Those persons who were alien, either by birth or by domicil, to the national jurisdiction of the empire, were necessarily such also in reference to any one particular jurisdiction. But since the domicil of any person, subject, by birth or by domicil, to the national jurisdiction, would also be a domicil with reference to one only of those particular jurisdictions into which the empire was divided, any English subject, by having a domicil in one of those jurisdictions, would, when within the territory of another, be alien in respect to it and its local law; though remaining under the same national sovereignty and under the jurisdiction of the same national law.

§ 239. Whatever rules may be applied as private international law in any jurisdiction to determine the rights or relations of alien persons, must depend upon the will of the political source of the municipal (national) law therein; since no rules of action can have the force of law within any territory except by the will of the supreme power.'

The status or condition of aliens in any one of the several particular jurisdictions of the empire, whether aliens to the whole empire or to that particular jurisdiction only, would be determined by one or the other of those sources of the municipal law which prevailed therein; viz., either the national or the local authority.

To ascertain then the law applying in any one locality of the empire to the condition of an alien of either of the above described classes, it is necessary,

First, to refer to the public law, or law of political constitution, to ascertain the location of the supreme legislative or juridical power over such persons and over their various relations, (i. e., the investiture of that power, either in the local or in the imperial legislature,) and

Secondly, to ascertain the actual rule of action proceeding from such power.

§ 240. It has already been necessary, in giving an historical exposition of the origin of the municipal (national) law in

1 Ante, §§ 12, 36.

America, both public and private, to indicate the several political sources of power from which the laws affecting the condition of alien persons of each of these classes in the several divisions. of the empire might proceed; and also to state some of the rules or principles actually applied to determine the condition of such persons, whether aliens to the empire or to any one of the several particular jurisdictions. For although those rules were there described as taking effect in the American colonies with the force and extent of municipal (internal) law, they yet had, from the first, an international effect, from the national character and political associations of the persons to whom they were applied and for whom they received a personal extent,the character of personal laws.

It has been shown that, so far as the condition of persons alien to the empire consisted in such rights of persons as were incident to relations of external commerce and intercourse with foreign nations, it was determined by the authority held by the imperial, rather than by that held by the several provincial governments; while such was the distribution of power in the colonies, between the local and the imperial governments, that the condition or relations of the domiciled inhabitant of any particular jurisdiction were determined, partly by a law emanating from a local authority, and partly by a national law; the latter having, in reference to such inhabitant, the same force and effect in every other jurisdiction of the empire; determining, within each, the condition of such person, so domiciled in another jurisdiction of the same empire, in all relations falling within the scope of that national law while such person was in the place of his domicil.'

§ 241. It has also been shown that with the first establishment of law in the colonies, (whether proceeding from the imperial or the local source of law,) and with the first necessary recognition of persons as aliens, (either to the territorial dominion of the empire, or to the territory of England, and the law

1

2 Ante, Chapter V. VI.

1 Ante, § 203.

'Ante, §§ 136, 137, 193.

having territorial extent therein,) a personal distinction existed in the application of the national and of the particular laws; according to which both the domiciled inhabitants of the several colonies and persons known as aliens, to the colonies and to the rest of the empire, became distinguished into two classes, standing in different relations towards the imperial and the colonial authority. This distinction was founded upon a difference of race, complexion, or physical structure, and, in some degree, upon differences of religious belief; and this distinction, in having been first judicially applied among persons known as aliens to the imperial dominion, or to the laws of England, was applied as private international law, both under the imperial and the local authority, and having been continued in the municipal (internal) law of the colonies, applying to the domiciled inhabitants of those colonies, it continued to distinguish them when appearing as aliens to the jurisdiction of any one particular colony or division of the empire.

§ 242. For the alien (to the empire) of white or European race, in being a native or domiciled subject of some Christian nationality,or of such a state as was a recognized participant in the jurisdiction of public international law, was regarded as being under the protection of that law which is an acknowledged rule of action among civilized nations, though not having the force of law, in the strict sense of the word, as a rule of which nations are the subjects: and whatever rights attached to such alien under such law were, so long as he continued in alienage, regarded as being under the protection of the imperial or national power, as well as under that of any particular jurisdiction within whose territorial limits he might be found;-since all relations constituting the national intercourse with foreign states were, of necessity, controlled by the imperial rather than by the provincial authority. And when such alien of European race had become a domiciled inhabitant of any one political division of the empire, his condition, and that of his posterity, was under the charters, and the various laws of naturalization,' deter

mined like that of the inhabitant of English birth or descent, by a law resting in part on the national authority; which, to that extent, continued to be a law of his condition when appearing in any other jurisdiction of the Empire than that of which he became a domiciled inhabitant.

§ 243. On the other hand, aliens to the empire of African or Indian race, if not every alien of a barbarian or heathen race, were without the protection given by public international law to foreigners of European birth, and did not, as aliens, sustain relations known to that law and incident to foreign commerce and political intercourse falling within the scope of the national imperial authority; unless indeed the rights of a foreign owner in respect to a slave of one of those races might receive protection from the national authority, as forming an incident of the relations of such alien owners. So far as the slave trade was foreign commerce, or consisted only in the importation of chattel slaves from abroad, it would seem to have fallen within the legislative province of the imperial Government, rather than in that of the several colonial authorities. So far as such African or Indian alien was recognized as a legal person, his condition was determined entirely by the local authority of that particular jurisdiction of the empire in which he might be found. And, whether chattel slavery is to be taken to have been supported by a law proceeding from the national authority, at the time of its introduction into America, or not, yet,

1

By Mr. Justice Daniel, in Dred Scott v. Sandford, 19 Howard, p. 475; "Now the following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know-that the African negro race never have been acknowledged as belonging to the family of nations; that as amongst them there never has been known or recognized by the inhabitants of other countries any thing partaking of the character of nationality, or civil or political polity; that this race has been by all the nations of Europe regarded as subjects of capture or purchase; as subjects of commerce or traffic; and that the introduction of that race into every section of this country was not as members of civil or political society, but as slaves, as property in the strictest sense of the term."

There is no connection between the political nonentity of African communities and the status of Africans when they appear in foreign countries. The fact that negroes did not enter this country as the subjects or members of some recognized foreign state or nation is, in the section above, noticed only as indicating the source of law, imperial and national, or colonial and local, upon which their condition depended. The fact did not determine their condition as bond or free. An African savage entering a European jurisdiction as a voluntary immigrant would, jure gentium, have been as free of condition as any immigrant of European race.

as has been shown in the preceding chapters, the power of limitting, in the first instance, and, finally, of prohibiting the importation of chattel slaves from abroad was claimed by the several colonial legislatures, each for its own jurisdiction. The power to regulate the introduction by land, or from the other colonies, of Africans and Indians held in servitude appears to have always been left to their discretion, without controversy.

§ 244. The condition of the African or Indian, when once settled within a colonial jurisdiction, either by becoming a free domiciled inhabitant, or the property of a resident, appears to have always been exclusively within the prerogative of the local sovereignty. It would seem, from the personal distinction which constantly obtained in the application of municipal (internal) laws in the American colonies, that there was no law,affecting the condition of the African or Indian domiciled subject, having like national foundation and extent with the common law, applied to the white colonist. For while the legal condition of the African or Indian inhabitant, in any particular jurisdiction, might vary therein, from chattel slavery—the negation of all legal rights-to the possession of all individual and relative rights of a private person known to the common law of England, that condition rested, apparently, only on the local law of that jurisdiction, and was not supported therein by a law of the national power, having national extent and recognition as a law of the national or imperial jurisdiction. And it has been shown that even the terms of those royal charters which guaranteed to the colonists, generally, and their descendants, the rights of subjects of English birth, must be interpreted with reference to this limitation existing in the law of nations, or universal jurisprudence, then received as an authoritative exposition of natural reason and applied in municipal and international law,' and that therefore the condition of Indians and negroes, born within the colonial jurisdictions, was not determined by that personal law of privilege, derived from the common law of England, which had, for whites or European subjects, a national extent. What

Ante, § 202.