360 ALTERATION OF JUS 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.1 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. 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. 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 preme civil power, whose will it should apply as law; the namely, that it was to be considered the result of a la universal recognition, and which presumptively portion of the municipal (national) law of the fo $286. The question whether any rule or d of nations, universal jurisprudence, has, d time, continued unaltered, is a question of Ande, §§ 243, 244. * Ante, § 272. 3 Ante, § 39. * Ante, §§ 162, 163, 167. In attributing any legal rule to the u any particular period, it will be perceived neous among those nations which are th A 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. 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 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. The 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.' 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. 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.2 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, (i. 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 quasi-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 law 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 |