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itaries of sovereign' power over the colonies which were recognized by the public law of the empire during the colonial period. And the determination of their condition will be a question of municipal (internal) or of international law, according to the character of the persons whose condition is to be determined.1

Although all the natural persons within the territorial limits of the colonies, to whom, according to the views above set forth, the English law could not apply as a personal law, were, by the supposition, aliens to the territory of England, they were to be distinguished as either,

1. Native inhabitants of the colonial territory, who therefore were not aliens in respect to the imperial and colonial jurisdiction, in the same sense as persons entering the same territory who had been born in a foreign country, that is, one never within the limits of the British empire; or,

2. Those who entered the territory as alien, being alien, by birth, to the colonial territory as well as to the imperial jurisdiction, by the axiomatic principles of international law-the necessary law of nations, herein before described."

§ 196. The American continent having been occupied before its colonization by savage tribes living without any such established civil polity as is recognized by the public international law of civilized nations, the lands settled by the English were "desert and uncultivated" in respect to any "ancient laws," and therefore, it would seem, " chiefly" of the first of those two classes of colonies which Blackstone has described, where the only system of laws would be that brought by the colonizing people from their original residence; and that this fact did afford a basis for a part of the laws prevailing in the colonies has already been shown in the third chapter.

But though the territory occupied by the native inhabitants was thus regarded as never having been under foreign legislative dominion, they themselves were, of necessity, treated as having a distinct nationality and political corporeity, apart from the sovereignty over the land. They might be public enemies, and

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as such their rights and obligations might be affected by the laws of war, which are classed as international law. By principles of the law of nations then received as applicable in this international law, they might be made captives. And, independently of their individual liability to captivity, the consequences of an acquisition by conquest, mentioned by Blackstone, were applicable to them as nations, or as a class of persons; the law as to them was such as the king pleased. That is to say, there being no territorial law affecting them, the law was such as might be promulgated by positive legislation on the part of the crown or of the local governments allowed or constituted by the crown; or by the judicial application, by tribunals under the royal authority or that of the local governments, of rules of natural reason derived by them according to the judicial criteria before given. This law, in being applied to persons known as native or domiciled subjects of the imperial or colonial jurisdiction, would be classed as municipal (internal) law, according to the description of that law given in the first chapter.

§ 197. With regard to those persons within the colonial territory who were neither natives of Great Britain nor of the colonial territory, their condition must have been determined by international private law; at least until they had acquired the character of domiciled subjects. This international law, according to the principles set forth in the first and second chapters, would be known either from positive legislation, (proceeding in this case from the sources of private law mentioned in the third chapter,) or by judicial application of natural reason, according to the allowed judicial criteria. After becoming domiciled inhabitants their future condition would be determined by the municipal (internal) law of the jurisdiction, derived either

In Shower's Parliamentary Cases, 30, 31; in the case of Dutton v. Howell, it was said by counsel arguendo," Though a matter may justify a governor for an act done in his government which would not justify him for the same act done in England, yet the governor must show that he hath pursued the rules of law in that place; or in case of no positive laws, the rules of natural justice; for either the common law, or newly instituted laws, or natural equity, must be the rule in those places." So in Salk., p. 411, the sentence before cited, § 123, n. 2, continues,-" And that in such cases, where the laws are rejected, or are silent, the conquered country shall be governed according to the rule of natural equity."

from imperial or provincial legislation, or by judicial application of rules of natural reason, according to the criteria above referred to; having a like territorial extent and authority with that law which determined the condition of those native inhabitants to whom the English law did not originally apply as a personal law, i. e., the so-called aboriginal inhabitants.

§ 198. In order therefore to determine the relations, rights and duties constituting the legal condition of these two classes of persons in the colonies, it is necessary to ascertain what rules were at that period to be judicially received as rules of natural reason applying to natural persons independently of the law of England; which law, so far as it applied to all persons within any particular territory, had such extent in England only, and as a personal law in the colonies applied only to the colonists of English birth or race.

Since the period of time referred to, and in which the rule of natural reason was to be ascertained, was that of the first existence of law as to such persons within the colonial jurisdiction, (there being as yet no positive legislation, and no national judicial precedents in respect to persons known as the inhabitants of that jurisdiction,) reference must be had to such indications of natural reason as are judicially receivable, because indicative of the presumed will of the state in cases wherein its existing legislation and local precedents do not apply. Or, to express the same idea in a somewhat different form, since at the first establishment of civil government in the colonies there were no national judicial precedents for the colonial tribunals, except such as were comprehended in the territorial law of England, (which law, in the colonies, applied only to the English and their descendants, and as a personal law,) the only principles of the English law which could be judicially applied to any other persons within the colonial territory, were such as could be taken to be universal principles; that is, principles which, while recognized by the state in its juridical action, were not promulgated either as law for England only, or for certain persons as its inhabitants, (jus proprium,) but principles received by the state without reference to their application to

any particular territory; or such as the tribunal might suppose the state would apply independently of all territorial distinctions. This, according to what has been said in the second chapter, would involve the judicial recognition of a universal jurisprudence the science of natural law in the only sense in which it can be acknowledged in jurisprudence properly defined -the science of the historical law of nations, manifested through the application of private international law, and judicially received by tribunals of various national character as being founded in natural reason, because known in the history of jurisprudence to have had general extent and application in municipal and international law.1 In order then to determine what principles had this character, or could be judicially taken to have this character, at the time of the planting of the colonies, it is necessary to examine the history of jurisprudence among all nations, or, at least, among the civilized nations of Europe down to that period; tracing the general recognition of any legal principles which applied to the relations, rights, and duties of private persons with such effect as to become elements in a condition of freedom or its opposites.

§ 199. The mode in which such principles must have been ascertained, and their effect upon relations of private persons, have already been set forth in the preceding chapter, when considering the question whether such principles could take effect in England as part of the common law. It was there shown that at the time of the first planting of the colonies the prevailing legal doctrine would seem to have sustained the chattel-slavery of Moors, African negroes, and Indians, at least while heathen or infidel, even in England. But even if it must be held that the English law of the privileges and immunities of Englishmen applied to every person on English soil, and so rendered the maintenance of slavery legally impossible there, yet there was not, at that time, at least, any such universal personal and territorial extent to be judicially attributed to that law, that it should be held to obtain wherever the do

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minion of the British empire extended. Personal liberty or freedom of condition was not, by English law, so attributed to every natural person that slavery was incompatible with the English sway in other regions, or was abolished by it, as one of those laws, or as the effect of one of those laws, which are contrary (in English jurisprudence) to the laws of God, according to the principle which has been noticed in a preceding section."

Upon the occupation of the western continent by the European nations, the international rules of warfare received by those nations, with the ancient law of slavery resulting from captivity, in wars with savage tribes, were, as has been already said, generally applied to the native races. And, long after the foundation of the English settlements, their unwillingness or incapacity to unite with the colonists in social and civil life, rendered it impossible to extend to them the obligations and privileges of the same system of laws. The intercourse of the colonists with the aborigines was regulated only by such rules as the local governments and the representatives of the crown supposed to be in accordance with natural reason, applied to the international intercourse of civilized communities with barbarians, or to be supported by the usage of other Christian nations. The views entertained by Europeans, during the earlier period of colonization, of their obligations in this respect allowed, in most cases, a practical denial of all legal rights in the heathen and savage, as opposed to the interests of the Christian

Whether the English law, meaning the territorial law of the British islands, attributes, or did at any time during the colonial period, attribute the rights sometimes known as the personal rights of Englishmen to all natural persons within that geographical domain, i. e., the British islands, irrespectively of race or birth, is a question the elements of which have already been considered in the previous chapter, as a topic of the municipal (internal) law of England. But it still remains to be viewed as a question of the private international law of that dominion; that is, a question of the law which, in England, determined the condition of persons regarded as aliens to the territory of England. See post, ch. vii.

2 See ante, p. 115, n. 2. That slavery, in India, was maintained by the British judicature because sanctioned by Hindoo and Mahommedan law,-see Harrington's Analysis: Calcutta, 1817, vol. i. pp. 78, 279, and vol. iii. p. 743, note, citing an official paper by Mr. H. Colebrooke, in 1812. Also, a work written with view of publication in America, William Adams Law and Custom of Slavery in British India: London, 1840. That in the British possessions on the coast of Africa, slavery among the natives is recognized by the authorities as matter of necessity,--Cruikshank's Eighteen Years on the Gold Coast, vol. ii. ch. 9.

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