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LAW OP NATIONS IN THE LAW OF A STATE. 171
taring into the common law of England as a judicially received indication of natural reason, could be held to support the slavery of Christianized Moors, negroes or Indians, considered either as a chattel condition or as a relation between legal persons.
§ 173. While the general principle is 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 remembered 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 history of the Roman law, and as has been explained in the second chapter, the law of nations must, in any state wherein laws have 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;s that it changes by the several action of different nations, acting independently of each other, it becomes the duty of the historical jurist, and of the judicial tribunal, rather to look for a part of their national common law as being the state's conception of universal jurisprudence, 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 independent of every earthly power in the acceptation and enforcement of any rule which may be attributed to Christianity. Though some principles juridically applied by European nations may be attributed to, or have been historically derived from,
1 Ante §§ 94-97. * Ante § 39.
172 CHRISTIANITY IN COMMON LAW.
the Christian code of morals, their legal authority must depend upon their adoption by each several state 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 existed as a customary law) of little or no juridical force. Indeed when, at any period of the Christian era, Christianity is judicially 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 naoratiores)" have agreed in sustaining with the force of positive law. Otherwise it must be identified with the conscience of the tribunal, 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 consequence of that doctrine, it should make a contrary rule to be
1 Milton in his Defensio pro Populo Anglico.no, 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 traditionary view of the common law of his time; see Hale's Hist, of Com. L., by Remmington, p. 5, n. B. Noy's Maxims, 19,—"Four lessons to be observed where contrary laws come in question. 1. The inferior law must give place to the superior. 2. The law general must yield to the law special 8. 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 ystemof 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.
1 Ante p. 33, note. 3 Ante § 101 and note.
LAW OF NATIONS IN ENGLISH LAW. 178
law in another part. It does not follow that, if the supreme 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 determine the rights and obligations of private persons, in those interests and actions which are beyond the control of single states,* or where persons are recognized as sustaining rights and obligations in relations which have become existent under the juridical and legislative power of some foreign state.'
The English judicial decisions which have this international bearing, in connection with African slavery, will be noticed hereafter.
But the recognition by the state of a principle, as part of
1 Mr. Hfldreth, (Hilt. 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 slavery 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 law of the colony proceeded from the same political source.
* Ante, g 10. * 'Ante, § 68.
174 STATUTES OF COMMERCE.
the law of nations, may be shown from statutory enactments. And since 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 matters 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 recognition of that usage and practice as universally allowed, or as a law of nations, especially when the statutes are intended to operate on the intercourse of persons subject to different political sovereigns. When a statute of 1697, 8, 9, and 10, Wm. 3, c. 26, entitled "An Act to settle the trade to Africa," commences—" Whereas the trade to Africa is highly beneficial and advantageous to this kingdom, and to the plantations and colonies 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 legal nature of their condition, then spoken of as objects of a commercial enterprise, must be explained by the law of nations then acknowledged 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 advantageous to the kingdom and its colonies.'
1 That the law merchant is recognized as part of the common law of England, see Co. Litt, 2 Inst., c 80
* See 8 Banc, p. 414; and compare 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. incorporated a third African, or Guinea, company which undertook to supply the Britub West Indies with 3,000 negroes annually. See 1 Hiine, p. 297—311. 2 Anderson's Hist Com., p. «27.
THE A88IENTO TREATY. 175
Treaties are as much juridical acts on the part of the state or sovereign as are ordinary statutes; though the objects immediately contemplated may be beyond the realm. They may create rights and obligations which the national courts will enforce. 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 (commonly called El Pacto del Assiento de Negros), 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."'
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 colonies, 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 merchandise 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 under penalty to act as a factor or factors, agent or agents, for the said company, or any other person 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 coast of Africa, is not the less contemplated, by the Act of 1749-50, because in the twenty-ninth section it is enacted—" that no commander or master of any
1 Dnmont's Corps Diplomatique, Tom. viii., p. 395, and Wheaton's L. of Nations, p. 586; refers Durnont, Tom. viii., 2 me. partie, p. 344.
* "When [about 1750] the exclusive privileges of the Royal African Company expired, 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.