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ALTERATION OF JUS GENTIUM. 361
of that law, at any particular time, are judicially known from the juridical action of all civilized nations; distinguishing such principles as are received in all foreign jurisdictions, or allowed to have personal extent without reference to territorial limits. And though certain legal effects (rights and obligations) should be found to exist under the juridical action of many or all civilized nations, yet, if under that action they are commonly limited to specific localities, they are not attributable to universal jurisprudence.1 Though slavery may, by some European powers, have been maintained in their American possessions, yet, if its incidental rights and obligations were disallowed by them in Europe, it was then judicially known as a result of a local law, jus proprium, only, and no longer ascribed to the jus gentium, universal jurisprudence.
Now, leaving out of view, for the present, the juridical action of the British empire or of any several political part of it, the authorities already cited in the last chapter may alone prove that the law of nations, in respect to slavery, had changed during the colonial period; that change being shown by the judicial attribution, in European states, of personal liberty to Moors, negroes, and Indians, without regard to their legal condition in a foreign domicil; even, in some instances, where that domicil was a colony under the same political dominion as the forum of jurisdiction.
§ 287. Therefore, even if the authorities referred to did not, as precedents of customary private international law,' establish a rule judicially applicable in like cases by the tribunals of the several jurisdictions of the British empire, yet, in determining
one state, when seeking the doctrine of the law of nations, the exposition of universal jurisprudence, must look to the additive verdict of many national authorities in their municipal (internal) and international law, expressed by legislation or judicial decision. And though, comparing century with century, it may be unhesitatingly declared that the doctrine of that law has changed on same particular point, yet it may be impossible to indicate the exact time at which that change should have been first recognized. This act of discrimination is in its nature autonomic on the pert of the tribunal.
There can be little doubt that there was once a period when to kill or sell one's children was a paternal power or right recognized among all nations, (Comp Uynkershoek's Essay on this right under the Roman law.) Abraham, proposing to slay his son, obeyed a command higher than human laws; but it is not unlikely that his power to do so was admitted by the jurisprudence of those among whom he lived. 1 Ante, §§ 99-102." • Ante, § 258.
362 ALTERATION OF JUS GENTIUM.
the international recognition of slavery, they were evidence of what was or was not judicially receivable as an effect of universal jurisprudence. So that, supposing slavery to have remained the same chattel condition in the colonies, under their local laws, it could no longer be said to be a constitution of the law of nations, in the sense of a legal effect known by its actual prevalence among all nations or all enlightened nations. Tho condition of a negro who had been a slave in the place of his domicil could not then be judicially supported in any forum of jurisdiction upon this ground, after this change in universal jurisprudence had actually taken place.
§ 288. a. Contemporaneously with the occurrence of this change in the law of nations, the master's right of ownership ceased to be supported by the common law of England, embracing the law of nations, and having as to him a personal extent throughout the empire.1
b. The same change would in like manner, whenever it occurred, have limited the effect of the international rule of transit as a protection of the right of masters in slaves whom they should, though for a temporary purpose, bring with them within the limits of any part of the empire wherein slavery was not allowed by the internal law."
§ 289. In a jurisdiction wherein negro slavery had been introduced under the old law of nations and wherein it has continued to have essentially the same chattel characteristics, there, the condition might have, or in the jurisprudence of that state it might have the same legal character as before, and be still recognized to be one of those effects of law which are received as deductions from a priori principles and taken to accord with natural reason, whether the right and obligation in which such effect consists are ascribed to temporary or to domiciled subjects. And as between two jurisdictions, in each of which slavery retained its essentially chattel character, it may be that, as to them, or in the judicial apprehension of their several courts, it should still be ascribed to universal jurisprudence though it should have been abandoned
'Ante, §§ 244, 245. « Ante, § 272.
REFERENCE TO INTENTION OF THE STATE. 363
and forbidden by all other nations. In such jurisdictions the tribunals of either should have recognized the slave condition of an African introduced from the other, or from elsewhere, in the same manner as they recognized the local slavery. There would be, as between any two such jurisdictions, no conflict of laws and no question of the comity of nations.
§ 290. But further—the judicial allowance of certain legal effects as created by a rule of universal jurisprudence is based upon the assumption that universal jurisprudence—the historical law of nations—is an exposition of natural reason adopted by the sovereign source of law in the forum.1 Yet it is at the same time fully understood that the state, or the possessor of sovereign political power, is, in its estimate of the requirements of natural reason, entirely independent of the juridical action of similar states or persons. And it is always the duty of the tribunal rather to look for a part of the national common law as being the state's conception of a universal jurisprudence, than to receive it as gathered from the laws of foreign states.' The conjuncture is barely supposable that, at some given point of time, there should not be any domiciled inhabitants sustaining a certain relation attributable to the law of nations as then judicially cognizable: or, in other words, that a received principle of the law of nations should not be actually operative in the internal law. The fact that, at a certain time, there were no slaves among the domiciled inhabitants, might be accidental. Slaves might never have been imported; or all slaves may have been exported, or have been manumitted by their owners, or have deceased. It might even be that slavery had, as the condition of a domiciled inhabitant, been declared unlawful or been prohibited. And yet it might be that the law of nations sustaining slavery should still be judicially received as part of the municipal (national) law, to maintain the slavery of persons whether coming from other jurisdictions, to reside, or being transitory subjects.3
But if any effect attributable to a rule of the law of nations
1 Ante, § 94. *Ante, § 173. 'Ante, § 95.
364 COMMON LAW CRITERION.
has been repudiated in the internal law of the forum as contrary to natural reason, the whole basis for the judicial recognition of that rule in the private international law of the forum would be destroyed. And this would be the case whether the rejection of such effect, on this ground, had been made in a legislative or a judicial exposition of positive law.
§ 291. The English cases cited in the fourth chapter show that at a period shortly before the war of revolution no domiciled inhabitant of the British islands could be held therein as a slave or in any condition of involuntary servitude not based upon local customary and feudal law. It appears too that a similar judicial declaration of law had been made in Massachusetts about the same period. This juridical action would then, in these jurisdictions, have prevented any subsequent judicial recognition of the slavery of an alien on the ground of its being supported in the private international law of the forum by the historical law of nations; even if that law, as learned from the action of foreign states, had remained unchanged.
§ 292. Still, so long as the law of nations, or universal jurisprudence, remained the same in judicial recognition, and had not been repudiated in the common law of England, the right of the owner, being a British subject, in a negro chattel slave, would still have continued in any one jurisdiction of the Empire, even although in that jurisdiction slavery had been repudiated in the local or internal law, (♦. e. the law applying to domiciled persons,) as contrary to natural reason, in the manner supposed in the last section. Thus in Massachusetts, at the time spoken of, it might have been supported by the "common law of England;" thus having a gutm'-international operation, although the private international law of Massachusetts (being part of that law which rested for its authority exclusively on the juridical power of that colony) should not have sustained it.
But since the operation of the lata of nations, in this instance, depended altogether upon its being contemporaneously received in the common law of England, there was a point of time, towards the close of the colonial period, when slavery could not have been supported in other parts of the empire on this
SLAVERY, WHEN NOT RECOGNIZED. 365
ground; not even if the juridical action of other nations had not modified the old law of slavery once attributed to universal jurisprudence.
§ 293. It appears then, that—
1st. If the status of the alien in the place of his domicil was not that chattel condition, which had been the only condition of bondage recognized by universal jurisprudence—the law of nations :—Or,
2d. If this law, as known in the juridical action of civilized states, had changed :—Or,
3d. If, as may have been the case in the British islands and Massachusetts, slavery was disallowed in the internal law as contrary to natural rt ason;
— the involuntary servitude of negroes introduced from other jurisdictions of the empire or from abroad could not have been judicially recognized under the rule of private international law whose operation has herein been considered—the rule which requires the judicial recognition of rights and duties derived from a rule having the character of universal jurisprudence. In no one of these three cases could the slavery of the alien be considered a condition presumptively recognized by the supreme power of the forum as accordant with natural reason, or the result of a law having universal extent and received into the municipal (national) law (t. e. both the internal and the international private law) of the forum.1
4th. And when, on the contingency of one or more of these cases, the rights and obligations incident to the relation of master and slave should have ceased to be internationally cognizable under an application of this rule; or, certainly, whenever, in England, those rights and obligations were not maintainable under this rule; the right of the owner would cease to be cognizable as a common law right, supported by the law of national extent.
5th. Nor, on the same contingency, would those rights and obligations be any longer maintainable by the international rule of transit.*
1 Ante, § 279. • Ante, § 272.