INTERNATIONAL STANDARD OF PROPERTY.

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the objects of action, or objects of possession and propertythen no nation, as a subject of the rule above stated, is bound to recognize any natural person as a chattel or thing, the object of property or possession. Vattel makes no mention of slavery in his works, and, in sec. 4 of the Preliminaries, says: "It is a settled point with writers on the natural law that all men inherit from nature perfect liberty and independence, of which they cannot be deprived without their own consent."1

§ 271. This criterion for determining whether Vattel and Pufendorff intended, in using the term property in a rule of international law, to recognize property in slaves, should be sufficient to decide question so far as the rule rests upon their authority. But if the rule is received independently of any particular jurist, and if it is proper, in matters of law, to reject all a priori statements of a law of nature, still a standard of what is or is not property, embraced in international law, must somewhere exist. This can only be the law of nature derived a posteriori, or those definitions, rules, maxims, &c., which, in point of fact, have been recognized by nations (whether they ought or ought not to be so recognized.) And this is nothing else than universal jurisprudence or the law of nations, in that sense, which may enter into public international law as well as into private international law.2

This law of nations, universal jurisprudence, is changeable; so that the applicability of the rule above stated to a question of personal condition or status, at the time referred to, would depend upon the question-whether, in point of fact, the chattel slavery of natural persons was or was not customarily recognized by nations in their respective municipal (national) laws.

§ 272. It will be seen that, in this view, the question of the right of a stranger to hold slaves as property or chattels, under

1 Pufendorff considers the legal nature of slavery very fully in B. III., c. 3, § 6. B. VI., c. 3, §§ 2, 8, taking the same view; while admitting the lawfulness of bondage or slavery of legal persons. In B. IV., c. 4, treating of the origin of dominion or property, he ascribes it to human compact or institution; but, it must be noticed, that he there means the right of private property as opposed to community, not the distinction of property from persons.

Compare ante, §§ 10, 19, 49; and see 1 Phillimore Int. Law, § 223, and Appendix I.

the rule laid down by Vattel, is almost identical with that which, it has herein been supposed, would have existed in the different parts of the British empire during the colonial period; -whether the right of the master, of British race or descent, in respect to his African or Indian slave, was a "common law right," or incidental to the common law right of property and to be supported, as such, in every part of the empire. In each case the question is of the recognition of slavery in universal jurisprudence, the historical law of nations.

The support given to slavery by this international rule of transit, considered in this connection, will therefore be hereinafter ascertained, when pursuing the inquiry, how far slavery could be supported by recognition of the common law right of the master.

§ 273. But, aside from this question of what shall or shall not be considered property, Vattel does not say that, in consequence of the state's duty, created under international law, the law of the state will not affect the stranger in his person or property; or that his relations towards other persons, either in respect to persons or in respect to things will not be affected by the law of the state in which he is found. On the contrary, he states that, with the exceptions already mentioned, the general private law of the forum applies to strangers as well as citizens, or as he says, "the general laws made to maintain good order and which have no relation to the title of citizen or of subject of the state," &c. (B. II., § 101.) And although in this place the thought of the author was principally directed to that part of the laws which maintains good order by a system of police and punishment, yet the whole passage shows that in these general laws" he intended to include that law which decides on the possession and security of property, or what is sometimes called "the law of meum et tuum."

In the next section, (§ 103), Vattel declares, "For the same reason, [i. e., this subjection to the "general laws,"] disputes that may arise between foreigners or between a foreigner and a citizen, are to be determined by the judge of the place, and according to the laws of the place."

§ 274. Thus far in this inquiry into the doctrines of these foreign publicists, the right of the stranger has been considered as one existing under public international law, or in other words, as a right correlative to a duty on the part of the state. But, according to the principles which have been stated in the first and second chapters, these duties and their corresponding rights are not within the sphere of judicial tribunals, determining the rights and duties of private persons, whether citizens or foreigners.

It has been observed in the second chapter that there is much, in the treatises on private international law or the conflict of laws, to justify the idea that a court is to regulate its conduct by public international law and to determine the rights of private persons, by first ascertaining what the duty of the state is under international law. Supposing then that this may be done, that strangers may, under this international rule of transit, have a right as against the state, yet it would seem that a tribunal could recognize it only when correlative to an absolute duty on the part of the state. Now, according to Vattel's distinction, no nation is bound by international law to admit strangers with their property in all possible circumstances. The ordinary entry and departure of strangers is not, according to Vattel, founded on a right and duty thus imperatively justified by international law. It is only in circumstances creating some degree of necessity that the duty is created for the state, and the nature of the property that may be introduced under the correlative right is restricted by those circumstances. It would seem that the courts can recognize slave property in such cases only; if its recognition is to depend on this rule of international law; and that the ordinary or "innocent passage,' which is not accorded in view of any such obligation, does not give the stranger, being the master of a slave, any such exemption from the laws of the forum,1

1 Pufendorff, B. III., c. 3, § 6. "For, truly speaking, the law of humanity does not seem to oblige us to grant passage to any other goods except such as are absolutely necessary for the support of their life to whom they are thus conveyed." And in § 7,-" as the case is very different whether a man desires way through my grounds, because without this privilege he would be, as it were, excluded from the

§ 275. It is the palpable impossibility of determining a right in private persons, when the correlative duty on the part of the state is indeterminable, that has originated a juristical belief in the doctrine of comity as commonly understood; the comity of the nation applied, by the court, for the nation: the court in that case determining how far the state ought to admit the laws of other states to take effect on persons and things within the territorial jurisdiction of the former.1

If a state or a government which had allowed strangers to enter its territory and which had not exercised any control over them should permit its citizens, as private individuals, to injure them in person or in property, that state or government would not, of course, be fulfilling the duty defined by Vattel. But when strangers appear before judicial tribunals, claiming rights or being required to perform certain duties, the judicial and administrative officers of the state do not direct their conduct in view of any particular duty of the state towards the strangers. The courts have only to apply a rule of action for private persons derived from the will of the state without reference to the duties of the state. The question before them may be, whether the state does or does not will that they should recognize the relations of the stranger as they would exist in the place of his domicil. In ascertaining the will of the state on this point, they may, in the absence of positive legislation, refer to the usage and practice of other nations in like cases, (that is, to what they have done, not to what they ought to do,) and to the writings of private jurists so far as they are expository of that practice.*

Vattel, as has been shown, says that the law determining the rights and duties of the foreigners is the law of the forum of jurisdiction. This proposition is strictly true, as a proposition of public international law. The law which the judicial tribunal must apply, is part of the municipal (national) law of

world and confined to solitude, or because he could not otherwise carry off the fruit of his own land; and whether he makes the same demand purely to shorten his passage, and imposes a burthen upon my estate, not to relieve his own necessity, but to promote his convenience and ease."

'Ante, p. 73, 74.

2

Ante, § 93.

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the forum, since it exists or is law by the juridical will of the sovereign of that forum independently of the will of every other à state or sovereign. The just limits of his subject did not allow Vattel to go further and explain the duties of judicial tribunals. This would have been entering the limits of private international law. It does not necessarily follow that he would have I said that the tribunal could never recognize legal effects produced by the law of a foreign state.

When

§ 276. The general principles considered in the second chap#ter will operate in cases wherein there is no precedent. But the courts may always refer to the international practice of other countries, which they may assume indicates a customary law prevailing in all countries, their own included. such customary law has been ascertained the courts may apply it, not as indicating the duty of the state, but as indicating the will of the state. And it is highly important to observe that the rule sought is customary private law-the law customarily applied by judicial tribunals, as known by judicial precedents and authors who treat of international law as it obtains, not as it ought to obtain. A statute enactment therefore, or an act of the sovereign, as such, is not indicative of this rule of customary law; on the contrary there is a presumption that such statute or act differs from the rules which judicial tribunals might lawfully enforce in like circumstances.'

Now, as has been shown, the judicial practice and the writings of private jurists on the customary law of Europe during the 17th and 18th centuries, are unanimous in declaring the rule to be against the international recognition of slavery in countries where it cannot exist under the local or internal law : they make no exception.2

§ 277. The right of the foreigner or stranger to the possession of property which he may bring with him may be main

1 Ante, § 258.

2 If there has been any exception, it would appear to have been where states have been so situated, geographical y, that the passage of the citizens of one through the territory of the other, is indispensable to ordinary commercial access with the rest of the world, or where different states lie on a river or strait, in the common use of which, the subjects of one state must unavoidably be sometimes found within the limits of another.