(to say nothing of other customary law) the question arising on such claim may be examined for the colony of Massachusetts and the British islands.

§ 299. It has been observed already in this chapter, that, in some of the colonies, negroes and Indians, though held in a condition which, for want of a more accurate term, may be called absolute slavery, may still, at least if converted or baptized, have been regarded as legal persons and not chattels. From the phraseology of legislative acts in the New England colonies, which had something of the nature of bills of rights, and from the judicial application of customary law therein, so far as it can be known, it may be inferred that, in those colonies, the possession of legal personality was ascribed to law in the secondary sense-a condition of things-and was held to belong to all natural persons as an incident of humanity. Though, while heathen negroes continued to be introduced from abroad as chattels by the law of nations, the attribution of personality was universal only in respect to nominally Christian persons. The same may be taken to have been the law of the British islands shortly before the date of Somerset's case, even if it is admitted that negroes nominally Christian could there have been lawfully retained in involuntary servitude at that time.1

On the principle herein assumed to be applicable, this attribution of legal personality in these jurisdictions, supposing it to have been thus made universal, should have limited that recognition, by comity, of the condition, under the law of their domicil, of negroes entering from other countries or parts of the empire; if in such domicil it had been chattel slavery.

§ 300. It has been shown that in one important respect slavery had changed its character in every colony before the Revolution. That is to say-the slavery of negroes, at least of those born on the soil and nominally Christian, lost its foundation in universal jurisprudence-the law of nations—and became an effect of local law-jus proprium.' But it is at the same time true that the condition of slavery, as characterized by cer

tain obligations of the slave and the correlative rights of the owner, did not essentially vary, whether the status thus resting on local law was legally distinguishable as chattel slavery or as the condition of a legal person. In fact, even though in some several jurisdiction of the empire personality should have been thus universally attributed, yet while domiciled negroes could, notwithstanding, be held there in servitude, as persons, the tribunals might reasonably suppose the condition of alien negroes, under the contemporary law of their domicil, to be equally the condition of a legal person. So that its recognition in that forum under the rule of comity, would not be less consistent with a universal attribution of personality than was the local slavery.

Therefore, although, strictly speaking, the attribution of personality involves the attribution of some individual rights, it may be assumed here that the attribution of personal liberty, whose universality should have prevented the judicial recognition, by comity, of a status of bondage created under a foreign law, should have been one more absolute than that involved in the attribution of legal personality only.

§ 301. When it is intimated that a condition of involuntary servitude may be inconsistent with the attribution of individual rights, under a principle having universal extent in some one forum of jurisdiction, it is at the same time confessed that, as human society is at present constituted, no state or country can be supposed to exist wherein personal freedom is a right actually enjoyed by every individual under the internal law.

Yet it is possible that the right should be attributed by that law to every individual, except as limited by certain legal relations; such as relations essential to the existence of families, and by the effects of remedial and punitive law; and that other limitations of that right under the local law should have especial reference to local peculiarities. In a state wherein this should be the case, individual rights might be attributed to all to such a degree as to preclude the judicial recognition of conditions or status inconsistent with the exercise of those rights.

1 12 Conn. R. 59. Jackson v. Bullock, p. 59.

§ 302. If then the courts in Massachusetts or in the British islands could have held the individual rights attributed to Englishmen to be incidents of a relation existing independently of rules of action enforced by positive law, and that those rights were actually incident to the condition of all domiciled persons, except as limited by the family rights and duties, punitive and remedial laws, or in relations whose jural character depended on local circumstances, under special exceptions by statute or customary law, they might (under the second index of universality, ante, § 295,) have considered liberty to be so universally attributed, by the sovereign power whose will they were to apply as law, as to prevent the international allowance of slavery under the rule of comity.

§ 303. In Massachusetts this could hardly have been maintained if the refusal of the provincial governors to co-operate with the local legislature in prohibiting the importation of African slaves, was a sufficient proof that such importation was lawful. That of itself might have been inconsistent with a universal attribution of liberty, whatever may have been the condition of those so imported after they had become domiciled or had been purchased by residents. In the cases wherein domiciled negroes had been declared freemen, the judgment of the courts, according to Dr. Belknap's account, had been only that negroes born in the colony, or only perhaps that domiciled negroes were entitled by the charters to the rights of the English colonists. It might perhaps, however, have been held that personal liberty was to be attributed to all baptized negroes and Indians.

§ 304. Of the many slaves actually held in England, at the time of Somerset's case, a large proportion may be supposed to have been imported from Africa, and to have had no other domicil than England. The importation of slaves into the British islands had no implied sanction in the failure of an attempt to pass a statute against it, as in Massachusetts; but,

1Ante, p. 264, note.

A bill for restricting the slave trade was first brought into the House of Commons in 1788. The final act for its abolition was in 1807. Walsh's Appeal, pp. 344-350.

as has been shown in the fourth chapter, the same reasoning which supported the importation of slaves into an American colony would, apparently, have justified their importation into England unless the law which, in England, determined the condition of the native Briton extended to all persons within the realm of England. But Lord Mansfield must be taken to have based his decision on the universal personal extent, at the time, of this law of condition; and to have held that any exceptions under the territorial law, such as villenage and the bond-slavery of colliers and salters in Scotland, then existing,' were jural or rightful only in reference to peculiar local circumstances. Such a meaning, it would seem, will best vindicate the juridical fitness of his language when he said, "The state of slavery is of such a nature that it is incapable of being introduced on any reasons moral or political; but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, is erased from memory. It is so odious that nothing can be suffered to support it but positive law."

§ 305. It has already been shown that, in this distinction of certain principles contained in the municipal (national) law of a country as having universal personal extent, a tribunal distinguishes some rules as jural or rightful only in and for a certain territorial jurisdiction, and others as jural because consonant with the conditions of man's existence in society; thus recognizing a natural law in the only sense in which it is known in jurisprudence or the science of positive law. The legislator may determine this by exercise of autonomic power. A tribunal, in making this distinction, can only refer (in the want of local precedents or legislation determining the extent of law) to the juridical action of foreign states: especially in their application of international law; through which it is ascertained what principles of its own (national, civil,) law each state holds to be natural and universal, and what others peculiar (proprium) to itself or its own peculiar circumstances. And by this refer

1 Ante, p. 332, note.

Ante, §§ 87, 97, 100.

ence the science of universal jurisprudence (jus gentium) becomes manifested.

§ 306. It being then admitted that in England, at this time, no right similar to that claimed by the master in Somerset's case could there be exercised in reference to a domiciled inhabitant, or that no such obligations as those incident to slavery in the colonies could be enforced in England by the territorial or local law against a domiciled inhabitant, the courts there could have referred to the international practice of foreign countries in similar circumstances; that is, countries wherein such rights and obligations could not be enforced as between domiciled inhabitants or under the internal law. They would have regarded such practice not only as the evidence of a customary rule of international law supposed to be received into the law of the land,' and also as showing whether universal jurisprudencethe law of nations-did or did not sustain such rights and obligations, but also as showing whether the general law of free condition, having a territorial extent in the forum of jurisdiction. (England) was to be taken to be jural with reference to domieiled subjects only, or to have universal personal extent, with only such exceptions as were to be considered necessary in reference to local circumstances; as shown by statute or by particular customs.

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§ 307. Now the European continental authorities already cited may, regarded in this light, be taken to show that-when in any country that condition of bondage which has herein been called absolute or chattel slavery, has become unknown to the territorial or internal law, or when it cannot exist as the condition of a domiciled inhabitant, all limitations to the enjoyment of individual rights under that law, (if not incidents of the family state or effects of punitory laws,) are to be considered jural only in reference to local and exceptional circumstances sanctioned by statute or particular local customs, and that the ordinary or general law, attributing individual rights to the domiciled inhabitants, is one which is to be taken (with these excep

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