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abolished this distinction among the libertini, but also made all free persons (libertos) citizens of Rome, abolishing all legal difference between the status of the enfranchised (libertini) and the free born, (ingenui.) From the recital in the enactment, it appears that the first, if not the second also, of these changes was a return to the ancient usage of the Republic. The rule of the Roman Imperial law, as the exposition of a universal jurisprudence, received judicial recognition in the American colonies.2

§ 207. If the law of nations has in modern times, or had during the colonial period, a limited personal extent or was different in its application to different races of men only while distinguishing between mankind as either bond or free-either chattels or persons, the necessary inference would be, that on

1 Inst. Lib. I. tit. 5, § 3; De libertinorum divisione sublata; and Cod. 7, tit. 5, 1. 1, tit. 6, 1. 2. Smith's Dict. antiq. voc.-Ingenuus, Libertus. Mr. Justice Daniel, in 19 Howard, p. 477, Dred Scott's case, appears to have adopted Cooper's version of the Institutes, in which ingenuus is mistranslated freeman. For the changes in the Roman law on these points, according to the latest researches, see The New Englander, Aug. 1857, in an article on Judge Daniel's statement of them; by President Woolsey, of Yale College.

2 To some it may seem a singular refinement to suppose juridical authority necessary in ascribing individual (absolute) rights to the slave, when the master relinquishes his legal claims. But, if legal rights exist by the ascertained will of the state, (ante § 21 and p 37, n. 1,) how otherwise can a chattel or thing become invested with them? Other chattels, when derelict by the owner, are still chattels, and belong to whoever A may then first take possession of them. The doctrine of manumission, as explained in the Institutes, shows that even in the Roman law the slave was only "instar rerum,” (ante p. 153, n. 1,) and that a personality independent of positive law was recognised to exist, as by a condition of things, or a law in the secondary sense, (ante §§ 1, 2,) or a law of nature in that sense, which became manifest in the possession of individual rights whenever the antagonistic right of the master was relinquished. See Inst. Lib. 1, tit. 5.

De Libertinis. Definitio et origo libertinorum et manumissionis. The reasoning of Mr. Justice Daniel in Dred Scott's case, 19 Howard, p. 480, ignores the fact that the consequences of the master's act of manumission were jure gentium, and therefore judicially recognized everywhere, unless such recognition had been forbidden by some jus proprium of the forum. His language is "The master might abdicate or abandon his interest or ownership in his property, but his act would be a mere abandonment. It seems to involve an absurdity to impute to it the investiture of rights which the sovereignty alone had power to impart," &c. The question in the case was of the rights of citizenship; but the Judge's argument applies equally against the acquisition of any personal right on manumission. Undoubtedly, the investiture rests on the sovereignty, not on the private master. But the tribunal finds the will of that sovereignty in the jus gentium, if there is no jus proprium,-local statute or customary law. In some countries, wherein serfdom existed under a law of local origin, the Roman law of manumission has not been applicable Bodin, in Repub. B. i. c. 5, Knolle's Tr. p. 41, after stating the Roman law" which law, for all that, we use not; for in this realm [France] he must of necessity obtain the prince his letters patents, which have always used to restore unto manumised men and of servile condition, the state of freeborn men, and to blot out all stain of their old slavery."

passing out of the chattel or bond condition, the subsequent condition of the emancipated African or Indian would be determined by the same principles which regulated the condition of other persons in the same jurisdiction. But though the law which in any colony determined the condition of the enfranchised African or Indian may have, in its effects, been similar to that determining the condition of the colonists of English birth or descent, it was not the same law either in its political foundation or in its territorial and personal extent. The fact of emancipation did not of itself place the African or Indian within the pale of the law applying to the English colonist, at least not so far as it was a law resting, as was before shown, upon a national as well as a provincial authority. The condition of the free African or Indian was determined by statutes proceeding from the colonial or from the imperial authority, according to the nature of the powers separately held by each under the public law of the empire, or by a judicial application under either colonial or imperial authority, of rules derived from natural reason. But the law so obtaining was always the local law of a colony in respect to its extent, and not a national law. When once recognized as a legal person, the law of England was indeed the exposition of a law of natural reason, judicially receivable in determining the private relations of the African or Indian subject, as well as those of the English colonist. But the basis of the rights of the former was not necessarily the same as that of the last. The law under which they existed had not, necessarily, the same national character, or the same territorial and personal extent. That was determined according to the public law, by a distinction of race or descent. The condition or status of the emancipated negro or free Indian was in none of the colonies equal, as a free condition, to that of the white colonist; even where the law of the colony made no distinction in social relations between him and the white inhabitant. The public law took no notice of his rights, and the foundation of private rights in public law was an essential feature in the civil liberty of the English colonist. Whatever degree of liberty of action the negro or Indian might enjoy in practice,

his freedom was inferior to that of the white citizen in the nature of its guarantees.

§ 208. Thus, simultaneously with the establishment in this continent, by the colonists or by the national authority, of the law of status or condition for persons in England, to be the system of private municipal (internal) law, which, as a personal law, was to maintain the rights and liberties of the English colonists and their descendants, was established through like authority and with equally jural character, another department or system of laws;-a system which, so far at least as it supported slavery or involuntary servitude, is commonly held at the present day to have always been contrary to that which prevailed as the territorial law of England. This system also had, in the several colonies, the character of a personal law in being applicable to a portion of the inhabitants who had no claim by birthright or inheritance to participate in the protection of the laws of England-the common law of the rights and liberties of Englishmen.'

1 Sir W. Jones' Works, 4to., vol. III., p. 48. Charge to Grand Jury at Calcutta, June 9, 1792. "It is agreed by all who have coolly and impartially studied our noble constitution, as declared by many statutes from the Great Charter to the Bill of Rights, all which you know are solemn recognitions of our ancient public law, that three peculiar advantages are conferred by that sacred law on the people of England or on all subjects who are not noble, but may, if they please, be independent; first a distinct, unalienable third share of the legislative power; next a right, coupled with a duty, of keeping and using arms for the defence of their persons and habitations as well of their several counties, when the sheriff shall call for their aid; thirdly, the right of being tried, when impleaded or accused, by their equals freely chosen, instead of appointed officers to whom they cannot except," p. 49-" and we may thence infer that if any acknowledged subjects of Britain (for a different faith or complexion can make no difference in justice and right) shall be tried, convicted and punished by a summary jurisdiction, however constituted, for petit larcenies, breaches of the peace, and other misdemeanors," &c. The law was certainly never so extended in the American colonies. In 1833, statutes in respect to India were proposed in Parliament, on a plan which should "effect a complete identification of Europeans and natives in the eye of the law, without regard to color, birth, or religion." 2 Kent, (3d ed.) p. 73 n. citing Ann. Reg. for 1833, p. 184, which see, and Lord Ellenborough's assertions, p. 186, of the impossibility of producing such effect. That the British Government, while conferring civil rights on slaves in India, did not "forcibly manumit " them, see H. St. G. Tucker's Memorials of Indian Gov. p. 434, Editor's note.

Forbes v. Cochran, (1824,) 2 Barn. & Cress. 463, Holroyd J. "Put the case of an uninhabited island, discovered and colonized by the subjects of this country; the inhabitants would be protected and governed by the laws of this country. In the case of a conquered country, indeed, the old laws would prevail until altered by the king in council; but in the case of the newly discovered country, freedom would be as much the inheritance of the inhabitants and their children as if they were treading on the soil of England." The correctness of this proposition at any particular period, (if in

§ 209. But under the classification given in this chapter1 of persons within the colonies whose legal condition was not determined by the common law of England as a personal law by reason of birth in the realm of Great Britain, or their descent from ancestors of English birth, another description of aliens to the British empire is included; viz., persons of European or Caucasian' race, the subjects of those states which, by the supposed possession of superior knowledge and power, are known in international law as civilized states; the authors and expositors of universal jurisprudence or the law of nations, herein before described as a judicial rule, and the authors and subjects of that rule of action which, though not having the force of law for such states, is herein called international law. The condition of these persons, when appearing as aliens within the dominion of the British empire would be determined by private international law, derived from legislation and judicial exposition of the rules of natural reason, until they should have acquired a domicil, as that term is understood in international law; when they would become the subjects of that which is called, in contradistinction, municipal, or more properly, internal or local law. The chattel slavery of whites or Europeans as the property of legal persons, having long before become unknown under the various systems. of municipal (national) law in Europe, all aliens of this description appeared within the colonies as legal persons, whose rights, as such, while they remained aliens, or, at least, while they only sustained relations incident to foreign commerce or to war, would fall under the scope of the imperial authority, according to the division of power which was herein before stated as the public law of the empire. Upon their becoming domiciled inhabitants of a colony, their relations, as persons, to the rest of the community, would have been subject to provincial and na

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tended to include persons not of English birth or descent,) will depend upon the rules which may at that time be recognized in the English courts as being universal in their extent, and upon the jus gentium then recognized in English jurisprudence.

1

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1 § 195.

"Ethi

Although there are manifest objections to the use of this term, it is here adopted as having a tolerably well defined meaning, in connection with this subject. opian and Caucasian races."-1 Banc. 177. 2 same, 464.

Ante, § 131.

tional authority in the same manner as those of the Englishborn colonists. In most, if not in all the charters, provision was made that the colonists of other European nations than the English should participate in the privileges of those of English birth, and acts of naturalization were passed at different times, by the imperial and colonial authorities, placing the European alien upon an equal footing of privilege with the English; requiring, of course, the profession of allegiance to the crown and to the government of the colony.'

§ 210. Under the system of colonization adopted by the European states possessing territory in North America, there also existed another kind of bondage, differing from slavery in its origin and extent, being, strictly speaking, founded on municipal law alone, (jus civile or proprium.) This species of servitude became obsolete about the time of the war of the revolution, and now is of importance only as casting some light on the legal nature of a free condition and absolute slavery during the colonial period. A portion of the white settlers in all the colonies were those known as indentured servants or redemptioners, who were English or other Europeans, bound to personal service, without wages, different from any known in England, but analogous to that of minor apprentices. Such persons were recognized in the colonial legislation as a distinct class among those held to enforced servitude, though many of the statutes respecting them applied to slaves also.

The service of persons of this class might either have been involuntary from its commencement, or have originated in their own consent; some having bound themselves to serve in the plantations during a certain number of years, in return for the expenses of their transportation and support. The servitude of others was the penalty of crime committed in the mother country,

As to the interpretation of these acts of legislation by a reference to personal distinctions founded on the law of nations, see ante § 201.

That colonial acts of naturalization were of force only in and for the colony, see 1 Chal. Opinions, pp. 343-4. By the 13 Geo. 2, c. 7 (1740) "an act for naturalizing such foreign Protestants and others, therein mentioned, as are settled, or shall settle, in any of his Majesty's colonies in America." Such persons residing seven years, and taking the oaths, to be deemed natural born subjects.

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By the common law no person could be sent out of the kingdom against his will. 2 Co. Inst. 46; 1 Bla. Comm. 137; 2 Hawk. P. C., c. 33. Ordinary apprentices cannot be so sent out. Coventry v. Woodall, Hob. 134; 1 Brownl. pl. 67.

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