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THE JUDICIAL PRACTICE. 331
vince to enforce the obligations of such persons, in the absence of legislative enactment.1
As has been already observed, the relation of minor apprentices to their masters may have been at the same time judicially recognized, in case of the claim of an alien master to a fugitive apprentice, under the national law having a personal extent to subjects of English race. But it is highly probable that the articles in the New England compacts were practically applied to this class of persons, as well as to others bound to a service for years.
§ 254. It is also highly probable that, under the New England compacts, the term "servants" was taken to include negro slaves. But, whatever inference might be drawn from this for or against the validity of the master's right under the unwritten international law, there can be little doubt that, in all the colonies, slavery continued to be judicially supported in the case of negro slaves introduced from other jurisdictions, except so far as such introduction may have been limited by legislative enactment ; and this, whether such slaves were brought in to be permanent residents or were only sojourners, either accompanying a non-resident owner or being fugitives. And this, it may be supposed, was the case even in those colonies, if any such there were, where the local slavery may have been considered the condition of a legal person, as contrasted with chattel slavery." And even in Massachusetts, if there was a time, prior to the Revolution, when no domiciled negro could have been held there as a slave, it is probable that the relation between owners and slaves, domiciled elsewhere, would have been judicially maintained.
§ 255. Of all the cases decided in the English courts, which were cited in the fourth chapter,1 that of the negro, Somerset,
1 But since, in the earlier period of the colonial history, persons were occasionally banished from some one of the colonies under a sentence to be sold as servants in some other colony, it was evidently presupposed that such sentence would be recognized in the latter.
'It may be inferred that this was the case, because the contrary has never been asserted in the cases which have occurred since that period.
* Among these might have been noted, next to Butts vs. Penny, Sir Thomas Grantham's case, (1686,) as given in 3 Mod. R. 120; "He bought a monster in the Indies, which was a man of that country, who had the perfect shape of a child growing out of his breast as an excrescency, all but the head. This man he brought hither, and exposed to the sight of the people for profit The Indian turned Christian and was baptized, and was detained from his master. The master brought a homine replegiando. The sheriff returned that he had replevied the body, but did not say the body in which Sir Thomas claimed a property, whereupon he was ordered to amend his return. And then the Court of Common Pleas bailed him." The marginal note is: "Homine replegiando lies for a baptized infidel detained from his master."
332 THE SCOTCH CASES.
is the only one in which the question of freedom and servitude appears as one to be decided by private international law. The circumstances of that case have been already stated in the opinion delivered by Mansfield. The master and slave were recognized to be the domiciled inhabitants of a colony; the master having done no act by which he acquired a domicil in England, and the power of the negro to acquire it separately, animo manendi, by having the intention to do so, manifestly depended on an anterior question, whether he was or was not a free person.1
§ 256. Two Scotch cases are cited in the notes to the report of Somerset's case, in 20 Howell's St. Tr., from Morrison's Diet, of Decisions, vol. xxxiii, tit. Slave. The first, entitled Sheddan against a negro, was in 1757. The owner proposed to carry the slave back to Virginia and brought his claim before the courts, when the latter refused to go. The negro died before any decision could be rendered. The other case, entitled, Joseph Knight, a negro, against John Wedderburne, occurred 1775-1778. The negro had been in Scotland several years and had married there, still rendering services, but after claimed to be free. On pleading, the master claimed a right either to his perpetual service, in Scotland, or to send him back to the plantations—Jamaica.
The case being heard before the sheriff, he found "that the state of slavery is not recognized by the laws of this kingdom,*
"But it does not appear that the return was ever argued, or that the court gave any opinion in this case, and, therefore, nothing can be inferred from it."—Hargrare'i note, 20 Howell's St. Tr. 55.
1 See ante, note at the foot of page 109.
1 The 15 Geo. 3, cap. 28, (1775,) is an act for altering, explaining, and amending several acts of the parliament of Scotland, respecting colliers, coal-bearers, and salters; recites, "Whereas by the statute law of Scotland, as explained by the judges of the courts of law there, many colliers, <fcc, are in a state of slavery or bondage, bound to the collieries and saltworks where they work, for life, transferable with the collieries and saltworks, when the original masters have no farther use for them; and whereas persons are discouraged and prevented from learning the art or business of colliers, &c, by their becoming bound to the collieries and saltworks for life, where they shall work for the space of one year, &c." From which language it would appear that the servitude arose from judicial constructions of the first contract. This statute was not sufficient to free these people, another being passed in 1799. See also, 1 Barrington on Stat. 1 Rich. 2, note 9, in 3d ed., and the argument in Knight agat. Wedderburne, which is given in 20 Howell's State Tr., in notes to Somerset's case.
FORCE OK BRITISH PRECEDENTS. 333
and repelled the defender's claim to a perpetual service." On being heard before the Lords of Session, the court "were of opinion that the dominion assumed over this negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent; that, therefore, the defender had no right to the negro's service for any space of time, nor to send him out of the country against his consent; that the negro was likewise protected under the act of 1701, c. 6, (the act for preventing wrongous imprisonment, and against undue delays in trials,) from being sent out of the country against his own consent. The judgments of the sheriff were approved of," &c.'
§ 257. Cases of this kind occurring in the British islands during the colonial period will have a peculiar value in indicating the relative extent of the various personal laws prevailing in the British Empire, and how far the rights and obligations incident to the personal condition or status of private persons were sustained by them, independently of the territorial limits of the local jurisdiction.* But so far as the several jurisdictions of the empire, in determining the personal condition of private persons were, towards each other, in the relation of distinct independent nationalities, these decisions will have had in the colonies, only the force of foreign judicial decisions.
§ 258. The so-called rule of comity, regulating, in the forum of jurisdiction, the international, operation of foreign laws,' has been described as being always operative, except where limited by local statute or usage/ It may be thought then that, if 334 FORCE OF FOREIGN PRECEDENTS.
1 1 Burge's Comm. on Col. and For. Law, p. 741. Boswell, who was in Edinburgh at the time of the argument, 1777, says in his Life of Johnson, "a great majority of the Lords of Session decided for the negro. But four of their number, the Lord President, Lord Elliock, Lord Monboddo, and Lord Covington resolutely maintained the lawfulness of a status, which has been acknowledged in all ages and countries, and that, when freedom flourished, as in old Greece and Rome." And on a preceding page he has given an argument, dictated by Dr. Johnson, in favor of the negro's freedom, together with some observations of his own maintaining the other side.
1 Ante, § 243. * Ante, § 88. * Ante, § 122.
valid at all, this rule should he sufficient in itself, and exclude any rule, otherwise derived, for determining in the forum the international allowance of the effects of foreign laws; and that any reference to foreign precedents for this purpose is either superfluous or inconsistent with the rule. This may be true, and the proper doctrine seems to be that, unless the foreign precedents have been adopted into the local customary law by some previous judicial action, the so-called rule of comity must control the action of the tribunal. But since the judicial application of this rule involves inquiry into the personal extent of the local law, as being either limited or universal, and through this the judicial recognition of a universal jurisprudence or law of nations forming part of the law of the forum,1 a reference to foreign precedents is generally indispensable in the practical application of the rule of comity, where local usage or statute is wanting: and hence in every forum or jurisdiction a private international law is formed which may be juristically spoken of as existing in or among all civilized states, or, as a body of rules which, being known from the customary juridical action of many states,* obtains judicial recognition in any supposed forum of jurisdiction.3 There is, at least, a constantly increasing presumption that the private international law of any forum corresponds with the rules received contemporaneously in other countries in like cases.
For this reason the judicial decisions of European courts, during the colonial period, in cases concerning the international recognition of personal condition or status and the relation of master and slave, and the general rules received by them in such cases, according to the testimony of approved jurists, may, with the English cases, be referred to as illustrations of a private international law4 taking effect in and between the several
1 Ante, §§ 89-101.
• Ante, §§ 36, 76.
9 As such it is spoken of as existing independently of the will of some one particular state, (Curtis, J., in 19 Howard R. 594, 595,) and becomes the special subject of treatis 'S like Story's Conflict of Laws, Foslix's Droit International Privi", and the fourth volume of Mr. Phillimore's elaborate treatise on International Law.
* International law is here supposed to have customary existence, proved or illustrated by foreign juridical authority, usually judicial and juristical. Foreign leguia
[LAW IN THE NETHERLANDS. 335
jurisdictions of the empire, so far as they were in similar circumstances.
The proper force of these precedents under an application of the rule of comity in any particular jurisdiction of the empire, and as being evidence of rules receivable for universal jurisprudence or the law of nations, will be separately examined.
§ 259. There are not many judicial decisions on record which can be referred to as having had this kind of authority during the colonial period. Burge, in Commentaries on Colonial and Foreign Law, vol. I., p. 739, cites from Christinseus, decis. tom, iv., decis. 80, n. 4, a case in which the supreme council of Mechlin, in 1531, refused to issue a warrant to take a person who had escaped from Spain, where he had been bought and legally held in slavery. The reason given for the decision is—" propter libertatis personarum usum hie per aliquot ssecula continue observatum." The same case seems to have been noticed in Zypse, Not. Belg., 1. 6, p. 180.
Groenewegen, De Legibus Abrogatis et Inusitatis (1649,) L. I., tit. 8, is another authority as to the law of the Netherlands on this point. "Quamvis servos habere Christianis nefas non sit, si modo herili in servos potestate non abutantur, sed eos secundum Christianam lenitatem et mansuetudinem tractant. Epist. ad Phil. Ephes. 6 vers. 5, cum seqq. Colos. 3, 22. Tit. 29. 1 Petr. 2, 18. 1 Corinth. 7, 20. 1 Timoth. 6, 1. Amis de Bepub. 3, sect. 4 & 7, d e Pol. I. i. c. 4. Servitutem tamen adeo exhorruere majores nostri ut uno ferme libertatis nomine, utque fama Grrecis juxta ac Latinis monumentis maxime celebrati sunt Germani, teste Philippo Culverio, Germ. Antiq. I. I. c. 38, in princ., atque hinc servitus paulatim ab usu recessit, ejus nomen hodie apud nos exolevit; adeo quidem ut servi, qui aliunde hue adducuntur, simul ac imperii nostri fines intrarunt, invitis ipsorum dominis ad libertatem proclamare possint ; id quod et aliorum Christianorum gentium moribus receptum est, vide Costum. van Antwerp, tit. 38, art. 1,2. Grot. Introduct. I. 1, part 4, §2. Gudelin dejure noviss. 1.1, c. 4. Perez,
linn also may be declaratory of this customary law, but there is a presumption that it is intended to be alterative or supplementary to some supposed deficiency.