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166 EFFECT OF CONVERSION.
ownership. The question, it is to be remembered, is not one of a doctrine of the Christian faith or morals, either in the apprehension of the Christian church or of an individual clothed with judicial power, but simply of the existence of a rule having the same historical support 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 recognized and received as an indication of natural reason. It is a question of the juridical action of nations which have had jurisdiction over negroes and Indians, enslaved while heathens, and afterwards baptized and Christianized.
It would depend, also, upon the juridical action of different 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 law of nations. If generally, wherever Moors, negroes, or Indians were under the legislative (juridical) power of Europeans, 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, irrespectively of local customary law and statutes (jus proprium), a person of one of those races would be the subject of legal relations in the same manner as a person of any other race.
§ 169. It would be difficult to discover any general harmony of practice in this respect among civilized nations, at any particular 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 to the practice of Mohammedan states
EFFECT ON CHATTEL BLAVEBT. 167
in analogous circumstances, it does not appear that they ever have recognized the religion of persons held in bondage as determining their condition in respect to the possession of personal liberty, or considered the conversion of a slave, of a different 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;J 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: Hamilton'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 Mussulman territory, he is free; because, when the slaves from the countries around deserted their masters, and came unto, and embraced the doctrines of the prophet, he declared, 'These are the freedmen of God;' and also, because the slave, at the time he delivers himself up, is a Mussulman, and bondage is not established in a Mussulman 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 law 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 Mokatibt—slaves partially emancipated under some conditions of service or payment Mazoont—slaves licensed to trade There are slaves transferable and others not.
1 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. "Ac mos est ibi servos servos permanere, quamvis religionem Mahumetis ejuraverint, et Christiana imbuantur. Quod absurdum videri non debet, cum sententia sit approbata nrvitutem personarum et dominicam potestatem legi divinas non adversari. Didaau Cotar. ad nq. peccatum, p. 2, § 11. Verum recens est Pii Quinti constitutio exstans ad Petrnm Mathseum. In Summa Constitutionum summorum Pontificum captivos fieri liberos, suscepto sacro baptismate, qui sub tutelamcivis cujuspiam Komani confugeriot" Vinnius: Comm. Lib. i., tit. 3. "Ac mos est (in Lusitania aliisque Hispanise partibus) eo quod servum esse non adversaretur legi Divinas. 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 carry to the colony [Hispaniola, A. D. 1501] negro slaves born among Christians; (cites Herrera, Hist. Ind. decad. 1, Lib. It., 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."
16& LAW OF NATIONS HOW KNOWN.
tain whether they were regarded as chattel slaves, or as legal persons held to services, as were the feudal serfs of the same countries. In other European states, the slavery of Moors, negroes, 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 inhabitants, 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 dominion 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 obligations, (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
'The authorities showing this will be presented in a chapter treating of the private international law in connection with slavery during the colonial period.
LAW OF NATIONS HOW KNOWN. 169
shown in § 112, it is chattel slavery alone that can be the same status 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 obligations 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 Christianity, such slavery had been specially supported by positive legislation, it would therein be more doubtful whether that continued 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 discriminate 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 admitted) lawfully held in slavery, and the question was of the continuances of that condition, it would become necessary for the tribunal to decide whether it was supported in the forum by force of the law of nations, or whether its continuance would
1 See ante, §§ 94, 101. « See ante, § 68.
170 THE ANCIENT PRACTICE.
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 seems probable that, in the first instances of an inquiry as to the legal condition of a Christianized Moor, negro, or Indian, judicial tribunals would have referred to the former legislative (juridical) action of European states in reference to the slavery of whites, or persons born in Europe. For, as has been shown, the slavery of infidels and heathen negroes and Indians was of the same origin; that is, was ascribed to principles traceable in the history of jurisprudence as part of the customary law of the civilized world. In tracing the decay of that chattel slavery which, without any distinction of race or physical 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 doctrines 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 freedom, 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, Moors and Indians could not be supported in England or the colonies under the law of villenage,' it would be a question which might be differently answered at different periods between the first planting of the English colonies in America and the end of the 18th century, whether the law of nations, en- 1 See ante, §§ 110, 113, 114. • See ante, §§ 160-162. • See arte § 141.