sonal and national extent throughout the entire national domain.'

§ 282. The reasons for supposing that the operation of the law of nations, in sustaining chattel slavery in the American colonies, must originally have been limited to Moors, Africans and Indians, while heathen and unbaptized only, have already been explained. And the colonial statutes have been noticed which contain an apparent recognition of this limitation by determining the persons who should be slaves, notwithstanding conversion, and which establish rules for the condition of the issue, some of which differ from that of the civil or Roman law.' It has also been shown that so far as the condition of Christianized negroes and Indians was supported in any one colony by the judicial interpretation of natural reason, (common law,) it was still distinguishable as the result of the law of that particular colony, (jus proprium.)'

§ 283. It has been noticed in the second chapter, that, when regarded as the condition of a legal person, slavery or bondage is a condition of infinite variety in respect to its incidental obligations and their correlative rights; and it is only in its most absolute form-that approaching most nearly to chattel slavery— that it can be a condition ascribed, at any time, to the law of nations. It has been shown in the fourth chapter, how, by the attribution of legal personality, slavery in the middle ages lost

6

1 Ante, §§ 244, 245.

3

Ante, 170, 171, 189.

Ante, Laws of Maryland, 1663, c. 30, § 1. Virginia, 1682, c. 1. 4 Ante, § 204.

Ante, § 45. 19 Howard's R., p. 624. (Dred Scott's case,) by Mr. Justice Curtis. "The status of slavery is not necessarily always attended with the same powers on the part of the master. The master is subject to the supreme power of the state, whose will controls his action towards his slave, and this control must be defined and regulated by the municipal law. In one state, as at one period of the Roman law, it may put the life of the slave into the hand of the master; others, as those of the United States which tolerate slavery, may treat the slave as a person, when the master takes his life; while in others the law may recognize a right of the slave to be protected from cruel treatment. In other words. the status of slavery embraces every condition from that in which the slave is known to the law simply as a chattel, with no civil rights, to that in which he is recognized as a person for all purposes, save the compulsory power of directing and receiving the fruits of his labor. Which of these conditions shall attend the status of slavery, must depend on the municipal law which creates and upholds it."

By Mansfield, in Somerset's case, ante, p. 191. "The power of a master over his slaves has been extremely different in different countries."

6

Ante, § 112.

the character of a constitutio juris gentium, and became a bondage resting on the jus proprium of some one country.' And it may be assumed that no condition of bondage, other than chattel slavery has ever acquired recognition in universal jurisprudence the law of nations, in that sense.

Now it may be questioned whether the condition of slavery which was maintained in the colonies was, in all or even in any, throughout the colonial period, that absolute chattel condition under which African negroes had been known as personal or movable property, in the customary law of trade and commerce, the law merchant; and whether the personality of slaves was entirely denied, as it had been at the first introduction of negroes. In Virginia they had, at one time, been declared real estate and not chattels. In the same colony and in Maryland they had been classed as legal persons by being rated for the poll-tax, which was also imposed on free white persons. some of the northern colonies, their condition as subjects of legal rights and obligations was little distinguishable from that of indentured white servants, except by the duration of the service."

In

Slavery or bondage thus modified, was the result of the jus proprium of the colony, and could not receive international recognition in other parts of the empire as the same slavery which had found place in the law of each colony as a constitutio juris gentium-a condition recognized by universal jurisprudence.

§ 284. a. Neither (when the condition of slavery had thus changed its legal character in the place of domicil) could the

1 Ante, p. 159.

'Ante, law of (October) 1705, c. 23. Very probably the remark of the Attorneygeneral, in Smith v. Brown and Cooper, (ante, p. 183,) which was of Easter term, 1706, had reference to this law; and, possibly, the distinction which Lord Stowell, in 2 Hagg. Ad. R. p. 114, proposed to recognize in such international cases between domestic slaves and field slaves, may have been suggested by a perusal of this statute.

3

Ante, law of Va. 1657-8, c. 46; Md. 1715, c. 15, Chinn v Respass, 1 Monroe's R. 25, 26. 42 Hildr. 419. "The harsh slave laws in force in the more southern colonies were unknown, however, in New England. Slaves were regarded [1750] as possessing the same legal rights as apprentices, and masters, for abuse of their authority, were liable to indictment." See also Winchendon v. Hatfield, 4 Mass. R. 127, ante, the note after Laws of Mass. in ch. vi. Reeves' Domestic Relations, 340, so far as his description of slavery in Connecticut may relate to the colonial era.

right of the master, in respect to such slave, be thereafter maintained in other jurisdictions of the empire as a right resting on the common law of England, having, as to such master, personal extent throughout the empire.1

b. Nor could the master's right be thereafter recognized under the law of transit, as property.1

2

§ 285. And further, admitting the legal character of slavery to have remained unchanged in the place of domicil, and that there had been a time, during the planting of the colonies, when the slave condition of negroes and Indians domiciled in some one colony should properly have received international recognition in every other part of the empire, as being the effect of universal jurisprudence-the law of nations—yet this law is, in its nature, always liable to change. It may have changed during the colonial period, in respect to the slavery of Africans and Indians, as it had before changed in respect to the personal condition of persons of other races. If then it were true as matter of historical fact that this law or jurisprudence, gathered from the laws and customs of those nations whose juridical action is the source of that law, had so changed, no tribunal of any one nation, nor of any several jurisdiction of the British empire, would thereafter have had the same judicial reason for supposing the slave-condition of an alien person of one of those races, entering into its jurisdiction, to be recognized by the supreme civil power, whose will it should apply as law; the reason, namely, that it was to be considered the result of a law having universal recognition, and which presumptively constituted a portion of the municipal (national) law of the forum.

§ 286. The question whether any rule or doctrine of the law of nations, universal jurisprudence, has, during any period of time, continued unaltered, is a question of fact. The doctrines

Ante, §§ 162, 163, 167.

In attributing any legal rule to the universal jurisprudence, the jus gentium of any particular period, it will be perceived that no change of that law can be simultaneous among those nations which are the sources of that law. The tribunal of any

of that law, at any particular time, are judicially known from the juridical action of all civilized nations; distinguishing such principles as are received in all foreign jurisdictions, or allowed to have personal extent without reference to territorial limits. And though certain legal effects (rights and obligations) should be found to exist under the juridical action of many or all civilized nations, yet, if under that action they are commonly limited to specific localities, they are not attributable to universal jurisprudence.' Though slavery may, by some European powers, have been maintained in their American possessions, yet, if its incidental rights and obligations were disallowed by them in Europe, it was then judicially known as a result of a local law, jus proprium, only, and no longer ascribed to the jus gentium, universal jurisprudence.

Now, leaving out of view, for the present, the juridical action of the British empire or of any several political part of it, the authorities already cited in the last chapter may alone prove that the law of nations, in respect to slavery, had changed during the colonial period; that change being shown by the judicial attribution, in European states, of personal liberty to Moors, negroes, and Indians, without regard to their legal condition in a foreign domicil; even, in some instances, where that domicil was a colony under the same political dominion as the forum of jurisdiction.

§ 287. Therefore, even if the authorities referred to did not, as precedents of customary private international law,' establish a rule judicially applicable in like cases by the tribunals of the several jurisdictions of the British empire, yet, in determining

one state, when seeking the doctrine of the law of nations, the exposition of universal jurisprudence, must look to the additive verdict of many national authorities in their municipal (internal) and international law, expressed by legislation or judicial decision. And though, comparing century with century, may be unhesitatingly declared that the doctrine of that law has changed on some particular point, yet it may be impossible to indicate the exact time at which that change should have been first recognized. This act of discrimination is in its nature autonomic on the part of the tribunal.

There can be little doubt that there was once a period when to kill or sell one's children was a paternal power or right recognized among all nations, (Comp. Bynkershoek's Essay on this right under the Roman law.) Abraham, proposing to slay his son, obeyed a command higher than human laws; but it is not unlikely that his power to do so was admitted by the jurisprudence of those among whom he lived. Ante, §§ 99-102. Ante, § 258.

1

2

the international recognition of slavery, they were evidence of what was or was not judicially receivable as an effect of universal jurisprudence. So that, supposing slavery to have remained the same chattel condition in the colonies, under their local laws, it could no longer be said to be a constitution of the law of nations, in the sense of a legal effect known by its actual prevalence among all nations or all enlightened nations. The condition of a negro who had been a slave in the place of his domicil could not then be judicially supported in any forum of jurisdiction upon this ground, after this change in universal jurisprudence had actually taken place.

§ 288. a. Contemporaneously with the occurrence of this change in the law of nations, the master's right of ownership ceased to be supported by the common law of England, embracing the law of nations, and having as to him a personal extent throughout the empire.'

b. The same change would in like manner, whenever it occurred, have limited the effect of the international rule of transit as a protection of the right of masters in slaves whom they should, though for a temporary purpose, bring with them within the limits of any part of the empire wherein slavery was not allowed by the internal law.'

§ 289. In a jurisdiction wherein negro slavery had been introduced under the old law of nations and wherein it has continued to have essentially the same chattel characteristics, there, the condition might have, or in the jurisprudence of that state it might have the same legal character as before, and be still recognized to be one of those effects of law which are received as deductions from a priori principles and taken to accord with natural reason, whether the right and obligation in which such effect consists are ascribed to temporary or to domiciled subjects. And as between two jurisdictions, in each of which slavery retained its essentially chattel character, it may be that, as to them, or in the judicial apprehension of their several courts, it should still be ascribed to universal jurisprudence though it should have been abandoned