SEC.

THE ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES-THE SUBJECT

PRINCIPLES DETERMINING THE CONDITION OF PERSONS

CONTINUED.

TO WHOM THE LAW OF ENGLAND DID NOT EXTEND AS A PERSONAL LAW.

Circumstances determining the extent of laws of condition in the

colonies.

192. The territorial and personal extent of laws of condition depends on

some possessor of sovereign power,

193. Distinction between the personal and territorial extent of the

English law of free condition,

194. The liberties of the colonists ascribed to positive law, not to natu-

ral law,

PAGE

195

196

Of law determining the condition of persons not of European race.

195. Classification of natural persons in the colonies who were alien to

the law of England,

196. The law applicable to the original inhabitants, how derived,

197. The law applicable to persons coming from other countries was a

part of international law,

198. Necessity of recurring to principles of universal jurisprudence,

199. Of such principles determining the condition of the aboriginal in-

habitants,

199

200

201

202

200. Of such principles supporting the introduction of negro slaves,

201. Negro slavery an effect of customary law,

205

206

204. Status of the baptized African or Indian, how determined by custo-
mary law,

202. Term colonists in the charters how to be understood,

203. Power of the imperial government to determine the condition of

imported negroes,

205. The condition of slavery an effect of the local law of a colony,

206. Of the Roman law of manumission,

207. Condition of the free Indian or emancipated negro was an effect of

the local law of a colony,

208. The two systems of personal laws were equally jural in character, 217

Of other laws determining the condition of white persons.

209. Extension of the English law of free condition to colonists of other

210. Origin of the servitude of white persons for terms of years,

211. Legal incidents of the condition of such persons,

212. Extension of English dominion in territory first occupied by other

217

218

THE ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES-THE SUBJECT

CONTINUED. LOCAL LEGISLATION DETERMINING CONDITIONS OF FREE-

DOM OR OF BONDAGE.

SEC.

Of the power of the colonial governments over slavery under the pub-

lic law.

PAGE

213. National law affecting the subject distinguished from local law, 222

214. The local legislative power, in respect to Africans and Indians, was

not limited by English common law,

215. Nor in respect to slaves by the guarantee of the right of property to

the English owner,

Of the actual legislation of the colonies.

223

224

216. Apparent necessity of some legislation in reference to the condition

of slavery,

225

217. Object and extent of the view here taken of colonial legislation,

218. Legislation of Virginia,

226

228

OF THE PRIVATE INTERNATIONAL LAW EXISTING FOR THE SEVERAL PARTS

OF THE BRITISH EMPIRE DURING THE COLONIAL PERIOD, AND RELATING

TO CONDITIONS OF FREEDOM AND BONDAGE OF THE CONDITIONS UNDER

WHICH SUCH A LAW MIGHT EXIST.

General principles respecting the existence of international law.
231. International law based on the possession of sovereign power by dis-
tinct persons,

232. Of an integral possession of sovereign power by states or nations,

312

312

233. Of a distributed possession of the sovereign powers of a state or

nation,

234. Of an international or quasi-international law arising from such

distribution,

PAGE

314

315

Of the international relations of the different parts of the British

Empire.

235. Sovereign powers, how distributed in the empire during the colo-

236. Of jurisdiction, and its recognition in private international law,

237. Of domicil as distinguished in the international law of status,

238. Of the portions of the British empire distinguished in respect to

jurisdiction and domicil,

Characteristics of the law determining the condition of persons not
domiciled.

239. Public and private character of the law determining the condition

of aliens in a colony,

240. The condition of such persons as affected by circumstances already

stated,

241. Of a distinction among such persons according to differences of

physical constitution,

242. Origin and continuance of law determining the condition of the

alien of white race,

315

316

316

317

318

318

243. Origin and continuance of law determining the condition of the

alien of African or Indian race,

244. The condition of the last, whether bond or free, determined by the

local sovereignty,

245. The right of the owner of slaves how far resting on national law

of the empire,

246. Franchises enjoyed by persons of African or Indian race were not

supported by the national law,

247. Bondage of indentured white servants partially sustained by the

national law,

325

248. The law applying to such persons is properly described as interna-

tional law,

326

249. Character of the law applicable to minor apprentices, .

326

OF THE PRIVATE INTERNATIONAL LAW OF THE COLONIAL PERIOD AFFECTING

CONDITIONS OF FREEDOM AND BONDAGE-THE SUBJECT CONTINUED

OF ITS ACTUAL EFFECT OR OPERATION.

SEC.

Of law on this subject derived from a colonial source.

250. Of the origin of the law to be ascertained, either in legislation or

in judicial decision,

251. Of the deficiency of legislative enactments on this topic,

252. Of the deficiency of recorded colonial judicial decision on this

topic,

253. Probable international practice with reference to white servants

and minor apprentices,

254. The term servants in intercolonial agreements probably included

slaves also,

Of law on this subject derived from British precedents.

PAGE

328

329

330

330

331

255. Of the case of Somerset as a precedent of international law,

256. Of two Scotch cases having the like character,

331

332

257. Authority of such cases compared with that of foreign precedents, 333

Of law on this subject as derived from foreign precedents.

258. Reasons for recognizing a customary international private law, in-

dependent of what is called comity,

259. Authorities on the law of the Netherlands,

260. Case of the Polish refugee in Holland,

261. Authorities on the law of France,

262. Authorities on the law of Germany,

263. Of the distinction of race as noticed or not in these authorities,

264. The customary law of France as exhibited in the case of Verdelin's

slaves, and of Francisque,

265. The rule against the recognition of slavery, as derived from these

authorities,

Of the rule of property of alien owner in transit protected by inter-

national law.

266. How Puffendorf and Vattel are commonly cited on this point,
267. Vattel's statement of the stranger's right of transit,
268. His limitation of the extent of this right,

269. The criterion of property is to be taken from these writers,

270. Neither writer recognizes men as objects of property,

271. Why universal jurisprudence must be taken as determining prop-

erty under the rule,

272. Inquiry into this, why postponed,

PAGE

349

349

273. Other proof from Vattel of the inapplicability of the rule,

274. The duty of the state under international law differs according to

circumstances,

350

352

275. Duty of judicial tribunals compared with that of the state,

276. The duty of the tribunal is found in the customary judicial prac-

tice of foreign nations,

277. Slavery recognized under the rule only when maintained by uni-

versal jurisprudence,

353

353

CHAPTER IX.

OF THE PRIVATE INTERNATIONAL LAW OF THE COLONIAL PERIOD AFFECT-

ING CONDITIONS OF FREEDOM AND BONDAGE--THE SUBJECT CONTINUED

-EXAMINATION OF SOMERSET'S CASE IN THIS CONNECTION.

View of the general principles applicable to the circumstances of this

case.

278. In what connection such cases are here considered,

355

279. Reference to doctrines of private international law stated in the

second chapter, .

355

280. The doctrine of universal jurisprudence anteriorly applied to the

negro race,

281. How far, as part of English common law, it had sustained slavery, 357

282. Slavery of negroes attributable to it only while heathens,

283. Slavery not attributable to it if not an absolute chattel condition,

284. If not so attributable, slaves not property at common law nor un-

der the rule of transit,

358

359

359

285. Universal jurisprudence, known in the practice of nations, might

have changed,

360

286. Proof that it had changed, again stated,

360

287. Slavery therefore not supported by universal jurisprudence,

288. Nor by English common law, nor the international rule of transit,

289. Might be recognized on this ground in places where slavery con-

tinued,

361

362

362

290. But not known as effect of universal jurisprudence when rejected

in the internal law,

363

291. Hence, not so known in Massachusetts and the British isles; inde-

pendently of foreign precedent,

364

292. Nor sustained by the law having a national and personal extent for

the master,

364