tions) to have universal personal extent, or to apply to all natural persons within the territorial domain. So that a tribunal cannot look upon the rights and obligations of aliens, existing under a foreign law, if inconsistent with the possession of those. rights, as equally recognized exceptions to that general law. And that therefore, in such forum, the rule of comity cannot take effect in sustaining the involuntary servitude of an alien as incident to a status existent by the law of his domicil.

These authorities are earlier than Somerset's case, and the application of the doctrine above stated would have prevented the judicial recognition of his slave condition under the rule of comity.

§ 308. It is thus supposed that Lord Mansfield's decision in the case of Somerset was justified by the system of private international law derived from the customary jurisprudence of all nations, applied in a case of the so called "conflict of laws" in three different forms:

1. The rule derived from the international practice of nations in like cases disallowed the master's claim.

2. The law of nations-universal jurisprudence, as learned from the international practice of nations, no longer supported the slave condition of the negro.

3. The juridical action of foreign nations, as indicating what principles of the law of England were to be taken to have universal personal extent, required a universal extent for the law of free condition applying to the domiciled inhabitants, and therefore the rights of the owner and the obligations of the slave were not supported by comity.'

1 Mr. Justice Campbell, in Dred Scott's case, 19 Howard, 495, says: "It will be conceded, that in countries where no law or regulation prevails, opposed to the existence and consequences of slavery, persons who are born in that condition in a foreign state would not be liberated by the accident of their introgression." If it is meant that the liberation will not ensue where there is no statutory prohibition of slavery, the concession here assumed seems to be very much out of use. It was not required by the rules of international private law a century ago, and has certainly not been more favored since that period. The "accident of introgression " liberated persons born in slavery in foreign states when the law of nations-universal jurisprudence-had changed. Mr. Justice Campbell adds: "The relation of domestic slavery is recognized in the law of nations, and the interference of the authorities of one state with the rights of a master belonging to another, without a valid cause, is a violation of that law. (Wheat. Law of Nat., 724; 5 Stats, at Large, 601; Calh. Sp. 378; Reports of the Com.

§ 309. According to the view of the public law of the British empire, during the colonial period, which has been given in the preceding chapters, the slavery of a negro inhabitant in any one of the colonies rested on a portion of supreme or sovereign power held severally by the local government. The several jurisdictions of the British empire were like independent national jurisdictions, in their international recognition of the status of negro slaves. This was the colonial theory of public law, which was confirmed or established by the revolution.

It must be noticed that the applicability of the argument here detailed as determining Somerset's case, rests wholly upon this doctrine. But on the theory of public law, determining the location of sovereign power over persons and things in the American colonies, which was held by Lord Mansfield, (as appears in this decision, and is known from other sources,)' there was a gross inconsistency in his refusing, as a judge, to give a quasi-international support in England to the condition of slavery, which he acknowledged to be lawful in the colony. For, even admitting that that condition did not, at that time, receive any support from the law of nations, i. e., universal jurisprudence, Lord Mansfield held, not only that Somerset was legally a slave in the colony, but that the law by which he was held as a slave rested upon the same supreme source of law upon which the territorial law of England depended for its coercive power in England, that is, parliament, or the crown and parliament. Of two laws, equally dependent on the juridical will of the sovereign in whose name he exercised the judicial functions, Lord Mansfield could not have taken one-the English (local) law of status-to have that universality or universal

U. S. and G., 187, 238, 241.") The law of nations,-universal jurisprudence,―ceased to support slavery long before Somerset's case; and if Judge Campbell means here public international law, a law binding on nations, the assertion is simply ridiculous: unless the slaveholding States of this Union can alone create a rule in that law. For, from the middle ages to the present day, every European state has claimed and exercised the power to recognize or not to recognize the bond status of strangers. And when nations have not allowed their own subjects to hold negroes in slavery, they have, almost without exception, rejected the claims of foreign owners voluntarily entering their dominions. Their right to do so has never been questioned.

See his speech in the Lords, Feb. 7, 1775, in 2 Campbell's Lives of Ch. Justices,

p. 496.

personal extent which would prevent the judicial recognition, (under the rule of comity as explained in the second chapter,) of a right and obligation sanctioned by the other.

1

§ 310. In other words, since Lord Mansfield held that the sovereign whose juridical will had, in Virginia, (as by a jural rule, or rule of right,) made Somerset a slave, was identical with the sovereign whose juridical will (in a jural rule, or rule of right,) he was to enforce at Westminster, he could not (if Somerset had been a chattel in Virginia) say that the law of England, in attributing to Englishmen legal capacity for rights and duties, declared a natural law, or a law in the secondary sense, to be received and applied by him with universal personal extent or to all persons within the power or recognized territorial jurisdiction of the law of England; and so have refused international recognition of his chattel condition. Nor (if Somerset had been, in Virginia, a legal person in bondage) could Lord Mansfield say that the law of England, attributing personal liberty to all domiciled or native subjects, was to be regarded as the recognition of, or the statement of, a law in the secondary sense, a natural law, and that that right was to be taken by him to be the incident of a state of things existing independently of rules of action established by the state, and one attributed to all persons within the territorial jurisdiction as by a law of universal extent, a law applying to all persons irrespectively of their domicil or their previous subjection to other laws or jurisdictions, and thus have refused international recognition of the relation between the master and slave, regarded as legal persons.

2

§ 311. Indeed, since there was no statute or customary rule that the colonial slavery should not be recognized in the British islands, it followed, from the assumption that they and the American colonies were under the same sovereign source of law, that an English tribunal administering law as the ascertained will of that supreme power, was bound to recognize the law of slavery as a personal law, according to the quasi-international

rule for the recognition of personal laws which was stated in the second chapter. That is to say, while the domicil of the slave and his master remained unchanged, every tribunal representing that source of law, in any part of the empire, was bound to recognize within its particular forum the relation, created by the colonial law, as jural and legal ; independently of its connection with the law of nations-universal jurisprudence—and independently of the rule of comity, which properly obtains only as between independent states. It was, so to speak, stultifying the jurisprudence of England, for a judge adopting Lord Mansfield's theory of the public law of the empire, to declare that the relation between the master and slave was unlawful in England, because contrary to natural justice, and at the same time to admit that it was a legal relation in the colony.' For, in the colony, that relation had been established by a judicial application of natural reason by tribunals representing there, on his theory, the same juridical sovereign whom the King's Bench represented in England. Lord Mansfield in this decision ignored the historical origin of negro slavery, when he declared it to rest upon statutes having definite territorial extent in and for the plantations and the coast of Africa; though the essential inconsistencies in his "opinion" would not thereby have been removed."

1 Ante, p. 100, and notes.⚫

2 Comp. the argnment of Tribaud, for the master, in the French case, 13 Cau. Cel The criticisms of the English editors, in 20 Howell's St. Tr., p. 15, note, upon this argument, are unfair. It is fully as logical an exposition of that side of the general question as is Hargrave's upon the other.

Very similar is Lord Stowell's observation, 2 Hagg. Adm. R., pp. 114, 127. Montesquieu, Lettres Persanes, Lettre 76. "Il y à long temps que les princes Chrétiens affranchirent tous les esclaves de leurs états; parceque, disoient ils, le Christianisme rend toux les hommes égaux. Il est vrai que cet acte de religion leur étoit très utile; ils abaissoient par la les seigneurs, de la puissance desquels ils reliroient le bas peuple. Ils ont ensuite fait des conquêtes dans les pays où ils ont vu qu'il leur etoit advantageux d'avoir des esclaves, ils ont permis d'en acheter et d'en vendre, oubliant ce principe de religion qui les touchoit tant. Que veux-tu que je te dire ? Verité dans un temps, erreur dans au autre."

During the American war, the slaves in Virginia and Carolina were regarded by the English as property and objects of booty. It was estimated that not less than thirty thousand were carried off from Virginia. The policy adopted by Dunmore at the beginning of the war, was to arm the slaves against their masters, but this was not persevered in. 3 Hildr., 355.

Mr. Sumner, in a speech in the Senate of the United States, August, 26, 1852, said that Lord Mansfield pronounced this decree "with discreditable reluctance, sully

§ 312. According to the principles herein before assumed, the true statement of the international law involved in Somerset's case is this:-The law of nations-universal jurisprudence-as then recognized by European states, did not support his bond condition, whether it was chattel slavery or the bondage of a legal person. This condition had been created by the local law, jus proprium, of the colony in which he had been a domiciled inhabitant; whether he had there been held as a chattel, or as a person bound to service or labor, was immaterial. The law of the foreign jurisdiction-the colony-was to be taken to be jural—a law of right-in and for the colony its consequences there were legal. But the law of England (except as comprehending the law of nations-universal jurisprudence—if it then supported the slavery of heathen negroes2) attributed the right of personal liberty to all natural persons within its territorial jurisdiction, and enforced no dominion of one private person over another, except in the relations of the family, relations arising out of primitive and remedial law, and in some local districts, certain relations founded on particular customary law. No relation of this kind existed between Somerset and his master. The law which attributed the so-called "personal rights" to the inhabitants of English birth (except as modified by these relations) had a universal personal extent in England, which prevented the operation of the principle of

ing his great judicial name, but in trembling obedience to the genius of the British constitution." This is hardly grateful. Even if the decision was good law, Lord Mansfield was unable to give good judicial reasons for it, and might well have been reluctant openly to assume the province of legislation, as, from his opinion and observations during the argument, he evidently thought himself obliged to do. It seems likely that his trembling obedience" was rendered more to the then prevailing current of public opinion, (see Dunning's remark, Lofft's R., pp. 9, 10,) than to a sense of judicial responsibility.

That is a doubtful compliment, by Best, Ch. J., in Forbes v. Cochran, 2 B. & C., 470, saying that the judges (in Somerset's case)" were above the age in which they lived," &c.

Lord Mansfield, encouraging a general officer who was doubting his own competency for the judicial duties incident to the office of governor in a W. I. colony to which he had been appointed, told him it would be easy to decide justly-" but never give your reasons, for your judgment will probably be right, but your reasons will cer tainly be wrong." Campbell's Lives of the Chief Justices, vol. II, p. 572.

The law applying as municipal (internal) law has been stated, ante, § 189. The name James Somerset makes it probable that he was a baptized or nominally Christian negro, though the return to the writ states that he was a native African.