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antiquity. It was in fact a principle quod inter omnes populos peræque custoditur, a maxim of the law of natural reason, or of 'universal law' as then understood, that slavery might rightfully 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 international law, so far as any such international law could be said to exist."

$ 154. The relation thus originating in war and under international 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; nascuntur ex ancillis nostris; fiunt ex jure gentium, id est ex captivitate, ant jure civili, quum liber homo major viginti annis ad pretium participandum sese venundari passus est. In servorum conditione nulla est differentia. Here the origin of slavery by voluntary 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

* Xenophon : Cyrop. L. vii. c. 5, 73.

* War and peace being rudely definable as contraries, war was the normal condition 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 fædus amicitiæ causa factum habemus, hi hostes quidem non sunt; quod autem ex nostro ad eos pervenit, illorum fit, et liber homo poster, ab iis captus, servus fit, et eorum. Idem que est, si ab illis ad nos aliquid perveniat.

Jus civile, in a sense relating to its extent, national law, including jus gentinmnot opposed to it, in the sense of jus proprium.

Quintus Curtius: Lib. 7, c. 8: “Inter dominnm et servum nulla amicitia est, etiam in pace belli tamen jura servantur.” The jura were the same, only as the rights of the master were always founded on jus gentium. The municipal law did not recognize any incongruity between the relation of master and slave and a peaceful condition of society.

A slave condition was also sometimes made the consequence of desertion from military duty, or crime; freed men for ingratitude towards patrons, and women for intercourse with slaves were liable to loss of freedom. Hüne's Darstellung über Sclavenhandel (Göttingen, 1820) vol. i. p. 95: cites Waldeck; c. l. 8 63 n. a. Heinec. c. i. g 83.

152

CONSTITUTIO JURIS GENTIUM.

mitted universality it was probably considered a principle of the law of nations, constitutio juris gentium. In Tit. 8, from the universal prevalence of the idea of absolute dominion in the master over the slave, and of the slave's incapacity to acquire any thing as property, distinct from the property of the master, it is argued that that property and that disability rest upon the same foundation as slavery from captivity. In potestate itaque dominorum sunt servi. Quæ quidem potestas juris gentium est. Nam apud omnes peræque gentes animadvertere possumus, dominis in servos vitæ necisque potestatem esse, et 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.

$ 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 pæne contractus introducti sunt, ut emtio, venditio, locatio, conductio, societas, depositum, mutuum et alii innumerabiles. And Lib. II. Tit. 1, § 4: Riparum quoque usus publicus est jure gentium, sicut ipsius fluminis. And 85: Littorum quoqne usus publicus juris gentium est, sicut et ipsius maris; &c.? By ascribing the right of the master and the incapacity

? Waldeck's Inst. L. I. tit. 3. “Ex juris principiis, foetus, tamquam accessio ventris 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. i. 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 the jus gentium of the Roman lawyers was exhibited in the application 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: Hermogenianus, Libro i. juris epitomarum, Ex hoc jure gentium introducta bella, discretæ gentes, regna condita, dominia distincta, agris termini positi, ædificia collocata, commercium, emtiones, venditiones, locationes, conductiones,

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of the slave to the same law of nations, without reference to the origin of the relation, (in servorum conditione nulla est differentia) it seems to be considered a condition or relation which should be everywhere recognized, and maintained of course in every municipal or international 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 quæ ex hostibus capimus, jure gentium statim nostra fiunt; adeo quidem ut et liberi homines in servitutem nostram 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 distinguishing 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.' As is shown in Inst. L. I. tit. 8, § 1, the power of the master was for life and death, in theory; and often illustrated in practice, as appears from history and literature.” If the slave was considered entitled to any rights as a human being,

obligationes institutæ, exceptis quibusdam quæ a jure civili introductæ 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 which 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 law of nations," if the Romans had not before called the same thing jus gentium, insists that by 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 natural 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 recognition 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 jurisprudence, must assume that it is included in the law of the land. How this may be, has been shown in the second chapter.

Mühlenbruch ; Pandectarum Doctrina, p. 195. “Familia appellatio non ad personas solum refertur, verum etiam ad res, adeoque ad hominum, qui instar habiti sunt rerum, i, e. servorum quoddam corpus." Kaufmann's Mackeldey, p. 127; editor's note: “The Romans made a distinction betweem homo and persona ; because they regarded 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.

• Juvenal Sat. vi, 1. 219.

154

PREVALENCE OF THE DOCTRINE.

the support of those rights was left to the influence of motives of humanity, and not enforced by any rule prescribed by the state, previously to the constitution of Antoninus referred to in the second section of the last-mentioned Title. Though in cases of extreme severity the supreme power might occasionally have interfered ex post facto, to transfer the slave to another master, without establishing any general recognition of his legal personality : 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."

$ 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.' 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 condition 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 sustained equally between alien as between native subjects, and property in slaves was recognized in the transactions of commerce 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

· Heineccius: Hist. Jur. Civ. Lib. i. $ 174. Smith's Dict. Antig. 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. 38, 3, 11. Constitution of Claudius ; v. Suetonius, Claud. 25. See also Savigny, H. R. R. Bd. 2, p. 34.

? 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 modern sense of public international 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. 329. 9 Georgia R. 581.

* Whatever may have been the opinions of the great moralists of antiquity as to the

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the rights of persons, the Institutes begin with the simple declaration, that human beings are either freemen or slaves, Lib. I. tit. 3. Summa igitur divisio de jure personarum hæc est, quod omnes aut liberi aut servi.'

$ 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 modern 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 natural 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 jurisdictions), 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.?

$ 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 recognize 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 foriner 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 necessary constituent of human society. See Wallon: Hist. de l'Esclavage dans l'Antiquité, lie Par. c. 11;-a very full account of the opinions of the leading minds of Greece on this point.

Whatever may have 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 Epistolæ ad Familiares, Lib. i. ep. 2, § 4, 14, Cic. ad Quintum fratrem ; Lib. v. ep. 9, § 2, Vatinius ad Cic., ad fin; Lib. xiii. ep. 77. $ 3, Cic. ad P. Sulpicium, Imperatorem,

The name of the Title is De Statu hominum ; the slave was homo, and not persona ; it is no division of the rights of persons to say some men have the rights of persons and some have not. See ante § 44.

Comparc $$ 10, 19, 39.

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