the forum, since it exists or is law by the juridical will of the sovereign of that forum independently of the will of every other state or sovereign. The just limits of his subject did not allow Vattel to go further and explain the duties of judicial tribunals. This would have been entering the limits of private international law. It does not necessarily follow that he would have said that the tribunal could never recognize legal effects produced by the law of a foreign state.

§ 276. The general principles considered in the second chapter will operate in cases wherein there is no precedent. But the courts may always refer to the international practice of other countries, which they may assume indicates a customary law prevailing in all countries, their own included. When such customary law has been ascertained the courts may apply it, not as indicating the duty of the state, but as indicating the will of the state. And it is highly important to observe that the rule sought is customary private law-the law customarily applied by judicial tribunals, as known by judicial precedents and authors who treat of international law as it obtains, not as it ought to obtain. A statute enactment therefore, or an act of the sovereign, as such, is not indicative of this rule of customary law; on the contrary there is a presumption that such statute or act differs from the rules which judicial tribunals might lawfully enforce in like circumstances.'

Now, as has been shown, the judicial practice and the writings of private jurists on the customary law of Europe during the 17th and 18th centuries, are unanimous in declaring the rule to be against the international recognition of slavery in countries where it cannot exist under the local or internal law: they make no exception.2

§ 277. The right of the foreigner or stranger to the possession of property which he may bring with him may be main

1 Ante, § 258.

If there has been any exception, it would appear to have been where states have been so situated, geographically, that the passage of the citizens of one through the territory of the other, is indispensable to ordinary commercial access with the rest of the world, or where different states lie on a river or strait, in the common use of which, the subjects of one state must unavoidably be sometimes found within the limits of another.

tained before a tribunal as a right recognized by universal jurisprudence, or the law of nations in the same sense. But this is only when the citizen's right to such property might be equally ascribed to that law. While the stranger is husband or wife, father or child, in the forum to which he is alien, and owns property brought with him and acquired in the place of his domicil, and has rights, in these respects, as fully as the citizen who is husband or wife, father or child, and owner of property-his rights are recognized by that part of the law of the land which is universal jurisprudence, supposed to be the same, in its origin and effect, in the forum as in the place of domicil, though in each it is maintained by a different sovereign or source of law. At the time when Bodin wrote he could perhaps say of slavery that it was then "approved by the great argument and consent of almost all nations," and he might therefore have excepted to the decisions of the French courts, on the ground that by refusing to maintain the right of the master to his slave, they had decided "contre le droit des gens," meaning universal jurisprudence. It does not appear, however, that Bodin ever took exception to the decisions of the French courts in respect to the slaves of strangers, either as being contrary to the "law of nations," in any of its significations, or on any other ground.2

1 Ante, p. 165, note.

* From an examination of two French editions and the English version. In Repub. Lib. I., c. 2, ad finem, Bodin says, "For as for the laws of nations, if they be any of them unjust, the prince may abrogate them by the law of his realme, and forbid his subjects to use the same; as we said before of servitude and slaves, which, by a dangerous example, by the law almost of all nations brought into commonweales, were againe by the wholsome decrees of many princes, well agreeing with the laws of nature, taken away." (Knolles' Tr., p. 113.)

CHAPTER IX.

OF THE PRIVATE INTERNATIONAL LAW OF THE COLONIAL PERIOD AFFECTING CONDITIONS OF FREEDOM AND BONDAGE-THE SUBJECT CONTINUED-EXAMINATION OF SOMERSET'S CASE IN THIS CONNECTION.

§ 278. The case of Somerset, being the leading precedent in English law, and having occurred shortly before the separation of the colonies from the mother country, has been the subject of much juristical comment. It will now be here attempted to indicate the law applicable in the various jurisdictions of the British Empire, at that date, in circumstances similar to those of this case; deriving that law from the general principles and historical facts which have been set forth in preceding chapters; and to compare it with this decision, the European authorities just cited, and the supposed international practice of the colonies.'

§ 279. The application of the general principles of private international law to the recognition of those relations of private persons which constitute conditions of freedom and its opposites has been shown in the second chapter. It was shown, that in the absence of direct legislation or of judicial precedents indicative of a customary international rule,' applicable to the circumstances of the case, the recognition and support of relations of private persons existing under a foreign law, (the law of the alien's domicil,) depends upon

As stated ante, §§ 251-254.

Ante, § 122. It has been remarked, § 258, that foreign precedents, by the recognition of a customary private international law, may have an authority similar to that of local precedents, though not equal in degree.

an independent judicial recognition of their accordance with natural reason, according to certain criteria. It has been there supposed that they will be supported (so far as their continued. existence remains physically possible) if attributable to princiciples of universal jurisprudence-the historical law of nations, and that the relations thus attributed will continue, in the state to which those persons are aliens, as results of the municipal (national) law of the forum; there being in this case no question of the "conflict of laws" or of the comity of nations, although the relations recognized had previously existed under another jurisdiction.'

§ 280. The historical evidence of the principles applicable, at different points of time during the colonial period, to the status of private persons, as having the recognized character of a law of nations or universal jurisprudence, forming part of the common law of England, has been set forth in the fourth chapter. It was shown, in the account of the origin of municipal (national) law in the English colonies, given in the fifth and sixth chapters, that the slavery of Africans and Indians, (at least while heathen or unbaptized,) introduced from abroad, was actually supported, in the law of the empire and of each colony, by the application of the rule above stated, operating first as private international law, but afterwards taking effect as part of the municipal (internal) law.' It has been shown that, whatever may have been the true theory of the location of sovereign power, at that time, over persons who were aliens to the empire, the juridical action of the imperial and colonial authorities in reference to such aliens, and the view taken by each of the law of nations, as determining their condition, appear to have been the same; so far as those sources of law had concurrent jurisdiction in the colonies, and together controlled the international intercourse of those colonies with foreign countries. The two sources of law equally allowed the force of the historical law of nations as then known; and by judicial tribunals, acting under each of those sources of law, a legal distinction

'Ante, §§ 36, 113.

Unless Georgia was an exception.

'Ante, §§ 197, 200.

was recognized to exist among alien persons, founded on differences of race, complexion or physical structure, and religious belief. The alien of white or European race and Christian name was recognized as having, by the law of nations applied internationally, the status of a legal person and a presumptive claim to the enjoyment of those individual and relative rights, which, under the English common law, constituted irrespectively of political rights, the free condition of an English-born inhabitant; subject to the processes of remedial justice and police laws, including the powers of the state over individuals in reference to religious belief." On the other hand it was shown, in the same connection, that while the bondage of white indentured servants might have been taken for the result of a law peculiar to the colonies, or to the British Empire3-the chattel slavery of Indian captives and imported Africans was, throughout a long period subsequent to the first settlement of the colonies, based upon a distinct recognition of the law of nations-principles of universal jurisprudence as historically known and judicially allowed to have personal extent in all the colonies, under both the colonial and the imperial authority, if not in England also, at the same time.

§ 281. To whatever extent then this law of nations or universal jurisprudence, as judicially recognized in any several jurisdiction of the empire, sustained at any period, the slavery of Moors, Africans and Indians, regarded as aliens to the empire, it would have been contemporaneously receivable in the same forum, as sustaining, by the application of the rule above stated, the slave condition of such persons appearing therein as aliens to such several jurisdiction, after they had become domiciled in some other jurisdiction of the empire.

And it may also be said, that so far as it was thus recognized by the law of nations of that time, the right of the English or European master was a common law right" and was supported as such, in each several jurisdiction of the empire, under the common law of England, having for him a per