very in the colonies, if not in England; their effect being however mainly to recognize property in negroes when on the high seas in British vessels, and before they could, as natural persons, be considered the domiciled inhabitants of any of the British dominions. The just effect of these statutes in this respect is derived from the view herein before given of the law of nations, and its effect in international and municipal (internal) law.1

§ 204. If undetermined by imperial statutes or by the charter provision, the condition or status of the African or Indian, when regarded either as a natural person within the territorial limits of a colony or as the property of a legal person domiciled within those limits, would depend upon the powers vested in the local or colonial government, as being one of the subjects of its proper jurisdiction. The law derived from the exercise of this power would be known either from positive legislation or from a judicial application of natural reason, in the manner indicated in the first chapter. Principles thus judicially applied would form a part of the common law prevailing in and for the colony. It was an admitted principle of the colonial system, or of the public law of the Empire, that the colonial courts, in determining the rules having this character, were independent of the courts of common law in England. Their decisions were reviewable, if at all, only by the king in council. Common

See ante, § 176. Burge's Comm. vol. 1, p. 737, n. ; "The following are among the numerous acts by which the British legislature encouraged the African slave trade and sanctioned slavery in her colonies:-Royal charters of Cha. 2, in 1664 and 1672, 9 and 10 Wm. 3, c. 26. The 6 Anne, c. 37, § 18, subjects captains of his majesty's ships of war, arriving at any of the harbors of the colonies, "to the good and necessary laws in force there for the preventing the carrying off from the said colonies any servant or slave, without the consent of the owner, and to the penalties and forfeitures declared by such laws." 10 Anne, c. 27. The Queen's speech to Parliament in June, 1712. 23 Geo. 2, c. 31. 25 Geo. 2, c. 40. 4 Geo. 3, c. 20. 5 Geo. 3, c. 44. 23 Geo. 3, c 65. 27 Geo. 3, c. 27. The proceedings of the House of Commons from 1707 to 1713. Acts encouraging loans to the proprietors in the West Indies from British subjects and foreigners. 5 Geo. 2, c. 7. 13 Geo. 3, c. 14. 14 Geo. 3, c. 79. 1 and 2 Geo 4, c. 51. 3 Geo. 4, c. 47. 5 Geo. 4, c. 113, § 37. 59 Geo. 3, c. 120, for the registration of slaves. The act of the legislature of Pennsylvania, 7 June, 1712, to prevent importation of negroes and Indians into that province, was disallowed by Great Britain and accordingly repealed by act of Queen Anne, 20th Feb. 1713.1760, South Carolina passed an act to prevent the further importation of slaves, but Great Britain disallowed the act and sent a circular to all the other governors, prohibiting them from assenting to any similar act."

'Story's Comm. §§ 163, 175, 176, and citations.

law had therefore in each colony a several growth or progressive formation, as it had in England, and if the personal guarantee of rights, according to the law of England, did not apply to the negro or Indian inhabitant, there was no necessity that the rules judicially derived to determine their condition, as domiciled subjects under their several judicatures, should be the same in England and in the colonies. It does not appear from any historical record that the question-whether a heathen negro or Indian slave became free on being converted to Christianity, or on receiving baptism-was ever discussed before the colonial courts.' It is certain that slaves so converted or baptised and their issue, born in the colonies, and therefore, it would seem, nominally Christian, were usually retained in slavery and bought and sold, either as bondmen or as chattels, and that the right of ownership in such slaves must constantly have received judicial recognition before the existence of any colonial statutes determining their condition. It seems impossible now to ascertain whether the courts regarded the slave, after conversion, as still a chattel, or as a legal person held to bondage for life. The different colonial judicatures may, very probably, have had different views on this point. In determining the application of natural reason to the circumstances of converted or baptised slaves and their issue, they undoubtedly referred to the usage and practice of other nations, in reference to the same class of persons. Under this reference, if they regarded slaves as legal persons, capable of contracting legal marriages, they may have held that the condition of the issue followed that of the parents,

There are however many colonial statutes which show that the question had been mooted. See post ch. vi. Mr. Bancroft, Hist. U. S., iii. 409, says "From New England to Carolina, the notion' prevailed, that being baptized is inconsistent with a state of slavery;' and this early apprehension proved a main obstacle to the culture and conversion of these poor people." Citing Berkeley's Works, iii. 247.

The statute of Virginia, 1682, c. i., see post ch. vi., seems to recognize the existence of a principle of universal prevalence that a negro, Moor or mulatto slave, having been converted to Christianity, is no longer a chattel, and can only be considered as a servant bound for years, on an equality of status with European imported servants; and that such person can be a slave only by force of some statute or local custom-jus proprium. It declares that "by the laws of this country" the conversion "doth not manumit them or set them free," but that, if introduced after conversion, the master or owner would be obliged "to depart from their just right and title to such slave and sell him for no longer time than the English," &c., &c.

where both were slaves; and that, in the case of mixed marriages and of births out of wedlock, the civil law rule-partus ventrem sequatur-obtained, irrespectively of the rules of condition by descent derived from the customary law of England. It is however probable that the chattel character was generally ascribed to the captived slave, and that the rule of descent derived from the civil law was judicially received, in all cases, to determine both the condition of the issue and the right of ownership in the offspring of slaves of different masters.' The law arising from the judicial determination of these points, having never been questioned under the royal right of supervision, created a common law in and for the colony, and was, independently of statutes, a sanction for slavery, even though this judicial application of common law may have differed widely from the doctrine sustained by the English courts of law: though, as has been shown in the previous chapter, it is very questionable whether the doctrine contemporaneously received in England, during the period which elapsed between the introduction of heathen slaves and the existence of local customary

1 The rule of the Roman law--determining the condition of the issue by that of the mother-applied only when there was no legal marriage. Dig. L. I. t. 5, § 24; Lex naturae hæc est ut qui nascitur sine legitimo matrimonio matrem sequatur, nisi lex specialis aliud inducit. Blackstone II. 94, says-" But no bastard can be born a villein," citing Co. Litt. § 188; but this is probably incorrect, see the note on Coke by Hargrave and Butler, and in Mirrour c. 2, s. 28;-"Those are villeins who are born of a freeman and a neif, and born out of matrimony." The rule applied where either parent was a chattel slave, because, not being legal persons, the legal relation of marriage could not exist, and also because the issue of a female slave was regarded as the natural increase of a chattel: see Heinec. Jur. Nat. et Gent, L. ii. § 81. If the Roman law contained any rule determining the condition of those born in wedlock, it was that the child should be of the father's condition. The Roman law knew no slaves but such as were chattels; but under the feudal codes the bondman and bondwoman were legal persons; the issue therefore was not regarded merely as the increase of property, and though they followed the condition of their parents, yet, with some Germanic or Gothic nations, the children of serfs belonging to different feudal lords, were divided by an "alterna vernarum partitio." Heinec. u. s. note. Where the parents were of different conditions the issue generally followed that of the father as in the English law: Bla. ii. 94, Co. Litt. § 187, and notes; though a rule of alternation as between the children of a neif and a freeman prevailed in some parts, see Glanvill, lib. 5, c. 6; and the same general rule seems, from Littleton and Houard, to have been Norman law, though Barrington on Stat. p 249, n., supposes the rule in France to have followed the civil law, citing the proverb-La verge annoblist et la vontre affranchist. The phrase-partus sequitur ventrem is not, I believe, to be found in the Corpus Juris, and probably originated with the modern civilians. But the point to be noticed is, that the condition of the issue of legal persons in bondage, whether born in wedlock or not, depended on a local law or custom,-jus proprium, not jus gentium. Compare Fortescue de Laud. c. 42.

and statute laws establishing slavery, was different from that of the colonial courts. And however far the colonial courts may have been bound by the local law of England, as ascertained at the time of the first exercise of their judicial power, they were not held to modify the common law, as it had thus grown up under their own exposition and acquired a local character, by following the later English decisions.

§ 205. Thus the condition of slavery, if unknown to the law of England, nevertheless became established under the common law of the several colonies; which however, being a local law only, was entirely distinct, in its origin and authority, and in its territorial and personal extent, from that common law which was national, in those attributes, and which was, in each part of the Empire, the common measure of the personal rights of the English-born subject and his descendants. The colonial Governments appear to have exercised, without question, an unlimited control over the condition of such persons of the African and Indian races as were domiciled inhabitants of their several territories; that is to say, their legislation, in respect to such persons, does not appear to have been at any time restricted by any of the charter provisions.' The legislation of the several colonies in reference to slaves will be collected in the next chapter but under the view which has been herein taken it is not necessary to cite it in this place as establishing chattel slavery. It will be seen that, in the statutes of each colony, slavery is viewed as an existing institution of law."

This point will be farther considered in the commencement of the next chapter. 2 Seville v. Chretien, (1817,) 5 Martin's Louisiana R. 275. "It is an admitted principle, that slavery has been permitted and tolerated in all the colonies established in America by the mother country. Not only of Africans, but also of Indians. No legislative act of the colonies can be found in relation to it."

Connecticut Revised Laws of 1821; Title 93, Slavery; note-" Slavery was never directly established by statute; but has been indirectly sanctioned by various statutes, and frequently recognized by courts, so that it may be said to have been established by law."

66

"By custom or statute, whether legal or illegal, slavery existed [A. D. 1750] as a fact in every one of the Anglo-American colonies," 2 Hild. 419, which see also for a summary of the condition and numbers of slaves at that time.

Even in Georgia, where until the year 1749 (see Stevens' History of Ga. 285, 312) it was not permitted, it is held not to have been introduced by positive legislation. By the Court, in Neal v. Farmer, (1851,) 9 Geo. R. 580, it is said-"The title to a slave in Georgia now and under the colonial government is not and was not derived

§ 206. According to the definitions given in the first chapter, legal relations can exist only as the effects of some law,some rule identified with the juridical will of the state. A natural person held in chattel bondage cannot acquire individual or relative rights, except under such law or juridical will; to be ascertained from positive legislation or by the judicial application of natural reason. It is by the recognition of universal jurisprudence or the law of nations, under this judicial action, that the act of the master renouncing his right in respect to the slave, or setting him free from his bondage, has been held, wherever chattel slavery has been known, to invest the natural persons so set free or manumitted, with individual rights and a capacity for relative rights. Manumission, that is, the legal consequence of the master's act, and the condition of a libertinus or freed person, is, in the Institutes, ascribed to the jus gentium.'. During the earlier centuries of the Roman Empire, three conditions were recognized among the Libertini or Freedmen; all, however, inferior to that of the Ingenuus or Free-born. But the descendants of a libertinus were not distinguished from other free born persons. Justinian not only

from positive law. The faculty of holding slaves was derived from the Trustees of the Colony acting under authority of the British crown, as a civil right in 1751, by an ordinance of that board. Before that time their introduction was prohibited. The regulation of slave property is as much the province of municipal law as the regulation of any other property and its protection equally its obligation: but we deny that " property in slaves and the title by which they are held, are creatures of statutory 7bac law." It is not very clear what meaning is to be attached to the term "a civil right;" or how the right can have been derived from the Trustees and yet not have originated in positive law, i. e. legislation. The idea is that before 1751, the colonists of Georgia were under a disability inflicted by the policy of the imperial Government, (see p. 575 of the report,) in acquiring a certain kind of property, or from enjoying their individual right to acquire property, in the same degree as others;-which disability was removed by the administrative regulation or ordinance of the Trustees. Whether important results which might follow a general recognition of the doctrine that at the present day slavery is a constitutio juris gentium were considered in this decision, does not appear. The question actually before the court was whether the owner could recover from the slayer the value of a slave killed by him, without first suing him to conviction in a criminal court.

Inst. Lib. I. tit. 5, procm. (ante p. 150,) and Dig. Lib. I. tit. 1, § 4. The state having jurisdiction of the person who is held as a slave, may, of course, set him free by its legislative power. This will be the effect of a jus proprium: but, the resulting condition or status will be jure gentium in this case, as where the manumission was the master's act. It will therefore be afterwards judicially recognized everywhere; unless some local law, jus proprium, forbids it. The importance of this distinction can only be shown in the application of private international law.