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LAW EXTENDING TO ALIENS. 201
from imperial or provincial legislation, or by judicial application of rules of natural reason, according to the criteria above referred 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 so-called aboriginal inhabitants.
§ 198. In order therefore to determine the relations, rights and duties constituting the legal 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 jurisdiction, (there being as yet no positive legislation, and no national judicial precedents in respect to persons known as the inhabitants of that jurisdiction,) reference must be had to such indications 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 202 FORCE OF UNIVERSAL JURISPRUDENCE. any particular territory; or such as the tribunal might suppose the state would apply independently of all territorial distinctions. 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 judicially 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 determine 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 of Moors, African negroes, and Indians, at least while heathen or infidel, even in England. But even if it must be held 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, 84, 96-101.
BIGHTS OF THE ABORIGINES. 203
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 contrary (in English jurisprudence) to the laws of God, according to the principle which has been noticed in a preceding section.8 Upon the occupation of the western continent by the European 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 barbarians, 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 allowed, in most cases, a practical denial of all legal rights in the heathen and savage, as opposed to the interests of the Christian
1 Whether the English law, meaning the territorial law of the British islands, attributes, 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 geographical 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 aliens to the territory of England. See pott, ch. vii.
'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 in America, William Adams' Law and Custom of Slavery in British India: London, 1840. That in the British possessions on the coast 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.
204 HISTORY OF THE ABORIGINES.
or European colonist.1 The right of the native inhabitants in the lands they occupied was 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.* The generally received doctrines of the difference in rights between 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 English colonies the aboriginal inhabitants receded before the advancing 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 special g'Masi-international laws.3 In the earlier history of all the colonies there are instances of their being reduced to slavery by
1 1 Story's Comm. §§ 1-10. 1 Banc. 145, 167, 270. 1 Hildr. 69, 410. But 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 colonial 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. 331. Mass. Laws, 1633, pout 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. "Indis non debere auferri imperium ideo quia sunt pec- catores, vel ideo quia non sunt Christiani." See Mackintosh, Hist. Eth. Phil. p. 109. The same opinion was 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, Iutrod. p. 40. During the sixteenth century, in wars of European states the captor had a property in his prisoner, which was assignable, 1 Motley's Rise of D. R. p. 151. Bynkcrshoek, Quaist. 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 v. Sanford, 19 Howard R. 403, 404. Kent's Comm. Lect LI.
AFRICANS IN AMERICA. 205
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 contrary 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 occasion to a wider and more important application of that modification 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 colonies 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 1562.3 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 colonists of Massachusetts, but that they had a law against slavery, except of prisoners taken in war. The Massachusetts Fundamentals 1641, sanction slavery by purchase.5 Also the law of
1 2 Winthrop's N. E. 360. 1 Banc. 168. 1 Hild. pp. 37, 239, 251, 269, 489, 490, 538, 557; 2 do. 271. Ilewit's Hist, of S. Car. vol. i. p. 78, and post, ch. vi.
'See ante, § 166. During the first century after the discovery of America, natives 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 continent, see 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 I., and Charles II., "and in the year 1792, twenty-six acts of parliament, encouraging and sanctioning the trade, could be enumerated." Walsh's Appeal, 326, 327.
'Beverley's Virginia, 35. 1 Banc. 177.
• 1 Hutch. Hist., 3d ed. p. 393. See post, ch. vi. In Josselyn'e Voyage, 1638,