nance. The case was decided in favor of the freedom of the negroes, upon the unwritten or common law of France, as indicated in the authorities and precedents before cited, taking effect in the failure of the master to bring his claim within the protection of positive legislation-the edict of Louis XV., 1716-allowing a certain class of French colonial subjects to bring their slaves into France under certain limitations. The detention on the part of the master was sought to be justified. on the ground that he had substantially complied with the requisitions of the edict of 1716; and further, while it was admitted that, under the customary or unwritten law of the kingdom, foreign slaves or the slaves of foreigners would become free by being brought into France, it was also urged that the right of the French colonist rested on the juridical will of the national sovereignty expressed in the edict of Louis XIV., 1615, known as the Code Noir, and was therefore a legal right in every part of the French empire; that the edict of Louis XV., 1716, only gave additional protection to that right in certain cases, but never had the effect of destroying it, and that therefore no French tribunal could refuse to recognize the right of such colo 'Therefore the language of Mr. Justice Campbell on page 499 of the Report, is open to material exception, where he says-"This sentence [in Somerset's case,] is distinguishable from those cited from the French courts [apparently intending to include the case of Verdelin's slaves] in this: that there positive prohibitions existed against slavery, and the right to freedom was conferred on the immigrant slave by positive law; whereas here," &c. The preamble to the edict shows that the prevailing doctrine had been that in such cases slaves became free by the unwritten law, "Comme nous avous été informés que plusieurs habitants de nos isles de l'Amérique desirent envoyer en France quelques-uns de leurs esclaves, pour les confirmer dans les instructions et dans les exercises de notre religion, et pour leur faire apprendre quelque art et métier, dont les colonies recevroient beaucoup de utilité, par le retour de ces esclaves: mais que ces habitans craignent que les esclaves ne prétendent être libres en arrivant en France, ce qui pouvoit causer aux dits habitants une perte considerable et les detourner d'un object aussi pieux et aussi utile." Provision is then made by Art. 2, 3, that the colonists may bring with them slaves, for the purposes mentioned; being required to obtain permission from the governor in the colony, and also to register themselves in the district of disembarkation in France. The 5th article is as follows, "Les esclaves nègres, de l'un et de l'autre sexe, qui seront conduits en France par leur maîtres, ou qui seront par eux envoyés, ne pourront prétendre avoir acquis leur liberté, sous prétexte de leur arrivée dans le Royaume, et seront tenus de retourner dans nos colonies quand leur maîtres le jugeront à propos. Mais faute par les maîtres des esclaves d'observer les formalités prescrites, par les precedens articles, les dits esclaves seront libres, et ne pourront étre reclamés." M. Denisart, Decisions Nouvelles, tit. Negres, as cited by Mr. Hargrave in 20 Howell's State Trials, p. 23, n., appears to have considered the edict, in protecting the master's right, as an alteration of the common law in France. nist, whatever might be the rule of private international law contained in the customary law of France applicable to aliens and their slaves.1 In 1758, Francisque, a negro slave bought by his master in Hindostan, was brought by him to France. Francisque claimed his liberty: his master contended that he had carefully fulfilled the formalities prescribed by the "Code Noir;" it was answered that this law only affected African and American slaves, and could not be extended to the East Indies. The slave obtained his liberty.2 § 265. If, then, at a date shortly before the American Revolution, the practice of British and European judicial tribunals and the writings of private jurists indicated any rule respecting the international recognition of the right of an alien owner and the co-relative obligation of his slave existing under the law of 1 Tribaud, for the master, says, 15, C. C., p. 30, " On ne connoit point, il est vrai, d'esclave en France, et quiconque a mis le pied dans ce Royaume est gratifié de la liberté. Mais quelle est l'application, et qu'elle est la distinction, du principe? Le principe est vrai dans le cas où tout autre esclave qu'un esclave nègre arrivera dans ce Royaume." But he then proceeds to limit the exception still further, applying it only to slaves domiciled in the French colonies. He does not even allow the right to a French merchant arriving in the kingdom with savages whom he should claim to be his slaves. "Par exemple, qu'un estranger, qu'un négociant Francois, arrive dans ce Royaume avec des sauvages qu'il prétendera étre ses esclaves: qu'un Espagnol, qu'un Anglois vienne en ce Royaume, avec des esclaves nègres dependans des colonies de sa nation; voilà le cas dans lequel par la loi, par le privilège de la franchise de ce Royaume, la chaîne de l'ésclavage se brisera, et la liberté sera acquise à de pareils esclaves." And to the same effect on p. 26. 21 Phillimore's Internat. Law, p. 342, citing Denisart, Décisions Nouvelles, tom iii., p. 406, tit. Nègre, n. 45. From some of the Flemish and French authorities which have already been cited, it appears that the condition of absolute slavery was lawful in Spain and Portugal during 16th and 17th centuries. Absolute slavery, as a condition distinct from serfdom or vassalage, is recognized in Las Siete Partidas. (A. D., 1303), Part. IV., tit. 21, 1. i." Son tres maneras de siervos; la primera es de los que cativan en tiempo de guerra seyendo enemigos de la fe; la secunda es de los que nascen de las siervas: la tercera es quando alguno que es libre se dexa vender." From the following it would appear that slavery had become unknown in Spanish law, except as the condition of a negro domiciled in the Indies. Asso and Manuel, Institutes, &c. Johnston's transl. of the 6th ed. Book I., tit. v., c. 1. "With regard to their civil state or capacity, men are considered, 1, as natural born subjects of their kingdoms, and as aliens or foreigners; 2, as nobles, persons entitled to the rights of nobility (hidalgos), knights (caballeros) and plebeians; 3, as laymen and ecclesiastics. The distinction into free men and slaves, which is found in our law in p. 4, tit. 21 and 22, is not now observed or acknowledged, unless it be with respect to the negroes employed in the Indies in working the mines, or held in slavery by private individuals, but even as regards this circumstance, it is foreign to this treatise." In Denmark, negro slavery would probably have been recognized under the code of Christian V., already cited, Ante, p. 291. their domicil, that rule was, it would seem, that in a country wherein the condition of slavery could not exist as an effect of the internal or local law, or wherein no domiciled subject of whatever race or complexion could be held in slavery, the corelative rights and obligations of masters and slaves, domiciled in other countries, could not be protected and enforced by the judicial tribunals of the forum. § 266. A passage has herein been noted from the President de Lavie's Abrégé of Bodin's Republic, in which the author of the abridgment says,-objecting to what he admits was the judicial practice in France,—that it is contrary to the law of nations to take from the stranger, passing through the country and being the master of a slave, a property (un bien) which belongs to him. If any other juristical authority of an earlier date than Somerset's case is extant, thus, in terms, maintaining the claim of the owner when in a foreign country, it seems to have escaped the observation of the jurists whose research has, since that time, been directed to these inquiries. There are, however, certain passages in the treatises of Grotius, Pufendorff and Vattel which have been cited, in recent cases, as sustaining the same doctrine; the doctrine thus enunciated being at the same time supposed to operate as private law; that is, a rule by which the rights and duties of private persons might be determined by judicial tribunals. These writers must be taken to have been of no less authority shortly before the date of Somerset's case than they are at present, and it is now proposed to examine here, what the doctrine is which they support, and how far they may have considered it applicable to questions of personal status.' § 267. These authors, it will be recollected, proposed to write of the law of nations regarded as that rule of which nations, in their political personality, are the subjects; being a law 1 Pufendorff's Treatise de Jure Nat. et Gen., was published about 1672, a translation in French appeared in 1712, if not earlier, and an English version in 1717. The work of Vattel on the Law of Nations first appeared in 1758; a posthumous edition with the author's manuscript notes in 1773. The principal English version was published in 1797. in the imperfect sense. The rights which they define are rights belonging to nations, in respect to other nations and their subjects, and the duties are the duties of nations, towards other nations and their subjects. This is more particularly true of Vattel,' whose writings are most relied upon in maintaining the doctrine above stated. The passages in his treatise which have been cited to sustain it, are in Book II., chapters 8, 9, and 10; on reference to which it will be seen that he holds it to be the duty of every state, under the law of nations, to allow the subjects of other states a transit or passage through its territories with their property, and that, correlatively, the subjects of any one state have a right to pass through the territories of other states, with their property. This right, in the citizens or subjects of any one state, he describes as existing in two conditions or degrees; corresponding to two different degrees of duty in all other states, thus a. There is a right in private persons, founded in their necessities or circumstances, which makes it the imperative duty of a state to allow strangers to enter and leave, and sometimes to pass through its territory, and to carry with them such property as may be necessary for the objects in respect to which their entry or transit is necessary.3 b. There is a less perfect right, arising out of circumstances in which a less imperative duty is laid by the law of nations upon states, requiring them to allow what Vattel denominates "innocent passage" to strangers and their merchandise, even when no such necessity exists as in the former case; thus giving a correlative right to such strangers, to enter and leave or to pass through the territory with their property." See Vattel, Preliminaries, §§ 1, 2, 3. The persons spoken of here are private individuals; a large part of the discussions of the older writers on the right of transit, refers to the passage of armies and bodies of men having a political unity and national character. Puf., B. III., c. 3, § 5; Grotius, L. II., c. 2. Vattel also speaks of such cases. B. II., §§ 116-124, in ch. IX. Vattel, B. II., § 123, in ch. IX., § 135, in ch. X. Pufend. B. III., c. 3, § 86, "Among these matters of harmless profit which nature engages us to allow freely to all men, Grotius reckons the permitting goods and merchandise to be carried through our dominions." Pufendorff and Grotius seem to § 268. The extent of the rights of strangers under this rule is further defined by Vattel, when he shows what the state, in view of its duty in this respect, may not do, and from what portions of the ordinary powers of sovereignty such strangers are exempted. Thus he says that the stranger is still a member of his own nation and treated as such, (B. II., § 107 :) the state cannot claim any power over the person of the foreigner, that is, to detain his person within its territorial dominion, except where he violates its laws, (§ 108 :) it cannot require of him those personal services which it may require of its own citizens, he is not subject to those "laws which have relation to the title of citizen or subject of the state," (§ 101,) that is, the law which determines the rights and duties of private persons in a relation between them and the state regarded as their sovereign. "He cannot indeed be subject to those burdens that have only a relation to the quality of citizen," (§ 106.) And, as regards the duty of the state towards the stranger in relations with respect to things, the state does not acquire over the property which he has with him, nor even over what he may there acquire, the same power which it has in respect to the property of a citizen, (§ 109.) The property which he brings with him does not cease to belong to him, merely on account of his having come to a foreign country, (§ 109 :) the state, in reference to which he is an alien, cannot take it away, nor attach burdensome conditions to its possession or enjoyment; and he is not subject to pay ordinary taxes levied on citizens, but only such as are laid for public improvements of which he, in common with the citizen, has the benefit, such as tolls, on rivers and roads, harbor duties, &c., (§ 132–144.)1 Not only is the right of the stranger, as a private person, to be respected, but his property is to be regarded as part of the wealth of the country of which he is citizen, § 104, 81: in con found the right on a general right in all mankind to use the earth for purposes of commerce, and they limit the right of bringing property to cases where it is brought for gain. Pufendorff connects the inquiry with the propriety of markets of the staple, to which, in some countries, foreign traders were then restricted; being also obliged to buy of, and sell to citizens only. 1 And Puf. B. III., c. 3, § 6, discusses the question of levies on passing rivers and straits; such as the Danish Sound levies. |