« 이전계속 »
THE DISTINCTION OF RACE. 321
mined like that of the inhabitant of English birth or descent, by a law resting in part on the national authority; which, to that extent, continued to be a law of his condition when appearing in any other jurisdiction of the Empire than that of which he became a domiciled inhabitant.
§ 243. On the other hand, aliens to the empire of African or Indian race, if not every alien of a barbarian or heathen race, were without the protection given by public international law to foreigners of European birth, and did not, as aliens, sustain relations known to that law and incident to foreign commerce and political intercourse falling within the scope of the national imperial authority;' unless indeed the rights of a foreign owner in respect to a slave of one of those races might receive protection from the national authority, as forming an incident of the relations of such alien owners. So far as the slave trade was foreign commerce, or consisted only in the importation of chattel slaves from abroad, it would seem to have fallen within the legislative province of the imperial Government, rather than in that of the several colonial authorities. So far as such African or Indian alien was recognized as a legal person, his condition was determined entirely by the local authority of that particular jurisdiction of the empire in which he might be found. And, whether chattel slavery is to be taken to have been supported by a law proceeding from the national authority, at the time of its introduction into America, or not, yet,
1 By Mr. Justice Daniel, in Dred Scott v. Sandford, 19 Howard, p. 475; "Nowthe following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know—that the African negro race never have been acknowledged as belonging to the family of nations; that as amongst them there never has been known or recognized by the inhabitants of other countries any thing partaking of the character of nationality, or civil or political polity; that this race has been by all the nations of Europe regarded as subjects of capture or purchase; as subjects of commerce or traffic; and that the introduction of that race into every section of this country was not as members of civil or political society, but as slaves, as property in the strictest sense of the term."
There is no connection between the political nonentity of African communities and the status of Africans when they appear in foreign countries. The fact that negroes did not enter this country as the subjects or members of some recognized foreign state or nation is, in the section above, noticed only as indicating the source of law, imperial and national, or colonial and local, upon which their condition depended. The fact did not determine their condition as bond or free. An African savage entering a European jurisdiction as a voluntary immigrant would, jure gentium, have been as free of condition as any immigrant of European race.
322 LOCATION OF POWER.
as has been shown in the preceding chapters, the power of limitting, in the first instance, and, finally, of prohibiting the importation of chattel slaves from abroad was claimed by the several colonial legislatures, each for its own jurisdiction. The power to regulate the introduction by land, or from the other colonies, of Africans and Indians held in servitude appears to have always been left to their discretion, without controversy.
§ 244. The condition of the African or Indian, when once settled within a colonial jurisdiction, either by becoming a free domiciled inhabitant, or the property of a resident, appears to have always been exclusively within the prerogative of the local sovereignty. It would seem, from the personal distinction which constantly obtained in the application of municipal (internal) laws in the American colonies, that there was no law ^fleeting the condition of the African or Indian domiciled subject, having like national foundation and extent with the common law, applied to the white colonist. For while the legal condition of the African or Indian inhabitant, in any particular jurisdiction, might vary therein, from chattel slavery—the negation of all legal rights—to the possession of all individual and relative rights of a private person known to the common law of England, that condition rested, apparently, only on the local law of that jurisdiction, and was not supported therein by a law of the national power, having national extent and recognition as a law of the national or imperial jurisdiction. And it has been shown that even the terms of those royal charters which guaranteed to the colonists, generally, and their descendants, the rights of subjects of English birth, must be interpreted with reference to this limitation existing in the law of nations, or universal jurisprudence, then received as an authoritative exposition of natural reason and applied in municipal and international law,1 and that therefore the condition of Indians and negroes, born within the colonial jurisdictions, was not determined by that personal law of privilege, derived from the common law of England, which had, for whites or European subjects, a national extent. What
Ante, § 202.
CONDITION BY NATIONAL LAW. 323
ever support the condition of the African or Indian might have in the sovereignty held by the imperial government, while considered an alien to the British empire,—when he became a domiciled subject, his relations and rights were determined only by the law of the particular district in which he might be found;—by the municipal (internal) law thereof, if therein domiciled, and by the international law as received and applied in that jurisdiction by the local sovereignty, if domiciled in some other part of the empire: each particular jurisdiction being, in respect to aliens of these races, independent in its interpretation of private international law; except so far as that law concerned relations of foreign commerce and intercourse. And there was no law, resting on the national authority and having national extent, by which, as a personal law, the condition of such persons domiciled in some one particular jurisdiction could be determined throughout the empire, independently of the local authority of each several jurisdiction; not even if, while being such alien in respect to such several jurisdiction, he were claimed by other persons as an object of property. Because, as before shown, it was only in the relations of foreign commerce that that condition received any support from the imperial power. If claimed as property of a master, domiciled in some other division of the empire, who by the law having national extent enjoyed the individual or absolute right of private property, still his property in the African or Indian slave would not rest upon such national law, unless the common law of England could be taken, at the time, to admit that kind of property or to include the doctrines of the historical law of nations (jus gentium) as known at the first introduction of slaves into America.1
§ 245. It has been shown in the fourth chapter, that—if at any period the doctrines of the historical law of nations, in respect to chattel slavery, had had force in England itself, as part of the common law, either those principles were applied to heathen negroes or Indians only while alien, and before becoming Christianized, and, on becoming domiciled inhabitants and 324 LIMITATION OF COMMON LAW. baptized, their legal condition became determined by some law originating in the local juridical power, some jus proprium; or else, that the law of nations must itself be taken to have changed in the judicial recognition of English courts, during the colonial period; and, that in England, towards the close of that period, the law which had attributed the possession of individual rights and a capacity for relative rights to all persons of the white or European race, irrespectively of their national domicil, was taken to extend to all natural persons of whatever race. The question of the recognition or non-recognition, in England, of such a doctrine, in the application of private international law, is to be considered in the next two chapters. It will here be assumed that the historical facts stated in the fourth chapter, the course of colonial legislation which has been shown in the sixth, together with the judicial authorities which will be set forth in the next chapter, indicate that such a change in the law of nations did take place at some period prior to the American Revolution;' and that, whenever it may have occurred, it must be taken to have modified the common law of England in its national extent throughout the empire. So that, regarded as the personal law supporting the liberties or privileges of the master, it did not, or at least at a point of time shortly before the Revolution, did not support in any one part of the empire the slavery of any Indian or African domiciled in another part: not even if it is to be admitted that, while the African slave trade continued to be sanctioned by the British government, the title to right of ownership in heathen Africans, when imported by the traders, rested on common law, or the "law merchant."
1 Compare ante, § 138.
§ 246. So, on the other hand, although the condition of a person of the African or Indian race, domiciled in any one jurisdiction of the Empire, might, under the local law of that jurisdiction, consist in rights of the same legal nature as those which characterized the condition of an inhabitant of the same LAW OF INDENTURED BONDSMEN. 325
1 This assumption is made here, it is to be observed, in describing the character or authority (as being either national or local) of the law upon which the question of the continuance of the relation of master and slave beyond the place of their domicil would depend. The further proof can only be given by an analysis of the judicial decisions here referred to.
jurisdiction who was of English or European race, those rights were the result of a law confined in its territorial extent to the jurisdiction, and not of a law having national extent, and therefore their support in any other part of the empire would depend upon the private international law, as received and applied therein by the local source of power.
§ 247. If the bondage of indentured white servants or the redemptioners, was a relation which could not exist in England itself, and was created by a law having special reference to the colonies, as parts of the empire in which it was to be maintained, it was still a condition which originated under the imperial or national source of law. At least the law under which such persons were sent out in bondage, from England to America, must be taken to have had national jurisdiction to that extent. And it appears to have been recognized as such by the reception of those persons into all the various colonies, under the obligations originally created in the mother country. But, from the power assumed by the several colonial legislatures over the condition of this class of persons, when once incorporated into the resident population of any colony, the particular rights and obligations attending their servile condition and the period of their continuance in servitude, seem to have rested in each colony upon the local law alone. If the bondage of this class of persons, when domiciled in the colonies, did thus lose the support of statutes resting on the imperial authority, and if also the right of the master to the services of such bondsman was not supported by the common law having national extent, the international recognition of this condition in such persons, when found in any other jurisdiction of the empire than that in which they were domiciled, would depend only upon the will of the local authority in that particular jurisdiction, and the view held by it of the true doctrine of private international law (that is, what rules ought to be applied as private international law,) relative to such a condition of private persons. The only law to determine the condition of this class of aliens in the several parts of the empire, at least when they were recognized as having a domicil in some other one of the colonies, would therefore be such as in its