without reference to any ordinary judiciary or administrators of private law-the ordinary courts of law. It certainly does not appear that similar demands were ever allowed in Europe or America, if ever made, for fugitive slaves, at any time before the formation of the present Constitution of the United States.

§ 323. A variety of circumstances may be imagined in which the determination of rights and obligations arising out of the status of slavery would (from the fact that the persons, whose rights and obligations were to be determined, had at different times been subject to different jurisdictions)' present questions of private international law. But there are no records to show whether, except in the circumstances already considered, the application of that law to questions of personal status had ever, during the colonial period, been exemplified in actual cases before judicial tribunals. And, except in these instances, the private jurists of the time now under consideration do not appear to have examined into its application. No examination therefore will be here attempted of any such supposable cases.

2

§ 324. Recurring again to those laws which have already been described as having a personal extent, in reference to two classes of persons in the American colonies, and thus having had an international or quasi-international operation therein, although the relative rights of persons, of European birth or descent, in respect to things or classes of things might differ in the several colonies, the law of individual and ordinary relative rights, in relations wherein persons were the objects of action, was substantially the same, for domiciled inhabitants of the English race, in each colony as in England itself. When therefore the inhabitant of any particular jurisdiction of the empire, being of European race, appeared within any other particular jurisdiction of the empire, although his rights in relation to things might differ from those of the domiciled inhabitant of that jurisdiction, and the determination of his relations, in that respect, might present a case of the so called "conflict of laws," to be deter

mined by the private international law, as known in that jurisdiction, yet his individual and ordinary relative rights, constituting his personal condition or status, were, by force of the national law of the empire, the same as those of the domiciled inhabitant of the same race in like circumstances of natural condition; that law having the effect of an international law in securing to him those rights in each several jurisdiction of the empire, though not therein domiciled.

The English law of rights and liberties, being thus a personal law to the domiciled subject of European race, secured to him the right of locomotion and residence throughout the empire, irrespectively of the boundaries of particular jurisdictions; and gave him the right of acquiring a domicil in any part of the national domain.

§ 325. If the domiciled white inhabitant of one of those several jurisdictions appeared in another claiming therein the rights of an owner in respect to a person held by him as a slave in the place of his domicil, that claim could be supported by the force of "the common law," as the personal law of the privileges of the master having national extent, only, if ever, while the historical law of nations-universal jurisprudencerecognized chattel slavery. For, as has been shown, it was only by virtue of this law of nations, that chattel slavery could be held to be supported by the common law of England. Although the right of private property was an individual right under common law," yet, in England, property was to be defined either by universal jurisprudence or the local internal law of England,' and it has been shown that servitude under the internal law of England was known only as a feudal relation, except while the law of nations, judicially cognizable, supported chattel slavery. When that law, during the colonial period, became changed, the extent of the right of property under English common law became modified. Therefore admitting that, at the introduction of slavery into the colonies, the common law of England recognized slave property,3 yet, towards 'Ante, § 215, 244.

2

* Ante, §§ 291, 292.

Ante, §§ 201, 281.

390 STATUS OF AFRICANS BY LAW OF NATIONS.

the end of the colonial period, the right of a domiciled master in respect to his baptized, civilized, American-born negro, (whether by law a chattel, or a bond person,) rested in the place of his domicil, upon the local law only, and its recognition in any other colony depended upon the principle of comity with its limitations, as they have been before described.'

§ 326. So, on the other hand, although the condition of a person of the African or Indian races, domiciled in any one jurisdiction of the empire, might, under the local law of that jurisdiction, consist in rights of the same legal nature as those which characterized the condition of an inhabitant of the same jurisdiction who was of the English or European race, yet those rights were the result of a law confined in its territorial extent to that jurisdiction, and not of a law having national extent; and therefore the support of those rights or of that condition would depend, in any other part of the empire, upon the private international law as received and applied therein by the local (colonial) source of power.

§ 327. It would depend upon the actual international recognition given by different nations to the relations of alien negroes, created under the laws of their domicil, whether any principles, having personal extent to them only, should acquire the character of a law of nations or a rule of universal jurisprudence, after the time at which chattel slavery had ceased to be supported by that law. If, for the negro race, in international relations created by the public and private law of different countries, only a partial recognition should be made of a condition of rights and privileges, such as in like circumstances would be given to whites, then, although the slavery of an alien negro might not be internationally recognized, there might a certain condition of social inferiority be assigned to him in the forum of jurisdiction, based upon universal jurisprudence.

But it has been shown that the condition of a private person in respect to privilege can be attributed to the law of nations

1See ante, p. 324, where it was assumed that before the close of the colonial period the right of ownership would not have been sustained by the "common law of England" having personal extent throughout the empire. It is here stated as proved.

only so far as it embraces relations which will continue the same, notwithstanding a change of jurisdiction; and that, when chattel slavery is no longer recognized, no other condition of a private person can be attributed to universal jurisprudence than such as consists in the rights and obligations of the family, and those resulting from contracts. There is nothing in the history of either international or of municipal (internal) jurisprudence, during the colonial period, to indicate that there was any definite condition of a legal person, in respect to those rights which could be recognized in the case of an alien negro under a judicial derivation of law, and which might not equally have been attributed to a white or European. In all parts of the American continent, however, domiciled negroes or Indians were placed in an inferior condition to the whites; in respect either to civil or political privileges; and in that branch of the law which has been called police law, applying equally to aliens and domiciled persons, derived from statute regulation, a distinction had been made between free negroes and free whites, and the same distinction existed in all the colonies settled by European nations in America. This fact, of so general prevalence, may perhaps be said to have constituted during the colonial period a recognized disability in persons of the negro race under the "law of nations;" in this sense, that, unless specially provided against, all international transactions or agreements, affecting the right of the subjects of different countries, would be supposed to have admitted the distinction.1

§ 328. When chattel slavery had thus ceased to be supported by the jurisprudence of the greater number of civilized nations, although the trade or commerce in slaves might still be legal by the authority of other states, yet it could be maintained only in such parts of the world as the nation sanctioning it might have jurisdiction over the persons engaged in it. The slave-trade on and from the coast of Africa, though, for this reason, not supported by the law of nations,-in the sense of universal jurisprudence, at the close of the colonial period, can

not be said to have been contrary to the "law of nations; either in that sense, or in the sense of a law of which nations are the subjects; for, according to the acknowledged principles of that law, each nation might permit its own subjects to engage in the traffic on the coast of Africa. It would have been a topic of public international law only so far as it might have been the subject of an agreement between such a slave-trading nation, and the sovereign of that part of the coast of Africa from which the negroes should have been purchased :-supposing that there should have been there any organized civil authority. Even the forcible abduction or kidnapping of the native inhabitants by the subjects of a civilized government might have been legalized by such government; and it would not have been contrary to international law, except so far as it violated the rights, under the public international law, of the sovereign to whom the persons kidnapped might have been subject, if any such sovereign could have been found.

§ 329. An act of criminal violence committed by private persons upon the high seas, or anywhere beyond the territorial jurisdiction of organized civil governments, is an act punishable by the tribunals of the sovereign of the persons committing the injury. If such act of violence is allowed or sanctioned by such sovereign, it then becomes, according to the public international law, an injury against the sovereign of the persons injured,— supposing them to be the subjects of an organized civil government; the remedy for which is beyond the jurisdiction of courts of justice. But a nation may grant jurisdiction to another, or to all others, of crimes committed by its own subjects; and, by the consent of all European nations, it has been agreed that some acts of violence, by private persons, shall be punishable not only by the tribunals of their own sovereign, but by those of any nation which may obtain control over their persons. Such acts are therefore not merely contrary to the rule of right enforced by every nation, and therefore such as may be said to be contrary to universal jurisprudence-the law of nations; but they are acts over which every nation has jurisdiction, irrespectively of the national character of the persons committing them.