« 이전계속 »
AND IN THE BRITISH ISLANDS. 371 as has been shown in the fourth chapter, the same reasoning which supported the importation of slaves into an American colony would, apparently, have justified their importation into England: unless the law which, in England, determined the condition of the native Briton extended to all persons within the realm of England. But Lord Mansfield must be taken to have based his decision on the universal personal extent, at the time, of this law of condition; and to have held that any exceptions under the territorial law, such as villenage and the bond-slavery of colliers and salters in Scotland, then existing,1 were jural or rightful only in reference to peculiar local circumstances. Such a meaning, it would seem, will best vindicate the juridical fitness of his language when he said, "The state of slavery is of such a nature that it is incapable of being introduced on any reasons moral or political; but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, is erased from memory. It is so odious that nothing can be suffered to support it but positive law."
§ 305. It has already been shown that, in this distinction of certain principles contained in the municipal (national) law of a country as having universal personal extent, a tribunal distinguishes some rules as jural or rightful only in and for a certain territorial jurisdiction, and others as jural because consonant with the conditions of man's existence in society; thus recognizing a natural law in the only sense in which it is known in jurisprudence or the science of positive law." The legislator may determine this by exercise of autonomic power. A tribunal, in making this distinction, can only refer (in the want of local precedents or legislation determining the extent of law) to the juridical action of foreign states: especially in their application of international law; through which it is ascertained what principles of its own (national, civil,) law each state holds to be natural and universal, and what others peculiar (proprium) to itself or its own peculiar circumstances. And by this refer
'Ante, p. 332, note. Ante, §§ 87, 97, 100.
o72 Somerset's Case Justified.
ence the science of universal jurisprudence (jus gentium) becomes manifested.
§ 306. It being then admitted that in England, at this time, no right similar to that claimed by the master in Somerset's case could there be exercised in reference to a domiciled inhabitant, or that no such obligations as those incident to slavery in the colonies could be enforced in England by the territorial or local law against a domiciled inhabitant, the courts there could have referred to the international practice of foreign countries in similar circumstances ; that is, countries wherein such rights and obligations could not be enforced as between domiciled inhabitants or under the internal law. They would have regarded such practice not only as the evidence of a customary rule of international law supposed to be received into the law of the land,1 and also as showing whether universal jurisprudence— the law of nations—did or did not sustain such rights and obligations,* but also as showing whether the general law of free condition, having a territorial extent in the forum of jurisdiction (England) was to be taken to be jural with reference to domiciled subjects only, or to have universal personal extent, with only such exceptions as were to be considered necessary in reference to local circumstances; as shown by statute or by particular customs.
§ 307. Now the European continental authorities already cited may, regarded in this light, be taken to show that—when in any country that condition of bondage which has herein been called absolute or chattel slavery, has become unknown to the territorial or internal law, or when it cannot exist as the condition of a domiciled inhabitant, all limitations to the enjoyment of individual rights under that law, (if not incidents of the family state or effects of punitory laws,) are to be considered jural only in reference to local and exceptional circumstances sanctioned by statute or particular local customs, and that the ordinary or general law,3 attributing individual rights to the domiciled inhabitants, is one which is to be taken (with these excep
2 AnU, §§ 122, 255. « Ante, § 281. 'Ante, p. 131, n. 2.
Somerset's Case Justified. 373
tions) to have universal personal extent, or to apply to all natural persons within the territorial domain. So that a tribunal cannot look upon the rights and obligations of aliens, existing under a foreign law, if inconsistent with the possession of those rights, as equally recognized exceptions to that general law. And that therefore, in such forum, the rule of comity cannot take effect in sustaining the involuntary servitude of an alien as incident to a status existent by the law of his domicil.
These authorities are earlier than Somerset's case, and the application of the doctrine above stated would have prevented the judicial recognition of his slave condition under the rule of comity.
§ 308. It is thus supposed that Lord Mansfield's decision in the case of Somerset was justified by the system of private international law derived from the customary jurisprudence of all nations, applied in a case of the so called "conflict of laws" in three different forms:
1. The rule derived from the international practice of nations in like cases disallowed the master's claim.
2. The law of nations—universal jurisprudence, as learned from the international practice of nations, no longer supported the slave condition of the negro.
3. The juridical action of foreign nations, as indicating what principles of the law of England were to be taken to have universal personal extent, required a universal extent for the law of free condition applying to the domiciled inhabitants, and therefore the rights of the owner and the obligations of the slave were not supported by comity.1
1 Mr. Justice Campbell, in Dred Scott's case, 19 Howard, 495, says: "It will be conceded, that in countries where no law or regulation prevails, opposed to the existence and consequences of slavery, persons who are born in that condition in a foreign state would not be liberated by the accident of their introgression." If it is meant that the liberation will not ensue where there is no statutory prohibition of slavery, the concession here assumed seems to be very much out of use. It was not required by the rules of international private law a century ago, and has certainly not been more favored since that period. The " accident of introgression" liberated persons born in slavery in foreign states when the law of nations—universal jurisprudence—had changed. Mr. Justice Campbell adds: "The relation of domestic slavery is recognized in the law of nations, and the interference of the authorities of one state with the rights of a master belonging to another, without a valid cause, is a violation of that law. (Wheat. Law of Nat., 724; 5 Stats, at Large, 601; Calh. Sp. 378; Reports of the Com. U. S. and G., 187, 238, 241.") The law nf nations,—universal jurisprudence,—ceased to support slavery long before Somerset's case; and if Judge Campbell means here public international law, a law binding on nationn, the assertion is simply ridiculous: unless the slaveholding States of this Union can alone create a rule in that law. For, from the middle ages to the present day, every European state has claimed and exercised the power to recognize or not to recognize the bond status of strangers. And when nations have not allowed their own subjects to hold negroes in slavery, they have, almost without exception, rejected the claims of foreign owners voluntarily entering their dominions. Their right to do so has never been questioned.
374 Mansfield's Inconsistency.
§ 309. According to the view of the public law of the British empire, during the colonial period, which has been given in the preceding chapters, the slavery of a negro inhabitant in anyone of the colonies rested on a portion of supreme or sovereign power held severally by the local government. The several jurisdictions of the British empire were like independent national jurisdictions, in their international recognition of the status of negro slaves. This was the colonial theory of public law, which was confirmed or established by the revolution.
It must be noticed that the applicability of the argument here detailed as determining Somerset's case, rests wholly upon this doctrine. But on the theory of public law, determining the location of sovereign power over persons and things in the American colonies, which was held by Lord Mansfield, (as appears in this decision, and is known from other sources,)1 there was a gross inconsistency in his refusing, as a judge, to give a gwcm'-international support in England to the condition of slavery, which he acknowledged to be lawful in the colony. For, even admitting that that condition did not, at that time, receive any support from the law of nations, i. e., universal jurisprudence, Lord Mansfield held, not only that Somerset was legally a slave in the colony, but that the law by which he was held as a slave rested upon the same supreme source of law upon which the territorial law of England depended for its coercive power in England, that is, parliament, or the crown and parliament. Of two laws, equally dependent on the juridical will of the sovereign in whose name he exercised the judicial functions, Lord Mansfield could not have taken one—the English (local) law of status—to have that universality or universal
1 See his speech in the Lords, Feb. 7, 1775, in 2 Campbell's Lives of Ch. Justices, p. 496.
Mansfield's Inconsistency. 375
personal extent which would prevent the judicial recognition, (under the rule of comity as explained in the second chapter,) of a right and obligation sanctioned by the other.
§ 310. In other words, since Lord Mansfield held that the sovereign whose juridical will had, in Virginia, (as by a jural rule, or rule of right,) made Somerset a slave, was identical with the sovereign whose juridical will (in a jural rule, or rule of right,) he was to enforce at Westminster, he could not (if Somerset had been a chattel in Virginia) say that the law of England, in attributing to Englishmen legal capacity for rights and duties, declared a natural law, or a law in the secondary sense, to be received and applied by him with universal personal extent or to all persons within the power or recognized territorial jurisdiction of the law of England; and so have refused international recognition of his chattel condition.1 Nor (if Somerset had been, in Virginia, a legal person in bondage) could Lord Mansfield say that the law of England, attributing personal liberty to all domiciled or native subjects, was to be regarded as the recognition of, or the statement of, a law in the secondary sense, a natural law, and that that right was to be taken by him to be the incident of a state of things existing independently of rules of action established by the state, and one attributed to all persons within the territorial jurisdiction as by a law of universal extent, a law applying to all persons irrespectively of their domicil or their previous subjection to other laws or jurisdictions, and thus have refused international recognition of the relation between the master and slave, regarded as legal persons.3
§ 311. Indeed, since there was no statute or customary rule that the colonial slavery should not be recognized in the British islands, it followed, from the assumption that they and the American colonies were under the same sovereign source of law, that an English tribunal administering law as the ascertained will of that supreme power, was bound to recognize the law of slavery as a personal law, according to the guasi-international
• See ante, p. 106. 'See ante, p. 108.