CHAPTER X

OF THE PRIVATE INTERNATIONAL LAW DURING THE COLONIAL PERIOD. THE SUBJECT CONTINUED.-OF DOCTRINES OF THIS LAW, APPLYING TO CASES OTHER THAN THOSE RESEMBLING SOMERSET'S CASE.

§ 317. Although the judicial tribunals of one or more nations, or of one or more parts of the British empire may, on the principles set forth in the preceding chapter, have refused to maintain, as between persons within their respective jurisdictions, the relation of master and slave existing1 under the law of another country, there is no doubt that the same did recognize, or would have recognized the validity of the right of ownership as the effect of a jural rule, in and for the territorial limits of the foreign country. It would still have been consistent, in such tribunals, to have enforced contracts founded on the existence of that right of ownership, or to have enforced compensation for tortious acts interfering with its enjoyment in the foreign country or upon the high seas. There can be no doubt that the right in slave property was thus internationally recognized in every jurisdiction of the British empire during the colonial period, and, to the same extent, in European jurisdictions where slavery was unknown to the local law."

1 Ante, p. 59.

Such partial recognition of slavery would, however, have been utterly inconsistent with the principle which Mansfield and the Scots Court of Session had proclaimed, and which Lord Robertson, in the same court, recognized in 1810, as the basis of their decision, when he said, "But there is another set of cases in which, also, the lex loci is disregarded; I mean those cases in which the lex loci is contrary to the general and universal rules of justice. This may be exemplified by the decision in the case of Knight, the negro, 15 January, 1770. His master bought him as a slave in

§ 318. The question of the condition of a person who may have returned to the jurisdiction or forum in which he had been held in slavery, after having been in a foreign country where. that slavery was not recognized, or where he had been actually free, has usually been classed as a question of international private law. No cases presenting this question are on record as occurring before the separation of the colonies from the British empire. Gudelin De Jure Novissimo, lib. i. c. 4, 9,' seems to hold that slaves from Spain would not become absolutely free on reaching the Netherlands, and that they might be claimed if found afterwards in Spain, although the master could have no right over them while in the Netherlands. He appears also to refer only to fugitive slaves. "Equidem arbitror servos Hispaniæ huc vel in Franciam venientes proprie ad libertatem non pervenire, quin repeti adhuc in Hispania, si postea ibi deprehendantur, in servitutem possint: verum in libertatem eos denegata, quamdiu hic sunt, adversus ipsos jurisdictione defendi. Non enim servi fugitivi recte comparabuntur illis, qui postliminio e manu hostium revertuntur. l. Requirendi, et passim C. de servis fugitivis, juncta l. Postliminium, D. De captivis et postlim. reversis; aut feris, quæ cum custodiam capientis evaserunt se in naturalem recepisse libertatem intelliguntur; Sferæ igitur cum §§ seqq. Inst. De rerum divisione.” 2

§ 319. The argument here is merely that the situation of a slave who has got beyond the jurisdiction, in which he was by law a slave, is not analogous to that of the Roman citizen who, having been enslaved by the enemy, had escaped into Roman or friendly territory or been ransomed or recaptured, or to that of animals feræ naturæ which, being escaped from the first taker, become

Jamaica, where such purchases are legal. Neither the purchase nor the legality of it, according to the lex loci, were denied; but the court held that the dominion assumed over the negro under that law, being in itself unjust, could not be supported in this country to any extent, and judgment proceeding on the same principles was pronounced in England in the case of Somerset." Ferguson's Rep. on Divorce, App. 396. Compare ante, p. 192, note, the quotation from Savigny.

Noted by Groenewegen in a passage already cited, ante, p. 335.

Christinæus appears to have concurred in this opinion; compare Christin. Decis vol. iv. lib. 7, tit. 36, decis. 80, n. 4. "Ipse autem D. Gudelinus meus alias confrater in eodem consilio supremo, subdit se arbitrari servos," etc.

res nullius, and may be said to have regained whatever liberty they had before.1

But, in the modern international case supposed, the slave has not merely been out of the jurisdiction by whose law he had been a slave, but he has been within a jurisdiction by whose law he was declared free. There has been, in this case, a manumission as complete and competent in law as any which could be given by the master alone, for the master's act can derive force only from the juridical will of the sovereign power under which master and slave are living at the moment. Now, since the effects of manumission are ascribed to universal jurisprudence, (manumissiones quoque juris gentium sunt,) it would seem that such emancipation of the slave by the law of the foreign jurisdiction was to be judicially recognized everywhere, in all jurisdictions into which he should afterwards pass, (unless there should therein be some jus proprium, customary or statute law, requiring a contrary judicial action,) even in that in which he had formerly been a slave.

This certainly would seem to have been the law when the slave had been carried or sent by the owner into the foreign country wherein he had been thus emancipated.' But a like judicial recognition of this emancipation may, perhaps, have properly been refused, in the country where the person had been a slave, if it had taken place by his voluntary escape; by

1 Animals feræ naturæ did not, by escaping, cease to be res, objects of property, but were the lawful prize of the first next captor. In the modern international case the slave has, by being in a jurisdiction wherein his slavery is not recognized, ceased to be property. It is absurd to conclude that escaped slaves are always the property of the owner from whom they escaped, from the proposition that they do not, like animals feræ naturæ, become res nullius, or the property of the first taker. The first question is, are they res, or persons? "The jus postliminii was a fiction of the Roman law, by which persons and things taken by the enemy were restored to their former state upon coming again under the power of the nation to which they formerly belonged. Postliminium fingit eum qui captus est in civitate semper fuisse. Inst. I. t. 12, § 5." 1 Kent, 108. Also, Dig. L. 49, tit. 15, (cited by Gudelin,) §§ 3, 4, 5, 15. Gudelin's conclusion is rather in analogy than otherwise with the law of postliminy; therein likening the foreign country, in which the slave became free, to a hostile nation or one with which the Romans had no friendly relations in peace. D. L. 49, t. 15. § 3. Inst. I. t. 12, 5. In pace quoque postliminium datum est; nam si cum gente aliqua neque amicitiam, etc., cited ante, p. 151, note 2.

2

Ante, § 206, and the notes.

But Lord Stowell in 2 Hagg. Adm. R. 100, 113, held, that even this would not be equivalent to manumission.

adopting, in this case, the rule of Roman law that the flight of a slave should not be the legal cause of the master's loss.'

;

§ 320. It would seem that if the status of the natural person whose condition was in question, had been that absolute chattel-slavery which was once recognized in universal jurisprudence, such person, though having that status under the law of some one country, could not have been said to have a domicil therein; and that there could be no determination of the question of status by recognizing the law of domicil, until he should have become a legal person. But if taken to a foreign country, by whose law he became free, he would therein, for the first time in his existence, have become a legal person; and his only possible domicil would then have been that country. And then the rule for determining the status according to the law of the domicil would have required a judicial recognition of his free condition even in the country where he had been formerly a slave."

At least it may be assumed that the condition of slavery, in case of such return, could not have been supported by a reference to the law of domicil, if the former condition of the slave had been that of absolute chattel or res positæ in commercio.

§ 321. But if the condition of slavery had originally been that of a legal person, in a relation existing under the jus proprium, he would have had there a domicil. And it might be said, that the mere fact of his having been in another jurisdiction, where that relation was not recognized, was not, in itself, a change of domicil. It would depend upon the slave's capa

1 Cod. lib. vi. tit. 1. 1. 1. Servum fugitivum sui furtum facere, et ideo non habere locum nec usucapionem nec longi temporis præscriptionem, manifestum est; ne servorum fuga dominis suis, ex quacunque causa, fiat damnosa. And from Dig. lib. xlix. tit. 15, 1. 12, §§ 8, 9; 1. 18, § 5; 1. 27, 30, it appears that a slave taken by the enemy or stolen, could not acquire liberty as against his former owner by any emancipation otherwise valid.

In the time of Justinian, slavery being everywhere recognized, jure gentium, the modern international case of emancipation by mere change of jurisdiction could not have occurred. A close analogy might be found, where a captive enemy, sold as a slave among the Romans, had escaped to his own nation. Since he must have become free by operation of law there, the question might occur, if he should afterwards, in time of peace, come within Roman territory, whether he would be there free

or not.

Ante, pp. 49, 109.

city to acquire a domicil; and upon his intention to do so, provided he had the capacity. If it should be held that such capacity could not exist independently of the master's consent, yet in cases where the slave was not a fugitive but had been carried, by the master, into a jurisdiction not recognizing slavery, the latter must be regarded as consenting to the operation of laws to which he voluntarily and unnecessarily had subjected himself. But still, in that case, the intention of the slave party to acquire a domicil must be essential, and it would not be acquired in cases where he had remained with his owner or master, and returned with him to their former common domicil.

§ 322. From the various authorities and instances which have here been collected, it appears that the correlative rights and obligations between persons who, in another state or forum, had sustained the relation of master and slave, had, in every state or forum of jurisdiction wherein the master had made a public claim for personal service, been regarded only as rights and obligations determinable by private international law and as subjects of ordinary judicial inquiry solely. Or again, to use a negative form of expression, the question of maintaining those rights and obligations, in the state or forum where the claim had been made, had never been regarded as one arising under public international law, (or the law of nations in that sense,) the rule-a law in the imperfect sense-operating on states or nations as its subjects. The demand of the claimant owner had not been made upon, or at least had never been entertained by the administrative officers of the state. Or againin a different form of expression-the claim of such a master to such a slave had not been made as a demand for "extradition " or "rendition" upon those who might represent the state in its sovereign intercourse with foreign states and alien persons.

It may have been that, during the period which has herein been considered, such demands and extraditions were sanctioned and allowed by public international law in the case of convicted criminals or persons fleeing from justice. And it may have been that in that case such extradition was decided upon