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326 LAW OF MINOR APPRENTICES.
authority would be identified with the local municipal law thereof, and be derived from the local power; though it would be international law from the alien character of the persons to whom it should be applied; a law having the same character as that by which the condition of the African or Indian, domiciled in some one colony, would be determined in any other particular jurisdiction of the empire in which he might be found, i. e. municipal and local law in its authority; international by its application to those persons thus regarded as alien in respect to that jurisdiction.
§ 248. The law therefore which applied in any one of the several jurisdictions of the British empire, as private international law to these two descriptions of persons, viz.: indentured white servants and Africans or Indians having a domicil in some other one of the colonies must be ascertained in the same manner as if those jurisdictions severally constituted independent national jurisdictions, in all respects.
§ 249. There existed also, in the several jurisdictions of the British Empire, another class of persons who by law were obliged to render service to private masters, viz.: minor apprentices; and in case of the removal of such apprentices from the place of their domicil, or in case of their absconding and being found in some jurisdiction other than that in which their obligations first existed, the question of the continuation of the rights and obligations of the parties to the relation would resemble those which in the case of slaves and indentured servants in like circumstances, would be decided by private international law, as above distinguished from the common law having national extent.
But, though the condition of a minor apprentice was created by indenture, and was similar in its temporal limitation and some other incidents to that of the so-called redemptioners, it had a totally different foundation. The relation of master and apprentice was a continuation of, or substitute for, that of parent and child, or that of guardian and ward. The power of the master was a delegation of the patria potestas, and with the right to service was associated a personal duty in respect to the apprentice, which was not recognized in the case of the in
LAW OF MINOR APPRENTICES. 327
dentured or purchased bond-servant. Though generally modified by statute law, the relation was one defined and recognized by the common law of England: and while it had a local character, in being intended to exist only in certain districts, such as counties or towns, and under the supervision of the civil authorities therein, so that it could not be said to continue between the parties if permanently removing from the jurisdiction in which it had been created, yet, as between parties domiciled elsewhere, the right of a master to control the person of the fugitive apprentice may have been recognized in the several colonies as a right at common law, that is, the common law of England having personal extent.
OF THE PRIVATE INTERNATIONAL LAW OF THE COLONIAL PERIOD AFFECTING CONDITIONS OF FREEDOM AND BONDAGE. THE SUBJECT CONTINUED. OF ITS ACTUAL EFFECT OR OPERATION.
§ 250. In the preceding chapter the conditions, created by the public municipal law, have been indicated under which a private international law, affecting freedom and bondage, might exist in the colonies. It is now necessary to ascertain its actual operation or effect.
It has been shown, in the second chapter, that the private international law, like every other rule which has the force of law for private persons, is known or promulgated either from a judicial or a legislative source; being, in either case, equally positive law, in the sense of the ascertained will of the state, though, in ordinary parlance, the term "positive law" is applied only to law known by legislative enactment; positive legislation being more authoritative than law judicially ascertained, only in this, that it is a more direct method of ascertaining the will of the supreme source of law on any particular topic; but, in the natural order of existence, the law judicially ascertained precedes positive legislation, and always exists as of necessity.1
The condition, in respect to freedom or bondage of persons of the classes before described, having a domicil in one of the colonies, when appearing as aliens within another jurisdiction of the empire, might have been determined either by legislation,
1 Ante, §§ 17, 29.
INTEBNATIONAL LEGISLATION. 329
having direct international reference to such persons, or by the judicial application of general principles of international jurisprudence. This judicial source of law, for the reason just stated, viz., its naturally prior existence, should, in the historical order, be first examined.
§ 251. It has, however, been convenient to present, in the preceding chapter, the legislation of the several colonies having this extent among the statutes which operated as municipal (internal) law. It consisted principally in statutes limiting the importation of negro and Indian slaves and servants. With the exception of the eighth article of the agreement between the New England colonies, in 1643, and the seventh in that of 1672,1 so far as they took effect as private laws. No laws appear to have been enacted respecting slaves or servants escaped from other jurisdictions, or brought in by their owners without the intention either to sell them or to acquire a domicil.
It would have been consistent with the view herein before taken of the foundation and extent of two systems of personal laws, obtaining in the colonial districts of the empire, if acts had been passed by colonial governments prohibiting or regulating the entry of free persons of African or Indian race domiciled in other colonies. There does not, however, appear to have been any such exercise of the legislative power. In the earlier history of the colonies, there were some instances of local legislation prohibiting the ingress, or compelling the departure of persons equally entitled, with the other inhabitants constituting the legislating majority, to the enjoyment of individual and relative rights under the law of England. Such legislation, in most of these cases, was caused by the ideas, then generally prevalent, respecting the duty of a political state in relation to the religious instruction of the subject, which, soon after the extension of the English dominion over the whole Atlantic seaboard, and the manifestation of a very great variety in religious belief among the inhabitants of all the colonies, became essentially modified. And, whether the colonial governments con
1 Ante, pp. 268, 269.
330 THE JUDICIAL PRACTICE.
ceived such legislation beyond their powers or not, those laws were repealed, or fell into neglect.
§ 252. There are, probably, no extant records of judicial determinations, by the colonial courts, of questions relating to status or condition, having the international or quasi-international character (which was before indicated. If the eighth article of the agreement between the New England colonies, in 1643, and the seventh, in that of 1672, may be presumed to have been supplemental to the unwritten law, it might be argued from their existence, that the courts in those colonies could not, without them, have maintained the master's claim, in pais, over the persons designated by the term servants. But it is, perhaps, equally just to infer that the object of the compact was, not so much to give a legal existence to the right of the alien owner, as to facilitate its peaceable establishment by giving the local authorities power to adjudicate on a claim or demand to be made by him before them, in the first instance ; and, after the judicial establishment of the right, to maintain, in his behalf, the custody of the slave or servant while within the limits of the forum, or, it may be said, to deliver up the slave or servant to the master, when he could repass the territorial limits of the forum.1
§ 253. As to indentured servants, it is not unlikely that a variety of practice obtained in the different colonies as to the international recognition of their relations towards the persons claiming their services under the law of another jurisdiction. From the order sent out from England, in 1633," the Virginian order in reference to Dromond's servant,3 and the clauses just referred to in the New England Articles, it may be inferred that the judicial tribunals did not, generally, consider it their pro
1 It is to be noticed that even if the relation between the alien owner and servant or slave was, in any colony, supported by the unwritten private international law, yet the owner could not, by it alone, make any claim upon the public authority for the delivery of such servant or slave. He would have the right to seize the body of such servant or slave, (making a claim in pais,) but then his right could be determined upon and a delivery be made to him only in some action brought in behalf of the alleged servant or slave. Under the compact only could there be a delivery on claim.
'Ante, p. 229, note 1
* Ante, p. 281. ,