366

REFERENCE TO RULE OF COMITY.

§ 294. Supposing then that, by the occurrence of these contingencies, this was the doctrine applicable in some one jurisdiction of the empire, and also that the question had arisen for the first time, or that there was no local precedent or customary law directly applicable to such cases, the only international rule which could maintain the condition of the alien negro or Indian, who should be claimed as a slave under the law of his domicil, would be that part of the customary law which is called comity.

This rule, as has been argued in the second chapter, would support the condition of an alien existing under the law of his domicil if not inconsistent with principles in the local law judicially taken to have universal personal extent.'

§ 295. In attempting, in the second chapter, to state a general rule for distinguishing what principles in the local or territorial law of any one jurisdiction may be taken by its tribunals to have universal personal extent, it was supposed that such extent might be known from, either,

1. An act of positive legislation, declaring such principle to have universal personal application so far as the dominion and jurisdiction of the legislating sovereign may extend, or,

2. From the judicial attribution, to natural persons domiciled within the supposed jurisdiction, of rights or duties (resulting from such principle) as being antecedent to rules of action; or, to change the phraseology, as resulting from law in the secondary sense of the term-a condition of existence-or from the natural law, in the only sense in which it can, in jurisprudence, be distinguished from positive law.2

§ 296. From the view given in the preceding chapters of the establishment of municipal law in the colonies, it would appear that neither these rights, which were known as common law liberties, nor any rights inconsistent with a condition of bondage or even of chattel slavery, were ever in any colony attributed to all natural persons by any act of positive legislation. And it may be assumed that there was no English statute enacted in and for the British isles, during the colonial period, which altered

'Ante, §§ 88, 110.

2

1 Ante, §§ 102, 114–116.

LAW OF UNIVERSAL EXTENT.

367

the extent of the former customary or common law of status or condition.

§ 297. And if, in some one several jurisdiction of the empire, all domiciled inhabitants had become freemen by a judicial declaration that all such were entitled to individual rights, as known to the common law-the liberty of free English subjects— yet it might have been a usurpation of juridical power, in a tribunal, to have made this law of personal liberty so universal in extent as to limit the rule of comity in these cases.

A former international recognition of any particular relation between persons, by the tribunals of the forum, becomes for later tribunals a precedent of private international law. In the colonies wherein domiciled negroes were held in slavery the international recognition of the condition of alien slaves, after the time when it is supposed the law of nations-universal jurisprudence-would no longer have been applicable,' may in fact be ascribed to the customary law of those jurisdictions as much as to comity; which is indeed itself part of the customary law, and which, it is here supposed, might have caused the international recognition of slavery, though no precedents of the same forum, occurring in like circumstances, could be found.

§ 298. If then, in the British islands, at the date of Somerset's case, and in Massachusetts, at some time before the Revolution, negroes could not be held in servitude under the local or internal law; or if, changing the form of expression, no domiciled negro or Indian could have been there retained in such servitude, it might perhaps still have been claimed that the former international practice would support in those jurisdictions a continued international recognition of the slavery (chattel or personal) of negroes domiciled elsewhere; at least until positive legislation had either altered that practice or had expressly given a universal personal extent to the law of free condition.

Supposing then that, in the other colonies, the claim of an alien master would have been supported by the rule of comity

'Ante, §§ 286, 289.

368

QUESTION IN MASSACHUSETTS.

(to say nothing of other customary law) the question arising on such claim may be examined for the colony of Massachusetts and the British islands.

§ 299. It has been observed already in this chapter, that, in some of the colonies, negroes and Indians, though held in a condition which, for want of a more accurate term, may be called absolute slavery, may still, at least if converted or baptized, have been regarded as legal persons and not chattels. From the phraseology of legislative acts in the New England colonies, which had something of the nature of bills of rights, and from the judicial application of customary law therein, so far as it can be known, it may be inferred that, in those colonies, the possession of legal personality was ascribed to law in the secondary sense-a condition of things-and was held to belong to all natural persons as an incident of humanity. Though, while heathen negroes continued to be introduced from abroad as chattels by the law of nations, the attribution of personality was universal only in respect to nominally Christian persons. The same may be taken to have been the law of the British islands shortly before the date of Somerset's case, even if it is admitted that negroes nominally Christian could there have been lawfully retained in involuntary servitude at that time.'

On the principle herein assumed to be applicable, this attribution of legal personality in these jurisdictions, supposing it to have been thus made universal, should have limited that recognition, by comity, of the condition, under the law of their domicil, of negroes entering from other countries or parts of the empire; if in such domicil it had been chattel slavery.

§ 300. It has been shown that in one important respect slavery had changed its character in every colony before the Revolution. That is to say-the slavery of negroes, at least of those born on the soil and nominally Christian, lost its foundation in universal jurisprudence-the law of nations—and became an effect of local law-jus proprium.' But it is at the same time true that the condition of slavery, as characterized by cer

AND IN THE BRITISH ISLANDS.

369

tain obligations of the slave and the correlative rights of the owner, did not essentially vary, whether the status thus resting on local law was legally distinguishable as chattel slavery or as the condition of a legal person. In fact, even though in some several jurisdiction of the empire personality should have been thus universally attributed, yet while domiciled negroes could, notwithstanding, be held there in servitude, as persons, the tribunals might reasonably suppose the condition of alien negroes, under the contemporary law of their domicil, to be equally the condition of a legal person. So that its recognition in that forum under the rule of comity, would not be less consistent with a universal attribution of personality than was the local slavery.

Therefore, although, strictly speaking, the attribution of personality involves the attribution of some individual rights, it may be assumed here that the attribution of personal liberty, whose universality should have prevented the judicial recognition, by comity, of a status of bondage created under a foreign law, should have been one more absolute than that involved in the attribution of legal personality only.

§ 301. When it is intimated that a condition of involuntary servitude may be inconsistent with the attribution of individual rights, under a principle having universal extent in some one forum of jurisdiction, it is at the same time confessed that, as human society is at present constituted, no state or country can be supposed to exist wherein personal freedom is a right actually enjoyed by every individual under the internal law.

Yet it is possible that the right should be attributed by that law to every individual, except as limited by certain legal relations; such as relations essential to the existence of families, and by the effects of remedial and punitive law; and that other limitations of that right under the local law should have especial reference to local peculiarities. In a state wherein this should be the case, individual rights might be attributed to all to such a degree as to preclude the judicial recognition of conditions or status inconsistent with the exercise of those rights.

1 12 Conn. R. 59. Jackson v. Bullock, p. 59.

370

QUESTION IN MASSACHUSETTS,

§ 302. If then the courts in Massachusetts or in the British islands could have held the individual rights attributed to Englishmen to be incidents of a relation existing independently of rules of action enforced by positive law, and that those rights were actually incident to the condition of all domiciled persons, except as limited by the family rights and duties, punitive and remedial laws, or in relations whose jural character depended on local circumstances, under special exceptions by statute or customary law, they might (under the second index of universality, ante, § 295,) have considered liberty to be so universally attributed, by the sovereign power whose will they were to apply as law, as to prevent the international allowance of slavery under the rule of comity.

§ 303. In Massachusetts this could hardly have been maintained if the refusal of the provincial governors to co-operate with the local legislature in prohibiting the importation of African slaves, was a sufficient proof that such importation was lawful. That of itself might have been inconsistent with a universal attribution of liberty, whatever may have been the condition of those so imported after they had become domiciled or had been purchased by residents. In the cases wherein domiciled negroes had been declared freemen, the judgment of the courts, according to Dr. Belknap's account, had been only that negroes born in the colony, or only perhaps that domiciled negroes were entitled by the charters to the rights of the English colonists. It might perhaps, however, have been held that personal liberty was to be attributed to all baptized negroes and Indians.

§ 304. Of the many slaves actually held in England, at the time of Somerset's case, a large proportion may be supposed to have been imported from Africa, and to have had no other domicil than England. The importation of slaves into the British islands had no implied sanction in the failure of an attempt to pass a statute against it,' as in Massachusetts; but,

1 Ante, p. 264, note.

A bill for restricting the slave trade was first brought into the House of Commons in 1788. The final act for its abolition was in 1807. Walsh's Appeal, pp. 344-350.