and forbidden by all other nations. In such jurisdictions the tribunals of either should have recognized the slave condition of an African introduced from the other, or from elsewhere, in the same manner as they recognized the local slavery. There would be, as between any two such jurisdictions, no conflict of laws and no question of the comity of nations.

§ 290. But further-the judicial allowance of certain legal effects as created by a rule of universal jurisprudence is based upon the assumption that universal jurisprudence-the historical law of nations-is an exposition of natural reason adopted by the sovereign source of law in the forum. Yet it is at the same time fully understood that the state, or the possessor of sovereign political power, is, in its estimate of the requirements of natural reason, entirely independent of the juridical action of similar states or persons. And it is always the duty of the tribunal rather to look for a part of the national common law as being the state's conception of a universal jurisprudence, than to receive it as gathered from the laws of foreign states. The conjuncture is barely supposable that, at some given point of time, there should not be any domiciled inhabitants sustaining a certain relation attributable to the law of nations as then judicially cognizable: or, in other words, that a received principle of the law of nations should not be actually operative in the internal law. The fact that, at a certain time, there were no slaves among the domiciled inhabitants, might be accidental. Slaves might never have been imported; or all slaves may have been exported, or have been manumitted by their owners, or have deceased. It might even be that slavery had, as the condition of a domiciled inhabitant, been declared unlawful or been prohibited. And yet it might be that the law of nations sustaining slavery should still be judicially received as part of the municipal (national) law, to maintain the slavery of persons whether coming from other jurisdictions, to reside, or being transitory subjects.3

But if any effect attributable to a rule of the law of nations

1

1 Ante, § 94.

Ante, § 173.

'Ante, § 95.

has been repudiated in the internal law of the forum as contrary to natural reason, the whole basis for the judicial recognition of that rule in the private international law of the forum would be destroyed. And this would be the case whether the rejection of such effect, on this ground, had been made in a legislative or a judicial exposition of positive law.

§ 291. The English cases cited in the fourth chapter show that at a period shortly before the war of revolution no domiciled inhabitant of the British islands could be held therein as a slave or in any condition of involuntary servitude not based upon local customary and feudal law. It appears too that a similar judicial declaration of law had been made in Massachusetts about the same period. This juridical action would then, in these jurisdictions, have prevented any subsequent judicial recognition of the slavery of an alien on the ground of its being supported in the private international law of the forum by the historical law of nations; even if that law, as learned from the action of foreign states, had remained unchanged.

§ 292. Still, so long as the law of nations, or universal jurisprudence, remained the same in judicial recognition, and had not been repudiated in the common law of England, the right of the owner, being a British subject, in a negro chattel slave, would still have continued in any one jurisdiction of the Empire, even although in that jurisdiction slavery had been repudiated in the local or internal law, (i. e. the law applying to domiciled persons,) as contrary to natural reason, in the manner supposed in the last section. Thus in Massachusetts, at the time spoken of, it might have been supported by the "common law of England;" thus having a quasi-international operation, although the private international law of Massachusetts (being part of that law which rested for its authority exclusively on the juridical power of that colony) should not have sustained it.

But since the operation of the law of nations, in this instance, depended altogether upon its being contemporaneously received in the common law of England, there was a point of time, towards the close of the colonial period, when slavery could not have been supported in other parts of the empire on this

ground; not even if the juridical action of other nations had not modified the old law of slavery once attributed to universal jurisprudence.

§ 293. It appears then, that—

1st. If the status of the alien in the place of his domicil was not that chatte! condition, which had been the only condition of bondage recognized by universal jurisprudence-the law of nations :-Or,

2d. If this law, as known in the juridical action of civilized states, had changed :—Or,

3d. If, as may have been the case in the British islands and Massachusetts, slavery was disallowed in the internal law as contrary to natural reason;

-the involuntary servitude of negroes introduced from other jurisdictions of the empire or from abroad could not have been judicially recognized under the rule of private international law whose operation has herein been considered-the rule which requires the judicial recognition of rights and duties derived from a rule having the character of universal jurisprudence. In no one of these three cases could the slavery of the alien be considered a condition presumptively recognized by the supreme power of the forum as accordant with natural reason, or the result of a law having universal extent and received into the municipal (national) law (i. e. both the internal and the international private law) of the forum.'

4th. And when, on the contingency of one or more of these cases, the rights and obligations incident to the relation of master and slave should have ceased to be internationally cognizable under an application of this rule; or, certainly, whenever, in England, those rights and obligations were not maintainable under this rule; the right of the owner would cease to be cognizable as a common law right, supported by the law of national extent.

5th. Nor, on the same contingency, would those rights and obligations be any longer maintainable by the international rule of transit."

1

1 Ante, § 279.

Ante, § 272.

§ 294. Supposing then that, by the occurrence of these contingencies, this was the doctrine applicable in some one jurisdiction of the empire, and also that the question had arisen for the first time, or that there was no local precedent or customary law directly applicable to such cases, the only international rule which could maintain the condition of the alien negro or Indian, who should be claimed as a slave under the law of his domicil, would be that part of the customary law which is called comity.

This rule, as has been argued in the second chapter, would support the condition of an alien existing under the law of his domicil if not inconsistent with principles in the local law judicially taken to have universal personal extent.'

§ 295. In attempting, in the second chapter, to state a general rule for distinguishing what principles in the local or territorial law of any one jurisdiction may be taken by its tribunals to have universal personal extent, it was supposed that such extent might be known from, either,

1. An act of positive legislation, declaring such principle to have universal personal application so far as the dominion and jurisdiction of the legislating sovereign may extend, or,

2. From the judicial attribution, to natural persons domiciled within the supposed jurisdiction, of rights or duties (resulting from such principle) as being antecedent to rules of action; or, to change the phraseology, as resulting from law in the secondary sense of the term-a condition of existence or from the natural law, in the only sense in which it can, in jurisprudence, be distinguished from positive law.2

§ 296. From the view given in the preceding chapters of the establishment of municipal law in the colonies, it would appear that neither these rights, which were known as common law liberties, nor any rights inconsistent with a condition of bondage or even of chattel slavery, were ever in any colony attributed to all natural persons by any act of positive legislation. And it may be assumed that there was no English statute enacted in and for the British isles, during the colonial period, which altered

the extent of the former customary or common law of status or condition,

§ 297. And if, in some one several jurisdiction of the empire, all domiciled inhabitants had become freemen by a judicial declaration that all such were entitled to individual rights, as known to the common law-the liberty of free English subjectsyet it might have been a usurpation of juridical power, in a tribunal, to have made this law of personal liberty so universal in extent as to limit the rule of comity in these cases.

A former international recognition of any particular relation between persons, by the tribunals of the forum, becomes for later tribunals a precedent of private international law. In the colonies wherein domiciled negroes were held in slavery the international recognition of the condition of alien slaves, after the time when it is supposed the law of nations-universal jurisprudence-would no longer have been applicable,' may in fact be ascribed to the customary law of those jurisdictions as much as to comity; which is indeed itself part of the customary law, and which, it is here supposed, might have caused the international recognition of slavery, though no precedents of the same forum, occurring in like circumstances, could be found.

§ 298. If then, in the British islands, at the date of Somerset's case, and in Massachusetts, at some time before the Revolution, negroes could not be held in servitude under the local or internal law; or if, changing the form of expression, no domiciled negro or Indian could have been there retained in such servitude, it might perhaps still have been claimed that the former international practice would support in those jurisdictions a continued international recognition of the slavery (chattel or personal) of negroes domiciled elsewhere; at least until positive legislation had either altered that practice or had expressly given a universal personal extent to the law of free condition.

Supposing then that, in the other colonies, the claim of an alien master would have been supported by the rule of comity

'Ante, §§ 286, 289.