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THE DECISION JUSTIFIED.

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it would have been otherwise proper. And the majority of negroes imported into England were probably not distinguishable as either Christian or heathen. A large proportion may be supposed to have voluntarily continued in the service of their former owners, and, except in the sales which may have taken place, the enforced character of their service had no public recognition. The sales were probably confined to London and the larger seaport towns. To say nothing then of the want of judicial recognitions of such a servitude, and nothing of judicial dicta against its existence, the practice of holding in bondage negroes, who were not known in law as chattels, had not that general publicity, definite character and general recognition which must characterize custom if it is to be held for common law.'

Negro slaves could hardly have been brought into England before the middle of the seventeenth century. The practice of detaining christianized negroes in servitude there had not then the characteristic requisites of either general or particular custom.5

There are, too, some cases in which judicial tribunals may

'Observations of Lord Mansfield, Lofft's R., p. 8.

Even though they received no wages, and therefore they might not be able to recover any thing for their service on a quantum meruit; see Alfred v. Marquis of Fitzjames, 3 Espinasse, p. 3. (Easter, 39 Geo. III.)

'That negroes were sometimes sold in London, in corpore, appears from advertisements in the papers of that day. (Senator Sumner's Speech, Senate, Aug. 26, 1852.) The sales, at London, of negroes then in the Plantations on the estates to which they belonged, which were probably of frequent occurrence, were not instances of the custom which is now under consideration. Such sales were made there after this decision, as sales of negroes, being in foreign slaveholding territories, may still be made

See ante, § 31 and notes. Lindley's Thibaut, Appendix, xiii-xvi. The custom, so far as it existed, may also in part be ascribed to ignorance of their rights on the part of the slaves. This could not perhaps have been considered under the stern rule of English law. The Roman law admitted the plea of ignorance of law in certain cases. "It was a valid plea to minors, women, soldiers, (propter rusticitatem,) to all who were beyond the reach of legal advice and information."-J. G. Phillimore's Principles, &c., p. 97.

"Customs which are opposed to written law (correctoriæ, derogatoriæ) are held by the Roman jurists to be invalid, unless they have been specially confirmed by the supreme power of the state, or have existed immemorially: and it is immaterial whether they consist in mere non-observance of the written law (desuetudo) or in the observance of new principles opposed to such law, (consuetudines abrogatoriæ:) and it is also immaterial whether the customs have or have not been confirmed by judicial decisions." Thibaut, Lindley's Transl. § 17. But the author notes a great variety of opinion on these points. It might be said that in the great charters, the Bill of Rights, the Habeas Corpus Act, &c., the law attributing personal rights to the English subject, in England, had become written or statute law.-1 Bl. Comm. 127, 128.

HOW RECONCILED WITH COLONIAL LAW.

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determine the validity of customs by a standard of reason.' 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. 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 ususque longævi non vilis auctoritas est, sed non usque adeo sui valitura momento, ut rationem vincat aut legem.-Cod. viii., tit. 53, Quæ sit, &c., 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 libertatis. Coke'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. Angliæ jura in omni casu libertati dant favorem." The whole passage in Fortescue is, "Crudelis necessario judicabitur lex, quæ 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 naturâ. 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. Hæc considerantia Angliæ 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.

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HOW RECONCILED WITH COLONIAL LAW.

dence, being expressed in the Roman law and received by all European states. 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.2

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 sed publica est.-Dig. Lib. xl., tit. 5, 1. 53. Nemo enim prohibendus est libertati favere.-Dig. Lib. xliii., tit. 29, § 3, 1. 9. Quoties dubia interpretatio libertatis est, secundum libertatem respondendum.-Dig. Lib. 1. tit. 17, leg. 20. Libertas omnibus rebus favorabilior est.-Ibid. 1. 22. 2 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 quæ a majoribus constituta sunt ratio reddi potest. Et ideo rationes eorum quæ constituuntur, inquiri non aportet, alioquin multa ex his quæ certa sunt subvertuntur.-Dig. L. tit. 3, 1. 20. And-Communis error facit jus.

CHAPTER X.

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 existing1 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 may be exemplified by the decision in the case of Knight, the negro, 15 January, 1770. His master bought him as a slave in

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RETURN TO SLAVE-DOMICIL.

§ 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,' 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 Hispaniæ huc 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 hic sunt, adversus ipsos jurisdictione defendi. Non enim servi fugitivi recte comparabuntur illis, qui postliminio e manu hostium revertuntur. 7. Requirendi, et passim C. de servis fugitivis, juncta l. Postliminium, D. De captivis et postlim. reversis; aut feris, quæ cum custodiam capientis evaserunt se in naturalem recepisse libertatem intelliguntur; Sferæ igitur cum §§ seqq. Inst. De rerum divisione." 2

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§ 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 feræ naturæ which, being escaped from the first taker, become

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.

1 Noted by Groenewegen in a passage already cited, ante, p. 335.

2 Christinæus 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.

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