that the whole variety of human interests and action
cannot, from their nature, (or, it may be said, from their rela-
tion to space and time,) be distinctly divided among, and sepa-
rately included under the limits of single states ; and yet the
juridical power of society must be supposed, in some form,
either by enjoining, permitting, or prohibiting, to be exerted
upon interests and actions which are not so included under the
exclusive dominion of single states, (ante, § 10.) The effect of
law is exhibited in legal relations, comprehending rights, with
their corresponding obligations, in respect to persons, and in
respect to things. The action involved in any legal relation
must take place in reference both to space and time ; and the
conceivability of relations whose legal existence is indeterm in-
able under the law of a single state, (which conception supposes
an international law according to the definition in the first
chapter,) will arise from postulates of their existence in respect
to space and in respect to time : such relations being, also, dis-

1 Bowyer : Utiiver. Public Law, p. 161, and the citations.

BELATIOHB PIBCRIlfJNATKD*

tinguiBhablc among themselves by differences in the compara-
tivo effect of space and time ii: connecting their legal existence
with the juridical action of more than one state.

For, first, relations may bo supposed, or conceived, not to
bo exclusively determinable by the juridical power of u single
state, by reason of differences in the respective geographical
positions, at one and the same time, of the persons and things
which aro to bo the tfubjecta and objects of the righU therein
involved.1

And, secondly, other relations may bo supposed, or con-
ceived, not to bo so determinable under the juridical power of
a single state, by reason of differences in the respective times
at which the persons, or the persons and things, which are to be
the subjects and objects of the rights involved in those relations
aro together found within different geographical jurisdictions :
they being at one time within the territorial dominion of one
state, and afterwards within that of another.

§ 6<J. It will bo seen in comparing these classes of relations
that there is a manifest difference in the degree in which it may
be said that they are not exclusively determinable under the
juridical power (the law) of single states.

' In. the class of relations first described, the persons and
things which are to be the subjects and objects of the rights in-
volved in those relations, not being at the same time under the
same jurisdiction, it is actually impossible, from the axiomatic
principles of jurisprudence, (natural and necessary law of na-
tions,) that the action in ivhich those rights must be manifested
should take place without a concurrent juridical action on the
part of the respective states, either producing one common rule,
or consenting to the controlling operation of rules proceeding
from one or from the other. In this case it may be said that
the question — by which juridical power the relation is to be de.
termined? — precedes the legal existence of the i elation.

1 Wheaton : International Law, Part ii., ch. 2. "It often happens that an indi-
vidual possesses real property in a state otlwr than that of hi* domicile, or that con-
tracts are entered into and testaments executed by him in a country different from
either, or that he is interested in snceessions ab wtettato in rich third country ; it may
happen that he is at the same time subject to two or three sovereign powers — to that
of his native country, or of his domicile, or to that of tho place where the property in

aaestion is situated, and to that of the place where tfa contracts have been mode, or
te acts executed." '

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BIHCOIE8 IH INTERNATIONAL LAW.

§ 69. The municipal (national) law of any one fit ate may
contain rules of action^applying originally, and as a law of local
origin, to the relations of private persons within its jurisdiction,
who are distinguished by the supreme power as alien, which
are not rules that take notice of the effect* of the laws of foreign
jurisdictions in creating rights and obligations for those persons.
Rules of this kind can be called international (as contrasted with
internal) only in being founded on the simple distinction be-
tween native and alien subjects.' The private international law
then, so far as it can be>distinguished from the municipal (inter-
nal) law of any one jurisdiction, is, in its form and manifestation,
a rule regulating in that jurisdiction the admission or allowance
of different municipal (internal) laws, or of their effects ; being
properly called private, because determining rights and obliga-
tions arising out of relations of private persons : whether the
municipal (internal) law, first establishing these relations, is
principally of a national and public character, or is more strictly
private.

§ 70. The three maxims or propositions above given can in
their nature be only statements of the self- existent or self-depen-
dent nature of nations, states, or sovereignties, and therefore
laws in the secondary sense of the word only. If the attempt is
made to go beyond these, and state a rule under which this in-
ternational recognition of municipal (national) laws, (the possibil-
ity of which only is implied or stated in the third maxim,) Bhould
take effect, or will take effect — a law having the force of a rule
of action — a law in the primary sense, it is evident that such
rule may be stated either in the form of a rule of which states
or nations are the subjects, determining their respective rights
and obligations, or, in the form of a rule of which private per-
sons are the subjects. In the first alternative, the rule can only
be lew in the imperfect sense, or a law of the imperfect kind,
and cannot determine the action of such states or nations except

HcM (realized — actualized — carried out,) under the jurisdiction of a certain law." But
Waechter in hi* treatise (published in the tame year, 1841,) on the collision of lawi
ia Arch It. f d. Chrfl. Praxis, voL 24, p. 287, take* the word vencirllichl, as employed in
a citation from Strove, in a sense which appear* to be directly opposite to that above
giv«n. The first necessity in questions of this kind Is a received nomenclature.
1 Such as naturalization laws, police laws relating to immigrants.

DUTY OK TRIBUNALS.

by being identified with their several autonomic will or consent ;
and it will ho public international law, from the character of the
persons upon whom it operates, or for whom it is said to be a
rule. In the second alternative the rule may have the coer-
cive character of positive law, in reference to the action of private
persons, and be a rule which judicial tribunals may apply, or
will bo bound to apply in determining the rights and obligations
of such persons, in relations in respect to other persons and in
respect to things ; being private international law from the char-
acter of the persons upon whom it operates, or for whom it is
said to be a rule. But it is evident with regard to the possibility
of any such rule — a rule having the character of positive law, —
that it must be part of some municipal (national) law ; that is,
it muet, according to previous definition, be identified with, or
rather must derive its existence from, the ascertained will of
some legislator, — some political person vested with the author-
ity of society or of the state.

Now to whatever degree the state or Lotion, or the posses-
sors of supreme or sovereign power, may, in their political entity
or personality, be bound (by public international law — the law
of ''positive morality" — Austin, ante § 11, n.) to allow foreign
laws to take effect within their own jurisdiction, their judicial
tribunals have the like duty, in allowing or refusing the inter-
national admission of foreign laws, which they have in enforcing
the municipal law strictly so called — the internal law — the law
operating within each national jurisdiction irrespectively of the
existence of other such jurisdictions ; they must ascertain the
will of the supreme power of the state in reference to such inter-
national allowance.

§ 71. It will be remembered that the relations which it was
supposed might be indeterminable under the legislative power,
or the law of a single state were herein before divided classi-
fied > y differences in the comparative effect of space and time
in connecting their legal existence with the legislative action of
more than one state, {ante % 65.)

In regard to the first class of relations — that namely in which
the persons and things, which are to be the subjects and objects
of the rights involved in those relations, are not all supposed to

THE TERM CONFLICT OF i,AWH.

be at ono time under one and the same jurisdiction, (in which
case the question, by which legislative power tho relation is to
be determined, would precede the existence of tho relation, and
where it would be impossible that tho action in which those
rights must bo manifested should take place without some con-
current legislative action on tho part of the respective states
within which those persona and things should bo found, either
producing one common rule or consenting to tho controlling op-
eration of rules proceeding from one or from the other,) — the
question of the existence and determination of these relations,
when raised before a judicial tribunal, may appropriately
receive the name of a question of tfte conflict of laws ; which
name has been given by Huber, Story, and others, to cases de-
termined by private international law as herein described.

That name, however, is evidently less appropriate to expires
the question of the existence and determination of the second
class of relations, before described : since, according to the sup-
position, the persons between whom they are to exist, or the
persons and things who are to be the subjects and objects of the
right involved in that relation, are always at some one time
under the exclusive dominion of some one state.

§ 72. The international determination of the first class of
relations constitutes one of those topics of jurisprudence wherein
it has been found most difficult for judicial tribunals, or for pri-
vate jurists and law writers, to agree in a priori deductions from
elementary and necessary principles.' Rules, however, may
exist, in regard to this class of relations, in the jurisprudence of
any one country, either originating in positive legislation or in
judicial precedent, which, of course, must be taken to have been
intended for jural rules, or rules founded in natural reason, and
not merely arbitrary and accidental determinations. And so
far as any rules are found to have been concurrently adopted in
♦he jurisprudence of different nations, they thereby acquire the
character of a universal jurisprudence or law of nations ; and
there is in that fact an authority for the judicial tribunals of any

1 To these rales the citation given by Schseffher, % 22, note, well applies : — " Leyser ;
Med. «& Pood. Sp. 288, p. 1162. says in regard to Farinacius and others. Regolas in
Lflis nralt&s inTeni, sed qoaodo eaa cum subject!* limiutioaibus contoli, ipsarum regnl&»
ram nihil taperesM vidi."

STATUS IN INTERNATIONAL QUESTIONS.

one country or state, (in the silence of the local legislation or
customary law on that point,) to adopt them, as being presump
tively accordant with the legislative will of the nation or state
whose juridical authority they exercise.' But it appears to have
been difficult, even by such an a posteriori or inductive method,
to discover any harmonious and consistent system of rules appli-
cable in such cases.1

The determination of the second class of relations is simpler,
because the relations are first taken to be in existence under the
legislative action of one state or nation, or one possessor of
sovereign power, and the question is of their continuance, or real-
ization under the legislative and juridical power of another.

§ 73. Since static* or personal condition, as defined in the
first chapter, consists principally in the possession of individual
rights, and the relations of which it is an incident do not imply
the exercise of rights relative to specific things, it must alwayB
be at any one time under the legislative power of some one state ;
that is, the state within whose actual territorial jurisdiction the
natural person may be found, whose status or personal condition
is to be determined. So far, therefore^ as it may become a topic of
private international law, it appears as an incident of the rela-
tions of the second class above described. That is to say, the
status of a natural person can become a question of private inter-
national law, only when such person is supposed to have had a
status or personal condition in relations created under some for-
eign law, which relations being regarded as existing or having
existed under the foreign law — the question is of their realization,
actualization, or continuance.

Since the inquiries to be pursued in the following pages will
be limited to questions connected with the law of statics or con-
dition, private international law will in this chapter be further
considered only as it may determine relations of the second of
the two classes above described.

1 The principle — locut regit actum, when applied to this clan of owes, may however
be cited m an example. And compare Savigny : Heut R. R., B. 3, c. i , § 348. The
eighth volume of this work of Savigny relates exclusively to the conflict of laws.

• Saul m. His Creditors, 17, Martin's Rep. Louisiana, 569, by the court s " We know
of no matter in jurisprudence so unsettled, or none that should more teach meu dis-
trust of their own opinions, and charity for those of others."

DISTINCTIONS FOUKDKD ON SUBJECTION.

§ 74. Although the question before the tribunal determining
the 8tatu8y or condition of private persons under international
law, regards the maintenance of legal relations of persons, or of
correlative rightB and duties of persons, in respect to persons
and things included under a certain national jurisdiction, those
relations, or those rights and obligations, are not, by the very
implication of the third maxim, to be regarded as entirely de-
pendent, or not bo in the first instance, upon that municipal
(internal) law which is the territorial law, or local law, of that
jurisdiction in which those persons and things are found.
"Whenever a question is made of the determination, under pri-
vate international law, of rights and duties incident to the class
of relations now under consideration, a recognition of private
persons as aliens, in respect either of birth or of domicil, or at
least as having been anteriorly subject to some other jurisdic-
tion, is pre-supposed ; and the private international law (i. e.,
that part of the national law of the jurisdiction which is to de-
termine that question,) is applied as a personal law, — a law
attaching to certain persons in virtue of their anterior subjection
to a foreign jurisdiction, irrespective of the general territorial
operation of that municipal (internal) law of the> forum to which
they are, or have been, alien in a greater or less degree, or
under a greater or less variety of circumstances, (ante, § 53.)

It was stated in the first chapter, that the contrasted relations
(conditions) of alien and native subjects are necessary or axio-
matic ideas in international law, being stated in those definitions
which form the first portion of international law (public and
private) according to the division there given. But the fact of
mere subjection, independently of place of birth, to different
jurisdictions, is that upon which the distinction of an inter-
national law — being a rule determining the relations of private
persons, and operating as part of the municipal (national) law
of some one state, or nation — is founded. It being possible
that within the jurisdiction of any particular state persons may
be present who have been subject to the territorial jurisdiction
of another, the laws of the first may be conceived of as making
no distinction between them and others in consequence of that
fact. But the laws of a state are not necessarily nor usually

XE8ULTB 07 SUBJECTION BBCOGNIZKD.

thus equally operative. All within a national jurisdiction are
equally subject to the supreme power of the state, but the laws
therein (i. e., the national law,) may apply differently to natives,
and to those originally coming from another national jurisdic-
tion. This difference in the application of the national law
may be combined with the recognition of the rights and obliga-
tions of private persons in relations caused by a foreign law to
which they have been previously subject ; and there may be a
difference in the degree of this recognition, and in the extent of
the local, or territorial law of the forum to persons who are not
native, by discriminating between them in respect to their
being either permanent and domiciled, or transient and tempo-
' rary subjects. When the previous actual, or territorial subjec-
tion of certain private persons to a foreign law is judicially
recognized in the forum of jurisdiction, and the question is
made of the realization or continuance therein of rights and ob-
ligations of those persons in relations existing under that foreign
law, then the local or national law operates as private inter-
national law. For though this distinction between persons is
made under some municipal (national) law — i. e., some law
known as the positive law of some one nation, or state — that
law, being differently applied to persons thus discriminated, or
distinguished, — may be denominated international, because it
then determines the operation of the municipal (national) laws
of different countries, or states. In these cases, the relations of
certain persons are recognized simply as facts existing by the
operation of a foreign law • but the validity of the rights and
obligations included in them is determined solely by the local
juridical authority. And so far as the tribunals of the forum
are concerned, the relations existing under the foreign law are
to be brought to their judicial cognizance by proof, like other
facts : they are not legal effects which the tribunal is bound in-
dependently to take notice of.1

§ 75. When persons md things pass from one national juris-
diction into another, it is impossible, in the nature of things,
that all the relations in which they were the subjects, or objects
of rights and duties under the law of their original jurisdiction,

1 Foelix : Dr. Int Pr., § 18. Story: Conf. L., g 687, and the cant cited.
6

NBOKBSABY LIMITS OF RECOGNITION.

should exist un6Vr the jurisdiction to which they have been
removed ; because all the persons and things which were with
them the subjects, or objects of corresponding rights, or duties,
in those relations, aro not transferred with them to the new
jurisdiction. It is not, therefore, supposable, when persons thus
pass from one jurisdiction into another, that all their rights and
obligations, existing under the law of the first jurisdiction,
should i>e maintained by the law of the second. That class of
rights of persons, which in the first chapter were called abso-
lute) or indwidual' rights, may (since they exist in a relation of
individual persons to the whole community, without distinction
of specific individuals in it, and as rights of action have no de- .
terminate, or special objects,) continue to be, for the subjects of
them, the same in effect ; though the objects may be different,
and the supreme power sustaining them is a different political
personality. But those rights (the right to private property, or
of private property, for instance,) so far as they are relative to
specific persons and things, and those rights which were in the
same chapter called relative, because arising under relations of
persons to other determinate persons, cannot, it is plain, subsist
under the law of the new jurisdiction unless the persons and
things which are the relative subjects and objects of those rights
are transferred to the new jurisdiction. But it is plain that so
far as the action implied in any legal relation continues to be
physically possible, notwithstanding a change of place on the
part of the persons between whom, or the persons and things in
respect to whom, or to which that relation has once subsisted,
any of the rights of persons arising out of a relation constituted
by the law of one jurisdiction, may be allowed to retain the
character of a legal right, under the sovereign authority of the
new jurisdiction. Whenever this is the case, the supreme
national authority, having independent power in a specified ter-
ritory, adopts the law of another, or allows it to take effect
therein as a law of foreign origin ; though its authority as law,
in the strict sense, must always in that jurisdiction depend on
the local sovereignty.

§ 76. Since, then, this allowance, or disallowance, depends
on the same authority as the municipal (internal) law, it must

ACTIO* OF TEIBUNALB.

be ascertained in the same manner as tho n unicipal (internal)
law, resting on that authority, is ascertained. According to the
view given in the first chapter of the manner in which the will
of the supreme authority in states becomes expressed or assumes
the form of law, that will may be ascertained either — 1 ; from
the direct expression of the will of the state in positive legisla-
tion, (esto;) or, 2; from an interpretation of natural reason by
tribunals appointed by the state, (videtur.) If the sovereign or
supreme power has expressed its will by legislative enactment
or action having that effect, that expression is equally authori-
tative and controlling in this case as in the case of delations
falling under municipal law strictly so called, (the internal law.)
If no such expression exists, the tribunal must make this allow-
ance or disallowance by reverting to the law of natural reason,
as it reverts to the same for the presumed legislative vill of the
sovereign . in enforcing the municipal or internal law. And,
however autonomic or independent in its estimate of natural
reason, as bearing on the relations of nations to each other, or
of its own obligations (under that international law, which, as a
law binding on states, is a law in the imperfect sense only,) the
possessor of supreme legislative power^ or the national sover-
eignty of any state may be when allowing or repudiating the
effects of foreign laws, the judicial tribunals of any nation, at
the present day, in pronouncing a judgment upon the Bame point,
can refer only, either, as has just been said, to the positive legis-
lation of the sovereign, or to standards of natural reason which
have, by anterior, judicial recognition and the implied sanction
of the sovereign power whose will they execute, acquired the
authority of law. These are — judgments of antecedent tri-
bunals under the same national authority in like international
casea ; customs which have existed under that authority ; accepted
expositions of law by private persons ; and, in cases where these
domestic precedents do not furnish a criterion applicable to the
case in question, the laws, usages, and judgments of other
nations, in respect to the international recognition of the laws
of foreign'stateB, may be referred to, on the same principle by
which such tribunals refer to the municipal (national) laws of
other nations for an exposition of natural reason to be Applied

JURAL CHARACTER — HOW PRESUMABLE.

as their own local or municipal (internal) law — tbe principle,
namely, that, from the nature of society and of states, the laws
of all states are to be taken to intend to conform to natural
right, or are promulgated for jural rules, and may be judicially
referred to, by the tribunals of any one nation, as an exposition
of natural reason to guide in the administration of its own
(national) law — whether interna), or international law — in cases
where the other standards of the will of the state which are
more direct, do not give a sufficient rule. The limits of an
autonomous judgment on the part of a judicial tribunal being,
at the present day, extremely narrow.

§ 77. The propriety of this reference by the courts of any"
one nation, is, as to such courts in nations wherein laws have
long been administered, based upon precedent — the' usage' of
their predecessors.1 But the principle upon which such refer-
ence is made becomes itself, when once established, a rule of
particular force in the international recognition of relations
which have been created by foreign law ; or — to employ a
different form of expression — becomes more directly operative
as a principle of the international private law. For, since the
tribunal, in the case supposed, is necessarily proceeding on the
supposition that the state, where it has not declared its will by
positive legislation, must still be presumed to will that which
is accordant with natural reason, it would follow — from.the very
nature of the assumption, which is above stated, in favor of the
jural character of foreign laws, — that the state will recogniise
and support foreign laws and their effects upon persons and
things coming within its dominion, when those laws are not con-
trary to the rule of right contained in the municipal (internal)
law:' for if such a rule exists in that internal or local law, and

1 Smith's Compend. Merc Law, p. 6. " Here it should be observed, that the foreign
laws and foreign lawyers, who have been y Jt mentioned as having influenced the for-
mation of the mercantile law of this country, were never, at any. period, recognised by
the judges of onr courts as being per m of any authority whatever. Respected the
rales which they laid down may be, for the learning and sagacity which they evince,
tat, when they an obeyed, it is part of the law and custom of England, declared to be
such, either by long usage and tradition, or by tbe decisions of onr own courts of jus-
tice, containing an enlightened adaptation of ancient principle to modern con-
venience," &c

* Potter tw. Brown, 5 East, 580, by Lord EHenboroagfe. " We always import, to^
getbe* with tteir persons, the existing relations of foreigner^' as between themselves,

TRUE BASIS OF COMITY.

it is applicable to persons in circumstances of natural condition
similar to those in which the persons known as aliens are found,
it must control, so far as applicable, all rights and obligations
of those aliens, and overrule the relations created by the foreign
law, — by the very supposition on which the presumption in
favor of a judicial recognition of the effect of the foreign law is
based, viz. : — that the state — the legislator of the forum intends
to enforce jural rules, or laws which are rules of right— -jut.

§ 73. It is this principle arising out of the jural nature of
socioty, or of the state, and the method in which law is judicially
ascertained, which is the true basis of, a&d the Warrant for that
judicial recognition of rights and obligations of private per-
sons in relations created by foreign laws,1 which is commonly
referred to the operation of the comity or good will of nations,
and the prospect of reciprocal advantage. That recognition or
allowance of the foreign law being then supposed to depend
upon & judicial estimate of what comity or the prospect of re-
ciprocal advantage requires the nation, for which the tribunal
is acting juridically, to allow.

It is evident that if comity or good will, or the prospect of
reciprocal advantage is, or ought to be, a motive acting on states
and nations — the possessors of sovereign legislative power — and
if it does, in an ethical point of view, require states or nations
in their political personality to allow foreign laws to operate
within their territory, or to recognize relatione created by for-
eign laws, it is still only a part of public international law,
from the character of the persons upon whom it operates, and a
law in the imperfect sense only, or of an imperfect kind only—
a part of positive morality, operating on states. And though
it may be admitted that it ought so to operate upon any par-
ticular state, it still will be the duty of judicial tribunals to
ascertain the will of the state upon that point, before allowing
or giving effect to the foreign law in any case. It is further
evident that when the will of such state on this point has been

according to the laws of their resjr in communities ; except, indeed, -where these
i&ws clash with the rights of our subjects here, and one or other of the laws most
necessarily give way, in which case onr own is entitled to the preference."

1 Therefore this judicial recognition of foreign laws, or of their effects, is not derived
a priori, or founded , on an a priori juristical theory. See Beddie's Inq. EL Ac., p. 280.

70 hubeb's MAxm.

ascertained, it is entirely immaterial, in jurisprudence, Vhe
wienoe of positive law, to inquire what may hare been the
motive acting on tlie state or nation, exeroising sovereign legis-
Utive and juridical power, which induced it to allow or require
this international recognition of foreign laws. The trib jual h as
simply to consider it as the rule of right established by the state.
And it would be, for the tribunal and for private persons, equally
law and a jural rule if it should ' have been caused by selfish-
ness or enmity, and be reciprocally disadvantageous.

§ 79. TRiis doctrine of an international comity being the
basis of the judicial recognition of foreign laws and their effects
appears to have originated in the third of Huberts three
maxims, so often cited in works on international law. These
arc, (Huberi : Prwl., Lib. i., Tit. 3. De Confl. L., § 2) :—

1. Leges cujusque imperii vim habent, intra terminos ejua-
dem reipublicffl, omnesque ei subjectos obligant, nec ultra. Per
I. vlt.ff. de Jurisdict.1

2. Pro subjectis imperio habendi sunt omnes qui intra ter-
minos ejusdem reperiuntur, sive in perpetuum, sivc ad tempua
ibi commorentur. Per I. 7, §10, injm. de Interd. ei Releg.*

3. Rectores imperiorum id comiter agunt, ut jura cujusque
populi intra terminos ejus exercita teneant ubique suam vim,
quatenus nihil potestati aut juri alterius imperantiB ejusque
oivium prejudicetur.

The third of these maxims resembles the third of the three
herein before given, in being only the statement of a condition
of things-— a law in the secondary sense : but it differs in not
stating the possibility of such international allowance, but the
fact that it w actually made by the rulers of empires, rectores
imperiorum ; and it differs, still further, in not only stating
the fact, but also the motive cr ro oSOii which induces the su-
preme power, the rectores imperiorum, to make that allowance
—that is, the motive of comity. But it is not here stated that
judicial tribunals, which are not rectores imperiorum, may or
do, from comity, make this admission in any case, until they
have ascertained that it is the will of the sovereign power for

• Thin citation if the nine as Dig. L. iL, Tit i., 20.

* This citation is the same as Dig. L. xlriiL, Tit 22, 7, $10, m fitm.

THE MOTIVK FOB THE TRIBUNAL.

whom they act judicially — the rector imperii— -to make it
When that will has been ascertained, it is immaterial what may
have been the motive operating on the supreme power or the
sovereign source of the national law. There is, therefore, in
this maxim, nothing making comity a judicial rule — or some*
thing, the extent and limits of which are to be judged of by
the judicial tribunal.

§ 80. It being, however, assumed that the actual legislative
and juridical practice of nations is one of the criteria by which
the tribunals of any one nation are to ascertain that law of natu-
ral reason which they are juridically to apply as the positive
law of the state — the fact that different nations, (or the civilized
nations of Europe and America,) have severally sanctioned this
international allowance, so far as not prejudicial to the potestas
and/w* of the state, or of its citizens, may be taken to be an
authority for the tribunal 1 to make this international allowance
in matters of private law, when not contrary to the potestas
and jus of the state, or of its citizens; quatenus nihil potestati
aut juri alterius imperantis ejusque civium praejudicetur. These
words are translated by Story : Conf. of L., § 29, — " so far <as
they do not prejudice the powers or rights of other governments
or of their citizens." The word juri here translated " rights
of," &c, might more correctly be translated law ; or, better1 —
law and right: the word jus having the sense not only of a
right but also of a law ; in the sense of a rule of rights a jural
law — that which must be judicially recognized as right, as well
as law.1 But then it is evident that the tribunal has nothing to

1 1 Barge Comm., p. 5. " Henoe, by that which is sometimes culled the ammia*
gentium, but which is at other times and more properly c&IIed the common necessity or
the mutual advantage of nations, la nfcatmti da bim public H ffMral det nation*, it is
established as a principle of international jurisprudence that effect should be given to
the laws of another state whenever the rights of a litigant before its tribunals are de-
rived from, or are dependent on, those laws, and when such recognition is not prejudi-
cial to its own interests or the rights of its own subject*."

Judge Bradford, in Ex parte Dawson, 8 Bradford's R., 185, having reference to the
action of an English ji*&j£ai tribunal and its obligation to recognise the effects of the
law of the State of New York in the ease, says, citing the above passage : " It may
also be safely laid down that from comity and considerations of mutual interest, foreign
sUfces recognize and give efleet almost universally to those laws of the domicil," tec.,
" respect being had in this particular to the sentence of the appropriate tribunal in the
place of domicO."'

* The meaning of the word jut, in Roman jurisprudence, will be particularly exam-
ined in a succeeding chapter.

FOBOB OF THK FKACTIOE OF BTATK8.

do with the oomity or any other motive which may he supposed
to have acted on those states, or which may or may not, for the
future, influence the sovereign, rector imperii, whose judicial
function it exercises. It is enough for the tribunal that such
has been the practice of nations. Another statement of this
axiom by Huber, in the treatise, Jus publicum Universale,
Lib. 3, cap. 8, § 7, is also cited by writers on international law.
"Summas potestates cuj usque reipublicro indulgere sibi mutuo,
ut jura legesque alior m in aliarum territoriis effectum habeant,
quatenus sine prsejudicio indulgentium fieri potest. Ob re-
ciprocam utilitatem in disciplinam juris gentium abiit, ut civitaa
alterius civitatis leges apud se valere patiatur." 1

If this maxim of Huber is intended only for a statement of
the fact that this is the practice of nations, it is entirely un-
necessary to allege comity or reciprocal advantage as the cause.
As a principle of private law, it is sufficient to say that the ad-
mission has been so generally made that it has become a prin-
ciple of universal jurisprudence, which the tribunals of every
nation are bound, in the absence of a particular national rule —
statutory or customary — to receive as a rule of natural reason
accepted by the state. And this, perhaps, was the meaning of
Huber in the passage last cited — in disciplinam juris gentium
abiit, ut ci vitas alterius civitatis leges apud se valere patiatur.
It is, however, evident, from the remarks in the Prcdectiones
following the three maxims, that he there conceived that the
tribunals were to base their recognition and allowance of the
effects of foreign laws upon considerations of comity, recipro-
cal utility, &c. And in saying in that place that the three
maxims, or this topic of jurisprudence, belongs to the jus gen-
tium, and not the jus cvoile, he apparently intends, by the for-
mer, that international law of which nations, in their political
personality, are the subjects.'

1 So in 1 Voet, de Statutis, f 1 ; 12, 17. " Dein quid ax comitate gens genti . . .
liberal! ter et officios© indulge* t, permittat, patiatar, ultra citroqne.*

* It will be necessary, hereinafter, to show that the term ha gentium, in the writings
of die civilians, has been used in two significations, the one being the original meaning
which it has in the Corpus Juris Civilis, equivalent to univenal juruprudenoe the
other, a modern meaning equivalent to public international law, according to the defi-
nitions given in the first chapter. This double meaning has occasioned much miscon-
ception and misquotation. See Beddie's Inq. Elem. &c., ch. iv.

THK JUSnmOAL KWKIW,

§ 81. The later writers following Huber hare constantly
cited the axiom as implying that judicial tribunals are to regard
the comity of nations and considerations of reciprocal advan-
tage as a criterion by which they are to allow or disallow the
operation of foreign laws upon persons and things within the
jurisdiction of their states ; or — to vary the form of statement
— that the tribunals are to take into consideration whether out
of comity, or by, or for, or under comity, the nation or state is
bound to admit the operation of the foreign laws, and then de-
termine the rights and obligations of private persons accord-
ingly.

This idea of & judicial recognition of comity of nations, re-
ciprocal advantage, &c, — the motives which are supposed to act
on the supreme authority— the rector imperii, seems to have
been seized upon from an inability to discover what authority
a judicial tribunal could have in making that practical recogni-
tion of the effects of foreign laws which it was plainly seen was
nevertheless constantly taking place. In order to justify the
courts in thus giving effect, as it seemed, to a foreign law, the
courts were made to. assume the powers of the state or of the
sovereign. They were supposed to have abandoned their judi-
cial function of applying the national law (positive law) to pri-
vate persons, and to have assumed to act for the state in its
political legislative capacity, and to decide what were the dic-
tates and requirements of a rule which, in operating on the
state as its subject, is a public law, and a law in the imperfect
sense only : while, in fact, neither comity nor any other motive
or rule acting on states or nations had anything to do with the
judicial recognition or non-recognition of the foreign law. The
state, in vesting the tribunal with juridical power, and having
recognized all other states as expository of that rule of right
which was to be enforced in its own jurisdiction as positive law,
had already recognized the validity of the effects of foreign
laws within its own jurisdiction, if not contrary to the rule of
right contained in its own local municipal (internal) law, and
this question of contrariety was the only one for the considera-
tion of the tribunal

The whole of this doctrine of the comity of the nation ap-

BTOKT'B .fUHUMI Of THX TTCEED MAXIM.

plied by the court,1 in volreB the fallaoy that the tribunal ia to
determine the role of right for the action of the state, when the
whole of jurisprudence is founded on the principle that the
state determines the rule of right for the action of the tribunal.

§ 82. Judge Story, in his Conflict of Laws, § 81, accepts
Huber's three maxims for the basis of private international law,
but it will be seen that in translating the third maxim he intro-
duces the word aught in a manner not strictly justified by the
terms of the original ; though, by so wording it, the real basis
of the action of judicial tribunals is indicated. Tho maxim as
given by Story, Conn, of L., § 29, is : "The rulers of every
empire, from comity, admit that the laws of every people in .
force within its own limits, ought to have the same force every
where, so far as they do not prejudice the powers or rights of
other governments, or of their citizens." In Huber's statement,
it is not said that the rectores imperii admit that foreign laws
ought to have effect, or that it is right that they should have
effect, &c. It is merely said that, in point of fact, they have
allowed them to take effect. But the practice thus stated by
Hnber is, to the tribunal of the forum of jurisdiction, the indi-
ca'tion that the national law — or the author of the national law,
does consider that foreign laws ought to have that effect ; and

1 18 Peters IL, 589, by Taney, C. J., oiling Story's Confl. of I*, § 88. " It ia not the
comity of the court, bat the comity of die nation, which is administered and ascer-
tained in the same way, and guided by the same reasoning by whioh all other princi-
ples of municipal law are ascertained and guided." 1 Greenleaf EvicL, § 48.

Therefore, the idea of " comity of nations," 44 international comity," operating ae a
judicial rule, has been denominated by some authors a fiction of romance. Schaeflher,
§§ 29, 80, says : " From being jurists they became poets ; inventing the fiction, that
the comity of the nation was making place for the foreign law : or else — in instances
of direct juridical contradiction between the two laws— they played the port of the
statesman instead of that of the jurist ; pointing out the commercial or other disadvan-
tages which might accrue to the subjects of their own state if the foreign law should
be disallowed.

44 This romantic idea of the comitM gentium, originating in a misconception of the
nature of law, and bearing a great resemblance to a bloau kurmktque, lurks in many
of tiie older treatises, and reappears even at the present day, as, for example, in Story's
work. Now, if we observe closely how the principle of the oorrUtcu gentium has been
carried out, we become aware, to our surprise, that it has sever, in fact, been actually
applied, or at least that Ih most of the supposed cases, some principle entirely distinct
from the cotnifai has been appealed to. How could any consistent result be attained
by following a conception so utterly vague and unjuristical. It is not possible, in fact,
even approximately, tc decide correctly the simplest question of international private
law by this principle. Where ia the beginning of the and of comity ? How can ques-
tions of law be answered according to political considerations which are of all others
he meat fluctuating?" (TransL)

DOOTBOTB OF Ut FOELtZ.

therefore, it is also to that tribunal its authorisation in realizing
or maintaining the rights and obligations belonging to the rela*
tion created by the foreign law. If the state to which the
tribunal belongs had not indicated its approval of this customary
action of states or nations, the court or tribunal would have no
power, from the practice here stated, to maintain the effects of
foreign laws : whatever view it might take of the demands of
international comity, and the prospect of reciprocal advantage.
This indication is found in the customary law of such state;
which, as has been shown in the first chapter, § 36, recognizes
other civilized states or nations as the legitimate expositors of
natural reason, and requires its tribunals to recognize a univer-
sal jurisprudence, a historical lam of nations, ascertained from
the practice of all civilized nations. The motives for that prac-
tice are immaterial. It is the customary law of the land, de-
rived from the legislative and juridical practice of nations,
having an international effect, which the tribunal applies under
this rule ; not the considerations of duty or of advantage which
may be supposed to operate on states and nations in regulating
their conduct by any code of law, so called.

§83. M. Fcelix,in his Droit International Prive, ch. iii.,
Principes Fondamentanx, note, professes entire concurrence
with Judge Story's view of the principle of comity. " La doc-
trine que nous exposons dans ce chapitre est celie de M. Story;
nous I'adoptons completement." And he exprebsly vindicates,
the doctrine of a comity of nations — international comity appli-
cable by the tribunals ; that is, makes the question — what does
comity require 8 a question for courts of law to decide. In §11,
his language is — " Les legislateura, les euthorites publiques, les
tribunaux at les autenrs, en admettant l'application des lois
etrangeres, se diligent non pas d'apres un devoir de necet£ite,
d'apres une obligation dont l'execution pent etre exigee, mais
uniquement d'apres des considerations de utilite et de conve-
nance reciproque entre les nations (ex comitate gentium, ob re-
ciprocam utilitatem,") &c. — going on to describe the motives
which may and do operate on sovereign states, in allowing a
foreign law to operate : but making no distinction between the
functions of the judge and the legislator, and as appears in the

DCFOBTiJrOK OF THE DISTINCTION.

citation here given, even patting administrative officers — lea
cmtoriUa pubUques^ and the publicists--^* autews, all in the
same juridical position.

In another part of the same section, M. Fcelix speaks of the
force of the practice of nations in this respect as a juridical
authority ; meaning, apparently, that this practice is the warrant
for the admission or application of foreign laws by judicial
tribunals. — " Mais ce qu'il y a de certain c'est qu'anjourd'hui
toutes les nations ont adopts mprmcipe, l'application dans leurs
territoires des lois 6trangeres, sauf toutefois les restrictions
exigees par le droit de souverainete et de l'interet de leur propres
sujets." And near the end of the chapter — "L'usago des.
nations a etabli, pour leur (wantage ricvproque, et dans cer-
tains cas, Peffet des lois 6trangeres without, however,
stating explicitly whether the tribunal is bound to regulate its
decisions by this "usage des nations," or is to consider comity
and "avantage reciproque," before making the allowance.

§ 84. If it were simply stated that the custom of nations
having been oomiter — that is, either in a way which showd
comity and good will, or prompted by comity and the hope of
reciprocal advantage, to require their judicial tribunals to main-
tain the relations created by foreign laws when not contrary to
the rule of right established by the local law, or, in the lan-
guage of Huber — " quatenus nihil potestati et juri altering
imperantis aut ejusdem civium prsejudicetur ; " or, in the lan-
guage of M. Fcelix — "sauf toutefois les restrictions exig6es par
le droit de souverainete' et de l'inter&t de leur propres sujets," —
therefore the tribunals of any one nation are bound to carry out
or maintain the relations created by foreign laws, there would
be no practical objection to the allegation that the political
cause of that admission is the good will of the nation and the
prospect of reciprocal benefit ; and there would be very little
practical utility in the attempt which has here been made to
discriminate the true theory of ike judicial recognition of foreign
laws. The question before the tribunal would, under either
view, practically be decided by the same inquiry — that is,
whether the relation created by the foreign law is contrary to
the rule of right — poiestaii et juri contained in the local law, as

Alf OUTER KBBOB — ITS TKWQEKOT.

before explained. Bat it is evident that the effect of basing
the historical fact of this customary judicial recognition upon
comity has been to induce judges to assume the part of diplo-
matists, acting for the state or nation in its integral political
personality, and to decide matters of private right (the rights
and obligations of private persons) by political considerations.
And there is much in the writings of Story, Fcelix, and others,
to sanction this practice.

This tendency, which is no where more apparent than in the
juridical literature of the United States, has in a great degree
been caused by the supposed necessity of a judicial protest
against another misconception, entertained by some few writers
on these questions, who hold that a state may be bound (as if by
positive law) to admit foreign laws to operate within its territory,
if not actually injurious to its political sovereignty. Story,
Conf. of L. § 33, observes, " It has been thought by some jurists
that the term ' comity * is not sufficiently expressive of the obli-
gation of nations to give effect to foreign laws when they are not
prejudicial to their own rights and interests. And it has been
suggested that the doctrine rests on a deeper foundation ; that it
is not so much a matter of comity, or courtesy, as a matter of
paramount moral duly," (citing Livermore : Dissertation on the
contrariety of laws, p. 26 to p. 30.) But these jurists also make
this supposed duty of the state the basis of the action of the tri-
bunal. Now, the duty of the state is evidently beyond the
action of its own judicial officers. The admission, to whatever
degree it may be sanctioned by the state, may have resulted
from motives of comity, or from a sense of duty. But if comity,
or any thing else, is conceived of as a necessarily binding mea-
sure of the degree in which this judicial admission shall take
place, then a rule, operating as positive law, is assumed to have
determined the juridical action of the state, when, in jurispru-
dence— the science of what law is, the action of the state is the
only possible criterion of the rule. The comity of nations, ope-
rating as law within any one national jurisdiction, will be only
whatever the possessor of supreme legislative power therein
allows for comity, or by comity.

Jurists, who, on the other hand, have asserted that absolute

ERROR 09 8TTBJK0TTVB VIKWS.

independence of the state in this matter which is a necessary con-
sequence of fundamental principles, have apparently been unable
to distinguish between the different positions of the state (acting
trader a law of the imperfect kind) and the tribunal (authorised
only to apply positive law) : not remembering that though the
atate 1b not bound to admit the foreign law, yet ite tribunals may
,be bound to admit it or recognize its effects ; though they are
bound to do so, and can do so, only so far as the state may have
indicated its will on the point. Therefore, in proposing to enforce
that rule which the state has sanctioned as right, the tribunals
have conceived themselves as determining also what the state
ought to sanction as right Or, to resort to the language of Geiv
man (Kantian) metaphysics, the law they have applied in these
cases has been a subjective and not an objective conception of the
rule of action.1

1 Waeohtar, on the Collision of the private laws of different Stele*, (Archjv. t d.
Civil. Pr. B. 24, p. 288.) Trend.

"It is agreed on ell hands, end our laws unmlstakeably declare, that the law de-
rive* its validity from itself, from the moment of ite being fonnallj promulgated, uncon-
ditionally, and without reference to the tubjectwe opinion of individual members of the
state in respect to ita intrinsic merit and aeoordance with justice ; that the reqniiition
of a constitutional form and the limits of a constitutional power, alone determine its
validity, and not the nature of a law according to nibjective theories. The judge is
simply the instrument of legislative will, declared in a certain \ formally legal manner,
(the common will,,. to which each individual will in the state must be unconditionally
subject) and this law.it is the province of the judge to apply, without considering
whether it is just or unjust, suitable or unsuitable, conformable or not oonformable, In
his mbjedwe conception, to the nature of a law; and the citizen is equally bound to
submit himself to this general will If, for example, the mw of a eta to expressly de-
termines according to which rule a relation created in a foreign country is to be adju-
dicated— whether by the local law of the/orum, or by that of the foreign country, tho
judge in that state is bound to decide accordingly ; even if such adjudication may in
itself be called inconvenient, unjust, or contrary to the natural requisitions of a law.
* * * * The possessor of legislative power, in making a statutory determination
of tho question, will regard it from two severalpoints of view; considering on the one
side — the interests of the local juridical system, the exclusion therefrom ot' accordant
elements and the maintenance of injunctions based on high purposes and the requisites
of a jural society, and of the dignity' and independence of its juridical power on the
other side— the considerations of international justice, which here become operative, and
which demand the recognition of the legal capacity of the foreigner as well as that of the
citicen, and also, in many instances, make the allowance of foreign law* advisable.-—
But though these considerations of utility, reasonableness, friendly understanding, natu-
ral law and the like may, and in a certain degree ought to influence the legislator,
especially in forming international compacts respecting these questions, these are not
matters for a judicial officer to take into consideration. He has only to inquire what
the juridical will of his sovereign or the positive law of his own state- may. have deter-
mined on these points," And, in a note, " The different positions of the judicial officer
and of the legislator are too often confounded, in treating of this topic of " jurispru-
dence."

Savigny, Heut. R. R., B. 8, c 1, § 848, citing this passage from Waechter, thinks

§ 85. But, irrespectively of the method or principle by wlueh
the judicial tribunal will have authority, in any case, to recognise
and maintain relations created by foreign laws, — before the
maxim as herein before stated, (§ 'ff ,) or aa stated by Huber and
Story, can be practically applied by a tribunal supposed to have
jurisdiction of an alien, that tribunal must be furnished with a
test by which to know in what cases the foreign law, if allowed
to take effect, would conflict with the poiestas and ^W—"the
power or rights of its own government and its citizens." Or,
according to the translation herein before given, (§ 80) of the
word jus and the a> jw4mvl view taken of the foundation for
the international admission of foreign laws, that tribunal,

—admitting the presumption to be in favor of the>> admission —
must still compare the foreign law with the Treasure of right con-
tained in the local law, — its own municipal or internal law. In
this connexion the jpotestas and jus of a state may be taken to
be equivalent to its public and private municipal law, which are
necessarily taken in its own courts to be jv/ral roles, — rales ac-
coi lant with natural right or natural reason.

§ 86. Laws, which differ in their national source and char-
acter, may be called the same or similar laws, when each, within
its own jurisdiction, produces similar correlative rights and ob-
ligations between persons in similar circumstances of natural
condition. Any two such laws, must, in that case, be taken by
the tribunals of the respective authors of each to be equally
correspondent with natural reason ; or, to change the form of
expression, rights and obligations so produced by one national
law, must be taken, in the jurisdiction of the other national
law, to be correspondent with natural reason. And if the
persons and things who are the subjects and objects of these
rights and obligations pass from the jurisdiction of one law to
that of another, the; foreign law may be taken, by the tri-
bunals of the latter, to be consistent with the potestas and jus of
the latter— following the. terms of Huber's maxim : and the

it too restrictive of the judicial function : Savigny attributing a greater relative im-
portance to judicial tribunals as a source of law. But compare Foslix : Dr. Internet.
Pr., Pref. v. vi. n, on the importance in jorietical literature of distinguishing between
a priori and a posteriori doctrines.

80 DIFFEEKBTOM ttf EXTENT OF THE NATIOITAL LAW.

foreign law be allowed international recognition and support ;
having then, in fact, a personal extent in a new forum.1

§ 87. Every national law is necessarily taken, by its own
author and tribunals, to be rightful in the circumstances and for
the persons to whom it is applied. But even if laws of dif-
ferent national origin should, each in its own jurisdiction, create
different relations from those which would be created by the
other, in the jurisdiction of that other, in reference to similar
persons and things, (in which case the two laws could not be
said to agree in a judgment of the dictates of natural reason),
yet it does not follow of necessity that they are opposed in such
judgment, or that the tribunals of either jurisdiction should
deny a jural character to the laws of the other, operating in the
jurisdiction of that other, or that either should refuse to ac-
knowledge any of the effects and consequences of the law of
that other, in the relations of persons formerly subject thereto,
who might afterwards pass under or be found within its own
jurisdiction. For though every principle entering into the muni-
cipal (internal) law of a state must be taken by its tribunals to be a
jural law, and accordant with natural reason, it is, in the nature of
the case, first promulgated as a law for persons and things within
its several territorial jurisdiction/ But when any distinction of
persons as alien or domiciled is made then the question of the
extent of the principles of the local (internal) law, is to be deter-
mined judicially; looking to the intention of the supreme power.
For a principle of the local law may be intended to apply to
one or more specified persons, or to a class of persons, or to all
persons indifferently, within the jurisdiction. It may be intended
to affect the relations of those persons only who are domiciled
or native subjects, or of those only who are aliens to the juris-
diction, or it may apply to all human beings generally, as the
objects and agents of that action in a civil state which the law

1 See cmU, §| 58-66.

1 44 For there ate in nature certain fountain* of justice whence ell civil law* are.de-
riyed, but as stream* ; cs£ like as waters do take tinctures and tastes from the soil
through which they ran, so do civil laws vary according to the regions and govern-
ments where the* are planted, though they proceed from the same fountain." Bacon
Adr. Learn. fi.IL e 8. Works, vol L 288. Am. Ed.
Montesquieu : Spirit of Laws, Book I, c 8. •
Scaocia : Troctattts de Commer., Quiest vn. par. n. ampl. 19, § 19.

THE JUDICIAL RULE 8TATKD.

contemplates. Tho judicial officer, while enforcing the local
law as tho mle of right, must apply it according to the limita-
tions and with the extent intended by the supreme sovereign .
will. And in the jurisprudence of every state its own laws may
be distinguished as being jural, either by being merely expedi-
ent and suitable to circumstances of position and character
peculiar to itself, or jural by enforcing obligations founded on
the nature of man and co-extensive with human existence;
(though this distinction is the growth of an advanced stage of
jurisprudence, as will be shown.) In other words, although the
municipal (internal) law of any nation is always to be taken as
a rule of right for its own national domain, it does not follow
that it has been asserted by its author for a rule of universal
obligation, or as the rule which ought to be everywhere applied
to persons and things in like circumstances ; in such a sense that
the tribunals of that nation are bound to consider every rule
contrary to natural reason which should produce effects unknown
to the local law.

§ 88. When, therefore, we pass beyond that portion of inter-
national law which consists in necessary axiomatic principles,
recognized in the very existence of states or nations (and which
includes the three axiomatic maxims herein before given, § 68,
67,) to that portion which becomes a rule of action and a law in
the primary sense for judicial tribunals, in making that interna-
tional recognition and allowance of foreign laws which is only
supposed in the third of those maxims, that part which, though
dependent for its force as law upon the autonomous and uncon-
trolled action of single states, and therefore, not a law in the
strict sense for the state, is yet a law in the strict sense for the
judicial tribunal and for private persons — private international
law, included in the national law of the forum — the first, or sim-
plest general principle which may be stated for such law, seems
to be this : — That relations of persons and their constituent rights
and obligations, existing under the law and jurisdiction of one
state are to be judicially admitted to international recognition
{that is, be allowed to have legal effect) within the jurisdiction <qf
other states, when they are not inconsistent with those prinevpfot
which in the jurisdiction of the latter arejvridioaUy known as

m JlUthobity aa poarrmo law.

pnhoiples of universal personal application and extent, or which
ifolddal lata applisa to. all natural persons within its power and
territorial jurisdiction* lAtod this will include the toet for the
admission of foreign laws, which is implied in Huber's third
ncuttim-~the power and law of rights— potestas and jus, of the
nation ; or that given by Story's version of the same as the limits
of boinity,— -"the. known policy and interest" of the state in
which is supposed to be the forum of jurisdiction. For the power
{sovereignty) and jural character of a state lie at the foundation
of its. whole law, public or private, constituting the objects of its
existence as a part of political society, which are considered by
it in the minutest application of law, and must be judicially re-
garded as the policy and interest of every state, which it main-
loins wherever it acta as a source of lawj or which it applies to
all persons within its jurisdiction.

This principle so stated may be regarded as law, — in the
sense of a rule of action which is applicable by judicial tribu-
nals ; though, in the nature of the case, it cannot acquire the
force of a rule to which the state is subject^ as under a law in
th£ strict arid proper -sense of the word. And though, under
this rule, the foreign law may be said . to produce legal effects,
ihe authority which: gives it its coercive force over private per-
sons and; the legislative will which directs the tribunal to apply
it is always that of the, nation having supreme power in the
forum. Therefore, the law which causes the legal effect to be
realized or actualized is not the law of the foreign country, but
that of the forum.' The law of the foreign country does not
operate in the forum, but it is only a fact or circumstance upon
which 'the ; Ideal juridical power operates; and therefore the
foreign law as always to be proved like any other feet/
- : § 89. :'Bixt since ^ere may be recognized exceptions to the
extent. of every general rule, there may, in any one jurisdiction,
be a person or persons whose relations to other persons and to

'■ ' s • V \ , ■, ■ " " "

1 The wle, grwn hr Sohsffner, 8 23, for Ihe most general one, may be translated,
" Each legal relation if to be adjudicated according to the law of the itate therein
It hM become existent (wo e« e*irtent geworden ist) And with thia, regard mrat be
|^tothoM kw«*tuMe^lM>fe d««%a iBtocaaw a legal relation to be recognised as
•nob only when it accords with those laws." , .

• See«*>, §67, end note. ' See snfe, § 74.

LIMITS IN ATTRIBUTION OF UNIVERSALITY.

things are, by force of certain local circumstances, regarded by
the s^Dromo power as being specially exempt from the opera-
tion of rules or principles to which, irrespectively of those local
circumstances, a universal personal extent is attributed ; and in
this case, notwithstanding the actual exception, under the law
of tho forum, (the internal law,) to the universal extent of these
rules or principles, they must still, in their otherwise universal
extent, be judicially applied to limit the effects of foreign laws
in the manner above indicated.

§ 90. But if a relation may thus have a jural existence in a
certain national jurisdiction, though contrary to principles hav-
ing an otherwise universal personal extent, there might, in other
countries, be legal relations which, though contrary to the same
principles, should be equally accordant with natural reason in
and for the local circumstances of such other countries. And when
the persons who sustained rights and obligations in those rela-
tions have passed into other dominions, in which the universal
personal extent of a principle having a contrary effect will pre-
vent their continuance, still the action arising out of those rela-
tions may be regarded as having been lawful in their original
forum — the forum domicilii — though in the new forum — the
forum of jtmsdicHon, they can no longer continue.

§ 91. The effect of laws having this universal extent must
be, like that of every other, to create relations and to attribute
rights and their correlative duties, (§22.) The rights so attri-
buted by these laws must be in either individual (absolute) or
relative. But rights ordinarily known as relative are the attri-
butes of particular persons, in specific relations to other par-
ticular persons, (§ 40. ) A legal capacity for those rights, which
is in itself, in some sense, an individual right, may be univer-
sally attributed ; though, in the nature of the case, the same
relative rights cannot be attributed to all. individual or abso-
lute rights, however, which exist in relations of one individual
to all persons in the community in which such individual may
be found, may be attributed to all persons constituting that com-
munity. The laws, therefore, which, in having universal per-
sonal extent, control the international admission of the effects
of foreign laws in reference to the status of private persons, will

CRITERIA OF THK KXTKNT OF Z VWB.

principally be such as attribute some individual right with its
correspondent obligations.

§ 92. This international comparison of foreign laws with
the local or municipal law and a universally applicable rule
of right contained therein, must always be, in its earliest oc-
currence, an autonomic discrimination on the part of the tribu-
nal. That is, supposing such international question to have
arisen for the first time, it would depend upon the unsupported
moral sense — the conscientious judgment of the tribunal, {arbir
tri/um borri viri,) in the absence of any positive legislation : every
such judgment becoming, of course, a precedent and a law for
succeeding tribunals, acting under the same national authority ; .
by which, in course of time, an ascertained customary private
international law arises, in and for that jurisdiction.

This juridical act of admitting or rejecting the effects of for-
eign laws, on the ground of their being repugnant or otherwise
to principles of the local law, which are applicable to all per-
sons in certain circumstances of natural condition, is, strictly
speaking, the act of judicial tribunals only. It is, however, in
a certain, degree, conceivable as being the act of a legislator
also. (See post, § 102.)

§ 93. But, in whatever way manifested, this juridical action,
when it has taken place on the part of various nations, forms
one of those criteria by which the tribunals of any one state
may determine what principles, or rules, shall be taken to be
rightful, or rules accordant with natural reason, and applicable
as the presumptive will of the state under whose authority they
act ; and also to determine the personal extent of those rules :
that is, in the absence of positive legislation, or of precedents
of local origin, (ante, § 33.) And it is to be observed that, in
making this discrimination of laws which shall have a per-
sonal extent and international recognition in some other juris-
diction than that in which they were first enforced, the practice
of other nations in similar cases has a more original and in-
trinsic force, as an i/niernational precedent, (or a precedent of
private international law,) for the tribunals of any one state,
than foreign law and jurisprudence has, as an exposition of
right in cases falling under the department of mwawvpal (inter-

ORIOIK OF A UKTVEBAAL JUKZBPBtTDXKOlC.

nal) law. Because it is only by supposing the existence of in-
dependent jurisdictions, and a jndgme* t of the tribunals«of one,
in allowing or disallowing the effects of another's laws, that
there can be any exemplification of a judgment, by the recog-
nized interpreters of the will of states, deciding what effects
produced by the laws of one state are incompatible with the
power and law of right — potestas et jus — of another, and what
principles of the law of particular states are to be taken to have
universal personal extent under the jurisdiction of those states,
or constant application to all persons in certain circumstances
of natural condition.

§ 94. But in the continuous repetition of similar judgments
by tho tribunals and legislators of different nations through a
long period of time, and the mutual reference made by them
to such judgments; together with the customarily received
comments of private writers of various nations upon the same,
based upon the idea that such judgments contain an exposition
of natural reason, some principles, from being constantly recog-
nized by many different nations, will acquire, in the jurispru-
dence of any one nation, the known character of universal prin-
ciples, or principles of a universal jurisprudence. For though,
taking law in the strict sense of the word, jurisprudence is the
science of the law of some one country or nation, (§18,) yet, by
distinguishing (national) law into municipal (internal) and in-
ternational, and by the application of the latter to the relations
of persons formerly subject to foreign jurisdictions, a portion of
the jurisprudence of each country will be identified with the
science of a universal law, or Imo of nations. This, though
dependent on the supreme national power for its continuance,
or coercive effect within the jurisdiction of that nation, may
yet, by its tribunals, be considered principles presumed to have
universal territorial extent and obligation, and to have legal
force distinct from those rules or laws which the state may pro-
mulgate as originating in its own separate juridical or legislative
power : which last, though equally jural, — or equally intended
to conform to natural reason, — are promulgated as law for one
dominion only, or, rather, for persons as being simply the
inhabitants of its own jurisdiction, vithout reference to the

hkff OF NATIONS — JTUB GENTIUM.

existenoe of other similar jurisdictions ; and they have, conse-
quently, a peculiar local or territorial character ; as have also
the relations created by those laws.

The legislative (juridical) authority by which any princi-
ples, having this universal character in the history of jurispru-
dence, are recognized by the tribunal as being accordant with
natural reason, and allowed to determine the relations of alien
persons, is, indeed, that of the state within whose limits such
aliens may be found, and that recognition is ultimately dependent
on the political possessor of the Bupremo civil power. But this
is not inconsistent with the assertion, that in the progress of
jurisprudence among different nations, a portion of the law of .
each may be said to result from the general promulgation of
all nations, the effects of which its judicial tribunals will recog-
nize without reference to their own national sovereign as the
source or origin of law, though such effects are still known to
depend in each jurisdiction upon the will of the supreme power,
and are recognized and accepted with the intention of carrying
out that will.1 Or, making use of the language of the Institutes,
it may be said, that the interpretation of law as a rule of right,
and one founded in natural reason, — quod natural is ratio inter
omnes homines constituit — has been, as matter of history, so
uniform in respect to some relations of persons, and has been
so frequently and so harmoniously applied as private inter-
national law, that it may be known as that law which inter
omnes populos perseque custoditur: — a jus gentium, — a law
among nations, or universal law ; the effects of which may be

1 Savigny : Heut Rom. R., B. i., c. 3, § 22. Tr. : " In the commencement of
their intercourse with the neighboring foreign states it became necessary for the
Roman tribunals to recognize, together with their own national law, a law applicable
to foreigners ; and not merely the law of some one foreign state, but that which was
common to a number of such stales. By the extension of the Roman dominion, and
the greater diversity of their intercourse with foreigners, their field of view in this re-
spect became proportionately enlarged, and in this manner they gradually conceived
the more abstract idea of a law common to the Romans together with all nations, or
all mankind. It is evident that the Romans, in founding this conception on observa-
tion, could not but have seen that their induction was imperfect, because they did not
know every nation, and it is certain that they never were carelul to ascertain whether
their jus gentium actually obtained in the laws of all those that they did know. Still
it was natural, after recognizing this comparative universality, to go back to its source,
and this they found to be, universally, in naturalis ratio ; i. e., the consciousness, im-
planted in the common nature of man, of a moral rule."

See also, Hist, of Rom. L. in the Middle Age, by the same author ; Cathcart's Tr.,

APPLICATION OF TIIS JUB QWfTUJU*

particularly enumerated, aB is done in the Institutes, Lib. L,
tit. ii., § 2. Ex hoc jure gentium omnes peene contractus* intro-
ducti sunt, ut emtio, venditio, locatio, condnctio, soqietas, do-,
positum, mutuum et alii innumerabiles. And in the jurispru-
dence of every nation the law may be distinguished as being
either rules peculiar to itself, jus civile or prqprium, or else rules,
common to it with the rest of mankind, jus gentium; each of
which divisions of the law (national law, — jus civile in that
sense) may be applied as international or as municipal (inter*,
nal) law : that is, may be applied either to alien or to domiciled
subjects. The term "law of nations" has,, in modern jurispru-
dence, been generally taken to mean public international law;
only : but the original use of the term, in Roman jurisprudence,
as will be hereinafter more fully shown, (ch. iv.,) was that of a
private law universally recognized.1 ,.. .

§95. And though these principles of a so called universal
jurisprudence have that character from the historical fact that the
relations created by them have been found in force among all
nations, and therefore must be supposed to be already known
effects of the local (internal) law of each single nation,' yet they
may retain their jural character and be judicially recognized and
applied, on the ground of their historical universality, even
when none of the domiciled inhabitants of the forum sustain
such relations under the municipal (internal) law. •

Having once acquired the character of jural rules, in the ju-
risprudence of each state, by an a posteriori or inductive method,
— i. e. from the fact of their general recognition, — they will
thereafter obtain and operate as a priori principles,'— or prin'ci-.
pies from which consequences are to be drawn deductively^, and
will be judicially recognized, by the tribunals of any one nation,
because having this character.'

§ 96. Therefore when persons who sustain legal relations
under the legislative or juridical authority of some state of dom-

ch. L, § 1 ; and in Fcolix : Dr. Ink Pr., § 122, a recognition of this feature of the
Roman law ; contrasting it with a remarkable difference in this respect, in the modern
French international jurisprudence,
1 Compare ante, § 34, and notes.

* Quod civile non idem contiimo gentium ; quod autem gentium idem civile esse de-
Det Cicero de Off m. 17. Gains, ap. Dig. Lib. L Tit i § 9.
1 Peckius, de Pegulis Juris, 1.

JUS GENTIUM IN THE LOCAL LAW.

icil, appeal* as aliens within any other national jurisdiction,
those felationu, and the righto and obligations in which they con-
sist, will be recognized, allowed, sustained or maintained, by the
judicial tribunals within that jurisdiction, when such anterior
relations were founded on principles which have this universal
character in the history of jurisprudence ; without instituting de
novo a comparison of those relations with the effects of the local
(internal) law : and they will be internationally supported as
consistent with the power, law and right — potestate et jure — of
the state having jurisdiction ; until positively disallowed by the
will of the supreme national power, to be ascertained by some
known judicial method.' In fact when the anterior relations of •
aliens are thus continued by the recognition of the historical
universality of the legal rule from which they arise, that recog-
nition is an application of international private law only from
the character or position of the persons to whom those relations
are ascribed. But there is in this case no conflict between the
laws of the two forums or jurisdictions, nor any occasion to sup-
pose the operation of international comity, — the comity of the
nation. For in this case, by the recognition of the universal
prevalence of these principles, the relations so sustained may be
said to derive their support directly from the municipal (na-
tional) law of the forum — the same law, in its legislative source
and authority, as that which determines the relations of dom-
iciled inhabitants ; for being principles of a universal jurispru-
dence they must be supposed to form a part of that law.9 But

1 Thus in Scnmshire vs. Scrim shire, 2 Hagg. Cons. Rep. p. 421, it is said, "As there
is no positive law of this country which prohibits the court from taking notice of the
jut gentium."

Greenl. Evil L § 5. "In like manner the law of nations and the general customs
and usages of merchants, as well as the general law and customs of our own country,
are recognizod without proof by the courts of all civilized nations." (Citing 2 Ld.
Raymond, 1542, Heineccius ad Pand. L 22, tit. 3, sec. 119. 1 Bl. Comm. 75, 76, 85.)
— Here the same universal jurisprudence seems intended, though the term "law of
nations" is probably conceived of as being public rather than private law.

* Scrimshire vs. Scrimshire, 2 Hagg. Consistory B. p. 417. " The jus gentium is
the law of every country ; every country takes notice of it, and this court, observing
that law in determining upon this case, cannot be- said to determine Englisn rights by
the law of France, but by the law of England, of which the jut gentium is a part" —
Here the term jut gentium — law of nations, is used in its original signification — that of
private law, — a law determining the relations of private persons, which is known by its
universal reception. There are many other cases in which the law of nations is said to
be part of the law of England, when, by that term, public international law — the
rule acting on nations as political persons is intended: BL Comm. I. p. 273,

ITS AUTHORITY — HOW LIMITED.

since it is only by the recognition of some persons as aliens, or as
having before sustained relations which did not, in the first
instance, exist under the legislative authority of the country to
which they are alien, that such discrimination can be made, it is
only, or primarily at least only, in international law that this
universal law or jurisprudence can be recognized.1

When any principles of universal jurisprudence have been
thus recognized and applied, in the international law of any
particular jurisdiction, to determine the condition of alien per-
sons, they will also form a part of the municipal (internal)
law of the same jurisdiction, if the alien persons, or those for-
merly subject to the national law of another domicil, acquire a
new domicil in that jurisdiction. Being received as an authori-
, tative exposition of natural reason, with the extent of a personal
law, (§ 27,) they must be held to be equally authoritative to de-
termine the condition of the same persons in ike forum to which
they are transferred whether they retain or lose their former
domicil.

§ 97. But however general that recognition of any rule of
action may have been among tho various states or nations of the
world, it is not a universal law in the sense of being a judicial
rule within the jurisdiction of every state independently of its
own will or consent. The word universal is a term here applied
to a rule or principle in respect of its historical prevalence, and
not in respect to an intrinsic universal authority; its actual
force, before the tribunals of any state, lying only in the judi-

IV. p. 67. Triqnet v. Bath, 3, Burr. 1480. Respub. v. Longchamps, 1, DalL 111. The
admiralty Reports, pamm ; but this latter use is not proper; except in the considera-
tion that public international law always involves, to a certain extent, the relations
of private persons.

1 Thus the law of maritime commerce prevailing in some one country consists in s
great degree in the law of nations, or universal jurisprudence ; because it must, in a
great measure, be formed by the judicial application of private international law ; or,
in other words, because in point of fact, those relations of private persons which are
known in maritime commerce, generally involve actions which must take place in
some other jurisdiction than that in which the correlative rights and obligations arising
out of those relations have been enforced or are to be enforced,

Kaimes, Princip. of Eq. B. III. c. 8. " Thus in the Kingdom of Scotland, all foreign
matters were formerly heard and decided on by the King in council ; in later times a
special jurisdiction has been vested for that purpose in the court of Sessions, which de-
cides all such causes on general principles of Equity."

Gains : Com. I. § 92, calls the jus gentium : — " Leges moresque peregrinornm ; * sect
also Reddie : Hist. View of the Law of marit Com. p. 82, 118. Waeehter, Arch. £ d.
Civil. Prax, Bd. 24, p. 245-6. Smith's Diet Antiq. we. — Praetor.

90 DISTINCTION JJX ▲TTBIBUTIBrO UNIVKE8ALITY.

cial presumption that such principle is accordant with natnral
reason, and that the state, therefore, intends to enforce it as law.1

If the state, or those who hold the supreme power thereof,
have promulgated any principlec with a universal personal ex-
tent, i. e. an application to all natural persons within its juris-
diction, which are contrary to the principles of the law histori-
cally known as universal, or which produce opposite effects,
the tribunal is bound to apply those principles of its own local
law, as a test of the accordance of foreign laws with natural
reason, without regard to the principles of universal jurispru-
dence— the law of nations — thus historically known."

§ 98. It must be carefully noted that, in this inquiry into'
the principles regulating the admission or the exclusion of the
effect of foreign laws, the term universal is applied to legal
principles in reference to two entirely distinct incidents of their
existence. In the one case the qualitative term universal is
used with reference to the anterior reception of a legal princi-
ple among all nations, or at least all nations that are considered,
by the state under which the tribunal acts, as sufficiently en-
lightened to be authoritative exponents of natural reason (§ 36).
In the other case the same term is employed with reference to
the application of a legal principle to all individuals within the
power or jurisdiction of some one state, nation, or possessor of

1 The historical iaw of nations, the universal jurisprudence thus manifested in in-
ternational law, is therefore the natnral. law, so far as it can be recognized in jurispru-
dence, (ante § 34-36). The following passage from Long's Discourses, p. 62, is a
modification from that before given from Savigny ; but it is here inserted as showing
the modern apprehension of the jus gentium :

" The observation of those roles of law in their own system which were of a gen-
eral character and not peculiarly Roman, and the comparison of them with like rules
of law which obtained in other states, may have led the Romans to a consideration
of those universal principles which prevail in the laws of all nationa In matters in dis-
pute between aliens and Romans, they must also have been led to a practical acquaint-
ance with the law of foreign states, and to the reception of such law, when it was re-
commended by reasons of utility, and when it was not opposed to the positive rules of
their own Jus Civile. Ab the Romans were a practical, and not a theoretical, people, it
seems that it was in this way, by their intercourse with other people, that they were
led to the assumption or the acceptance of the notion of rules of law more general
than the strict Roman rules. This was the probable origin of the notion of a Jus Gen-
tium, or Jus Naturale or natural law, which two terms are perfectly equivalent in the
Roman writers. The term Jus Gentium has a reference to the mode in which the no-
tion originated, that is, from the intercourse with other states; the Jus Naturale if the
term more applicable to the induction, when made more complete by further acquaint-
ance with the institutions of other people, and by the development of more universal
notions.''

* See art*, § 77, and § 88.

LAW WITH UNIVERSAL PERSONAL EXTENT.

sovereign national power, from whom the principle derives its
coercive force. For while it is ev ident that no state has of itself
any power to establish a new principle in universal jurispnir
dence — the historical law of nations, (i. e., the law whose uni-
versality is a historical fact,) which, from having that character,
is receivable by the tribunals of any one country as being pre-
sumptively accordant with natural reason every where, yet,
within its own territory and jurisdiction, it may attribute to any
principle the character of a law which is to be applied wwversally,
— that is, applied by its own judicial tribunals to all persons,
within its own jurisdiction, in certain circumstances of natural
condition, or as one founded on the nature of individual men
forming the constituents of society ; whether it be consonant or
not with the code of universal law, or the law of nations, histor-
ically known.

§ 99. Although, therefore, in the course of the international
recognition of the effects of foreign laws, and of the general
progress of jurisprudence among civilized nations, some rela-
tions, rights and obligations of alien persons, or more generally,
— of persons before subject to other jurisdictions, — are, from
their general prevalence among nations, as proved by history,
to be judicially allowed therein, as accordant with natural
reason, or as jural relations, — yet that recognition will always
be limited by whatever principles in the municipal (internal)
law of the forum of jurisdiction, may have a universal personal
extent, or apply to all persona under that jurisdiction in certain
circumstances of natural condition ; being promulgated by the
supreme source of the local law as principles which ought to
apply to all natural persons in such circumstances.

It being here asserted that the judicial recognition and ad-
mission of the effects of foreign laws on a presumptive accord-
ance with natural reason, {ante § 77,) is always limited by the
operation of local laws having universal personal extent, it may
be objected, that this reference to a universal jurisprudence—
the historical law of nations, in the application of private inter-
national law, is of no actual force ; and that is sufficient to say,
that relations existent under foreign laws are always to be judi-
cially maintained, on the principle of comity, (so called,) unless

apparent oaracnoNB.

the local law having universal personal extent produces righta
and obligations inconsistent with those relations. But the va-
lidity of this reference is found in the fact that the personal ex-
tent of laws, — the question whether they are universal or
limited, is ordinarily determined, (as is the far greater part of
all positive law,) by judicial action ; and that this is to be in the
mode in which any rule of law is judicially determined : that
is, from external indices of natural reason already accepted by
the state ; of which universal jurisprudence — the law of nations,
must always be one. And here is shown the genital connection
of universal jurisprudence, or the law of nations, with that
part of the laws of each country which is universally applied,—
has universal personal extent, so far as the legislative or juridi-
cal power of that country extends. For the actual universal
jurisprudence — the historical law of nations — grows out of, or
is discernible by the discrimination, (under private international
law,) of a part of the law of each nation having universal per-
sonal extent, and constituting a standard, in its own courts of
law, of the accordance of foreign laws with natural reason.1

§ 100. It may also be objected that it is a contradiction in
terms to recognize a principle as forming part of the law of na-
tions, or as being a principle of wniversal jurisprudence, and at
the same time to intimate a possibility of its being contravened
by the local law; for if it is not recognized in the local law it is
not universally received ; or is not part of the laws of all nations.
Strictly speaking, this is true. Yet it is evident that the sover-
eign legislative power may contravene principles which before
were universally received, or which in the history of jurispru-
dence have before had the character of a law of nations. But
still these principles will be judicially known to have had
that character, up to the period of such legislative act ; and the
tribunal would still recognize them as being, in the absence of
legislation, the best exponent of the will of the sovereign power.

1 It will be shown, however, in subsequent chapters, that there are cases, incident
to the settlement of new countries, or the establishment of laws in countries which
have not before had a local, territorial, or national law, wherein universal jurisprudence
— the law of/mtioru, becomes practically operative in a more direct manner ; that is,
where it is not merely a judicial means of ascertaining what principles of the local law
**ve universal personal extent.

LAW OF NATIONS — WKKRK TOVTW.

And hero appears the connexion or identity of the law of nations
— universal jurisprudence — with the only natural law, having
the character of a rule of action, which can in the jurispruden i
of any one country be distinguished from the rest of the pos-
itive law.1 Ordinarily, the law of nations of the period is always
incorporated in the customary municipal (national) law of the
fbram,1 operating either as internal or as international law ; and
such is the intimate connection of the two attributions of uni-
versality under a judicial discrimination of the law {ante § 29-
86,) that it would be difficult to separate them. The in*
stances will be few, if any there can be, where an opposition
will occur of the law of nations, judicially cognizable at any par-
ticular period, and a local law having universal personal extent
by judicial recognition only. Though it is plain that the su-
preme legislative power of the state may always disallow the
rules of this universal jurisprudence by promulgating a contrary
rule, having either a limited or a universal personal extent
within its own jurisdiction.*

§ 101. General or universal jurisprudence — the science of
universal law, or the law of nations, so far as it exists distinct
from the common or unwritten law of any one state or nation, is
known by the long continued international comparison of the
laws of various states ; the ascertained harmony of their legisla-
tion, and of the judicial decisions of their tribunals ; collected,
digested and expounded by private jurists, and, in course of
time, forming a distinct repository of legal principles, and, in
some sense, a code of law having universal jurisdiction.*

1 Hence the jus gentium of the Roman jurists was often described by them as being
identical with th? unalterable roles of natural justice. Inst. Lib. i. Tit 2. § 11, and
bence with the Roman rhetorical writers it is often identified with natura,jtu natural*.
See Savigny : Heat. R. R , B. l c. 8, § 22, and compare ante § 19, 84 ; and Austin.
Prov. of Jurisp. p. 190.

* Savigny : Heut. R. R., B. i. c. 8, § 22.

* Wheaton, International law, § 10, thus cites from Hester's Kuropaischer V<5lker-
recht, § 2.

" According to Heffter, one of the most recent and distinguished public jurists of Ger-
many,— 'the law of nations, ju* gentium, in its most ancient and extensive acceptation, a*
established by the Rom an jurisprudence, is a law (Recht) founded upon tile general usage
and tacit consent of nations. This law is applied, not merely to regulate the mutual
relations of states, but also of individuals, so far a" concerns their respective rights and
duties, having every where the same character and the same effect, and the origin and
peculiar form of which are not derived from the positive institution of any particular
state ' According to this writer the jtu gentium consists of two distinct branches.

mnVXBSALTIT— HOW ASCERTAINED.

The distinction of the laws of any one state into rules which
its tribunals are to extend to its domiciled subjects only, (or
rather to persons who have never actually sustained relations
under other laws,) and rules which, as having that universal
personal extent which has been above described, they are to
apply to all natural persons, whether they have or have not sus-
tained relations under other laws, is necessarily connected with
the recognition of such a general or universal jurisprudence —
the science of a lava of nations historically known by the ap-
plication of international law. For the juridical and legisla-
tive action of nationB or political states, is, as before shown,
one of the most authoritative indices of natural reason, and there-
fore a test to determine what principles, in the local or internal
law, may be judicially taken to be the effects of rules which vz<>
not only jural in and for that jurisdiction, but rules so far f ^onded
on the nature of man, in civil society, that they mav oe always
judicially presumed consonant with the natural venditions of
human existence, and therefore of universal personal extent
or application ; 1 and at the same time the ser .irate judgment of

" 1. Human rights in genera], and those private relat' as which sovereign states re-
cognize in respect to individuals, not subject to their av lOrity.

" 2. The direct relations existing between those tto. ■ s» themselves.

" ' In the modern world, this later branch has exc'* lively received the denomination
of law of nations,' Volkerrecht, Droit des Gens, Jos Gentium. It may more properly
be called external public law, to distinguish it from the internal public law of a particu-
lar state. The first part of the ancient jut gentium has become confounded with the
municipal laws of ea^h particular nation, without, at the same time, losing its original
and essential character. This part of die science concerns, exclusively, certain rights
of men in general, and those private relations which are considered as being under the
protection of nations. It has usually been treated of under the denomination of pri-
vate international law.'

" Heffter does not admit the term international law,(droit international,) lately intro-
duced and generally adopted by the most recent writers ; according to him, this term
does not sufficiently express the idea of jus gentium of the Roman jurisconsults. He
considers the law of nations as a law common to all mankind, and which no people can
refuse to acknowledge, and the protection of which may be claimed by all states. He
places the foundation of the law on the incontestable principle that wherever there is a
society, there must be a law obligatory on its members ; and ho thence deduces the
consequence that there must likewise be for the great society of nations an analogous
law." But compare onto $ 87 and the note.

1 Savigny, Vocation for our Age for Legislation and Jurisprudence, Hayward's transL
p. 110.

" On this point the well known prize question of 1788 merits consideration ; which
required a manual in two parts, of which the first was to contain a law of nature ab-
stracted from the code. [Code of Pruuio,"] the second, an abstract of the positive law
heelf. This notion of the law of nature was very superciliously received, and thereby
injustice was done to it ; certainly, under this name, that ought to hare been set forth
which the legislator himself regards as universal, and not of mere poative enactment, in

QUIDS OF JUDICIAL OFFICER.

each nation upon this poi"f cannot, as has been shown, be man-
ifested, except in the application of international law. In the
present advanced state of jurisprudence, among oivilized nations,
when the various effects of international intercourse upon the
relations of private persons have been so frequently made the
subject of judicial and legislative consideration, the customary
laws of commerce and war furnish rules which will be judicially
known as authoritative, in ordinary cases, until new legislation
intervenes. And it is rarely the case that a tribunal can make
an original discrimination of its own municipal (internal) law,
as being either universal or particular in its extent or application
to private persons, when deciding on the international allowance
of the effects of foreign laws.

§ 102. But if it is necessary in any case to decide, — whether
any rule or principle of its own municipal (internal) law is to
bo taken, independently of any exterior authority, or criterion,
to be an assertion of a universal principle — one applying to all
mankind, or, rather — one to be applied to all persons within the
jurisdiction of the 6tate in certain circumstances of natural
condition, irrespectively of their national character or previous
subjection to other laws, — the tribunal can have no other guide
than the rules of ordinary reasoning applied to the mode in
which the municipal (internal) law is asserted or promulgated
in reference to persons and things within its own territorial

his laws ; — an interesting historical problem ; exactly resembling that of the Soman

jus gentium*

As will be shown hereafter, the Romans took the jus gentium, i. e. law known by
its acceptance among all nations, to be the best exposition of the law of nature, re-
garded as a rule of action, or a law in the primary sense of the word. After the estab-
lishment of Christianity in Europe, the Christian Church assumed the possession of a
criterion of the law of nations, in a Revelation of which it was the instrument and ex-
ponent. (Arnoldi Corvini Jus Canonicum, p. 2.) It then denied the authority of the
natural reason of mankind, however concurrent; and in a large part of Europe— per-
haps the whole of Europe, anterior to the reformation, the canon law took the place
of ihojus gentium of the Romans ; that is, became the written code of universal juris-
prudence. !n the canon law digests, natural law is first asserted as that part of the
national la" of each country, quod inter omnes populos perajque cnstoditur : it being
understood that the exposition of this universal natural law is the organized Christian
Church. (T. Bozius, De Jure Status. Romae, 1600.) From this time it would appear
that jus gentium and law of nations, in the modem writers, were put for a law of
which nations are the subjects, which law, as will hereinafter be shown, was, during the
Roman Empire, ideutified with their jus publicum and jus feciale. Compare Decretals
Prima Pars. Distinct. I. c. ix. Phillimore on International Law, p. 24, note. Heineccins,
1787. Jur. Nat. et Gent. L. I. c. L § 21. Butler's Horse Juridical Essay, Canon Law.

BULBS GUIDING TRIBUNALS.

limita. It is probably impossible to state any legal rules con-
trolling that judgment of the tribunal, (arbitrium boni viri,) un-
less equivalent to the following : —

1. If the will of the state, in reference to the action of pri-
vate persons in certain supposed circumstances, is expressed by
direct legislative acta — a form of words, — it may be expressed
in words requiring a universal application, or an extent to all
natural persons within the jurisdiction of the state.

2. Wherever the local internal law, derived either by posi-
tive legislation or by custom — judicial interpretation of natural
reason, attributes rights or duties, to the native or domiciled in-
habitants of its jurisdiction, as the incidents of a relation exist-,
ing independently of the rules of action which it enforces as
positive law ; or, to vary the form of expression, where its rules
of action are predicated upon the recognition of such a relation
as being part of an existing state of things, in which such per-
sons as the constituents of society are found, and as being the
effect of law in the secondary sense of the word, (and therefore
of natural law, in the only sense in which it is, in jurispru-
dence, distinguishable from positive law, ante, §§ 19, 57,) the
source of that local law must be judicially presumed to attribute
the same rights and duties to all persons within thf jurisdiction
or forum, who are in the same circumstances of natural con-
dition.

§ 103. But since the supreme national power of the state
may always, by special legislation, determine the legal relations
of any particular persons within its domain, and legislation,
where it exists, is superior to any indication of the will of the
state judicially derived from any other source, the private inter-
national law of any one country may, in part, consist of rules
applying to aliens (or persons anteriorly subject to other jurisdic-
tions) only, thus derived from positive legislation, modifying,
wherever they extend, the judicial application either of prin-
ciples derived from universal jurisprudence — the historical law
of nations — or of principles of the local law having before had
a universal personal extent within that jurisdiction. So that
private international law, as well as every other branch of posi-

AUTHORITY OF PRIVATE INTERNATIONAL LAW. 97

five law, may be ascribed either to a natural origin, or to a
positive one strictly so called ; — positive legislation.'

§ 104. The international law, in determining under judicial
application the rights and duties of persons not sovereign, or
not holding sovereign power, is thus a part of the private law
prevailing within a national jurisdiction — a rule for persons
and tribunals under that jurisdiction, coexistent with the pri-
vate municipal or internal law therein, and distinct from it in
its object and purpose, but not in its authority or political
source. It being observed that by such a distinction in the ob-
ject of the law, and by the recognition of persons as alien to the
supposed municipal (internal) law, the first part of international
law, (according to the division before given, § 48,) is necessarily
implied ; which part has the character of law in the secondary
sense only, being axiomatic principles connected with the exist-
ence of states and nations, among which ,the three fundamental
maxims before given, (§§ 63, 67, 68,) are in fact comprised.
Thus the international private law, as well as every other branch
of private law, has also the nature of public law, since it deter-
mines, to a certain extent, the mutual relations of states, or the
holders of sovereign power. Though, so/ far as it may do this,
the rights and duties of states, incident to those relations, are
not the effect of law in the same sense as are the rights and
duties of private persons, growing out of those relations; the
international law being, for private persons, a law in the strict
sense of the word, by the authority of the author and source of
that municipal (national) law, to whose jurisdiction they may
be subject ; but, for states or sovereigns, only a law acknowl-
edged by themselves to have moral obligation, — a rule of " posi-
tive morality."* It being only by way of analogy that any
rules of action can be called a law for sovereign nationalities.

§ 105. The settlement, on general principles, of the inter-
national prevalence of laws having different national origins,
forms that topic of jurisprudence which has been denominated
by Huber, Story, and others, "the conflict of laws,"8 Strictly

' Compare mie, §§ 29—86. ' See ante, § 11, and note.

'The phrase colBsio legnm (Herthu) is also employed: with the Germans — Col-
lision der Gesetze. This, like the term comity, has been called by some of them a

OOHFLIOf OF LAWS — PERSONAL JAWB.

speaking, there are no conflicting laws known to any national
jurisdiction. Every rule which has the force of law within any
One such jurisdiction derives its force from one sovereign will,
and conflicts with no other rule having the same force ; what-
ever may have been the process by which it is judicially ascer-
tained or derived, either by following judicial criteria of natural
reason, or the expressed will of the political source of law for
that jurisdiction. This is a consequence of the first two of the
three fundamental maxims before given, or only another mode
of stating them. ■

§106. If the supreme power of the state maintains within
ita own domain any rights or obligations of persons which have #
not attached to those persons under its own territorial or local
law, the law under which those rights and obligations were
created has a particular personal extent, or operates as a per-
sonal law. The private international law is a personal law so far
as it applies only to a certain class of persons, viz. aliens, or
persons who sustain relations which have been created by tibe
law of a foreign jurisdiction, (§53.) Those relations having
been once thus recognized in : international law, the rights and
obligations arising from them will be continued, in the same
territorial jurisdiction, when such aliens become domiciled in-
habitants; unless there is some provision of the local (internal)
law which specifically forbids their attribution to domiciled sub-
jects. And the law which had at first a personal extent, by being
internationally recognized in the case of aliens only, may thus
thereafter become a part of the municipal (internal) law having
a new territorial extent.

§ 107. It should be noted that the principle upon which this
international recognition and continuance is made is not that the
law recognized had a personal character, originally, in the terri-
tory in which it first existed, and established those rights and
obligations which are here supposed to become the subject of

romantic — " abentheurlich " — expression: (Maurenbrecher : Dent. Pr. R., 2. Ausg.,
§ 76, not. 3.) Wsechter, admitting that the term is liable to misconstruction, retains
it because its significance is now well understood. Archiv. f. Civ. Prax. B&, 24, p.
287, n.

As to the case of different laws originating under the same national authority and
not conflicting in this sense; see Bowyer. Univ. Pub. Law, p. 146 — 7. Lindley's
Thibaut, § 37. Saviguy : Heut R. R., B> III., c. I, §§ 346, 347, 848.

PERSONAL STATUTES.

international recognition. All laws determine relations of per-
sons, (ante, §§ 21, 22,) but, according to the view here given,
the personal character of a law thus internationally supported
is a consequence of its international recognition, rather than
the cause of it. It is said by writers on the conflict of laws
quoted by Story, in Confl. of Laws, p. 12, that " personal statutes
are held to be of general obligation and force every where ; "
and these are contrasted with real statutes which are said to
have no ac£ra-territorial force or obligation- By statutes in that
use of the term are not intended legislative enactments, but any
rules of law affecting relations of persons to other persons and
to things : 1 and by personal statutes are generally intended those
rules which have determined the individual rights of private
persons and their capacity for relative rights;* though the diffi-
culty which has been experienced in stating general rules to
distinguish what statutes are real, what personal, and what
mixed, is a proof of the insufficiency of the distinction to deter-
mine their international admission.* It would, perhaps, be
equally correct to say, that statutes which are held to be of
general obligation and force every where are personal statutes.
Their personal character would then be the result of the extent
judicially given to them: and the question is — when will a judi-
cial tribunal be bound to admit them to have this personal ex-
tent ? If the authority for the tribunal, in doing this, is found
in the historical fact of their international recognition, then their
personal extent is, in fact, derived from the customary law of
the forum.4

'Fcelix: Dr. Internal Pr., § 5. "Statutum, contume particuliere* § 19, "Maw
en meme temps le terme ttatvt, sortont dans la matiere da conflict des lois est employe1
dans un sens plus 6tendu, et il est pris oorame synonym e da mot loi." Merlin : Reper-
toire, tU. Autoruation Maritale. Bowyer : Univ. Pab. Law, p 163. 2 Kent Comm.,
p. 456-7.

The term appears originally to have been used to designate a law whose territorial
extent was limited to some several province or district of a national state or kingdom,
and in that contrasted with the common law of the land. Savigny : Heut R. R, B.
IIL, c. i., § 847. Thus in England the particular customary laws of borough English,
and gavelkind (v. 1 Bla. Comm., 74, 75) correspond to thOutt of the French Provinces.

1 Story's Confl. of Laws, § 51, and generally ch. iv. of that work.

1 Reddie's Inq. in Internat. L., pp. 425 — 7. Hertius : De Collision e Legom, § 4,
speaking of real, personal, and mixed statutes : — " verum in iis definiendis minim est
quam sudant doctoros."

4 Schaeffner, § 81. Reddie's Inq. in Internat. L. pp. 477-8. Various European
writers for and against this rw are cited by Wsechter in Archhr. &c., Bd. 24, pp.
255— 261.

100

PREVALENCE OF PERSONAL LAWS.

It would indeed seem, from the writings of the civilians,
that there was a period in the jurisprudence of Continental
Europe when this personal character of a law was regarded as
the juridical basis of the international recognition. And it is
plain that after laws of a certain class or character, — laws affect-
ing a specific class of relations, — have, in a number of instances,
been allowed international recognition on other grounds, the
fact of their having been admitted to have a personal extent
within foreign jurisdictions becomes an evidence, to the tribu-
nals of any one forum, of their jural character; and, by that
international recognition, they may have acquired that historical
universality, which gives them, before the individual judicial
tribunal, a legal existence distinct from the municipal (internal)
law — the law having territorial extent in and for the forum of
jurisdiction. As a class of laws which have received inter-
national recognition, in determining the relations of persons
passing from one territorial jurisdiction to another, they may be
called personal laws, and so distinguished from laws which have
had extent only within certain territorial limits.1

Most of the cases, also, which are cited by writers on this
subject, to show the international recognition of certain laws
denominated personal laws, have arisen between jurisdictions
which, though having distinct local laws, were under one sover-
eignty or supreme political power : wherein, therefore, the laws
of each province would necessarily be regarded as jural by the
tribunals of other provinces under the same sovereign : as in
the different provinces of France, when different local laws pre-
vailed therein, but all deriving their legal force from a single
juridical and legislative authority.*

§ 108. The various legal relations which a person may sus-
tain, in respect to persons and things, together constitute his
legal condition. Some of the rights arising out of those rela-
tions must, in their nature, be local, and can be exercised only

1 Some states, though correctively independent, may still be so connected by a
customary international law, that laws affecting the condition of their respective in-
habitants have a reciprocal recognition in their several tribunal* which is not given by
those tribunals to laws particularly derived from other states. As, for examplo, the
various dominions constituting modern Germany. Comp. Savigny : Hent R. R., B.
QL, c L, § 848. Waschter : Archiv. f. d. Civil. Pr., Bd, 24, p. 252.

* Pothier : Conton.es d* Orleans, ch. L Foalix : Droit Insernat. Pr., p. 24.

STATUS IK INTERNATIONAL LAW.

101

m the jurisdiction wherein they were first created, (ante, § 75.)
But the individual and also the relative rights of a legal person,
if considered without reference to any specific things, may
(irrespectively of their political guarantees,) continue the same
in different national jurisdictions, and be considered continu-
ing incidents of his personal condition. In a vague use of the
words, such rights are often denominated personal rights. When
the personal condition of a private person is spoken of, or a law
is termed a law of condition, the term has reference more es-
pecially to the possession of such rights. In the Roman law,
the rights which might be attributed to private persons were
classified as righ ;s belonging to different conditions, known
under the name of caput or status; some rights being recognized
independently of local laws, as being founded on a universal
jurisprudence or jus gentium, and others being limited to the
inhabitants of certain localities, being ascribed to the jus pro-
prium, or civile, JRomanumS

§ 109. If, then, by the private international law which ob-
tains in some one national jurisdiction, (either from positive
legislation, or by judicial application of natural reason,) some
relations of alien persons may be recognized and enforced there-
in which have existed under the law of a foreign jurisdiction,
it will be remembered, according to what was said of the dis-
tinction between persons and things in the first chapter, that a
legal relation can have that character only by a recognition of
legal persons, and their capacity for legal rights. A contract,
if internationally recognized as the effect of a foreign law, is
necessarily known to the judicial tribunal through a recognition
of a capacity to contract in some natural person. . The law of
the capacity of natural persons for legal relations, as the law of
personal condition or status, must, therefore, enter into the inter-
national recognition of municipal laws supporting contracts.
This capacity of persons is also an object of legal recognition in
other relations of persons which do not have the character of
contracts: some of which relations are recognized in different
national jurisdictions as having a foundation in universal juris-
prudence— the historical law of nations: such as the relations

1 See ante, §§ IS, 19, aod §§ 96, 97.

103

STATUS TJNDXR LAW OP "NATI0NB.

of parent and child, husband and -wife, guardian and ward.
These relations have a legal existence in all national jurisdic-
tions by force of customary law, having th a character of princi-
ples of universal jurisprudence : although different systems of
municipal (internal) law may differ in their recognition of the
inception of those relations, and even differ in their judgment
of the combined rights and obligations arising from them.

The law of legal capacity and personality lies, therefore, at
the foundation of private international law, as well as at that
of the private municipal law, received or existing in any one
nation or state ; and the relations of persona which, together
with distinctions of capacity, constitute freedom or liberty, and
slavery or bondage, may be a topic of international private law,
applied in any national jurisdiction, as well as of the municipal
(internal) private law prevailing therein.1

§ 110. It appears, therefore, that when it is attempted to
apply the general principles, herein before stated, in questions
of the international recognition of those reciprocal rights and
obligations which, in relations between private persons, consti-
tute a condition of freedom or its opposite, the first principle
which will apply is, that —

"When persons appear within any particular national juris-
diction who have, by the law of a previous domicil, held such
rights or sustained such obligations, the conditions of such per-
sons, in respect to those rights and obligations, will be recog-
nized, allowed, sustained, or continued by the judicial tribunals
of the new forum in which they so appear^ (unless legislation
intervene,) when the relations constituting that condition are
founded on principles which have, in the history of jurispru-
dence the character of universality, or of being part of a law
of nations: because, as has been shown, this historical law of
nations — these principles of a universal jurisprudence — may be
judicially received to indicate what relations are consistent with
that measure of justice which the state intends to apply : though
they are always liable to be disallowed, within the jurisdiction
of each state, by its own autonomic legislative and juridical

1 Ante, §§ 25—27, and §§ 53, 51

STATUS UNDER LAW OF KATION8.

108

action, and so, in that jurisdiction, to lose their antecedent au-
thority, as guides for the judicial action of a tribunal.

This law of nations may include principles determining the
possession of either individual rights or of relative rights, and
may thus operate as a law of statu-* or personal condition;
which, by its general recognition among different nations, would
then have a personal extent, both in international and municipal
(internal) law.'

§ 111. By the same authority from which every principle
of this law of nations is derived, i. e., the concurrent juridical
action of different states in international relations, some princi-
ples of this law of nations, determining the condition or status
of private persons, might be exclusively applied to a distinct
class, or definite portion, of mankind : and they would then have
a peculiarly personal extent and character, whether manifested
in international or municipal law : being, in such case, a law
not only of personal condition, but a law of, or for, certain per-
sons only : though being also properly attributed to universal
jurisprudence — the law of nations — from their actual historical
recognition among all nations.*

§ 112. A condition, or status, which should consist simply
in the possession, or non-poesession of individual or absolute
rights, may easily be supposed to continue the same after a
change from one jurisdiction to another. Those elements of
condition which arise out of the relations of family — of hus-
band and wife, of parent and child, of guardian and ward —
may also be the same, in their essential features, after such a
change.

The name of bondage, or servitude, may, as has been stated
in the first chapter, be attributed to various conditions of obli-
gation in private persons, even when the rights correlative to
such obligation are rights of other private persons only ; — not
of the state, or some possessor of political power, (ante, § 47.)
When spoken of as the condition of a legal person, the obliga-
tions in which it consists may exist in reference to persons and
things peculiar to some one place, or jurisdiction ; or, it may be

1 In connection with this sectiol see particularly ante, 88 99, 100.
» See ante, §§ 58, 58.

BTATP8 UNDKK LAW OF NATIONS.

said, the relatione of which it is an incident may have an essen-
tially local character ; being such as could not bo upheld, or
continued, except in and for some jurisdiction by whose local
law they were created. The relation of master and servant,
when consisting in the involuntary absolute servitude of one
person in respect to all objects of action — correlative to the
right of another private person, is one which might continue
the same in any jurisdiction. Whenever the servitude is lim-
ited, and in reference to specific local personalities things or
circumstances, it is a condition which cannot exist in other
states, or national jurisdictions, to which the subject of that con-
dition may be transferred. Such a condition of bondage cannot, -
therefore, become one recognized by universal jurisprudence,
or a law of nations. Absolute servitude of a legal person, in
respect to all objects of action, might, however, be so recognized
under principles having that historical character. Still more
easily may cfaittel slavery be so recognized ; it being a condi-
tion which in every state may be the same ; for a thing — the
object of rights, may be such within any territorial jurisdiction.1

§ 113. Whatever incidents in the personal condition of an
alien should be ascribed to universal jurisprudence, by the tri-
bunals of any, one national jurisdiction, would be sustained, as
under the international private law of the forum, while he
should continue therein in alienage, and would become recog-
nized effects of the municipal {internal) private law on his ac-
quiring a domicil ; taking effect as a personal law, {ante, § 54.)
In other words, the rule of action, to which those incidents
should be ascribed, w ould have like operation in the new forum
upon the condition of the person coining from another jurisdic-
tion, whether he should, or should not acquire a domicil in the
new forum. While considered an alien, the operation of such
rule would be classified under international law ; and upon bis
acquiring a domicil, the same rule would become a recognized
part of the municipal (internal) law. In this case, there would
be no conflict between the laws of different jurisdictions, and no
illustration of the so-called rule of comity, {ante, % 96.)

§ 114. If any incident of the personal condition of the alien

1 Compare §§ 44—47.

LAW OP UNIVERSAL PERSONAX. KXTKNT.

105

is not founded on, or supported by this universal jurisprudent,
or historical law of nations, its support in the forum of juris-
diction is then dependent upon the principle of comity, or that
principle (the reason and nature of which has been before ex-
plained, §§ 76-78,) which gives admission to the effects of for-
eign laws, so far as natural circumstances of condition admit
therein of the continuous existence of relations which first arose
under the law of the former domicil ; and the foreign law, cre-
ating those rights and obligations, may receive a personal extent
under the authority of the sovereign of the new forum — the forum
of jurisdiction. But the operation either of the law of nations —
universal jurisprudence — or of the judicial rule of comity, upon
the condition of alien persons, may always be contravened by
the autonomic legislation of the supreme power. And the legal
effect of each is also constantly subject to the limitation of a
judicial application of rules, identified with the local law, (the
internal law,) having universal personal extent. For if the
local law attributes any rights, or obligations, universally
within its jurisdiction, i. e., to all natural persons, or to all
natural persons in certain circumstances of natural condition,
the possession of which is inconsistent with the relations for-
merly sustained by such persons under the law of their previous
domicil, then the rights and obligations which, in those rela-
tions, constituted conditions of freedom, or its opposites, cannot,
according to the general principles before stated, (§§ 77, 88,) be
judicially sustained, nor receive a personal and international
extent, under the authority of the sovereign of the forum of
jurisdiction, either by force of comity — the judicial rule — or by
being the effects of rules which may antecedently have been
actually common among all nations, or have acquired the his-
torical character of a law of nations.

§ 115. In determining what principles affecting the condi-
tion of persons domiciled under the local law, (or, in other
words, what principles of the internal law,) are to be taken to
have this universal personal extent to all natural persons within
the national jurisdiction, the most authoritative indication is in
such statutory enactments as may give this extent to the attri-
bution of any right. Next in order are judicial precedents of

100 ATTBIBUTION 01" LEGAL FKBRONALITY.

antecedent tribunals repiosenting the same political source of
law ; though, from the manner in which the extent of any prin-
ciple is judicially determined, such precedents are hardly dis-
tinguishable— separately from the customary recognition of
universal jurisprudence, (see ante, §§ 99, 100.) In countries
wherein jurisprudence has long been developed, the test of this
universality of extent will ordinarily be found in one or the
other of these sources of law — either the law of nations, or
positive legislation. But if cases, affecting personal condition,
are supposable in which these do not apply, it may be taken to
be a legitimate result of the axiomatic principles of jurispru-
dence, rendered legally authoritative by the practice of legis*
lating states, that wherever (in whatever national, or independent
jurisdiction,) the juridical declaration of capacity for legal
rights is not made by creating a relative condition of legal
superiority for certain natural persons over other natural per-
sons, but is judicially recognized as the statement of a law in
the secondary sense of the word law, or of a mode of existence,
antecedent to all rules of action embraced in the positive law of
that jurisdiction, it has therein (in that jurisdiction) the charac-
ter of a law of universal persona} extent, which must be judi-
cially applied as municipal (internal) law, and also as inter-
national law. Where, therefore, the local, or municipal law,
operating as the internal, or territorial law, upon persons
regarded as its native, or domiciled subjects, takes cognizance
of them as legal persons, as well as natural persons, attributing
to them capacity for legal rights and duties, simply as a part
or incident of the attributes of natural persons, the constituents
of society, it thereby declares, or recognizes a natural law or
principle — a law in the secondary sense — which must be re-
ceived and applied by its tribunals, or judicial officers, as a
universal law in reference to natural persons appearing within
ite jurisdiction. And, in this case, no law of a foreign jurisdic-
tion regarding a natural person as a thing, or chattel — the object
of rights only, without capacity for rights — can be allowed by
those tribunals to have international recognition; unless, by
direct act of positive legislation, (statutes, or treaties,) such law
of a foreign jurisdiction, formerly binding on the alien, is al-

ATTRIBUTION OF LEGAL BIGHTS.

107

lowed to take effect aB a law personal to him, and exceptional
to the local, or territorial law. The alien must be regarded, in
all judicial processes, like the native or domiciled inhabitants
of the jurisdiction, as being possessed of all the rights which the
local law attributes to natural persons who are not aliens, and
as owing only those obligations which are derived from some
law for legal persons, and of such a character that they may be
recognized internationally without contravening in other respects
the law of natural rights and universal application as judicially
known in that jurisdiction.1

§116. But personality or capacity for legal rights might be
recognized in all natural persons by the laws of one national
jurisdiction, though relations might also be established, under
those laws, which would give to one person a control over
another, such as is inconsistent with the legal possession of per-
sonal liberty by the latter ; and these rights of control and cor-
relative obligations of subjection might be internationally recog-
nized in other national jurisdictions, as the incidents of a rela-
tion between legal persons. Thus the loss of personal liberty
under the criminal law of another state might be international-
ly supported, while the personality of the individual whose
freedom is compromised or denied is not disallowed. Or the
relations of parent and child, guardian and ward, master and
servant, — where the servitude of the latter is involuntary, though
not of the chattel character, — might be internationally allowed
in a jurisdiction wherein, on the grounds above stated, chattel
ilavery could be disallowed or ignored, under a judicial applica-
tion of the private international law. But it is impossible to
conceive of a legal attribution of personality without at the
same time attributing some definite or specific legal rights, indi-
vidual or relative {ante §§ 45, 46.) "Whenever legal obligations are
attributed to a natural person, the law, which creates those obli-
gations, must enable him by a legal capacity for choice and
action, to fulfil those obligations, — recognizing suck action to
be according to a legal faculty or power of action,-— and conse-
quently recognizing a certain possession of legal rights. It
would otherwise enable others to act in reference to him simply

* See cmte, § 102.

108

UNIVERSAL ATTRIBUTION OF A RIGHT.

as an object ; and bo make him a chattel or thing, to which not
even legal obligations can be attributed. Legal personality
must consist in and by rights, (§§ 43, 44.) The municipal (local
or internal) law must make this recognition of personality by the
attribution of some rights ; though it is not necessary, and is,
indeed, naturally impossible, that all perse1 ' should sustain
similar relations. Some rights, however, n /O attributed to
persons which are not incidents of relations ol specific persons
to other specific persons, or which may be equally attributed to
any number of persons ; while others must be taken to be inci-
dents of relations caused by laws having, necessarily, limited
personal extent, (§§ 55-57.) "Whore by the local or internal
law all domiciled inhabitants are recognized as legal persons,
irrespectively of the possession of relative rights, ordinarily so
called, (§ 40,) and that recognition of legal personality is made,
not simply as the attribution of a naked right to life, protected
by public criminal law, vindicating the welfare of the state,
(§ 45,) but by attributing definite mdividtuil or absolute rights,
protected by the private law of remedy, — there the local law,
attributing those rights, must be looked upon as the recognition
of, or statement of, a law in the secondary sense, — a natural
law; and those rights be taken to be the incidents of a state of
things existing independently of rules of action established by
the state. Being of this character it may be judicially taken to
be a law of universal personal extent ; that is, one applying to all
persons within the power or recognized territorial jurisdiction of
that law, and those rights may be attributed to all, as being
natural or primordial rights, — that is, rights incident to the con-
dition of persons in the simple primordial relation of individual
members of civil society. Where the right of personal liberty
is thus attributed by the municipal (internal) law to each indi-
vidual domiciled within the limits of a state or national juris-
diction, it must be taken to be attributed^ to those natural per-
sons under a law intended, by its political source, to be a law of
universal personal application; which is to be judicially taken
to apply to all persons within the territorial jurisdiction of that
law, irrespectively of their domicil or their previous subjection
to other laws or jurisdictions ; and this attribution of that right

THE EFFECT ON BTATU8.

109

will bo made whenever the condition of a person is to be deter-
mined under the private international law of that jurisdiction.1

§ 117. But where the local (internal) law itself supports rela-
tions, between its domiciled inhabitants, in which some persons
do not enjoy the rights of personal liberty, or are placed in a
condition of ooligation, correlative to the rights of others, which
niay be called a condition or status of slavery or bondage, —
there the local law does not attribute the right of personal free-
dom, nor any other right, — inconsistent with such condition of
bondage, — universally, or to all natural persons. And, according
to principles before stated, the slave or bond condition of an
alien, caused by, or existing under the law of his former domicil,
will receive judicial support, or become realized, actualized, or
carried out under the " comity of nations " or the judicial rule
which is known under that name : being then a legal effect
ascribed to the private international law of the forum of juris-

1 Though there may be a great want of harmony among the writers who, distin-
guishing between real, personal and mixed statutes, have attempted to give general roles
for their international recognition, they have unquestionably agreed, to a very great
extent, in saying that the status, condition or capacity for rights of a natural person is
every where judicially determinable according to the law of his domicil. See Story :
Gonf. L. ch. iv. and the older authorities there cited. Savigny : Heut. R. R. B. HI. c
i. § 362. Fcelix : Dr. Int. Pr. § 29.

This principle has been so often judicially applied that, subject to certain excep-
tions, more or less generally admitted, it may be regarded as a rule of the customary
international private law of civilized states, having the character of a role of universal
jurisprudence. (See ante § 93.) But no one exception to this rule is more harmoni-
ously recognized by the authorities than this, — that the condition of involuntary servitude
established by the law of the domicil, will not be recognized in another independent
territory wherein such a condition is unknown to the local law. See Story : Conf
L. § 96. Savigny : B. m. c. L § 349; and § 865, A. 7. W«echter : Archiv. Bd. 25,
p. 172. Schasffner : § 34. Fcelix: Dr. Int.Pr. § 81, note. Phillimore : Internal L.
p. 835.

These authors, however, do not now explain how the tribunal is to know that the
law which it has to determine and administer forbids, in this case, the operation of
the general rule. They either state the exception as one founded on the customary
international law of all states, or of a certain number of states, or of some one state,

S making it a rule of some one national law,) or else they assume that the tribunal will
terive it by a subjective conception of the will of the legislator or juridical sovereign.
In other words, they assume that the tribunal must declare the existence of such a
condition contrary to jnral rules In the first alternative it is evident that the custom-
ary international law, either of all states, or of a number of states, or of some one
state, on this point, may be different at different times ; in the other, that it is the
moral judgment of these writers themselves which makes the rule, and that it is an
a priori assumption on their parts.

And there is another deficiency in this reference to the law of the domicil ; for since
the domicil of a person is determined, in a great degree, by his own act of choice, (see
Savigny : Heut R. R., B. III. c. i. § 860, ^ 2,) the question of domicil may depend upon
the statu* ; for since a slave cannot, as such, elect a domicil, the question of his dom-
icil may involve a prior determination of his statu*.

110

EFFECT ON CONDITIONS OF BONDAGE.

diction, that is, to a rule identified in its coercive authority with
the rest of the municipal (national) law.1

§ 118. But though a condition of slavery or bondage may
exist under the local (internal) law of the forum of jurisdiction,
it may therein be considered accordant with natural reason in
respect to certain specific local circumstances ; being the effect
of a law. applying to a portion. of the domiciled inhabitants in
reference to the < existence of those circumstances .only, and
having a peculiarly local or national character. And, notwith-
standing the existence of this slavery or bondage, there may
be, in the municipal (national) law. of the same jurisdiction,, a
general or universal attribution of personal liberty and other
rights inconsistent with the condition of the alien under the law
of the foreign state, to all natural persons who are not in those
peculiar circumstances of local character by which, or in refer-
ence to which, the slavery existing under the internal law is
legalized, i. e. declared jural — consistent with natural reason.
In this case the slavery of the alien could not be judicially sup-
ported on the ground of comity — the rule so called ; because
still contrary to principles having (with this recognized excep-
tion under the internal law) universal extent within that juris-
diction ; even though the local slavery should constitute a status
— a condition of rights and obligations—very similar in its social
consequences to that existing under the foreign law.

§ 119. But though the bond condition of an alien should not
be maintained and continued under the law of the forum of
jurisdiction, because contrary to a universal attribution of per-
sonal freedom under the local law, it does vol follow that that
condition would not, under the juridical power of the same
forum, be recognized to have been lawful in the place of his
domicil — the foreign country. If, indeed, it is not a necessary
consequence of fundamental principles, yet it has always been
held, in the customary jurisprudence of every country, that the
jural character or rightfulness of every effect of foreign law
shall be admitted at least so far as that effect is confined to the
national jurisdiction of that law ; whatever maybe the juridical
opinion of other sources of law respecting such effect as the

1 Compare ante § 68, note. *

LIMITS OF THE EFFECT.

Ill

basis of rights' and obligations to bo enforced within their own
jurisdictions. .In other words, the relations or actions created
or allowed by a foroign law are customarily recognized to have
been rightful, in and for its own domain ;> even when rights and
obligations incident to those relations or actions are not main-
tained or continued in the forum of jurisdiction. Therefore,
although the right of an alien master in respect to his slave,
sanctioned by, or existing under the foreign law — the law of
their domicil — should be disallowed in the jurisdiction to which
they are alien, yet, under a judicial application of natural
reason, (that is, irrespectively of positi;^ legislation,) it will be_
held to have been jural or rightful, as well as legal, in the for-
eign cc untry — the domicil of such master f;nd slave : or it will,
at least, not be held to have been a vioh-txon of rights which in
the forum of jurisdiction may be attributed to the slave, nor
the subject of legal remedy in that forum..

§ 120. By the same reasoning it would appear that even
where, under the law of the forum, the right of the alien mas-
ter created by the law of their domicil would not continue, or
be maintained as against the slave, yet rights and obligations
existing under the latter law as between the master and third
pavties, in respect to the slave, would still be recognized and
maintained. The validity of the master's right in and for the
place of his foreign domicil being admitted, would lead to a
judicial recognition of the obligations of third parties correla-
tive to that right. The right of civil recompense for violation
of his right as master, in the place of his domicil, might, there-
fore, be maintained against third parties in a jurisdiction
wherein the relation itself, as between the master and slave,
could not continue. So, too, contracts founded upon the owner-
ship of slaves in foreign states would be judicially recognized,
and the rights and obligations growing out of them be judicially
maintained in jurisdictions wherein, under the private inter-
national law, the condition of slavery as between the alien
owner and his chattel slave, or bondsmr.a, could not continne.1

1 But in some systems of municipal (national) law a character of immorality is
ascribed to certain actions which prevents them from becoming, under the jurisdic-
tion of those systems, the basis of legal rights and obligations ; even though they may
have created such rights and obligations in and for the foreign jurisdiction where such
action took place. Compare Robinson v. Bland, 2 Burr., 1084.

112

REGARD TO DOMIOIL.

ft 121. The operation of law upon the relations of private
persons is a consequence of their being actually within the ter-
ritorial dominion of the sovereign state or nation from whom
that law proceeds. But, as has been stated, (§ 54,) those cir-
cumstances which, in international jurisprudence, are techni-
cally called domicil, determine in many cases whether the
condition of a person shall be controlled directly by the law of
the jurisdiction (the internal law) in which he is found, or, indi-
rectly, by that of some other to which he may have formerly
been subject. In many instances, the intention of the person
to acquire a new domicil will be held to vary the legal nature
of his relations both in respect to persons and in respect to
things. Servants, or slaves, either with or without their mas-
ters or owners, may appear in a foreign jurisdiction, (a jurisdic-
tion other than that of their domicil,) either as aliens seeking a
new domicil therein, or as temporary inhabitants, still continu-
ing, in view of the law of the forum, to have their former
domicil. But, in a judicial application of natural reason to the
condition of either of these classes of aliens, the principles
which have been herein before stated are equally of force.
Whenever by the operation of these principles, or by positive
legislation, the slavery of an alien person is continued after
a change of domicil, it becomes a result of the municipal (in-
ternal) law of the jurisdiction of which he becomes a domiciled
subject. In the other case, — that is, when the domicil is not
changed, it is, from the continuing alien character of the person,
a result of the private international law of the same forum.

§ 123. It is always to be remembered that the international
recognition of personal condition which has been considered in
this chapter is only a judicial act, determined by general prin-
ciples of jurisprudence, and that it is always subject both to the
customary law on the subject (anterior judicial practice) which
may have prevailed in the forum of jurisdiction, and also to the
positive legislation of the sovereign of the forum, giving an
original rule extending, or limiting, the entire judicial discre-
tion of its tribunals.1 The action of the state, or nation, being,
as compared with the action of its tribunals, autonomic, or in-

1 Scfaaeffher : § 81. Savigny : Hent R. R., B. III., c. L, $ 861 A.

SUPREMACY OF LEGISLATOR.

118

dependent of law, in admitting or rejecting a foreign law upon
the ground of comity, or in receiving or repudiating a principle
before ascribed to the law of nations — universal jurisprudence.

None. — In connection with the provinoe of the judicial officer in this respect, a
principle cannot be forgotten by American tribunal* which I* no where so fully fllus-
trated na in the jurisprudence which they apply ; but in stating which, in an ele-
mentary essay, it may be well to oite an authority of foreign origin. Waechtor, in a
note to the passage herein before cited, (§ 84, n,) after the words — " that the requi-
sition of a constitutional form and the limits of constitutional power alone determine its
validity" — L e., validity of the statute — observes: (Tr.) " The determination of this
most, unquestionably, appertain to the judge. That is to say — in our constitutional
states — he is bound, in dispensing the law, to follow the legislative dispositions of the
government only when they conform to the requisitions of the constitutional law. It
is true that he is merely the servant and instrument of the law, (Rechtsgesetzes,) but,
certainly, he is the servant of a valid law (Gesetzea) only. It is, therefore, both his
province and his duty, before applying a rule which claims to be a law, or an exercise
of the legislative function, to examine, according to the existing constitutional law,
whether it actually it a law, — that is, whether it has those qualities which, according
to the constitution, must belong to a valid law. If these are wanting, it it his duty
not to regard the decree as a valid law. It is true that this has of late been denied
by, &o, [citing a German writer.] But this opposite view would make the judge,
in his function, the subject of the executive power, [that is, in a state where the ex-
ecutive and legislative functions are not clearly separated,] and destroy both his con-
stitutional independence and the right of the citizen, which is, to owe a constitutional
obedience, only, to the executive power," tec. [Giving the German authorities.]

CHAPTER TIL

OF THE ESTABLISHMENT OF MUNICIPAL (NATIONAL) LAW IN THE
ENGLISH COLONIES OF NORTH AMERICA. PERSONAL EXTENT OF
THE COMMON LAW OF ENGLAND,

§ 123. It has been shown in the first chapter in what sense
it may be said, that the extent of territory over which any pos-
sessor of sovereignty shall exercise dominion is determined by
public international law (§ 51). When changes take place in
the geographical limits of the domain so held by the pos-
sessors of sovereign powers, the same law, or more strictly, per-
haps, those principles of the law of nations, — universal jurispru-
dence,— which enter equally into municipal and international
public law, and are sometimes denominated the natural or neces-
sary law of nations, may be regarded as determining the munici-
pal (national) law which shall thereafter prevail in the territory
thus transferred or acquired; at least until the new sovereign
has exercised empire in establishing or promulgating law by
positive enactments. Where such territory has been previously
occupied by a nationality having a political organization, with
sovereignty manifested in the promulgation of laws, it is a prin-
ciple of the law of nations entering into international and mu-
nicipal law, which, if not also a natural or necessary principle,
has always been received in the customary jurisprudence of civ-
ilized states, that the laws formerly prevailing with territorial
extent therein remain in force, and act as before upon all pri-
vate persons within that territorial jurisdiction until changed

LAW ATTKR CONQUEST.

115

by tho now sovereign ; ' witli the necessary exception of the pre-
viously existing public law or law of political constitution,
which 4s implied in the supposed fact of a change of dominion,
and also with an exception which is "based upon the jural char-
acter of states promulgating law as the rule of right, viz ; that
former laws become abrogated, by the act of acquisition, which
are contrary in effect to rules which, by the tribunals of the new
sovereign, are taken to have a universal extent; or which, it may
be said, are taken to have moral force in human relations, as
natural principles, independently of tho will of the state ; or
which, in the language of Blackstone in a passage hereinafter
cited, are taken to be part of " the law of God," as interpreted
by the new possessor of sovereignty, — and so held to be univer-
sally applicable." Where the territory acquired has been previ-
ously unoccupied by any such power its future laws, that is, the
laws which shall therein prevail as the territorial law, must
originate in the authority of the sovereign acquiring it.

§ 124. It is a principle of tho law of nations, contained in

1 Bowyer : Univ. Pub. Law, p. 168. Sir Wm. Jones : Inst, of Hindu Law, Art 203.
" In the part regarding the duty of the royal and military caste or Kchatriyas, it is
laid down, that after a king has conquered a country, he ought to maintain the laws
of the conquered nation as they have been promulgated." * * " The preservation
of the Hindu law after the Mohammedan conquest is a remarkable fact, as the Mo-
hammedan law has no provision resembling the laws of Manou mentioned above, but
on the contrary does not tolerate the laws of a conquered nation."

Clark's Colonial Law, p. 4. Campbell v. Hall, Cowp. 209. Duponcean on Juris-
diction, p. 65. I Kent's Comm. (7th Ed.) p. 178, note.

1 2 Peere Williams, 75, (1722,) it was said by the Master of the Rolls to have been
determined by the lords oi the Privy Council, upon an appeal from the foreign planta-
tion. * * * "3d. Until such laws be given by the conquering prince, the laws
and customs of the conquered country shall hold place, unless when these are contrary
to our religion or enact any thing that is malum in se, or are silent; for in all such
cases the law of the conquering country shall prevail " To this exteot only is the ex-
ception to the general rule true which is made in Calvin's case (17 Coke, R. 7)— -"if a
Christian country is conquered the laws remain, but if it be infidel, the laws of the infidel
are ipso facto abrogated," etc. In Blankard v. Galdy (1 694^, as reported in Salkcld, 411,
the court " held that in the case of an infidel country their laws do not entirely cease
but only such us are against the law of God." It would be difficult to find an illustra-
tion of such exception in the whole history of British conquest and colonization. For
when lands occupied by savage tribes have been acquired, the country has been taken
to have had no territorial law. In Campbell r. Hall, Cowp. 209, Lord Mansfield (1774)
said : " The laws of a conquered country continue in force until they are altered by the
conqueror; the absurd exception as to Pagans, mentioned in Calvin's case, shows the
universality and antiquity of the maxim. For that distinction could not exist before
the Christian era, and in all probability arose from the mad enthusiasm of the Croisades."

Whether laws allowing torture have been abrogated by British dominion, see Stokes
on tho Colonies, p. 11, Mostyn v. Fabrigas, Cowper's R. 169; Sir Thomas Picton's
case, SO HoweTs St Trials. Report of the Madras Torture Commission.

116

FKRBONAL LAWS COLONIZATION.

the first and second of the three maxims, stated in the previous
chapter, which enter into the foundation of international and
municipal law, that, so far as laws are territorial in their extent,
persons passing from one territory to another change at the
same time the municipal (national) law to which they are sub-
ject. But laws also have a distinct personal extent when sus-
tained, as applying to certain persons, by some sovereign power
having jurisdiction over thei... This personal quality of laws is
manifested in colonization ; where the laws which prevail in
the territory colonized depend upon the extension given by the
sovereign of the colonist to the laws binding on him in his
original domicil. In order that the personality of laws may he
thus manifested in colonization, or that laws may thus accom-
pany colonists beyond the limits of their former domicil, it Is
evident that the sovereign national power, from which that law
proceeds, must also be sovereign over the territory to which the
person is transferred. Herein the maintenance of personal laws
in colonization is part of the municipal (internal) law of some
one state, and differs from that recognition of the law of a for-
eign domain, as a law personal to an alien immigrant, which
may be made in international law. And here it is evident that
the exposition of laws in their personal and territorial extent
implies a knowledge of such terms as sovereignty, domain, na-
tive subject, alien subject, &c, which are explained by those
axioms or definitions which make the necessary law of nations,
and are presupposed in international and municipal law.1

§ 125. From the earliest instances of the political annexation
of foreign territories to the dominion of the British crown, there
has been much dispute in English jurisprudence respecting the
personal extent of the laws of England* in reference to such ter-
ritories." The occupation of countries in the Western Continent

1 Ante %% 48, 49.

* A. D. 1607— Calvin's owe, (ewe of the Post-nati in Scotland,) 7 Co. R. 17; Le
cn*e de Tanistrv (tinder Brehon law of Ireland) Davis's R. 28 ; 1666— -Vanghah R. pp.
290, 402, (relating to Ireland and Wales); 1684— Wytham v. Dntton, 8 Mod. 160 ; re-
versed in 1694— Dntton v. Howell &c., Shower's Pari, cases, 24 ; 1694 — Blank ard v.
Galdy, 4 Mod. R. 215, and Salk. 411; 1705— Smith v. Brown & Cooper, Salk. 666,
Holt R. 495. Smith v. Gould, Salk. 687, and 2 Lord Raym. 1274; 1769— Rex v.
Vanghan, 4 Burr. 2500; 1774— Mostvn v. Kabrigas, 1 Cowp. 161 and Campbell v.
Hall, 1 Cowp. 204; 1802— Coliett p. Keith, 2 East, 260; 1817— Atty. Gen, v. Stew-

blaokstone's dootbink.

11T

before unoccupied by civilized societies, presented an unprece-
dented question of jurisdiction. The leading authorities on this
point are thus summed up by Blackstone (Comm. Introd. p.
107) in a passage often cited : " " Plantations or colonies in dis-
tant countries are either such where the lands are claimed by
right of occupancy only, by finding them desert and unculti-
vated and peopling them from the mother country, or where,
when already cultivated, they have been gained by conquest or
ceded 'w us by treaties. And both these rights are founded upon
the law of nature, or at least upon that of nations. But there
is a difference between these two species of colonies with re-
spect to the laws by which they are bound. For it hath been
held, (2 Salk. 411, 666,) that if an uninhabited country be discov-
ered and planted by English subjects, all the English laws
then in be^ j, which are the birthright of every subject, (2 P.
Wins. 75,) are immediatelv there in force. But this must be
understood with very many and very great restrictions. Such
colonists carry with them only so much of the Engliph law as is
applicable to their own situation and the condition of an infant
colony ; such for instance as the general rules of inheritance and
of protection from personal injuries. The artificial refinements
and distinctions incident to the property of a great and com-
mercial people, the laws of police and revenue, the mode of
maintenance for an established clergy, the jurisdiction of spir-
itual courts, and a multitude of other provisions, are neither
necessary nor convenient for them, and therefore they are not
in force. What shall be admitted and what rejected, at what
times and under what restrictions, must in case of dispute be
decided in the first instance by their own provincial judica-
ture, subject to the revision and control of the king in council :
the whole of their constitution being also liable to be new-mod-
elled and reformed by the general superintending power of the

art, 2 Mer. 159 ; 1824— Forbes v. Cochrane, 2 Barn. & Crest. 468; 1886— Beaumont
p. Barret, 1 Moon's cases before P. C. 75.

Similar questions must have arisen within England itself upon the Norman con-
quest, and before that event, upon the union of the Anglo-Saxon monarchies under
Egbert, A. D. 827. The local customs of England, such as gaw!-ka>:d, were nothing
else than the remaining common law of certain districts formerly coutituting inde-
pendent sovereignties.

1 See Atty. Gen. v. Stewart, 2 Merivale, 159. Story Comm. §

118

THEORY OF THE OOIX)NIBTB.

legislature in the mother country. But in conquered or ceded
countries that havo already laws of their own, the king may in-
deed alter and change the laws ; but, till he does actually change
them, the ancient laws of the country remain, unless such as are
against the laws of God, as in the case of an infidel country, (7
Rep. 17. Calvin's case. Button v. Howell, Shower's Pari, cases,
31.) Our American plantations are principally of this latter sort,
being obtained in the last century, either by right of conquest
and driving out the natives (with what natural justice I shall
not at present inquire) or by treaties. And therefore the common
law of England, as such, has no allowance or authority there ;
they being no part of the mother country, but distinct, though
dependent, dominions. They are subject, however, to the con-
trol of the parliament, though (like Ireland, Man and the rest)
not bound by any Acts of parliament unless particularly named."

§ 126. The theory generally maintained by the crown law-
yers, anteriorly to the American Revolution, seems to have
been, that the common law, in being the law of the rights of
Englishmen, was so, only so far as it was the territorial law of
Great Britain ; that it determined the rights of British subjects
only while in England, and that when in any colony, or other
particular district forming part of the Empire, their rights
would be determined entirely by a law having a like territorial
extent in and for that colony or district : a law which could
originate eiolely in the will of the king, or of the king and parlia-
ment, legislating for that colony or district, as a several territo-
rial domain.1 This theory, and the inferences which those ad-
vocates of the royal prerogative who admitted Blackstone's al-
ternatives, based upon hi« assumption that the American colo-
nies were " principally of the latter sort," were not only con-
stantly controverted by the colonists themselves, but by many
English publicists of the time.* And it must now be taken as a

1 Chitty on Prerogatives, c. iii. Chalmers's Hist of Revolt of Am. Col vol. i. p.
802. 1 Salk. 666. American Tracts, toL L ; Dumraer's Defence of the N. E. Char-
ters, p. 43, — " And to complete the oppression, when they upon their trial claimed the
privileges of Englishmen, they were scoffingly told, these things would not follow them
to the ends of the earth : unnatural insult, acc."

* Reeves's Hist of Law of Shipping, p. 188. 1 Chalmers's Opinions, pp. 28, 195,
220. 2. Chatm. Op., p. 202, 209, 240. Dr. Richard Price's Observations on Civil
Lib. &c., pub. 1766.

OHARTKBKD mom's.

119

settled axiom of American law, that the territory of the colonies
was claimed by right of occupancy, or by finding it " desert and
uncultivated and that the common law of England first ob-
tained in that part of the Empire as a law personal to the Eng-
lish-born colonist.1

Besides the effect of this principle, all the charters, with the
Bingle exception of that of Pennsylvania,' declared that the colo-
nists and their children should have all the rights of subjects
born in England.'

§ 127, But, it being supposed that the common law of Eng-
land was thus transplanted with the British colonist to America,
and was there operative in determining his rights as a private
person, another question, or ono which was the same question
— regarded as a matter of public law — arose, — upon what politi-
cal authority would the continuance of that law, as the territo-
rial law of that colony, thereafter depend ?

According to the views of the English lawyers, at the time
of the settlement of the colonies, the patent gave a title to the
soil, but prerogatives of government could only be exercised
under a charter from the crown.4 With the exception of the
first charter of Virginia, of 1606,* the royal charters, in consti-
tuting the colonial governments, provided that the local legisla-
tion should not be contrary to the laws of England, or that it
imould be conformable as near as might be to the laws of
England ; and besides this, the charters, as before noticed, guar-
anteed to the English colonists and their descendants the rights
of subjects born in England.*

1 Story's Comm. §§ 152-7, and the numerous authorities cited there ; and for the
modern English doctrine, Chitty on Prerogatives, p. 80. Chitty's Co aimer. Law, voL
L p. 689. Rex v. Brampton, 18 Easfs R. 288.

Mr. Jefferson, however, always derided this principle of the personal extent of the
common law. See Jefferson's Correspondence, vol. iv., p. 178. Jefferson, being or the
a priori or " law of nature " school, could be at no loss for a basis upon which to
rest such rules of action as he might approve of.

« Story's Comm. § 122.

• See pott, ch. vi. Story's Comm. 3- L ch. 16, 17.

* 1 Banc 821. 1 Hild. 175.

* 1 Hen. Stat 57. 1 Banc. 122, 186. The code of regulations made by the king,
however, required that the local ordinances should conform to the laws of England, and
should not touch life or limb. Story's Comm. § 44.

• In reference to the first charter of Virginia, 1606, Bancroft says, vol. L 121: "To
the emigrants it was promised that they and their children should continue to be Eng-
lishmen— a concession which secured them rights on returning to England, but offered
no barrier against colonial injustice." In this view the guarantee of the rights pos-

BASIS OF LEGISLATION.

There were some very material differences in the political
constitution of these colonial governments in being respectively
either chartered, proprietary, or provincial.1 This difference in
the investiture of political rights naturally occasioned, in the
earlier period of their settlement, important differences between
the colonies in respect to the recognition of private liberties, or
the foundation of the rights of private individuals under public
law.

§ 128. The New England colonial, governments were, how-
ever, also based on an extraordinary foundation, having, within
their several jurisdictions at least, a recognized political exist-
ence and validity, in the voluntary compact of those in each who
agreed in constituting themselves the original " freemen," and
in their individual acknowledgment of the power of the whole
body of freemen " to legislate as a political state by the voice of
the majority.

The first settlers of Plymouth colony in Massachusetts en-
tered into a compact for government before the landing, by
which they combined themselves together into a civil state or
body politic, mutually promising " all due submission and obe-
dience" to "such just aid equal laws and ordinances, acts, con-
stitutions and officers from time to time as shall be thought most
meet and convenient for the general good of the colony ; " ' and
under this voluntary association they afterwards gradually as-
sumed, without any charter from the crown, all powers of gov-
ernment for local purposes.* The governments of Rhode Island,

MMed by every Englishman in England by the law of the land did not operate as a law
in the colony. Bat this is not the view of the effect of such a guarantee which has
been taken by meet writers on this subject. It is generally considered to have had the
same effect as the provision afterwards inserted in the charters, that the looal legisla-
tion should not be convrary to the laws of England. The local government,' under the
second Virginia charter and the extraordinary grant of power to the council of the
company in England, therein contained (sections 18, 28), seemed to have attributed uo
effect to the guarantee of rights in the individual colonists. "A code of martial law
was at one period the law of Virginia. Servitude for a limited period was tie com-
mon penalty annexed to trifling offences." 1 Banc. 151, 152.

1 1 Bla. Comm., p. 108. Chitty : Commer. Law, l p. 648. Chitty on Preroga-
tives, p. 80. ' Cnrtls's Hist, of the Constitution, z. pp. i, 5.

* The freemen being, however, only a limited number of the inhabitants, and their
achruncledgment, even if morally and politically justifiable, being in some sort a usurpa-
tion, that is, having no original foundation in public km.

* 1 Chalmers s Annals, p. 102. 1 Banc. 809.

4 Story's Comm. §§ 65, 66. 1 Banc. pp. 820-828. 2 Hutch. Hist., App. i.

NEW ENGLAND 00VKHWMKNT8.

Hartford and New Haven, were first formed under voluntary
compacts.1

The authorities of the colony of Massachusetts Bay, though
claiming to act under the charter of governmont of 1628 to the
freemen and associates or corporators of the Company organized
in England, which contained provisions guaranteeing common
law rights to the colonists and limiting the legislative power of
that Company, acted from the outset under a view of their
independence of the imperial authority, which differed essentially
from the political doctrines entertained in the more southern col-
onies, whose constitution had been more definitely settled at their
foundation. In Massachusetts, the original emigrants and their
immediate successors regarded themselves as founding a state
on principles of natural ethics and revealed religion, indepen-
dently of any positive law derived from apre-existing political au-
thority. * In this original charter there was no provision se-
curing to the actual colonists, as inhabitants who might or might
not be connected with the corporate body in England, any share
in the local government; * and the elective franchise, or the
capacity of being a freeman of the colony, even after the trans-
fer of the corporate government from England to America in
1629, was made by the grantees of the charter, or the so called
" freemen " and associates of the Company, to depend on church
membership.4 Their civil polity being in a great degree iden-
tified with their ecclesiastical constitutions, the scriptures of the
Old and New Testaments were for a time regarded as part of
their civil law as well as the highest rule of moral duty. * The

1 1 Banc. 892, 402. 1 Chalmers's Annals, 269. 1 Trumbull's Hist, 27. 1 Pit-
kin's Hist, 42-47.

* Reeves's Hist Law of Shipping, p. 138. Story's Comm., § 67. 1 Banc. 432. 1
Hatch. Hist. p. 251, 2d ed. It will be remembered that the political institution of all
the other New England colonies was, in a certain degree, derived from or based upon the
pre-ezistence of the Massachusetts colony. See pott, ch. Vi*

* 1 HUd. 180. Story's Comm. § 68.

* Ancient Charters &o, p. 117. 1 Hutch. Hist. p. 26, 88., Note. 1 Holmes's Annals,
261. 1 Banc. 360. " The servant, the bondman, might be a member of the church and
therefore a freeman of the Company." This is very unlikely ; it was probably assumed
that the elector should also be a person tui jurii ; women and minors, if members ox
churches, were not therefore electors.

* I Mass. Records, p. 174. 2 Hutchinson's Hist p. 8. ''From 1640 to 1660 they

Siprosched very near to an independent commonwealth, and daring this period cam-
eted a system of laws and government, the plan of which they had before laid and

QUESTION Off JPOWKB.

restrietipn on the local government by the law of England was
from time to time acknowledged by the authorities. As in the
decoration of the.General Court in 1661, entitled—" Concerning
out Liberties;" Art, 6, "The Governor, Deputy Governor, As-
sistants and Jtypreaentatives or Deputa^ have full power, &c.
ecclesiastical and civil, without appeal ; except laws ropugnant
to t\w laws of, England." 1 But, until the remodelling of the
colonial , government of Massachusetts under the charter of Wil-
ljara ami i^ary, 1691, constituting a provincial government su-
perseding the two governments of Plymouth colony and Massa-
chusetts Bay, the General Court, constituted either of the " free-
mien" in person, or their elected representatives, in exerting
powers which were contested as derogatory to the supremacy of
the king and parliament, or contrary to the public law of the
Empire, sometimes exerted them in a manner derogatory of com
mon law rights in their fellow-subjects — rights existing under the
guaranteed private law; of the.colony.* For a long period after
their, first settlement the New England colonies seem to have

began to execute. In this they departed from their charter, and instead of making the
laws of England the groundwork of their code they preferred the laws of Moses."
1 1 Hatch. Hist. app. xiil

• 1 "Hatch. Hisi. p. 82, 94, arid 2 do p. 1 2. Protest of Maverick and Child in 1646.
I Hatch. Hist p. 146. Answer of Council for the N, E. colonies to the Privy Council
on Morton's petition* 1684. 1 Hutch. Hist 251, 2d. ed. 230, Sd. ed. ; his view of the,
Massachusetts theory of government 2 Chalmers's Opinions, p. 31. 1 Hild. 188, 198,
218, 247, 268, 255, 270, 279, 818.

Case of theBrownes (1629), see Chalmers's Political Ann. p. 146. Young's Chron-
icles of Moss. p. 287, note. 1 Orahame's Hist p. 217.

In Connecticut revised laws of 1821, Title 94, Societies. — " An act relating to religions
societies and congregations," a note is appended, giving an interesting summary of the
legislation of the colony and State tearing on this topic It is there remarked : " The
object of our ancestors in emigrating to the country, was to enjoy their religion, not
only free from persecution, but without interruption from Christians of different sen-
timents. They were desirous of maintaining a uniformity of doctrine and of worship.
The true pri nciples of religious liberty were not then known in any Christian country,
and toleration -was not the virtue of the age. Accordingly, on their arrival they formed *
an ecclesiastical constitution," &c. &c. The point to be noticed here is not that
they had wrong ideas about the rights of conscience and religious worship, (which may
or may not be true,) but that they usurped a prerogative of sovereignty over their fellow-
subject*. It may be admitted that the enforcement of the true creed and form of wor-
ship is the duty of the state, and that the creed and form of worship adopted by the
colonists was the true one. , Still the question is — had they the legal right, by public law,
to exclude from their limits or otherwise punish those of their fellow-subjects who, in
England, might have equally differed- from them and yet have been unmolested by the
law of the land ?

For other recent defences of the New England governments! see North Am. Quart
Rev, Oct 1861, Oct 1868, and among the annual addresses before the New England
Society in N. Y; the discourse of J. P. Hall, Esq., Deo. 22, 1847.

£11X3 OF RIGHTS.

123

acknowledged 110 basis for the liberties of the individual in-
habitant beyond the will of the local power. And, whether they
were, severally, at particular periods oligarchical,1 or pure democ-
racies, the government representing the will pf the majority of
the electors claimed to be the possessor of a sovereign power in
matters of private law.

§ 1 29. From time to time declarations were made by the dif-
ferent colonial governments, with greater or less solemnity, in
. form nearly approaching Magna Charta and the English bills of
rights, in which u the law of the lai d " was referred as the safe-
guard of the rights and liberties of the free inhabitants. But these
appear to have been put forth, like their great originals at the
time of their promulgation, rather <ts guarantees against viola-
tions of the laws of the land by arbitrary executive power, than
as appeals to common law and those charters and bills pf rights
as of constant effect against the supremacy of the legislature.*
They were probably meant for protests against the arbitrary action
of the imperial government, whether legislative or executive,
rather than pledges against the abuse of that power which was
deemed to be vested in the local government. In some instances
where the common law of England was recognised by the colo-
nial authority as the foundation of the rights of private persons,
the power of sovereignty to alter that law was at the same time
implied to be resident in the provincial government ; as by the
declaration in the Plymouth laws, published 1636, in the first
article — " we the associates of the colony of New Plymouth,
coming hither as freebom subjects of the kingdom of England,
endowed with all and singular the privileges belonging to such,
<fcc." — and in the fourth article — " that no person in this gov-
ernment shall suffer or be indamaged in respect to life, limb,
liberty, good name or estate, under color of law or countenance
of authority, but by virtue of some express law of the General
Court of this colony, or the good and equitable laws of our na-
tion, suitable for us in matters which are of a civil nature, (as by

1 Corap. Washburn's Judicial Hist of Mass, Ch. 1. Lochford's Plain Dealing, writ-
ten about 1640 (me Mass. Hist. CoIL 8d aeries, voL iii.) 1 Hatch. Hist. p. 94, note. 1
Banc. 481-485. 3 Banc 15-19. 1 HQd. 288.

* Compare Report of the Honse of Delegates, "Virginia, 1799, on the Alien and
Sedition laws, Randolph's Ed. p. 220.

124

OOMXOK LAW RIGHTS.

the court here hath been accustomed,) wherein we have no par-
ticular law of our own," <fec. And very similar in effect to this
was the act of the legislature of South Carolina in 1712, recog-
nizing the binding force of the common law, as modified by
certain specified statutes in amendment of it, " but only when
not inconsistent with the particular constitutions, customs and
laws of this province." 1

§ 130. A power in the common law, operating as a personal
law to limit the extent of colonial legislation in matters of pri- •
vate law was, however, in the colonies themselves, constantly
asserted by those who believed their native rights infringed un-
der colonial laws, whether the body promulgating those laws
existed on the democratic basis, or as the organ of a provincial
prater, or of an individual proprietor. In Massachusetts the
aristocratic and theocratic parties were compelled to abandon
their view of the foundation of their civil state by the interven-
tion of the royal power and the influx of immigrants entertain-
ing different opinions in matters of religion or of ecclesiastical
polity.' And in all the colonies the equality of all free subjects
of the empire, in respect to the rights of civil citizenship under
the local government, became established. Even in the prov-
inces acquired by conquest, the personal extent of the common
law was constantly claimed by the English inhabitants.' The
Duke of York's patent or charter of the provinces acquired from
Holland, empowered him and his assigns to govern the inhab-
itants by such ordinances as he and his assigns should establish ;
but the assembly of East Jersey in 1680, told the governor that
it was not on the king's letters patent to the Duke of York, but

1 2 Hili. 275, and %tttpa$t, Ch. vi. Laws of S. C. Knickerbocker's Hist of New York.
B. tv. c. 9, " In facf; the Merrylanders and their cousins, the Virginians, Were represented
to William Kieft an offsets from the same original stock as hi* bitter enemies the Yano-
kies, or Yankee tribes of the Fast : having both come over to this country for the liberty
of conscience, or In other words, to live as they pleased : the Yankees taking to pray-
ing and money-making and converting Quakers; and the Southerners to horse-racing
and cock-fightipg and breeding negroew."

* See the King's letter of -June 28, 1662, in Mass. Records, VoL iv., part 2, pp.
164, 167, and resolutions of the General Court modifying the requisites for the elec-
tive franchise, in the tame, pp. 117, 662 ; also in Charters, Sec., p. 117/ and charter
of 1C91, in the same, p. 26. Story's Comm. § 71. 1 Banc. 481-486.

1 In 2 Canadian Freeholder, pp. 168, 172, it is argued that New York was not con-
sidered by the king as a conquered country, but as a part of the more ancient colony of
New England. And see 1 Smith's Hist, N. Y., App., «. 5.

THE PUBLIC LAW.

on (< the great charter of England" that they relied as " the only
rule, privilege and joint satiety of every freeborn Englishman." 1

The colonists claimed that the common law, thus having a
personal extent, fixed their social and civil rights as much as
those of British subjects in England, and that this was a protec-
tion against both the colonial and the imperial legislative power
when acting efiparately ; in short, that their rights known as
common law rights, or the rights of the free subject of British
birth, could not be divested except by a national law — national
because applying to the British subject in England as well as in
the colony, and that in the making of such law their several
will was entitled to be represented, as an element of the national
will, in virtue of the common law regarded as the public law of
the empire, or the law of political constitution.*

During the colonial period in the eighteenth century, the ex-
tent of the common law of England in determining the rights
of the British-born colonists and their descendants, in America,
became generally recognized in matters of private law. The
question of its operation in the public law of the empire, or in
determining the public rights of the colonists, continued to be
the subject of controversy between them and the parent coun-
try, terminated only by the revolution. For it was by resting
on the common law, as the public law of the nation, that the
colonists claimed to be governed by laws in the making of which

1 Learning & Spurn's Col. pp. 681, 682. 2 HDcL p. 60.

* Ac Historical Discourse of the Uniformity of the Government of England, by Na-
thaniel Bacon, of Grain' Inne, (1647) p. 65. "The next and most considerable degree
of all the people is that of the Free men, anciently called Frilmgi, or free born, or such
a* are borne fre* from aD yoke of power, and from ail Law of compulsion other than
what is made by his voluntary consent ; far all freemen have vote* in the making and
executing of the generall Laws of the Kingdome," Sec

N. Y. Evening Express, Dec. 28, 1848. Hoa Rnftu Choate's Oration before the
New England Society in New York : speaking of the residence of certain English Puri-
tans in Geneva, Switzerland, 1558-1558, and its influence upon them, — "There, was a
state without a king or nobles t there, vas a church without a bishop : (tremendous
applause,) there, was a people gi/?era<»<i by laws of their own making and by rulers of
their own choosing." If the Pilgrim fathers found in Geneva the model of their infant
state, it would be a curious subject of inquiry, whether Genera was at that tame an
oligarchic or a democratic republic, according to the modern definitions (see London
Cycl. txtc Geneva). But in whatever the Massachusetts colonists may have found their
bean-ideal, the civil liberty of the nation which calls itself the People of tlie United
States is in a great degree attributable to the fact that their state was not "without a
king ; " and if religions liberty has successfully been maintained in the States that with
just pride venerate them as the founders, it tnight better be sakV — it was not because
there was no bishop, but because bishops were so many.

BOTTBOE OF LAWS.

they had themselves shared by their representatives ; and, be-
cause unrepresented in parliament, they denied its power to leg-
islate for them in local matters.1

§ 181. But the power of sovereignty to alter all private law
must have existed somewhere, so far as such a power can exist ;
and, as to the colonies, it was to be found, according to either
the tory or the liberal theory — in the parliament of England,
the king and the colonial legislature ; according to the nature
of the subject, either severally, or all united. The limits be-
tween these co-existing sources of law were never systematically
defined, and naturally received a variety of construction. But,
whatever may have been the true legal limits of the power of
parliament in reference to the colonies, since their international
and commercial policy still continued, of necessity, to be con-
nected with that of England, the statutes of parliament affect-
ing such relations must have been indisputably operative during
the colonial period.8

The legislative declarations of the colonial governments,
in the nature of bills of rights, even if not intended only as
bulwarks against arbitrary executive power, seem to be founded
on the theory that a parliament, or the constituted legislature,
is the depositary of the sum of sovereign power, and the source
and ultimate arbiter of all law ;* and this, whether the colonial
legislature was considered as formed by royal charter, or by the
voluntary consent of the freemen of the colony.4

It has sometimes been asserted by English jurists that the
power of the British parliament is controlled, to some degree, by
common law ; which control might be exercised by the judgeb,
in declaring ita acts void ; and that under the term common law

' 1 Banc 442. DupoDoeam on Jurisdiction, Pref. ix. Declaration of the Congress
of the nine Colonic*, 1766 :— Story's Comm, § 190. 1 Pitkin's Hist. 286, 286, 840,
844.

* Smith's Wealth of Nations, B. rv. e. 7. 1 Chalmers's Opinions, p. 201. Chitty
on Prerogative, a iU. Stoke* : Const of the British Col. Declaration of Rights of the
Continental Congress, 1774, ResoL 4. Story's Comm. % 194, note. Virginia Report of
1799, (alien and sedition laws,) Randolph's Ed. 1860, p. 212. Curtis** Hist, of the
Constitution, i, j. 20, 21, and generally on these points, Story's Comm. B. i.; c. 16, 17.

* This is the doctrine of 1 Chalmers's Opinions, p. 1.

4 Unless in Connecticut and Rhode Island, during the early periods of their politi-
cal existence, the body of the electors or " freemen,* may be taken to have been the
aotual govwrmwnt and possersor of political power. Compare Bancroft's Hist. voL i.t
for the political history of these colonies.

LEGISLATIVE POWEK.

natural right or reason is included, as a rule of distinct existence,
capable of being separately recognized by the tribunal. Thus Sir
Henry Finch, in a Treatise on the law of England, pp. 74-76, de~ .
clares, that positive statutes contrary to common law, reason and
nature are void ; and in Bonhara's case, 8 Coke, 118, it is said, " and
it appeare in our books, that in many cases common law doth con-
trol acts of parliament ; for when an act is against common right
and reason, or repugnant, or impossible to be performed, the com-
mon law will control it and adjudge Buch acts to be void ; " citing
some of the older cases, wherein common law rules of the most
constant application have been used to limit the apparent effect
of Acts of parliament. And by Hobnrt, C. J. it. ie said that
" an act of Parliament made against natural equity, as to make
a man judge in his own cause, is void in itself, for jura nature
sunt immutabilia, and they are leges legum." (Day v. Savage,
Hobart's R 87.) Holt, 0. J. in The city of London v. Wood, 12
Modern R. 688, says that parliament can do no wrong ; though
it may do several things that look pretty odd ; that it may dis-
charge a man from his allegiance, but cannot make one that lives
under a government both judge and party ; that it cannot make
adultery lawful, though it may annul the marriage of A with B
and make her the wife of C." But Coke, in 4 Institutes, 36, says
of the power of parliament, that " it is transcendent and absolute,
and that it cannot be confined, either for causes or persons, within
any bounds." And Blackstone, in 1 Comm. p. 161, says that " it
can do every thing that is not naturally impossible," that "it
hath sovereign and uncontrollable authority in the making, con-
firming, enlarging, restraining, abrogating, repealing, reviving
and expounding of laws, concerning matters of all possible de-
nominations, ecclesiastical or temporal, civil, military, maritime
or criminal ; this being the place where that absolute despotic
power, which in all governments must reside somewhere, is inr
trusted by the constitution of these kingdoms." 1

With regard to laws impossible to be executed they must be
of necessity, legally as well as naturally, void, since no judicial

1 And compere Bacon's Abridg Siatitt*t, A. Dwarris on Statute*, pp. 648-4147. ■
The passages in Brae ton, Fleta and the Mirrour which gp«ak of the low of natcre as
immutable by the legislative power of the state, are only repetitions of the language of
Justinian's Institutes, and must receive the earns exposition. See th* next chapter.

138

LBGIAUkTIVll POWWU

or executive- power can give, them an effect contrary to their
own nature. Blackstone Bays, Comm. vol. 1, p. 91 : " Acts of
parliament that are impossible to be performed are of no validi-
ty ; and if there arise out of them collaterally any absurd conge*
quences, manifestly contradictory to common reason, they are,
with regard to those collateral consequences, void. I lay down
the rule with these restrictions; though I know it is generally
laid down more largely, that acts of parliament contrary to rea-
son are void. But if the parliament will positively enact a
thing to be done which is unreasonable, I know no power in the
ordinary forms of the constitution that is vested with authority
to control it : and the examples usually alleged in support of
this sense of the rule do none of them prove, that where the
main object of a statute is unreasonable, the judges are at lib-
erty to reject it : for that were to set the judicial power above
that of the legislative, which would be subversive of all gov-
ernment." Mr. Christian's note to this passage concludes as fol-
lows : — " but where the signification of a statute is manifest, no
Authority less than that of parliament can restrain its opera-
tion." The conclusion of Sir Matthew Hale respecting the power
of parliament is equal to a definition of the supreme legislative
and judicial powor of every state or. nation : — " this being the
highest and greatest court over which none other can have ju-
risdiction, if by any means a misgovernment should any way
fall upon it, the subjects of this kingdom are left without all
manner of remedy." 1 From these various authorities it may be
inferred to be the theory of the public municipal (national) law
of the British Empire,* that the entire sovereignty of the nation
is vested, or as may be said, has primordial existence (by right
above law), in the legislating body or bodies-— king, lords or
commons, or the three united ; including under this designation
all colonial or local, legislative bodies. All that sovereign power

1 The statute Confirm atio Chaitarnm, 25Edw. 1. e. 1. declares that the great charter
shall be held for common law ; and the statute of Westminster, 42 Edwi 8, c. 1 : " It is
asserted and accorded that the great charter and the charter of the forest be holden
and kept in all points, and if any statute be made to the contrary, that shall be holden
for none." Bee Co. Lit. Proeme to 2d. Inst An Act of parliament is thus the autho-
rity for the restriction of parliament by common law.

*- The question of the limitation of the legislative function of the English govern-
ment, under the British constitution, is a question of public municipal (national) law,

in any nation may do, this organized body or 'incorporated gov-
ernment may do. * -j.

§ 182. But whatever may have been the extent of the power
residing in the British parliament alone, or in it together with
the provincial governments, to determine the laws which should
prevail territorially in the American colonies, the common law
of England Was always regarded in each of the colonies, for
many years anterior to the revolution, as a law of national as
well as local extent, determining the rights of the colonists of
English birth and their descendants, as rally as those of native-
born subjects of the . same race residing in England : and no
permanent alteration of common law liberties, as to them, oc-
curred during the period of the union with the mother country.1

§ 133. As has been remarked in the first chapter (§ 42), the
term liberty, when used to express an actual condition of privi-
lege enjoyed by a person living in political or civil society, cain
only be described as the effect of laws resting on the sovereign
power of some state or separate political society,-— -jposUnm law,
in the comprehensive sense in which it had been herein before
used : while, in the conception of that effect, as construing a con-
dition either of liberty or its opposite, not only the purpose and
object the law must be considered, but also its character as a
relation between superior and inferior, or iri other words, its
source, authority and extent, *

Regarding Iww only as the expressed will of a sovereign, or
of a possessor of that sovereign and supreme authority which
must in every state have intrinsically the same nature, and lib-
erty only as the result of law,— every condition of privilege, or
degree of liberty which may in different states be attributed to
private persons may be said to have the same foundation. 'Where
a distinction is observed in the nature of municipal law, as

which ought to be distinguished from the jKJlitfco-etbical question, noted fa the first
chapter, respecting th6 authority of a law of nature, ; , bel»g distinct (piectaOas : the one
of lav, positive law,— the other of ethic* or political science.

1 American Tracts, London, 1766, Dwiimei'a Defence of the Ifew England charters,
p. 49. And compare the caaes cited in note to § 126. The paper by Bentbam, 1808,
• entitled, "A plea for the eonstitntiaB," sod relating to the illegality of certain local
laws in New South Wales, will be found interesting in connection with the subject of
this chapter. So also I>ng> Freedom and Indepei^ «
tralia, London, 1863. '

LIBBBTIWITIL JOfD POLITICAL.

J>etogj either public or! private, the freedom of action which is
enjoyed by private persons in a state or political I society may be

-Milled 4he ireefalt of private laWi But since the*e must be in all
litatea a public i lawvor law of political constitution, by whioh
the aouroe, duriUion and extent of the private law is determined/
U>4> effect of that publio law it always ' an essential element of

-the liberty )enjtryed by private persons in the ordinary relations
qf ! ciivij society^ < those which < ar^ . ordinarily considered distinct

ifrom the public or poHtical relations of the Btate.

-vn WliAtey«r Condition «f>a natural person, who is amem-

,berl<tf ,a: oivU > state*! may be called liberty^ mUBt be juridically
ksownos composed: ofi individual *nd relative righto ; since it
cwaista in relations existing - under law c and those rights may

•bto called Ulwrties^tlioiigb !vdtt constant reference to the ex-
istence, of Htoi .Da. all states wherein a publio law, or law of
jroliticai constitution (in any proper 'sense: of the word law), can
be said to eiist, a distinction may be made between that liberty
of the individual meuftbert of political society which exists in
©isrU or/social relations, (which may be termed liberty by private
Jaw,) and' liberty of action ib connection with the public and
political lite of the state, (liberty by public law.) The finst
might abo be properly distinguished as social or civil liberty ;
the second, political liberty.* ; But: since, wherever the last can
be said to exist, the first, or liberty <by private law, acquires a
distinctive part of Us nature in tbe guarantees afforded to it by
the public law, — in such states the definition of the term civil
liberty includes the basis of private rights in the public law;
since the nature and existence of private law is itself the topic
of a law in the strict sense of the word.
• §135. When in English and American jurisprudence civil
liberty, in general, or any particular, right or liberty is spoken
of as the' result of the law of England, and attributed to any pri-
vate persons subject to the sovereignty of the British empire,
the political foundation of the law by which the rights of pri-
vate persons are defined is always indirectly referred to, and the

1 B»oon, D« Aug; Sdm. L. 8, o. 8. 10. Apberiam 8. "At Jo* Privatum tub
■'lBl)b9iiHi^UlDl'1itetN'--'-
• *<Jo*rt>. 1 Bl*; Cental^ p. 126, a. by"(^«a«n5 Ohlpmsn, on Gov, p. 59. Who-
veil : EL Mor. & PoL, § 586, dj*ta'iignuhe« between tocial freedom and political freedom.

COMMON LAW — JUTIONAJL. ^

various public guarantees by which private righto or liberties
become identified with the public law. So far as the individual
and relative rightp existing under the English law, and which
are called « liberties,' W< civil liberties,"— « the liberties of the
subject,"—" the privileges and immunities, of Englishmen,"1
have a peculiar character, it is rather in the prigiu, duration and
extent of the law in which they are founded, than in the charac-
teristics of those mutual relations which that law establishes be-
tween private persons. For, regarded merely as existing in re-
lations between private persons, the same individual and rela
tiye rights may be found under the law of other states or couir
tries. The use* of these term* always includes in jiome degree
the idea of pplitical liberty, and the foundation pf private Jaw.

§ 136, The political foundation of law in the colonics has
already been in part jndicated. It wa* a mark of these righto
or liberties pf the English, colonist that they rested on " common
law; " which, regarded only as a private law, or law determin-
ing the relations of private persons,, was a law having a distinct
basis in the will of , the nation, as apposed to the will of : any
particular part or portion of the inhabitant* exercising a sepa-
rate or local ppwer,« or of. any person or, body of perapns in the
realm, not identified, by public law, with the nation as a politi-
cal unit : a law alterable indeed by. the act of the supreme or
sovereign power, and by that power as vested in a government;
but that government— <xne which was assumed to be, by its parr
liamentary constitution, the representative and organ of a whole
nation. Tjie common law had therefore an integral existence
in each part of the empire at the same time ; being therein 4ja-
tinguishahle from the concurrent rules of a number of indepesk-
dent provinces or localities.

, '2 Co. Utt cap. 29. (4.) "Ant dhaeisfetor de Kbero tenemento suo, tcI libertati-
to* [Mag. Ch.] Thu wor/libwtates, Ebertie*, hath three .Sgnificatfow:

^S.^^Rt^US^ *

2. It si^oifieth the freedom^ Hiat the «ol#lcto of ^land luw*»

•^^W^'^E* ^I^T^^-^&^ l- *fc ^Hm ^mPtm m after

e^it, qua leges ]Mw«di™q» hodie vocanturJ which, by the w^btlj* M.toti£
original meaning of the pbW«*M**, faw (and dlfti*^fiwn th*t fc which it fa iKrir
taken) which was therefore called comma* because it extended to all wWu
before, different parte had been ntled by difiaw^hmL" ^ ' wa*reM <

102 NOT AtA TRANSFERABLE.

It was also a law, in its ordinary operation, judicially re
ociveti as of constant or customary existence ; not as referable
to some recorded act of the depositaries of supreme power, con-
ferring those liberties as something which they might either
give or refuse. It was a law not taken to exist irrespectively
>of political authority, but yet hot taken to rest, in the first in-
stance, on acts of positive legislation. In being derived from a
judicial apprehension of natural reason, it was not indeed more
Jwal than the statute law, but differed from it in not being so
specifically devised and promulgated in reference to persons and
ihingB in and for a certain territory only. Therefore, so far at
least as it defined relations of persons without reference to spe-
cific things in England, it was a law which might be taken to
be a juridical indication of natural reason in reference to the
relations of the persons to whom it applied, not in England only,
where it originally prevailed as the territorial law, but wherever
they might remain under the same national dominion. This
personal character of the common law is shown when, in de
scribing the liberties or rights created by that law, they are
termed " the liberties of Englishmen." 1

§ 187. As is shown in the passage from Blackstone before
cited, and the writings of American jurists referred to in the
same connection, it is not to be supposed, when the common law
of England is spoken of as a personal law for the colonists, and
as determining their rights and liberties in their new domicil,
that tne. entire body of rules comprised under that name, in
England, had an equal extent in the province.' As has been
shown in the first chapter (§ 23) the rights of persons may be
distinguished into rights existing Cither in relations in respect
to persons as the objects of action, or relations in respect to
things as the objects of action. The law prevailing in any place
or/ territory is therein a rule of action in reference to things, as
well as persons, (though persons, or the actions of persons, are
the ultimate objects of every law,) and it is plain that many
things (either natural or legal things) which were, in England,
the objects of action contemplated by the common law, did not
exist in the colonies. A very considerable portion of that

1 BL Comm. p. 144.

AS A. L4.W OV THINGS.

188

division of the common law which is called by Blackutone the
" law of things," was therefore not transferred with the colonists
to America as a law personal to them ; and, so far as the lib-
erties of persons in England consisted in rights of action in refer-
ence to those things, they had no existence in the colony.1

The legal liberty of any person in a civil state cannot be
fully defined without considering his rights of action in respect
to things : yet those rights of action which exist in relations to
other persons as the objects of action, without special reference
to things, or without reference to specific things, may be taken
to constitute his general liberty of action. Individual and rela-
tive rights, as defined in the first chapter, may thus be juridi-
cally recognized to be rights belonging to persons in reference
to other persons, without reference to specific things ; and the
law of England determining and maintaining those rights, as
rights of the native or domiciled inhabitant of England, with-
out reference to what is called by Blackstone the law of thing*,
may be called the law of the liberties or privileges of English-
men— the civil liberties of the freeborn English subject. With
this limitation in respect to things, the law determining the
liberties of English subjects, in England, may be said to have
accompanied the colonists as a personal law.

§ 138. Further it may be remarked, by way of defining
what that liberty or degree of privilege, under the common law
of England, was not, and as having, an important bearing on
the peculiar questions connected with this subject, that, so far
as the liberties of British subjects, thus secured to them and
resting on the imperial or national sovereignty, consisted in
rights of persons in reference to thing*, they could only be
rights in reference to such things as were known to the law of
England : and that, so far as a right of property, or to property,
was one of those liberties, it was only to such objects of pos-
session as could lawfully be property by the law of England.

§ 139. The possession of liberty in any extended sense, or
the enjoyment of a free condition or status, irrespective of its

1 Compare also, Kent's Comm. n. 162. 8 Peters, 658. 1 Comstock, 31-88. 1
Mass. R. 60. 2 do. 584. Settlement* in America, toL I., pp. 908, 804. VoL L et
Mass. Quart. R. 468-470.

connection with jjublic law, must always/ tinder any system of
rtittnlcibal (natibnal) law, consist in the exorcise of individual
and relative rights. A free condition may however be attri-
buted to a^ersdh who dbes tiot aetually sustain those relations
towards specific persons' in which relatfae rights exist. A legal
capacity for those rights iB, however, taken to be an essential
uttribrite' of a . free condition, whenever $ distinction is made be-
tween liberty and its opposites, as contrasted results of private
law ; though individual or absolute rights— rights in relation to
the commtimty At large, constitute the essential part of free
status or legal condition. The English law determining indi-
vidual rights and the capacity for relative rights may be called,
more particularly than the rest, the law of the status or condi-
tion of those to whom it applied as a personal law.

§ 140. When the individual rights which are essential to the
enjoyment of liberty of condition are declared to be the right
of personal liberty, the right of personal security, and the right
to the acquisition and enjoyment of private property, still the
condition which they constitute cannot be apprehended without
the complete analysis of the laws by which those rights are
vindicated or maintained. In a definition of a state of liberty,
as opposed to domestic slavery, or bondage correlative to a
right of dominion in private persons, these three terms, in a
general sense, may be taken to have the same meaning in all
countries. But as defining the elements of efoU liberty , as that
term is employed by European and American authors, they are
of little significance, unless stated in connection with the guar-
antees by which they are preserved. It would be going beyond
the scope of the present treatise to describe the guarantees for
the rights of private persons tinder the law of England at any
particular period of its history : — habeas corpus, trial by jury,
the rules of evidence, the independence of the judiciary, rights
of counsel, publicity, utterance, &c, and above all, the definitive
or positive nature of that law, in having a settled supremacy
independent of the will and moral judgment of all who are
not identified with the actual possessors of ultimate sovereign
power. A marked peculiarity of the common law of England
is the degree in which it unites the characteristics of public and

BKKYITUPX.

private law; so that the exposition of private right* is never
separable from that of a political (Constitution. Theae righto or
guarantees, though attributed to ancient and customary Jaw,
have been, at different times, defined and maintained with diffep-
ent degrees of precision ; and their legal character has therefore ,
greatly varied, even during the last two. centuries.' The ques-
tion, how far the common law of England, in being public law, .
was the. same in England' and America, was the question in
which the revolution of the colonies originated. By the trans-
plantation of the common law to each several colpny, with a
territorial extent therein, it acquired, in each, a new and sepa-
rate character, as the local: law of each. But still, bo far as it
was a law of personal condition, or the law of those rights
which are commonly denominated personal righto, its pro-
gressive development was never independent or isolated in the
several divisions of the Empire, To. that extent it continued,
to be a national system, and the righto and guarantees, above
v spoken of, continued, in their progressive development, to be the
same righto in respect to their juridical source, or to be righto
under one and the same system of jurisprudence; though main-
tained and exercised under, the local or internal law of distinct
political jurisdictions.*

§ 141. Under the relation of master and servant, as it has
been known in different times and countries, an immense varie-
ty of reciprocal rights and obligations may be comprehended ;,
and the legal incidents of the relation have varied in England,
during the period in which its " common law " has been histori-
cally'known to exist, as much as in any other European country.
Although, for more now than three quarters of a century, a con-
dition either of chattel slavery, or of involuntary servitude, ex-
cept by force of penal statutes, has been held to be contrary to

* For the charters of English liberties of the subject see, besides the English Sta-
tute! at Large, Co. Litt 3d Inst; South Carolina Stat, at large, preface and pp. 73-
129, containing, Magna Chart* of King John (1215), Charter of Edward L (1297).
the Petition of Rights (1628), the Habeas Corpus Act, 81 Car. 2, o. % (1679), Bill
of Rights, 1 William and Mary, sees. 2, o. 2 (1689V See also fteWs Civil Ubt&g
and Self .GoTerament. And for a summary of toe principal usages and acts from
which a popular and consolidated presentment of the public and private rights of the
English nation, answering to a *ml ten constitution, at the present day might be made,
see Wade e History of the Middle ai d Working Classes, Part HL b. 5.

• Compare onto, f$ 48-64.. .

VILLKVACMB.

the local or internal law of England, it was far from being bo
settled at the time of the establishment of the English colonies
in America and of the grants of their respective charters. Vil-
lenage continued to exist in England until the year 1661 ; if, as
Blackstone averts, it may be taken to have been abolished by
the act of that year, 12 Oar. 2. c. 24, reducing all tenures to
free and common socage.1 In Bome of its forms, villenage, in
England, was nearly equivalent to chattel slavery : the villein
in gross or at large being, according to Littleton, " annexed to
the person of the lord, and transferable by deed from one owner
to another, and if he ran away from his lord, or was purloined
from him, he might be claimed and recovered by action, like
beasts or other chattels." *

But villenage in England, after the time of the Norman in-
vasion, had always the character of a feudal relation, and was
connected with the tenure of land. The legal personality of
the villein, and a capacity for rights in some degree, was also
acknowledged. If under the Saxon government there had been
a class of absolute slaves,* it is supposed by Wright, in his
treatise on Tenures, that the Normans, carrying out the feudal
constitution of a civil state, admitted such slaves to the oath of
fealty, creating the legal obligations of a legal person, which
conferred a right to protection under the law, and raised the
serf to a kind of estate superior to downright slavery, though
inferior to every other condition.* The law protected the per-

1 * BL Comm. 96. LoftV* Ren. a

• 1 Co. Lit J 181.

* An historical Discourse of the UmTormlty of the Government of England, by Na-
thaniel Bacon of Oreis* Inne, (1647) p. 56. Specking of villein* in the Saxon times,—
"The most inferionr of all were those which were anciently c-i'Ied laod or slaves;
those were the dregs of the people, and wholly at the wfll of their lord to do any ser-
vice, or undergo any punishment ; and yet the magnanimity of the Saxons was such" &c
— stating their merciful treatment of slaves ; • * • "and though the insolency of the
Danes mnch quelled this Saxon noblenesse, yet it was revived again by the Confessor's
laws, which ordained that the lords should so demean themselves towards their men,
(hat they should neither ineurre guilt against God, nor offence against the king ; or,
which is ill one, to respect them as God's people and the king's subjects,*'

And see Wade's Hist Of the Middle and Working Classes, Part L, ch. 1. Turner's
Anglo-Saxons, voL iil, p. PI.

^ Wrights Tenures, pp. 215-21T. 2 Bl. Comm. 92. Wade's Hist &c, p. 9 : "In
1102 it was declared in the great council of the nation, held at Westminster, unlawful
for any man to sell slaves openly in the market, which before had been the common
custom of the country." The author does not give the authority : ir.ch a declaration
would have been equivalent to a repudiation of absolute chattel slavery.

8KB VICE BT OONTKAOT.

eons of villeins, as the king's subjects, against atrocious injuries
of the lord ; for he might not kill or maim his villein : and the
latter had a right of action against his lord for the mayhem of
his own person, or the murder of his ancestor. Neifes had also
an appeal of rape, in case the lord violated them by force.'

Even in the times of Littleton and Coke it was said that vil-
lenage conld exiBt only by prescription, or by confession in open
court. And when most opposite to a free condition it had some*
thing of a local character, relating to the land of the lord to
whom the villein services were due.* It was therefore an inci-
dent of those relations of persons to things, or of the relations
of persons to other persons, in respect to those things which were
not transferable with the English colonists to America, and die?
not therefore exist there under the common law, i. e. feudal es-
tates, which were not established in America.'

§ 142. The relation of master and servant, known under the
modern common law of England and the same law operating in
v the British colonies, with personal extent for the inhabitants
who are of British race or descent, is a relation exclusively
founded on, or arising out o£ the voluntary contract of the par-
ties.4 The relation between a minor apprentice and his master,
under the same law, is a substitute for, or a modification of, the
paternal authority ; and the reciprocal rights and obligations of
the parties are derivative from the relation of parent and child.
This relation, as an effect of the common law of England having
personal extent, existed in all the colonies : being created under
the administrative authority of the inferior courts, justices of the
peace or other officers, to whom a £taz*&-paternal authority of
guardianship had been delegated try special statutes, or who, in

1 1 Co. Litt §§ 189, 190. In respect to the community at large the villein ni l
legal person, as much as any liber homo. 2 Co. Litt cap. 1, (7) : " Conoeasnmu et
dedimus omnibus liberis hominitras regni nostri, Ac. These word* in Magna Chart*
doe include all persons eoolesiasticall and temporal], incorporate, politique, or naturall;
nay, they extend also to vflleinea, For they are accounted five against all men, saving
against the lords." 2 Co. Litt cap. 29, (1): "NuSuc liber homo capiator vel im-
prisonetur. This extends to villeins, saving against their lord: for they ore free
against all men, saving against their lord."

* 2 BL Comm. 92-9a Wilkimfs Leg. Saxon, p. 229, et oap. 65. Leg. GulieL L
" Prohibemus ut nullus vendat hominem extra patriam."

* And see Neal v. Farmer, 9 Georg. R. 564.

* For a succinct account of thn relation between master and servant after the ex-
tinction of villenage, see Wade's History Ac. Part z.

IBS

rams Amy SHrrjjrc .

being appointed for office* known to the common law of Eng-
land, assntned it as an incident of office under that law: the
rights und duties of the parties being determined by common
law rales j though, the establishment of the relation was, in most
of the colonies, regulated by special statutes.

' >§ 148. Though the relation of master and servant, as thus re-
cognised under the common law of England and the colonies, is
one which may modify in many important respects their rights
and obligations in respect to third persons, yet, so far as the obliga-
tion of service has depended on contract or the voluntary choice
of the servant, it does not appear ever to have been taken to
create a right to that service as against other persons ; so that
the act of decoying or inveigling that servant, from such ser-
vice, would constitute a wrong which the law would remedy in
maintaining the master's right. The right of the master being
correlative to obligations on the part of the servant only, the law
. has given a remedy in such cases only against the servant. It
is doubtful, too, whether even the forcible abduction of an adult
servant could be resisted by the master, as possessing any spe-
cific right in respect to such servant, or as having any other ca-
pacity or right, in such case, than that of any third party aiding
and assisting such servant in defence of his individual right to
personal freedom.1 If, however, the servant should be under
age, whether apprenticed or serving with or without wages, the
master has been regarded as standing in loco parentis ; * having
a right, coupled with a duty, to resist such abduction. The
right of the master, in the case of such minors, being also a right
correlative to obligations on the part of third persons, or the
community at large ; and it would appear to have been a right
of personal custody maintainable at common law, by the reme-
dial writs of habeas corpus and personal replevin. The master
in this case standing in a position, as to third parties, similar to
that of a husband, parent or guardian.

So far as the relation of master and servant has been founded
on contract between them, it has been governed by the common

* In HngWi Grand Abridg. p. 1399, ft b held thftt » muter m*j justify an m-
noli in defetioe of hii •ervant

* * Kenfi Comm. p. *61, (288 of 7th Ed.)

BTATlTS BY LAW OF HAfiOWS'.

larw ruleB applicable to contracts. Hie English common law, as
it has been received in America, has never enforced the con*
tract, as against the*party contracting to serve, by compelling a
specific performance. It has only given a remedy between the
parties in pecuniary damages, aB in case of a breach of any
other contract.1

§ 144. It has been shown in the first chapter that the un-
written or common law, in England as well as in every other
country, Jbeing derived by a judicial recognition of natural rea-
son applied to the necessary conditions of human existence, —
in determining what principles are to be received as rules of
natural reason with the force of positivo law, the tribunals of
each country must refer to standards indicatory of the juridical
will of the state from which they derive their authority. It
was further shown that among these standards are those prin-
ciples which are known from history to prevail generally among
all nations, forming a general or universal jurisprudence — a
historical law qf nations — which must be received as part of
the jurisprudence of the state ; unless the local law of the state,
derived from its own national usage and judicial precedent, or
from positive legislation, contains principles promulgated with
universal personal extent, having a contrary effect. Therefore
in determining what that common law of England was which
accompanied the British colonists in America as a personal law,
it must be inquired whether, at the time of the settlement of
the colonies, there were any 'principles of universal jurisprudence
-—historical law of nation*— affecting the status or condition
of natural persons, which could, in England, be judicially ap-
plied as part of the common law; and whether, at that time, the
local law of England, or rather the law derived from its own.
several national usage, and its own judicial precedents or legis-
lation (operating without reference to the existence of other
states or nations), contained rules, having a contrary effect,

' 1 Blackf. Ind. R. 122, (1621) case of Mary Clark, s woman of color. Marg. note.
M It is a general rnle that covenants for personal service cannot be specifically enforced
either at common law or by statute. The case of apprentices depends on parental au-
thority, that of soldiers and saQors on national policy." The conditian of ad alt ser-
vants indentured tinder contract, which was common during the colonial period, de-
pended on special jtatatcs. Sec pott, ch, v.

140

EXTENT OF ENGLISH LIBRRTIRB.

which were 80 promulgated as to have universal personal ex-
tent in England, and therefore to prevent the judicial recogni-
tion and application of those principles of universal jurispru-
dence or the law of nations.1

§ 145. This inquiry into the principles of the law of nations,
affecting personal condition, considered as part of the common
law of England, will be examined in a separate chapter. But
it is convenient here to remark, though actually by way of an-
ticipation, that in the view of almost every historical writer
who has treated of the establishment of laws in the American
colonies, the private law of England, or the private law having
territorial extent in England, during the period when the
colonial patents and charters were granted, is taken to have
attributed the individual and relative rights before spoken of as
being called, in connection with their guarantees in the public
law, — the liberties of Englishmen — the privileges and immuni-
ties of the free-born British subject, — without distinction of race,
descent, or physical constitution, to all natural persons actually
within the territorial limits of the British Isles ; or at least to all
native and domiciled inhabitants ; subject only to the rights of
others having the same general denomination, growing out of
the relations of persons all equally privileged in respect to that
law; — the relations of parent and child, husband and wife,
master and servant, the relations of contract, those founded on
the feudal tenure of land, and those incident to the punitive
and remedial laws of the state. Personal liberty, in the sense
of one of these rights, signifying the freedom to dispose of one's
person and powers of body and of mind, without control by
others who are not representatives of the ultimately supreme
authority.

§ 146. When it is said that the law of nations is part of the
common law of England,8 it cannot be so said with propriety if
by this it is intended that the international law, — meaning that
rule of which states are the subjects, iB part of that common law.

1 Compare ante, 8 99.

* As in 1 Bla. Com. 273. 4, game, 67. 1 Kent's Com. p. 1. Triqoet v. Bath,
8 Burr. 1478. Heathfield v. Chilton, 4 Burr. 2015. Case of Henfield, by Judge
Wilson, Duponceau, p. 8, and note. 3 Dallas, R, 392.

LAW OF NATIONS — PBIVATE LAW.

141

For the common law is lew in the strict and proper sense, which
this international law is not.' The common law is a municipal
law (national, jus civile, ante § 9, n.) in being founded on the
national sovereignty of England, as the absolutely independent
authority for that rule of action which determines the relations
of the individuals known as its subjects, according to the princi-
ples which define "the existence and mode of action of sovereign
states. But the historically known law of nations — universal
jurisprudence, herein before defined, so far as it contains princi-
ples determining relations of private persons, is an indication
and criterion of natural reason, to bo judicially received, not as
having any authority in itself independent of that sovereignty
upon which the municipal law of England (national law — both
internal and international according to its application) reBts, but
because already customarily received and allowed as an exposi-
tion of its juridical will, unless the law peculiar to the territo-
rial dominion of that sovereignty, founded on local precedents
or legislation, requires the application of principles having a
contrary effect. >

*Ante, §§ 11, 12.

None — As has been shown in the second chapter, the juristical conception of a
universal jurisprudence or law of nation* requires the recognition of some persons as
alien, or as having sustained relations created by foreign laws ; and the exposition of
principles having that character cannot be looked for, in the juridical history of any
one state or nation, before the time when a peaceful intercourse has subsisted, under
its jurisdiction, between the native or domiciled subjects of the state and persons
recognized as subjects of foreign states ; that is, before a private international law
has become a distinguishable part of the national law. (See ante, §§ 92-96). The
thirtieth chapter of Magna Charta declares, " All merchants (if they were not openly
prohibited before) shall have their safe and sure conduct to depart out of England, to
come into England, to tarry in, and go through England, as well by land as by water,
to buy and sell without any manner of evfl tolles, by the old and rightful customs,
except in time of war." (See 2 Co. Ins. cap. 80). Unless tliis was only declaratory
of an existing common law principle, it must be supposed that, before this, slices had
no legal rights in England, and that it is only after this period that a law of nations
could find place in the common law, by the application of private international law.
See Walker's Theory of the Common Law, ch. XX.

CHAPTER IY.

THB ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES, — THE
SUBJECT CONTINUED. OF PRINCIPLES OF UNIVEESAL JURI8FB.TJ-
DENCE, RELATING TO FREEDOM AND ITS OFPOSlTEfl, ENTERING
INTO THE COMMON LAW OF ENGLAND.

§ 147. It is proposed in this chapter to ascertain, from the
history of jurisprudence among European nations, what princi-
ples, affecting natural persons in those relations which consti-
tute a condition of freedom or of hondage under private law,
were judicially known as part of the historical law of nations at
the time of the planting of the colonies, and the date of their
charters ; and next, whether those principles could be applied,
in England, as part of the common law derived from the judi-
cial interpretation of natural reason, to determine the condition
of natural persons.

This universal law or low of notions, it will be remembered,
becomes a topic of judicial recognition by an international
comparison of the effects of different systems of municipal law
in the relations of. persons considered as alien to some one juris-
diction.1 A historical investigation of the law of nations, as
forming part of the common (unwritten) law of any one state,
involves therefore, in some degree, an exposition of the private
international law of that state, as well as the private municipal
(internal) law thereof. It is thus necessary, in this chapter, to
anticipate somewhat the subject of a succeeding chapter, which

1 Ante, $ 94.

ORIGIN OF LAWS.

1*8

is — the private international law, in England and America,
during the colonial period, affecting relations of freedom or of
bondage.

§ 148. In the earlier periods of the existence of positive
law (as the subject of jurisprudence is herein denominated in
respect to its authority), when natural justice — the presumptive
will of the state, was ascertained by the autonomous judgment
of each judicial tribunal, according to its own apprehension of
natural reason,1 there could hardly be said to be any judicial
rule, forming part of the municipal (national) law of any one
state, which had, beyond any other part of that municipal law,
a universal character, or the character of an exposition of the
law of nature, or was more directly derived from the natural
reason of mankind than any other legal principle. Still less, at
a period when international intercourse was almost unknown,
or considered beyond the pale of judicial authority, could there
be any rule which might be considered a universal law, or lem
of nations : for it is only by the intercourse of persons subject to
different municipal laws that a law of nations can be judicially
distinguished. In the imperfect civilization and intercourse of
nations in earlier ages the means of collecting and digesting
judicial precedents were too limited to allow any settled exposi-
tion of natural reason, as a rule of action derived from a com-
parison of the laws of various states.

The jurisprudence of the several nations of remote antiquity
must have contained numerous principles common to each, but,
previously to a mutual knowledge of each other's institutions,
there could be no definite acceptation of natural reason from
the concurrent testimony of the various independent sources of
positive law. The laws of the Roman Republic are the earliest
of which it can be said positively that they were founded on a
recognition of the force of the concurrent usage and legislation
of various nations, as an indication of a rule of natural reason
deserving to be judicially received by any one state. This
recognition was made in legislative action if, as is commonly
believed, the laws of the Twelve Tables, B. 0. 454, were com-
piled by persons specially instructed to regard the laws of the

1 Ante, § 29.

144

THE ROMAN LAW.

Grecian States,1 and it has been shown, in the second chapter,
in what manner, by judicial action, a part of the Roman law
was always regarded not only as national law, but as an expoei-
tion of the law prevailing among all nations or among the more
civilized. By the extension of the Roman dominion, the whole
national law acquired more and more of this character, and
this character or quality it has constantly had in every country
in Europe : first prevailing, as the customary or common law,
in countries which had been under the Roman dominion, and
civilized by Roman influence, and then adopted oy the northern
invading nations, both as the law having territorial extent in
the provinces conquered' by them, and also as an exposition of
the juridical wisdom of all nations and all preceding times:
gradually supplanting the personal laws which they brought
with them.' In this sense it has been the common law of the
greater part of modern Europe, and of all those nations which
constitute, in their own vocabulary, the civilized world. Its
authority as law nowhere rests upon its intrinsic merit as an ex-
position of natural reason, but is a matter of the customary law
of each nation ; though in states which have boasted of a law
of national origin, it has been generally referred to, judicially,
as if its authority were dependent upon the subjective judgment
of the tribunal, accepting it as pure natural right or reason.'

1 See Diony. Halicar., Antiq., Lib. X., cap. 57. Heineccius : Hist Jnr. Civ. Lib.
1, c. 2, § 23, 24. Long's Disc., i. 56, n. Horse Jnr., pp. 80, 40. But Giambatista
Vico held the XII. Tables to have been only a digest of the customary law of Latium ;
see London Law R< view, vol. XX., p. 268 ; XXL, p. 98.

* On this subject see Savigny's Hist of the Roman Law in the Middle Ages, first
volume, translated by Cathcart ; and Savigny's Heut Rom. R , the last volume.

Sir Wm. Jones : Works, voL HI., p. 75 : " It [the Code of Justinian] gives law at
this time to the greatest part of Europe: and, though few English lawyers dare make
such an acknowledgment, it is the true source of nearly all our English laws that are
not of feudal origin."

Paperb read before the Juridical Society, vol. 1, part L London : 1855. Inaugu-
ral, by Sir R. Bethell, B. O., p. 2 : " It is now clear that the common law which
existed in England at the time of the Norman invasion was in a great measure derived
from the jurisprudence that had been introduced and administered by the Romans, dur-
ing the 300 years of their dominion in Britain."

It hos been a matter of controversy how far Bracton drew his work from the Cor-

Eis Juris : see Reeves' Hist, 2 vol., pp. 86, 87, and 4 vol., p. 570, where he calls
racton the father of English law.
" See ante, § 84, and cote ; Domat : Civil Law, Pref., pp. 1, 2, and Prelim. Tr.,
e. xL, § 19. " But for the laws of nature, seeing we have nowhere the detail of them
except in the books of the Roman law," <tc. The Roman law ma) , or may not, be
accordant with the laws of nature. Its authority with the tribunals of modern states

BASIS OF ROMAN LAW.

145

But, as the recorded historical testimony of the juridical reason
of many nations and countries, its value has been so repeatedly
acknowledged in English jurisprudence 1 that reference to it is
indispensable to ascertain any legal rule which can be attributed
to universal jurisprudence and received into the common law
of England as the law of natural reason.

§ 149. The jurisprudence of the Roman state has been con-
sidered by many of the modern civilians as asserting the identity
of law with all rules of right action binding on the conscience
of the individual subject, to a greater degree than has been
recognized in any modern system. This view would appear to
be supported by the meaning given to such words as justitia,
jurisprudents, and jus, in the exposition of the basis of legal
science given by many jurists of the later imperial period.
But a particular examination of a very few of the specific topics
of Roman jurisprudence would show that the law of judicial
tribunals was confined with them, as with the moderns, to the
enforcement only of those duties as legal which the supreme
power had made such by positive enactment, or through definite
juridical recognition and application of natural reason, and had
accompanied by a remedial sanction.*

In the view of resting the foundation of law on a moral
criterion, or of expressing its jural character, the Institutes of
Justinian, Lib. I., tit. 1, § 1, give to the term jurisprudence a
more extended signification than that allowed to it by limiting
the meaning of law to the sense herein before given as the ordi-
nary practical meaning of the word {ante, % 17). Jurispruden-
tia est omnium rerum humanarum atque divinarum notitia

depends upon judicial precedent — the fact that it has been recognized as an exposition
of those principles which actually do prevail among all nations. Bnt the theory of
Domat on this point is very commonly held by English writers, in justifying a reference
to the Roman law. See Browne : Civ. <t Adm. Law, p. 4. Bowyer : Univ. Pub. Law,
passim.

1 Hale's Hist Com. L., p. 24. Holt, C A in 12 Modem R., 482. 3 Kent? s
Comm., p. 490. Wheaton's EL Int. Law, Introd., p. 22. "Wheaton's Law of Nations,
p. 81. Duponceau : on Jurisdiction, p. 86. Reddie's Treatises, passim. Dr. Duck's
Treatise on the Use and Authority of the Civil Law in the Kingdom of England.
Robertson's Hist. Charles V., voL I., note, xrv., BB.

* Mackeldey'B Comp., §112. Tr. by Kaufmann. "Law was considered by the
Romans as primarily founded on morality, and on a voluntary respect for all that was
^ood and noble. In their view, compulsion was no essential element of a law," &c
The translator's note, to this section, points oufcthe error of this statement

146

JUB — IN TWO SENSES.

juBti atque injusti scientia ; a definition nearer to the modern
conception of moral philosophy. Justitia is used in the sense
of the English words uprightness, honesty, integrity ; justitia
est constans et perpetua voluntas jus suum cuique tribuendi;
jus here having its sense of a right, while immediately follow-
ing jus is used in the sense of law as a rule,1 juris prascepta
hfflc sunt, honeste vivere, alteram non leedere, suum cuique
tribuere ; without indicating the authority which is to determine
what is Jwnestwm, what it is alterum Icedere, and what is suum
cuique, or the right of every man.

§ 150, In the analysis of the law which immediately follows
these definitions, the first distinction is made according to the

1 By some of the German jurists, jus — taken in the sense of a rule of action,— jus
est norma agendi — is said to nave its objective meaning, and when used with the signi-
fication of a right, — jus est facnltas agendi — it is said to have its subjective sense. Vide
Mockeldey's Comp., Introd., § 2. Savigny : Heut R. R., § 5.

It may be doubted whether this designation of the different uses of the word jw —
founded on a well known Kantian distinction, is even philosophically correct; because
either a law or a right — the effect of a law — may be considered both objectively and
subjectively. And it is here important to notice that, in jurisprudence, both are used
objectively only, that is, each is regarded as having an existence independent of the
moral sense of the concipient person.

The subjective apprehension of jus, in the sense either of a rule or of a right, pro-
perly occurs only in ethics, where the law or the right is conceived of as something
that is because it ought to be : that is, in fact, as something which results from the
moral nature of the concipient : whereas, in jurisprudence, jus — a law, and jus — a
right, are conceived of as the result of the will of an assumed legislator.

Bentham, Introd. Fr. Morals and LegisL, ch. XVU., 23, note, employs the terms
abstract and concrete to designate the subjective and objective conceptions of jus in the
sense of the rule — norma agendi. " In most of the European languages there are two
different words for distinguishing the abstract and the concrete senses of the word law;
which words are so wide asunder as not even to have any etymological affinity. In
Latin, for example, there is lex for the concrete sense, jut for the abstract : in Italian,
letjge and diritto : in French, lei and droit: in Spanish, ley and derecho : in German,
Getetz and Recht. The English is at present destitute of this advantage.

" In the Anglo-Saxon, besides lage, and several other words for the concrete sense,
there <ras the word right, answering to the German Recht, for the abstract ; as may be
seen in the compound folc-right and in other instances. But the word right having
long ago lost this sense, the modern English no longer possesses this advantage."

But the terms Recht, diritto, droit, &c, are also used, in jurisprudence proper, in the
sense of facultai agendi, the sense of the English term a right ; and this is a concrete
sense as much as that of Getetz, legge, loi, &c. In English, the substantive word a right
is used only in the sense of faadtas agendi, while the words Recht, diritto, droit, &c,
signify, in their respective languages, not only this but also a rule which is right in thm
abstract, that is, the rule of natural equity : which may, or may not, be identified
with lex— the positive law. Comp. Dig. Lib. I., tit 1, § 11 : Paulas : libro XIV., ad
Sabinum. Jus pluribus modis dicife.r. Uno modo, quum id quod semper sjquum
ac bonum est, jus dicitur, ut est jus naturale. But, in the jurisprudence of every na-
tion, positive law is a jural rule, (leges juris) ; and the Recht and Gesetz, loi and
droit, &c., are presumed to be identified. And see Austin : Prov. of Jurisp., p. 805,
note, p. 808, note, in respect to this use of the words jut and Recht.

jus — ruBLiouM; pbivatdm.

147

object or relatione of persons on which a law operates. Hujus
studii dure sunt positiones, publicum et privatum. Publicum
jus est, quod ad statum rei Romance spectat, privatum, quod ad
eingulorum utilitatem.' Here publicum jus appears to be equiv-
alent to what would now be called the public law of some one
state, public municipal law, or constitutional law ; or, if a more
extended meaning is to be attributed to it, it may be taken to
correspond with what the moderns denominate political law, or
the science of political ethics, and that only with reference to
the relations of a single state.* In the mind of the Roman law-
giver, indeed, quod ad statum rei Homanae spectat, compre-
hended the laws of the empire of the world, and, so far as com-
patible with the admission of supremacy in that single state or
nation, the idea of international law m the modern sense/

§ 151. The analysis of private law, which next follows, is
founded upon the nature of its origin. Dicendum est igitur de
jure privato, quod tripartitum est: collectum est enim ex natu-
ralibus prseceptis, ant gentium, aut civilibus. From the imme-
diate sequence of the definition of natural law as being that
quod natura docuit, it may be taken to be identical with u natu-
ral preempts." But this natural law, as there defined, can hardly
be considered a part of public or private law in the primary
meaning of the word as a rule of action. The definition is only
a recognition of a state of things independent of human action,
or a law in the secondary sense ; and includes not only the na-
ture of man but of all animated existences. Jus naturale est
quod natura omnia animalia docuit. Nam jus istud non
humani generis proprium est, sed omnium animalium, qua? in
ccelo, quse in terra, quae in mari nascuntur. Hinc descendit

1 Vinnius : Comment Lugd. BaUv. 1726, B. 1, tit 1, not a Heineoc " Quod
ad statum Rom. etc. Quod a utilitate publicum est, aon quod sola auctoritate ; est
enim hsec divisio a fine sumpta, non a causa efBciente. Swgulonu* utilitatem. Quod
privatim ad cujusqne civis rem pcrtinet farailiarem. Quanquam et hoc pet conss-
quentiam publico, et illud privatim, utile."

1 Mackeldey's Compendium, p. 125, note bj Kanfinann. Compare ante, § 25 and
notes.

• Virgil : iEneid, B. VL L 85L

" Tn regere Unperio popolos, Bomaae, memento."

Gravina ; de Rom. Imp. $ § 1. 2, and Gravina : Origines L E $ .10. Hnber.
Conf. Leg., Lib. L, tit 8 ; Lib. II. tit 8, § 1. "In jure Romano non est minim nihil
hoc de re exstare, cum populi Romani per omnes orb is partes difiusum et equabili jure
gubernatum imperium oonflictui divert* nua legum non ssque potuerit esse lubjectuia."
Wbeaton : Int L. p. 20.

148

JUS GKNTTtJM.

maris atque foeminsB conjunctio, quara nos matrimonium appel-
lam ub ; hinc liberorum procreatio ; hinc educatio ; videmuB
etenim cetera quoque animalia istius juris peritia eenseri.

§ 152. The distinction next drawn between jus civile and
jus gentium, introduces a law of nations, as a source of the pri-
vate law, in a sense more nearly corresponding with the modern
idea attached to the terms law of nattwc and natwral law, when
employed in jurisprudence, and with ' universal law ' as it was
defined in the first and Becond chapters. Jus autem civile vel ger-
tium itr dividitur ; omnes populi, qui legibus et moribus regun-
tur, p»- fuo proprio, partim communi omnium hominum jure
utunt m quod quisque populus ipse sibi jus constituit,

ipsius ci 3 proprium est vocaturque jus civile, quasi jus
proprium ipsius civitatis. Quod vero naturalis ratio inter
omnes homines constituit, id apud omnes populos perceque
custoditur, vocaturque jus gentium, quasi quo jure omnes gen-
tes utantur. This law of nations, the offspring of naturalis ratio,
is afterwards made to overrule the natural law, jus naturale, in
the origin of slavery ; though that natural law, if implied in
'natural precepts' — naturalibus prseceptis, is before made a
source of private law — the jus privatum.1 The definition of jus

1 Mackeldeys Compendium, p. 126; Kaufmann's note. Savigny: Heutige Rom.
R. VoL I. Appendix I. (Tr.) " The Roman innate notice two divisions of law, founded
upon the general nature of its origin. One is a division into two parte : viz., 1, Law
as it existed for the Romans only, civile ; 2, Law as existing for all nations, gentium
or naturale. The other is a division into three parts : viz., 1., Law existing for the
Romans only, civile ; or 2, existing for all nations, gentium ; or 3, existing both for all
mankind and for the brute creation, naturale.

" I not only consider the first of these divisions the only correct one, but I also assert
that it is even to be regarded as the ruling division among the Roman jurists, and that
the other can only be regarded as an attempt at an extension of the subject which
never received general recognition ; nor ever had any influence in determining partic-
ular questions of law. The division into two parte is most carefully carried ont by
Gaius, in several instances. He places this division at the introduction of his work
without the recognition of a third part. Jus gentium is with him the older portion,
as ancient as the human race. It arises from the naturalis ratio of all men ; hence
he elsewhere names it jus naturale ; as in referring the natural acquisition of property
by voluntary exchange, in one place to jus naturale, and in another to naturalis ratio.
This division in two parte is found also with Modestin, Paulus, Marcian, Florentinus
and Licinius Rufinus, — * * The division into three parts is most distinctly made
by Ulpian. and after him by Tryphonius and Hermogcnian. It rests on the following
theory. That there was a time wherein men knew only such relations to each other
as were common to them and the brute creation ; those of the sexes, generation, and
education. Thereafter followed a second period of time, wherein states arose ; slavery,
private property and obligations were introduced : and this in like manner among men
wherever found. Lastly arose law in each state as peculiar to itself; partly by the

JUS PUBLICUM.

149

civile, in this place, is derived from its origin, or the source to
which in judicial apprehension jt is referred for its existence,
that is, the will of some one state or nation, and it is therefore
also here called ' its own,' — proprium. After this definition the
Roman people is said to use not only its own law, proprium,
hut also the principles of this law of nations, as the dictates of
natural reason, without further mention of ' natural precepts ' —
Et populus itaque Romanus partim suo proprio, partim com-
muni omnium hominum jure utitur. And in most instances
wherein the term jus civile is used in the Roman law it means
all that the Roman state uses, utitur, or enforces as a rule of
action ; that is, it includes both the/w* civile, or proprium, and
the jus gentium as here defined ; and is equivalent to the term
4 municipal law ' as employed by Blackatone, or to the term
' national law' according to Bentham's terminology.

% § 153. The jus publicum, whether exclusively relating to
internal, or to external relations also, must have had the same
origin in the will of the state, or in the rules of ' natural reason,'
being also a part of the law used by the Roman people. Inter-
national law, so far as it existed, and whether included under
that here called public law, or not, is implied to rest also on the
law of nations or principles commonly received among all man-
kind, by the description of the origin of slavery, which is justi-
fied on those principles while it is ascribed to wars, which are
necessarily international, and are ako justified by the same
* law of nations.' Jus autem gentium omni humano generi
commune est. Nam usu exigente et humanis necessitatibus
gentes human® quaedam (jura) sibi constituerunt ; bella etenim
orta sunt et captivitates secutae sunt et servitutes ; by which are
meant, not private wars or piracies,1 but those appeals to force

modification of those general institutions by particular circumstances, partly by tho
addition of new institutions or rules. * * * On this particular point the Institutes
of Justinian take a very inconsistent position. The text of Ulpian is first used, giving
the tripartite division, and making it apply to the origin of slavery. Then the text
of Gaius, Marcian or Florentinus is either followed in terms, or plainly referred to.
One passage is particularly remarkable, where the words of Gaius are used, but with
the express addition that jus naturale is the same as jus gentium, and that this had
already before been so stated; § 11, I. de div. nr. (2, 1.) quarundam enim rerom
dominium nanciscimur jure naturali ; quod, sicut diximus, appellator jus gentium ;
quarundam jure civili." Compare on this subject, Austin, Prov. Jurisp. 188-190.
1 Huberus, de Jure Civitatis, lib. 2. c. 3. § 8. " Quod si bellum caret solemnibus

150

ORIG1K OV SLAVERY.

which the natural reason of mankind has hitherto continued to
justify, as remedies between sovereign states. While slavery is
thus justified as being accordant with natural reason, and there-
fore with natural law, so far as it can be recognized in jurispru-
dence, the freedom of mankind is asserted under the natural
law, in the sense of the statement of a condition of things ante-
rior to the authority of nations or of sociaty : in which sense of
the words all men would be taken to be naturally free from
gny positive law, that is, from all those rules of action which
we enforced by society, or by states. The sentence last quoted
from the Institutes is thus continued. Bella etenim orta sunt
et captivitateB secutro et servitutes, quee sunt naturali juri
contrariee. Jure enim naturali omnes homines ab initio liberi
nascebantur ; and in Title 3, §§ 2, 3, 4, — Servitus autem est con-
Btitutio juris gentium, qua quis dominio alieno contra naturam
Bubjicitur. Servi autem ex eo appellati sunt, quod Imperatores
captivos vendere ac per hoc servare nec occidere solent ; qui
etiam mancipia dicti Bunt, eo quod ab hostibus manu capi-
untur. * * * fiunt [servi] jure gentium, id est captivitate.
And in Title 5, § 1, on manumission, it is said, Quae res a jure
gentium originem sumsit; utpote qmim jure naturali omnes
liberi nascerentur ; nec nota esset manumissio, quum servitus
esset incognita. Sed posteaquam jure gentium servitus invasit,
secutum est beneficium manumissionis. Seeming to mean, that
though in a primaeval state, or a state of nature as opposed to a
state of society, or as originally created, men must be consid-
ered equally free, yet, in consequence of their natural passions
and infirmities, a necessary condition of things has arisen in the
social state, a usus exigens et Immana necessitas, from which
natural reason justifies slavery.1 This view of the origin of
slavery the Romans held in common with all the nations of

juris gentium requisitis, non stmt capti jure servi, proinde nec ejnsmodi tacita oritur
obligatio ; ut in his qui piratico aut latrocinio barbarorum capiuntur."

* Id order to reconcile the language of the Institutes, some civilians distinguish a
jus gentinm primcevum and a jus gentium secondarivm. v, Vinnius: Comm. Lib. I. Tit
2, 8, on this title of the Institutes. Merlin : Repertoire de Jurisprudence, Tom. V.,
p. 291, speaks of le droit primit'jf des gens, and le droit des gens ttcondaire. And
St. Thomas Aquinas makes a similar discrimination of a secondary law of nature
identical with the law of nations ; as quoted in Bishop England's Letter II., giving the
earlier Christian authorities that slavery is a legitimate consequence of sin.

ORIGIN OF SLAVERY.

161

antiquity It was in fact a principle quod inter omnes populos
perreque custoditur, a maxim of the law of natural reason, or of
4 universal law ' as then understood, that slavery might right-
fully exist as a consequence of captivity in war : ' and being a
consequence of public wars, sanctioned by the rules of action
between nations, it was at that time a principle of the interna-
tional law, so far as any such international law could be said to
exist.*

§ 154. The relation thus originating in war and under inter-
national law was, among the ancients, universally taken up and
sustained by the internal or municipal law of each nation, jus
civile.* And under the sanction of municipal law it was also
made a consequence of other circumstances than captivity in
war ; as of birth ; since the child of a slave mother became also
a slave ; and also by the voluntary act of the person enslaved ;
Inst. Lib. I. tit. 3, § 4 : Servi aut nascuntur, aut fiunt ; nascun-
tur ex ancillis nostris ; fiunt ex jure gentium, id est ex captivitate,
aut jure civib*, quum liber homo major viginti annis ad pretium
participandum sese venundari passus est. In servorum con-
ditione nulla est differentia. Here the origin of slavery by vol-
untary sale is attributed to jus civile, which here corresponds
to municipal or internal law. The inheritance of slavery is not
here attributed either to the jus civile or to the law of nations,
it is merely stated as a recognized principle ; but from its ad-

1 Xenophon s Cyrop. L. vii. c. 5, 78.

* War and peace being rudely definable as contraries, war was the normal condi-
tion of international intercourse between nations not equally civilized, that is, not
equally recognizing a rule of peaceful intercourse ; and slavery might originate under
such a condition of hostility, though not one of open war. Thus, Dig. L. 49, tit 15,
§ 5, 2. Nam si cum gente aliqua neque amicitiam, neque hospitium, neque foedus ami-
citiss causa factum babe in us, hi hostes quidem non sunt ; quod autem ex nostra ad
eos pervenit, illorum fit, et. liber homo noster, ab iis captus, servos fit, et coram.
Idemquc est, si ab illis ad uos aliqnid. perveniat.

' Jus civile, in a sense relating to its extent, national law, including jus gentium—
not opposed to it, in the sense of jus proprittm.

Quintus Curtius : Lib. 7, c. 8 *. " Inter domimnn et eervum nulla amicitia est, etiam
in pace belli tamen jura servantur." The jura were the same, only as the rights of the
master were always founded on jus gentium. The municipal law did not recognize
any incongruity between the relation of master and slave and a peaceful condition of
society.

A slave condition was also sometimes made the consequence of desertion from mil-
itary duty, or crime ; freed men for ingratitude towards patrons, and women for inter-
course with slaves were liable to loss of freedom. Hune's Darstellung uber Sclaven-
handel (Gottingcn, 1820) vol. i. p 95 : cites Waldeck ; c. L § 63 n. a. Heinec c L jj 83.

152

00N8HTUTI0 JURIS GENTIUM.

mitted universality it was probably considered a principle of
the law of nations, constitutio juris gentium. In Tit. 8, from
the universal prevalence of the idea of absolute dominion in the
master over the slave, and of the slave's incapacity to acquire
any thing as property, distinct from the property of the master,
it is argued that that property and that disability rest upon the
same foundation as slavery from captivity. In potestate itaque
dominorum sunt servi. Qua) quidem potestas juris gentium est.
Nam apud omnes perceque gentes animadvertere possnmus, dom-
inis in servos vitro necisque potestatem esse, ct quodcunque per
servum acquiritur, id domino acquiritur; and hence it might
be inferred that, as the dominion which prevented the slave
from having the rights of a legal person, even in respect to his
own offspring, was founded on the law of nations, the results of
that dominion had the same legal character.1

§ 155. The force to be attached to the expression, constitutio
juris gentium, must be gathered from the comparison of the
prevalence and judicial recognition among all nations of other
relations which are ascribed to this law. The Institutes refer to
the same jus gentium, the origin of the various forms in which
property is held and transferred, as being equally recognized
among all nations ; Lib. I. Tit. 2, § 2. Et ex hoc jure gentium
omnes paene contractus introducti sunt, at emtio, venditio, lo-
catio, conductio, societas, depositum, mutuum et alii innumera-
biles. And Lib. II. Tit. 1, § 4 : Eiparum quoque usus pub-
licus est jure gentium, sicut ipsius fluminis. And § 5 : Littorum
quoque usus publicus juris gentium est, sicut et ipsius maris ;
&c.a By ascribing the right of the master and the incapacity

1 Waldeck's Inst L. I. tit. 8. " Ex juris principiis, foetus, tamquam accessio ventrifl
ad dominum ventris pertinet." Heinecc., J. Nat. et Gen. L. I., § 252, II. § 81.

* The whole of the first five titles of this second book of the Institutes are expressly
called jus gentium, as contrasted with jus civile. Inst. L. ii. Tit 5, § 6.

The common right of using the sea shore and the sea, which is here spoken of, is
the right of- private individuals as against other private persons — a right under private
municipal law (comp. Inst. L. L tit. 1, § 1). It is not that freedom of the seas to all
nations which makes a prominent topic of modern public international law. It may be
noticed, however, in this connection, to avoid the confusion which has attended the use
of the term, that tho jus gentium of the Roman lawyers was exhibited in the applica-
tion of human reason to the relations of public as well as private persons, and might
thus form a part of what is now called public international law, jus inter gentes. Thus
Dig. Lib. i. tit. 1, § 5 : Hennogenianus, Libro i. juris epitomarum. Ex hoc jure gen-
tium introducta bella, discretaj gentes, regna condita, dominia distincta, agris termini
positi, oedificia collocata, commercium, emtione!?, venditiones, locationes, conductiones,

NATURE OF SLAVERY.

163

of the slave to the same law of nations, without reference to the
origin of the relation, (in servorum conditione nulla est differ-
entia) it seems to be considered a condition or relation which
should be everywhere recognized, and maintained of course in
every municipal or inte; national jurisdiction.

§ 156. The nature of this relation was the holding of men as
property, and therefore as things, not persons : and therefore in
the Institutes, Lib. II. title 1, treating of the nature of things as
opposed to persons, de rerum divisione et qualitate, in § 17 it is
said : Item ea qure ex hostibus capimus, jure gentium statim
nostra fiunt ; adeo quidem ut et liberi homines in servitutem nos-
tram deducantur. For, though slaves, servi, are distinguished,
as natural persons, from freemen, liberi, in Titles 3 & 8, their
condition is also frequently spoken of, by the civil jurists, as dis-
tinguishing them as legal things from legal persons ; a legal
person being a natural person having rights, and a slave having
none, in the view of the law, any more than other objects of
possession.1 As is 6hown in Inst. L. I. tit. 8, § 1, the power of
the master was for life and death, in theory ; and often illus-
trated in practice, as appears from history and literature.' If the
slave was considered entitled to any rights as a human being,

obligationes institutae, exceptis quibusdam quae a jure civili introductse sunt From
which it appears that the jus gentium of the Romans was either public or private law
according to the character of the persons or relations to wlich it was applied. Mr.
Wheaton in his " Law of Nations," pp. 26-29, apparently assuming that the moderns
would not have denominated public international law " the la^ of nations," if the Ro-
mans had not before called the saw hing jus gentium, insists that Ly jus gentium the
Romans intended that part of their civil law which they used as public law in reference
to other nations. But in fact, as appears by the above citation from the Digest, it was
a universal jurisprudence, which the judicial officer referred to as an indication of natu-
ral reason in all matters affecting private persons. Mr. Wheaton, by asserting that
the private law which the Romans knew as jus gentium was not known by the recog-
nition of its historical prevalence, but was simply that part of their own law which the
Romans thought naturale, comes to the conclusion that jus gentium is immutable. It
is true that the Romans knew no jus gentium that was not already part and parcel of
their own national law — jus civile, (see Wheaton's Intern. Law, p. 27, citing Savigny
and Waechter,) and every tribunal recognizing a jus gentium, or universal jurispru-
dence, must assume that it is included in the law of the land. How this may be, has
been shown in the second chapter.

1 Muhlenbruch ; Pandectarum Doctrina, p. 195. " Familia appellatao non ad per-
sonam solum refcrtur, verum etiam ad res, adeoque ad hominum, qui instar habitl sunt
rerum, i. e. servorum quoddara corpus." Kaufmann's Mackeldey, p. 127; editor's
note : " The Romans made a distinction bet wee rn homo and persona ; because they re-
garded slaves not as subjects of rights, but as objects of rights, in the same manner as
things." And see Taylor's El. Civ. Law, p. 429.

3 Juvenal Sat. vi/l. 219.

154

PREVALENCE OF THE DOCTRINE.

the support of those rights was left to the influence of motives
of humanity, and not enforced by any rule prescribed by the
state, previously to the constitution of Antoninus referred to in
the second section of the last-mentioned Title. Though in cases
of extreme severity the supreme power might occasionally have
interfered cx post facto >, to transfer the slave to another master,
without establishing any general recognition of his legal per-
sonality : as in the case of the slaves of Julius Sabinus, spoken
of in the same Title : and this extraordinary intervention seems
to have acquired the force of a general law.1

§ 157. This attribution of the condition of slavery to the jus
gentium, as contrasted with their jus civile, which was thus
made by the Roman jurists, was in perfect harmony with the
juridical action of all other nations of antiquity.8 For not only
had that condition been constantly existing among all nations
from the earliest historical times, but it was nowhere regarded
as a relation of a local character, or one specially adapted to
local circumstances ; this is proved by the fact that the condi-
tion was recognized in private international law so far as it
could be said to exist ; the relation between the master and the
slave being maintained not only in the jurisdiction wherein it
began its legal existence, but also being carried out or realized
in other jurisdictions to which they might remove ; it was sus-
tained equally between alien as between native, subjects", and
property in slaves was recognized in the transactions of com-
merce between persons of different nations.

It is in view of this character of slavery — that of being a
legal condition, universally recognized by the natural reason of
mankind manifested in civil institutions,* that, before describing

1 Heineccius : Hist. Jur. Civ. Lib. L § 174. Smith's Diet. Antiq. Servus. Other
laws for the protection of the slave, Lex Petronia, Dig. L. 48, tit. 8, § 11 ; L. 18, tit.
1, § 42. Cod. iii., tit 88, 3, 11. Constitution of Claudius; v. Suetoniub, Claud. 25.
See also Savigny, H. R. R. Bd. 2, p. 34.

a The laws of Menu recognized several kinds of slavery, see H. St. George Tucker's
Memorials of Indian Government, London, 1853, p. 434. In ascribing slavery to the
law of nations it is a very common error to use that term not in the sense of universal
jurisprudence — the Roman jus gentium — but in the modem sense of public interna-
tional law, and to give the custom of enslaving prisoners of war, in illustration : as if
the legal condition of other slaves who had never been taken in war were not equally jure
gentium according to the Roman jurisprudence. See Mr. Webster's speech, 7th March,
1850 ; Works, voL v. p. 829. 9 Georgia R. 581.

1 Whatever may have been the opinions of the great moralists of antiquity as to the

CHANGES IN JUS GENTIUM.

155

tho rights of persons, the Institutes begin with the simple decla-
ration, that human beings are either freemen or slaves, Lib. I. tit.
3. Sunima igitur diviBio do jure pcrsonarum haic est, quod
omnes ant liberi aut servi.1

§ 158. Whether the rules historically known as the law of
nations — jus gentium, which judicial tribunals might recognize
as a criterion of natural reason, to be applied in international
or municipal law, have continued to be the same for modem
times as anciently^ is a question of fact to be learned from the
history of municipal and international jurisprudence among all
nations : each having equal right to judge of the dictates of nat-
ural reason applied to the conditions of human existence, and
to manifest their judgment in their several national law (applied
either as internal or international law within their own jurisdic-
tions), and in the formation of that code of general international
intercourse which is, in an imperfect sense, denominated a law,
of which they are themselves regarded the subjects.8

§ 159. It must be remembered at the same time, that, in
consequence of the nature and mode of application of that which
is thus denominated international law, or law of nations in the
sense of a rule of which nations are the subjects, it has never
changed simultaneously among those nations professing to rec-
ognize it : and, as a distinct class of rules, is still confined to its
recognition and application among Christian nations ; and in a
more limited degree, between them and the Asiatic and Mo-
expediency, propriety or ethical fitness of the relation between the master and the slave,
it is certain that they constantly acknowledged its legality. Aristotle (Pol., L. i. c. 2)
and Plato (Rep., L. v.) opposed the enslavement of Greeks when taken prisoners of war
by other Greeks. But the former regarded slavery as a relation properly existing in
every civil society ; and the latter seems to have considered it a necessary evil If
they recoiled from the idea of treating a human being as a chattel, or brute object of
the action of others, they each contemplated the existence of a servile class as a neces-
sary constituent of human society. See Wallon : Hist de l'Esclavage dans l'Antiquite,
lie Par. c. 11 ; — a very full account of the opinions of the leading minds of Greece on
this point.

Whatever may hare been Cicero's doctrine about the foundations of civil law in
natural justice, he was himself an owner of slaves, and called on his friends to aid him
in recovering them when they ran away. See Ciceronis Epistolse ad Familiares, Lib.
L ep. 2, § 4, 14, Cic. ad Quintum fratrem ; Lib. v. ep. 9, § 2, Vatinius ad Cic., ad
Jin ; Lib. xiii. ep. 77, § 8, Cic. ad P. Sulpicium, Imperatorem.

1 The name of the Title is De Statu hominum ; the slave was homo, and not per-
sona ; it is no divisio.. "the rights of persons to say some men have tho rights of per-
sons and some have not. See ante § 44.

* Compare §§ 10, 19, 39.

156

KFFEOT OF CHRISTIANITY.

hammedan sovereignties ; 1 the intercourse of those nations,
recognizing such law, with others not knowing it, being always
presumed to be regulated by that part of the international law
which has been sometimes called ' the natural law of nations,'
that is, by general principles of morals applied to public rela-
tions : the application being professedly made according to the
moral sense of the, so called, civilized nations, assuming a supe-
rior knowledge of the dictates of enlightened reason.*

§ 160. During the later period of the Roman empire the
diffusion of Christianity gave additional force to ideas of hu-
manity and benevolence, as rules of duty in social action inde-
pendent of laws enforced by the state, and may be supposed to
have moderated the severity of the ancient slavery, both as the
effect of international wars and of municipal regulations : at
least between those professing a faith which required a distinct
recognition of individual capacity and responsibility in all nat-
ural persons, and which, by constituting all its adherents into
a spiritual commonwealth, established a peculiar equality be-
tween them ; comparing them to members of a family, in hav-
ing such a bond of union.* But whatever change may have
taken place in consequence does not appear to have been made
by any systematic interference of the civil power. It is to be
remembered that the code of Justinian, though digested from
ancient laws, was the code of a Christian state and sovereign ;*

1 Heffter: Europ. Vdlkerr. § 7.

* The opinion of Dominic De Soto, de Jugtitia et de Jure, quoted by Mackintosh,
Hist. Eth. Philos. p. 110, was, that there can be no difference between Christians and
Pagans, " for the law of nations is equal to all mankind." It is doubtful whether in-
ternational law or universal (private) law was intended by this author; but, in either
sense, it is not a correct statement of what the law of nations was at that time, as his-
torically known. The author, an many writers since his time have done, confounded
the jus gentium with his own idea of natural justice. ^

* Grotius : B. et P., Lib. I. c. i., 14, 15. Huber, de Jure Civitatis, lib. 2, ch. 3, § 6.
Lactantius, L. v. Div. Inst c. 16. "Facile inde contigit nedum ut Curistiani servos
suos, pra^sertim Christianos, veluti fratrum loco haberent."

4 Procemium to Institutes begins : " In nomine Domini nostri Jesu Christi, Impe-
rator Csesar," &c. Constantine, the first Christian emperor, died A. D. 337. Jus-
tinian died A. D. 565.

See statement of Roman legislation respecting slaves from time of Hadrian to
Theodosius the Great ; Blair : Slavery among the Romans, Ch. IV., pp. 85-89, and
Wallon, Hist, de PEsclavage.

Guadentius, de Justiniani sseculi moribus, ch. XIII. (Meerman's Thesaurus, VoL
III. p. 679), thinks it most probable that captives in war, even if Christian, were made
slaves under Justinian.

PERSONALITY RECOGNISED.

157

and the early church, even in those territories where it hold
civil as well as ecclesiastical power, did not aholish the relation,
or prohibit its future inception ; but appears to have recognized
it as lawful, even between Christians, though gradually modi-
fying it, by using its spiritual authority to enforce the dictates
of humanity, and to cause a legal recognition of the personality
of the slave, and of a capacity in him for some rights in social
and family relations, though still in a state of servitude.1

§ 161. By this change in the legal character of his condition
the slave became a legal member of the civil state, as distin-
guished from property ; and his servitude, however burden-
some, lost its support and foundation in the universal law, or
law of nations, by losing its chattel character, and derived its
support from the law peculiar to a single state, for the slavery
known to the lam of nations was the simple condition of chatte-
slavery.*

§ 162. The slavery which existed among the heathen na-
tions of northern Europe, from the earliest times, was probably

1 Walter ; Lehrbuch des Kirchenrechts, § 848. Corpus Jur. CanonicL Decreti,
Pars. i. Distinctio XV. Gregorias Papa I., anno 596. Roma in Campaniam. In
libertatem vendicentur servi, qui ab infidelitate ad fidem accednnt Distinctio LTV.
Servi sine dominorum consensu et libertate non ordinentur. A letter of manumission
by the same prelate of some of his own slaves is cited, Robertson's Hist. Charles V.,
voL L, sect. 1, note XX, in which he speaks of slavery as contrary to an original or
natural state of freedom. Bishop England's fifth letter cites various authorities. See
also Wallon; Hist, de FEsclavage dans l'Antiquite, Partie ILL Blair: Slavery among
the Romans, pp. 49-72. Ward s Hist of Law of Nations, voL IL p. 27. Gudelin, de
Jur. Noviss., Lib. I. c. 4. 5. Fletcher's Studies on Slavery, pp. 327-331 ; and the
note above cited in Robertson's Charles Y.

The history of the early Church records the efforts of many of its prelates in favor
of emancipation ; and there is no doubt that the abolition of the ancient chattel
slavery is mainly attributable to its influence. But whether the writings of those pre-
lates can be cited here, in tracing the historical law of nation*, on this point, depends
on the question whether they held the temporal power of legislation, or not For,
however valuable, in an ethical point of view, their testimony to the law of nature may
be, it will have no force in proving what the actual jus gentium of their time may
have been ; though it may have been a means of changing that law. Compare
1 Bancroft's Hist U. S., p. 168. (See ante, p. 95, note, on the relative positions of t'&e
jus gentium, and the Canon law.)

Imp. Leonis Aug. (Leo, the philosopher, died A. D. 911.) Novella constitutiones,
IX., X., XI. ; that slaves should not become free by taking holy orders, if without the
knowledge of their masters.

It is difficult to judge how far the ecclesiastical persons, whose efforts in their rimes
in favor of manumission are recorded, would have opposed serfdom, in forms nearly as
much opposed to free condition, according to modern ideas. The ecclesiastical corpo-
rations in Burgundy, Invernois, and other provinces of France, were among the last to
emancipate thvir serfs. See Lalaare; Servitudes Reelles, p. 2. Voltaire : Diet. Philos.
v. Eidava.

1 See Ante, § 112.

158

THE NORTHERN NATIONS.

but, little different from that known uniier the Koman Empire,
or differed only by allowing a greater variety in the nature of
its burdens, correspondent with the feudal elements of their
civil society, which permitted also a recognition, in some degree,
of the legal personality of the bondsman.1 Upon the settlement
of those nations in southern Europe, their military system and
the distinctions arising from the fact of a conquering race re-
siding among tho conquered, made the serfdom adopted, if not
introduced by . them, an equivalent in its various degrees of
oppressiveness for the ancient domestic slavery which had been
obliterated with tho wealth and power of the previous masters.'

After the general conversion of the northern nations of Eu-
rope their international intercourse became so modified that, as
between Christian nations, prisoners of war could not be reduced
to slavery ; though captivity and the right to demand ransom, as
a consequence of the old law modified by the habits of the
Teutonic * races, continued to a late period.4 Feudal servitude
being essentially predial, that is, accessory to the soil and con-

1 That is, among the German nations or tribes, a portion of the people, — the con-
stituents of the nation, were predial servants, annexed to the soil, and the master had
not, as a general rule, the power of life and death over them. Tacitos : Mores Ger.
c 25. Spelman's Gloss, voc. Servos : " Germanorom instar, erant nostri villani a
servis multnm diversi, qnidam erant wradiales, qnidam personales, &c. Among the
Gauls, the great body of the people were in a state of vassalage, apparently equivalent
to the chattel slavery of the Romans. Caesar de Bel. Gal. L. VI. 13. Bnt besides
these legal persons, who were not free, the German nations also traded in slaves as
articles of merchandise, selling captives taken in war, and also buying of the nations
on the north, and selling in the southern countries of Europe. 1 Hune's Darstel., pp.
102-107 : cites Fischer Gesch. des deutschen Handels.

* Speuce's Inquiry into the Origin of the Laws, &c., of Modern Europe, pp. 54,
828. Salic laws in Canciani Leges Barbarorum. During the later Imperial period a
clear distinction was recognized between predial and domestic slaves ; the condition
of the former (coloni, inquilini, adscriptitii, or, adscripti glebse) resembling, in many
respects, that of the more modern serfs or villeins. See Smith's Diet Antiq. : Prce~
dium. In Novell. 162, c 8, Justinian gives the rule by which the children of an
adKcriptitia shall be divided when the father belongs to another estate. In Novell.
157, tit. 40, he forbids the separation of families of such predial slaves. See Fletcher's
studies on Slavery, p. 327. In the history of the abolition of chattel slavery, the fol-
lowing laws are important. Imp. Leonis Aug. Nov. Const 88. Ut Imperatoris eervi
de rebus suis quo modo velint stataero possint C. 59. Abrogatio legLs quae hominem
libernm se vendere permittit.

1 Heineccius, Jur. Nat et Gent. L. L c. 1, § 2, n. " Postea mores Germanorom
poene omnibus gentibns communes facti sunt, uti recte observavit Grotius, de Jure
B. et P. ii § 1, 2.

4 Suaree, de Legibus etc. L. ii. c. 19. " Sic enim Jus Gentium, de servitute capti-
vorum in bello junto, in Ecclesia mutatum est, et inter Cbristianos id non servatur."

Grotius, Lib. iii c. 7, § 9 : " Sed et Christiuus in universum placuit, bello inter
ipsos orto captos servos non fieri, ita ut vendi possint, ad operas urgeri, et alia pati

SLAVERY AND CHRISTIANITY.

150

nocted with a state economy founded on the distribution and
tenure of landed estate, gradually acquired the character of a
constitution of the particular law of each state (jva proprium, or
jus civile in the same sense) as distinguished from a foundation
judicially ascribed to the law of nations : and, being suscepti-
ble of great variety in the obligations which attached to it, re-
ceived the legal character of a local distinction of ranks, or of
social position, in the institutions of nations composed of indi-
viduals of various race, or having distinct historical origin, but
not separated by any strongly marked physical distinctions.1
The subsequent decay of that servitude, which accompanied the
progress of Europe in intellectual and moral improvement, needs
not to be here particularly considered."

§ 163. While Christianity may be truly said to have con-
tributed greatly to alter the law of nations, contained in inter-
national and municipal law, by abolishing or modifying slavery
as between Europeans, it must be acknowledged that, as it con-
tinued for centuries to be received, it also modified that law in
introducing a new basis for chattel slavery. At an early period
of the present era difference of religious belief was made a
ground of distinction in supporting a right to hold slaves. Jews

quae servorura sunt : atque ita hoc saltern, qnamqnam exiguuta est, perfecit reverentia
Christianas legis."

Ward's Law of Nations, vol. L c. 9. Vol. ii. p. 31. Vinnius: Comm. L. L tit. 3.
Gadelin de Jure Novissimo, L. i. c. 4, § 10, and citations.

1 Sir Francis Palgrave, Hist, of Normandy and England, pp. 81, 82, considers the
distinctions of status in mediaeval times, commonly called feudal, as being historically
derived from the laws of the Roman Empire. And as to predial slavery in Gaul before
the Burgundian invasion, see Montesq. Esprit <L Lois, L. 30, c. 10.

The two distinct conditions of chattel slave and of predial bondman or serf must
have long existed together in Europe. Down to the commencement of the tenth cen-
tury, slaves of the northern, and then barbarian and heathen, nations were constantly
sold in Germany, France, &c. Hune : vol. i, pp. 107, 113. In the grants of Charle-
magne (A. D. 800) "he invariably bestows lands with all the inhabitants, houses,
slavey meadows, moveables and immoveables." In the time of his immediate suc-
cessors, " a frightful traffic is secretly carried on : the nobles, ecclesiastical and secular,
making no scruple, when pressed, to sell the children of their serfs." Oxford Chrono-
logical Tables. As to the transition from personal to feudal slavery among the Ger-
mans and Goths, see Mittermaier's Privatrecht, §§ 47, 49. Vinnius : Lib. L, tit 3.
Bodin's Republic, B. i . c. 9. Predial slavery lingered in some of the provinces of France
under the laws of Mein-mvfie in 1 75 1. (Lalaure ; Voltaire; Hallam's Mid. Ages, c.
ii., part 2.) Predial serfdom existed in Scotland at the date of the American revolu-
tion. See Hugh Miller's My Schools and School-masters, p. 303. Wade's Hist, of
Middle and Working Classes, p. 10: abolished by 15 Geo. 8, c. 28.

1 Wurd's Hist Law of Nations, voL i, ch. 8, refers to many antiquaries and critics
who have thoroughly examined this subject

160

DIFFERENCES OF CREED.

and Pagans, living under tho dominion of the Christian Empe-
rors, being forbidden to hold Christians in chattel bondage ; and
afterwards tho Papal church prohibited Jews from holding even
heathen slaves.1 It was generally assumed among Christian
nations, until a period comparatively recent, that their supe-
riority as possessors of the true faith gave them the right of re-
ducing infidels to slavery irrespectively of tho ancient laws of
war ; * while the followers of Mohammed, calling themselves
the true believers, have drawn similar conclusions for their own
use. Hie practice of enslaving their prisoners of war was at
first mutual between Christian and Mohammedan nations as to
each other,1 and was maintained by the last against the first to
a late period ; and may be in theory to the present day. The
Barbary powers justified their piracies against Europeans upon
the pretext of a right sanctioned by religion and ancient inter-
national usage ; and it was only at the beginning of the present
century that they were finally compelled to abandon them after
reiterated assertions of the modern international law by Chris-
tian powers.*

§ 164. Both Christians and Mohammedans long maintained
the right to enslave heathens and barbarians. Among the first
the act was almost universally supported, if the extension of the
Christian faith and civilization were made the professed motive.*

1 Codex, Lib. i., tit. x. Decree of Gregory I. anno 592, that slave* bought by
Jews should be set free • Corp. Juris. Canonici ; Dec ret Pars. i. Dist. xiii. Fuero
Juzgo, Lib. xii., c. 8, § 12. Fuero Real, Lib. iv. Blair, p. 72. Bishop England's
10th letter, Works, voL iii., p. 132. Gibbon: vol iL, p. 274. Gudelin : de Jure
Noviss. " Rursum, quamvis Judseis servos habere Christianos non licet, adscriptitios
tamen habere pennissum est, c. 2, tit. Mcrtt. de Judttit."

* Even in Bulls of excommunicati' . issued by the heads of the Roman Church pre-
vious to the Reformation it was common to declare the inhabitants of the excommuni-
cated districts liable to be enslaved. See Bull of Gregory XI. against Florentines,
1376 ; Julius II. against Venetians, ir,08 ; Paul ITL against Henry VIII., 1538. See
Fletcher : Studies on Slavery, pp. 366-868. Bower : vol. viL, pp. 879-447.

* Hune : vol i, pp. 127, T48. Calvin's case, 7 Coke, 17 : "All Infidels are in law
perpetui inimici, perpetual enemies (for the law presumes not that they will be con-
verted, that being remota potentia, a Remote Possibility); for between them, ar with
the Devils whose subjects they be, and the Christian there is a perpetual hostility, aad
can be no peace ; for as the Apostle sayr, &c And the Law saith, Judseo Christia-
num nullum serviat witnieipram, neias enim est, &c. Rtqifttr, 282."

4 Sumner's Orations and Speeches, vol. i. Lecture on White Slavery in the Barbary
States. Hild. Hist. U. S., vol v., p. 561 ; vol. vi., 678.

» The tenor of the Papal Bulls, in the years 1430, 1488, 1454, 1458, 1484, accord-
ing to the author of Letters to Pro-Slavery Men, p. 42, (Boston, 1855,) citing Colonias
Anglicanae Illustrate; by Wm. Bollan, Lond., 1762, Part i., pp. 115-141, is "to ap-

NEGRO BLAVKBT.

161

Slavery had existed in Africa from the first acquaintance of
Europeans with that continent ; 1 but negro slavery, in connec-
tion with modern European 9 law, was based on the idea above
stated aa part of the law of nations for Christian powers : that
is, the African or Indian slave was held by the European mas-
ter, as merchandise, by a principle of law then common to all
Christian nations, without reference to the villenage of the feu-
dal system; as the slave of the Roman master, of whatever
race, had been held by a law common to the then known world.

§ 165. At the time of the planting of the English colonies in
America, the laws of war in Europe still retained traces of
ancient harshness, and the right of Christian powers to enslave
prisoners in war with heathen and infidel nations, was almost
universally admitted. In wars between Europeans, the custom
of enslaving prisoners of war had ceased, and the claim of pri-
vate property in the captor, giving a right to demand ransom,
which had existed for some time after the amelioration of the
ancient law of captivity, was almost universally abandoned.*
But the slavery of captives of the different creeds was still sup-
ported by Christians and Mohammedans against each other.

propriate the kingdoms, goods and possessions of all infidels or heathen in Africa, or
wheresoever found, to reduce their persons to perpetual slavery, or to destroy them from
the face of the earth" — " to take any of the Guineans or other negroes, by force or by
barter." Gregory XVL in bis Bull against the slave trade in 1840 (se * Bishop Eng-
land's Works, vol 8, p. 114) cites Boll of Pins II. in 1462 as against the same trade.
According to the Bull of Gregory XVI., Paul ITL, 1537, Urban VIIL, 1639, Bene-
dict XIV., 1741, and Pins VII. opposed the slave trade. The author of the letters re-
ferred to says that their Bulls were not against the trade in general, or not against the
African slave trade.

1 Banc. Hist. voL L, 165. VoL iiL, 403. Hone's Darstellung, vol L, ch. «. The
Romans, in Virgil's time, had negro slaves ; a small poem entitled Moretum, ascribed
to him, contains a description of a negro woman, represented as being the only domes-
tic of a peasant, " ezigui cultor rusticus agri," v. 81 :

" Interdnm elamat Cybalen, erst unlea curiae,
Afra genua, tota patrum testante ftgura,
Tort* eomam, labroqoe tument, et rosea colorem ;
Pec to re lata, Jacens mammls, oompresalor alvo,
Crarlbus ezius, 6j>*tlo«a prodiga puunta ;
Contuuus rimls ealcanea aciasa rtgebant"

' Mackeldey's Compendium Tr. Kaufmann, p. 85, note : " In like manner such pre-
cepts [of the Roman law] are inapplicable, which rest upon principles that have never
been acknowledged in Germany, or the objects of which do not exist here ; e. g. the
law applicable to slavery." But slavery is allowed under the Prussian Landracht,
Th. II., tit. 5, § 196, operating as private international law. See Article by the late
Mr. Wheaton in Revue Etrang. et Fran., torn, viii., p. 345, and the 6th ecL of his Inter-
nal Law, Introd. by W. B. Lawrence, Esq., p. cxxx.

* 1 Kent's Comm., p. 14. Bynkershoek : Qucast Jur. Pub., lib. L, c. 8.

162

MOORISH BLAVK8.

Moore — thrt Arabian inhabitants of Africa, were still held as
slaves by captivity, in Spain, France, and Italy ; and probably
many Africans of negro race were held as slaves in Europe
under the naire of Moors,' and their slavery ascribed to the
same international usage. Domestic slavery, as part of the sys-
tem of civil society, still remained, as at the present day,
among Mohammedan nations, and the negro tribes of Africa ;
in which country it is believed to have been for many centuries
the condition of a vast majority of the inhabitants.1 It is prob-
able that long after the ancient chattel slavery of Europe had
been replaced by the serfdom of the Middle Ages, negroes had
occasionally been brought as articles of commerce to Europe,
and retained there as domestic slaves.* But it was not until the
geographical discoveries of the Portuguese in the fifteenth cen-
tury, that African slaves, in any considerable number, were
made an article of commerce in Europe. The first recorded
instance of the importation of African slaves by ;he Portuguese
from the western coast of Africa, illustrates the principles of
the law of nations exhibited at that time in the international
intercourse of Christian nations with Mohammedan.1, Moors, and
heathen negroes of Africa. In the year 1440, Antonio Gonsalez,
sent out by Prince Henry of Portugal on a voyage of discovery,
attacked a party of wandering Arabs or Moors, and 'carried off
ten or twelve of them captives to Portugal, where, and in the
Spanish portion of the peninsula, thousands of the subjects of
the extinct Moorish kingdom in Spain were already enduring
slavery, as the consequence of their defeat by the Christian
princes. Three of these captive Moors, at the command of
Prince Henry, and on their promise to pay ransom, were sent
back with Gonsalez, on his second voyage to the African coast
in 1442 ; and he received from their kinsmen, in exchange for
his prisoners, a ransom consisting of gold dust and ten or twelve
negro slaves, as ordinary articles of merchandise.* A similar

* Hune, toL L, pp. 128, 180, 211.

* Htoe, vol. I., pp. 148—175.

* Bancroft, voL L, p. 166. Hune, L, 160—168. Citing Edrishu and Leo Afri-
oaaua, that account* of a regular trade in negro slaves exist from about the year 990.
Raynal's W. I., torn. 4, p. 48.

* Hiine, voL L, p. 181. 1 Banc, 166, cites Navarete, Introdaccion S. XIX., (see
2 Pre sc. Ferd. and Is., 1 14,) that Spain anticipated Portugal in introducing negroes

AFRICAN SLAVE TRAPK.

168

transaction became one of the objects of succeeding voyages.
Moors and negroes were carried away, by force, by the Portu-
guese adventurers, until, q£er the exploration of the coast had
been pushed as far south as the richer and more populous shores
of the Gulf of Guinea, it was found safer and more profitable to
procure only negroes, by purchase from the native slave mer-
chants.

§ 160. This traffic, in negroes as merchandise, was at this time
recognized as legitimate by European governments, without any
direct sanction from positive legislation, but rested on the gene-
ral custom among nations, known both in municipal and inter-
national private law, — that custom which, under the name of
"the custom of merchants," — meaning merchants without re-
gard to nationality, was recognized in the English courts as a
rule of law. Property in heathen negroes bought in Africa,
being then regarded as the effect of natural law, so far as it is
known in jurisprudence, or as an illustration of the distinction
between persons and things, entering into all law, because
founded in natural reason. The trade in that property was re-
garded as founded on existing relations between legal persons
in respect to things, which might, like any other branch of com-
merce, be regulated by statute, without a previous act declaring
the condition of the negroes who were the objects of those rela-
tions and of that commerce. Like many other branches of com-
merce at that period, it was an object of monopoly ; being some-
times granted by the patent of the monarch to companies of
discoverers, commercial adventurers, and colonists trading in
and between those regions then recently made known, and popu-
larly designated the Eastern and Western Indies. The conver-
sion of infidels being always proposed as a prominent object,
and declared to be the justifying motive for the forcible en-
slavement of barbarians and heathens, whenever contemplated
in such enterprises ; 1 if not also for the acquisition of purchased
slaves. On the discovery of America, the same, reasons which
upheld the slavery of African Moors and negroes were held to

Into Europe. That Sevillian merchants imported slaves from Western Africa, — Irving's
Columbus, vol. II., p. 851.

1 1 Hune, p. 304, cites Benezet, p. 58.

164

DISTINCTION OP RACE.

apply to the barbarian inhabitants called Indians ; and property
in such IndianB had the same basis in the law of nations ; until
a distinction was made, between the. negro and Indian races, by
legislative enactment in the colonies of the several colonizing
nations.1 Those taking effect in the English colonies will here-
after be more particularly referred to.

§ 167. Whatever foundation there may have been in natural
reason for slavery, in the opinion of the nations of antiquity,
the Roman legislators, or the Asiatic races, there does not ap-
pear to have been, in their judgment, any arguments, from the
same source, establishing such differences between mankind that
some races were liable to that chattel condition, and others
naturally exempt.' The law of nations, in their conception of
it, regarded all men as equally capable of becoming property.
The modern law of nations, as exhibited in the practice of mod-
ern European states, must be considered not only to have varied
from the ancient rule, in asserting a right of dominion in Chris-
tians over infidels, but to have been farther modified, since the
geographical discoveries of the fifteenth century, and during
the establishment of civilized dominion and municipal law in
America, by the introduction of a distinction founded on race
or descent, and applied according to physical structure. The
capacity for that condition of loss of legal personality, or the
liability to become property, being, since that period, confined
to the Indian raceB of America, and African Moors and negroes;

1 1 Bane., 167,— that natives from the coast of America were kidnapped by slavers:
cites Peter Martyr- d'Anghiera, d. vii, c. 1, 2. Hakluyt, v. 404, 405, 407.

The history of the introduction of negroes into Spanish America, and of the influ-
ence of Las Casas in effecting it is well known : see Irving's History of Columbus.
Robertson's Hist of Am., and Hist, of Charles V. 1 Banc, ch. S. 1 Hiine's Darstel-
lung, ch. 8. Herrera is the original authority on these points.

* In his speech, 7 March,. 1860, Mr. Webster said, Works, voL V., p. 829,—" The
ingenious philosophy of the Greeks found, or sought to find, a justification for it exactly
upon the grounds which bare been assumed for such a justification in this country :
that is, a natural and original difference among the races of mankind, and the infe-
riority of the black or colored race to the white. The Greeks justified their system of
slavery upon that idea precisely. They held the African and some of the Asiatic tribes
to be inferior to the white race," &c. There is nothing to justify this assertion. It
appears to be founded on the assumption that those whom the Greeks called fi&pflapot
were identical with the half-civilized nations of our own time. The Greeks meant by
barbarians those who were not Greeks : and believed a Greek captive to be a lawful
slave to a barbarian captor.

EFFECT OF CONVERSION.

165

in other words, this principle of the la/vo of nations became ap-
plied as a law personal to those races.'

§ 168. Slavery of Africans or Indians, whenever thus sup-
ported on principles of ancient authority, modified by appli-
cation to persons of a particular race under the existing law of
nations* would, apparently, have continued its existence in the
issue of those persons, by a principle derived from the same
source, that is, the inheritable' character of slavery, or that prin-
ciple by which, the personality of the parent being unrecognized
by the law, legal personality was not acquired by the issue ;
which was considered only as the natural increase of the prop-
erty, and equally the object of ownership.*

But, inasmuch as the heathenism of the enslaved was pre-
supposed to be an essential circumstance and part of that con-
dition of things upon which the law of nations, as then received,
recognized the chattel condition of the negro or Indian bond-
man, and the right of property in the European owner, it would
be a natural question before any tribunal, within whose juris-
diction such negro or Indian might afterwards be found, whether
after his baptism or presumed conversion there was any rule,
having the same historical existence, that is, being a law of
nations, which would still support that condition and right of

1 It is this personal character of the law of chattel slavery in modern times, which
restrah: the effect (as an indication of the historical law of nations,) of that otherwise
general attribution of the right of personal liberty, which, by certain European jurists
of thu 17th century, herein after cited, is asserted to have had effect in preventing the
international n cognition of slavery in most European countries at the beginning of that
century: see ch. VII., and notes from Heineccius, Christinceus, &c. The period
at which they wroi-i was precisely that at which the European serfdom had acquired
the distinctive character of an institution of the local law(j. proprium) of each country,
and at which the chatisl slavery of heathen and barbarian negroes and Indians, by the
law of nations, continuing to be applied to them as a personal law, was becoming more
frequently recognized in the international law of the commercial and colonizing nations
of Europe. This modification of the law of nations, at this period, is shown by Bodin,
de Rep., [A. D. 1583,] B. L, ch. 5, Knolles' TransL, London, 1606, p. 82,— " and for
that the whole world is -full of slaves, excepting certain countries in Europe, (which
since, by little and little, receive them)," &c. ; and in same chapter — " and although
servitude, in these latter times, was left off, for about three or four hundred years, yet
it is now again approved by the great argument and consent of almost all nations."

By some writers on the subject of African slavery, and even by some judicial tribu-
nals, it has been held that this personal character of the law of slavery is authorita-
tively determined by Revelation. In Neal t>. Farmer, 9 Georgia R., p. 582, it is de-
clared that the slavery of " the issue of Ham," — meaning of persons of African or
negro race, is " an institution of Christianity." (Italicised in the Report.)

* See ante, § 58. * See ante, § 154

166

EFFECT OF CONVERSION.

ownership. The question, it is to be remembered, is not one of
a doctrine of the Christian faith or morale, either in the apprehen-
sion o^tj^ChriBtian church or of an individual clothed with
judi4HHBMft-but simply of the existence of a rule having the
Bainel^OTWpPBupport as the law by which the slavery of the
negro or Indian had first been established ; a rule having such
support, by the use and practice of nations in their municipal
(internal) and international law, that it could be judicially re-
cognized and received as an indication of natural reason. It is
a question of U*o juridical action of nations which have had juris-
diction over negroes and Indians, enslaved while heathens, and
afterwards baptized and Christianized.

It would depend, also, upon the juridical action of differ-
ent nations in respect to this class of natural persons, whether
any other or new principles, having a like personal extent as to
them, should have the character of universal jurisprudence or
the lato of nations. If generally, wherever Moors, negroes, or
Indians were under the legislative (juridical) power of Euro-
peans, only a partial recognition should be made of rights and
privileges which, in like circumstances, would be attributed to
whites, or men of the European race, there might be a legal
attribution of social disability or inferiority, having a juridical
origin similar to that liability to chattel slavery which formerly
was maintained by the law of nations. If no such condition of
inferiority should become established by the general practice
of nations, the law of nations must be held to be the same in
respect to all races of men ; so that in every jurisdiction, irre-
spectively of local customary law and statutes (jus proprium),
a person of one of those races would be the subject of legal re-
lations in the same manner as a person of afsy other race.

§ 169. It would be difficult to discover any general harmony
of practice in this respect among civilized nations, at any par-
ticular point of time during the period in which the English
colonies were founded in America, or at any period since the
modern extension of the African slave trade. The slavery of
African negroe3 was certainly continued after their conversion
in all the colonies planted by the different European nations.
And if reference is made Jto the practice of Mohanimjedan states

EFFECT ON CIIATTET, SLAVERY.

167

in analogous circumstances, it docs not appear that they ever
have recognized the religion of persons held in bondage as
determining their condition in respect to the possession of per-
sonal liberty, or considered the conversion of a slave, of a dif-
ferent faith, to Islamism, a legal cause of enfranchisement.
A difference of creed is viewed only as one of the circumstances
which justify the original act of enslavement.1 It is probable,
however, that, with them, adherence to the faith causes a certain
recognition of legal personality and capacity for rights ; ■ and,
from the intimate connection between their civil and religious
codes, that it would be unlawful to sell such converted 'slave to
any one who was not of the same faith. In which case such
slave would really no longer be treated as a chattel, or an object
of property, in the same degree as when unconverted.

The slavery of Christianized Moors and negroes was for a
time maintained in some parts of Europe ; ' though it is uncer-

1 It is commonly thought, that by the Mohammedan law, a slave of another creed
is emancipated on conversion to Islamism. But this is incorrect Hedaya : Hamil-
ton's Translation, Vol. I. p. 420 ; on manumission. " Ittak, or the emancipation of
slaves, is recommended by the prophet, who has declared, ' Whatever Mussulman shall
emancipate a slave, (being a believer,) God will, for every member of the slave so
emancipated, release a similar member of the emancipated from hell-fire.' " p. 434.
" If the slave of an infidel nation, becoming a convert to the faith, retire into the Mus-
sulman territory, he is free ; because, when the slaves from the countries around de-
serted their masters, and came unto, and embraced the doctrines of the prophet, he
declared, 1 These are the frecdmen of God ; ' and also, because the slave, at the time
he delivers himself up, is a Mussulman, and bondage is not established in a Mussul-
man originally." And see Putnam's Mag., 1855, June, on Slavery in the Ottoman
Empire. Mr. Sumner, Orations and Speeches, 12mo, VoL I. p. 292, note, says : " In
point of fact, freedom generally followed conversion ; but I do not find any injunction
on the subject in the Koran."

* Hamilton's Hedaya, Introd., p. 57. " The Ikw in many instances affords them
[slaves] protection against injustice, and declares them to be ' claimants of right,' "—
and Book 32 and 36 of the same — that slaves or bondmen of various conditions are
recognized by the law. Abids — absolute slaves, and Mokatibs — slaves partially emanci-
pated under some conditions of service or payment. Mazoont — slaves licensed to trade
There are slaves transferable and others not.

8 That enslaved heathens and Mohammedans in Spain and Portugal were not made
free on becoming Christianized ; Gudelin, de Jure Novissimo, Lib. i., c. 4, 7. " Ao
roos est ibi servos servos pennanere, quamvis religionem Manumetis ejuraverint, et
Christiana imbuautur. Quod absurdum videri non debet, cum sententia sit approhata
aervitutem personarum et dominicam potentate m legi divime non adversari. Didaaia
Covar. ad rtg. peccatum, p. 2, § 11. Verum recens est Pii Quinti constitutio exstans ad
Petrum Mathseum. In Summa Constitutionum snmmornm Pontificum captivos fieri
liberos, suscepto sacro baptismate, qui sub tutelamcivis cujuspiam Romani confugeiiGt"
Vinnius : Comm. Lib. i., tit. 8. " Ac mos est (in Lusitania aliisque Hispaniae partibus)
eo quod servum esse non adversaretur legi Divinse. And Bodin ; Repub. KnolleV Trans,
pp. 41, 42. Bishop England's tenth letter; — Works, vol. 3, p. 152. Irving's Hist of
Columbus, B. xiv., c. 3 ; — "It was permitted to carrj to the colony [Hispaniola, A. D.

168

LAW OF NATIONS HOW KNOWN.

tain whether they were regarded as chattel slaves, or as legal
persons held to services, as were the feudal serfs of the same
countries. In other European states, the slavery of Moors,
negroeB, and Indians was never actually recognized. And
finally, at some period in the 18th century, no distinction was
recognized in Europe between persons of different races being
domiciled or permanent inliabiianUy in respect to the enjoyment
of personal liberty. The slavery of Christianized negroes
brought over from slaveholding jurisdictions and regarded as
aliens, was during the 17th and 18th centuries supported in some
instances and in others disallowed.1

§ 170. But though it may be difficult to ascertain whether,
at any particular period, some one rule or principle has been
maintained by a certain number or class of nations, it may be
easier to discover whether, in the jurisprudence of any one
nation, a recognized legal effect has been judicially ascribed to
a rule supposed to prevail among all nations, or to a principle
of local origin.

A legal effect must be produced by the application of either
municipal (internal) or international law. In examining the
municipal (internal) law of any one state with reference to the
present subject of inquiry, it is to be noticed that though such
converted slaves may not have been set at liberty, enfranchised,
or put on an equal footing with the other subjects of such do-
minion in respect to the enjoyment of personal liberty, yet if
their condition was recognized as an incident of a relation
between legal persons, consisting of correlative rights and obli-
gations, (like that of the feudal serf, or of the Mohammedan
slave in Mohammedan countries, according to the view above
taken of his condition,) that condition of bondage could no longer
be regarded in the jurisprudence of that nation, or of any other,
as the effect of a law of nations — universal jurisprudence, or of
natural reason as shown by that law. Because, as has been

15011 negro slaves bom among Christians; (cites Herrera, Hist. Ind. decad. 1, Lib. iv.,
c. 12) that is to say, slaves born in Seville and other parts of Spain, the children and
descendants of natives brought from the Atlantic coast of Africa, where such traffic had
for some time been carried on by the Spaniards and Portuguese."

1 The authorities showing this will be presented in a chapter treating of the pri-
vate international law in connection with slavery during1 the colonial period.

LAW OF NATIONS — HOW KNOWN.

160

shown in § 112, it is chattel slavery alone that can be the same
ataius in different countries, and the servile condition of a legal
person varies in different countries, according to the nature of
the correlative rights and obligations, in respect to other persons,
and in respect to things, which may be attributed to the master
and bondman. The condition of such person, in whatever obli-
gations it might consist, would indeed have been regarded as
agreeable to natural reason in the view of all tribunals acting
under the state establishing that condition ; because all the laws
of a state are promulgated as jural laws, and received in its
own jurisdiction as consistent with natural reason. But it would
no longer have been taken to be a condition proved to be jural
from the general reasoning of mankind.

And if, in any countries wherein negroes or Indians were
legally held as slaves, notwithstanding their conversion to Chris-
tianity, such slavery had been specially supported by positive
legislation, it would therein be more doubtful whether that con-
tinued slavery could have been, in such countries, judicially
attributed to universal jurisprudence.

But according to what has been said on this point in the
elementary examination of the subject, given in the second
chapter, a doctrine of this character is properly distinguishable
only in the judicial application of private international law.1

The slavery of Christanized negroes, Moors, or Indians might
have been continued in one or more countries of which they
were domiciled inhabitants, and it may not be easy to discrimi-
nate whether it was therein judicially attributed to a principle
of universal jurisprudence, or to some law of national origin
(statute or local custom), being a jus proprium as distinguished
from a jus gentium. But where the question may have occurred
under the private international law, as where a Christianized
negro, &c, had been brought into the forum of jurisdiction
from some foreign country, wherein he had been (it was ad-
mitted) lawfully held in slavery, and the question was of the
continuance * of that condition, it would become necessary for
the tribunal to decide whether it was supported in the forum by
force of the la/w of nations, or whether its continuance would

1 See ante, §§ 94, 101.

* See ante, § 68.

170

THE ANCIENT PBAOTIOE.

depend on statute and local precedent, including the so-called
rule of comity, the nature and limits of which have also been
examined in the second chapter.1

§ 171. It Becms probable that, in the first instances of an
inquiry as to the legal condition of a Christianized Moor, negro,
or Indian, judicial tribunals would havo referred to the former
legislative (juridical) action of European states in reference to
the slavery °f whites, or persons born in Europe. For, as has
been shown, the slavery of infidpls and heathen negroes and
Indians was of the same origin ; that is, was ascribed to princi-
ples traceable in the history of jurisprudence as part of the cus-
tomary law of the civilized world. In tracing the decay of that
chattel slavery which, without any distinction of race or physi-
cal structure, had been an element of civil society under the
Roman Empire, it was shown, that though the civil power did
not immediately determine the legal rights and obligations of
natural persons according to religious belief, and though as a
general rule, the slave did not obtain personal liberty, yet the
distinct attribution of legal personality and capacity for rights,
while yet in a servile condition, became universal ; while at the
same time that condition became judicially attributable to the
law of some one state only, or to some jus proprium, and was
no longer a status equally recognized in municipal (internal)
and in international law.* By reverting thus to the ancient doc-
trines of European jurisprudence it might perhaps have been
held, and consistently with the limits of the judicial function,
not, indeed, that the baptized or converted slave acquired free-
dom, but that his condition of servitude was referable only to
the juridical action of some one state ; and that, if lawful in the
place of his domicil, it could no longer be internationally
recognized as if still attributed to the law of nations.

§ 172. From this it appears that, admitting that the slavery of
Africans, Mooro and Indians could not be supported in England
or the colonies under the law of villenage,1' it would be a ques-
tion which might be differently answered at different periods be-
tween the first planting of the English colonies in America and
the end of the 18th century, whether the law of nations, en-

» See ante, §§ 110, 113, 114. • ' See ante, §§ 160-162. » See ante § 141.

LAW OF NATIONS IN THTC LAW OF A STATE. 171

taring into the common law of England as a judicially received
indication of natural reason, could be held to support the slavery
of Christianized Moors, negroes or Indians, considered either as
a chattel condition or as a relation between legal persons.

§ 173. While the general principle iB fully relied on, that the
ordinary juridical usage of other nations is properly referred to by
the tribunals of any one state or nation, administering private
law as the will of the state, it is always at the same time re-
membered that each nation or political possessor of sovereign
power is, in its estimate of the requirements of natural reason,
entirely independent of the opinion of other similar states or
persons. And, besides, such is the development of the law of
nations, that, as has in this chapter been illustrated in the his-
tory of the Roman law, and as has been explained in the second
chapter, the law of nation* must, in any state wherein laws
hnve long been administered, be supposed to have been already
applied as part of the customary law of that state.1 It is hardly
possible to conceive the jurists or the judicial officers of such a
state as deriving a rule of action simply from the practice of-
foreign states, and without making a juristical reference to some
act of legislation, or precedent of local authority, indicating
the fact that such law of nations is already part and parcel of
the law of the land. Especially, since it is to be remembered
that the law of nations is mutable ; 8 that it changes by the sev-
eral action of different nations, acting independently of each,
other, it becomes the duty of the historical jurist, and of the ju-
dicial tribunal, rather to look for a part of their national com-
mon law as being the state's conception of universal jurispru-
dence, than to determine what is the doctrine, on any one point,
most commonly received by certain nations whom the state has
recognized as juridical guides.

§ 174:. Each sovereign state or nation is in like manner inde-
pendent of every earthly power in the acceptation and enforce-
ment of any rule which may be attributed to Christianity.
Though some principles juridically applied by European nations
may be attributed to, or have been historically derived from,

1 Ante §§ 94-97.

* Ante § 39.

172

CHRISTIANITY IN COMMON LAW.

the Christian code of morals, their legal authority must depend
upon their adoption by each several atato or nation as a rule of
action, and is not simply asserted by its judicial tribunals on
their own recognition or perception of that religion. Though it
is sometimes said that Christianity is part of the common law
of England,1 yet, what rules of moral conduct are to be taken
to have the effect of law can, by a tribunal be ascertained only
according to some known judicial criterion. It is not what the
judge shall consider a requirement of Christianity, nor even
what some church may promulgate as a Christian rule of duty,
but only what the state may have acknowledged for such. The
maxim, that Christianity forms part of the common law, is now
(that is, at a period when the law of England has so long ex-
isted as a customary law) of little or no juridical force. Indeed
when, at any period of the Christian era, Christianity is judi-
cially referred to as an indication of the rules of natural reason
which may be enforced as law, on a presumption that it is the
will of the state to make it a coercive rule of action, it cannot
be distinguished from the law of nations of that period : that is,
from those principles which all Christian nations (gentes mora-
tiores)* have agreed in sustaining with the force of positive law.
Otherwise it must be identified with the conscience of the tri-
bunal, or the exposition of some church or body of Christians.*
§ 175. But whatever may have been the principles, affecting
the freedom of natural persons, which in the judgment of the
supreme power of the state were attributable to Christianity, it
cannot be supposed that if that supreme power gave effect in
one part of its dominions to any one coercive rule, as a conse-
quence of that doctrine, it should make a contrary rule to be

' Milton in his Defensio pro Populo Anglicano, p. 103, says that " by the laws of
Edward the Confessor, it was a fundamental maxim of our law, which I have formerly
mentioned, by which nothing is to be accounted a law that is contrary to the laws of
God, or Reason." The so-called laws of Edward the Confessor are probably only a tra-
ditionary view of the common law of his time ; see Hale's Hist, of Com. L., by Rem-
mington, p. 5, n. B. Noy*s Maxims, 19, — "Four lessons to be observed where con-
trary laws come in question, 1. The inferior law must give place to the superior. 2.
The law general must yield to the law special 3. Man's laws to God's laws. 4. An
old law*to a new law." The recognition of the law of God as supreme is made in every
system of law. But if the state is the expositor ? — see ante §§ 14-16. The legality of
slavery in England before the Norman conquest has been noted ante § 143, and the
doctrine of Neal v. Farmer, § 167, n.

* Ante p. 83, note. . * Ante § 101 and note.

LAW OF NATIONS IN ENGLISH LAW.

178

law in another part. It does not follow that, if the supremo
legislative power in the British Empire sanctioned slavery in
one part of its dominions, it could not, or did not, prohibit it in
another. But it must be presumed that, if it was sustained in
any one part, it could not be judicially considered illegal in the
other, on the ground of being contrary to the view of Christian
morality sustained by the state. If Christianity is to be held
part of the common law of England, a sanction given to the
slavery of Africans or negroes, in any part of the world, is a
proof that the state did not at that time regard such slavery as
contrary to Christianity, or as being for that reason forbidden
by the common law.1

The question in this point of view is, not so much whether
chattel slavery was maintainable under the local customary law
of England , or whether it was maintained by statute law, either
in England or in the colonies, or in both : but whether it was
recognized at all, and held to be any where consistent with the
moral code of a Christian nation.

§ 176. The recognition of principles having the character
of universal jurisprudence or a law of nations^ as has been
shown in the second chapter, is most distinctly made in the
judicial enunciation of private international law : that is, where
the customary or unwritten law of the country is applied to de-
termine the rights and obligations of private persons, in those
interests and actions which are beyond the control of single
states," or where persons are recognized as sustaining rights
and obligations in relations which have become existent under
the juridical and legislative power of some foreign state.'

The English judicial decisions which have this international
bearing, in connection with African slavery, will be noticed
hereafter.

But the recognition by the state of a principle, as part of

1 Mr. Hildreth, (Hist U. S. voL 2, p. 427,) commenting on juristical opinions in
England, 1729-1750, respecting the maintenance of slavery in England, says, " to
avoid overturning blavery in the colonies, it was absolutely necessary to uphold it in
England." This is not correct: though, if slavery had been repudiated in England on
the ground that it was contrary to Christianity, or the law of God, it would have been
necessary to infer that it was illegal in the colonies ; that is, if the law of England and
the lav of the colony proceeded from the mime political source.

* Ante, § 10. » Ante, § 6a

174

BTATUTK8 OF COMMERCE.

the law of nations, may bo shown from statutory enactments.
And sir cc the meaning of language is a thing of custom, and
known by reference to existing facts, the words of a statute may
indicate the law of nations, on some point, as received by the
state. Especially is this true of legislation in reference to matr
ters of private 'international law, or matters which imply a
recognition of other jurisdictions and sources of law. And this
applies both to the action of the legislative and the judicial
source of law. The use of terms having a definite meaning in
the usage and practice of merchants, which is a particular
branch of the private international law,1 may be equal to a recog-
nition of that usage and practice as universally allowed, or as a
law of nations, especially when tho statutes are intended to
operate on the intercourse of persons subject to different politi-
cal sovereigns. When a statute of 1697, 8, 9, and 10, ¥m. 3,
c. 26, entitled " An Act to settle the trade to Africa," com-
mences— ' Whereas the trade to Africa is highly beneficial and
advantageous to this kingdom, and to the plantations and colo-
nies thereunto belonging," — the nature of that " trade " must
be explained from the previous history of commerce, and in
accordance with the " custom of merchants " at that time. And
when in the statute " negroes " are spoken of as the objects of
that trade, the extent of the term negroes and the legM nature
of their condition, then spoken of as objects of a commercial
enterprise, must be explained by the law of nations then ac-
knowledged in mercantile affairs. And it is not to be inferred
that, before this act should make slavery lawful under British
jurisdiction, provision must have been made by statute, placing
the " negroes " in the condition of chattels or of persons under
involuntary servitude. A historian must describe such an act
as a law declaring the slave trade highly beneficial and advan-
tageous to the kingdom and its colonies.1

' That the law merchant is recognized as part of the common law of England, see
Co. Littr 2 Inst, c 80.

* See 8 Banc, p. 414 ; and comparn Lysander Spooner, on the Unconstitutionality
of Slavery, p. 25. It may be admitted that, when the " trade to Africa " was first
mentioned in English public Acts, no reference was had to slaves as articles of that
trade. The association of the slave trade with that branch of English commerce was
gradually formed between the reign of Elizabeth and 1662, when Charles II. incor-
porated a third African, or Guinea, company which undertook to supply the British

THK ABSIKNTO TREATY.

175

Treaties are as much juridical acts on the part of the state or
sovereign aB are ordinary statutes ; though the ohjeets im-
mediately contemplated may he heyond the realm. They may
create rights and obligations which the national courts will en-
force. The twelfth article of the Treaty of Utrecht, July 13,
1713, between Great Britain and Spain, granted " to her Brit-
tanic Majesty and to the company of her subjects established
for that purpose, as well the subjects of Spain as all others being
excluded, the contract for introducing negroes into the several
parts of the dominions of his Catholic Majesty in America (com-
nonly called El Pacto del Assiento de NegroB), for the space
of thirty years." And the same section grants the occupancy
of lands near the Rio de la Plata, " suitable for maintaining the
servants of the said company and their negroes (nigritas), and
for safely keeping them, the said negroes, for the purpose of
being sold." 1

An Act, 1749-1750, 23 Geo. 2, c. 31, entitled, " An Act for
extending and improving the trade to Africa," which begins,
" Whereas the trade to Africa is very advantageous to Great
Britain, and necessary for supplying the plantations and colo-
nies, thereunto belonging, with a sufficient number of negroes
at reasonable rates," &c, must be taken to mean that the negro
slaves brought or " supplied," were to be sold at reasonable
rates.* The sale and disposal of negroes as articles of merchan-
C'ze is also referred to as one of the objects of the trade in sec.
20 of the Act of 1697, wherein " governors, deputy-governors,
and judges are forbidden und^r penalty to act as a factor or
factors, agent or agents, for the said company, or any other per-
son or persons, for the sale or disposal of any negroes." And
the lawfulness of chattel slavery, of negroes bought as articles
of commerce on the co.'ist of Africa, is not the less contem-
plated, by the Act of 1749-50, because in the twenty-ninth
section it is enacted — " that no commander or master of any

West Indies with 8,000 negroes annually. See 1 Hiine, p. 297 — 311. 2 Anderson'*)
Hist Com., p. (527.

1 Dumont's Corps Diplomatique, Tom. viii., p. 895, and Wheaton's L. of Nations,
p. 586 ; refers Dumont, Tom. viii., 2 me. partie, p. 844.

* "When [ubout 1750] the exclusive privileges of the Royal African Company ex-
pired, the English government undertook to maintain, at their own expense, the forts
and factories on the African coast, and the trade was thrown open." 2 Hild. 427.

176

NK0R0K8 IMPORTED.

ship trading to Africa, shall by fraud, force, or violence, or by
any other indirect practice whatsoever, take on board, or carry
away from the coast of Africa any negro or native of said coun
try, or commit, or suffer to be committed, any violence on the
natives to the prejudice of the said trade ; " and a forfeiture for
such action is declared. For though, in the earliest period of
the intercourse of Europeans, tho English included, with the
African tribes, negroes were kidnapped or piratically seized by
force, and the practice had perhaps at first been considered
lawful by the law of nations, the common opinion of Europeans,
long before the date of this statute, had been changed, and a
distinction made between the legal slavery of negroes bought
on the coast from African slave-merchants, and the condition of
such stolen captives.1

§ 177. From the sanctioning a trade in negroes, as articles
of merchandise, under the British flag, without limiting the
trade to any part of the imperial dominions, it would be a just
inference that the possession of such property would be lawful
in England. The entry of such property into England is con-
templated in the first of the above acts, sec. 7, where the duties
are specified " which shall be paid at the place of importation
upon all goods and merchandise (negroes excepted) imported in
(into) England, or any of his majesty's plantations or colonies in
America from the coast of Africa ; * * * and that all goods
and merchandise (negroes excepted) that shall be laden or put
on board any ship or vessel on the coast of Africa, between
Cape Blanco and Cape Mount, and shall be imported into Eng-
land, or into any of his majesty's plantations or colonies afore-
said, shall answer and pay the duties aforesaid," <fcc.

1 Wheqton : Internat. L., p. 24, and Law of Nations, p. 35, cites Soto da Justitia
et Jure (A. D. 1568), lib. iv., Quaest. ii., art. 2 : "If the report which lias lately pre-
vailed be true, that Portuguese traders entice the wretched natives of Africa to the
coast by amusements and presents and every species of seduction and fraud, and com-
pel them to embark on their ships as slaves, neither those who have taken them, nor
those who buy them from the takers, nor those who possess, can have safe consciences,
until they manumit these slaves, however unable they may be to pay ransom." This
is indeed only the opinion of a private man, — his moral judgment of what is right ;
but the frequency with which it has been cited by jurists gives it the character of an
exponent of the juridical intention of European states.

For other illustrations of this distinction, see 1 Hline, p. 800, cites Asthley's Collec-
tion, I, 160. Poet, ch. VI., Massachusetts, 1645. 8 Har. tc Mcflen. R,, 501, and
Wheeler's Law of Slavery, p. 11.

NBOBOEB IN ENGLAND.

177

§ 178. When any natural person had been brought within
some European territorial jurisdiction, as a slave, it would be a
question, — what was the nature of the right claimed in respect
to him, and what persons could be held as slaves, — whether
heathen Africans, Moors, or Indians only, or any other and
what races of men ? The question might bo raised, whether
the property was still in the person of the negro, ifcc, or in the
right to his service? The question would be of the nature,
operation, and personal extent of that law of nations under
which he had been introduced into the jurisdiction. If his
slavery were sustained by that law while a heathen, it would
then be a question whether, after conversion, or baptism, his
condition was determined by that law, either to be that of a
chattel or of a bondsman. And if no principle of the law of
nations, as then received, determined his condition, It would be
then a question whether any law judicially known as one of
national origin (jus proprium, § 152) subjected him to the con-
dition of servitude.

§ 179. The recognition of a principle of the law of nations,
under the juridical power of some one Btate or nation, is made
in the application of either municipal (internal) or international
private 4aw ; according to the character of the persons whose
relations are to be determined ; that is, according as they are
regarded simply as the domiciled inhabitants of the jurisdiction,
without regard to the existence of other jurisdictions, or as
persons anteriorly subject to the juridical power of some other
state.

' Assuming, then, that the only natural persons who could be
property, or could be held in involuntary servitude, by the
operation of universal jurisprudence — th&law of nations — were
negroes, Moors, or Indians, and that there were none such in
England, before the modern extension of the African slave trade
during the period in which "the colonies were- planted in Amer-
ica,1— the question of the legality of the slavery of a person of
that description, under the territorial jurisdiction of the law of

1 Barringkm on Statutes, time of 1 Rich. II.,— a chapter to be notod in connection
with villeuage, as well as chattel slavery — cites Hakluvt, that in the year 1558, four
and twenty negroes were brought into England from the ooart of Africa.

QUESTION OF INTERNATIONAL LAW.

England, would be, in the first instance, a question of the pri-
yate international law — the law determining the relations of
persons entering the country as alien to its jurisdiction. For,
whether the .negro, Moor, or Indian were brought into tho realm
by an alien or by a domiciled owner, the claim of that owner
would be . a question of that character, either by the recog-
nition off the alien character of the slave, or by the assertion of
the legal continuance of a former status or condition resulting
from anterior subjection to the law of a foreign jurisdiction ; 1
presenting a question of the , BO-called "conflict of laws," and
the, effect of comity as a rule to guide judicial tribunals. But
sjcnce. a, natural person who had been a slave in a foreign juris-
diction, could have no proper domicil, distinct from that of his
master or owner, or would, have a domicil only according to the
intention, of the owner,, the question of the condition of such a
person in England would belong to the international law, or to
the municipal (internal) law, according to the purpose of the
owner, either to remove him to the foreign jurisdiction in which
he had been held in slavery, or to maintain his custody and
control, in . England, aa the right of a 'domiciled inhabitant.*
, The question, as presented under the first alternative, will
, be, considered in another chapter. But in the other casf, where
the question would* be of the continued servitude of such negro,
Moor, or Indian, under the local or territorial law of England,
(if his status or condition was to be determined independently
of .any statute, that is, by the customary or common law alone,)
it would still be necessary to determine — whether the law of
nations, historically known, was to be applied as part of that
common law, acting as a personal law on the condition of a
certain cI&bb of natural persons;' — whether that law continued
the. same ; and whether it was prevented from having any force
by reason of the extent of rules of local or national origin (jus
prqprium) having contrary effect upon the individual and rela-
tive rights of . private persons.*

§ 180. The question of the possible existence of involuntary
servitude under the law of England, seems to have been from

1 Sm «Nfe 1 68, the note, and § 69. * Comp. ante, 8 121,

•teaaftif- UL * Bee ante, § 144.

QUESTION OP INTERNAL LAW. 179

time to time a subject of judicial inquiry during the' period re-
ferred to. In the year 1640, when the impeachment of the
judges of the Star-chamber by the House of Commons, in be-
half of John Lilburne, went up to the House of Peers, " it was
urged by those that managed the same, that in the eleventh of
Elizabeth one Cartwright brought a slave from Russia, and
would scourge him, for which he was questioned ; and it was
resolved that England was too pure an air for slaves to breathe
in."'

Barrington, on the Statutes, 5th ed. p. 813, in referring to
this * remarks, that the word sla/oe is used in 1 Edw. VI. c. 8,
where it is enacted that a vagabond and idle servant shall be-
come a slave to his master. But the 3-4 Edw. VI., c. 6, ex-
pressly repeals so much of that act " as tendeth to make vaga-
bonds slaves." (1 Bla. Comm. 424. Keble's Statutes.)

§ 181. The question of the lawfulness of the slavery of
negroes in England was frequently, after this date, discussed be-
fore the courts. The reports are meagre in stating the argu-
ments upon which they were decided. The earliest of these
occurred in 1677, 29 Car. IT. in B. R. Butts vs. Penny, which
in 2 Levinz, 201, is reported as follows.

1 2 Roghworth, 466. Considering the time at which W. Harrison wrote. 1677—
an author published in Holinshed, his statements may be here cited, though his style
does not inspire much confidence. He says : Hoi. Chronicles, Vol. I. 168, " Aa for
slaves and bondmen we have none, naie each is the privilege of oar conn trie by the
especial grace of God, and boontie of our princes, tJ at if anic come hither from other
realms, so soone as they set foot on land they become so free of condition as their mas-
ters ; whereby all note of servile bondage is utterlie removed from them, wherein we
resemble (not the Germans, who had slaves also, though each as in respect of the
slaves of other countries might well be reputed free, but) the old Indians and the
Taprohanes, who supposed it a great injurie to nature to make or suffer them to M
bond whom she in her wonted course doth product and bring forth free."

The author introduces this in a description of the laboring class, of whom he say* t
" This fourth and last sort of people, therefore, have neither voice nor authority is
the commonwealth, but are to be ruled, and not to rule other," &c.

9 This passage in Rush worth seems to be the original authority for this oelebrated
dictum. Barrington, in the place cited, attributes the saying to Lilburne He also
refers to Fitzherbert, as saying with regard to villein "tenures in the same reign, that
a notion, originally inculcated by Wickliff and his followers, began to prevail, of its
being contrary to the principles of the Christian religion that anyone should be a
slave ; and hence, in more modern times, slavery hath been supposed to be inconsist-
ent with the eommon law, which is said to be founded upon Christianity and adds,
" Be the law as it*may, the persuasion contributed greatly to the abolithlng villenage ;
and the principle, whether adopted by the common, law from Christianity, or other-
wise, cannot be too much commended or insisted upon. I cannot; however, but think,
that neither the Christian religion, nor the common law, eveir inculcated such a tenet."

180

B01TC VS. PENNY.

u Trover for 100 Negroes, and upon Non Cvlp. it was found
by special Verdict, that the Negroes were Infidels, and the
Subjects of an Infidel Prince, and are usually bought and Bold
in America as Merchandise, by the Custom of Merchants, and
that the Plaintiff bought these, and was in possession of them
until the Defendant took them. And Thompson argued there
could be no Property in the Person of a Man sufficient to main-
tain Trover, and cited Co. Lit. 116.1 That no Property could
be in Villains but by Compact or Conquest. But the Court
held, that Negroes being usually bought and sold among Mer- •
chants, as Merchandise, and also being Infidels, there might be
a property in them sufficient to maintain Trover, and gave
Judgment for the Plaintiff, nisi Causa, this Term ; and at the
end of the Term, upon the Prayer of the Attorney-General to
be heard as to this Matter, Day was given until next Term."

The same case is reported in 3 Keble, 785, thus :

" Special Verdict in Trover of 10 Negroes and a half find
them usually bought and sold in India, and if this were suffi-
cient property on (for) Conversion, was the question. And
Thomson, on 1 list. 116, for the Defendant, said here could be
no property in the Plaintiff more than in Villains ; but per
Ouriam, they are by usage tanquam bona, and go to Adminis-
trator until they become Christians ; and thereby they are In-
franchised : And Judgment for the Plaintiff, Nisi, and it lieth
of moety or third part against any Stranger, albeit not against
the other Copartners."*

§ 182. In the case Chambers vs. "Warkhouse, in the year
1693, 4 "WilJ. and Mary, which was in trover for dog-whelps,
the question was whether they could be property, and it was
said by the court, " Trover lies of Musk-Cats and of Monkies,
because they are Merchandise ; and for the same Reason it has

1 When villenage is described.

* 20 Howell's State Tr. 52. Mr. Hargrove said in his argument, that the Roll
of this ease had been examined for him by a friend, " and according to the account of
it given to me, though the declaration is for negroes generally in London, without any
mention of foreign parts, yet from the special verdict it appears that the action was
really brought to recover the value of negroes, of which die plaintiff had been pos-
sessed, not in England, bnt in India. Therefore, this case would prove nothing in
favor of slavery in England, even if it had received the Court'* judgment, which, how-
ever, it never did receive, there being only an ' nUerios consilium ' on the Roll *

GKI.LT vs. clevk.

181

been adjudged, thai Trover lies of Negroes? This is cited in the
subsequent caees.

§ 183. The case of Gelly vs. Cleve is spokon of in 1 Ld. Ray-
mond, 147, as occurring in 1694 ; as follows :

" Hill. 5 Will. & Mar. C. B. between Gelly and Cleve, ad-
judged that trover will lie for a Negro boy ; for they are heath-
ens, and therefore a man may have property in them, and that
the court, without averment made, will take notice that they
are heathens. Ex relatione m'ri Place"

§ 184. The case in 1 Ld. Raymond, 147, is that of Ohamber-
layne vs. Harvey, 8 & 9 Will. 3, 1697, which is there -given
as follows :

Trespass for taking of a Negro pretii 1001. The jury find
a special verdict ; that the father of the plaintiff was possessed
of this Negro, and of such a manor in Barbadoes, and that there
is a law in that country, which makes the Negro part of the
real estate ; that the father died seized, whereby the manor de-
scended to tlie plaintiff as son and heir, and that he endowed
his mother of this Negro and of a third part of the manor : that
the mother married Wathms who brought tho Negro into Eng»
land, where he was baptized without the knowledge of the
mother j that Watkins and his wife are dead, and that the
Negro continued several years in England ; that the defendant
seized him, &c. And after argument at the bar several times
by Sir Bartholomew Shower of the one side, and Mi . Dee of the
other, this term it was adjudged that this action will not lie.
Trespass will lie for taking of an apprentice, or hceredem appa-
rentem. An abbot might maintain trespass for his monk ; and
any man may maintain trespass for another, if he declares with
• i>er auod servitium amiszt ; but it will not lie in this case.
And^er Holt chief justice,1 trover will not lie for a Negro, con-
tra to 3 Keble 785, 2 Lev. 201, Butts vs. Penny." Then follows
the reporter's reference to Gelly vs. Cleve, as above given.
The report of the same case in Carthewfs R. 396, is,
" Trespass, &c., for that the Defendant vi <Ss armis unum

1 Burge, VoL L p. 786, give* as the report of the Judge* upon the memorial of
the African Comptr^ touching the Assiento, in 1689 — " In purnutnce of his Majesty**
order in Council hereunto annexed, we do humbly certify oar opinions to be that
negroes are merchandise," &c. Signed by J. Holt and others.

189

CHAMBfflRLAYJTR 1», HAHVEY.

jdSXhiopem {AngUce vooaf) a Negro ipsius querentis prdn 1001.
apud London? &c. took and carried away and kept the Plaintiff
out of Possession of the said Negro from that Timo usque diem
exhibitionis Billw pradioV per quod ho (the Plaintiff) lost the
Use of his said Negro.

"Upon not guilty pleaded, the Jury gave a special Verdict,
the substance whereof was as followeth :

" ss. They find that the Negro had been baptized after the
Taking, <&c. and the matter was argued upon that Point, {viz)
Whether the Baptism was a Manumission, and as to that the
Court gave no opinion.

"Sed per Curiam, An Action of Trespass will not lie, be-
cause a Negro cannot be demanded as a chattel, neither can his
Price be recovered in Damages in an Action of Trespass, as in
case of a Chattel ; for he is no other than a slavish Servant, and
the master can maintain no other Action of Trespass for taking
his Servant, but only such which concludes per quod servitium
amisit, in which the master shall recover for the Loss of his
Service and not for the Value, or for any damages done to the
Servant.

" Judgment quod querens nil capiat per Billam." The
pleadings and special verdict in this case are given in the
third volume of Ld. Raymond, p. 129. 1

§185. In the year 1705, occurred the cases of Smith vs.
Brown and Cooper, and Smith vs. Gould, the first of which is
reported in 2 Salkeld 6C6 and Holt's R 495. The report as in
8sdkeld is,

" The plaintiff declared in indebitatus assumpsit for 201. for
a negro sold by the plaintiff to the defendant, viz. in parochia
beatffi Maries de Arcnbus in warda de Cheape, and verdict for
the plaintiff ; and on motion in arrest of judgment, Holt, C. J.
held, that as soon as a negro comes into England, he becomes
free. One may be a villein in England, but not a slave. Et
per Powell, J. In a villein the owner has a property, but it is
an inheritance ; in a ward he has a property, but it is a chattel
real; the law took no notice of a negro. Holt,.Q. J. You

1 The lurgonsento of annuel, which will be found interesting, are giren in the re-
pott of the tune case, 5 Mod. R, 187.

SMITH VS. BROWN AND OOOPKB.

188

should have averred in the deklaration, that the sale was in
Virginia, and, by the laws of that country, negroes are sale-
able ; for tho laws of England do not extend to Virginia*, being
a conquered country, their law 1b what the king pleases \ and
we cannot take notice of it but as set forth ; therefore he di-
rected the plaintiff should amend, and the declaration should be
made, that the defendant was indebted to the plaintiff for a
negro sold here at London, but that the said negro at the time
of sale was in Virginia, and that negroes by the laws and sta-
tutes of Virginia, are saleable as chattels. Then the attorney-
general coming in said they were inheritances, and transferable
by deed, and not without ; and nothing was done."

The report of this case in Holt's R. 495, is,

" In an Indebitatus Assumpsit the Plaintiff declared for 20£.
for a negro sold to the Defendant, in the Parish of the Blessed
Mary of the Arches in the Ward of Cheap : There was a Ver-
dict for the Plaintiff, and Motion in arrest of Judg;ment.

" Holt, 0. J. As soon as a Negro comes into England he
becomes free; and one maybe a villein in England $ but not
a slave : You should have averred in the Declaration that the
sale of the Negro was in Virginia, and by the laws of that
country Negroes are saleable ; for the laws of England do not
extend to Virginia, and we cannot take notice of their Law but
as set forth: Therefore he ordered the Plaintiff should amend'
and alter his Declaration, that the Defendant was indebted to
him so much for a negro sold here at London; ' but that the said
negro at the time of the sale was in Virginia; and that negroes
by the Laws and Statutes of Virginia may be sold as chattels.

" Powel, J. In a Villein the Owner has a Property, but 'tis
an Inheritance ; the law takes no notice of a Negro."

The action in this case appears to have been for money on
sale of a negro, being in Virginia, where it was admitted sla-
very was lawful. But the court on the pleadings held itself
bound to suppose that the transaction was in England, and, so
viewing it, held the contract without consideration, as for the
purchase of what could not be an article of commerce by the
law of England.1

1 Lord Mazufield said in Somerset** case, Loft's H. 17: "Contract for e*le of a alara

184

&MITH VS. GOULD.

The case of Smith w. Gould is also reported in 2 Salkeld,
666, and is also in 2 Ld. Raymond, 1274. The report ,in Salkeld
is mostly of the argument for the owner, which was made by
the reporter as counsel. In Ld. Raymond it is : " In an action
of trover for a negro, and several goods, the defendant let judg-
ment go by default and the writ of inquiry of damages was ex-
ecuted before the lord chief justice Holt at Guildhall in Lon-
don. Upon which the jury gave soveral damages, as to the
goods, and the negro ; and a motion as to the negro was made
in arrest of judgment, that trover could not lie for it, because
one could not have such a property in another as to maintain
this action. Mr. Salkeld for the plaintiff argued, that a negro
was a chattel by the law of the plantations, and therefore trover
would lie for him ; that by the Levitical law the master had
power to kill his slave, and in Exodus xx. ver. 21, it is said, he
is but the master's money ; that if a lord confines his villein,
this court cannot set him at liberty : Fitz. Villain 5, and he re-
lied on the case of Butts and Penny, 2 Lev. 201, 3 Keb. 785,
as in point, where it was held, trover would lie for negroes. Sed
non allocatur. For per totam curiam this action does not lie
for a negro, no more than for any other man ; for the common
law takes no notice of negroes being different from other men.
By the common law no man can have a property in another,
but in special cases, as in a villein, but even in him not to kill
him : so in captives took in war, but the taker cannot kill them,
but may sell them to ransom them : there is no such thing as a
slave by the law of England. And if a man's servant is took from
him, the master cannot maintain an action for taking him, unless
it is laid per quod serviUum amisit. K A. takes B. a French-
man captive in war, A. cannot maintain an action, quare cepU
B. captivum mum GaUicum. And the court denied the opinion
in the case of Butts and Penny, and therefore judgment was
given for the plaintiff, for all but the negro, and as to the dam-
ages for him, quod querens nil capiat per bill<am."

In Salkeld the court is made to speak somewhat differently
as to an action for taking away a captive ; saying that trespass

is good here ; the sale ia a matter to which the law properly and readily attaches, and
will maintain the price according to the agreement"

PKAJUOD V9. U8LX.

186

might lie, though not trover. " Sed Curia contra. Men may bo
the owners, and therefore cannot be the subject of property.
Villenagc arose from captivity, and a man may have trespass
quote captivum swum cepit,1 but cannot have trover de gattico
bug. And the court seemed to think that in trespass quart cap*
tivum mum cepiif the plaintiff might give in evidence that the
party was his negro, and he bought him."

§ 186. The decision in Pearne v. Lisle, 1740, Ambler's K. 7fi,
was on motion before the Chancellor to discharge a ne exeat reg-
no, the plaintiff's claim being founded on the hire for certain
negroes then held by the defendant in Antigua. The writ was
discharged on the ground that it was a legal demand for which
the defendant might be arrested at h»w, but the Chancellor
(Yorke) Lord Hardwicke, said :

" As to the nature of the demand. It is for the use of Ne-
groes. A man may hire the servant of another, whether he be
a slave or not, and will be bound to satisfy the master for the
use of him. I have no doubt trover will lie for a Negro slave;
it is as much property as any other thing. The case in Salk.
666, was determined on the wc*nt of proper description.1 It
was trover pro uno Ethiope vocat. Negroy without saying
slave; and the being Negro did not necessarily imply slave.
The reason said at the bar to have been given by Lord 0. J.
HoUy in that case, as the cause of his doubt, viz : That the mo-
ment a slave sets foot in England he becomes free, has no
weight in it, nor can any reason be found, why they should not
be equally so when they set foot in Jamaica, or any other Eng-
lish plantation. All our colonies are subject to the laws of Eng-
land, although as to some purposes they have laws of their own.
There was once a doubt, whether, if they were christened, they
would not become free by that act, and there were precautions
taken in the colonies to prevent their being baptized, till the
opinion *>f Lord Talbot and myself, then 'Attorney and Solicitor-
General, was taken on that point. We were both of opinion,
that it did not at all alter their state.* There were formerly vil-

1 Register Brevram, 102 b. (edition 1687) gives a form — " quondam H. Scotam pw
ipsom W. de gaerra capttun tanqnam prisonem mmn.*

* A misrepresentation ; as Mr. Hfldreth very justly remarks: Despotism in Am.,
p. 197.

' This opinion was, properly speaking, on a question of private international law,

BBAvror w. hjavky.

leins or tjlrfves in i%ikm<Z, <md those of two sorts, regardant and
in gross ; and although tenures are taken away, there are no
laws that . have destroyed servitude absolutely. Trover might
have been brought for a villein. If a man was to come into a
court of record, and confess himself villein to another, (which is
one way of being a villein,) what the consequence would be I
will not say, but there" is no law to abolish it at this time."
. § 187. The' case of Shanley vs. Harvey, 1762, 2 Eden's It.
126, was by an administrator against Harvey a negro, certain
trustees, and the next of kin, to account for part of the personal
estate, — a sutn of money given 'shortly before death, by the de-
ceased, to the negro. Among the circumstances mentioned
was — that this negro after having J>een brought to England had
been given to the deceased, "Who had him baptized, and
changed his name." The claim does not appear to have been
for the negro, but for the money ; and the question to have
been whether ho was capable of receiving the money as a gift.
The whole decision 'ia, by the Lord Chancellor, Northington,
"As soon as a man sets foot on English ground he is free : a
negro may maintain an action against fyis master for ill usage,
and may have a Habeas Corpus if restrained of his liberty."

§ 188. It will be noticed that most of the cases in which the
above decisions were made were in trover ; to maintain which
it was essential that the subject of the action should be property
—goods found by another and converted to his use. Now it
has been shown that a condition of voluntary servitude may

as determining the relation* of person* domiciltsd in different parts of one empire, and
tee extent or jurisdiction of the law supporting slavery in the colonies ; for the slaves
referred to in the opinion are such as were brought into England by persons domiciled
in the English colonies and intending to return thither with them. In this view it
would be noticed in another chapter. But it will be given here becaase, as it is
worded, it would seem to support slavery in England, as the condition of a domiciled in-
habitant It Is taken from an essay published in London by Granville Sharpe, about
the year 1772.

In ouder to certify a mistake that skives become free by their being in England,
or being baptized, it hath been thought proper to consult the King's Attorney and So-
lid tor General in England, thereupon, who have given the following opinion subscribed
with their own hands. Opinion. We are of. opinion that a slave by coming from
the West Indies to Great Britain or Ireland, either with or without his master, doth not
become free ; and that his master's property or right in him is not thereby determined
or varied j and that baptism doth not bestow freedom on hhn, nor make any alteration
in his temporal condition in these kingdom*. We are also of opinion that the master
may legally compel him to return again to the Plantation*. June 14, 1729. P.
Yorke; C. Talbot.*

QUESTION 07 CHATTEL OTIUtACTKR.

187

be supported by tho law while the character of property, or a
chattel condition, is not attributed to the person held in bondage.
A decision that trover did not lie, for the reason that slaves
were not articles of commerce, did not therefore necessarily in-
volve the conclusion that negroes could not be held in servi-
tude in England in the same manner as villeins had been; and
the claim might, have failed only because the proper form of
remedy had not been resorted to. ThuB in Smith vs. Gould,
though it was decided that trover would not lie, as for articles
of merchandise, yet " the court seemed to think " that the plain-
tiff might have sustained an action of trespass against the de-
fendants for depriving him of a person held by him as a cap-
tive, even if he had acquired his rights over such captive by
purchase. So in Butts vs. Penny the objection of Thompson,
arguendo, was against the form of action, founded on the theory
of a finding of goods or chattels ; — "here could be no property
in the plaintiff more than in villeins."

In the cases where trover was maintained, it appears that
the court did not look for an act of legislation, or a local
custom, or a custom of the realm, creating that, property, but
referred to the general usage or custom among all nations —
the custom of merchants. Thus in Butts vs. Penny, the Verdict
found that negroes were usually " bought and sold in India, and
if this were sufficient property for conversion was the ques-
tion ; " and the court said " they are by usage tanquam bona,"
qualifying it with the addition, that when they became Chris-
tians they would be enfranchised : and in 2 Lev. 201, " being
usually bought," &c. . So in 3 Levins, 336, negroes are said to
be merchandise by the game law that animals are known to be
merchandise, i. e. universal usage. Hardwicke says the negro
slave is " as much property as any other thing;" and what are
persons and what things is decided by the law of nations herein-
before described ; that is, universal^ urisprudence gathered from
the general custom of civilized nations. In the only one of these
decisions which declares the negro to be a freeman upon enter-
ing England, Smith vs. Brown and Cooper, Holt says at the same
time, that one might be a villein in England though ot a slave.
This language must be taken to mean, that the law of villenage

188

TOE LEQAL DISTINCTION.

is tlie only law of involuntary servitude in England, and that
this law, being local and prescriptive, could not apply to an
African.1

§ 189. According to Granville Sharpe's eroay many instances
had occurred, before the date of its publication, of slaves being
bought and sold in London : and Dunning states, in his argu-
ment for the master, in Somerset's case in 1772, " from the most
exact intelligence I am able to procure there are at present here
about 14,000 slaves." 1

From these various cases of the actual support of slavery of
negroes in England between the years 1677 and 1772, it may
be gathered, that the prevailing legal opinion supported the doc-
trine that regroes might be held as slaves under the common
lew of England, either as chattel slaves, or persons in a condi-
tion of involuntary servitude.

It is however herein claimed, that the true doctrine on this
point, resulting from the principles of jurisprudence herein-be-
fote set forth, was this, — negroes or Moors, and Indians, while
heathen and barbarian, could be held in chattel servitude as
merchandise, in England, by the judicial recognition of natural
re°^on in the historical law of nations; forming a part of the
common law of England, because being a recognized exposition
of natural reason.* But upon becoming baptized and domiciled
inhabitants of a Christian country, they became recognized as
legal persons, either by the law of nations or by principles de-
rived from Christianity by the supreme power in England, and

' Molloy : De Jure Maritimo, London, 1744, B. 8, c. i. 7. "Though Slavery and
Bondage are now become discontinued in most parts of Christendom, and to that de-
gree that for the person of a man, be he Moor or other Indian, a Trover is not now
maintainable by the laws of England " — citing Salk. 666, 667— goes on to say that
there may be a lawful bond service for life.

* Wade's British Chronol. p. 888 : " Prior to this judgment (Somerset's case) the
personal traffic in slaves resident in England had been as public in London as in the
West India Islands. They were openly sold on the Royal Exchange.'' By Lord
Stowell, 2 Hagg. Adm. R p. 105 : " They were sold on the Exchange and other places
of pnblk resort by parties themselves resident in London, and with as little reserve as
they would have been in any of our West India possessions. Such a state of things
continued, without impeachment, from a very early period up to nearly the end of the
last century."

' In Neal v. Fanner, 9 Geo. 556-676, the court, in arriving at the conolutSon that
it is cot felony at oommon law to kill a negro slave, is greatly embarrassed by assuming
that slavery could only have been supported in England by the law of vilknage, and
yet holding that it had a legal existence iu Georgia without positive legislation, and
as property recognised by " the law of nations."

SOMERSET'S CASK.

180

having territorial extent therein ; 1 and there was thereafter no
principle, attributable to the law of nations, or any other indi-
cation of natural reason, which could be judicially taken to
sustain any right of control in one private individual over an-
other, irrespective of the relations of the family ; and the local
law of villenage could not app'y to persons who had either
themselves come, or whose immediate ancestors had come into
England from abroad.

Besides, the law of nations, it has been shown, is suscepti-
ble of change (ante § 89). It may have changed in Europe,
during the period between the date of the last of these decisions
and that of Somerset's case, from thus supporting chattel slavery
to denying it altogether. It will be difficult for a judicial tri-
bunal to discriminate when the law of nations thus changes, but
after a lapse of years it may be easy to point out an alteration.
The opportunities to do this occur oftener in the application of
international law, because the recognition of a law of nations is
more distinct therein than in the application of municipal or in-
ternal laws (ante § 101).

§ 190. The decision of the King's Bench in 1772, in favor of
the freedom of the negro James Somerset, might have been
maintained upon the doctrine just stated. The question arising
in that case was more properly an international or quasi-inter-
national one ; — a question under the private international law
existing between different jurisdictions of the British Empire,
which will form the subject of a separate chapter (eh. vii.) : the
owner of the negro being still the domiciled inhabitant of a
colony, and the question of the domjcil of the negro being de-
pendent on that of his condition. But it does- not appear that
in the view of the court the case was affected by this circum-
stance, and the language of the decision would apply with the
same force to parties supposed to have a domicil in England.

The judgment finally pronounced by Lord Mansfield in this
case, June 22, 1772, is thus given in Loft's R , p. 18 : * —

"• On the part of Somerset, the case which we gave notice

1 Then appears to be a recognition of this principle in Home's Mirronr, o. 2, sec
28. " Villeins become free many ways ; some by baptism, as those JSaracsnt who are
taken by Christians or bought, and brought to Christianity by grace."

* See also the report in 20 Howell's State Trials, p. 1.

190

MAMPn&It'B DECISION.

should be decided this day. the court now proceeds to give its
opinion. I shall recite the return to the writ of habeas oorpu6y
as the ground of our determination ; omitting only words of
form. The captain of the ship, on board of which the negro was
taken, makes his return to the writ m terms signifying that there
have been atid still are, slaves to a great number in Africa ; and
that the trade in then* ia authorised by the law* and opinions
of Virginia and Jamaica ; that they are goods and chattels J
and as such saleable and sold. Thftt JameB Somerset is a negro
of Africa, arid long before the returit of the king's writ Was
brought to be sold, and was sold to Charles Stewart, Esq., then
in Jamaica, and has not been manumitted since; that Mr.
Stewart, having occasion to transact business, came over hither
with an intention to return, and brought Somerset to attend and
abide with him, and to carry him back as soon as the business
should be transacted. That such intention has been and still
continues; and that the negro did remain till the time of his
departure in the service of his master, Mr. Stewart, and quitted
it without his consent ; and thereupon, before the return of the
king's writ, the said Charles Stewart did commit the slave on
board the Ann and Mary, to save custody, to be kept till he
should sail, and then to be taken with him to Jamaica, and
there Bold as a slave. And this is the cause why he, Captain
Knowles, who was then and now is commander of the above
vessel, then and now lying in the river of Thames, did the said
negro, committed to his custody, detain; and on which he now
renders him to the orders of the court. We pay all due atten-
tion to the opinion of Sir Philip Torke, and Lord Chief Justice
Talbot, whereby they pledged themselves to the British planters,
for all the legal consequences of slaves coming to this kingdom
or being baptized, recognized by Lord Hardwicke, sitting as
chancellor, on the 19th of October, 1749, that trover would lie ;
that a notion had prevailed, if « negro came over, or became a
Christian, he was emancipated, but no ground in law ; that he
and Lord Talbot, when Attorney and Solicitor-General, were of
opinion, that no such claim for freedom was valid ; that though
the Statute of Tenures had abolished villains regardant to a
manor, yet he did not conceive but that a man might still

INCONSISTENCIES IN THjE OPINION.

191

become a villain in gross by confessing himself such in open
court. We are so well agreed that we think there is no occasion
of having it argued (as I intimated an intention at first) before
all the judges, as is usual, for obvious reasons, on a return to a
habeas corpus; the only question before us,is, whether the cause
in* the return is sufficient ? If it is so, the negro must be re-
manded ; if it is not, he must be discharged. Accordingly, the
return states, that the slave departed and refused to serve ;
whereupon he was kept, to be sold abroad. So high an act of
dominion must be recognized by the law of the country where
it is used. The power of a master over his slave has been ex*
tremely different in different countries. Ther state of slavery is
of such a nature that it is incapable of being introduced on any
reasons, moral or political ; but only by positive law, which
preserves its force long after the reasons, occasion, and time
itself, from whence it was created, is erased from memory. It
is so odious, that nothing can be suffered to support it but posi-
tive law. Whatever inconveniences, therefore, may follow from
a decision, I cannot say this case is allowed or approved by the
law of England ; and therefore the black must be discharged."

§ 191. However correct the decision of the court may have
been in declaring -that the negro could not be held in slavery in
England, the arguments given in support of it by Lord Hans-
field are open to obvious criticism under wiell-established princi-
ples. Admitting that the statutes and public acts relating to
the commerce in negroes were not operative in England, and
that there was no "positive law" meaning positive legislation,
to sustain the servitude of the negro in this case, the reason
given, for not sustaining it, is not a good judicial reason. Lord
Mansfield says — " the state of slavery is of such a nature, that
it is incapable of being introduced on any reasons, moral or
political." If he intended to aay that the moral and political
reasons against slavery were such that even positive legislation,
intending to produce it, was not to be sustained ; that it was
contrary to a law of nature which must be presupposed in all
legislation, and which limited the highest power in the state, —
(that is, a law in the secondary sense — a necessary condition of
things), then it was superfluous and contradictory to say " that

mansfield's false position.

it could only be introduced by positive law," — " it is so odious
that nothing can be suffered to support it but positive law," —
that w so high an act of dominion must be recognized by the
law of the country where it is used ; " for had there been such
an act of legislation, it would, by this reasoning, have been
void and inoperative.1 If he intended to say that there were no
moral or political reasons to his mind for such a law, if it was
in existence, or for its introduction by the legislative power, —
that was beyond his province as a judge. , The question was not
of its introduction, but of its existence. The reasoning of Lord
Mansfield in this case would have been equally good for a judge
in the colonies, and would have annihilated slavery in British
America also. The historical origin of that slavery was entirely
overlooked when he declared "that it could not be judicially
recognized any where unless supported by positive law"; — that
is, supposing him to have intended positive legislation by the
term " positive law." That proposition, which has since this
decision been the text for so many essays in England and Amer-
ica, is in direct contradiction to the whole history of chattel
slavery in every country where it has existed: for, as has been
shown in this chapter, it has always originated through a judi-
cial recognition of natural reason, and of universal jurispru-
dence, or the historical law of nations, taking effect as inter-
national and municipal law, because an exposition of natural
reason which must be presumed to be received by the state

"The language of the court in this case is an illustration of the remark of Savigny :
Vocation of our Age for Legislation and Jurisprudence, Hayward's TraaaL, p. 186 :
" Thus it appears, that when old nations reflect how many peculiarities of their law
have already dropped oft, they easily fall into the error just mentioned, holding all the
residue of their law to be a jus quod naturalis ratio apod omnes homines constituit''
(See also p. 134 of the same treatise.) If Lord Mansfield professed to recognize a
universal jurisprudence, distinct from that peculiar to bis own country, deriving it from
the concurrent testimony of civilised nations or of reasoning mankind, — and it will he
admitted that he did so, if ever an English judge — it would be important to know whom
he considered nations, or whom reasoning, or reasonable, men. It is related of him
that he once said in debate, alluding to Otis' Essay on the Rights of the Colonies, that
*■ he seldom looked into tueh tkmg$ : though in Chamberlain of London «. Allen
Evan a, in the House of Lords, he expressed his admiration of President De Hum's
dedication of his history, which he said he never could read without rapture." (See
North American Review, Jan'y, 1826, p. 188. Life of J. Quincy, jr.) It would ap-
pear, therefore, that he had some private role to measure authorities on the concurrent
testimony of mankind, which may not be orthodox with all who quote hit opinions,
and that he thought that some persons and nations were not entitled to have an
opinion.

KFTBOT OF B01fKB8BT,t CABS.

198

promulgating law as & jural rule; and it has very rarely, if ever,
been originally established in a country by positive legislative
enactment.1

The true nature.of this decision, and its force as a juridical
precedent in the colonies, will be noticed in another chapter.
Whatever may be thought of the arguments by which it is sup-
ported, its efficacy in determining the question, as one of the
effects of the municipal law of England, most be admitted :
followed as it has been by so long a period of continued ap-
proval : and the doctrine taken to be established, that in Eng-
land no person can be held in involuntary servitude unless by
the force of some statute.

1 Mr. Seward, in Ms speech in the U. S. Senate, March 11, 1850, (Work*, yoL t,

E. 80,) "ay* : " Slavery ha '• never obtained any where by exprew legislative minority,
at always by trampling down laws higher than any m«ra manMml laws — the law of
nature and of nations." The fact that it baa no " obtained," that is — has become
recognized as lawful — without " express legislative authority," is the best possible proof
that its existence is accordant with "the law of nature and of nations unktss the
individual moral judgment of the speaker is the standard of " laws higher than any
mere municipal laws."

Note.— In the case of the slave Grace, (1827,) 2 Hagg. R, p. 105, (Scott,) Lord
Stowell said : " It appears that Lord Mansfield was extremely desirous of avoiding the
necessity of determining the question : he struggled hard to induoe the parties to a
compromise, and sa. , he had known five cases to terminated out of six; but the
parties were firm to their purpose in obtaining a judgment, and Lord Mansfield was at
last compelled, after a delay of three torsos, to pronounce a sentence which, followed
by a silent concurrence of the other judges, discharged this negro ; thereby establish-
ing that the owners of slaves had no authority over them in England, nor any power
of sending them back to the colonies. Thus fell, after only two and twenty years, in
which decisions of great authority had been delivered by lawyers of the greatest ability
in this country, a system, confirmed by a practice which had obtained, without excep-
tion, ever since the institution of slavery in the colonies, and had likewise been sup-
ported by the general practice of this nation, and by the public establishment of its
government, and it fell without any apparent opposition on the part of the public
The suddenness of this conversion almost puts one in mind of what is mentioned by an
eminent author, on a very different occasion, in the Roman History, 4 Adprimum nun-
tmm oladis Pompeiansa populus Romanua repente factos est alius: ' the people of
Borne suddenly became quite another people.

« The real and sole question which the case of Somerset brought before Lord Mans-
field, as expressed in the return to the mandamus, was, whether a slave could be taken
from this country in irons and carried back to the West Indies, to be restored to the
dominion of his master ? And all the answer, perhaps, which that question required
was, that the party who was a slave could not be sent out of England in suoh a man-
ner, and for such a purpose ; stating the reasons of that illegality. It is certainly true

13 /

194 THE DOOTBINK CK1TI018KD.

that Load Manaft>1d, in hU final judgment* amplifies the subject largely. He extends
his observations to tha foundation of the whole system of the slavery ooda; for m one
passage be says 1 that slavery ia ao odious that it cannot be established without posi"
tive law.' Far from me be the presumption of questioning any obiter dictum that fell
from that great man upon that oooaaion ; bnt I trust that I do not d opart from the
modesty that belongs to my situation, and I hope to my character, wh«n I observe that
ancient custom is generally reoogniaad as a just foundation of all law $ that viUenage
of both kinds, which ia said by some to be the prototype of slavery, had no other origin
than ancient custom 5 that a great part of the oommon law itself in all its relations,
has little other foundation than the same custom, and that the practice of slavery, as
it exists in Antigua and several other of our colonies, though regulated by law, has
bean in many instances founded upon a similar authority."

On one of the trials of the case of Oliver vs. Weakly, in the U. & Circuit Court, a
aase for harboring runaway slaves, Mr. Justice Grier said : — " On this subject Lord
Mansfield has said some very pretty things, (in t he case of Somerset,) which are often
quoted as principles of the common law. But they will perhaps be found, by exami-
nation of later oases, to be classed with rhetorical flourishes rather than legal dogmas."
Newspaper &ep., and see American Law Register, voL L Philadelphia, 1858.

CHAPTER V.

THE ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES, — THE
SUBJECT CONTINUED. PRINCIPLES DETERMINING THE CONDI-
TION OF PERSONS TO WHOM THE LAW OF ENGLAND DID NOT
EXTEND AS A PERSONAL LAW.

§ 192. Although the various rights and liberties which were
known to the law of England as the- privileges and immu-
nities of a subject of English birth, and which are, in the third
chapter, supposed to have been attributed to the English colo-
nists in America, are ascribed in that law to an origin in natural
reason, being often juridically called "the natural rights of
Englishmen," their legal existence and enjoyment is still de-
pendent on the sovereign will of the state ; because, as has
been shown in the first chapter, there is no natural rule having
the force and power of law in juridical recognition, except as it
forms part of the positive law — the law resting on the will of
some sovereign political state or nation.1 The legal conditions
or status of private persons, under any national jurisdiction,
whether determined by municipal (internal) or international law
as before denned, are, within that jurisdiction, judicially held to
be in accordance with natural reason, however widely the rela-
tions in which they consist may differ from those known to other
jurisdictions. This is a result of the jural character of the
state. But however natural they may be in an ethical point
of view, that is, however consistent with the essential conditions

• Ante, $§7, 8, 16.

196

EXTENT OF COMMON LAW.

of human cxifltenoe, these relations can he judicially known in
any jurisdiction, (i. e., any territory wherein laws are judicially
enforced,) only hy a previous recognition of law in the ascer-
tained will of some state or national sovereignty, and of certain
persons as its subjects, or as persons bound by its provisions.
This law must be known both as territorial law — law operating
within certain geographical limits, and as personal law — law
operating on certain persons throughout the dominion of a cer-
tain national sovereignty.1

§ 193. It is for this reason that common law rights, or liber-
ties, of private persons, though necessarily taken to be accordant
with natural reason when attributed to persons born in England,
were not judicially attributed, in the colonies, ashy a personal
law, except to those who had acquired thoBe rights as jural
rights under the territorial law of England ; that is to say,
subjects of English birth, and those aliens to whom, by inter-
national treaties, the terms of patents and charters for the plan-
tations, and statutes of naturalization, the same personal law
had been extended.9 And, since wherever laws of privilege or
of disability have applied as personal laws they have generally
an hereditable character, or are the law of a family as well as an
individual, the same law of condition would, perhaps, on prin-
ciples of common law origin, have continued to have a personal
extent to their descendants.3 The claim of the descendants of
English colonists to the benefits of the same personal law was,

1 See ante, § 26.

■ Campbell vb. Hall, Cowp. 208. " The law and legislative government of eveijr
dominion equally affects all persons and all property within the limits thereof, and is
the role of decision for all questions which arise there. Whoever purchases, lives, or
sues there, puts himself under the laws of the place." It is true that " the law and
legislative power " has equal authority in respect to all persons and things, but it is not,
in its operation, the same rule for &1L Lord Mansfield said in continuation of the
above, — " An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations,
has no privilege distinct from the natives." This certainly could not have been said of
the Indian territories of the empire, where the ancient laws applied to the native
noes. Compare Sir "William Jones' various charges, in Calcutta, in vol. 8, Works, 4to.

* The common law has been called " the greatest inheritance that the king and the
subject have." See lawyer's Univ. Pub. Law, p. 10, — " The common law is our birth-
right and inheritance," — Story Com men. § 167, — " Freedom * * the inheritance of
the inhabitants and their children, as if they were treading the soil of England." — 2
Barn, and Cress., 468. " The laws of England are the birthright of the people
thereof."— Stat., 12 & 18 Will. IIL, c. 2, The Act of Settlement " According to the
ancient doctrine of the common law." — 1 Bl. Comm. 128, notes Plowden.

ITS NATIONAL AND PERSONAL EXTENT.

197

however, as before shown, independently secured, by positive
legislation, in the charters.

When this law of personal rights and liberties acquired also
the character or extent of a territorial law in America, its au-»
thority aa such was, strictly speaking, correspondent with the
territorial limits of the separate colonies ; being a territorial
law for eaoh singly ; resting therein on the sovereignty vested
in the local government and the Crown, or the Crown and Par*
liament, "legislating for that colony only.1 Though, since the
rights and privileges secured by this law had a like legal re-
cognition in any part of the British empire, it had a certain
general territorial extent also throughout all the colonies. But
this took place, properly speaking, by reason of its personal
character, and by its taking effect as a quasi international
private law between those several jurisdictions ; as will herein-
after be more particularly shown.

§ 194. In the various recognitions of the liberties of the
colonists, which may be found either in patents and charters, or
in colonial declarations and protests, it is to be observed that
they are claimed or continued as prescriptive and hereditary ;
as being a consequence of national character, fixed by birth and
descent ; their foundation being nowhere based on principles
assumed a priori, as a law of nature, but on precedent, custom
and legislation.8 Whatever may have been the doctrines of the
early colonists as to a foundation of legal rights and obligations
in nature or revelation superior to that found in the common
law, it cannot be said that they became sufficiently defined, or
authoritatively expressed, to be considered in any degree a law
of the land. There may probably be found in various instances

1 See ante, § 136.

' There were indeed two schools among the advocates of the liberties of the colo-
nies ; see Chalmers' Pol. Ann., p. 695. Jefferson, writing to Judge Tyler, Corresp.
vol. TV., p. 178, (Randolph's ed. ) said, " I deride, with you, the trdinaiy doctrine that
we brought with us, from England, the common law rights. * * The truth i&, wo
brought with us the rights of men, of expatriated men." In the sane letter he advo-
cates the rejection of all English decisions from the accession of George HI., saying
that this would give "the advantage of getting us rid of all Lord Mansfield's inno-
vations, or civilizations, of the common law." If American law is based on the law-
of-nature theory — is Mansfield or Jefferson the better authority ; or will their agree-
ment determine a point ?

198

BEFXBENCI TO NATURAL RIGHTS.

of colonial legislation some vague recognition of rights in indi-
vidual members of society superior to legislative power, as in
the preamble to the laws of Massachusetts Bay Colony, 1672 :
" Forasmuch as the free fruition of such liberties, immunities
and privileges as humanity, civility and Christianity call for,
as due to every man in his place and proportion, without im-
peachment and infringement hath been and ever will be the
tranquillity and stability of churches and commonwealths, and
the denial or deprival thereof the disturbance, if not ruin of
both, it is therefore ordered by this court," &c. But though
such declarations recognize a rule binding on the consciences of
the authors and executors of human laws, they can have but
little practical effect as a guarantee to the subject or citizen,
while the demands of "humanity, civility and Christianity,"
and the " place and proportion " of every man are left undeter-
mined, or to be ascertained by the actual holders of legislative
and executive power ; and such declarations might be consist-
ently subscribed by the possessors of the most arbitrary au-
thority.1

§ 195. The condition of those natural persons under the
imperial and colonial dominion in America who had not, by na-
tional character or descent, a claim to the personal extent of the
law of England, must also have been determined by positive
law, that is, law derived either by the judicial application of
natural reason, or from the positive legislation of those depos-

' During the later part of the controversy between the colonists and the imperial
government in respect to their political rights, there were indeed many instances in
which the rights of the individual colonists were asserted on principles of wider extent.
Some of these, which proceeded from public bodies, will be noticed hereafter. Otis,
in his rights of the Colonies, p. 43, voL I., Amer. Tracts, London, 1766. said : " The
colonists are by the law of nature freeborn, as indeed all men are, white or black.
* * There is nothing more evident, says Mr. Locke, than that creatures of the
same species and rank, promiscuously born to all the advantages of nature and the use
of the same faculties, should also be equal one among another, without subordination
and subjection," &c. And p. BL: " Every British subject, born on the continent of
America, or in any other of the British dominious, is by the law of God and nature,
the common law and by Act of Parliament, (exclusive of all charters from the Crown,)
entitled to all the natural, essential, inherent and inseparable rights of our fellow-sub-
jects in Great Britain." But Otis'a doctrine had not been law in the colonies. Mr.
Locke, in his scheme of government for Carolina, expressly sanctions slavery, and in
one of his dissertations contemplates it as a natural element in any civil state. See
Locke's Works, vol. 2, p. 181. See 2 Kent* s Comm. pp. 1, 2, as illustrating a very
common want of discrimination in speaking on this point.

ALIEN SUBJECTS, HOW CLASSED.

199

itarics of sovereign' power over the colonies which were recog-
nized by the public law of the empire during the colonial period.
And the determination of their condition will be a question of
municipal (internal) or of international law, according to the
character of the persons whose condition is to be determined.1

Although all the natural persons within the territorial limits
of the colonies, to whom, according to the views above set forth,
the English law could not apply as a personal law, were, by the
supposition, aliens to the territory of England, they were to be
distinguished as either,

1. Native inhabitants of the colonial territory, who therefore
were not aliens in respect to the imperial and colonial jurisdic-
tion, in the same sense as persons entering the same territory
who had been born in a foreign country, that iB, one never
within the limits of the British empire ; or,

2. Those who entered the territory as alien, being alien, by
birth, to the colonial territory as well as to the imperial juris-
diction, by the axiomatic principles of international law — the
necessary law of nations, hereinbefore described.8

§ 196. The American continent having been occupied before
its colonization by savage tribes living without any such estab-
lished civil polity as is recognized by the public international
law of civilized nations, the lands settled by the English were
" desert and uncultivated" in respect to any " ancient laws,"
and therefore, it would seem, " chiefly" of the first of those two
classes of colonies which Blackstone has described, where the
only system of laws would be that broughi by the colonizing
people from their original residence ; and that this fact did
afford a basis for a part of the laws prevailing in the colonies
has already been shown in the third chapter.

But though the territory occupied by the native inhabitants
was thus regarded as never having been under foreign legislative
dominion, they themselves were, of necessity, treated as Laving
a distinct nationality and political corporeity, apart from the
sovereignty over the land. They might be public enemies, and

1 Ante, §§ 53, 54.

* Antr, § 49.

• 200

TWO GLA8BBS OF ALIEN SUBJECTS.

as such their rights and obligations might be affected by the
laws of war, which are classed as international law. By prin-
ciples of the law of nations then received as applicable in this
international law, they nr'ght be made captives. And, inde-
pendently of their individual liability to captivity, the conse-
quences of an acquisition by conquest, mentioned by Blackstone,
were applicable to them as nations, or as a class of persons ; the
law as to them was such as the king pleased. That is to say,
there being no territorial law affecting them, the law was such
as might be promulgated by positive legislation on the part of
the crown or of the local governments allowed or constituted by
the crown ; or by the judicial application, by tribunals under
the royal authority or that of the local governments, of rules of
natural reason derived by them according to the judicial criteria
before given. 1 This law, in being applied to persons known as
native or domiciled subjects of the imperial or colonial juris-
diction, would be classed as municipal (internal) law, according
to the description of that law given in the first chapter.

§ 197. "With regard to those persons within the colonial ter-
ritory who were neither natives of Great Britain nor of the
colonial territory, their condition must have been determined by
international private law ; at least until they had acquired the
character of domiciled subjects. This international law, accord-
ing to the principles set forth in the first anci second chapters,
would be known either from positive legislation, (proceeding in
this case from the sources of private law mentioned in the third
chapter,) or by judicial application of natural reason, according
to the allowed judicial criteria. After becoming domiciled in-
habitants their future condition would be determined by the
municipal (internal) law of the jurisdiction, derived either

1 In Shower's Parliamentary Cases, 80, 81 ; in the case of Dutton v. Howell, it was
said by counsel arguendo, — " Though a matter may justify a governor for an act done
in his government which would not justify him for the same act done in England, yet
the governor must show that he hath pursued the rules of law in that place ; or in case
of no positive laws, the rules of natural justice ; for either the common law, or newly
instituted laws, or natural equity, must be the rule in those places." So in Salk., p.
411, the sentence before cited, § 123, n. 2, continues, — "And that in such cases, where
the laws are rejected, or are silent, the conquered country shall be governed according
to the rule of natural equity."

LAW EXTENDING TO ALIENS.

201

from imperial or provincial legislation, or by judicial application
of rules of natural reason, according to the criteria above re-
ferred to ; having a like territorial extent and authority with
that law which determined the condition of those native
inhabitants to whom the English law did not originally apply
as a personal law, i. e., the no-called aboriginal inhabitants.

§ 198. In order therefore to determine the relations, rights
and duties constituting the hgal condition of these two classes
of persons in the colonies, it is necessary to ascertain what rules
were at that period to be judicially received as rules of natural
reason applying to natural persons independently of the law of
England ; which law, so far as it applied to all persons within
any particular territory, had such extent in England only, and
as a personal law in the colonies applied only to the colonists of
English birth or race.

Since the period of time referred to, and in which the rule
of natural reason was to be ascertained, was that of the first
existence of law as to such persons within the colonial jurisdic-
tion, (there being as yet no positive legislation, and no national
judicial precedents in respect to persons known as the inhab-
itants of that jurisdiction,) reference must be had to such indi-
cations of natural reason as are judicially receivable, because
indicative of the presumed will of the state in cases wherein its
existing legislation and local precedents do not apply. Or, to
express the same idea in a somewhat different form, since at
the first establishment of civil government in the colonies there
were no national judicial precedents for the colonial tribunals,
except such as were comprehended in the territorial law of
England, (which law, in the colonies, applied only to the
English and their descendants, and as a personal law,) the only
principles of the English law which could be judicially applied
to any other persons within the colonial territory, were such as
could be taken to be universal principles ; that is, principles
which, while recognized by the state in its juridical action,
were not promulgated either as law for England only, or for
certain persons as its inhabitants, (jus proprium,) but principles
received by the state without reference to their application to

202 FORCE OF UNIVERSAL JURISPRUDENCE.

any particular territory ; or such as the tribunal might suppose
the state would apply independently of all territorial distinc-
tions. This, according to what has been said in the second
chapter, would involve the judicial recognition of a universal
jurisprudence — the science of natural law in the only sense in
which it can be acknowledged in jurisprudence properly defined
— the science of the historical law of nations, manifested
through the application of private international law, and judi-
cially received by tribunals of various national character as
being founded in natural reason, because known in the history
of jurisprudence to have had general extent and application
in municipal and international law.1 In order then to de-
termine what principles had this character, or could be judicially
taken to have this character, at the time of the planting of the
colonies, it is necessary to examine the history of jurisprudence
among all nations, or, at least, among the civilized nations of
Europe down to that period ; tracing the general recognition of
any legal principles which applied to the relations^ rights, and
duties of private persons with such effect as to become elements
in a condition of freedom or its opposites.

§ 199. The mode in which such principles must have been
ascertained, and their effect upon relations of private persons,
have already been set forth in the preceding chapter, when
considering the question whether such principles could take
effect in England as part of the common law. It was there
shown that at the time of the first planting of the colonies the
prevailing legal doctrine would seem to have sustained the
chattel-slavery Ox" Moors, African negroes, and Indians, at least
while heathen or infidel, even in England. But even if it must
be heH that the English law of the privileges and immunities
of Englishmen applied to every person on English soil, and so
rendered the maintenance of slavery legally impossible there,
yet there was not, at that time, at least, any such universal
personal and territorial extent to be judicially attributed to
that law, that it should be held to obtain wherever the do-

1 Compare ante, §§ 19, 34, 9&-101.

RIGHTS OF THE ABORIGINES.

203

minion of the British empire extended.1 Personal liberty or
freedom of condition was not, by English law, so attributed to
every natural person that slavery was incompatible with the
English sway in other regions, or was abolished by it, as one of
those laws, or as the effect of one of those laws, which are con-
trary (in English jurisprudence) to the laws of God, according
to the principle which has been noticed in a preceding section.*
Upon the occupation of the western continent by the Euro-
pean nations, the international rules of warfare received by
those nations, with the ancient law of slavery resulting from
captivity, in wars with savage tribes, were, as has been already
said, generally applied to the native races. And, long after the
foundation of the English settlements, their unwillingness or
incapacity to unite with the colonists in social and civil life,
rendered it impossible to extend to them the obligations and
privileges of the same system of laws. The intercourse of the
colonists with the aborigines was regulated only by such rules
as the local governments and the representatives of the crown
supposed to be in accordance with natural reason, applied to
the international intercourse of civilized communities with bar-
barians, or to be supported by the usage of other Christian
nations. The views entertained by Europeans, during the earlier
period of colonization, of their obligations in this respect al-
lowed, in most cases, a practical denial of all legal rights in the
heathen and savage, as opposed to the interests of the Christian

* Whether the English law, meaning the territorial law of the British islands, at-
tributes, or did at any time during the colonial period, attribute the rights sometimes
known as the personal rights of Englishmen to all natural persons within that geo-
graphical domain, i. e., the British islands, irrespectively of race or birth, is a question
the elements of which have already been considered in the previous chapter, as a topic
of the municipal (internal) law of England. But it still remains to be viewed as a
question of the private international law of that dominion ; that is, a question of the
law which, in England, determined the condition of persons regarded as alitnt to the
territory of England. See post, ch. vii.

9 See ante, p. 115, n. 2. That slavery, in India, was maintained by the British
judicature because sanctioned by Hindoo and Mahommedan law, — see Harrington's
Analysis: Calcutta, 1817, vol i. pp. 78, 279, and vol.iii. p. 743, note, citing an official
paper by Mr. H. Colebrooke, in 1812. Also, a work written with view of publication
iu America, William Adame* Law and Custom of Slavery in British India : London,
1840. That in the British possessions on the ooast of Africa, slavery among the
natives is recognized by the authorities as matter of necessity, — Cruikshank's Eighteen
Years on the Gold Coast, voL ii. ch. 9.

204

HISTORY OF THE ABORIGINES.

or European colonist.1 The right, of tho native inhabitants in
the lands they occupied waB considered, at best, only qualified
and temporary, and their lives and property received, even in
periods of professed peace, but little protection from the colonial
laws ; it being in fact impossible, in reference to savage races,
to make those discriminations between a state of peace and a
state of war, which are so important in determining the legal
character of acts incident to the intercourse of civilized nations.9
The generally received doctrines of the difference in rights be-
tween Europeans and Moors, Africans and Indians, together
with the international application of those doctrines has been
stated in the preceding chapter. The warlike and intractable
character of the North American Indian would have prevented,
had there been no moral restraint, the systematic oppression
and enslavement which was practised in the islands and the
southern parts of the continent by the Spaniards. In the Eng-
lish colonies the aboriginal inhabitants receded before the ad-
vancing settlements, and never became, unless in a few isolated
cases, incorporated with the body of the white inhabitants, and
they have continued, as a race, to form separate communities,
whose relations to the whites have been determined under spe-
cial cm-international laws.8 In the earlier history of all the
colonies there are instances of their being reduced to slavery by

» 1 Story's Comm. §§ 1-10. 1 Banc. 145, 167, 270. 1 Hildr. 69, 410. Bat the
instructions from the authorities in England, repeatedly enjoined justice towards the
natives, 1 Banc. 346, and Charter of Mass. Prov., in 1692. Many of the earlier colo-
nial laws propose an adoption of Indians into the civil community. See Virginia
Laws, 1619, N. Y. Hist Soc. Coll. 2d series, vol. iii. part 1, p. 831. Mass. Laws,
1633, poet ch. vi.

* Francis Victoria, A. D. 1557, opposed the current opinions of his day in asserting
that hostilities against the native tribes could not be justified on the ground of their
vices, or of their Paganism. " India non debere atferri izsperium ideo quia sunt pec-
catores, vel ideo quia non sunt Chrigtiani." See Mackintosh, Hist Eth. Phil. p. 109.
The same opinion waa held by Ayala, 1597, and by Covarruvias and others. See
Hallam's Lit of Europe. Victoria held, however, that it was lawful to enslave Pagan
captives. See Wheaton's Law of Nations, Introd. p. 40. During the sixteenth cen-
tury, in wars of Europeai. states the captor had a property in his prisoner, which waa
assignable, 1 Motley's Rise of D. R. p. 151. Bynkershoek, Qusest. Jur. Pub. lib. i.
c. 3, that a German officer commanding in Ireland, in 1690, is said to have ordered
prisoners to be transported to America, to be sold as slaves, and to have been only
deterred by the threat of the Duke of Berwick, that, as a retaliatory measure, he
would send his prisoners to the galleys in France.

' Dred Scott r. Sanford, 19 Howard R. 403, 404. Kentf s Comm. Lect. LI.

AFRICANS IN AMERICA.

205

the local authorities ; usually, when taken captive in war, or
in punishment for violations of the code of intercourse prescribed
by the colonial powers.1 There were also instances of their
being kidnapped and sold ; but this was oontrary to express
statute, in most, if not in all the colonies, and to the law of
nations as generally recognized in the international intercourse
of Europeans with heathen and barbarian nations."

§ 200. It was the colonization of America that gave occa-
sion to a wider and more important application of that modifi-
cation of the ancient doctrine of chattel slavery into a personal
law for Moors and negroes which was described in the previous
chapter. Negro slaves were introduced into the Spanish colo-
nies as early as the year 1501, and the importation received the
sanction of a royal ordinance about the same period. Charles
V. granted letters patent to transport slaves into the Spanish
colonies in 1543. The French, English and Dutch navigators
joined in the trade of importation, and it became an ordinary
branch of commercial enterprise, in which merchants of every
maritime nation in Europe took part. Sir John Hawkins
brought slaves into the Spanish West India Islands in 1562.*

Slaves were brought into the North American colonies
shortly after their first settlement. Negro slavery in Virginia
is said to have commenced with the importation of a cargo of
slaves from Africa, by a Dutch vessel in 1620. 4 Hutchinson
says that negroes were brought in very early among the colo-
nists of Massachusetts, but that they had a law against slavery,
except of prisoners taken in war. The Massachusetts Funda-
mentals 1641, sanction slavery by purchase.4 Also the law of

' 2 Winthrop'6 N. E. 860. 1 Banc. 168. 1 Hiid. pp. 87, 239, 251, 269, 489,
490, 538, 557 ; 2 da 271. Hewitfs Hist of S. Car. vol. i. p. 78, and pott, ch. vi.

* See aide, § 166. During the first century after the discovery of America, na-
tives of the continent were frequently seized and sold as slaves in Europe and the W.
I. islands. See 1 Banc. 167-169, and the citations.

* For the earlier history of slavery, in connection with that of the American conti-
nent, 6ee 1 Banc. 159-179, and the authors cited in the preceding chapter. Charters
incorporating adventurers with a monopoly of the importation of slaves from Africa
into America were granted by James I., Charles L, and Charles IL, " and in the year
1792, twenty-six. acts of parliament, encouraging and sanctioning the trade, could be
enumerated." Walsh's Appeal, 826, 827.

4 Beverley's Virginia, 85. 1 Banc. 177.

* 1 Hutch. Hist, 8d ed. p. 893. See post, ch. vi. In Josselyn's Voyage, 1688,

206

CHATTEL-SLAVERY LAWFUL.

the other New-England colonies at that period was undoubtedly
the same on this Bubject. The Dutch records allude to the
existence of slavery in the settlements on the Hudson in 1626,
or even at the first settlement of the colony of New Amster-
dam, and in those on the Delaware in 1639.1 From the legis-
lation of the Carolinas, it seems that negroes were held in them
as slaves from the earliest period of their settlement.* But it
is probable that, in all the colonies, Indians taken in war, were
held as slaves before any negroes were imported from Africa.
Slave-holding was not permitted in Georgia before the year 1747.*
§ 201. Whatever sanction may have been given to slavery
in any of its legal aspects, by subsequent statutes of
the British Parliament, royal ordinances, or colonial legis-
lation, such acts of strictly positive legislation could have
had no effect upon the condition of persons in the colonies at
the time of the first introduction of African and Indian slaves.
It is, however, a clear deduction from the elementary legal
principles which have been hereinbefore set forth, that the
chattel -slavery of heathen Africans and Indians was lawful at
this time in all the colonies, and properly received judicial re-
cognition and support in international and municipal (internal)
private law. This lawfulness ig not here stated as the result of
a custom, the inception of. which is here described, or as being
proved by subsequent long-contimied acquiescence, but as being,
at the time of such inception, the effect of established princi-
ples, judicially recognized in all countries, having the authority
of that jurisprudence which among all nations is taken to be
the foundation of the far greater portion of legal rights and
obligations. It was judicially regarded as resting on natural
reason indicated in the law of nations historically known at that

negroes are mentioned as being held in slavery at Noddle's Island in Boston harbor.
See Mass. Hist ColL, vol. 3, p. 231.

1 Monlton's Hist N. Y, voL 1, part 2, p. 873. 1 Hildr. 441. 2 Banc. 808. The
Dutch W. I. Company agreed to furnish the colony of New Netherlands with as many
blacks as they conveniently could. 1 Broadhead, p. 196. Bettte's essay in Mem.
Perm. Hist Sec., voL 1. Hazard's Annals of Pennsylvania. Albany Records. No
mention is made of negroes in Campanins's account of the Danish colony of New Sweden.

1 A cargo of negroes from B&rbadoes brought by Sir John Yeomans, in 167L 2
Banc. 170.

* Stevens' Hist of Georgia, p. 812.

CONSTRUCTION OF THE CHABTEB8.

207

period — the common law of the world1 — applied in international
and in municipal* law because indicating the will of the bu-
prcme source of law having the territorial jurisdiction, whenever
not disallowed by some more, direct exposition of that wilL"

§ 202. On the same principle by which the historical law of
nations was received in supporting the slavery of foreign Afri-
cans, that is, that of being an indication of natural reason sup-
posed to be accepted by the supreme power of the state, the
same doctrines of the law of nations, or universal jurisprudence,
must be held to have obtained with legal effect in interpreting
the legislative enactments of the supreme power and the per-
sonal extent of the charter provisions operating as private law.

1 The existence of a jus gentium, or historical law of nations, operating as private
law, moat be admitted in construing statements like this of Taney, Ch. J., in Drod
Scott's case, 19 Howard, R. 407: " They [negroes] had for more than a century be-
fore, [the time of the Declaration of Independence and of the adoption of the Constitu-
tion of the U. S.t] been regarded as beings of an inferior order, and altogether unfit to
associate with the white race, either in social or political relations ; and so far inferior,
that they had no rights which the white man was bound to respect ; and that the ne-
gro might justly and lawfully be reduced to slavery for his benefit He was bought
and sold, and treated as an ordinary article of merchandise and traffic, whenever a
profit could be made by it. This opinion was at that time fixed and universal in the
civilized portion of the white race. It was regarded as an axiom in morals as well as
in politics, &o." It is not necessary to suppose the learned Chief Justice to intend
saying that a negro who had rover been a slave, or who had been legally manumitted,
had no rights, &c., so that it was everywhere lawful for any white man to seize such
a one and treat him as an article of property. The law of nations, as set forth in the
preceding chanters, never embraced such a doctrine. If his meaning is that a bover-
*ujn state, having jurisdiction over the portion of a negro, was not bound to respect in
him any rights — the same may as truly be said of any white man : any ethical dis-
tinction that may exist cannot affect the matter.

' With the use of the term late of nations in the text, contrast that given to it in
Neal v. Farmer, 9 Geo., R. 570, 571 ; where the court in asserting the legality of
slavery independently of statute or the common law of England, ascribes it to " the
law of nations " in the sense of public international law — a law of which nations are
the subjects. On the other hand see Mr. Seward's use of the law of nature and of
nations, ante, p. 193, n. Such contradictions in the premises used by .ent jurists
are here appealed to as vindicating the necessity of that diacrim .on of terms
which was attempted in the first chapter.

' Granville Sharpe, in his Tract on the Law of Nature, London, 1777, p. 8, takes
the jns gentium in respect to slavery as being contrary to the law of natural right
recognized by the Roman law, quoting Inst L Tit III. § 2. Servitus est autem con-
stitntio juris gentium qua quia dominio alieno contra naturam subjicitur. Brae ton
having repeated the same, Lib. L, cap. 6, and Fleta, Lib. L, cap. 3, they are, with
Cowell's Institutes, quoted by Sharpe as proving that slavery is contrary to the rale of
natural reason received in the common law. The method followed by this writer to
prove a doctrine of the common law of England, is the same as that which is indicated
fa this chapter and the preceding. But the law of natural reason on this point, dedu-
cible from the Institute, is precisely the reverse of that for which he refers to it, as
has been shown in the preceding chapter.

208

SLAVBBY UNDER STATUTE LAW.

The doctrine supporting chattel-slavery must be held to have
limited the extent of the term " colonists," where used in the
charters to describe the subjects of privilege and guarantee, to
legal persons as distinguished from slaveB ; even if it did not
go farther and oonfino the term to whites, or persons of the
European race, to the exclusion of Africans and Indians,
whether bond or free.1

§ 203. It has been shown, in the third chapter, that, where
the guarantee of common law rights did not apply to determine
the relations and rights of private persons, the power of sover-
eignty to affect such relations and rights must have been divid-
ed between the local government of each colony and the im-
perial government ; that the limits of each were, unavoidably,
always undetermined ; but that, admitting the rights and ob-
ligations of the colonists in internal relations (relations between
persons regarded as domiciled inhabitants) to have been essen-
tially within the powers of the local governments, yet such as
were incident to relations of commerce and international inter-
course must have been, to the greater extent, within the general
control of the parliament and crown of England.8 There does
not appear to have been any act of positive legislation, proceed-
ing from the imperial authority, which determined the condition
of Africans or Indians within the coloniec, considered either as
alien or domiciled persons. There are statutes, however, which,
being interpreted by the " usage and custom of merchants " as
prevailing at that time, have always been held to support sla~

1 Compare the language of the Supreme Court of Pennsylvania in Hobbs v. Fogg,
6 Watts' K. 568-560, when limiting the personal extent of the term freeman.

* See ante, § 131. To this power may be referred the frequent rejection of colonial
laws restricting the introduction of African slaves. Davis v. Curry, 1810. 2 Bibb's
Rep.(Ky.,) 238 — By the Court : " Slavery, it is believed, was introduced into the colonies
by the regulation of the mother country, of whieli the courts in all the colonies were
equally bound to take notice, in the same manner as the courts of the several states
are now bound to take notice of any regulation of the general government ; and what
the courts of the colonies were bound to take notice, judicially, we must still be pre-
sumed to know, if not as matter of law, at least as matter of history." Though tine
condition of slavery in the colonies may not have been created by the imperial legis-
lature, yet it may be said with truth, that the colonies were compelled to receive Af-
rican slaves by the home government. See Brougham's CoL PoL, B. IL, § 1. 8
Banc. 411. Stevens' Georgia 285. 2 Tucker's BL app. II. Madison Papers, IIL, 1890.
Walsh's Appeal, 810-819. Lord Stowell in 2 Hagg. Ad. R. 109.

COLONIAL LAW FOR SLAVERY.

209

very in the colonies, if not in England ; their effect being how-
ever mainly to recognize property in negroeB when on the high
seas in British vessels, and before they could, as natural persons,
be considered the domiciled inhabitants of any of the British
dominions. The just effect of these statutes in this respect is
derived from the view herein before given of the law of nations,
and its effect in international and municipal (internal) law.1

§ 204. If undetermined by imperial statutes or by the char-
ter provision, the condition or status of the African or Indian,
when regarded either as a natural person within the territorial
limits of a colony or as the property of a legal person domiciled
within those limits, would depend upon the powers vested in
the local or colonial government, as being one of the subjects
of its proper jurisdiction. The law derived from the exercise of
this power would be known either from positive legislation or
from a judicial application of natural reason, in the manner in-
dicated in the first chapter. Principles thus judicially applied
would form a part of the common law prevailing in and for the
colony. It was an admitted principle of the colonial system, or
of the public law of the Empire, that the colonial courts, in
determining the rules having this character, were independent
of the courts of common law in England. Their decisions were
reviewable, if at all, only by the king in council.8 Common

1 See ante, § 176. Barge's Comm. vol. 1, p. 737, n. ; " The following are among
the numerous acts by which the British legislature encouraged the African slave trade
and sanctioned slavery in her colonies : — Royal charters of Cha. 2, in 1664 and 1672,
9 and 10 Wm. 8, c. 26. The 6 Anne, c. 37, § 18, subjects captains of his majesty's
Bhips of war, arriving at any of the harbors of the colonies, " to the good and necessary
laws in force there for the preventing the carrying off from the said colonies any ser-
vant or slave, without the consent of the owner, and to the penalties and forfeitures
declared by such laws." 10 Anne, c. 27. The Queen's speech to Parliament in
June, 1712. 28 Geo. 2, c. 81. 25 Geo. 2, c 40. 4 Geo. 3, c. 20. 6 Geo. 3, c. 44.
23 Geo. 3, c 65. 27 Geo. 3, c. 27. The proceedings of the House of Commons from
1707 to 1713. Acts encouraging loans to the proprietors in the West Indies from British
subjects and foreigners. 5 Geo. 2, c. 7. 13 Geo. 3, c 14. 14 Geo. 8, c. 79. 1 and
2 Geo 4, c. 51. 3 Geo. 4, c. 47. 5 Geo. 4, c. 113, § 87. 69 Geo. 3, c. 120, for the
registration of slaves. The act of the legislature of Pennsylvania, 7 June, 1712, to
prevent importation of negroes and Indians into that province, was disallowed by
Great Britain and accordingly repealed by act of Queen Anne, 20th Feb. 1713. —
1760, South Carolina passed an act to prevent the farther importation of slaves, but
Great Britain disallowed the act and sent a circular to all the other governors, pro-
hibiting them from assenting to any similar act."

* Story's Comm. §§ 163, 175, 176, and citations.

210

BAPTISED OR CONVERTED SLAVES.

law hod therefore in each colony a several growth or progressive
formation, as it had in England, and if the personal guarantee
of rights, according to the law of England, did not apply to the
negro or Indian inhabitant, there was no necessity that the rules
judicially derived to determine their condition, as domiciled
subjects under their several judicatures, should be the same in
England and in the colonies. It does not appear from any his-
torical record that the question — whether a heathen negro or
Indian slave became free on being converted to Christianity, or
on receiving baptism — was ever discussed before the colonial
courts.1 It is certain that slaves so converted or baptised and
their issue, born in the colonies, and therefore, it would seem,
nominally Christian, were usually retained in slavery and bought
and sold, either as bondmen or as chattels, and that the right
of ownership in such slaves must constantly have received ju-
dicial recognition before the existence of any colonial statutes
determining their condition. It seems impossible now to ascer-
tain whether the courts regarded the slave, after conversion, as
still a chattel, or as a legal person held to bondage for life. The
different colonial judicatures may, very probably, have had dif-
ferent views on this point. In determining the application of
natural reason to the circumstances of converted or baptised
slaves and their issue, they undoubtedly referred to the usage
and practice of other nations, in reference to the same class of
persons. Under this reference, if they regarded slaves as legal
persons, capable of contracting legal marriages, they may have
held that the condition of the issue followed that of the parents,

1 There are however many colonial statutes which show that the question had
been mooted. See pott ch. vi. Mr. Bancroft, Hist. U. S., iii. 409, says — " Frota .New
England to Carolina, the ' notion' prevailed, that ' being baptized is inconsistent with
a state of slavery ;' and this early apprehension proved a main obstacle to the culture
and conversion of these poor people." Citing Berkeley's Works, iii. 247.

The statute of Virginia, 1682, c L, see pott ch. vi., Beems to recognize the exist-
ence of a principle of universal prevalence that a negro, Moor or mulatto slave, hav-
ing been converted to Christianity, is no longer a chattel, and can only be considered
as a servant bound for years, on an equality of status with European imported ser-
vants ; and that such person can be a slave only by force of some statute or local cub
torn— -jut proprium. It declares that " by the laws of thit country" the conversio i
" doth not manumit them or set them free," but that, if introduced after conversion
the master or owner would be obliged " to depart from their just right and title to
such slave and sell him for no longer time than the English," &c,, &c.

INHERITANCE OF SLAVERY.

211

where both were slaves ; and that, in the case of mixed mar-
riageb and of births out of wedlock, the civil law rule— partus
ventrem Bequatur — obtained, irrespectively of the rules of con-
dition by descent derived from the customary law of England.
It is however probable that the chattel character was generally
ascribed to the captived slave, and that the rule of descent de-
rived from the civil law was judicially received, in all cases, to
determine both the condition of the issue and the right of
ownership in the offspring of slaves of different masters.1 The
law arising from the judicial determination of these points,
having never been questioned under the royal right of super-
vision, created a common law in and for the colony, and wag,
independently of statutes, a sanction for slavery, even though
this judicial application of common law may have differed wide-
ly from the doctrine sustained by the English courts of law :
though, as has been shown in the previous chapter, it is very
questionable whether the doctrine contemporaneously received
in England, during the period which elapsed between the intro-
duction of heathen slaves and the existence of local customary

1 The rule of the Roman law — determining the condition of the issue by that
of the mother — applied only when there was no legal marriage. Dig. L. 1. 1. 6, § 24 ;
Lex naturae hsec est nt qni nascittu sine legitimo matrimonio matrem sequatur, nisi lex
specialis aliud inducit. Blnckstone II. 94, says — " But no bastard can be born a villein,"
citing Co. Litt. § 188 ; but this is probably incorrect, see the note on Coke by Har-
grave and Butler, and in Mirrour c. 2, a 28 ; — " Those are villeins who are born of a
freeman and n neif, and born out of matrimony." The rule applied where either pa-
rent was a chattel slave, because, not being legal persons, the legal relation of mar-
riage could not exist, and also because the issue of a female slave was regarded as the
natural increase of a chattel: see Heinec. Jur. Nat. et Gent, L. ii. § 81. If the Ro-
man law contained any rule determining the condition of those born in wedlock, it
was that the child should be of the father's condition. The Roman law knew no
slaves but such as were chattels ; but under the feudal codes the bondman and bond-
woman were legal persons ; the issue therefore was not regarded merely as the in.
crease of. property, and though they followed the condition of their parents, yet, with
some Germanic or Gothic nations, the children of serfs belonging to different feudal
lords, were divided by an "alterna vernarum partitio. " Heinec. u. *. note. Where the
parents were of different conditions the issue generally followed that of the father as
in the English law: Bla. ii. 94, Co. Litt. § 187, and notes; though a rule of alterna-
tion as between the children of a neif and a freeman prevailed in some parts, see
Glanvill, lib. 5, c. 6 ; and the same general rule seems, from Littleton and Houard, to
have been Norman law, though Barrington on Stat, p 249, n., supposes the rule in
France to have followed the civil law, citing the proverb— -La verge annoblist et la ven-
tre affranchist. The phrase — partus sequitur ventrem is not, I believe, to be found in
the Corpus Juris, and probably originated with the modern civilians. But the point
to be noticed is, that the. condition of the issue of legal persons in bondage, whether
born in wedlock or not, depended on a local law or custom, — jus propnum, not jus gen-
tium. Compare Forteacue de Laud. C. 42.

212 SLAVERY BY COMMON LAW.

and statute laws establishing slavery, was different from that of
the colonial courts. And however far the colonial courts may
have been bound by the local law of England, as ascertained at
the time of the first exercise of their judicial power, they were
not held to modify the common law, as it had thus grown up
under their own exposition and acquired a local character, by
following the later English decisions.

§ 205. Thus the condition of slavery, if unknown to the law
of England, nevertheless became established under the common
law of the several colonies ; which however, being a local law
only, was entirely distinct, in its origin and authority, and in
its territorial and personal extent, from that common law which
was nationai, in those attributes, and which was, in each part
of the Empire, the common measure of the personal rights of
the English-born subject and his descendants. The colonial
Governments appear to have exercised, without question, an un-
limited control over the condition of such persons of the Afri-
can and Indian races as were domiciled inhabitants of their
several territories ; that is to say, their legislation, in respect
to such persons, does not appear to have been at any time re-
stricted by any of the charter provisions.1 The legislation of
the several colonies in reference to slaves will be collected in the
next chapter : but under the view which has been herein taken
it is not necessary to cite it in this place as establishing chattel
slavery. It will be seen that, in the statutes of each colony,
slavery is viewed as an existing institution of law.'

1 This point will be farther considered in the commencement of the next chapter.

* Seville v. Chretien, (1817,) 5 Martin's Louisiana R. 275. " It is an admitted
principle, that slavery has been permitted and tolerated in all the colonies established
in America by the mother country. Not only of Africans, but also of Indians. No
legislative act of the colonies can be found in relation to it"

Connecticut Revised Laws of 1821; Title 98, Slavery; note— " Slavery was
never directly established by statute ; but has been indirectly sanctioned by various
statutes, and frequently recognized by courts, so that it may be said to have been es-
tablished by law." . ^

"By custom or statute, whether legal or illegal, slavery existed [A. D. 1750] as a
. fact in every one of the Anglo-American colonies," 2 Hild. 419, which see also for a
summary of the condition and numbers of slaves at that time.

Even in Georgia, where until the year 1749 (see Stevens' History of Ga. 285, 312 )
it was not permitted, it is held not to have been introduced by positive legislation. By
the Court, in Neal Farmer, (1851,) 9 Geo. B. 680, it is said— "The title to a
slave in Georgia now and under the colonial government is not and was not derived

MANUMISSION.

§ 206. According to the definitions given in the first chap-
ter, legal relations can exist only as the effects of some law, —
some rule identified with the juridical will of the state. A
natural person held in chattel bondage cannot acquire individu-
al or relative rights, except under such law or juridical will ;
to be ascertained from positive legislation or by the judicial ap-
plication of natural reason. It is by the recognition of univer-
sal jurisprudence or the law of nations, under this judicial
action, that the act of the master renouncing his right in re-
spect to the slave, or setting him free from his bondage, has
been held, wherever chattel slavery has been known, to invest
the natural persons so set free or manumitted, with individual
rights and a capacity for relative rights. Manumission, that
is, the legal consequence of the master's act, and the condition
of a libertinus or freed person, is, in the Institutes, ascribed to
the jus gentium.1 During the earlier centuries of the Roman
Empire, three conditions were recognized among the Libertini
or Freedmen ; all, however, inferior to that of the Ingenuus or
Free-born. But the descendants of a libertinus were not dis-
tinguished from other free born persons. Justinian not only

>from positive law. The faculty of holding slaves was derived from the Trustees of
the Colony acting under authority of the British crown, as a civU right in 1751, by an
ordinance of that board. Before that time their introduction was prohibited. The
regulation of slave property is as much the province of municipal law as the regula-
tion of any other property and its protection equally its obligation: but we deny that
property in slaves and the title by which they are held, are creatures of btatutory
law." It is not very clear what meaning is to be attached to the term "a civil right
or how the right can have been derived from the Trustees and yet not have originated
in positive law, i. e. legislation. The idea is that before 1751, the colonists of Geor-
gia were under a disability inflicted by the policy of the imperial Government, (see
p. 575 of the report,) in acquiring a certain kind of property, or from enjoying their in-
dividual right to acquire property, in the same degree as others ; — which disability
was removed by the administrative regulation or ordinance of the Trustees. Whether
important results which might follow a general recognition of the doctrine that at the
present day slavery is a constUulio juris gentium, were considered in this decision, does
not appear. The question actually before the court was whether the owner could re-
cover from the slayer the value of a slave killed by him, without first suing him to
conviction in a criminal Court.

1 Inst. Lib. L tit. 5,procem. (ante p. 150,1 and Dig. Lib. I. tit. 1, § 4. The state
having jurisdiction of the person whe is held as a slave, may, of course, set him free
by its legislative power. This will be the effect of a jus proprium : but, the resulting
condition or status will be jure gentium in this case, as where the manumission was the
master's act It will therefore be afterwards judicially recognized everywhere ; unless
some local law, jus proprium, forbids it The importance of this distinction can only
be shown in the application of private international law.

ROMAN LAW OF MANUMISSION.

abolished this distinction among tho libertini, but also made
all free persons (libertos) citizens of Rome, abolishing all legal
difference between the status of the enfranchised (libertini) and
the free born, (ingcnui.) From the recital in the enactment, it
appears that the first, if not the second also, of these changes
was a return to the ancient UBage of the Republic.1 The rule
of the Roman Imperial law, as the exposition of a universal
jurisprudence, received judicial recognition in the American
colonies.* •

§207. If the law of nations has in modern times, or had
during the colonial period, a limited personal extent or was dif-
ferent in its application to different races of men only while
distinguishing between mankind as either bond or free— either
chattels or persons, the necessary inference would be, that on

1 Inst Lib. I. tit. 5, § 3 ; De libertincrum divisione sublata ; and Cod. 7, tit. 5, L 1,
tit. 6, 1. 2. Smith's Diet, antiq. voc. — Tngenuus, Libertux. Mr. Justice Daniel, in 19
Howard, p. 477, Dred Scott's caoe, appears to have adopted Cooper's version of the In-
stitutes, in which ingenuus is mistranslated freeman. For the changes in the Roman
law on these points, according to the latest researches, see The New Englander, Aug.
1857, in an article on Judge Daniel's statement, of them; by President Woolsey, of
Yale College.

* To some it may seem a singular refinement to suppose juridical authority neces-
sary in ascribing individual (absolute) rights to the slave, when the matter relinquishes
his legal claims. But, if legal rights exist by the ascertained will of the state, (ante
§ 21 and p 37, n. 1,) how otherwise can a chattel or thing become invested with them ?
Other chattels, when derelict by the owner, are still chattels, and belong to whoever
may then first take possession of them. The doctrine of manumission, as explaiued in
the Institutes, shows that even in the Roman law the slave was only " instar rerain,"
(ante p. 153, n. 1,) and that a personality independent of positive law was recognised
to exist, as by a condition of things, or a law in the secondary sense, (ante §§ 1, 2,) or a
law of nature in that tense, which became manifest in the possession of individual rights
whenever the antagonistic right of fhe master was relinquished. See Inst. Lib. 1, tit.
5. De Libertini*. Definitio et origo libertimrum el manumiuionis. The reason-
ing of Mr. Justice Daniel in Dred Scott's case, 19 Howard, p. 480, ignores the fact
that the consequences of the master's act of manumission were jure gentium, and
therefore judicially recognized everywhere, unless such recognition had been forbid-
den by some jus proprium of the forum. His language is — "The master might
abdicate or abandon his interest or ownership in his property, but his act would be a
mere abandonment It seems to involve an absurdity to impute to it the investiture
of rights which the sovereignty alone had power to impart," &c. The question in the
case was of the rights of citizenship ; but the Judge's argument applies equally against
the acquisition of any personal right on manumission. Undoubtedly, the investiture
rests on the sovereignty, not on the private master. But the tribunal finds the -will of
that sovereignty in the jus gentium, if there is no jus proprium, — local statute or cus-
tomary law. Ia some countries, wherein serfdom existed under a law of local origin,
the Roman law of manumission has not been applicable Bodin, in Repub. B. L c. 5,
Knolle's Tr. p. 41, after stating the Roman law — " which law, for all that, we use not ;
for in this realm [France] he must of necessity obtain the prince his letters patents,
which have always used to restore unto mannmised men and of servile condition, the
stute of freeborn men, and to blot out all stain of their old slavery."

BA8I8 OF FREE CONDITIONS.

215

passing out of the chattel or bond condition, the subsequent
condition of the emancipated African or Indian would be deter-
mined by the same principles which regulated the condition of
other persons in the same jurisdiction. But though the law
which in any colony determined tfte condition of the enfran-
chised African or Indian may have, in its effects, been similar
to that determining the condition of the colonists of English
birth or descent, it was not the same law either in its political
foundation or in its territorial and personal extent. The fact
of emancipation did not of itself place the African or Indian
within the pale of the law applying to the English colonist, at
least not so far as it was a law resting, as was before shown,
upon a national as well as a provincial authority. The condi-
tion of the free African or Indian was determined by statutes
proceeding from the colonial or from the imperial authority,
according to the nature of the powers separately held by each
under the public law of the empire, or by a judicial application
under either colonial or imperial authority, of rules derived from
natural reason. But the law so obtaining was always the local
law of a colony in respect to its extent, and not a national
law. When once recognized as a legal person, the law of Eng-
land was indeed the exposition of a law of natural reason, judi-
cially receivable in detennining the private relations of the Af-
rican or Indian subject, as well as those of the English colonist.
But the basis of the rights of the former was not necessarily the
same as that of the last. The law under which they existed
had not, necessarily, the same national character, or the same
territorial and personal extent. That was determined accord-
ing to the public law, by a distinction of race or descent. The
condition or status of the emancipated negro or free Indian was
in none of the colonies equal, as a free condition, to that of the
white colonist ; even where the law of the colony made no dis-
tinction in social relations between him and the white inhab-
itant. The public law took no notice of his rights, and the
foundation of private rights in public law was an essential fea-
ture in the civil liberty of the English colonist. Whatever degree
of liberty of action the negro or Indian might enjoy in practice,

216

A LOCAL LAW OF CONDITION.

his freedom was inferior to that of the white citizen in the na-
ture of its guarantees.

§ 208. Thus, simultaneously with the establishment in this
continent, by the colonists or by the national authority, of the
law of status or condition %t persons in England, to be the
system of private municipal (internal) law, which, as a personal
law, was to maintain the rights and liberties of the English
colonists and their descendants, was established through like
authority and with equally Jural character, another department
or system of laws ; — a system which, so far at least as it sup-
ported slavery or involuntary servitude, is commonly held at the
present day to have always been contrary to that which pre-
vailed as the territorial law of England. This system also had,
in the several colonies, the character of a personal law in being
applicable to a portion of the inhabitants who had no claim by
birthright or inheritance to participate in the protection of the
laws of England — -the common law of the rights and liberties of
Englishmen.1

1 Sir W. Jones' Works, 4to., vol. III., p. 48.' Charge to Grand Jury at Calcutta,
June 9, 1792. "It is agreed by all who have coolly and impartially studied our no-
ble constitution, as declared by many statutes from the Great Charter to the Bill of
Bights, all which you know are solemn recognitions of our ancient public law, that
three peculiar advantages are conferred by that sacred law on the people of England
or on all subjects who are not noble, but may, if they please, be independent; first a distinct,
unalienable third share of the legislative power ; next a right, coupled with a duty,
of keeping and using arms for the defence of their persons and habitations as well
of their several counties, when the sheriff shall call for their aid ; thirdly, the right
of being tried, when impleaded or accused, by their equals freely chosen, instead of
appointed officers to whom they cannot except," p. 49 — " and wo may thence infer
that if any acknowledged subjects of Britain (for a different faith or complexion can
make no difference in justice and right) shall be tried, convicted and punished by a
summary jurisdiction, however constituted, for petit larcenies,- breaches of^tho peace, and
other misdemeanors, " &c. The law was certainly never so extended in the Ameri-
can colonies. In 1833, statutes in respect to India were proposed in Parliament, on a
plan which should " effect a complete identification of Europeans and natives in the
eye of the law, without regard to color, birth, or religion." 2 Kent, (3d ed.) p. 73 n.
citing Ann. Keg. for 1833, p. 184, which see, and Lord Ellenborough's assertions, p.
186, of the impossibility of producing such effect That the British Government,
while conferring civil rights on slaves in India, did not " forcibly manumit " them,
see' H. St. G. Tucker's Memorials of Indian Gov. p. 434, Editor's note.

Forbes v. Cochran, (1824,) 2 Barn. & Cress. 463, Holroyd J. " Put the case of an
uninhabited island, discovered and colonized by the subjects of this country ; the in-
habitants would be protected and governed by the laws of this country. In the case
of a conquered country, indeed, the old laws would prevail until altered by the king in
council ; but in the case of the newly discovered country, freedom would be as much
the inheritance of the inhabitants and their children as if they were treading on the
soil of England." The correctness of this proposition at any particular period, (if in-

ALIEN WHITE PERRONS.

217

§ 209. But under the classification given in this chapter1
of persons within the colonies whose legal condition was not
determined by the common law of England as a personal law
by reason of birth in the realm of Great Britain, or their descent
from ancestors of English birth, another description of aliens
to the British empire is included ; viz., persons of European or
Caucasian" race, the subjects of thoBe states which, by the sup-
posed possession of superior knowledge and power, are known in
international law as civilized states ; the authors and expositors
of universal jurisprudence or the law of nations, herein before
described as a judicial rule, and the authors and subjects of that
rule of action which, though not having the force of law for such
states, is herein called international law. The condition of
these persons, when appearing as aliens within the dominion of
the British empire would be determined by private international
law, derived from legislation and judicial exposition of the rules
of natural reason, until they should have acquired a domicil, as
that term is understood in international law ; when they would
become the subjects of that which is called, in contradistinction,
municipal, or more properly, internal or local law. The chattel
slavery of whites or Europeans as the property of legal persons,
having long before become unknown under the various systems
of municipal (national) law in Europe, all aliens of this descrip-
tion appeared within the colonies as legal persons, whose rights,
as such, while they remained aliens, or, at least, while they only
sustained relations incident to foreign commerce or to war,
would fall under the scope of the imperial authority, according
to the division of power which was herein before stated as the
public law of the empire.8 Upon their becoming domiciled in-
habitants of a colony, their relations, as persons, to the rest of
the community, would have been subject to provincial and na-

tended to include persons not of English birth or descent,) will depend upon the rules
which may at that time be recognized in the English courts as being universal in their
extent, and upon the jus gentium then recognized in English jurisprudence.
1 § 195.

* Although there are manifest objections to the use of this term, it is here adopted
as having a tolerably well defined meaning, in connection with this subject. " jEthi-
opian and Caucasian races." — 1 Banc 177. 2 same, 464.

* Ante, § 13L

218 INDENTURED SERVANTS.

tionai authority in tho samo manner as those of the English-
born colonists. In most, if not in all the charters, provision
was made that the colonists of other European nations than
the English should participate in the privileges of those of Eng-
lish birth, ard acts of naturalization were passed at different
times, by the imperial and colonial authorities, placing the
European alien upon an equal footing of privilege with the
English ; requiring, of course, the profession of allegiance to the
crown and to the government of the colony.1

§ 210. Under the system of colonization adopted by the
European states possessing territory in North America, there
also existed another kind of bondage, differing from slavery in
its origin and extent, being, strictly speaking, founded on mu-
nicipal law alone, ( ius civile or proprium.) This species of ser-
vitude became obsolete about the time of the war of the
revolution, and now is of importance only as casting some light
on the legal nature of a free condition and absolute slavery
during the colonial period. A portion of the white settlers in
all the colonies were those known as indentured servants or
redemptioners, who were English or other Europeans, bound
to personal service, without wages, different from any known in
England, but analogous to that of minor apprentices.1 Such
persons were recognized in the colonial legislation as a distinct
class among those held to enforced servitude, though many of
the statutes respecting them applied to slaves also.

The service of persons of this class might either have been
involuntary from its commencement, or have originated in their
own consent ; some having bound themselves to serve in the plan-
tations during a certain number of years, in return for the ex-
penses of their transportation and support. The servitude of
others was the penalty of crime committed in the mother country,

1 As to the interpretation of these acts of legislation by a reference to personal dis-
tinctions founded on the late of nation*, see ante § 201.

That colonial acts of naturalization were of force only in and for the colony, see 1
Chal. Opinions, pp. 848-4. By the 18 Geo. 2, c. 7 (1740) "an act for naturalizing
such foreign Protestants and others, therein mentioned, as are settled, or shall settle,
in any of nis Majesty's colonies in America.'" Such persons residing seven years, and
taking the oaths, to be deemed natural born subjects.

* By die common law no person could be sent oat of the kingdom against his will.
2 Co. Inst. 46 ; 1 Bla. Comm. 137 ; 2 Hawk. P. C, c. 88. Ordinary apprentices can-
not be so sent out. Coventry v. Woodall, Hob. 184 ; 1 BrownL pL 67.

ENGLISH WHITE SERVANTS.

219

liko that existing in the modern English penal colonics. Some
wore ordinary criminals or vagrants sent from English jails or
workhouses, either in commutation of imprisonment or hy virtue
of some special statute.' The exportation of such persons con-
tinued for a long time to be an established part of British crim-
inal discipline,* and when this class of indentured servants
became the most numerous, their introduction was probably
against the wishes of the colonists.8 Many of the royalists
taken prisoners by the parliamentary forces during the civil
war4, and insurgents in Penruddock's and Monmouth's rebellion
were also sent out to serve in the same condition. It may be
supposed, from various publications of that day, that there were
many instances in which persons were feloniously kidnapped in
England and sold in the West Indian islands or America, either
as servants for a term of years, or as slaves for life.5

As will appear from colonial statutes enumerated in the
next chapter, the local governments assumed the power of sub-
jecting free white persons to this condition, as a punishment for
acts which were not so punishable either at common law or by
any English statute.*

1 Chalmeru, Pol. Ana p. 47, observes that the statute, 39 Eliz. c. 4, which enacted
" that dangerous rogues might be banished out of the realm," was the only law which,
in 1619, justified the infliction of expulsion as a punishment; but that the transporta-
tion of obnoxious persons to Virginia, at that time, was probably vindicated, by the ad-
ministration, on " prerogative." By § 13 of 81 Car. 2, c. 2, (the Habeas Corpus Act,)
persons contracting to bo transported beyond seas are excepted from its provisions.
By law of the Scottish Parliament, in 1671, against conventicles, recusants mi"ht be
punished by banishment to the plantations. Hume, ch. 66. Some were probably sold
as servants, to defray the cost of transportation. 4 Geo. L c. 11, § 1, allows sentence
of transportation to America, and empowers persons transporting convicts to assign
their services. By § 5, merchants and others may contract with minors, above fifteen
years, to serve not exceeding eight years in America. 6 Geo. 1, c. 38, and 4 Geo. 2,
c. 11, provide for transportation of criminals to America. By 17 Geo. 2, c. 6, § 28,
vagrants, whose settlement could nut be found, might be sent to the plantations.

1 There were such persons also in the Danish colony of New Sweden, see Campa-
nius Holm, ch. viL in Mem. of PennsyL Hist Soc., vol. iii. 1st Part.

* 1 Hildr. 119 ; Walsh's Appeal, sec ix. ; pott ch. vi., Virginia L. of 1670, PennsyL
L. of 1722.

♦Godwin's Commonwealth, III., 278; IV., 172.; Stevens' Georgia, p. 294;
Walsh's Appeal, p. 88. For treatment of the Soots prisoners in Mass., see Hutch.
Coll., 288.

4 2 Graham's Hist 421, and note. 1 Hildr. 99, 193, 356, 509. 2 do., 26a 1
Banc. 175; 2 Banc. 251 ; 2 Elliot's N. E., p. 176.

* See pott ch. vL Maryl. Laws, 1663, c. 3; 1676, c. 2 — marriage of white women
with slaves. Conn, code of 1650 — satisfaction of debts by servitude. Mass. L., March,
1632 ; 1 Mass. Records, pp. 246, 269, slavery mentioned as the punishment inflicted

220

LIMITATION OF SERVITUDE.

§ 211. TheBO servants or redemptioners were known in tin
colonies either as " indented servants," whose term of service
was determined by their original contract, or by the penal sen-
tence which subjected them to this condition, or as " servants
sold for the custom those so designated being, probably, such
as were brought into the colonies without any special sentence
or contract, beyond the obligation incurred for the expense of
their transport, to determine their term of service, which was
fixed by colonial statutes according to circumstances of age
and sex.1

The legal condition of these persons was essentially different
from that of chattel slaves in its origin and duration ; since it
rested altogether on law of national origin,* (i. e. a jm proprlum,)
and in the fact that the personality of the slave was recognized
during its existence, and that it was limited to a specific time.
But notwithstanding this difference and the fact that laws
were enacted for their special protection recognizing them as
legal persons, yet their general condition and disabilities, during
its continuance, seem in many respects to have been the same,
and much of the colonial legislation — that of some of the north-
ern colonies at least — in reference to servants, applied both to
such persons and to negro and Indian slaves. Some of these
laws will be noticed hereafter in connection with the statutes
relating to negro slaves.3

At the expiration of the fixed period of servitude, the in-
dentured servant or redemptioner recovered, with his liberty, all
the rights of a free person> unuer the laws of England, and there
was nothing to distinguish his condition in this respect from
that of other free inhabitants of English descent, he being then
equally entitled to the protection of that law throughout the
British empire.4

on certain delinquents, (1638.) Order of the General Court, 1659, for the sale of
Quakers.

1 Compare post, ch. vi., Virginia Laws, from 1642 to 1660.

* Unless, when resting on a contract, it could have been hold to he valid by uni-
versal jurisprudence or the jus gentium. But comp.- ante p. 139, n. for the common
law doctrine as to contracts for service.

* The English statute, 29 Geo. 2, c. 35, § 1, provides for enlisting indented servants
in America.

4 24Hildr. 1st ser., p. 428. In 1777, servants enlisted in the Continental army were

EXTENSION OF THE EMPIRE.

221

§ 212. It is not ncceBBary to trace historically tho changes
by which the North American colonies, originally held by other
nations than the English, became incorporated into the British
empire,' or the laws which prevailed therein, determining the
condition of private persons before that period, or the legislative
acts of the imperial government, by which the common law and
statutes of England became extended over them, in the same
manner and degree as over the colonies originally settled by the
English. However much the rights of the white inhabitants of
those colonies may have differed in their public or political
character1 from the liberties of the English colonists, they were
substantially of the same character in their practical exercise in
social relations. In all the colonies the same legal distinctions
accompanied a difference of race or physical constitution, and
upon the acquisition of those colonies by the British crown, the
civil or social rights of the free inhabitants were secured to
them, under the new sovereignty, on the transfer of their alle-
giance by international treaties.

declared freemen by the Congress/with the understanding that compensation was to
be made to the masters, for loss of service, 3 Hildr. 190. The war stopped the importa-
tion of indented servants, and it was not revived to any great extent afterwards. Some
Germans were imported about 1789: but Acts of Parliament prevented the indent-
ing of laborers in England for transportation to America : 1 Hildr. 2d series, p. 93 ;
25 Geo. 3, c. 87, continued by later acts In Walsh's Appeal, Pref. p. 29, the author
speaks of vessels arriving at Philadelphia in 1816, 1817, "laden with redemptioners
from the continent of Europe."

1 Ch. XV. of Banc. U. S. In the Swedish colony of New Sweden the law rested
entirely on the homo sovereignty, except the police power. See Governor's commis-
sion in Mnlford's Hist, of New Jersey, p. 86. O'Callaghan's Hist, of New Nether-
lands, voL 1, p. 90 : " The director-general and his council were invested with all
powers, judicial, legislative and executive, subject, some supposed, to appeal to Hol-
land ; but the will of the Company, expressed in their instructions, or declared in their
marine or military ordinances, was to be the law in New Netherlana, excepting in cases
not specially provided for, where the Roman law, the imperial statutes of Charles
V., the edicts, resolutions and customs of Fatherland, were to be received as the para-
mount rule of action." P. 101 : " The director and council had supreme, executive,
and legislative authority in the colony." See also Moulton's Hist, of New York, voL
L, nart 2, p. 869, also B. F. Butler's Discourse on the Constitutional History of the
State of N. Y., pp. 14, 15, 20,

CHAPTER VI.

THE ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES J —
THE SUBJECT CONTINUED. LOCAL LEGISLATION DETERMIN-
ING CONDITIONS OF FREEDOM OR OF BONDAGE.

§ 213. It has been attempted in the three preceding chap-
ters to exhibit the origin and extent of positive1 laws in the
American colonies ; in doing which, it was necessary to regard
those laws both as public and as private law ; that is, in other
words, to consider both the location of the sovereign legislative
or juridical power, which was the source and basis of the pri-
vate law, and its actual effects upon the conditions of private
persons within the colonial territory. As the introduction of
that law, whether public or private, was dependent upon the
external force and imperial authority of the crown and parlia-
ment of England, it was in those chapters considered mainly as
the law of one nation ; irrespectively of those local distinctions
which the separate powers of the several colonies, either inde-
pendently of, or in co-operation with, the imperial authority,
might each, in accordance with the public and national law,
create within their respective domains. It is the law which
thus originated in legislative or juridical power acting in and
for the several colonies, as distinct and separate jurisdictions,
which, in its effect upon conditions of freedom and its opposites,
is the subject of this chapter.

1 Meaiiing that law which was both internal and international, and commonly
called municipal, but more properly national law, ante, § 53. From the peculiar dis-
tribution of legislative power which existed under the British Empire, the term national,
if employed here, would be liable to misconstruction.

EXTENT OF THE POWER.

223

§ 214. The legislative power of the colonial government
was, as has been shown, indirectly limited by the national guar-
antee of common law liberties to the colonists and their de-
scendants. But they were also expressly restricted by the
charter provision that their local legislation should not be re-
pugnant or contrary to the laws of England, or should be agreea-
ble or conformable, as nearly as might be, to the laws of Eng-
land. The effect of this restriction as a protection to private
individuals was not limited in the charters by any personal dis-
tinction expressed therein. But it appears, as has already
been indicated in the third chapter, that in determining what
rules would not be repugnant to, or would be agreeable to, the
laws of England, the colonial assemblies or legislatures claimed
and exercised with the sanction of the crown, an authority, in
reference to matters of internal law, which, in the language of
Story, might " abrogate every part of the common law, except
that which united the colonies to the parent state by the gen-
eral ties of allegiance and dependency ; "l or that, as the colonial
tribunals had a several power of interpreting and applying com-
mon law in their respective jurisdictions, they practically under
the revisory power of the king in council, determined how far
the territorial law of England was adapted to the situation of
persons and things within the colonial jurisdiction and should
control the creation of a local law. The existence of this power
was illustrated in the colonial laws of descent of estates and
in every department of private law. It appears therefore that
the charter restriction above mentioned did not prevent the
colonial legislative bodies from establishing, with the sanction
of the local judicature, a rule of condition, in reference to
persons n>t protected in the possession of individual and rela-
tive rights by the common law of England having personal ex-
tent, different from any known to that law and incompatible
with the enjoyment of those rights.* Besides, as has been

1 Story's Comm. § 163.

5 A distinguished jurist of Virginia has said, " Local circumstances, likewise, gave
an early rise to a leas justifiable departure from the principles of the common law in
some of the colonies, in the establishment of slavery ; a measure not to be reconciled
either to the principles of the law of nature, nor even to the most arbitrary establish-

224

THE POWER RECOGNIZED.

shown in the fourth chapter, although the common law courts
in England, at some point of time anterior to the independence
of the colonies, decided that no person could by common law
be held aa a slave in England, yet such doctrine was by no
means generally received during the seventeenth and the earlier
part of the eigthteenth century, and that, in fact, negro slaves
were held and sold, as persons bound to involuntary servitude,
if not as chattels, in England during that period ; and that it
seems never to have been supposed during the period in which
the colonial statutes establishing such conditions were enacted,
that the slavery of Africans or Indians and their descendants
in the colonial dependencies of the Empire was repugnant to,
or not conformable or agreeable to, the law of England. And
if the common law afterwards received from English tribunals
a different construction, such a change could have had no effect
upon colonial statutes which, at the time of enactment, were
sanctioned by the contemporaneous exposition of the laws of
England.

As will be more fully shown in the succeeding chapter, the
later English cases which unqualifiedly deny the master's claim
to service must be taken to mean that such claim could not be
maintained because the territorial law attributed liberty to
each person within the realm of England, and that they go no
farther. However unlawful in England, at any time, there is
not a judicial doubt on record that it might be lawful in the
English colonies : its lawfulness in America is expressly asserted
by Holt and Mansfield in the cases already cited.1

§ 215. It has been shown that the colonial Governments,
in the exercise of any of their powers, were also indirectly lim-
ited by the national guarantee extending the rights and privi-

ments in the English government at that period ; absolute slavery, if it ever had ex-
istence in England, having been abolished long before. These instances show that
the colonists, in judging of the applicability of the laws of the mother country to *heir
own situations ana circumstances, did not confine themselves to very strict and narrow
limits." 1 Tucker's Blackstone, (1808,) p. 388.

* The English judges and the American jurists were agreed upon this point ; they
disagreed only in deriving the law from different sources. Holt said — for the laws
of England do not extend to Virginia ; being a conquered country, their law is what
the king pleases." See emir, p. 188 and note. The colonial governments ascribed
the existence of slavery, in their respective territories, to their own juridical action.

LOCAL LAW FOR SLAVERY.

225

leges of Englishmen' to colonists of English or European Tace,
a principal one of which wae certainly the right of property, or
to its possession and enjoyment. The extent of the rights thu»
guaranteed, was unquestionably determined by common law.*
But this common law could only be one which had a national
authority and recognition, or which, in operating as a personal
law, was tho same in all parts of the Empire.* As has been
shown, if the right of the master in respect tc the slave had, in
the several colonies, a common law character, or was not de-
rived from legislative enactment, it was not therefore, necessa-
rily, also a right protected by common Jaw operating with na-
tional extent.4 As has been shown in the proofing two chap-
ters, this law during the later part of the colonial period at
least, if not during the seventeenth century also, maintained
slavery only in the case of heathen Africans and Indians : and,
when Christianized or baptized, their condition depended upon
the local law of that part of the Empire in which they were
domiciled.

§ 216. Although the involuntary servitude of Indians and
negroes in the several colonies originated under a law not pro-
mulgated by legislation, and rested upon prevalent views of
universal jurisprudence, or the law of nations, supported by the
express or implied authority of the home Government, yet it
is evident, from the historical sketch of those views which has
herein been given, that, when negroes and Indians became the
permanent inhabitants of the colonial jurisdictions, and had be-
come a portion of a Christian population by baptism or con-
version, many doubts must have arisen in respect to their legal
condition. Being also a condition entirely different from, and
in marked contrariety to, any known to the personal law apply-

1 Ante, § 180. *Attf«, §§ 187, 188. *Ante, § 186.

*Ante, § 188. And it may be mentioned here, that the claim of a power in the
colonial Governments to prohibit the introduction of heathen negro slaves from
abroad, was one of the declared issues of tho Revolution. Walsh's Appeal, p. 817, as
wag declared by Mr. Burke, in his speech on the conciliation with America, and that
the Imperial refusal was never justified on the idea of securing to the colonists a com-
mon law right, but on avowed motives of national policy and the profits of British
merchants. See Petition of H. of Burgesses, Va., April, 1772 ; 2 Tucker's BL App.
p. 52 ; Jefferson's first draft of the declaration of Independence ; preamble to Const,
of Va., Jane 26, 1776, pott; and ante, $ 208, n.

226

THB OBJECTS OF INQUIRY.

ing to the European colonist, slavery could not long continue
unnoticed in the local legislation, and enactments of very early
date may be found in all the colonies, some recognizing, extend-
ing and modifying the rights and obligations which should ac-
company its existence, and others marking more distinctly that
difference of privilege between the inhabitants of different
races, whether bond or free, the origin of which has been al-
ready shown.'

§ 217. It is not intended to present this chapter as contain-
ing a complete catalogue or description of the various colonial
enactmentc which might be taken to create or modify the oppo-
site conditions of freedom and bondage. A very imperfect
sketch or memorandum only of this legislation is here proposed ;
one which may show, in part, the recognition of the personal
rights of the free inhabitants and the legislative support given
to the condition of slavery and to the civil disabilities of per-
sons of the African and Indian races : indicating, in some de-
gree, the progress or decline of domestic slavery, as an element
in the civil state, and the power exercised by the colonial Gov-
ernments in varying those two systems of personal law, the na-
ture and origin of which, as laws of condition or status, have
been described. The civil or social relations produced by these
laws, however interesting and important in a political and ethi-
cal point of view, form a subject of inquiry which is not in-
cluded in that view of the law which is taken in this work ; and
the incidents of chattel slavery are, in their legal aspect, too
simple and well known to require their elucidation in connection
with the obvious bearing of ther statutes themselves.'

1 Neale v. Farmer, 9 Geo. R. 679 ; *' It is theoretically, every where, and in Geor-
gia, experimentally, true, that two races of men living together, ono in the character
of master, and the other in the character of slave, cannot be governed by the same
laws." — Not meaning that the law which make* one the master is a different law from
that which makes another the slave ; but that, where slavery exists, the actions of the
two classes most be judged by a different moral criterion : «. g. an act which, as to a
freeman, is battery or murder, may not be such as to a slave. State v. Hall, 2
Hawks' R. 582. And compare the provisions of Roman law, Dig. lib. 47, tit. 10, § 15,
1. 85-89.

* The discrimination, in the following abstracts, of particular enactments and
legislative expressions has been made according to die author's view of their impor-
tance in connection with the suoceeding portions of thin work. Other very faithful
descriptions of the colonial legislation, having especial reference to slavery, may be

THE OBJECTS OF INQUIRY.

227

And, though the location or investiture of the sovereign
political power from which legislation may proceed is necessarily
an important element in the quality of those conditions which
are created by it, it will not here be attempted to describe th«
origin and mode of existence either of the several local Govern-
ments, or of the political people of each colony, that is, of that
portion of the inhabitants which, by the elective franchise, ex-
ercised the powers of a body politic. These topics belong to
publio municipal law ; and the facts by which that law is mani-
fested, or from which it was derived, must be sought in the
works of historical writers. The general view of the compara-
tive extent of the powers held by the colonies, or their organ-
ized Governments, for the creation of local private law, which
has been given in the third chapter, may indicate the connec-
tion of that public law with the subject of this treatise. An
account of the creation of the several colonial G ernments,
their political organization, territorial jurisdiction, a. 1 juridical
action is given, with all essential minuteness, in Story's Com-
mentaries, Book I ; and the fuller recital of the same facts by
Mr. Bancroft, in his History of the United States, has peculiar
value, in this connection, from the copious citation of the origi-
nal authorities in the foot notes. To these authors the reader
is particularly referred. Since however the possession by pri-
vate persons of that right which is known as the elective franchise
is, in popular States, an important characteristic of condition, and
has a peculiar bearing on the quet>. ~ of status hereinafter
considered, the personal extent of that franchise, at different
periods, will be noticed.

Since the colonial legislation applying to chattel slaves, ifi
frequently combined with provisions relating to conditions of
servitude in ,a more general sense, including the temporary
bondage of persons under indenture, whether whites or negroes
and Indians, the statutes respecting "servants" and "servi-
tude" will be cited with those more strictly called "slave

found in Mr. Hildreth's History of the United States, first series. Mr. Stroud's sketch
is hostile to slavery, bat the view of the legal conditions existing under the customary
and statute law of the different States, is indicated by extracts from many of the
statutes and decisions here noted.

228

LAWS OF VIRGINIA.

laws." Though detached portions of statutes cannot individu-
ally be supposed to give the full meaning of the enactment,
yet, taken together, they may give a tolerably correct idea of the
oourse of legislation. For convenience in reference, the legislation
of each colony will be given separately ; in an order determined
more by the connection in the legislative history of the dif-
ferent jurisdictions, than by the order of the dates at which
their several local laws, as of distinct portions of the British
Empire, may be taken to have originated, — Virginia, 1606 ;
Maryland, 1632 ; Massachusetts, 1620 ; New Hampshire,
1679; Connecticut, 1636; Rhode Island, 1638 ; New York
and New Jersey, 1664 ; Pennsylvania, 1680 ; Delaware, 1691;
North Carolina and South Carolina, 1663 ; Georgia, 1732.

§ 218. Legislation op Virginia.

The legislation of Virginia, affecting the condition of the
Indian and negro races, constituted, probably, a precedent for
that of the neighboring colonies and the newer southern States
of the Union, and for that reason a further abstract of it is
here presented. Where other authority is not mentioned, the
citations are from Hening'6 edition of the statutes.

The recorded legislation of Virginia commences with the
year 1619, when a legislative assembly was first convened.1 In

1 Mr. Bancroft, in the publication cited in the text, quotes from a MS. in his posses-
sion, entitled the " Briefe Declaration, &c.,w of " the Ancient Planters," saying that
from each plantation two deputies (Burgesses) were elected " by the Inhabitants
thereof." It does not appear by what rule the inhabitants who should vote were dis-
criminated.

The patent of 1606 did not restrict the legislative power of the governing coun-
cils by any reference to the laws of England. The 15th article provides, — " also we
do for us, oar heirs and successors, declare by these presents, that all and every the
persons, being our subjects, which shall dwell and inhabit within every or any of the
■aid several colonies and plantations, and every of their children, which shall happen
to be born within any of die limits mid precincts of the said several colonies and plan*
tations, shall have and enjoy all liberties, franchises and immunities within any of our
ether dominions, to all intents and purposes as if they had been abiding and born
within this, our realm of England, or any other of our said dominions."

1 Hen. St. 57, Stith, app. I., p. 1. The King's "Articles, &c.n— 1 Hen. 74, pro-
vide for altering the ordinances of the local council — " so always as the same altera-
tions may be such as may stand with and be in substance consonant to the laws of
England, or the equity thereof; and declare that the ordinances of the crown
should be so consonant, and that those of the council in England should be " as
near to the common laws of England and the equity thereof as may be." The
royal ordinance, 1607 — 1 Hen. 78, limits the local councils "so as always
none of the said acts * * be contrary to the laws and statutes in

LAVS OF VIRGINIA.

220

the proceedings of this assembly, recently firnt published by
Mr. Bancroft from documents obtained from England, in New
York Hist. Boc. Coll., 2d series, vol. iii., there are several en-
actments respecting servants : p. 346, that an idler or] runa-
gate, though a freed man, may be appointed to serve a master
for wages : p. 350, for the punishment of a certain servant, for
ill conduct towards his master, by pillory and whipping : p.
352, servants forbidden to trade with Indians : p. 355, for-
bidding marriage of servants without consent of master or a
magistrate, and regulating time of service in certain cases.
There are other provisions restricting the intercQurse of the
colonists with the Indians.

1630.' — Resolution. — "Hugh Davis to be soundly whipped
before an assembly of negroes and others, for abusing himself
to the dishonor of God and the shame of Christians, by defiling
his body in lying with a negro." 1 Hen. 146.

1640. — " Robert Sweet, to do penance in church, accord-
ing to the laws of England, for getting a negroe woman with
child, and the woman to be whipt." — 1 Hen. 552.

1642-3, c. 21, 22. — Provisions relating to runaway ser-
vants and hired freemen : c. 26, how long servants brought over
without indentures shall serve : c. 29, servitude for offences
abolished : c. 40, forbids dealing with the servants or appren-
tices of others.— 1 Hen. 253, 257, 259, 274.

tbis oar realm of England, or in derogation of our prerogative royaL" The patent
of 1609, to the London Company, Art. 22, contains a guarantee similar to that in Sec
15 of first patent, to " subjects which shall go and inhabit within the said colony,
&c .," of the liberties of " free demeans and natural subjects within any other, &c."
The 23d article limits the legislative powers of the councils, — " so always as the said
statuws, ordinances, and proceedings, as near as conveniently may be, be agreeable
to the laws, statutes, government and policy of our iealm of this England." (1 Hen.
96.) The patent of 1611 limits the legislative power, aec. 7, to laws, "not contrary
to the laws and statutes of this our realm of England." Sections 14 and 15 are re-
markable for giving special powers to the council, to seize and punish various kinds of
laborers for wages on their desertion.

Mr. Bancroft quotes from " Briefe Declaration, &c., statement that in 161& the
new governor, Sir Geo. Yeardley, under his instructions, given by the Company in
England, proclaimed, " that those cruell lawes by which we had soe loage been gov-
erned, were now abrogated, and that we were to be governed by those free la wee
which his Majesties subjectes live under in England©."

1 1 Hild. 208. " Orders were at the same time (1638) sent to Virginia for a goad
understanding between the two colonies, and that neither should entertain fugitives
from the other."

230

LAWS OF VIRGINIA.

1649, c. 2. — Declares all imported male servants to be
tithables.1

1664-5, c. 6. — For indenturing Irish servants. 1 Hen. 411.

1566-6, c. 1. — Indian children in families of colonists, not
to be slaves. — 1 Hen. 396.

1657, c. 85. — Provisions of 1654-5, c. 6, extended to all
alien servants. — 1 Hen. 471.

1667-8, c. 16. — Penalty for servants running away, and
remedy for servants who may be misused : c. 18, courts to de-
termine indenturing : c. 46, What persons are tithable — " all
male servants hereafter imported into this colony, liable to
pay country levies, and all negroes imported whether male or
female, and Indian servants male or female, however procured,
being sixteen years of age, &c." (this act further explained by
1661-2, c. 54) : c. 48, transfers of the service of Indian children
prohibited : c. 56, noe collonie servants — " that no person for
anie offence alreadie committed shall be adjudged to serve the
collonie hereafter/'

1559-60* c. 13. — Repeals act indenturing aliens in service
(1657, c. 85,) — " that for the future, no servant coming into
the country without indentures, of what Christian nation soever,
shall serve longer than those of our owne country of like age : c.
15, an act for the pay of Dutch masters of vessels bringing
in runaway servants prefers to articles of peace, lately conclu-
ded with the Dutch) : c. 16, encouraging importation of " negro
slaves" by "the Dutch and other strangers." — 1 Hen. 538,
539,540.

1660. — Upon refusal of the Indians of a certain tribe to
satisfy a certain award against them, so many of them as the
court shall think fit shall be apprehended and sold into a
foreign country. — 2 Hen. 15.

1 TitkabUz were persons assessed for a poll-tax, otherwise called the " coon try
forie*." At first, only free white parsons were tithable. The law o( 1645, o. 4, pro-
Tided for a tax on property and tithable persons. By 1648, o. 6, property was releas-
ed and taxes levied only on the tithables, at a specified poll-tax. Therefore by class-
ing servants or slaves as tithables, the law attributes to them legal personality, or a
membership in the social state, Inconsistent with the condition of a chattel or proper-
ly. That free whites above the age of sixteen years were tithables, in this sense Of
the word, see Beverley, p. 218 : laws of 1661—2, c. 54 ; 1738, o. 8, $ 3, 1748, c. 21

LAWS OF VIRGINIA.

231

1660. c. 22, 1660-1, c. 10, 1661-2, c. 15, 98, 101, 102,
103, 104, 105. — Various provisions for punishment of runaway
servants, mostly by extending their period of service ; for pre-
vention of cruelty of masters, &c. : c. 15, entitled, Burial of
servants or others privately, prohibited : c. 54, What per-
sons are tithable. — 2 Hen. 118.

1661-2, c 138 — Concerning Indians — (margin) "This act
appears to be a digest of the former laws relating to the In-
dians which are very numerous." — Enacts " that what English-
man trader or other shall bring in any Indians as servants, and
shall assigne them over to any other, shall not sell them for
slaves, nor for any longer time than English of the like ages
should serve by act of assembly." — 2 Hen. 143. Injuries done
them to be remedied by the laws of England, as if they had
been done to an Englishman. See abstract in 1 Hildr. 515.

1651-2. — Beciting that a " Powhatan Indian sold for life
time to one E. S., by the King of Wainoke Indians, who had
no power to sell him, being of another nation, it is ordered that
the said Indian be free, he speaking perfectly the English
tongue and desiring baptism." — 2 Hen. 155.

1661. March. — " The Committees report that the great loss
and damage sustained by Mr. William Dromond through the
injustice done by the court of Boston in New-England ought
to be repaired, and since the said court have returned no satis-
factory answer to the letter of the honorable governor and
council of Virginia, wee are necessitated to find the least of
ill expedients to repair the said Mr. Dromond ; it is therefore
ordered by this present grand assembly, there be seized to the
value of fforty pounds sterling money, out of the estate of some
persons relateing to the said government of Boston, which is in
consideration of wages due for such a servant's time, as was
illegally cleared from the said Dromond's employ in New-Eng-
land, and doe accordingly order the same." 2 Hen. 158.

1662. c. 12. — " Whereas some doubts have arisen whether
children got by any Englishman upon a negro woman should
be slave or free. Be it, &c, that all children borne in this
country shall be held bond or free, only according to the oondi-

282

LAWS OF VIRGINIA.

ticm of the mother:" By c. 13, women servants, whose common
employment is working in the ground, are made tithable.

1663/ c. 8. — That runaways be pursued at the public ex-
pense, " and in case the said fugitives shall, notwithstanding
suoh pursuit, make an escape to any of the Dutch plantations,
it is enacted that letters be written to the respective governors
of those plantations to make seizure of all such fugitive ser-
vants, &c."-~ 2 Hen. 187.

1666. c. 9, 10. — Respecting servants' time, andjrunaways. —
2 Hen. 239.

1667. c. 3. — " That the conferring of baptisme doth not
alter the condition of the person as to his bondage or ffreedom,
that divers masters, ffireed from this doubt, may more care-
fully endeavour the propagation of Christianity, &c."— -2 Hen.
260.

1669. c. h An act about the caeuaU killing of slaves, —
" Whereas the only law in force for the punishment of refrac-
tory servants resisting their master, mistress, or overseer, can-
not be inflicted upon negroes [slaves are here meant, because
the law referred to — 1661-2. c. 104— punishes Tsuch servants by
extending their time]," nor the obstinacy of many of them by
other than violent means be suppressed. Be it, &c, if any slave
resiBt his master (or other by his master's order correcting him)
and by the extremity of coercion should chance to die, that his
death shall not be accounted felony, but the master (or that
other person, &c.) be acquitted from molestation, since it can-
not be presumed that prepensed malice (which alone makes
murder felony) should induce any man to destroy his own es-r
tale. 2 Hen. 270.—- Re-enacted 1705, c. 49. 1723. c. 4. 1748,
c. 31. Repealed 1788, c, 23. v. 2, Tucker's Bla. app. 46.

1670. c. 3. Election of Bur gesses by tohome. "Whereas the
usual way of chuseing burgesses by the votes of all persons who
haveing served their time are ffremen of this country, &c. &c,
and whereas the lawes of England grant a voyce in such elec-
tion, only souch as by their estates real or personal! have inter-

1 In this yea? an fauumc&m m plotted by a number of fterrtmU. See 2 Bono.
192.

LAWS OF VIRGINIA,

233

est enough to bye them to the endeavour of the publique
good," — enactB that " none hut ^freeholders and housekeepers"
shall have votes. [Comp. law 1723, c. 4.]

c. 5, « Whereon it has been questioned whether Indians

or negroes, manumitted or othewise free, could be capable of
purchasing Christian servants, it is enacted that no negro or
Indian, though baptized and enjoying their own freedom, shall
be capable of any such purchase of Christians, but yet not de-
barred from buying any of their own nation :" c. 12, " whereas
some disputes have arisen whether Indians taken in war by any
other nation, and by that nation that taketh them sold to the
English, are servants for life or term of years, it is resolved and
enacted that all servants not being Christians, imported into
this colony by shipping,1 shall be slaves for their lives ; but
what shall come by land shall serve, if boys or girls until thirty
years of age, if men or women, twelve years and no longer."
2 Hen. 280, 283. 1670, ap. 20— extract from the records of the
general court, 2 Hen. 509, Hist. Doc. margin — " Convicts
(called 4 jail birds^) from the prisons in England, not permitted
to be landed in Virginia."

1671. c. 7. "That any strangers desiring to make this
country the place of their constant residence, may upon their
petition to, &c, and taking the oaths &c. to his majesty, be per-
mitted to a naturalization, &c. * ° Provided that the benefit
of such naturalization be confined and esteemed to extend only
to the government of Virginia, beyond which this grand assem-
bly pretend to noe authority of warranting its sufficiencie, &c."
2 Hen. 289.

1676. c. 1. {Of Laws under Bacon's usurpation.) An act
for carrying on warre against the barbarous Indians — " That
all Indians taken in warre be held and accounted slaves dureing
life." 2 Hen. 346.

' Shipping seems to refer to negroes ; bat it is supposed that about this time Indian*
were imported into New England and Virginia, as slaves, from the West Indies and the
Spanish Main. 1 Hildretfc Hist 522.

Hist. Documents, 1670, 2 Hen. 515. — Enquiries to the Governor of Virginia,
submitted by the Lords Commissioners, &c By answers to questions 15 and 16, it
appears that of 40,000 persons, there were 2,000 "IhrJc daws, 600 Christian eervanU,
and that the yearly immigration of servants was about 1,500, of Which most are English,
few Scotch, and fewer Irish, and not above frHP&r three ships of negroes in seven yean."

234

LAWS OF VIBQINIA.

1676 — 7. 'Order that Indian captives taken by soldiers in
war should be the property of such captors. 2 Hen. 404 — and
note and 1679, c. 1; to the same effect 2 Hen. 432, 440.

1680. c. 2. An act for naturalization by Governor, &c.
c. 7, An act ascertaining the time when negroe children shall be
tythable. c. 8, An act lycensing a free trade with the friendly
Indiana, c. 10, An act for preventing negrcea insurrections.
" Whereas the frequent meeting of considerable numbers of ne-
groe slaves under pretence of feasts and burialls :is judged of
dangerous consequence/'— enacts that no negro or other slave
shall carry arms or go from plantation without certificate, and
if such " shall presume to lift up his hand in opposition against
any Christian/' shall be punished with thirty lashes. (Bee L
1^48, c. 38, § 20.) " That if any negro or other slave shall
absent himself from his master's service and lye hid and lurk-
ing in obscure places, committing injuries to the inhabitants,
and shall resist any person or persons that shall by lawful au-
thority be employed to apprehend and take the said negroe, that
then, in case of such resistance, it shall be lawful for such per-
son or persons to kill the said negroe or slave soe lying out and
resisting, &c. 2 Hen. 464, 480, 481, (continued,l705, c .49, sec. 37.)

1682, c. 1. — An act to repeale a former law making Indians
and others ffree. — 2 Hen. 490. Preamble, after reciting act of
1670, c. 12, " and for as much as many negroes, moores, mol-
latoes, and others, borne of and in heathenish, idollatrous, pa-
gan, and Mahometan parentage and country, have heretofore
and hereafter may be purchased, procured, or otherwise ol>-
teigned, as slaves, of, from, or out of such their heathenish
country, by some well-disposed Christian, who, after such their
obteining and purchasing such negroe, moor, or molatto as their
slave, out of a pious zeale have wrought the conversion of such
slave to the Christian faith, which by the laws of this country
doth not manumit them or make them free, and afterwards such
their conversion, it hath and may often happen that such

' The third charter, so called, of Virginia is dated October 10,. 1676. The most
important clause in connection with the subject is—" declare and grant that all the
subjects of us, our heirs and successors from time to time inhabiting within our colony
and plantation of Virginia, shall havetftfair immediate dependence upon the Crown of
England, under the rule, &o. 2 Hen. o32.

LAW8 OF YIB9WIA.

235

master or owner of puch slave being by some reason inforced to
bring or send such slave into this country to sell or dispose of
for his necessity or advantage, be, the said master or owner of
such servant, which, notwithstanding his conversion, is really
his slave, or his factor or agent must be constrained either to
carry back or export againe the said slave to some other place
where they may sell him for a slave or else depart from their
just right and tytle to such slave, and sell him here for noe
longer time than the English or other Christians are to serve,
to the great losse and dajoage of such master or owner, and to
the great discouragement of bringing in such slaves for the fu-
ture, and to noe advantage at all to the planter or buyer ; and
whereas alsoe those Indians that are taken in warre or other-
wise by our neighbouring Indians, confederates or tributaries to
his majestie and this his plantation of Virginia, are slaves to the
said neighbouring Indians that soe take them, and by them axe
likewise sold to his majesties subjects here, as slaves. Bee it
therefore enacted by the governour, councell, and burgesses of
this general assembly, and it is enacted by the authority afore-
said, that all the said recited act of the third of October, 167.0,
be and is hereby repealed and made utterly voyd to all intents
and purposes whatsoever. And be it further enacted by the
authority aforesaid, that all servants except Turkes and Moores,
whilst in amity with his majesty, which from and after publica-
tion of this act shall be brought or imported into this country
either by sea or land, whether negroes, Moors, mollatoes or In-
dians, who and whose parentage and native country are not
Christian at the time of their first purchase of such servant by
some Christian, though afterwards and before such their im-
portation and bringing into this country, they shall be converted
to the Christian faith ; and all Indians which shall hereafter be
sold by our neighbouring Indians, or any other trafiqueing with
us, as for slaves, are hereby adjudged, deemed, and taken, and
shall be adjudged, deemed, and taken to be slaves, to all intents
and purposes, any law, usage, or customs to the contrary not-
withstanding/' This provision, re-enacted in nearly the same
terms in the revisions of 1705. c. 49, § 4. 1753, c. 2.

236

LAWS OF ▼niCIKIA.

1682, o. 2. — An act declaring Indian women servants tith-
ables. — Whereas it hath been doubted whether Indian women
servants sold to the English above the age of sixteene yeares be
tythable. Be it, dec, that all Indian women are and shall be
tythables, and ought to pay levies in like manner as negroe
women brought into this country doe and ought to pay.

1682, c. 3. — An additional act for the better preventing in-
surrections by negroes. — 2 Hen. 490, 492.

1684, c. 3. — " An act repealing act concerning the pursuit
of runawayes" (1663, c. 8), because found u by experience to
be inconveniente." — 3 Hen. 12.

1691, c. 9.-— An act for a free trade with Indians. — (He-
ning's note.) — >" This act was re-enacted in the revisal of 1705,
and again in the edition of 1733, in which last it forms sect. 12,
of ch. 52. This is the same law on which the old general court
first founded their decision, that the right of making slaves of
Indians was taken away ; though at that time it had not been
discovered that the act existed as far back as 1691. The Su-
preme Court of Appeals have since extended the principle to
cases where Indians were brought in between 1691 and 1705. 1
c. 16.— An act for suppressing outlying slaves. — That such
slaves shall be arrested by the sheriff or a justice's warrant ;
that in case of resistance, &c, "in such cases it shall and may
be lawfull for such person or persons to kill and distroy such
negroes, mulattoes, and other slave or slaves by gunn or any
otherwaise whatsoever." Compensation to be made to master
in such cate. " And for prevention of that abominable mixture
and spurious issue, which hereafter may encrease in this do-
minion, as well by negroes, mulattoes, and Indians intermar-
rying with English or other white women, as by their unlawful
accompanying with one another. Be it, <£c., That for the time
to come whatsoever English or other white man or woman being
free shall intermarry with a. negroe, mulatto, or Indian man or
woman, bond or free, shall within three months after such mar-

1 See Hndglns v. Wrights, 1 Hen. and Mnnford's R. p. 139; Pallas and oth. v.
Hill and oth. 2 do. p. 149 ; Butt v. Rachel, 4 Mnnford'a B. p. 209; also, 1 Hen. Stat
Pref. vL

LAWS OF VIRGINIA.

237

riago bo banished and removed from this dominion for ever, and
that the justices of each respective countie within this do-
minion make it their particular care that thiB act be put in ef-
fectual execution." Other provisions are : white women having
a bastard by a negro or mulatto, to pay £15 sterling, in default
of payment to be sold for five years, such bastard to be bound
by church wardent till thirty years of age. Servant women of-
fending, to be likewise sold after the expiration of their term of
service. " And for as much as great inconveniences may happen
to this country by the setting of negroes and mulattoes froe, by
their either entertaining negro slaves from their master's service,
or receiving stolen goods, or being grown old bringing a charge
upon the country ; for prevention thereof, Be it, dkc, That no negro
or mulatto be, after the end of this present session of assembly,
set free by any person or persons whatsoever, unless such person
or persons, their heirs, executors, or administrators pay for the
transportation of such negro or negroes out of the country within
six months after such setting them free, upon penalty of paying
ten pounds sterling to the church wardens of the parish where
such person shall dwell, with which money or so much thereof
as shall be necessary, the said church wardens are to cause the
said negro or mulatto to be transported out of the country, &c.

1682, c. 3. — An act for the more speedy prosecution of slaves
committing capital crimes. — (" This is the first law constituting
a tribunal expressly for the trial of slaves." — Marg. note.)
Whereas a speedy prosecution of negroes and other slaves for
capital offences is absolutely necessarie, that others being detered
by the condign-punishment inflicted on such offenders may vig-
orously proceed in their labours and be affrighted to commit the
like crimes and offences ; and whereas such prosecution has been
hitherto obstructed by reason of the charge and delay attending
the same ; Be it, &c." Slave committing a capital offence to
be committed to the jail of the county ; sheriff to give sotice to
the governor, " who is desired and impowered to issue out a com-
mission of oyer and terminer directed to such 'persons of the
said county as he shall think ntt, which persons forthwith after
the receipt of the said commission are required and commanded

233

LAWS 09 VIRGINIA.

publicly at t.he court house of the said county to cause the of-
fender to be arraigned and indicted, and to take for evidence
the confession of the party, or the oaths of two witnesses, or of
one with pregnant circumstances, without the solemnitie of jury,
and the offender being found guilty as aforesaid, to pass judg-
ment as the law of England provides in the like case and on
such judgment to award execution." See 1705, c. 11.

1688, c. 12. — An act for laying an imposition upon servants
and slaves imported into this country, <fbc. — 3 Hen. 193. For a
history of the legislation of Virginia imposing duties on imported
slaves, and titles of twenty-three several statutes from this date
to 1772, see 2 Tucker's BL, App. 49.

1705, c. 2. — An act regulating elections, dtc. — 3 Hen. 236,
Sec. 3 enacts that "every freeholder" shall appear and vote
under a penalty. 4. Excepts from the obligation and right any
freeholder " being a feme-sole or feme-covert, in fact, under age,
or recusant convict. 6. " Every person who hath an estate, &c,
shall be accounted a freeholder."

1705, c. 4. — An act declaring who shall not bear office in
this country. — 3 Hen. 250. " That no person whatsoever al-
ready convicted, or which shall hereafter be convicted, &c, of
treason, murther, felony, &c.*, &c, nor any negro, mulatto, or
Indian, shall from and after the publication of this act bear any
office ecclesiasticaU, civill, or military, or be in any place of
public trust or power, within this her majesty's colony and do-
minion of Virginia, and that if any person convicted as aforesaid,
or negro, mulatto, or Indian shall presume to take upon him,
&c.," and for clearing all manner of doubts which hereafter may
happen to arise upon the construction of this act, or any other
act, who shall be accounted a mulatto. Be it, &c., That the
child of an Indian, and the child, grandchild, or great grandchild
of a negro shall be deemed, accounted, held, and taken to be a
mulatto." No provision against their voting, c. 7, 3 Hen. 258,
re-enacts the law of 1661-2, c. 54, respecting tithables.

c. 11. *An act for the speedy and easy prosecution of

slaves committing capitatt crimes.'— 3 Hen. 269. Similar to the
act of 1692, o. 3, bat compensates the owner upon the conviction

LAWS OJt VIRGINIA.

239

of the slave. c. 12. " An act to prevent the clandestine

transportation or carrying of persons in debt, servants and slaves,
out of this colony."— 3 Hen. 270.

c. 19. — An cut for establishing the general court, dto

In § 31, " That Popish recusants, convict negroes, mulattoes,
and Indian servants and others, not being Christians, shall be
deemed and taken to be persons incapable in law to be witnesses
in any cases whatsoever."

— — c. 23. — An act declaring the negro, mulatto, and Indian
slaves within this dominion to be real estate Hen. 333, sec. 1.
The words are, " to be real estate (and not chattels)." This
affected slave property only under the laws of descent and de-
vise, judgments, executions, &c. See Ohinn v.'Bespass, 1 Mun-
roe's R. 28.

c. 45. — An act for naturalization. — 3 Hen. 434, sec. 1.

Aliens may be naturalized by " the governor or commander-in-
chief of this colony and dominion." Sec. 7 " Provided that
nothing in this act contained shall be construed to enable or
give power or privilege to any foreigner to do or execute any
matter or thing, which by any of the acts made in England
concerning her majesty's plantations he is disabled to do or exe-
cute."

c. 48. — An wet concerning marriages. — 3 Hen. 441.

§ 6. Servants not to marry without consent, &c. Penalties.

c. 49. — An act concerning servants and stoves, 3 Hen.

447, sec. 1. — How long servants without indenture, being Chris-
taiWor of Christian parentage, shall serve. 2. The age to4be ad-
judged by the court. 3. When to produce their indentures.
4. Who shall be slaves (similar to 1682, c 1). 5. Penalty for
importing and selling free persons as slaves. 6. " Provided al-
ways that a slave's being in England, shall not be sufficient to
discharge him of his slavery, without other proof of his being
manumitted there." 7. Duty of masters to servants, restriction
as to correction. 8. Complaints of servants, how redressed. 9.
Sick and disabled servants, how provided for.* 10. Servants'
wages, how recovered. 11. And for a further Christian care and
usage of all Christian servants. Be it, &c., that no negroes, nra-

240

LAWS OF VIRGINIA.

lattos or Indians, although Christians, Jews, or Moors, Mahomet-
ans, or other infidels, shall, at any time, purchase any Christian
servant nor any other, except of their own complexion, or such aa
are, declared slaves by this act ; and if* any negro, mulatto or In-
dian, Jew, Moor, Mahometan, or other infidel, or such as are de-
clared slaves by this act, shall, notwithstanding, purchase any
Christian white servant, the said servant shall, ipso factol become
free and acquit from any service then due, and shall be so held,
deemed, and taken. And if any person, having such Christian ser-
vant, shall intermarry with any such negro, mulatto, or Indian,
Jew, Moor, Mahometan, or other infidel, every Christian white ser-
vant of every such person so intermarrying, shall, ipso facto,
become free and acquit from any service then due to such mas-
ter or mistress so intermarrying, as aforesaid." 12. " Contracts
of masters with their servants void, unless approved in court."
13. Provides freedom dues at expiration of indentures of ser-
vants. 14. Penally on servants resisting their masters. 15.
Penalty for dealing with servants or slaves, without leave of
their owners. 16. Punishment by stripes for so doing. 17.
Servants may be whipped in lieu of fines, for a breach of penal
laws. 18. Women servants having bastards, to serve longer
than a year. 19. " And for a further prevention of that abomi-
nable mixture and spurious issue, which may hereafter increase
in this, her majesty's colony and dominion, as well by English
and other white men and women intermarrying with negroes or
mulattos, as by their unlawful coition with them. Be it, &c.
That whatsoever English or other white man or woman, being
free, shall intermarry with a negro or mulatto man or woman,
bond or free, shall, by judgment of the county court, be com-*
mitted to prison, and there remain during the space of six
months, without bail or mainprise ; and shall forfeit and pay
ten pounds, &c. 20. Penalty on ministers marrying them. 21.
Freedom of servants 'to be recorded. Penalty for entertaining
them without certificate. Remainder contains various police
regulations relating to slaves. Sec. 36 is as follows :-—

" And also it is hereby enacted and declared, that baptism
of slaves doth not exempt them from bondage ; and that all

laws or viaaivu.

841

children shall be bond or free, according to the condition of
their mothers, and the particular directions of this act."

Sec. 37, provides for the apprehension of outlying slaves,
that they may be killed if resisting (as in 1680, c. 10), disor-
derly slaves when may be dismembered on order of, court.
Sec. J38. Value of slaves killed according to the act to be paid to the
owner : 41 repeals all previous acts relating to servants and slaves.

c. 52. An act for prevention of misunderstandings be-
tween the tributary Indians and other of her majesty's suly'ects of
this colony and dominion, and for a free and open trade with
all Indians whatsoever. (See 1691, c. 9. 1753, c. 2. 11^
Tucker's BL Ap. 4V, n.) 3 Hen. 464.

1711, c. 1. — An act for appointing Rangers, 4 Hen. 10.
" That if any Indian or Indians so taken shall upon examina-
tion or tryal be found to belong to any of the nations in war*
with this government, such Indian and Indians shall be trans-
ported and sold, and the benefit of said sale shall entirely be-
long to that party of rangers by which they were apprehended."

1728, c. 3. — Another act relating to Indians. Indians of-
fending against the terms of certain treaties, " to suffer death or
be transported to the West Indies, there to be sold as slaves as
shall be awarded by the courts, &c" 4 Hen. 103w

1728, c 2. — An act for the better settling and regulation of
the militia. Sec. 6, 7 provides,— -Free negroes, mulattos, or
Indians may be listed and emploied as drummers or trumpeters
in servile labor, but are not to bear arms. c. 4. An act direct-
ing the trial of slaves committing capital crimes, and for the
more effectual punishing conspiracies and insurrections of them,
and for the better government of negroes, mulattos and Indians,
bond or free. Sec. 1 slates to the punishment of plots, &c.
3 provides for proceedings against slaves committing capital
crimes, similar to 1705, c. 11, and 1692, c. 3, with the excep-
tion of the allowance in such cases of " the testimony of negros,
mulattos or Indians, bond or free, with frequent circumstances
as shall to them (the justices) seem convincing," &c. 17.
" That no negro, mulatto, or Indian slaves shall be set free
upon any pretence whatsoever, except for some meritorious

LAWS Of VTBGIHIA.

servioee, to be adjudged and allowed by the governor and conn-
oil, &o." 18. Dismembering of slaves (explains 1705, c. 49,
s. 87,) provided for. 19. Death of slave under dismember-
ment, not punishable, if not intended ; " neither shall any per-
son whatsoever who shall be indicted for the murder of any
slave) and upon trial shall be found guilty only of manslaugh-
ter, incur any forfeiture or punishment for such offence or mis-
fortune." (Repealed 1788, o. 23, see 2 Tucker's Bl. App. 56.)
2L All free negroes, &c. (except tributary Indians), above
sixteen years of age, and their wives declared tithable. 22,
Children of mulatto or Indian women, bound to serve for years,
how long to serve, 23. " That no free negro, mulatto or In-
dian, whatsoever, shall hereafter have any vote at the election of
burgesses, or any other election whatsoever/' (See 1785, c. 55 ;
1794, o. 17.) 4 Hen. 119, 126.*

1726, c. 4. — An act for amending an act concerning ser-
vant* and slaves, and for the further preventing the clandestine
transportation of persons out of this colony, mostly regards the
exportation of runaway slaves, whose owners cannot be discov-
ered. 4 Hen. 168.

1727, c. 11. — A,n act to explain and amend the act for declar-
ing slaves to be real '•Mate. § 3. " Slaves to pass as chattels" (mar-
gin) may be conveyed as such by will, by deed of gift or of sale.

1782, c. 7. An act for settling some doubts, &c, sec. 5.
" And whereas negroes, mulattos, and Indians, have lately been
frequently allowed to give testimony as lawful witnesses in the
general court and other courts of this colony, when they have
professed themselves to be Christians, and been able to give some
account of the principles of the Christian religion ; but foras-
much as they are people of such base and corrupt natures that
the credit of their testimony cannot be certainly depended upon,
and some juries have altogether rejected their- evidence and oth-
ers have given full credit thereto " — enacts that negroes, mulat-
tos, and Indians, whether slaves or free, shall be disabled to be wit-
nesses, except on the trial of a slave for a capital offence, and refers

1 8m 2 Chalmers' Opinion*, p. 118. Opinion of West against the propriety of sanc-
tioning this section of this act, on the ground that no distinction should be made between
* frMpcmona, in respect to color.

laws or VIROrSTIA.

843

to 1723, o. 4, how suoh testimony shall be taken. — 4 Hen.
325.

1734, o. 8. An act for allowing Indiana to be vntnesees in
criminal offences committed by Indians.— 4t Hen. 405.

1744, o. 13. An act to amend, dbo,f seo. 2, provides that
" any free negro, mulatto, or Indian, being a Christian, shall be
admitted in any court of this oolony, or before any justice of the
peace, to be sworn as a witness, and give evidence for or against
any other negro, mulatto, or Indian, whether slave or free, in all
causes whatsoever, as well civil as criminal, any law, custom or
usage to the contrary in any wise notwithstanding.— -5 Hen. 244.

1748, c. 2. An act declaring slaves to be personal estate,
and for other purposes therein mentioned. This act, with oth-
ers of this session, having been repealed by the king, representa-
tion was made against the repeal, assigning reasons, see 5 Hen.
432-443.'

1748, c. 14, a revision of laws under an act of 1*745, see 1
Hen. pre£ vi. An act concerning servants and slaves. Re-
enacts most of previous laws on this subject. Bee. 1. How long
servants imported without indentures shall serve. . 2. What
persons imported shall be slaves, — same rule as in 1705, c. 49,
s. 4., and in 1682, c. 1, s. 3. A penalty for importing and selling
a free person as a slave. 4. " That a slave's being in England
shall not be a discharge from slavery, without proof of being
manumitted there ; and that baptism of slaves doth not exempt
them from bondage ; and that all children shall be bond or free
according to the condition of their mothers, and the particular
directions of this act." 5. Masters' duty to servants, — " that
they shall not give immoderate correction, nor whip a Christian
white servant naked without an order from a justice of the
peace," &c. 6. Justices to receive servants' complaints, pro-
ceeding thereon. 7. No contracts between masters and ser-
vants unless in court — servants shall have the property of their
own effects— sick or lame servants may not be discharged. 8.
Servants shall have their freedom dues. 9. Same as 1705, c
49, s. 11. 10. Penalty for dealing with servants or slaves.

1 This statute did not change the law. Slaves were real estate, in 1777, See
Chion v. Respass, 1 Monroe's B., 27.

244

LAWS OF VIRGINIA.

11. Duty of servants ; their punishment in case of resistance.

12. Punishment by whipping in lieu of fine. 13. Servants
when free to have a certificate. 14-22. Respecting runaway
servants. Sec. 19, provides that runaways belonging to inhab-
itants of Maryland and Carolina may be detained until claimed
by their owners. 23,24. Respecting servants contracting to
serve by the year, and apprentices. 25. Stealing made a
felony without clergy.

o. 22. An act to prevent the clandestine transportation or

carrying of persons in debt, servants or slaves, out of this colony.

c. 88. An act directing the trial of slaves committing

capital crimes , and for the more effectual punishing conspiracies
and insurrections of them} and for the better government of ne-
groes, mulattoes, and Indians, bond or free. § 1-10. Punish-
ment, for certain crimes, like 1723, c. 4. 11. Excludes the
testimony of negroes, &c, slave or free, except on trial of slaves
for capital offences. 12. Admits testimony of free negro, &c.,
being , a Christian, against or between other negroes, . &c.
13-16. Of unlawful meetings of slaves. 17. Punishment of
slaves for being found abroad without leave. 18, 19. Arms
and ammunition not allowed to negroes, &c., except those on
the frontier, having a license. 20. Negro lifting his hand
against a white person shall receive thirty lashes. 21. Against
outlying slaves. 22. Their value, if killed in the attempt to
seize them as such, to be paid by the public. 23, 24, 25. Re-
specting homicide of slaves, dismembering of disorderly slaves,
as in 1723, c. 4, s. 18, 19. 26. Slaves freed without legal li-
cense may be sold by the churchwardens.-— 5 Hen. 432, 547 ; 6
Hen. 40, 104

1759, c. 7. An act for the better government of servants and
slaves. Most of the acts of 1748, having been repealed by the
king, 1752, this is substantially a re-enactment of 1748, c. 14,
which had been so repealed— see 6 Hen. 215.

1757, c. 3. Respecting the militia, as to enlisted free negroes,
the same as in 1723, c. 2.— 17 Hen. 93.

1765, c. 24. An act to prevent the practice of selling, per-
sons as slaves that are not so, &c. — 8 Hen. 133.

LAWS Or VIRGINIA.

240

c. 251 An act to amend the act for the better government

of servants and slaves (1753, c. 7) : in respect to runaways.

c. 26. An act to amend the act (1748, c. 38) which for

the trial of slaves required the issue of a special commission : —
Bee. 1, provides for issuing commissions of oyer and terminer,
directed to the justices of each county respectively, empowering
them from time to time to try, condemn and execute, or otherwise
punish or acquit, all slaves committing capital crimes within their
county ; and when any commission for constituting justices of
the peace shall hereafter issue, a general commission of oyer and
terminer for the purposes aforesaid shall be sent therewith, &c.
2. Court how convened, &c, "without the solemnity of a
jury/' &c. Another sec. allows benefit of clergy where a slave is
convicted of manslaughter for Trilling a slave. — 8 Hen. 133, 135,
187.

1769, c. 19. An act to amend the act, &c., (the same act of
1748, c. 38.) Sec. 1, reciting that by the act "the county
courts within this dominion are impowered to punish outlying
Blaves who cannot be reclaimed, which punishment is often dis-
proportioned to the offence and contrary to the principles of
humanity. Be it, dtc, that it shall not be lawful for any county
court to order and direct castration of any slave, except such
slave shall be convicted of an attempt to ravish a white woman,
in which case they may inflict such punishment."

The remaining sections relate to runaway slaves.

— — c. 37. An act for exempting free negro, mulatto, and
Indian women from the payment of levies — referring to previous
statutes declaring such persons tithable, and chargeable with
public, &c, levies, " which is found very burdensome to such
negroes, muiattoes, and Indians, and is moreover derogatory to
the rights of freeborn subjects" — enacts that "all free negro,
mulatto and Indian women, and all wives, other than slaves, of
free negroes, muiattoes and Indians," shall be exempted. — 8
Hen. 358, 393.

1772,1 c. 9. An act for amending the acts concerning the

1 As an expression of the sense of the people of Virginia, at this time, on the sub-
ject of slavery : see Petition of the House of Burgesses, April 1, 1772, addressed to

246

laws of yntaiNiA.

, trials and outlaunries of slaves. Sec. 1. Slaves convicted of house-
breaking in the night, are not excluded from clergy unless a free-
man in the like case would be so. 2. Sentence of death not to
be passed upon a slave, unless four of the court, being a ma-
jority, concur. 3. That no justice or justices of the peace of
this Colony shall, by virtue of the said act, issue a proclamation
against any slave authorizing any person to kill or destroy such
slave, unless it shall appear to the satisfaction of such justice or
justices that such slave is outlying and doing mischief; and if
any slave shall hereafter be killed or destroyed by virtue of any
proclamation, issued contrary to this act, the owner or proprietor
of such slave shall not be paid for such slave by the public ;
any thing in the said recited act (1748, c. 38. § 21, 22.) to the
contrary, &c.

1775. Ordinance of convention, c. 4, sec. 2, that the voters
for representatives shall be "the freeholders properly qualified
by law to vote for burgesses;" c. 7, one clause provides for the
transportation to the West India islands of any slave, "taken
in arms against this colony, or in the possession of an enemy,
through their own choice/' by the Committee of Safety: — the
owners to be paid. 9 Hen. 106.

1776, June 12. By the Convention of Delegates, the ordi-
nance 9 Hen. 109, unanimously adopted, known as the Virginia
Declaration of Bights (1 Hen. 47), of which the first article
reads, " That all men are by nature equally free and independ-

, ent, and have certain inherent rights of which when they enter
into a state of society, they cannot by any compact deprive or
divest their posterity ; namely the enjoyment of life and lib-
erty, with the means of acquiring and possessing property, and
the pursuing and obtaining happiness and safety.1 The fourth

the King, " to remove all thou restraint* on your Majesty*! governors of this colony
which may inhibit their assenting to such laws as may check so very pernicious a com-
merce," meaning the importation of slaves, 2 Tucker's Blaokstone, App. 51.

' See oonfliot of judicial opinion as to the personal extent of this article in Hud-
gins t. Wrights, 1 Hen. & Munford's R. pp. 184, 148. Wherein the Chanoellor,
George Wythe (one of the signers of the Continental Declaration of Independence),
"on the ground that freedom is the birth-right of every human being, which senti-
ment is strongly inculcated in the first article of our * political catechism,' the bill of
rights— he laid it down as a general position, th .1 whenever one person claims' to hold
another in slavery , the onut probandi lies on the claimant" The Court of Appeals

LAWS OF MARYLAND,

247

article — " That no man or set of men are entitled to exckuuTt
or separate emoluments or privileges from the community, &c."
The sixth — " That all men, having sufficient evidenoe of per-
manent common interest with and attachment to the commu-
nity, have the right of suffrage/' &o.

1776, June 26. In the preamble to the Constitution or
form of government, 9 Hen. 112, adopted by the Delegates, w
recited that the King had perverted the kingly office into a
" detestable aad insupportable tyranny, by — " &c, among
which — " prompting our negroes to rise in arms among us—
those very negroes whom, by an inhuman use of his negative,
he hath refused us permission to exclude by law/' No formal
bill of rights is incorporated with this constitution. The seventh
article provides that "the right of suffrage in the election of
members for both Houses, shall remain as exercised at present."

§219. Legislation of Maryland.

The territory constituting the present State of Maryland 1
had, before the grant to Lord Baltimore, June 20, 1632, 1
been included within the limits of the Virginia colony. What-
ever laws had territorial extent in Virginia before that date,
may be taken to have been law in Maryland.

1537. In the assembly of this year, the first of the colony,
the freemen agreed to a number of bills which were never enacted

held : — " This Court, not approving of the Chancellor's principle* and reasoning In hk
decree made in this cause, except eo far as the same relates to white persons sod native
American Indian*, but entirely disapproving thereof to far as the same relates to na-
tive African* and their descendants, who have been and are now held as slaves by the
citizens of this State, and discovering no other error," &c

1 The charter, r. 7, granted legislative pov/ers to the Lord Proprietor, " with Hie
advice, assent and approbation of the freemen of the same province or the greater
part of them, or of their delegates or deputies," • * "so, nevertheless, that the
laws aforesaid be consonant to reason, and be not repugnant or contrary, but (so far as
conveniently may be) agreeable to the laws, statutes, customs and rights of this our
kingdom of England." Sec. 8, mentions " the Freeholders of ths said Province,
their delegates, esc. Sec. 10/ provides, " that all and singular the subjects and liege-
men of us, our heirs and successors, transplanted or hereafter to be transplanted into
the province aforesaid, and the children of them and of others their descendants,
whether already born there or hereafter to be born, be and shall be natives and liege-
men of us, &c, Sec * * and likewise all privileges, franchises, and liberties of
this our kingdom of England, freely, &&, have and possess," &»., etc Bacon's laws
of Maryland.

948 laws or mabyland.

into Iaws. A Hat only of these lias been preserved, of which one
is A bill for punishment of iU servants, another for limiting
the times of service. See Bacon's laws, from which the follow-
ing citations of laws are taken,

1638, c. 2. An act ordaining certain laws for the govern-
ment of this province (limited to three years). The fourth
section provides, " The inhabitants shall have all their rights
and liberties according to the great charter of England."

In a list of bills twice read, and engrossed but never passed,
is An act for the liberties of the people. u They are thus enu-
merated in the Bill, viz., all Christian inhabitants (slaves ex-
cepted) to have and enjoy all such rights, liberties, immunities,
privileges and free customs, within this province, as any natural
born subject of England hath or ought to have or enjoy in the
realm of England, by force or virtue of the common law or stat-
ute law of England, saving in such cases as the same are or may
be altered or changed by the laws and ordinances of this prov-
ince, &c." \

1641, c. 6. An act against Fugitives. — " This act (which
made it felony of death, together with forfeiture of lands, goods,
Sec., for any apprentice servant to depart away secretly from
his or her master or dame, with intent to convey him or herself
away out of the province ; and in any other person that should
willingly accompany such servant in such unlawful departure,
unless his Lordship or his Lieutenant-General should think
proper to change such pains of death into a servitude not ex-
ceeding seven years, &c), was superseded by the act of 1649,
c. 5, which last was repealed by 1676, c. 7.

There are various acts and titles of acts, given in Bacon's
laws, relating to servants, fugitives, runaways, and those that en-
tertain them, servants that have bastards, &c. It is remark-
able that these laws, and the early statutes respecting negro
slaves, were enacted for short periods, usually three years, and
were continued from time to time by re-enactments. Their
provisions are so simitar to those of Virginia, on the same sub-
ject, that it is not necessary to make a particular statement of
them. The same collection contains numerous acts naturalizing,

LAWS Or MABYLAHD.

249

on petition, persons of French, Dutch and Swedish surnames.
The first statute relating to negro slaves, which in this collection
is given in full, is that of 1715, c. 44. Others before that date
are described by their titles only. The earliest law on the sub-
ject appears to have been that of

1663, c. 30. An act concerning negroes and other staves,
confirmed by 1676, c. 2. This is not given in Bacon's laws : as
cited, Butler v. Boarman, 1 Harris & McHenry, 37, 1 it enacts, s.
1. " All negroes or other slaves within the province, and all ne-
groes and other slaves to be hereafter imported into the pro-
vince, shall serve durante vita ; and all children born of any ne-
gro or other slave, shall be slaves as their fathers were for the
term of their lives." Sec. 2. " And forasmuch as divers ftee-
born English women, forgetful of their free condition, and to the
disgrace of our nation, do intermarry with negro slaves, by whicit
also divers suits may arise, touching the issue of such women,
and a great damage doth befall the master of such negroes, for
preservation whereof for deterring such free-born women from
such shameful matches, be it enacted, &c. : That whatsoever^
free-born woman shall intermarry with any slave, from and af-
ter the last day of the present assembly, shall serve the master
of such slave during the life of her husband ; and that all the
issue of such free-born women, so married, shall be slaves as j
their fathers were." Sec. 3. "And be it further enacted, that
all the issues of English, or other free-born women, that have
already married negroes, shall serve the master of their parents,
till they be thirty years of age and no longer."

1666, c 22. An act against runaways and such as shall en-
tertain them, extended, 1671, c. 19 ; rep. 1676, c. 2.

1669, c. 18. An act for preventing servants and criminal
persons running out of this province.

1671, c. 2 An act encouraging the importation of negroes
and slaves into this province, confirmed, 1676, c. 2 : a new act
1692,. c. 52.

1676, c. 7. An" act relating to servants and slaves ; — for

' On a claim for freedom by the descendants of Eleanor Butler in 1770, see alto -
2 Harria & McHemy, 214. 1 Hildr. 568. Stroud's Aft**, Ac, p. 15.

260

LAWS Or MABTLAHD.

three yean, bat re-enacted (a new act 1692, c. 16). c. 16, An
act against Me importation of convicted person* into this Pro-
vince ; continued by re-enactments ; a new law 1692, e. 74.

1881, c. 4. An act concerning servants and doves. This
act is cited in Butler v. Boarman, 1 Harris & MoHenry, 372.
The first section is to the same effect as the first of 1663, c. 30.
Sec. 2, recites — " Forasmuch as, divers free-born English, or
white women, sometimes by the instigation, procurement or con*
nivance, of their masters, mistresses, or dames, and always to
the satisfaction of their lascivious and lustful desires, and to
the disgrace not only of the English, but also of many other
Christian nations, do intermarry with negroes and slaves, by
which means, divers inconveniences, controversies, and suits may
arise, touching the issue or children' of such free-born women
aforesaid ; for the prevention whereof for the future, be it, &c,
enacts that if the marriage of any woman-servant with any
slave shall take place by the procurement or permission of the
master, such woman and her issue shall be free, and enacts a
penalty by fine on the master or mistress and on the person
joining the parties in marriage. •

1692. c. 16. An act relating to servants and slaves. A new
act, 1699, c. 43 ; c. 52, An act for the encouragement of the
importation of negroes and slaves into this Province, c. 79, An
act concerning negroes and slaves, continued by re-enactments.1

1605, c. 6. An act restraining the frequent assembling of
negroes within this province ; — temporary but continued by re-
enactments.

1696, c. 7. An act laying an imposition on negroes, slaves
and white persons imported ; afterwards included in

1699, c. 23. An act for raising a supply, &c, and to pre*
vent too great a number of Irish papists being imported into
this Province.

1 The tKiai only arc given in Bacon's law*. In " Plantation laws" (London 1705).
Maryland, p. 60, a law of this year is cited. " Where ear negro or stare, being in
serritode or bondage, is or shall become Christian, and leeelve the sacrament if bap-
tism, the same shall not nor ought to be deemed, adjudged or construed to be a manu-
mission cr freeing of any such negro or slave, or his or her iscoo, from their r Tvitnde
or bondage, bnt that notwHhiUndiTng they shall At all times hereafter be and remain
in servitude and bondage as they were before baptism, any opinion, tastier or thing to
the contrary notwithstanding.*

LAWS OF MARYLAND.

251

1699, c. 43. An act relating to servants and slaves1—
new act made 1704, o. 23, which was replaced by the revision
1715, c. 47.

l1700, o. 8. An act for repealing certain laws, &c. All
the acts before mentioned, passed before 1699, except that of
1692, c. 52, for encouragement of the importation of slaves,
are repealed.*

1704, c. 33. An ad imposing three pence per gallon on rum
and wine, brandy and spirits, and twenty shillings per poll for
negroes, for raising a supply to defray the public charge of this
province, and twenty shillings, per poll, on Irish servants,
to prevent the importing too great a number of Irish papists
into this province," enacted for three years, but afterwards re-
vived and continued by various acts, the last being that of 1783,
c. 20, enacted for twenty-one years.

c. 93. An act for the advancement of the natives and

residents of this province ; enacts that no persons shall hold
office, with the exception of those commissioned by the crown,
until after three years' residence.

1706, c. 6. An act for punishment of persons selling or
transporting any friend Indian or Indians, out of this Province
-—continued in the revision of 1715.

1716, c. 15, sec. 5. " And for the better ascertaining what
persons are and shall be deemed taxables' and what not, be it
enacted, that all male persons, residents in this province, and all

1 In " Plantation laws," Maryland, p. 68, an act is given of this date : it contains
provisions respecting servants, similar to those in Virginia and other colonies. Sec.
19, provides, — " All n egroes and other slaves imported into this province, and their
children, shall be slaves during their natural lives." Sec. 20. " Any white woman,
free or servant, that suffers herself to be begot with child, by a negro, or other slave,
or free negro ; such woman, if free, shall become a servant for seven years ; if a ser-
vant, shall serve seven y ears longer than her first term of service. If the negro that
begot the child be free, he shall serve seven years to be adjudged by the justices of the
county court, and the issue of such copulations shall be servants till (bey arrive at the
age of thirty-one years. And any white man that shall get a negro woman with
chud (whether free or servant) shall undergo the same penalties as white women."

* Mr. Stroud, in Sketch, &c., 2d ed,, p. 16, observes ' that the rule attributing sla-
very to the issue of slave fathers being repealed by this act, there was no writtm law
to determine the condition of the issue of slaves until 1715, c 44. Whether the law
of 1704, c 23, contained any rule does not -appear in Bacon's laws.

* That is, for the poll tax, abolished by the State bill of rights. 1 Dorsey's laws, p.
a Compare the note on the Virginia law of 1649, o. 2, relating to tkhablet.

252

LAWS OF MARYLAND.

female slaves therein of the age of sixteen years or above, shall
bo accounted taxables" — with some exceptions.

1715, c. 19. An act prohibiting all masters of ships or ves-
sels, or any other person, from transporting or conveying away
any person or persons out of this Province without passes. By
sec. 3, every person who shall convey away " any servant or ser-
vants, being servants here by condition for wages, indenture, or
custom of the country, shall be liable, &c. Sec. 5. Persons who
shall entice, transport, &c, any apprentice or other servants or
slaves belonging to any inhabitant, &o. (1 Dorsey's laws, p. 9 ;
note, see 1753, c. 9 ; 1748, c. 19 ; 1793, c. 45 ; 1780, c. 24 ;
1824, c. 85 ; 1818, c. 157.)

c. 44. An act relating to servants and slaves, con-
tains 135 sections, similar in effect to contemporary Virginia
laws. Sec. 6, relates to runaways, and the apprehension of any
person or persons whatsoever travelling out of the county
wherein they reside with a pass, or persons " not sufficiently
known or able to give a good account of themselves." 23.
Provides that all negroes and other slaves, already import-
ed or hereafter to be imported into this province, and all
children now born or hereafter to be born of such negroes and
slaves, shall be slaves during their natural lives. 24. De-
claratory that baptism of slaves does not thereby manumit or
set free such slaves. 26. White women got with child by
slaves or free negroes shall become servants for seven years.
27. The free negro father to serve -a like period, and the
children until thirty-one years of age. 28. Any white man
that shall beget any negro woman with child, whether free wo-
man or servant, shall undergo the same penalties as white wo-
men. See the abstract in 2 Hildr. 323, and the provisions as
to runaways, &c, in Stroud's Sketch, 2d ed., 131.

1717, c. 13. An act supplementary to the above. Sec. 2,
enacts that " no negro or mulatto slave, free negro, or mulatto
born of a white woman, during his time of servitude by law, or
any Indian slave or free Indian, natives of this or the neighbor-
ing provinces, be admitted or received as good and valid evi-
dence in law, in any matter or thing whatsoever, depending

LAWS OF MARYLAND.

253

before any court of record, or before any magistrate within this
province wherein any Christian white person is concerned. 3.
Admits their evidence against one another, provided not extend-
ing to depriving of life or member. 4. Provides for paying the
owner when the slave has been capitally convicted. 5. Negroes
or mulattoes of either sex, intermarrying with whites, are to be
slaves for life ; except mulattoes born of white women, who shall
serve for seven years ; and the white party for the same time.
Supplementary are acts— 1719, c. 2 ; 1728, c. 4 ; 1748, c. 19 ;
1765, c. 28.

1723, c. 15. An act to prevent the tumultuous meeting and
other irregularities of negroes and other slaves. Sec. 4. That
" negro or other slaves striking white persons — their ears may be
cropt on order of a Justice." 6. Forbids slaves possessing cattle.
7. Negroes outlying and resisting may be " shot, killed or destroy-
ed/' Supplementary act, 1751, c. 14. Value of slave killed to be
paid to the owner. Supplementary are 1737, c. 7 ; 1753, c. 26.

1728, c. 4. Supplementary to 1715, c. 44. Free mulatto
women, having bastard children by negroes and other slaves,
and free negro women, hav -% bastard children by white men,
and their issue, are subjected to the same penalties which, in
the former act, sec. 26, are provided against white women.

1729, c. 4. Reciting that many petit treasons and cruel
murders have been committed by negroes, and " that the man-
ner of executing offenders prescribed by the laws of England is
not sufficient to deter a people from committing the greatest
cruelties who only consider the rigour and severity of punish-
ment," provides that any negro or other slave, on conviction of
certain crimes, shall be hanged, and the body quartered and
exposed.

1731, c. 7. Supplementary to above act and to 1723, c. 15.
Continued 1740, c. 7 ; 1744, c. 18 ; 1747, c. 16— incorporated
in new law, 1751, c. 14.

1750, c. 5. To remedy some evils relating to servants, tem-
porary, but continued by 1766, c. 5 ; 1773, c. 12 ; 1781, c. 29.

1751, c. 14. A revisal of the acts relating to punishment
of crimes committed by slaves. Sec. 2, 4, providing for punish-

954

LAWS OF MASSACHUSETTS.

ment of death without benefit of clergy. A trial by jury and
justices of assize, as in case of other persons, appears to be con-
templated.— For three years. Supplementary, is 1753, c. 26 ;
continued by 1754, c. 19 ; 1765, c. 17.

1762, c, 1. An act to prevent disabled and superannuated
slaves being set free, or the manumission of slaves by any last
will or testament. Temporary — continued 1766> c. 1 (for 20
years).

1763, c. 28. 1 An act imposing additional duties on slaves,
continued 1766, c. 13 ; 1773, c. 14 (7 years).

1776, July 3. The provincial convention at Annapolis, re-
solving on the election of a new convention, to " be elected for
the express purpose of forming a new government by the au-
thority of the people only." " All free men above twenty-one
years, being freeholders of not less/' &c, or having property of
value designated, were to be admitted to vote. MaryL laws for
Annapolis, 1787.

§ 220. Legislation of Massachusetts.

The colonists who landed at Plymouth, in 1620, exercised,
until the year 1692, a separate legislative power over a portion
of the present State of Massachusetts. Their enactments have
been published separately from those of the colony of Massa-
chusetts Bay, under the name of the Plymouth Colony Laws,
edited by W. Brigham, Boston, 1836. In these, pp. 36, 50, the
origin of their legislative power is ascribed to their compact,
signed 11 Nov. 1620. These, laws do not contain any declara-
tion in the nature of a bill of rights beyond that first printed in
1661, and first declared in J636, under the name of the General
Fundamentals* Plym. CoL Laws, advertis. p. viii. and Part III. ;

1 This ifl the last year of Bacon's laws.

• This was, for the greater part, a declaration of political power. It will be re-
membered that the Plymouth colonists had no charter from the Jting. The patent for
Virginia, of 1606, applied to the entire region of America claimed by the English.
See its guarantees, ante, p. 228, note. *« The great patent of New England," of 1620,
established a council in " Plymouth, in the county of Devon," in England, and empowered
them to " ordain and establish all manner of orders, laws, directions, instructions,
forms and ceremonies of government and magistracy, fit and necessary for and con-
cerning the government of the said colony and plantation [New England], so always

LAWS OF MASSACHUSETTS.

265

the first and fourth articles of which have this character and
have already heen cited.1 They contain some provisions re-
specting indentured servants, pp. 34, 35, 47, 58, 61, 65, 81,
140, 195. From these, however, it would appear that the con-
dition of such servants, if of English origin, was in this colony
less burdensome than that of persons of the same class in other
settlements, and that the policy of the colony was to encourage
their emancipation and facilitate their settlement on land of
their own.

It would seem that such persons even participated in the
exercise of the elective franchise during the first sixteen years of
the settlement.* But it appears that in 1636, not even all
male freeholders were entitled to vote, and the laws distinguish
" freemen" or " associates" as a distinct portion of the inhab-
itants, constituting a corporation, Ply. Col. L. pp. 42, 62, 100,
108, 113.' In 1657, it was enacted " that all such as reside
within this government "that are att theire owne despose/'

as the same be not contrary to the laws and statutes of this our realm of Engand," Sec.
The " principal governors " were empowered to govern by the laws so established,
" so always as the statutes, ordinances, and proceedings, as near as conveniently may,
be agreeable to the laws, statutes, government, and police of this our realm of Eng-
land." It was also provided " that the persons, being our subjects, which shall go
and inhabit," &c., should have the privileges of subjects born in England (in words
almost literally the same as those used in the second charter of Virginia, ante, p. 229).
See Patent in 1 Hazard, 103, and summaries ; 1 Ban. 272 ; 1 Hild. 152. The council
for New England, under this, granted a patent to Governor Bradford and " his asso-
ciates," the Plymouth colonists, 1680, with powers of government according to the
terms of the Great Patent, 1 Haz. 298 ; Plym. CoL Laws, 21. A patent issued for
their benefit to John Pierce, in 1621. See Young's Chronicles, p. 114, n. ; Plym.
CoL Laws, p. 50, This patent seems not to have been used. As to powers derived
from patents, see ante, § 127.
1 Ante, § 129.

9 Some of the signers of the original compact are designated as persons " in the
family" of some one of the others. See Prince, Part II. p. 86, 105. 1 Banc. 822. "For
more than eighteen years 4 the whole body of the male inhabitants' constituted the
legislature."* If the same anomaly existed in the colony of Massachusetts Bay, the
exception herein before taken (p. 121, n. 4,) to Mr. Bancroft's statement is ill-founded.
At the period when slavery or bondage existed under the Saxon law, and the term
freemen designated a class having, by the elective franchise, a share of political power,
still, all who were not bondsmen were not freemen, in that set jb. N. Bacon's Hist.
Disc. p. 56, describing the Free-lazzi, "yet attained, they not to the full pitch of free-
men ; for the lord might acquit his own title of bondage, but no man could be made
free without the act of the whole body." Comp. ante, p. 125, n. 2, p. 136, n. 8.

' Thus assuming to have that legal foundation for their civil polity, which the
" freemen of the company " of the colony of Massachusetts- Bay claimed for them-
selves under their charter from the king.

266

LAWS OF MASSACHUSETTS.

who would not take the oath of fidelity should depart the gov-
ernment or pay a fine, Plym. Col. L. p. 102. 1

No mention is made of negroes or of slaves. But from
certain regulations, in 1676, it appears that there were some
Indian captives held as slaves, and liable to be sold as such.
Plym. CoL L. pp. 177, 178, and on p. 187. " This courte sees
cause to prohibit all and every person or persons within our
Jurisdiction or elsewhere, to buy any of the Indian children of
any of those our captive salvages that were taken and became
our lawfull prisoners in our late warres with the Indians, without
special leave, liking, and approbation of the government of this
jurisdiction."

Special regulations for Indians, enacted 1682, are found,
p. 196.

It is difficult to fix the precise date of many of the enact-
ments proceeding from the Colony of Massachusetts Bay.8 This,
however, is not very material for the present purpose. The ex-
ercise of local legislative power dates from October 19, 1630,
when the general court of the " freemen" or members of the
corporate body created by the royal charter of March, 1629,8
was first held at Boston.

1631, May. " To the end that the body of freemen may be
preserved of honest and good men : It is ordered that hence-
forth no man shall be admitted to the freedom of this common-
wealth, but such as are members of some of the churches within
the limits of this jurisdiction." Charters, &c, p. 117 (see post,
laws 1660, 1665).

1 Analogous to this were the lawB against Quakers, who would acknowledge no
civil authority.

1 See the Advertisement by the compilers of the Charters and General Laws of the
Colony and Province of Massachusetts Bay. Boston, 1 814. 8vp.

* By the name, " the Governor and Company of Massachusetts Bay, in New Eng-
land," the corporators had a patent from the council of Plymouth, in England, dated
March 19, 1628. The governor, deputy, and assistants provided for the government
by the charter were to be chosen out of the " freemen" or stockholders first named
therein, and those admitted by them in general courts, at which laws might be enacted
for the government of the colony " so as such laws and ordinances be not contrary or
repugnant to the laws and statutes of this our realm of England." In terms almost
identical with the 15th art. of the Virginia patent, of 1606, (ante, p. 228,) it was pro-
vided that all subjecta who should " go to and inhabit within the said lands," occ., and
their children should have " the liberties and immunities of free and natural subjects,"
Sec. 1 Hazard's ColL 289. Charters, &c, p. 9, 18.

LAWS OF MASSACHUSETTS.

257

1682, March. As an addition to an order made 22 March,
1630, it iB ordered " that if any single person bo not provided
of sufficient arras allowable by the captains, '&c, he- shall be
compelled to serve by the year, with any master that will retain
him for such wages as the court shall think meet to appoint/'
Charters, &c, App. p. 712.

1633-7. — It is declared, &c, " that what lands any of the
Indians in this jurisdiction have possessed and improved, by
subduing the same, they have just right unto, according to that
in Gen. 1, 28 and ch. 9, and PsaL 115, 16. And for the
further encouragement of the hopeful work amongst them for
the civilizing and helping them forward to Christianity ; if any
of the Indians shall be brought to civility and shall come among
the English to inhabit, in any of their plantations, and shall
there live civilly and orderly ; that such Indians shall have al-
lotments amongst the English according to the custom of the
English in like case.

".Further it is ordered, that, if upon good experience, there
shall be a competent number of the Indians brought to civility
so as to be capable of a township, upon their request to the
General Court, they shall have grant of lands undisposed of for
a plantation as the English have." See the General Laws and
Liberties of Massachusetts Colony, revised, &c, ed. Cambridge,
1675. Title — For settling the Indians? title to lands in this ju-
risdiction.

In the same law there is a provision, common in all the colo-
nies, forbidding the sale of fire-arms and ammunition to any Indian.

1680-1641. — "It is also ordered that when any servants
shall run from their masters, or any other inhabitants shall
privily go away with suspicion of evil intentions, it shall be
lawful for the next magistrate or the constable and the two
chief inhabitants, where no magistrate is, to press men and
boats or finances, at the public charge, to pursue such persons
by sea or land, and bring them back by force of arms." Char-
ters, &c, ch. 68. Title, — Acts respecting masters and laborers,
§3.

1636. — It is ordered that no servant shall be set free, or
17

LAWS OF MASSACHUSETTS.

have any lot, until he have served out the time covenanted ; un-
der penalty of such fine as the quarter courts shall inflict, &c.
Charters, &e., p. 42. Title — Acts respecting freemen and ser-
vants.1

1641. — This is the date of the celebrated " Massachusetts
Fundamentals" or " Body of Liberties,"* the preamble of which
is as follows :

" Forasmuch as the free fruition of such liberties, immu-
nities and privileges as humanity, civility, and Christianity call
for as due to every man, in his place and proportion, without
impeachment and infringement, hath been and ever will be the
tranquillity and stability of churches and commonwealths, and
the denial or deprival thereof, the disturbance, if not the ruin
of both, we hold, it therefore our duty and safety, whilst wo are
about the further establishing of this government, to collect and
express all such freedoms as for the present we foresee may con-
cern us and our posterity after us, and to ratify them with bur
solemn consent. We do therefore this day religiously and
unanimously decree and confirm these following rights, liberties
and privileges concerning our churches and civil state to be re-
spectively, impartially and inviolably enjoyed and observed
throughout our jurisdiction forever." (Cambr. ed. laws, 1675,
p.l.)

The ninety-eight articles of this code are classed under
distinct headings or titles, commencing with a general state-
ment of the rights of the inhabitants in seventeen articles ; the
first of which is as follows : "No man's life shall be taken
away, no man's honor or good name shall be stained, no man's

1 By the Mass. Becords, vol L, pp. 246, 269, it appears the General Court sen-
tenced certain offenders, in 1688, 1689 " to be delivered np a slave " to persons ap-
pointed by the court.

It is believed that there is no mention mads of negro slaves previous to the act of
1696 or 1698 hereinafter cited. Bnt it appears from " Josseivn's Voyage," see Mass.
Hist CoL, 3d series, vol. IIL, p. 231, that there were, in 1689, some negroes ih the
colony held in slavery; and see Dr. Belknap's letter to Dr. Tucker, in Ma

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Full text of "The law of freedom and bondage in the United States."

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