INTERNATIONAL SLAVE-TRADE. 391 only so far as it embraces relations which will continue the same, notwithstanding a change of jurisdiction; and that, when chattel slavery is no longer recognized, no other condition of a private person can be attributed to universal jurisprudence than such as consists in the rights and obligations of the family, and those resulting from contracts. There is nothing in the history of either international or of municipal (internal) jurisprudence, during the colonial period, to indicate that there was any definite condition of a legal person, in respect to those rights which could be recognized in the case of an alien negro under a judicial derivation of law, and which might not equally have been attributed to a white or European. In all parts of the American continent, however, domiciled negroes or Indians were placed in an inferior condition to the whites; in respect either to civil or political privileges; and in that branch of the law which has been called police law, applying equally to aliens and domiciled persons, derived from statute regulation, a distinction had been made between free negroes and free whites, and the same distinction existed in all the colonies settled by European nations in America. This fact, of so general prevalence, may perhaps be said to have constituted during the colonial period a recognized disability in persons of the negro race under the "law of nations;" in this sense, that, unless specially provided against, all international transactions or agreements, affecting the right of the subjects of different countries, would be supposed to have admitted the distinction.' § 328. When chattel slavery had thus ceased to be supported by the jurisprudence of the greater number of civilized nations, although the trade or commerce in slaves might still be legal by the authority of other states, yet it could be maintained only in such parts of the world as the nation sanctioning it might have jurisdiction over the persons engaged in it. The slave-trade on and from the coast of Africa, though, for this reason, not supported by the law of nations,-in the sense of universal jurisprudence, at the close of the colonial period, can 'In connection see ante, §§ 19, 75, 112, 168-170. not be said to have been contrary to the "law of nations; either in that sense, or in the sense of a law of which nations are the subjects; for, according to the acknowledged principles of that law, each nation might permit its own subjects to engage in the traffic on the coast of Africa. It would have been a topic of public international law only so far as it might have been the subject of an agreement between such a slave-trading nation, and the sovereign of that part of the coast of Africa from which the negroes should have been purchased :-supposing that there should have been there any organized civil authority. Even the forcible abduction or kidnapping of the native inhabitants by the subjects of a civilized government might have been legalized by such government; and it would not have been contrary to international law, except so far as it violated the rights, under the public international law, of the sovereign to whom the persons kidnapped might have been subject, if any such sovereign could have been found. § 329. An act of criminal violence committed by private persons upon the high seas, or anywhere beyond the territorial jurisdiction of organized civil governments, is an act punishable by the tribunals of the sovereign of the persons committing the injury. If such act of violence is allowed or sanctioned by such sovereign, it then becomes, according to the public international law, an injury against the sovereign of the persons injured,— supposing them to be the subjects of an organized civil government; the remedy for which is beyond the jurisdiction of courts of justice. But a nation may grant jurisdiction to another, or to all others, of crimes committed by its own subjects; and, by the consent of all European nations, it has been agreed that some acts of violence, by private persons, shall be punishable not only by the tribunals of their own sovereign, but by those of any nation which may obtain control over their persons. Such acts are therefore not merely contrary to the rule of right enforced by every nation, and therefore such as may be said to be contrary to universal jurisprudence—the law of nations; but they are acts over which every nation has jurisdiction, irrespectively of the national character of the persons committing them. NOT PIRACY AT THAT TIME. 393 They are therefore criminal under the "law of nations," in a peculiar sense the sense of a law of which private persons are the subjects, and which any nation may vindicate; and which is public international law also; because the right of thus vindicating it, irrespectively of the national subjection of the culprits, is dependent upon the consent or contract of different nationalities. An act of this character-one which may thus be punished, is technically called piracy. Piracy may be defined to be one of those acts which the tribunals of any nation will take jurisdiction of, and will punish.' Although the African slave-trade was no longer supported by the law of nations-universal jurisprudence-at the close of the colonial period, it would not have been a criminal act on the part of the persons engaging in it, unless forbidden by the legislation of their own sovereign. And even if so forbidden, it would not have been punishable by the courts of any other nation as piracy, unless by the consent of that sovereign. 1 There is an ordinary use of the terms piracy, pirate, piratical, in which acts of robbery and murder are discriminated according to the place wherein committed-the bigh seas. But in the phrase "piracy by the law of nations," the designation has reference to the common jurisdiction which nations will assume over it. Compare the variety of opinion, on this question of definition, in United States v. Smith, 5 Whea ton, 153. CHAPTER XI. OF THE INVESTITURE IN THE PEOPLE OF THE SEVERAL STATES AND OF THE UNITED STATES, OF THAT SOVEREIGN POWER WHICH IS THE BASIS OF CONDITIONS OF FREEDOM OR OF BONDAGE. § 330. By the Revolution and the war which was terminated by the preliminary treaty of peace of November 30, 1783, the English colonies, a portion of whose juridical history has been herein considered, became politically separated from the British empire, and a new sovereignty,' known to the rest of the world as the United States of North America, became established over their territory. To the legislative or juridical action of this sovereignty or sovereignties, the subsequent existence of any rights or obligations incident to freedom or liberty and its opposites, regarded as the conditions or status of private persons within their territorial dominion, must be referred. § 331. Freedom or liberty, taken even in the widest or most general sense that of the mere negation of restraint, must vary in significancy according to the nature of the subject of which it is predicated, or the capacities of that subject for acting or being acted upon. When freedom or liberty is attributed to a being capable of choice and action, and is not taken as the simple negation of restraint, but as a positive condition of moral privilege in reference to some rule of action, it varies in its significancy, not only ac 1 This term, primarily signifying supreme or sovereign power in the abstract, or the possession of that kind of power (Webster's Dict.), is often used also, as here, for the concrete, the power and the possessor of it. BASIS OF PERSONAL CONDITIONS. 395 cording to the object or purpose of the rule, but also as that rule may vary in its absoluteness or necessity, and in its relations to space and time. When the terms freedom and liberty or their opposites are used to express the condition of a natural person, who is a member of some civil society or state, and that condition is considered apart from all ethical views of its naturalness or inherent correspondence with the nature of man, and only as consisting of a variety of rights or obligations in certain legal relations determined by the positive law, based on the authority of that civil society or state,' it cannot be described without at the same time defining the law, which originated these relations, in its absoluteness or necessity, and in its temporal and territorial extent. When describing freedom and its opposites as the effect of the laws of the United States, it is therefore proper to consider those laws in their necessity, authority and jurisdiction; as well as in their object, or their direct effect upon personal condition by the creation of legal relations. These attributes of the nature of law, which are therefore, of necessity, limitations of the existence of freedom and its opposites, are incidents of that relation of superior and inferior, which is an essential element or constituent of a law in the primary sense.2 § 332. Since each national sovereignty is the ultimate or supreme authority for the law of that national domain in which it is supreme, (in the sense given to the word law in the previous chapters,) it is not to be considered as being itself dependent on that law for its existence, or its possession of that supreme authority; which possession can be said to be fixed and determined only by those general principles which are, in fact, a law only in the secondary sense, and constitute that "natural or necessary law of nations" which has been referred to in the first chapter. This existence, or this possession of sovereign power must be assumed as rightful in every applica Ante, §§ 4-43 3 |