§ 274. Thus far in this inquiry into the doctrines of these foreign publicists, the right of the stranger has been considered as one existing under public international law, or in other words, as a right correlative to a duty on the part of the state. But, according to the principles which have been stated in the first and second chapters, these duties and their corresponding rights are not within the sphere of judicial tribunals, determining the rights and duties of private persons, whether citizens or foreigners.

It has been observed in the second chapter that there is much, in the treatises on private international law or the conflict of laws, to justify the idea that a court is to regulate its conduct by public international law and to determine the rights of private persons, by first ascertaining what the duty of the state is under international law. Supposing then that this may be done, that strangers may, under this international rule of transit, have a right as against the state, yet it would seem that a tribunal could recognize it only when correlative to an absolute duty on the part of the state. Now, according to Vattel's distinction, no nation is bound by international law to admit strangers with their property in all possible circumstances. The ordinary entry and departure of strangers is not, according to Vattel, founded on a right and duty thus imperatively justified by international law. It is only in circumstances creating some degree of necessity that the duty is created for the state, and the nature of the property that may be introduced under the correlative right is restricted by those circumstances. It would seem that the courts can recognize slave property in such cases only; if its recognition is to depend on this rule of international law; and that the ordinary or "innocent passage,' which is not accorded in view of any such obligation, does not give the stranger, being the master of a slave, any such exemption from the laws of the forum.1

1

1 Pufendorff, B. III., c. 3, § 6. "For, truly speaking, the law of humanity does not seem to oblige us to grant passage to any other goods except such as are absolutely necessary for the support of their life to whom they are thus conveyed." And in § 7,-" as the case is very different whether a man desires way through my grounds, because without this privilege he would be, as it were, excluded from the

352

THE ERROR AS TO COMITY.

§ 275. It is the palpable impossibility of determining a right in private persons, when the correlative duty on the part of the state is indeterminable, that has originated a juristical belief in the doctrine of comity as commonly understood; the comity of the nation applied, by the court, for the nation: the court in that case determining how far the state ought to admit the laws of other states to take effect on persons and things within the territorial jurisdiction of the former.1

If a state or a government which had allowed strangers to enter its territory and which had not exercised any control over them should permit its citizens, as private individuals, to injure them in person or in property, that state or government would not, of course, be fulfilling the duty defined by Vattel. But when strangers appear before judicial tribunals, claiming rights or being required to perform certain duties, the judicial and administrative officers of the state do not direct their conduct in view of any particular duty of the state towards the strangers. The courts have only to apply a rule of action for private persons derived from the will of the state without reference to the duties of the state. The question before them may be, whether the state does or does not will that they should recognize the relations of the stranger as they would exist in the place of his domicil. In ascertaining the will of the state on this point, they may, in the absence of positive legislation, refer to the usage and practice of other nations in like cases, (that is, to what they have done, not to what they ought to do,) and to the writings of private jurists so far as they are expository of that practice.2

Vattel, as has been shown, says that the law determining the rights and duties of the foreigners is the law of the forum of jurisdiction. This proposition is strictly true, as a proposition of public international law. The law which the judicial tribunal must apply, is part of the municipal (national) law of

world and confined to solitude, or because he could not otherwise carry off the fruit of his own land; and whether he makes the same demand purely to shorten his passage, and imposes a burthen upon my estate, not to relieve his own necessity, but to promote his convenience and ease."

1

Ante, p. 73, 74.

'Ante, § 93.

THE GENERAL RULE.

353

the forum, since it exists or is law by the juridical will of the sovereign of that forum independently of the will of every other state or sovereign. The just limits of his subject did not allow Vattel to go further and explain the duties of judicial tribunals. This would have been entering the limits of private international law. It does not necessarily follow that he would have said that the tribunal could never recognize legal effects produced by the law of a foreign state.

When

§ 276. The general principles considered in the second chapter will operate in cases wherein there is no precedent. But the courts may always refer to the international practice of other countries, which they may assume indicates a customary law prevailing in all countries, their own included. such customary law has been ascertained the courts may apply it, not as indicating the duty of the state, but as indicating the will of the state. And it is highly important to observe that the rule sought is customary private law-the law customarily applied by judicial tribunals, as known by judicial precedents and authors who treat of international law as it obtains, not as it ought to obtain. A statute enactment therefore, or an act of the sovereign, as such, is not indicative of this rule of customary law; on the contrary there is a presumption that such statute or act differs from the rules which judicial tribunals might lawfully enforce in like circumstances.'

Now, as has been shown, the judicial practice and the writings of private jurists on the customary law of Europe during the 17th and 18th centuries, are unanimous in declaring the rule to be against the international recognition of slavery in countries where it cannot exist under the local or internal law: they make no exception.*

§ 277. The right of the foreigner or stranger to the possession of property which he may bring with him may be main

1 Ante, § 258.

* If there has been any exception, it would appear to have been where states have been so situated, geographically, that the passage of the citizens of one through the territory of the other, is indispensable to ordinary commercial access with the rest of the world, or where different states lie on a river or strait, in the common use of which, the subjects of one state must unavoidably be sometimes found within the limits of another.

354

SLAVES NOT PROPERTY JURE GENTIUM.

tained before a tribunal as a right recognized by universal jurisprudence, or the law of nations in the same sense. But this is only when the citizen's right to such property might be equally ascribed to that law. While the stranger is husband or wife, father or child, in the forum to which he is alien, and owns property brought with him and acquired in the place of his domicil, and has rights, in these respects, as fully as the citizen who is husband or wife, father or child, and owner of property-his rights are recognized by that part of the law of the land which is universal jurisprudence, supposed to be the same, in its origin and effect, in the forum as in the place of domicil, though in each it is maintained by a different sovereign or source of law. At the time when Bodin wrote he could perhaps say of slavery that it was then "approved by the great argument and consent of almost all nations," and he might therefore have excepted to the decisions of the French courts, on the ground that by refusing to maintain the right of the master to his slave, they had decided "contre le droit des gens," meaning universal jurisprudence. It does not appear, however, that Bodin ever took exception to the decisions of the French courts in respect to the slaves of strangers, either as being contrary to the "law of nations," in any of its significations, or on any other ground.2

1 Ante, p. 165, note.

From an examination of two French editions and the English version. In Repub. Lib. I., c. 2, ad finem, Bodin says, "For as for the laws of nations, if they be any of them unjust, the prince may abrogate them by the law of his realme, and forbid his subjects to use the same; as we said before of servitude and slaves, which, by a dangerous example, by the law almost of all nations brought into commonweales, were againe by the wholsome decrees of many princes, well agreeing with the laws of nature, taken away." (Knolles' Tr., p. 113.)

CHAPTER IX.

OF THE PRIVATE INTERNATIONAL LAW OF THE COLONIAL PERIOD AFFECTING CONDITIONS OF FREEDOM AND BONDAGE-THE SUBJECT CONTINUED-EXAMINATION OF SOMERSET'S CASE IN THIS CONNECTION.

§ 278. The case of Somerset, being the leading precedent in English law, and having occurred shortly before the separation of the colonies from the mother country, has been the subject of much juristical comment. It will now be here attempted to indicate the law applicable in the various jurisdictions of the British Empire, at that date, in circumstances similar to those of this case; deriving that law from the general principles and historical facts which have been set forth in preceding chapters; and to compare it with this decision, the European authorities just cited, and the supposed international practice of the colonies.1

§ 279. The application of the general principles of private international law to the recognition of those relations of private persons which constitute conditions of freedom and its opposites has been shown in the second chapter. It was shown, that in the absence of direct legislation or of judicial precedents indicative of a customary international rule, applicable to the circumstances of the case, the recognition and support of relations of private persons existing under a foreign law, (the law of the alien's domicil,) depends upon

As stated ante, §§ 251-254.

Ante, § 122. It has been remarked, § 258, that foreign precedents, by the recognition of a customary private international law, may have an authority similar to that of local precedents, though not equal in degree. [