« 이전계속 »
HOW RECONCILED WITH COLONIAL LAW. 381
determine the validity of customs by a standard of reason.1 But the nearest standard of this reason must be the established doctrines of law. The practice under consideration was not supported by universal jurisprudence. Its recognition was moreover contrary to the maxim of English law, which declared that in all cases, or in all doubtful cases, liberty should be favored.1 Not having then the other marks of valid customary law, its character was to be judged by these jural standards which existed at its inception. So far then from being a coexistent part of common law, it was itself, in its beginning and continuance, contrary to law.
§ 316. It may be thought that, by the same argument, the colonial courts could not (as it was herein before supposed they might) have maintained in America the slavery of christianized Africans and Indians, independently of statute law.
But in the colonies the common law of England was not, as in England, a superior criterion of natural reason in judicial determination of the condition of all persons within the territorial forum of jurisdiction. In determining the condition of those to whom it did not have a personal extent, the law of England was only one among other indications of natural reason. It is, however, undeniable, that the same maxims in favor of personal liberty had had in Europe the character of universal jurispru
'Consuetudinis usnsque longsevi non vilis auctoritas est, sed non usque adeo sni Yalitura momento, at rotionem vincat aut legem.—Cod. viii., tit. 53, Qua tit, <h\, 1. 2.
* "Humana natura in libertatis causa favorem semper magis quam in causis aliis deprecetur." Fortescue de Laudibus, c. 47. Coke Litt., fo. 124, b.; in § 193, Littleton, stating a rule in trying a claim of villenage, says,—et ceo est in favorem libertatu. Cote's note is—"It is commonly said that three things be favored in law: life, liberty, dower." And cites Fortescue, cap. 42. "Impius et crudelis judicandus est qui libertati non favet. Anglise jura in omni casu libertati dant favorem." The whole passage in Fortescue is, "Crudelis necessario judicabitur lex, qua; servitutem augmentat et minuit libertatem. Nam pro ea natura semper implorat humana. Quia, ab homine et provitio introducta est servitus. Sed libertas a Deo hominis est indita natura. Quare ipsa ab homine sublata semper redire gliscit, ut facit omne quod libertati naturali privatur. Quo ipse et crudelis judicandus est qui libertati non favet Hsec considerantia Anglise jura in omni casa libertati dant favorem." "The law favors liberty and the freedom of a man from imprisonment, and therefore kind interpretations shall be made in its behalf."—Wood's Institutes, c. 1, § 5, p. 25. "It is said the law of England is favorable to liberty; and so far this observation is just, that when we had men in a servile condition amongst us, the law took advantage even of neglects of the masters, to enfranchise the villein; and seemed for that purpose to subtilize a little, because our ancestors judged that freemen were the real support of the kingdom."— Burke's Accounts of European Settlements in America, vol. 2, p. 130.
382 HOW RECONCILED WITH COLONIAL LAW.
dence, being expressed in the Roman law and received by all European states.1 The only answer, perhaps, which can be given to this is that the European states which planted colonies in the new world by right of discovery, and there allowed the enslavement of the natives or promoted the introduction of African slaves, had, to a certain extent, modified the doctrines of universal jurisprudence in every determination of the relation of these races to the white colonist, and limited, to a certain extent, the personal extent of these principles in and for America. The colonial courts had, in this instance, more autonomic power than the European tribunals, and it is not necessary to suppose that natural reason applied judicially to the circumstances of the two races in America should produce the same effects as when applied to the situation of the same races in Europe."
1 By the earliest Roman law, xii. Tables, tab. vi. § 5, "In litigated cases the presumption shall always be on the side of the possessor, and in disputes about liberty or slavery, the presumption shall always be on the side of liberty."—Cooper's Justinian; Appendix I. Causa libertatis non privata Bed publica est.—Dig. Lib. xl., tit. 5, L 58. Nemo enim prohibendus est libertati favere.—Dig. Lib. xliii., tit. 29, § 3, 1. 9. Quoties dubia interpretatio libertatis est, secundum libertatem respondendum.—Dig. Lib. L tit. 17, leg. 20. Libertas omnibus rebus favorabilior est.—Ibid. 1. 22.
'Ante, p. 80, note 2.
If the reader is unable to reconcile the action of these several judicatures, he can apply to either, at his discretion, the maxims—Non omnium quse a majoribus oonstitata sunt ratio reddi potest. Et ideo rationes coram que constitunntur, iaquiri non aportet, alioquin multa ex his quse ccrta sunt subvertuntur.—Dig. L tit. 3, 1. 20. And—Communis error facit jus.
OF THE PRIVATE INTERNATIONAL LAW DURING THE COLONIAL
PERIOD. THE SUBJECT CONTINUED. OF DOCTRINES OF THIS
LAW, APPLYING TO CASES OTHER THAN THOSE RESEMBLING SOMERSET'S CASE.
§ 317. Although the judicial tribunals of one or more nations, or of one or more parts of the British empire may, on the principles set forth in the preceding chapter, have refused to maintain, as between persons within their respective jurisdictions, the relation of master and slave existingl under the law of another country, there is no doubt that the same did recognize, or would have recognized the validity of the right of ownership as the effect of a jural rule, in and for the territorial limits of the foreign country. It would still have been consistent, in such tribunals, to have enforced contracts founded on the existence of that right of ownership, or to have enforced compensation for tortious acts interfering with its enjoyment in the foreign country or upon the high seas. There can be no doubt that the right in slave property was thus internationally recognized in every jurisdiction of the British empire during the colonial period, and, to the same extent, in European jurisdictions where slavery was unknown to the local law.*
1 Ante, p. 59.
* Such partial recognition of slavery would, however, have been utterly inconsistent with the principle which Mansfield and the Scots Court of Session had proclaimed, and which Lord Robertson, in the same court, recognized in 1810, as the basis of their decision, when he said, "But there is another set of cases in which, also, the lex loci is disregarded; I mean those cases in which the lex loci is contrary to the general and universal rules of justice. This maybe exemplified by the decision in the case of Knight, the negro, 15 January, 1770. His master bought him as a slave in Jamaica, where such purchases are legal. Neither the purchase nor the legality of it, according to the lex loci, were denied; but the court held that the dominion assumed over the negro under that law, being in itself unjust, could not be supported in this country to any extent, and judgment proceeding on the same principles was pronounced in England in the case of Somerset." Ferguson's Rep. on Divorce, App. 396. Compare ante, p. 192, note, the quotation from Savigny.
384 BETTJRN TO BLAVE-DOMIGIL.
§ 318. The question of the condition of a person who may have returned to the jurisdiction or forum in which he had been held in slavery, after having been in a foreign country where that slavery was not recognized, or where he had been actually free, has usually been classed as a question of international private law. No cases presenting this question are on record as occurring before the separation of the colonies from the British empire. Gudelin De Jure Novissimo, lib. i. c. 4, 9,1 seems to hold that slaves from Spain would not become absolutely free on reaching the Netherlands, and that they might be claimed if found afterwards in Spain, although the master could have no right over them while in the Netherlands. He appears also to refer only to fugitive slaves. "Equidem arbitror servos Hispaniee hue vel in Franciam venientes proprie ad libertatem non pervenire, quin repeti adhuc in Hispania, si postea ibi deprehendantur, in servitutem possint: verum in libertatem eos denegata, quamdiu hie sunt, adversus ipsos jurisdictione defendi Non enim servi fugitivi recte comparabuntur illis, qui postliminio e manu hostium revertuntur. I. Bequirendi, et passim C. de servis/ugitivis, juncta I. Postliminium, D. Decaptiviset postlim. reversis; aut feris, quae cum custodiam capientis evaserunt se in naturalem recepisse libertatem intelliguntur; §ferce igitur cum §§ seqq. Inst. De rerum divisione."'
§ 319. The argument here is merely that the situation of a slave who has got beyond the jurisdiction, in which he was by law a slave, is not analogous to that of the Roman citizen who, having been enslaved by the enemy, had escaped into Roman or friendly territory or been ransomed or recaptured, or to that of animals ferae naturae which, being escaped from the first taker, become
1 Noted by Grcenewegen in a passage already cited, ante, p. 335.
* Christinceus appears to have concurred in this opinion; compare Christin. Decis. vol. iv. lib. 7, tit. 36, decis. 80, n. 4. "Ipse autem D. Gudelinus meus alias confrater in eodem consilio supremo, subdit se arbitrari servos," etc.
KETURK TO BLAVE-DOMICIL. 385
res nullius, and may be said to have regained whatever liberty they had before.1
But, in the modern international case supposed, the slave has not merely been out of the jurisdiction by whose law he had been a slave, but he has been within a jurisdiction by whose law he was declared free. There has been, in this case, a manumission as complete and competent in law as any which could be given by the master alone, for the master's act can derive force only from the juridical will of the sovereign power under which master and slave are living at the moment." Now, since the effects of manumission are ascribed to universal jurisprudence, (manumissiones quoque juris gentium sunt,) it would seem that such emancipation of the slave by the law of the foreign jurisdiction was to be judicially recognized everywhere, in all jurisdictions into which he should afterwards pass, (unless there should therein be some jus proprium, customary or statute law, requiring a contrary judicial action,) even in that in which he had formerly been a slave.
This certainly would seem to have been the law when the slave had been carried or sent by the owner into the foreign country wherein he had been thus emancipated.3 But a like judicial recognition of this emancipation may, perhaps, have properly been refused, in the country where the person had been a slave, if it had taken place by his voluntary escape; by
1 Animals fene naturae did not, by escaping, cease to be res, objects of property, bnt were the lawful prize of the first next captor. In the modern international case the slave has, by being in a jurisdiction wherein his slavery is not recognized, ceased to be property. It is absurd to conclude that escaped slaves are always the property of the owner from whom they escaped, from the proposition that they do not, like animals ferae untune, become res nullius, or the property of the first taker. The first question is, are they res, or persons? "The jus postlimiuii was a fiction of the Roman law, by which persons and things taken by the enemy were restored to their former state upon coming again under the power of the nation to which they formerly belonged. Postliminium fingit eum qui captus est in civitate semper fnisse. Inst I. t. 12, § 5." 1 Kent, 108. Also, Dig. L. 49, tit. 15, (cited by Gudelin,) §S 3, 4, 5, 15. Gudelin's conclusion is rather in analogy than otherwise with the law of postliminy; therein likening the foreign country, in which the slave became free, to a hostile nation or one with which the Romans had no friendly relations in peace. D. L. 49, t 15. § 8. Inst. I. t. 12, 5. In pace quoque postliminium datum est; nam si cum gente aliqua neque amicitiam, etc., cited ante, p. 151, note 2.
* Ante, § 206, and the notes.
* But Lord Stowell m 2 Hagg. Adm. R. 100, 113, held, that even this would not be equivalent to manumission.