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LAW APPLIED TO MOOBS AND NEGROES. 341
lords. In the case of Jean Boucaut and others, claimed as slaves by Verdelin, at Paris, in the year 1738, (Causes Celèbres, ed., Amsterdam, 1766, tom. 15, p. 30,) M. Tribaud, the advocate for the owner, endeavors to limit the extent of the general principle according to the distinction of race ;—" Le principe est vrai dans le cas où tout autre esclave qu'un esclave nègre arrivera dans ce Royaume."
Two instances of the application of the same rule to Moors or Mohammedans are given by the Procureur du Roi, advocate for the negroes, in the same case, p. 51, "Dans le Journal Chronologique et Historique de D. Pierre de Saint Romuel on voit qu'en l'année 1571 une marchande de Normandie ayant amené a Bordeaux plusieurs Maures pour les vendre, le Parlement de Guyenne, par un arrêt solemnel, les mit tous hors de l'esclavage, parceque la France, mère de liberté, ne permet aucun esclave." He also relates that in the time of Henri III., the Mohammedan captives held as galley slaves in a Spanish public ship, stranded on the French coast, were set at liberty by the king's decree, and sent to Constantinople, notwithstanding the protest of the Spanish ambassador.
The question of ownership in the first case might, from the domicil of the trader and her intention to sell in France, be said to have belonged to internal, not international private law; and the second cannot perhaps be properly considered a judicial precedent, since it was a direct exercise of the sovereign power, to be distinguished from the action of judicial tribunals.1
This case of Boucaut and Verdelin, which was argued before the French admiralty, is the only one similar to that of
1 There is an Abrégé de la République de Bodin, published, London, 1755, chez Jean Nourse, two volumes, 12mo. The preface has no signature. In this abridgment, L. 1, c. 9, it is said, "La France * * elle a même voulu depuis, que tout homme qui mettroit le pied sur ses terres fut libre dès ce moment, sans faire attention qu'il est contre le droit des gens d'enlever à l'étranger passant et maître de l'esclave, un bien qui lui appartient. Les façons de penser sont de mode chez les Français comme les adjustments. Lorsqu'une opinion saisit les esprits elle en devient l'idole."
There is no such remark in the unabridged edition, Paris, 1577, fo., nor can any similar observation be found in Knolles' translation. The Abrégé appears to be that of the President de Lavie, which he afterwards recast and published in 1760, under the title—Des corps politiques et de leurs gouvernements. (See Brunet's Manuel du Libraire, Tome 1, p. 386.) From which it may be inferred that he hod introduced much of his own thought into the abrégé.
342 LAW OF FRANCE. VERDELIN'S SLAVE8.
Somerset and to the Scotch case which is recorded as having occurred in France.
§ 264. In the case occurring at the siege of Metz, the liberty of the escaped slave was declared to be the legal effect of the general customary law of the kingdom—l'ancienne et bonne coutume de France. In those mentioned by Bodin, occurring in Paris and Thoulouse, the freedom was claimed under certain special grants to those cities, declaring that slaves escaping into their municipal jurisdictions should thereby become free. The slaves of Verdelin were also in Paris, and it is important to distinguish whether the judicial decision in their favor was made under the charter of Paris, regarded as a legislative act, altering a rule of the customary unwritten law of the land, or was based on the latter and general principles of private international law therein contained.
Mr. Justice Campbell in Dred Scott's case, 19th Howard's Rep., p. 497, after citing the cases mentioned by Bodin, observes, "The decisions were made upon special ordinances or charters, which contained positive prohibitions of slavery, and where liberty had been granted as a privilege; and the history of Paris furnishes but little support for the boast that she was a "sacro-sancta civitas," where'liberty always had an asylum, or for the "self-complacent rhapsodies" of the French advocates, in the case of Verdelin, which amused the grave lawyers who argued the case of Somerset.1 The case of Verdelin was decided upon a special ordinance, which prescribed the conditions on which West India slaves might be introduced into France, and which had been disregarded by the master."
It would be more accurate to say, that the claim of Verdelin was based upon a special ordinance, &c, or that claims like that of Verdelin might have been supported by the special ordi
1 Mr. Justice Campbell and " the grave lawyers who argued thecase of Somerset," may have had good cause to undervalue the character of Paris as an asylum for liberty; in view of the acts of arbitrary power which had occurred there at various times. But the political or civil misfortune of the Parisians has not the slightest bearing on the question of legal statttt, ns a question of international law. Compare ante, § 47, and note. "The force of these examples is not weakened by the reflection that they were furnished by what was at the time an undeniably despotic state." 1 PhiUimore, p. 842.
LAW OF FRANCE. VERDELIN*S SLAVES. 343
nance. The case was decided in favor of the freedom of the negroes, upon the unwritten or common law of France, as indicated in the authorities and precedents before cited, taking effect in the failure of the master to bring his claim within the protection of positive legislation—the edict of Louis XV., 1716—allowing a certain class of French colonial subjects to bring their slaves into France under certain limitations.1 The detention on the part of the master was sought to be justified on the ground that he had substantially complied with the requisitions of the edict of 1716; and further, while it was admitted that, under the customary or unwritten law of the kingdom, foreign slaves or the slaves of foreigners would become free by being brought into France, it was also urged that the right of the French colonist rested on the juridical will of the national sovereignty expressed in the edict of Louis XIV., 1615, known as the Code Noir, and was therefore a legal right in every part of the French empire ; that the edict of Louis XV., 1716, only gave additional protection to that right in certain cases, but never had the effect of destroying it, and that therefore no French tribunal could refuse to recognize the right of such colo
1 Therefore the language of Mr. Justice Campbell on page 499 of the Report, it open to material exception, where he says—" This sentence [in Somerset's cose,] is distinguishable from those cited from the French courts [apparently intending to include the case of Verdelin's slaves] in this: that there positive prohibitions existed against slavery, and the right to freedom was conferred on the immigrant slave by positive law; whereas here," &c.
The preamble to the edict shows that the prevailing doctrine had been that in such cases slaves became free by the unwritten law, "Commenous avous kti informes qne plusieurs habitants de nos isles de l'Amerique desirent envoyer en France quelques-uns de leurs esclaves, pour les confirmer dans les instructions et dans les exercises de notre religion, et pour leur faire apprendre quelque art et metier, dont les colonies recevroient beaucoup de utilite, par le retour de ces esclaves': raais quo ces habitans craignent que les esclaves ne pretendent 6tre libres en arrivant en France, ce qui pouvoit causer aux dits habitants une perte considerable et les detourner d'un object aussi pieux et aussi utile." Provision is then made by Art. 2, 3, that the colonists may bring with them slaves, for the purposes mentioned ; being required to obtain permission from the governor in the colony, and also to register themselves in the district of disembarkation in France. The 5th article is as follows, "Les esclaves negres, de Tun et de l'autre sexe, qui seront conduits en France par leur maitres, ou qui seront par eux envoyes, ne pourront protendre avoir acquis leur liberté, sous pretexte de leur arrives dans le Royaurae, et seront tenns de retourner dans nos colonies quand leur maitres le jugeront a propos. Mais faute par les maitres des esclaves d'observer les formalites prescrites, par les precedens articles, les dits esclaves seront libres,'et ne pourront etre reclames." M. Denisart, Decisions (Nouvelles, tit. Nigres, as cited by Mr. Hargrave in 20 Howell's State Trials, p. 23, n., appears to have considered the edict, in protecting the master's right, as an alteration of the common law in France.
344 THE GENERAL CUSTOM.
nist, whatever might be the rule of private international law contained in the customary law of France applicable to aliens and their slaves.1
In 1758, Francisque, a negro slave hought hy his master in Hindostan, was brought by him to France. Francisque claimed his liberty: his master contended that he had carefully fulfilled the formalities prescribed by the " Code Noir ;" it was answered that this law only affected African and American slaves, and could not be extended to the East Indies. The slave obtained his liberty.*
§ 265. If, then, at a date shortly before the American Revolution, the practice of British and European judicial tribunals and the writings of private jurists indicated any rule respecting the international recognition of the right of an alien owner and the co-relative obligation of his slave existing under the law of PUFENDOBFF AND VATTEL. 345
1 Tribaud, for the ^master, says, 15, C. C, p. 30, " On ne connoit point, il est mi, d'csclave en France, et quiconque a mis le pied dans ce Royaume est gratifie de la liberty. Mais quelle est l'application, et qu'elle est la distinction, dn pnncipe? Le principe est vrai dans le cas ou tout autre esclave qu'un esclave negre arrivera dansoe Royaume." But he then proceeds to limit the exception still further, applying it only to slaves domiciled in the French colonies. He does not even allow the right to a French merchant arriving in the kingdom with savages whom he should claim to be his slaves. "Par exemple, qu'un estranger, qu'un negociant Francois, arrive dans ca Royaume avec des sauvages qu'il pretendera etre ses esclaves: qu'un Espagnol, qu'un Anglois vienne en ce Royaume, avec des esclaves negres dependans des colonies de sa nation; voila le cas dans lequel par la loi, par le privilege de la franchise de ce Royaume, la chaine de l'esclavage se brisera, et la liberie sera acquise a de partils esclaves." And to the same effect on p. 26.
* 1 Pliillimore's Internal. Law, p. 342, citingDenisart, Decisions Nouvellcs, torn iii., p. 406, tit Nigre, n. 45.
From some of the Flemish and French authorities which have already been cited, it appears that the condition of absolute slavery was lawful in Spain and Portugal during 16th and 17th centuries. Absolute slavery, as a condition distinct from serfdom or vassalage, is recognized in Las Siete Partidas. (A. D., 1303), Part. IV., tit. 21, 1. i.—" Son tres maneras de siervos; la primera es de los que cativan en tiempo de guerra scyendo encmigos de la fe; la secunda es de los que nascen de las sicrvos: la tercera es quando alguno que es libre se dexa vender."
From the following it would appear that slavery had become unknown in Spanish law, except as the condition of a negro domiciled in the Indies. Asso and Manuel, Institutes, &c. Johnston's transl. of the 6th ed. Book I., tit. v., c. 1. "With regard to their civil state or capacity, men are considered, 1, as natural born subjects of their kingdoms, and as aliens or foreigners; 2, as nobles, persons entitled to the rights of nobility (hidalgos), knights (cabalkros) and plebeians; 3, as laymen and ecclesiastics. The distinction into free men and slaves, which is found in our law in p. 4, tit. 21 and 22, is not now observed or acknowledged, unless it be with respect to the negroes employed in the Indies in working the mines, or held in slavery by private individuals, but even as regards this circumstance, it is foreign to this treatise."
In Denmark, negro slavery would probably have been recognized under the code of Christian V., already cited, Ante, p. 291.
their domicil, that rule was, it would seem, that in a country wherein the condition of slavery could not exist as an effect of the internal or local law, or wherein no domiciled subject of whatever race or complexion could be held in slavery, the co- relative rights and obligations of masters and slaves, domiciled in other countries, could not be protected and enforced by the judicial tribunals of the forum.
§ 266. A passage has herein been noted from the President de Lavie's Abrege of Bodin's Republic, in which the author of the abridgment says,—objecting to what he admits was the judicial practice in France,—that it is contrary to the law of nations to take from the stranger, passing through the country and being the master of a slave, a property (un bien) which belongs to him.
If any other juristical authority of an earlier date than Somerset's case is extant, thus, in terms, maintaining the claim of the owner when in a foreign country, it seems to have escaped the observation of the jurists whose research has, since that time, been directed to these inquiries.
There are, however, certain passages in the treatises of Grotius, Pufendorff and Vattel which have been cited, in recent cases, as sustaining the same doctrine; the doctrine thus enunciated being at the same time supposed to operate as private law ; that is, a rule by which the rights and duties of private persons might be determined by judicial tribunals.
These writers must be taken to have been of no less authority shortly before the date of Somerset's case than they are at present, and it is now proposed to examine here, what the doctrine is which they support, and how far they may have considered it applicable to questions of personal status.1
§ 267. These authors, it will be recollected, proposed to write of the law of nations regarded as that rule of which nations, in their political personality, are the subjects ; being a law
■ PufendorfFs Treatise de Jure Nat. et Gen., was published about 1672, a translation in French appeared in 1712, if not earlier, and an English version in 1717. The work of Vattel on the Law of Nations first appeared in 1758; a posthumous edition with the author's manuscript notes in 1773. The principal English version was published in 1797.