CHAPTER VIII.

OF THE PRIVATE INTERNATIONAL LAW OF THE COLONIAL PERIOD AFFECTING CONDITIONS OF FREEDOM AND BONDAGE. THE SUBJECT CONTINUED.-OF ITS ACTUAL EFFECT OR OPERATION.

§ 250. In the preceding chapter the conditions, created by the public municipal law, have been indicated under which a private international law, affecting freedom and bondage, might exist in the colonies. It is now necessary to ascertain its actual operation or effect.

It has been shown, in the second chapter, that the private international law, like every other rule which has the force of law for private persons, is known or promulgated either from a judicial or a legislative source; being, in either case, equally positive law, in the sense of the ascertained will of the state, though, in ordinary parlance, the term "positive law" is applied only to law known by legislative enactment; positive legislation being more authoritative than law judicially ascertained, only in this, that it is a more direct method of ascertaining the will of the supreme source of law on any particular topic; but, in the natural order of existence, the law judicially ascertained precedes positive legislation, and always exists as of necessity.1

The condition, in respect to freedom or bondage of persons of the classes before described, having a domicil in one of the colonies, when appearing as aliens within another jurisdiction of the empire, might have been determined either by legislation,

1 Ante, §§ 17, 29.

having direct international reference to such persons, or by the judicial application of general principles of international jurisprudence. This judicial source of law, for the reason just stated, viz., its naturally prior existence, should, in the historical order, be first examined.

§ 251. It has, however, been convenient to present, in the preceding chapter, the legislation of the several colonies having this extent among the statutes which operated as municipal (internal) law. It consisted principally in statutes limiting the importation of negro and Indian slaves and servants. With the exception of the eighth article of the agreement between the New England colonies, in 1643, and the seventh in that of . 1672,1 so far as they took effect as private laws. No laws appear to have been enacted respecting slaves or servants escaped from other jurisdictions, or brought in by their owners without the intention either to sell them or to acquire a domicil.

It would have been consistent with the view herein before taken of the foundation and extent of two systems of personal laws, obtaining in the colonial districts of the empire, if acts had been passed by colonial governments prohibiting or regulating the entry of free persons of African or Indian race domiciled in other colonies. There does not, however, appear to have been any such exercise of the legislative power. In the earlier history of the colonies, there were some instances of local legislation prohibiting the ingress, or compelling the departure of persons equally entitled, with the other inhabitants constituting the legislating majority, to the enjoyment of individual and relative rights under the law of England. Such legislation, in most of these cases, was caused by the ideas, then generally prevalent, respecting the duty of a political state in relation to the religious instruction of the subject, which, soon after the extension of the English dominion over the whole Atlantic seaboard, and the manifestation of a very great variety in religious belief among the inhabitants of all the colonies, became essentially modified. And, whether the colonial governments con

1 Ante, pp. 268, 269.

ceived such legislation beyond their powers or not, those laws were repealed, or fell into neglect.

§ 252. There are, probably, no extant records of judicial determinations, by the colonial courts, of questions relating to status or condition, having the international or quasi-international character which was before indicated. If the eighth article of the agreement between the New England colonies, in 1643, and the seventh, in that of 1672, may be presumed to have been supplemental to the unwritten law, it might be argued from their existence, that the courts in those colonies could not, without them, have maintained the master's claim, in pais, over the persons designated by the term servants. But it is, perhaps, equally just to infer that the object of the compact was, not so much to give a legal existence to the right of the alien owner, as to facilitate its peaceable establishment by giving the local authorities power to adjudicate on a claim or demand to be made by him before them, in the first instance ; and, after the judicial establishment of the right, to maintain, in his behalf, the custody of the slave or servant while within the limits of the forum, or, it may be said, to deliver up the slave or servant to the master, when he could repass the territorial limits of the forum.1

§ 253. As to indentured servants, it is not unlikely that a variety of practice obtained in the different colonies as to the international recognition of their relations towards the persons claiming their services under the law of another jurisdiction. From the order sent out from England, in 1633, the Virginian order in reference to Dromond's servant, and the clauses just referred to in the New England Articles, it may be inferred that the judicial tribunals did not, generally, consider it their pro

2

1 It is to be noticed that even if the relation between the alien owner and servant or slave was, in any colony, supported by the unwritten private international law, yet the owner could not, by it alone, make any claim upon the public authority for the delivery of such servant or slave. He would have the right to seize the body of such servant or slave, (making a claim in pais,) but then his right could be determined upon and a delivery be made to him only in some action brought in behalf of the alleged servant or slave. Under the compact only could there be a delivery on claim.

* Ante, p. 229, note 1

* Ante, p. 231.

vince to enforce the obligations of such persons, in the absence of legislative enactment.'

As has been already observed, the relation of minor apprentices to their masters may have been at the same time judicially recognized, in case of the claim of an alien master to a fugitive apprentice, under the national law having a personal extent to subjects of English race. But it is highly probable that the articles in the New England compacts were practically applied to this class of persons, as well as to others bound to a service for years.

§ 254. It is also highly probable that, under the New England compacts, the term "servants" was taken to include negro slaves. But, whatever inference might be drawn from this for or against the validity of the master's right under the unwritten international law, there can be little doubt that, in all the colonies, slavery continued to be judicially supported in the case of negro slaves introduced from other jurisdictions, except so far as such introduction may have been limited by legislative enactment; and this, whether such slaves were brought in to be permanent residents or were only sojourners, either accompanying a non-resident owner or being fugitives. And this, it may supposed, was the case even in those colonies, if any such there were, where the local slavery may have been considered the condition of a legal person, as contrasted with chattel slavery.* And even in Massachusetts, if there was a time, prior to the Revolution, when no domiciled negro could have been held there as a slave, it is probable that the relation between owners and slaves, domiciled elsewhere, would have been judicially maintained.

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§ 255. Of all the cases decided in the English courts, which were cited in the fourth chapter,' that of the negro, Somerset,

1 But since, in the earlier period of the colonial history, persons were occasionally banished from some one of the colonies under a sentence to be sold as servants in some other colony, it was evidently presupposed that such sentence would be recognized in the latter.

"It may be inferred that this was the case, because the contrary has never been asserted in the cases which have occurred since that period.

Among these might have been noted, next to Butts vs. Penny, Sir Thomas Grantham's case, (1686,) as given in 3 Mod. R. 120; "He bought a monster in the

is the only one in which the question of freedom and servitude appears as one to be decided by private international law. The circumstances of that case have been already stated in the opinion delivered by Mansfield. The master and slave were recognized to be the domiciled inhabitants of a colony; the master having done no act by which he acquired a domicil in England, and the power of the negro to acquire it separately, animo manendi, by having the intention to do so, manifestly depended on an anterior question, whether he was or was not a free person.1

§ 256. Two Scotch cases are cited in the notes to the report of Somerset's case, in 20 Howell's St. Tr., from Morrison's Dict. of Decisions, vol. xxxiii, tit. Slave. The first, entitled Sheddan against a negro, was in 1757. The owner proposed to carry the slave back to Virginia and brought his claim before the courts, when the latter refused to go. The negro died before any decision could be rendered. The other case, entitled, Joseph Knight, a negro, against John Wedderburne, occurred 1775-1778. The negro had been in Scotland several years and had married there, still rendering services, but after claimed to be free. On pleading, the master claimed a right either to his perpetual service, in Scotland, or to send him back to the plantations-Jamaica.

The case being heard before the sheriff, he found "that the state of slavery is not recognized by the laws of this kingdom,2

Indies, which was a man of that country, who had the perfect shape of a child growing out of his breast as an excrescency, all but the head. This man he brought hither, and exposed to the sight of the people for profit. The Indian turned Christian and was baptized, and was detained from his master. The master brought a homine replegiando. The sheriff returned that he had replevied the body, but did not say the body in which Sir Thomas claimed a property, whereupon he was ordered to amend his return. And then the Court of Common Pleas bailed him." The marginal note is: "Homine replegiando lies for a baptized infidel detained from his master."

"But it does not appear that the return was ever argued, or that the court gave any opinion in this case, and, therefore, nothing can be inferred from it."-Hargrave's note, 20 Howell's St. Tr. 55.

See ante, note at the foot of page 109.

The 15 Geo. 3, cap. 28, (1775,) is an act for altering, explaining, and amending several acts of the parliament of Scotland, respecting colliers, coal-bearers, and salters; recites, "Whereas by the statute law of Scotland, as explained by the judges of the courts of law there, many colliers, &c., are in a state of slavery or bondage, bound to the collieries and saltworks where they work, for life, transferable with the collieries and saltworks, when the original masters have no farther use for them; and whereas