STATUS BY LAW OF NATIONS.

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law rules applicable to contracts. The English common law, as it has been received in America, has never enforced the contract, as against the party contracting to serve, by compelling a specific performance. It has only given a remedy between the parties in pecuniary damages, as in case of a breach of any other contract.1

§ 144. It has been shown in the first chapter that the unwritten or common law, in England as well as in every other country, being derived by a judicial recognition of natural reason applied to the necessary conditions of human existence,in determining what principles are to be received as rules of natural reason with the force of positive law, the tribunals of each country must refer to standards indicatory of the juridical will of the state from which they derive their authority. It was further shown that among these standards are those principles which are known from history to prevail generally among all nations, forming a general or universal jurisprudence—a historical law of nations-which must be received as part of the jurisprudence of the state; unless the local law of the state, derived from its own national usage and judicial precedent, or from positive legislation, contains principles promulgated with universal personal extent, having a contrary effect. Therefore in determining what that common law of England was which accompanied the British colonists in America as a personal law, it must be inquired whether, at the time of the settlement of the colonies, there were any principles of universal jurisprudence -historical law of nations-affecting the status or condition of natural persons, which could, in England, be judicially applied as part of the common law; and whether, at that time, the local law of England, or rather the law derived from its own several national usage, and its own judicial precedents or legislation (operating without reference to the existence of other states or nations), contained rules, having a contrary effect,

'1 Blackf. Ind. R. 122, (1821) case of Mary Clark, a woman of color. Marg. note. "It is a general rule that covenants for personal service cannot be specifically enforced either at common law or by statute. The case of apprentices depends on parental authority, that of soldiers and sailors on national policy." The condition of adult servants indentured under contract, which was common during the colonial period, depended on special statutes. See post, ch. v.

which were so promulgated as to have universal personal extent in England, and therefore to prevent the judicial recognition and application of those principles of universal jurisprudence or the law of nations.'

§ 145. This inquiry into the principles of the law of nations, affecting personal condition, considered as part of the common law of England, will be examined in a separate chapter. But it is convenient here to remark, though actually by way of anticipation, that in the view of almost every historical writer who has treated of the establishment of laws in the American colonies, the private law of England, or the private law having territorial extent in England, during the period when the colonial patents and charters were granted, is taken to have attributed the individual and relative rights before spoken of as being called, in connection with their guarantees in the public law, the liberties of Englishmen-the privileges and immunities of the free-born British subject,-without distinction of race, descent, or physical constitution, to all natural persons actually within the territorial limits of the British Isles; or at least to all native and domiciled inhabitants; subject only to the rights of others having the same general denomination, growing out of the relations of persons all equally privileged in respect to that law; the relations of parent and child, husband and wife, master and servant, the relations of contract, those founded on the feudal tenure of land, and those incident to the punitive and remedial laws of the state. Personal liberty, in the sense of one of these rights, signifying the freedom to dispose of one's person and powers of body and of mind, without control by others who are not representatives of the ultimately supreme authority.

§ 146. When it is said that the law of nations is part of the common law of England, it cannot be so said with propriety if by this it is intended that the international law,-meaning that rule of which states are the subjects, is part of that common law.

Compare ante, § 99.

2 As in 1 Bla. Com. 273. 4, same, 67. 1 Kent's Com. p. 1. Triquet v. Bath, 3 Burr. 1478. Heathfield v. Chilton, 4 Burr. 2015. Case of Henfield, by Judge Wilson, Duponceau, p. 3, and note. 3 Dallas, R. 392.

LAW OF NATIONS-PRIVATE LAW.

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For the common law is law in the strict and proper sense, which this international law is not.' The common law is a municipal law (national, jus civile, ante § 9, n.) in being founded on the national sovereignty of England, as the absolutely independent authority for that rule of action which determines the relations of the individuals known as its subjects, according to the principles which define the existence and mode of action of sovereign states. But the historically known law of nations-universal jurisprudence, herein before defined, so far as it contains principles determining relations of private persons, is an indication and criterion of natural reason, to be judicially received, not as having any authority in itself independent of that sovereignty upon which the municipal law of England (national law-both internal and international according to its application) rests, but because already customarily received and allowed as an exposition of its juridical will, unless the law peculiar to the territorial dominion of that sovereignty, founded on local precedents or legislation, requires the application of principles having a contrary effect.

NOTE. As has been shown in the second chapter, the juristical conception of a universal jurisprudence or law of nations requires the recognition of some persons as alien, or as having sustained relations created by foreign laws; and the exposition of principles having that character cannot be looked for, in the juridical history of any one state or nation, before the time when a peaceful intercourse has subsisted, under its jurisdiction, between the native or domiciled subjects of the state and persons recognized as subjects of foreign states; that is, before a private international law has become a distinguishable part of the national law. (See ante, §§ 92-96). The thirtieth chapter of Magna Charta declares, “All merchants (if they were not openly prohibited before) shall have their safe and sure conduct to depart out of England, to come into England, to tarry in, and go through England, as well by land as by water, to buy and sell without any manner of evil tolles, by the old and rightful customs, except in time of war." (See 2 Co. Ins. cap. 30). Unless this was only declaratory of an existing common law principle, it must be supposed that, before this, aliens had no legal rights in England, and that it is only after this period that a law of nations could find place in the common law, by the application of private international law. See Walker's Theory of the Common Law, ch. XX.

CHAPTER IV.

THE ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES,- -THE

SUBJECT CONTINUED. OF PRINCIPLES OF UNIVERSAL JURISPRUDENCE, RELATING TO FREEDOM AND ITS OPPOSITES, ENTERING INTO THE COMMON LAW OF ENGLAND.

§ 147. It is proposed in this chapter to ascertain, from the history of jurisprudence among European nations, what principles, affecting natural persons in those relations which constitute a condition of freedom or of bondage under private law, were judicially known as part of the historical law of nations at the time of the planting of the colonies, and the date of their charters; and next, whether those principles could be applied, in England, as part of the common law derived from the judicial interpretation of natural reason, to determine the condition of natural persons.

This universal law or law of nations, it will be remembered, becomes a topic of judicial recognition by an international comparison of the effects of different systems of municipal law in the relations of persons considered as alien to some one jurisdiction. A historical investigation of the law of nations, as forming part of the common (unwritten) law of any one state, involves therefore, in some degree, an exposition of the private international law of that state, as well as the private municipal (internal) law thereof. It is thus necessary, in this chapter, to anticipate somewhat the subject of a succeeding chapter, which 1 Ante, § 94.

is the private international law, in England and America, during the colonial period, affecting relations of freedom or of bondage.

§ 148. In the earlier periods of the existence of positive law (as the subject of jurisprudence is herein denominated in respect to its authority), when natural justice—the presumptive will of the state, was ascertained by the autonomous judgment of each judicial tribunal, according to its own apprehension of natural reason,' there could hardly be said to be any judicial rule, forming part of the municipal (national) law of any one state, which had, beyond any other part of that municipal law, a universal character, or the character of an exposition of the law of nature, or was more directly derived from the natural reason of mankind than any other legal principle. Still less, at a period when international intercourse was almost unknown, or considered beyond the pale of judicial authority, could there any rule which might be considered a universal law, or law of nations: for it is only by the intercourse of persons subject to different municipal laws that a law of nations can be judicially distinguished. In the imperfect civilization and intercourse of nations in earlier ages the means of collecting and digesting judicial precedents were too limited to allow any settled exposition of natural reason, as a rule of action derived from a comparison of the laws of various states.

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The jurisprudence of the several nations of remote antiquity must have contained numerous principles common to each, but, previously to a mutual knowledge of each other's institutions, there could be no definite acceptation of natural reason from the concurrent testimony of the various independent sources of positive law. The laws of the Roman Republic are the earliest of which it can be said positively that they were founded on a recognition of the force of the concurrent usage and legislation of various nations, as an indication of a rule of natural reason deserving to be judicially received by any one state. This recognition was made in legislative action if, as is commonly believed, the laws of the Twelve Tables, B. C. 454, were compiled by persons specially instructed to regard the laws of the