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356 SLAVEBY JUBE GENTIUM.
an independent judicial recognition of their accordance with natural reason, according to certain criteria. It has been there supposed that they will be supported (so far as their continued existence remains physically possible) if attributable to princiciples of universal jurisprudence—the historical law of nations, and that the relations thus attributed will continue, in the state to which those persons are aliens, as results of the municipal (national) law of the forum; there being in this case no question of the " conflict of laws " or of the comity of nations, although the relations recognized had previously existed under another jurisdiction.1
§ 280. The historical evidence of the principles applicable, at different points of time during the colonial period, to the status of private persons, as having the recognized character of a law of nations or universal jurisprudence, forming part of the common law of England, has been set forth in the fourth chapter. It was shown, in the account of the origin of municipal (national) law in the English colonies, given in the fifth and sixth chapters, that the slavery of Africans and Indians, (at least while heathen or unbaptized,) introduced from abroad, was actually supported, in the law of the empire and of each colony, by the application of the rule above stated,* operating first as private international law, but afterwards taking effect as part of the municipal (internal) law.' It has been shown that, whatever may have been the true theory of the location of sovereign power, at that time, over persons who were aliens to the empire, the juridical action of the imperial and colonial authorities in reference to such aliens, and the view taken by each of the law of nations, as determining their condition, appear to have been the same ; so far as those sources of law had concurrent jurisdiction in the colonies, and together controlled the international intercourse of those colonies with foreign countries. The two sources of law equally allowed the force of the historical law of nations as then known; and by judicial tribunals, acting under each of those sources of law, a legal distinction
'Ant*, §§ 06, 113.
1 UUess Georgia was an exception. » Ante, §§ 197, 200.
JDS GENTIUM IN COMMON LAW. 357
was recognized to exist among alien persons, founded on differences of race, complexion or pbysical structure, and religious belief. The alien of white or European race and Christian name was recognized as having, by the law of nations applied internationally, the status of a legal person and a presumptive claim to the enjoyment of those individual and relative rights, which, under the English common law, constituted irrespectively of political rights, the free condition of an English-born inhabitant;l subject to the processes of remedial justice and police laws, including the powers of the state over individuals in reference to religious belief." On the other hand it was shown, in the same connection, that while the bondage of white indentured servants might have been taken for the result of a law peculiar to the colonies, or to the British Empire3—the chattel slavery of Indian captives and imported Africans was, throughout a long period subsequent to the first settlement of the colonies, based upon a distinct recognition of the law of nations—principles of universal jurisprudence as historically known and judicially allowed to have personal extent in all the colonies, under both the colonial and the imperial authority, if not in England also, at the same time.
§ 281. To whatever extent then this law of nations or universal jurisprudence, as judicially recognized in any several jurisdiction of the empire, sustained at any period, the slavery of Moors, Africans and Indians, regarded as aliens to the empire, it would have been contemporaneously receivable in the same forum, as sustaining, by the application of the rule above stated, the slave condition of such persons appearing therein as aliens to such several jurisdiction, after they had become domiciled in some other jurisdiction of the empire.
And it may also be said, that so far as it was thus recognized by the law of nations of that time, the right of the English or European master was a "common law right" and was supported as such, in each several jurisdiction of the empire, under the common law of England, having for him a per
1 Ante, § § 139, 140. • Ante, § 208. • Ante, §§ 209, 210.
358 LIMITATION OF JUS GENTIUM.
sonal and national extent throughout the entire national domain.'
§ 282. The reasons for supposing that the operation of the law of nations, in sustaining chattel slavery in the American colonies, must originally have been limited to Moors, Africans and Indians, while heathen and unbaptized only, have already been explained.2 And the colonial statutes have been noticed which contain an apparent recognition of this limitation by determining the persons who should be slaves, notwithstanding conversion, and which establish rules for the condition of the issue, some of which differ from that of the civil or Roman law.* It has also been shown that so far as the condition of Christianized negroes and Indians was supported in any one colony by the judicial interpretation of natural reason, (common law,) it was still distinguishable as the result of the law of that particular colony, (jus proprium.)4
§ 283. It has been noticed in the second chapter, that, when regarded as the condition of a legal person, slavery or bondage is a condition of infinite variety in respect to its incidental obligations and their correlative rights ;5 and it is only in its most absolute form—that approaching most nearly to chattel slavery— that it can be a condition ascribed, at any time, to the law of nations.' It has been shown in the fourth chapter, how, by the attribution of legal personality, slavery in the middle ages lost
1 Ante, §§ 244, 245.
* Ante, S§ 170, 171, 189.
'Ante, Laws of Maryland, 1663, c. 30, § 1. Virginia, 1682, c 1. 4 Ante, § 204.
* Ante, g 45. 19 Howard's R., p. 624. (Dred Scott's case,) by Mr. Justice Curtis. "The status of slavery is not necessarily always attended with the same powers on the part of the master. The master is subject to the supreme power of the state, whose will controls his action towards his slave, and this control must be defined and regulated by the municipal law. In one state, as at one period of the Roman law, it may put the life of the slave into the hand of the master; others, as those of the United States which tolerate slavery, may treat the slave as a person, when the master takes his life; while in others the law may recognize a right of the slave to be protected from cruel treatment. In other words, the status of slavery embraces every condition from that in which the slave is known to the law simply as a chattel, with no civil rights, to that in which he is recognized as a person for all purposes, save the compulsory power of directing and receiving the fruits of his labor. Which of these conditions shall attend the status of slavery, must depend on the municipal law which create* and upholds it."
By Mansfield, in Somerset's case, ante, p. 191. "Thepower of a master over hi* slaves has been extremely different in different countries." 'Ante, §112.
SLAVERY OF LEGAL PERSONS. 359
the character of a constitutio juris gentium, and became a bondage resting on the jus proprium of some one country.1 And it may be assumed that no condition of bondage, other than chattel slavery has ever acquired recognition in universal jurisprudence—the law of nations, in that sense.
Now it may be questioned whether the condition of slavery which was maintained in the colonies was, in all or even in any, throughout the colonial psriod, that absolute chattel condition under which African negroes had been known as personal or movable property, in the customary law of trade and commerce, the law merchant; and whether the personality of slaves was entirely denied, as it had been at the first introduction of negroes. In Virginia they had, at one time, been declared real estate and not chattels.* In the same colony and in Maryland they had been classed as legal persons by being rated for the poll-tax, which was also imposed on free white persons.' In some of the northern colonies, their condition as subjects of legal rights and obligations was little distinguishable from that of indentured white servants, except by the duration of the service.4
Slavery or bondage thus modified, was the result of the jus proprium of the colony, and could not receive international recognition in other parts of the empire as the same slavery which had found place in the law of each colony as a constitutio juris gentium—a condition recognized by universal jurisprudence.
§ 284. a. Neither (when the condition of slavery had thus changed its legal character in the place of domicil) could the
1 Ante, p. 159.
'Ante, law of (October) 1705, c. 23. Very probably the remark of the Attorneygeneral, in Smith r. Brown and Cooper, (ante, p. 183,) which was of Easter term, 1706, hod reference to this law ; and, possibly, the distinction which Lord Stowell, in 2 11 agg. Ad. R. p. 114, proposed to recognize in such international cases between domestic slaves &n& field slaves, may have been suggested by a perusal of this statute.
* Ante, law of Va. 1657-8, c. 40; Md. 1715, c. 15, Chinn t> Respass, 1 Monroe's R. 25, 26.
4 2 Hildr. 419. "The harsh slave laws in force in the more southern colonies were unkuowu, however, in New England. Slaves were regarded [1750) as possessing the same legal rights as apprentices, and masters, for abuse of their authority, were liable to indictment." See also Winchendon v. Hatfield, 4 Mass. R. 127, ante, the note after Laws of Mass. in ch. vi. Reeves' Domestic Relations, 340, so far as his description of slavery in Connecticut may relate to the colonial era.
360 ALTERATION OF JU8 GENTIUM.
right of the master, in respect to such slave, be thereafter maintained in other jurisdictions of the empire as a right resting on the common law of England, having, as to such master, personal extent throughout the empire.l
b. Nor could the master's right be thereafter recognized under the law of transit, as property.1
§ 285. And further, admitting the legal character of slavery to have remained unchanged in the place of domicil, and that there had been a time, during the planting of the colonies, when the slave condition of negroes and Indians domiciled in some one colony should properly have received international recognition in every other part of the empire, as being the effect of universal jurisprudence—the law of nations—yet this law is, in its nature, always liable to change.2 It may have changed during the colonial period, in respect to the slavery of Africans and Indians, as it had before changed in respect to the personal condition of persons of other races.3 If then it were true as matter of historical fact that this law or jurisprudence, gathered from the laws and customs of those nations whose juridical action is the source of that law, had so changed, no tribunal of any one nation, nor of any several jurisdiction of the British empire, would thereafter have had the same judicial reason for supposing the slave-condition of an alien person of one of those races, entering into its jurisdiction, to be recognized by the supreme civil power, whose will it should apply as law; the reason, namely, that it was to be considered the result of a law having universal recognition, and which presumptively constituted a portion of the municipal (national) law of the forum.
§ 286. The question whether any rule or doctrine of the law of nations, universal jurisprudence, has, during any period of time, continued unaltered, is a question of fact.4 The doctriues
■ Ante, §§ 243, 244.
■ Ante, § 272. 'Ante, §39.
* Ante, §§ 162, 163, 167.
* In attributing any legal rule to the universal jurisprudence, the jus gentium of any particular period, it will be perceived that no change of that law can be simultaneous among those nations which are the sources of that law. The tribunal of an/