and statute laws establishing slavery, was different from that of the colonial courts. And however far the colonial courts may have been bound by the local law of England, as ascertained at the time of the first exercise of their judicial power, they were not held to modify the common law, as it had thus grown up under their own exposition and acquired a local character, by following the later English decisions.

§ 205. Thus the condition of slavery, if unknown to the law of England, nevertheless became established under the common law of the several colonies; which however, being a local law only, was entirely distinct, in its origin and authority, and in its territorial and personal extent, from that common law which was national, in those attributes, and which was, in each part of the Empire, the common measure of the personal rights of the English-born subject and his descendants. The colonial Governments appear to have exercised, without question, an unlimited control over the condition of such persons of the African and Indian races as were domiciled inhabitants of their several territories; that is to say, their legislation, in respect to such persons, does not appear to have been at any time restricted by any of the charter provisions.' The legislation of the several colonies in reference to slaves will be collected in the next chapter but under the view which has been herein taken it is not necessary to cite it in this place as establishing chattel slavery. It will be seen that, in the statutes of each colony, slavery is viewed as an existing institution of law.'

This point will be farther considered in the commencement of the next chapter. Seville v. Chretien, (1817,) 5 Martin's Louisiana R. 275. "It is an admitted principle, that slavery has been permitted and tolerated in all the colonies established in America by the mother country. Not only of Africans, but also of Indians. No legislative act of the colonies can be found in relation to it."

Connecticut Revised Laws of 1821; Title 93, Slavery; note-" Slavery was never directly established by statute; but has been indirectly sanctioned by various statutes, and frequently recognized by courts, so that it may be said to have been established by law."

"By custom or statute, whether legal or illegal, slavery existed [A. D. 1750] as a fact in every one of the Anglo-American colonies," 2 Hild. 419, which see also for a summary of the condition and numbers of slaves at that time.

Even in Georgia, where until the year 1749 (see Stevens' History of Ga. 285, 312) it was not permitted, it is held not to have been introduced by positive legislation. By the Court, in Neal v. Farmer, (1851,) 9 Geo. R. 580, it is said "The title to a slave in Georgia now and under the colonial government is not and was not derived

§ 206. According to the definitions given in the first chapter, legal relations can exist only as the effects of some law,— some rule identified with the juridical will of the state. A natural person held in chattel bondage cannot acquire individual or relative rights, except under such law or juridical will; to be ascertained from positive legislation or by the judicial application of natural reason. It is by the recognition of universal jurisprudence or the law of nations, under this judicial action, that the act of the master renouncing his right in respect to the slave, or setting him free from his bondage, has been held, wherever chattel slavery has been known, to invest the natural persons so set free or manumitted, with individual rights and a capacity for relative rights. Manumission, that is, the legal consequence of the master's act, and the condition. of a libertinus or freed person, is, in the Institutes, ascribed to the jus gentium.' During the earlier centuries of the Roman Empire, three conditions were recognized among the Libertini or Freedmen; all, however, inferior to that of the Ingenuus or Free-born. But the descendants of a libertinus were not distinguished from other free born persons. Justinian not only

from positive law. The faculty of holding slaves was derived from the Trustees of the Colony acting under authority of the British crown, as a civil right in 1751, by an ordinance of that board. Before that time their introduction was prohibited. The regulation of slave property is as much the province of municipal law as the regulation of any other property and its protection equally its obligation: but we deny that property in slaves and the title by which they are held, are creatures of statutory law." It is not very clear what meaning is to be attached to the term "a civil right;" or how the right can have been derived from the Trustees and yet not have originated in positive law, i. e. legislation. The idea is that before 1751, the colonists of Georgia were under a disability inflicted by the policy of the imperial Government, (see p. 575 of the report,) in acquiring a certain kind of property, or from enjoying their individual right to acquire property, in the same degree as others;-which disability was removed by the administrative regulation or ordinance of the Trustees. Whether important results which might follow a general recognition of the doctrine that at the present day slavery is a constitutio juris gentium were considered in this decision, does not appear. The question actually before the court was whether the owner could recover from the slayer the value of a slave killed by him, without first suing him to conviction in a criminal court.

1 Inst. Lib. I. tit. 5, procm. (ante p. 150,) and Dig. Lib. I. tit. 1, § 4. The state having jurisdiction of the person who is held as a slave, may, of course, set him free by its legislative power. This will be the effect of a jus proprium: but, the resulting condition or status will be jure gentium in this case, as where the manumission was the master's act. It will therefore be afterwards judicially recognized everywhere; unless some local law, jus proprium, forbids it. The importance of this distinction can only be shown in the application of private international law.

and statute laws establishing slavery, was different from that of the colonial courts. And however far the colonial courts may have been bound by the local law of England, as ascertained at the time of the first exercise of their judicial power, they were not held to modify the common law, as it had thus grown up under their own exposition and acquired a local character, by following the later English decisions.

§ 205. Thus the condition of slavery, if unknown to the law of England, nevertheless became established under the common law of the several colonies; which however, being a local law only, was entirely distinct, in its origin and authority, and in its territorial and personal extent, from that common law which was national, in those attributes, and which was, in each part of the Empire, the common measure of the personal rights of the English-born subject and his descendants. The colonial Governments appear to have exercised, without question, an unlimited control over the condition of such persons of the African and Indian races as were domiciled inhabitants of their several territories; that is to say, their legislation, in respect to such persons, does not appear to have been at any time restricted by any of the charter provisions.' The legislation of

the several colonies in reference to slaves will be collected in the next chapter but under the view which has been herein taken it is not necessary to cite it in this place as establishing chattel slavery. It will be seen that, in the statutes of each colony, slavery is viewed as an existing institution of law.*

This point will be farther considered in the commencement of the next chapter. Seville v. Chretien, (1817,) 5 Martin's Louisiana R. 275. "It is an admitted principle, that slavery has been permitted and tolerated in all the colonies established in America by the mother country. Not only of Africans, but also of Indians. No legislative act of the colonies can be found in relation to it."

Connecticut Revised Laws of 1821; Title 93, Slavery; note-"Slavery was never directly established by statute; but has been indirectly sanctioned by various statutes, and frequently recognized by courts, so that it may be said to have been established by law."

By custom or statute, whether legal or illegal, slavery existed [A. D. 1750] as a fact in every one of the Anglo-American colonies," 2 Hild. 419, which see also for a summary of the condition and numbers of slaves at that time.

Even in Georgia, where until the year 1749 (see Stevens' History of Ga. 285, 312) it was not permitted, it is held not to have been introduced by positive legislation. By the Court, in Neal v. Farmer, (1851,) 9 Geo. R. 580, it is said-"The title to a slave in Georgia now and under the colonial government is not and was not derived

§ 206. According to the definitions given in the first chapter, legal relations can exist only as the effects of some law,some rule identified with the juridical will of the state. A natural person held in chattel bondage cannot acquire individual or relative rights, except under such law or juridical will; to be ascertained from positive legislation or by the judicial application of natural reason. It is by the recognition of universal jurisprudence or the law of nations, under this judicial action, that the act of the master renouncing his right in respect to the slave, or setting him free from his bondage, has been held, wherever chattel slavery has been known, to invest the natural persons so set free or manumitted, with individual rights and a capacity for relative rights. Manumission, that is, the legal consequence of the master's act, and the condition of a libertinus or freed person, is, in the Institutes, ascribed to the jus gentium. During the earlier centuries of the Roman Empire, three conditions were recognized among the Libertini or Freedmen; all, however, inferior to that of the Ingenuus or Free-born. But the descendants of a libertinus were not distinguished from other free born persons. Justinian not only

from positive law. The faculty of holding slaves was derived from the Trustees of the Colony acting under authority of the British crown, as a civil right in 1751, by an ordinance of that board. Before that time their introduction was prohibited. The regulation of slave property is as much the province of municipal law as the regulation of any other property and its protection equally its obligation: but we deny that property in slaves and the title by which they are held, are creatures of statutory law." It is not very clear what meaning is to be attached to the term "a civil right;" or how the right can have been derived from the Trustees and yet not have originated in positive law, i. e. legislation. The idea is that before 1751, the colonists of Georgia were under a disability inflicted by the policy of the imperial Government, (see p. 575 of the report,) in acquiring a certain kind of property, or from enjoying their individual right to acquire property, in the same degree as others;-which disability was removed by the administrative regulation or ordinance of the Trustees. Whether important results which might follow a general recognition of the doctrine that at the present day slavery is a constitutio juris gentium were considered in this decision, does not appear. The question actually before the court was whether the owner could recover from the slayer the value of a slave killed by him, without first suing him to conviction in a criminal court.

1 Inst. Lib. I. tit. 5, proœm. (ante p. 150,) and Dig. Lib. I. tit. 1, § 4. The state having jurisdiction of the person who is held as a slave, may, of course, set him free by its legislative power. This will be the effect of a jus proprium: but, the resulting condition or status will be jure gentium in this case, as where the manumission was the master's act. It will therefore be afterwards judicially recognized everywhere; unless some local law, jus proprium, forbids it. The importance of this distinction can only be shown in the application of private international law.

abolished this distinction among the libertini, but also made all free persons (libertos) citizens of Rome, abolishing all legal difference between the status of the enfranchised (libertini) and the free born, (ingenui.) From the recital in the enactment, it appears that the first, if not the second also, of these changes was a return to the ancient usage of the Republic. The rule of the Roman Imperial law, as the exposition of a universal jurisprudence, received judicial recognition in the American

colonies."

1

§ 207. If the law of nations has in modern times, or had during the colonial period, a limited personal extent or was different in its application to different races of men only while distinguishing between mankind as either bond or free-either chattels or persons, the necessary inference would be, that on

1 Inst. Lib. I. tit. 5, § 3; De libertinorum divisione sublata; and Cod. 7, tit. 5, 1. 1, tit. 6, 1. 2. Smith's Dict. antiq. voc.—Ingenuus, Libertus. Mr. Justice Daniel, in 19 Howard, p. 477, Dred Scott's case, appears to have adopted Cooper's version of the Institutes, in which ingenuus is mistranslated freeman. For the changes in the Roman law on these points, according to the latest researches, see The New Englander, Aug. 1857, in an article on Judge Daniel's statement of them; by President Woolsey, of Yale College.

2 To some it may seem a singular refinement to suppose juridical authority necessary in ascribing individual (absolute) rights to the slave, when the master relinquishes his legal claims. But, if legal rights exist by the ascertained will of the state, (ante § 21 and p 37, n. 1,) how otherwise can a chattel or thing become invested with them? Other chattels, when derelict by the owner, are still chattels, and belong to whoever may then first take possession of them. The doctrine of manumission, as explained in the Institutes, shows that even in the Roman law the slave was only "instar rerum," (ante p. 153, n. 1,) and that a personality independent of positive law was recognised to exist, as by a condition of things, or a law in the secondary sense, (ante §§ 1, 2,) or a law of nature in that sense, which became manifest in the possession of individual rights whenever the antagonistic right of the master was relinquished. See Inst. Lib. 1, tit.

5.

De Libertinis. Definitio et origo libertinorum et manumissionis. The reasoning of Mr. Justice Daniel in Dred Scott's case, 19 Howard, p. 480, ignores the fact that the consequences of the master's act of manumission were jure gentium, and therefore judicially recognized everywhere, unless such recognition had been forbidden by some jus proprium of the forum. His language is "The master might abdicate or abandon his interest or ownership in his property, but his act would be a mere abandonment. It seems to involve an absurdity to impute to it the investiture of rights which the sovereignty alone had power to impart," &c. The question in the case was of the rights of citizenship; but the Judge's argument applies equally against the acquisition of any personal right on manumission. Undoubtedly, the investiture rests on the sovereignty, not on the private master. But the tribunal finds the will of that sovereignty in the jus gentium, if there is no jus proprium,-local statute or customary law. In some countries, wherein serfdom existed under a law of local origin, the Roman law of manumission has not been applicable Bodin, in Repub. B. i. c. 5, Knolle's Tr. p. 41, after stating the Roman law-" which law, for all that, we use not; for in this realm [France] he must of necessity obtain the prince his letters patents, which have always used to restore unto manumised men and of servile condition, the state of freeborn men, and to blot out all stain of their old slavery."