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Nth  J 


.Hi ill  (itJVHkX  QJIIItbt 



w  yoek:  : 




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


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. 






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 

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, 


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 



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

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 



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 



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 



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 

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 ; 



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 



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 



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. 


[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.] 



Law  defined. 


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 



,  Law  divided. 


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 


■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 



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 




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 



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  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 




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 



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 


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. 


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

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 



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 


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 


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 



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,  ..... 





Circumstance*  determining  the  extent  of  loins  of  condition  in  the 



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 





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


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 









.  254 




New  Hampshire, 






.  267 




Rhode  Island, 





New  York, 

.  277 



New  Jersey, 






.  286 









North  Carolina, 

.  293 




South  Carolina, 






.  309 



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 






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 


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 


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 





Of  law  on  this  subject  derived  from  a  colonial  source. 


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 




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 



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


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,  ....... 




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* 


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 







General  principle  derived  from  the  jural  character  of  all  law. 


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 


XXX  i 



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 


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


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 



Liberty  considered  in  connection  with  the  investiture  of  sovereign 


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 


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

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



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 



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 


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 


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 




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 



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 



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



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 





Of  the  exercise  of  judicial  power  liy  the  national  Government  and 

the  State*. 


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 



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 



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 



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 




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 




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 

— « • « — 



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 




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 


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 





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 


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- 

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 






§  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 




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. 



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 



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" 



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 



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 

§  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 

*  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, 



§  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 

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,' 


.  ?"    s.'      '*•?'  -     '  .1- 

I  .f/t)        fa  Iff 

I-     t  ■  ■•/."■  .o 


:      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^  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 



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. 


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- 

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.' 


§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  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  ?.-;..- 



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 

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*, 



§  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  > 




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. 



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 

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- 



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. 


§  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>>'   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;' ^"  . 

7/-'>  iV-^'Ov; 

(f  ....  '  'A.r  ; 


77777  vpit  ar.  =  o;^ 

/    ^  >/7'  /.tjj^ 

r  -   •■      /-  -'/  •!•  ;■•  -  * 

...  ,  c  ,.,        >         ......  , 

■     £ 'iVW</j.',  j-;;      a-:  "723  i 

'.'  ;-'T*      ".  to  the 

-  '    r  1  O  r7'    (A  O 

■'■  ■•    -^  -7;7  '7f  7';;?-  ::  773  i'77  [7^777^ 

"     ■■''"777-"  >/ '/777T7    '77/  7.'.  an 

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-".77  .'■ .  G-77-,  v,.v.V;.y,  ^ 
//•  ,  .;  7.  /,r/:r-.:o]y  *p- 

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V-  ■  7. 

'7  7-.71'::-.    7'.,  77  ?,7i  ,77-  7T';7        th&  u]7h 

r:?  ■  -   7'  \     v.^7.77.  77;fet3ori3  for5  or 

.  .'V'7'  '.' ^ 'c'  -  ,„7;  ,>77  :;^  -„  juvi.    : •  I. sifc  all,'  cr/shn?,  st ataltur 

."f"'    '  '.  ,7''. '  .•  *,  .    .?'7  ;„-^  ic  :  ,-.7:  -" :         horr.xm  tpza^y^xA 

7'  ^       7  >,.-'  7 ■  7*  ' '  •g'fy  £j:*!ti>7,  y/Ai&.    Sir  V/rn. : 

.;  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- 

'.7"  7  7-7 '  ''",„ >;*  ^i^Hft 7. ,;^-3  ti,a»*ac'»r!zs4  by. iho peryiaal exlent 

■        "'     7  y'  ,  :/„.    .*.>..-  ■  :.-l;Y.     .  r' c--....:'  ^  i  'J.  :  ■  '  / '  ■: 37:V;r"dr  Vj 



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 

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. 


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 

§  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." 


hj  private  persons  in  certain  supposed  circumstances  can  make 
a  law  for  others  in  similar  circumstances,  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. 



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* 

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 



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.) 



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 

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 



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- 



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 



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>'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 :.;»•✓ 

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**~<-;v 

{*■..;  fir Hi 

:  ;  f/r<.'?;r-,-  \un 

^  .  iff' 

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 

,  ■■    '  J  r/  C* 

■■■■ '  ''.•"',■"/     'fysti'-A  'trx-fAr-, '-A'^ri d. trtvn d r:~ ''vj 

rf  t  J 

....      ,  lr      -  S  -  .v  -.    *      ^        w.   *i  si     .  /A*s.      -*,;•,  ~lL     '^y**h£'$139''f"<\"*'f  ^j*"1^ 

■  J.'1  * 

:":*yV;  -^'or.^  Vy  sirigle  jiOTftr^gnti^ 

.).  J,.  t4.,,.     ......  \..rfi 

■'.«*■-'■«•  '[y  :<:,-*[  y.#te  -if,?.  ?ftf$,  in  ihiff^.-AceA  TtMnm  h<m 

/S<Ssr'. '/.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 


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  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,  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  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 

§  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 

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, 



§  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, 

•  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 

1  Iu  the  Roman  law  the  condition  of  sJi  natural  persons  as  subjeota  of  law  was  da- 



"  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. 



§  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. 



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,  nisi  si  quid  vi,  ant  jure  prohibetur — the  very 
idea  of  law  is  excluded. 


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 



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. 

Mi*'.  i»w  '»*  «"»  :u'  m..'/""'!/     **-jmy*>       .     •  ' 

>JL,   . '  ">-riiii'  .'.iii-..   'vtM'.<<.n»     jn. ;•'«•     "         •  »«•    '..«*    '  ■*r '    ."•    -•»  <• 

m  » 

. .  J  '  f .    •  »•    *•*«'*."*•.»     ".#»•*  V  *..*♦',  ;l/'.'<  "  /'.r;,«.«      '     r  •- 

f       •»■»-*„.  t  »••»    <  '.A\-y  Tun   'jW*     /  »»  - 

ZJT'.'  "*r>      ' '*    'Sit*  'lJ*t'    l0^.*a«l>"  f :»     tr* :  .f"(      >     «*>*•'  v"*- 

V>  *•»»  Inf.  j/". •.A'-.'iif  t*»-*,i»>-i <'*«~rr         n   *•*»    •»»'  *  '      '  " 

v' »t   'V  «<'.«. .»»         u    . i •*»    it', r, '  «-.•*•««*"•  •  **■  -  a***1* 

^ »•  r : ■»  »    -<*  .«  4.  <  "a.   >r »  '   '  -*■>•»■»     *f-  ut  •  -  ;*» 

f  •..•*■»     •«•■'*»»•**'*.     !iJ4'<,rlt*  Mi    <••-'  T?nm  ,»*,. 

\rt    Mi*    »w.»fp i :V  n  '.u»  'i*\r\::- .  *:m    *  '  * 

ttlfc' »*»•'■*''    v»  V»'T1^T  w-   in--*  *•»*>--*  »•*    or*     .."*'«•■"  - 

t*lu«-?    *v  •.*»v.n«j'        '.;*»   wv-»  ^n^'.  <-«     v  **~-t 

y***3iv»*  .".i  v**».  't«»/.»,7'  •/  -rr,«w>,wvr*n4*»  it   *«aar.         ^'  # 

%vwyv  't'f  *  lit.  1jp»  ibi,  ".  'J  V*!»w  '■"■^■o  ww  aw—"  '■)►  *»»  TiuoV— T 
e    »    mq&f-    MM    *e«*<r    MWivM    n    H»    aWStOMtnM    WMW    <»  WlL 

1m  "VOW  aasip^w  sm    «r  -ittmR   "TStoew   ~    njia^iiimi  ~n*aw  w 
■»  ✓    nn  wrt  — it  »w  n  mvp.  >^rtait  *x.  ■=£.     w*r-m  ^  i.  "«SMr  --mnamr 

.<+     *  l*-u 

-•  .-<♦•»     '*         <•>•«             r"            <^f*  ■!»   .-•ht-.-i'   r,<jt  '  i 'i ticn ft )  i 




•-«*    •'        •    •'  ••  '•  /- ••*             ^ .-         '.<»  •vla^n/'*'     •*  nrM- 

.  >     t*  '  ■■ 

«»*•    *  »♦  ■->      ■*      >t     >•  i           '•  <%o«»    -»*<»•:•   (rr-  '  !.A  t/t"r'jl}n' 

>'      ■■>*     4              r>  ^           /-••  •■  ■ 'r    rr\*\*C'A  '  •',    f»  ':"'rttt»< 

r4  ■••   -  r-       .-'           ,--,>■        .j,         »      •-/••.(        i-  i"--!*— '  f /,>-' :t  1  ',r 

•*     >^                        f./-.*.                   -                                       .  »-|  r.    /"•  "  '  ,f\  !  %"*Ttf 

.»•        ■ '   ..rv        '  ■»','**  r'^V'ff'     .t                 >  rt»»r»    '  !.<»  '  irr»A 


,/"»»*  /•  •«       '*       ■&      >t»t     ,r'--  'iit-r.//    ■T,f!,i|(   '  »i<""  "/■•TTi- 

.  /v.-            itr  »*- '■•r<«            . '  >li<oti  r.r^     r,    «   jtfttATrt**"r'i  t   •  ,f   '  fiA 

!''      <*t                              '-'■■  ■•\<r%t>r>'-t     ~\\<'9      f    jAti'.n    *V,r  >ri» 

'  I''/*** 

,     ;■  '  '/-'»•"           r-^     ;.«»     **#    ■>    ,oni>vwr  \-r  ■\txstnr.  \-,e>t\  V>th 


'T  Atj*-"---*    -  <>»    *'  -a?  V'n  -ri*  -^fAfAArf  «r?thin 

'•Aft  " 

'       -     ^  a    f»fA      "     atic  n     <a          f>AJ»l   'att'  tir>ri  j»  1 .  or 

>»-  .-  '  >, 

•.x-"'    :r,y,<  •    '..    ,/»r'.'C;T-Iffl    Tithin    hftt,  ( inradi Atl^n, 

r.       V*,  -  f  r                  .,f  ■nr»r(*r«<-   /i'»ftr  ',f  'hat, 

''."•' ^C-  ?a   ■tr.finff    IsATrt      iiftt.   a    Ka  .r>Aftl  r»y 

>r.  ■:<*'■ 

■  >'*               *a    "■>*"';   /r.^Mwi  "'-.jA.h  ^ta  '•/,nnAA,tA4  -xnth 

*  *r  ,m*m    .t«wrti»«r  •  W*  ■  our  " 

".turn    Stv*f)itt><*   '**     :  h     '     sfto  A  A      ,Tr«W!^«  T»vrn?r1«*  KJ«»» 

>#f»     ^    i*  m    f             ,/n#*nl<«  •HU*t»  »•  •/•V.»vW»«i*#»(t   n  *           u  -,r< -tf 

-<«rv.j*  »*►  --y ,--<tci «>x-  -ii*  ;»*A»^/««i      'n*  latvm  ',*  .-mi*  r»»*B 

a— mmrtam   ,irjw»n  r'Mm            rmttfi^i  rut    '.i    /  'A 



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 



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 

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. 




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 

§  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. 



§  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- 

§  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- 



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." 



§  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 



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- 


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, 



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. 



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 

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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i>^ij.'.  .vj-.a^^*.  j  *»»  »<v>ifl  .n»«y«   «-r)«m  »ith  :h«  ,rv>iAml  »n<f 

w.  ituy.'»v«)'.'A  r%  ^w«V(j    «  -iUt,  »h*T»  .r<>  '>f>Jy  ,ri<tkny- 



§  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 

§  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. 



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 



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." 



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." 



§  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 



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. 



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 


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 



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, 



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. 



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. 



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. 



§  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- 

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- 



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) 


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 



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 



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 


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  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- 

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. 


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* 
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. 



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. 



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 



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- 


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 




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., 




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. 



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, 



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 

§  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. 


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 

*  See  art*,  §  77,  and  §  88. 



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. 



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. 



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 



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. 



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- 

§  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- 


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 




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. 



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. 



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 :  d*  Orleans,  ch.  L   Foalix :  Droit  Insernat.  Pr.,  p.  24. 



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. 



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 



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 

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. 


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. 



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 


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- 



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. 



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 



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*. 



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.  * 



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. 



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. 



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.] 



§  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 



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. 



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. 


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.  § 



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. 


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- 


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 

§  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. 


Hartford  and  New  Haven,  were  first  formed  under  voluntary 

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 


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. 


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. 



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. 


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. 



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, 

*  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. 


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. 



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.  ' 



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 
•        *<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. 


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  < 


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. 


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 



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..  . 


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 :  a  declaration 
would  have  been  equivalent  to  a  repudiation  of  absolute  chattel  slavery. 


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. 


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.) 


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. 



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 

§  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. 



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. 



§  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. 



is — the  private  international  law,  in  England  and  America, 
during  the  colonial  period,  affecting  relations  of  freedom  or  of 

§  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. 



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 



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, 

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 



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. 


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 

•  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. 



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 



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 



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. 



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 

§  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 

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. 



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, 



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. 



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 



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. 



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. 



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- 

§  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. 



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 



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 



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- 



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. 




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 



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- 

§  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. 



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. 



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 



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 



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. 



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. 



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. 



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. 


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. 



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  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 

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 



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 



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. 



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. 



§  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 

'  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. 




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. 


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 

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." 



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. 


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. 



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 

"  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. 



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 



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" 



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.* 



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 



is  tlie  only  law  of  involuntary  servitude  in  England,  and  that 
this  law,  being  local  and  prescriptive,  could  not  apply  to  an 

§  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." 



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. 



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 



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 



promulgating  law  as  &  jural  rule;  and  it  has  very  rarely,  if  ever, 
been  originally  established  in  a  country  by  positive  legislative 

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  / 



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. 




§  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. 



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. 



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  ? 



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- 

§  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. 



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 


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." 



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 


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. 



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. 



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. 



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, 



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. 



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. 



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. 



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. 




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. 



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. 


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 


§  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. 


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." 



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, 



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 

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- 



§  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 


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. 



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 



§  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 

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 



§  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, 



§  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. 



§  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- 



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 

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. 



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 

§  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. 




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 



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. 



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- 

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 



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." 



1649,  c.  2. — Declares  all  imported  male  servants  to  be 

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, 

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 



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- 



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. 

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. 



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." 



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. 



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. 



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 



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 



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 



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- 

 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- 



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. 


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 



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. 


to  1723,  o.  4,  how  suoh  testimony  shall  be  taken. — 4  Hen. 

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. 

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. 



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. 



 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, 

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 


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 



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, 



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. 



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- 

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.* 



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. 



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 



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 

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- 



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 

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 



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. 



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 

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. 



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- 

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, 

1636. — It  is  ordered  that  no  servant  shall  be  set  free,  or 


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- 

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, 

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