On the other hand it has been supposed by some persons that, if slavery be attributed to positive law in the sense inclusive of unwritten law, it cannot be attributed at the same time to a law which, like statute, is peculiar to some one state or possessor of sovereign power. Thus in Neal v. Farmer, 9 Geo. R. 581, the court observes that Chief Justice Shaw, in Sims' case, and in Commonw. v. Aves, 18 Pick. 212, attributing slavery to positive law defines it as including customary law. And because the same Judge, in the latter case, refused to recognize the relation of master and slave, or the condition of slavery, in Massachusetts (in cases not coming within the fugitive slave provision in the Constitution of the United States), the Georgia court supposes an inconsistency. Although Judge Shaw, by his definition of positive law, discriminates some customary law as particular or local, in respect to some one state or nation, and so distinguishable from a universal law.

So Senator Benjamin, in the instance above, supposes that he has proved his point in showing that slavery does not rest upon positive law, in the sense of positive legislation; and in another place says; "As to the right in them, [slaves] that man has to overthrow the whole history of the world, he has to overthrow every treatise on jurisprudence, he has to ignore the common sentiment of mankind, he has to repudiate the authority of all that is considered sacred with man, ere he can reach the conclusion that the person who owns a slave, in a country where slavery has been established for ages, has no other property in that slave than the mere title which is given by the statute law of the land where it is found."

Now, although it be admitted or proved that property in slaves does not rest upon positive statute, but upon unwritten law, it is not thereby proved that it rests on a law which originates in "the common sentiment of mankind," and which judicial tribunals are bound to recognize as presumptively accepted by that possessor of sovereign power whose will they are to apply as positive law.

§ 525. As has been before observed, the discrimination of such laws is principally requisite in the application of interna

tional private law. Thus the English case of Forbes v. Cochrane, in which Holroyd, J., in a part of his opinion already noted, distinguished slavery as resting on a "municipal," local, or "particular" law of some one country in contradistinction to "general right" or "general law of nature," was one involving the application of that international law. And the same opinion is cited by Chief Justice Shaw, in Commonwealth v. Aves, 18 Pick., in deciding that, independently of any provision in the Constitution of the United States, the right of a master in respect to a slave, which was valid or legal in Louisiana, the place of their domicil, could not be recognized in Massachusetts by international private law. And Judge Shaw, giving his conception of the distinction in his own language, says, p. 216, "This view of the law applicable to slavery marks strongly the distinction between the relation of master and slave, as established by the local law of particular states and in virtue of that sovereign power and independent authority which each independent state concedes to every other, and those natural and social relations which are everywhere and by all people recognized, and which, though they may be modified and regulated by municipal law, are not founded upon it, such as the relation of parent and child, and husband and wife. Such also is the principle upon which the general right of property is founded, being in some form universally recognized as a natural right, independently of municipal law.

2

"This affords an answer to the argument drawn from the maxim that the right of personal property follows the person, and, therefore, where by the law of a place a person there domiciled acquires personal property, by the comity of nations the same must be deemed his property everywhere. It is obvious, that if this were true, in the extent in which the argument employs it, if slavery exists anywhere, and if, by the laws of any place a property can be acquired in slaves, the law of slavery must extend to every place where such slaves may be carried. The maxim, therefore, and the argument can apply only to

1 Ante, §§ 101, 158, 306.

2

Compare ante, § 109.

those commodities which are everywhere, and by all nations, treated and deemed subjects of property."

§ 526. But, from not distinguishing any other visible origin of law than the several will of single states or nations, jurists of the highest eminence sometimes, (as in the instance of the Georgia case and of Senator Benjamin's argument, last cited,) assume that, if a relation is proved to exist by unwritten, customary law, judicial application of natural reason, in one forum or under one possessor of sovereign power, it is thereby proved to have legal existence in every other country as customary law, judicial application of natural reason. Or, sometimes, while discriminating a law which has judicial recognition in every forum by reason of its universality, and which is to be distinguished from the local or particular law (statute or customary) of some one country, they confound their own (subjective) idea of right, or what they call "natural law," the judgment of their individual moral sense, with the (objective) conception of right furnished by the juridical history of the world, or of those nations with whose international relations they are conversant, the historical law of nations. In other words, instead of strictly observing what rules are recognized among all or many nations, assuming that they are founded in natural reason, (as the Roman attributed to naturalis ratio whatever apud omnes populos peræque custoditur,2) and applying these as universal jurisprudence, (jus gentium,) they determine what, by their individual natural reason, should be recognized among all nations, and apply that as the universal rule, calling it "the general law of nature," "the dictates of natural justice;" or using some similar term appropriate to designate a rule of ethics.

Illustrations of this latter error are given both by those who demand that slavery shall be everywhere judicially recognized, as supported by customary law, and by those who deny it that recognition.

§ 527. Thus in the definition, in Commonw. v. Aves, already given, of positive law, where he distinguishes it as the rules which are "established by tacit acquiescence or by the legis1 Ante, p. 109, note. 2 Ante, § 152.

lative act of any state, and which derive their force and authority from such acquiescence or enactment," Judge Shaw refers to other rules, as being also law; calling them "the dictates of natural justice, and as such of universal obligation;" apparently, however, without acknowledging any other index of these latter than the individual conscience of the tribunal exercising jurisdiction.

A passage from the same opinion has already been cited as giving what is probably the clearest instance of a judicial attribution of slavery to "local" or "particular" laws, as distinguished from a universal jurisprudence. But though in the conclusion of the passage, Judge Shaw particularly indicates that some objects of rights are to be recognized as "those commodities which are everywhere and by all nations treated and deemed subjects of property," thus distinguishing the true historical criterion by which (independently of local statute or custom) property may be known, still, in that which immediately follows, the Judge, virtually, makes himself the exclusive arbiter of what may or may not be legal property; saying, "But it is not speaking with strict accuracy to say that a property can be acquired in human beings by local laws. Each state may, for its own convenience, declare that slaves shall be deemed property, and that the relations and laws of personal chattels shall be deemed to apply to them; as for instance, that they may be bought and sold, delivered, attached, levied upon, that trespass will lie for an injury done to them or trover for converting them. But it would be a perversion of terms to say that such local laws do in fact make them personal property generally; they can determine that the same rules of law shall apply to them as are applicable to property, and this effect will follow only so far as such laws proprio vigore can operate."

It is evident that, in this instance, either a very distinguished jurist and judge of the largest judicial experience asserts, in contradiction to the history of the world, that it is morally impossible that a human being should be property by the law of any country, or else, if his argument recognizes a universal law independent of his individual judgment, the argument is a pe

titio principii. For the question then being, are slaves property by a local law, or are they property by the universal law ?—the judge finds the answer by saying,' if they be considered property by universal law, they would be slaves everywhere; they would be slaves in Massachusetts; therefore they are property by a local law, and not by the universal.2

§ 528. A similar identification of the universal law with the moral judgment of the individual jurist occurs in the speech of Senator Benjamin, already referred to, when replying to a passage in the speech of Mr. Collamer, of Vermont, on the same subject,3 the whole of whose argument, he says, " ingeniously as it

1 See the last paragraph in § 511.

To the idea that the universal law, which is distinguishable from that peculiar to single states or nations, is not at the same time known as a rule set or laid down, (positum, jus constitutum, ante, § 17.) by any judicial criterion of the will of the sovereign, distinguishable from the individual moral sense of the judge, may also be ascribed the remark on page 215 of the same report: "That slavery is a relation founded on force, not in right, existing where it does exist, by force of positive law and not recognized as founded in natural right, is intimated by the definition of slavery in the civil law: Servitus est constitutio juris gentium qua quis dominio alieno contra naturam subjicitur." But this jus gentium is the very criterion of what a judge may recognize as a rule of universal law; and is to be received whether contrary to natural law or not. That, by it, slavery is not now judicially recognized in Massachusetts, as formerly, in the case of imported heathen negroes, is not owing to the better acquaintance of the judges with the law of nature, but to the fact that there is now no rule of universal jurisprudence, jus gentium, to support the master's right.

The portion of Senator Collamer's speech to which Senator Benjamin refers, is as follows: "I do not say that slaves are never property. I do not say that they are, or are not. Within the limits of a State which declares them to be property they are property, because they are within the jurisdiction of that government which makes the declaration; but I should wish to speak of it in the light of a member of the United States Senate, and in the language of the United States Constitution. If this be property in the States, what is the nature and extent of it? I insist that the Supreme Court have often decided, and every body has understood, that slavery is a local institution, existing by force of State law; and of course that law can give it no possible character beyond the limits of that State. I shall, no doubt, find the idea better expressed in the opinion of Judge Nelson, in this same Dred Scott decision. I prefer to read his language. He declares:

"Every State or nation possesses an exclusive sovereignty and jurisdiction within her own territory, and her laws affect and bind all property and persons residing within it. It may regulate the manner and circumstances under which property is held and the condition, capacity, and state of all persons therein; and also the remedy and the modes of administering justice. And it is equally true that no State or nation can affect or bind property out of its territory, or persons not residing within it. No State, therefore, can enact laws to operate beyond its own dominions; and if it attempts to do so, may be lawfully refused obedience. Such laws can have no authority extraterritorially. This is the necessary result of the independence of distinct and separate sovereignties.' [19 Howard, p. 460.]

"Here is the law; and under it exists the law of slavery in the different States. By virtue of this very principle it cannot extend one inch beyond its own territorial limits. A State cannot regulate the relation of master and slave, of owner and property, the manner and title of descent, or any thing else, one inch beyond its territory.