RETURN TO SLAVE-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.

3

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. 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

Animals feræ naturæ did not, by escaping, cease to be res, objects of property, but 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 feræ naturæ, become res nullius, or the property of the first taker. The first question is, are they res, or persons? "The jus postliminii 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 fuisse. Inst. I. t. 12, § 5." 1 Kent, 108. Also, Dig. L. 49, tit. 15, (cited by Gudelin,) § 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. § 3. 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.

2 Ante, 206, and the notes.

But Lord Stowell in 2 Hagg. Adm. R. 100, 113, held, that even this would not be equivalent to manumission.

386

CHATTEL OR 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.'

§ 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 positæ in commercio.

§ 321. But if the condition of slavery had originally been that of a legal person, in a relation existing under the jus proprium, 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

' Cod. lib. vi. tit. 1. 1. 1. Servum fugitivum sui furtum facere, et ideo non habere locum nec usucapionem nec longi temporis præscriptionem, manifestum est; ne servorum fuga dominis suis, ex quacunque causa, fiat damnosa. And from Dig. lib. xlix. tit. 15, 1. 12, §§ 8, 9; 1. 18, § 5; 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 OR RENDITION.

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 may be 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)' 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 quasi-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," to be deter

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, 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. 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, yet, towards

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