which the natural reason of mankind has hitherto continued to justify, as remedies between sovereign states. While slavery is thus justified as being accordant with natural reason, and therefore with natural law, so far as it can be recognized in jurisprudence, the freedom of mankind is asserted under the natural law, in the sense of the statement of a condition of things anterior to the authority of nations or of society: in which sense of the words all men would be taken to be naturally free from any positive law, that is, from all those rules of action which are enforced by society, or by states. The sentence last quoted from the Institutes is thus continued. Bella etenim orta sunt et captivitates secutæ et servitutes, quæ sunt naturali juri contrariæ. Jure enim naturali omnes homines ab initio liberi nascebantur; and in Title 3, §§ 2, 3, 4,-Servitus autem est constitutio juris gentium, qua quis dominio alieno contra naturam subjicitur. Servi autem ex eo appellati sunt, quod Imperatores captivos vendere ac per hoc servare nec occidere solent; qui etiam mancipia dicti sunt, eo quod ab hostibus manu capifiunt [servi] jure gentium, id est captivitate. And in Title 5, § 1, on manumission, it is said, Quæ res a jure gentium originem sumsit; utpote quum jure naturali omnes liberi nascerentur; nec nota esset manumissio, quum servitus esset incognita. Sed posteaquam jure gentium servitus invasit, secutum est beneficium manumissionis. Seeming to mean, that though in a primæval state, or a state of nature as opposed to a state of society, or as originally created, men must be considered equally free, yet, in consequence of their natural passions and infirmities, a necessary condition of things has arisen in the social state, a usus exigens et humana necessitas, from which natural reason justifies slavery.' This view of the origin of slavery the Romans held in common with all the nations of

untur.

* *

*

juris gentium requisitis, non sunt capti jure servi, proinde nec ejusmodi tacita oritur obligatio; ut in his qui piratico aut latrocinio barbarorum capiuntur."

In order to reconcile the language of the Institutes, some civilians distinguish a jus gentium primærum and a jus gentium secondarium. v. Vinnius: Comm. Lib. I. Tit. 2, 3, on this title of the Institutes. Merlin: Repertoire de Jurisprudence, Tom. V., p. 291, speaks of le droit primitif des gens, and le droit des gens secondaire. And St. Thomas Aquinas makes a similar discrimination of a secondary law of nature identical with the law of nations; as quoted in Bishop England's Letter II., giving the earlier Christian authorities that slavery is a legitimate consequence of sin.

antiquity. It was in fact a principle quod inter omnes populos peræque custoditur, a maxim of the law of natural reason, or of 'universal law' as then understood, that slavery might rightfully exist as a consequence of captivity in war:' and being a consequence of public wars, sanctioned by the rules of action between nations, it was at that time a principle of the international law, so far as any such international law could be said to exist.2

§ 154. The relation thus originating in war and under international law was, among the ancients, universally taken up and sustained by the internal or municipal law of each nation, jus civile. And under the sanction of municipal law it was also made a consequence of other circumstances than captivity in war; as of birth; since the child of a slave mother became also a slave; and also by the voluntary act of the person enslaved; Inst. Lib. I. tit. 3, § 4: Servi aut nascuntur, aut fiunt; nascuntur ex ancillis nostris; fiunt ex jure gentium, id est ex captivitate, aut jure civili, quum liber homo major viginti annis ad pretium participandum sese venundari passus est. In servorum conditione nulla est differentia. Here the origin of slavery by voluntary sale is attributed to jus civile, which here corresponds to municipal or internal law. The inheritance of slavery is not here attributed either to the jus civile or to the law of nations, it is merely stated as a recognized principle; but from its ad

1 Xenophon: Cyrop. L. vii. c. 5, 73.

"War and peace being rudely definable as contraries, war was the normal condition of international intercourse between nations not equally civilized, that is, not equally recognizing a rule of peaceful intercourse; and slavery might originate under such a condition of hostility, though not one of open war. Thus, Dig. L. 49, tit. 15, § 5, 2. Nam si cum gente aliqua neque amicitiam, neque hospitium, neque fœdus amicitiæ causa factum habemus, hi hostes quidem non sunt; quod autem ex nostro ad eos pervenit, illorum fit, et liber homo noster, ab iis captus, servus fit, et eorum. Idemque est, si ab illis ad nos aliquid perveniat.

3 Jus civile, in a sense relating to its extent, national law, including jus gentinmnot opposed to it, in the sense of jus proprium.

Quintus Curtius: Lib. 7, c. 8: "Inter dominum et servum nulla amicitia est, etiam in pace belli tamen jura servantur." The jura were the same, only as the rights of the master were always founded on jus gentium. The municipal law did not recognize any incongruity between the relation of master and slave and a peaceful condition of society.

A slave condition was also sometimes made the consequence of desertion from military duty, or crime; freed men for ingratitude towards patrons, and women for intercourse with slaves were liable to loss of freedom. Hüne's Darstellung über Sclavenhandel (Göttingen, 1820) vol. i. p. 95: cites Waldeck; c. 1. § 63 n. a. Heinec. c. i. § 83.

mitted universality it was probably considered a principle of the law of nations, constitutio juris gentium. In Tit. 8, from the universal prevalence of the idea of absolute dominion in the master over the slave, and of the slave's incapacity to acquire any thing as property, distinct from the property of the master, it is argued that that property and that disability rest upon the same foundation as slavery from captivity. In potestate itaque dominorum sunt servi. Quæ quidem potestas juris gentium est. Nam apud omnes peræque gentes animadvertere possumus, dominis in servos vitæ necisque potestatem esse, et quodcunque per servum acquiritur, id domino acquiritur; and hence it might be inferred that, as the dominion which prevented the slave from having the rights of a legal person, even in respect to his own offspring, was founded on the law of nations, the results of that dominion had the same legal character.1

155. The force to be attached to the expression, constitutio juris gentium, must be gathered from the comparison of the prevalence and judicial recognition among all nations of other relations which are ascribed to this law. The Institutes refer to the same jus gentium, the origin of the various forms in which property is held and transferred, as being equally recognized among all nations; Lib. I. Tit. 2, § 2. Et ex hoc jure gentium omnes pæne contractus introducti sunt, ut emtio, venditio, locatio, conductio, societas, depositum, mutuum et alii innumerabiles. And Lib. II. Tit. 1, § 4: Riparum quoque usus publicus est jure gentium, sicut ipsius fluminis. And § 5: Littorum quoque usus publicus juris gentium est, sicut et ipsius maris; &c. By ascribing the right of the master and the incapacity

1 Waldeck's Inst. L. I. tit. 3. "Ex juris principiis, foetus, tamquam accessio ventris ad dominum ventris pertinet." Heinecc., J. Nat. et Gen. L. I., § 252, II. § 81.

The whole of the first five titles of this second book of the Institutes are expressly called jus gentium, as contrasted with jus civile. Inst. L. ii. Tit 5, § 6.

The common right of using the sea shore and the sea, which is here spoken of, is the right of private individuals as against other private persons-a right under private municipal law (comp. Inst. L. i. tit. 1, § 1). It is not that freedom of the seas to all nations which makes a prominent topic of modern public international law. It may be noticed, however, in this connection, to avoid the confusion which has attended the use of the term, that the jus gentium of the Roman lawyers was exhibited in the application of human reason to the relations of public as well as private persons, and might thus form a part of what is now called public international law, jus inter gentes. Thus Dig. Lib. i. tit. 1, § 5: Hermogenianus, Libro i. juris epitomarum. Ex hoc jure gentium introducta bella, discretæ gentes, regna condita, dominia distincta, agris termini positi, ædificia collocata, commercium, emtiones, venditiones, locationes, conductiones,

of the slave to the same law of nations, without reference to the origin of the relation, (in servorum conditione nulla est differentia) it seems to be considered a condition or relation which should be everywhere recognized, and maintained of course in every municipal or international jurisdiction.

§ 156. The nature of this relation was the holding of men as property, and therefore as things, not persons: and therefore in the Institutes, Lib. II. title 1, treating of the nature of things as opposed to persons, de rerum divisione et qualitate, in § 17 it is said: Item ea quæ ex hostibus capimus, jure gentium statim nostra fiunt; adeo quidem ut et liberi homines in servitutem nostram deducantur. For, though slaves, servi, are distinguished, as natural persons, from freemen, liberi, in Titles 3 & 8, their condition is also frequently spoken of, by the civil jurists, as distinguishing them as legal things from legal persons; a legal person being a natural person having rights, and a slave having none, in the view of the law, any more than other objects of possession. As is shown in Inst. L. I. tit. 8, § 1, the power of the master was for life and death, in theory; and often illustrated in practice, as appears from history and literature. If the slave was considered entitled to any rights as a human being,

obligationes institutæ, exceptis quibusdam quæ a jure civili introductæ sunt. From which it appears that the jus gentium of the Romans was either public or private law according to the character of the persons or relations to which it was applied. Mr. Wheaton in his "Law of Nations," pp. 26-29, apparently assuming that the moderns would not have denominated public international law "the law of nations," if the Romans had not before called the same thing jus gentium, insists that by jus gentium the Romans intended that part of their civil law which they used as public law in reference to other nations. But in fact, as appears by the above citation from the Digest, it was a universal jurisprudence, which the judicial officer referred to as an indication of natural reason in all matters affecting private persons. Mr. Wheaton, by asserting that the private law which the Romans knew as jus gentium was not known by the recognition of its historical prevalence, but was simply that part of their own law which the Romans thought naturale, comes to the conclusion that jus gentium is immutable. It is true that the Romans knew no jus gentium that was not already part and parcel of their own national law-jus civile, (see Wheaton's Intern. Law, p. 27, citing Savigny and Waechter,) and every tribunal recognizing a jus gentium, or universal jurisprudence, must assume that it is included in the law of the land. How this may be, has been shown in the second chapter.

'Mühlenbruch; Pandectarum Doctrina, p. 195. "Familia appellatio non ad personas solum refertur, verum etiam ad res, adeoque ad hominum, qui instar habiti sunt rerum, i. e. servorum quoddam corpus." Kaufmann's Mackeldey, p. 127; editor's note: "The Romans made a distinction betweem homo and persona; because they regarded slaves not as subjects of rights, but as objects of rights, in the same manner as things." And see Taylor's El. Civ. Law, p. 429.

2 Juvenal Sat. vi. 1. 219.

the support of those rights was left to the influence of motives of humanity, and not enforced by any rule prescribed by the state, previously to the constitution of Antoninus referred to in the second section of the last-mentioned Title. Though in cases of extreme severity the supreme power might occasionally have interfered ex post facto, to transfer the slave to another master, without establishing any general recognition of his legal personality as in the case of the slaves of Julius Sabinus, spoken of in the same Title: and this extraordinary intervention seems to have acquired the force of a general law.1

§ 157. This attribution of the condition of slavery to the jus gentium, as contrasted with their jus civile, which was thus made by the Roman jurists, was in perfect harmony with the juridical action of all other nations of antiquity. For not only had that condition been constantly existing among all nations from the earliest historical times, but it was nowhere regarded as a relation of a local character, or one specially adapted to local circumstances; this is proved by the fact that the condition was recognized in private international law so far as it could be said to exist; the relation between the master and the slave being maintained not only in the jurisdiction wherein it began its legal existence, but also being carried out or realized in other jurisdictions to which they might remove; it was sustained equally between alien as between native subjects, and property in slaves was recognized in the transactions of commerce between persons of different nations.

It is in view of this character of slavery-that of being a legal condition, universally recognized by the natural reason of mankind manifested in civil institutions,' that, before describing

'Heineccius: Hist. Jur. Civ. Lib. i. § 174. Smith's Dict. Antiq. Servus. Other laws for the protection of the slave, Lex Petronia, Dig. L. 48, tit. 8, § 11; L. 18, tit. 1, § 42. Cod. iii., tit. 38, 3, 11. Constitution of Claudius; v. Suetonius, Claud. 25. See also Savigny, H. R. R. Bd. 2, p. 34.

2 The laws of Menu recognized several kinds of slavery, see H. St. George Tucker's Memorials of Indian Government, London, 1853, p. 434. In ascribing slavery to the law of nations it is a very common error to use that term not in the sense of universal jurisprudence-the Roman jus gentium-but in the modern sense of public international law, and to give the custom of enslaving prisoners of war, in illustration: as if the legal condition of other slaves who had never been taken in war were not equally jure gentium according to the Roman jurisprudence. See Mr. Webster's speech, 7th March, 1850; Works, vol. v. p. 329. 9 Georgia R. 581.

3 Whatever may have been the opinions of the great moralists of antiquity as to the