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386 CHATTEL OB BONDMAN. A DIFFERENCE.
adopting, in this case, the rule of Roman law that the flight of a slave should not be the legal cause of the master's loss.1
§ 320. It would seem that if the status of the natural person whose condition was in question, had been that absolute chattel-slavery which was once recognized in universal jurisprudence, such person, though having that status under the law of some one country, could not have been said to have a domicil therein; and that there could be no determination of the question of status by recognizing the law of domicil, until he should have become a legal person. But if taken to a foreign country, by whose law he became free, he would therein, for the first time in his existence, have become a legal person; and his only possible domicil would then have been that country. And then the rule for determining the status according to the law of the domicil would have required a judicial recognition of his free condition even in the country where he had been formerly a slave.*
At least it may be assumed that the condition of slavery, in case of such return, could not have been supported by a reference to the law of domicil, if the former condition of the slave had been that of absolute chattel or res positse in commercio.
§ 321. But if the condition of slavery had originally been that of a legal person, in a relation existing under the jus pro- prium, he would have had there a domicil. And it might be said, that the mere fact of his having been in another jurisdiction, where that relation was not recognized, was not, in itself, a change of domicil. It would depend upon the slave's capa
1 Cod. lib. vi. tit 1. L 1. Servum fngitivum sui furtum facere, et ideo non habere locum nee usucapionem neu longi tcrnporis prtescriptionera, manifeatum est; ne eervorum fuga dominis suis, ex quacunqne causa, fiat damnosa. And from Dig. lib. xlix. tit. 15, 1. 12, §§ 8, 9; 1.18, 8 6 j 1. 27, 30, it appears that a slave taken by the enemy or stolen, could not acquire liberty as against his former owner by any emancipation otherwise valid.
In the time of Justinian, slavery being everywhere recognized, jure gentium, the modern international case of emancipation by mere change of jurisdiction could not have occurred. A close analogy might be found, where a captive enemy, sold as a slave among the Romans, had escaped to his own nation. Since he must have become free by operation of law there, the question might occur, if he should afterwards, in time of peace, come within Roman territory, whether he would be there free or not.
• Ante, pp. 49,109.
NO EXTRADITION OB BENDITION. 387
city to acquire a domicil; and upon his intention to do so, provided he had the capacity. If it should be held that such capacity could not exist independently of the master's consent, yet in cases where the slave was not a fugitive but had been carried, by the master, into a jurisdiction not recognizing slavery, the latter must be regarded as consenting to the operation of laws to which he voluntarily and unnecessarily had subjected himself. But still, in that case, the intention of the slave party to acquire a domicil must be essential, and it would not be acquired in cases where he had remained with his owner or master, and returned with him to their former common domicil.
§ 322. From the various authorities and instances which have here been collected, it appears that the correlative rights and obligations between persons who, in another state or forum, had sustained the relation of master and slave, had, in every state or forum of jurisdiction wherein the master had made a public claim for personal service, been regarded only as rights and obligations determinable by private international law and as subjects of ordinary judicial inquiry solely. Or again, to use a negative form of expression, the question of maintaining those rights and obligations, in the state or forum where the claim had been made, had never been regarded as one arising under public international law, (or the law of nations in that sense,) the rule—a law in the imperfect sense—operating on states or nations as its subjects. The demand of the claimant owner had not been made upon, or at least had never been entertained by the administrative officers of the state. Or again— in a different form of expression—the claim of such a master to such a slave had not been made as a demand for " extradition" or "rendition" upon those who might represent the state in its sovereign intercourse with foreign states and alien persons.
It may have been that, during the period which has herein been considered, such demands and extraditions were sanctioned and allowed by public international law in the case of convicted criminals or persons fleeing from justice. And it may have been that in that case such " extradition " was decided upon 388 THE PERSONAL LAWS. without reference to any ordinary judiciary or administrators of private law—the ordinary courts of law. It certainly does not appear that similar demands were ever allowed in Europe or America, if ever made, for fugitive slaves, at any time before the formation of the present Constitution of the United States.
§ 323. A variety of circumstances maybe imagined in which the determination of rights and obligations arising out of the status of slavery would (from the fact that the persons, whose rights and obligations were to be determined, had at different times been subject to different jurisdictions)1 present questions of private international law. But there are no records to show whether, except in the circumstances already considered, the application of that law to questions of personal status had ever, during the colonial period, been exemplified in actual cases before judicial tribunals. And, except in these instances, the private jurists of the time now under consideration do not appear to have examined into its application. No examination therefore will be here attempted of any such supposable cases.
§ 324. Recurring again to those laws which have already been described as having a personal extent, in reference to two classes of persons in the American colonies, and thus having had an international or gmm-international operation therein,* although the relative rights of persons, of European birth or descent, in respect to things or classes of things might differ in the several colonies, the law of individual and ordinary relative rights, in relations wherein persons were the objects of action, was substantially the same, for domiciled inhabitants of the English race, in each colony as in England itself. When therefore the inhabitant of any particular jurisdiction of the empire, being of European race, appeared within any other particular jurisdiction of the empire, although his rights in relation to things might differ from those of the domiciled inhabitant of that jurisdiction, and the determination of his relations, in that respect, might present a case of the so called "conflict of laws,"3 to be deter
• Ante, § 74.
• Ante, §§ 193, 208, 241-246.
• Compare Chalmers' Pol. Annals, 698, 692
SLAVERY NOT PROTECTED BY THEM. 389
mined by the private international law, as known in that jurisdiction, yet his individual and ordinary relative rights, constituting his personal condition or status, were, by force of the national law of the empire, the same as those of the domiciled inhabitant of the same race in like circumstances of natural condition; that law having the effect of an international law in securing to him those rights in each several jurisdiction of the empire, though not therein domiciled.
The English law of rights and liberties, being thus a personal law to the domiciled subject of European race, secured to him the right of locomotion and residence throughout the empire, irrespectively of the boundaries of particular jurisdictions; and gave him the right of acquiring a domicil in any part of the national domain.
§ 325. If the domiciled white inhabitant of one of those several jurisdictions appeared in another claiming therein the rights of an owner in respect to a person held by him as a slave in the place of his domicil, that claim could be supported by the force of "the common law," as the personal law of the privileges of the master having national extent, only, if ever, while the historical law of nations—universal jurisprudence— recognized chattel slavery. For, as has been shown, it was only by virtue of this law of nations, that chattel slavery could be held to be supported by the common law of England. Although the right of private property was an individual right under "common law," yet, in England, property was to be defined either by universal jurisprudence or the local internal law of England,1 and it has been shown that servitude under the internal law of England was known only as a feudal relation, except while the law of nations, judicially cognizable, supported chattel slavery.9 When that law, during the colonial period, became changed, the extent of the right of property under English common law became modified. Therefore admitting that, at the introduction of slavery into the colonies, the common law of England recognized slave property,3 yet, towards
1 Ante, § 215, 244. • Ante, §§ 291, 292. • Ante, §§ 201, 281.
390 STATUS OF AFRICANS BY LAW OF NATIONS.
the end of the colonial period, the right of a domiciled master in respect to his baptized, civilized, American-born negro, (whether by law a chattel, or a bond person,) rested in the place of his domicil, upon the local law only, and its recognition in any other colony depended upon the principle of comity with its limitations, as they have been before described.1
§ 326. So, on the other hand, although the condition of a person of the African or Indian races, domiciled in any one jurisdiction of the empire, might, under the local law of that jurisdiction, consist in rights of the same legal nature as those which characterized the condition of an inhabitant of the same jurisdiction who was of the English or European race, yet those rights were the result of a law confined in its territorial extent to that jurisdiction, and not of a law having national extent; and therefore the support of those rights or of that condition would depend, in any other part of the empire, upon the private international law as received and applied therein by the local (colonial) source of power.
§ 327. It would depend upon the actual international recognition given by different nations to the relations of alien negroes, created under the laws of their domicil, whether any principles, having personal extent to them only, should acquire the character of a law of nations or a rule of universal jurisprudence, after the time at which chattel slavery had ceased to be supported by that law. If, for the negro race, in international relations created by the public and private law of different countries, only a partial recognition should be made of a condition of rights and privileges, such as in like circumstances would be given to whites, then, although the slavery of an alien negro might not be internationally recognized, there might a certain condition of social inferiority be assigned to him in the forum of jurisdiction, based upon universal jurisprudence.
But it has been shown that the condition of a private person in respect to privilege can be attributed to the law of nations
1 See ante, p. 324, where it was assumed that before the close of the colonial period the right of ownership would not have been sustained by the "common law of England " having personal extent throughout the empire. It is here stated As proved.