dentured or purchased bond-servant. Though generally modified by statute law, the relation was one defined and recognized by the common law of England: and while it had a local character, in being intended to exist only in certain districts, such as counties or towns, and under the supervision of the civil authorities therein, so that it could not be said to continue between the parties if permanently removing from the jurisdiction in which it had been created, yet, as between parties domiciled elsewhere, the right of a master to control the person of the fugitive apprentice may have been recognized in the several colonies as a right at common law, that is, the common law of England having personal extent.

CHAPTER VIII.

OF THE PRIVATE INTERNATIONAL LAW OF THE COLONIAL PERIOD AFFECTING CONDITIONS OF FREEDOM AND BONDAGE. THE SUBJECT CONTINUED.-OF ITS ACTUAL EFFECT OR OPERATION.

§ 250. In the preceding chapter the conditions, created by the public municipal law, have been indicated under which a private international law, affecting freedom and bondage, might exist in the colonies. It is now necessary to ascertain its actual operation or effect.

It has been shown, in the second chapter, that the private international law, like every other rule which has the force of law for private persons, is known or promulgated either from a judicial or a legislative source; being, in either case, equally positive law, in the sense of the ascertained will of the state, though, in ordinary parlance, the term "positive law" is applied only to law known by legislative enactment; positive legislation being more authoritative than law judicially ascertained, only in this, that it is a more direct method of ascertaining the will of the supreme source of law on any particular topic; but, in the natural order of existence, the law judicially ascertained precedes positive legislation, and always exists as of necessity.1

The condition, in respect to freedom or bondage of persons of the classes before described, having a domicil in one of the colonies, when appearing as aliens within another jurisdiction of the empire, might have been determined either by legislation,

1 Ante, §§ 17, 29.

having direct international reference to such persons, or by the judicial application of general principles of international jurisprudence. This judicial source of law, for the reason just stated, viz., its naturally prior existence, should, in the historical order, be first examined.

§ 251. It has, however, been convenient to present, in the preceding chapter, the legislation of the several colonies having this extent among the statutes which operated as municipal (internal) law. It consisted principally in statutes limiting the importation of negro and Indian slaves and servants. With the exception of the eighth article of the agreement between the New England colonies, in 1643, and the seventh in that of 1672,1 so far as they took effect as private laws. No laws appear to have been enacted respecting slaves or servants escaped from other jurisdictions, or brought in by their owners. without the intention either to sell them or to acquire a domicil.

It would have been consistent with the view herein before taken of the foundation and extent of two systems of personal laws, obtaining in the colonial districts of the empire, if acts had been passed by colonial governments prohibiting or regulating the entry of free persons of African or Indian race domiciled in other colonies. There does not, however, appear to have been any such exercise of the legislative power. In the earlier history of the colonies, there were some instances of local legislation prohibiting the ingress, or compelling the departure of persons equally entitled, with the other inhabitants constituting the legislating majority, to the enjoyment of individual and relative rights under the law of England. Such legislation, in most of these cases, was caused by the ideas, then generally prevalent, respecting the duty of a political state in relation to the religious instruction of the subject, which, soon after the extension of the English dominion over the whole Atlantic seaboard, and the manifestation of a very great variety in religious belief among the inhabitants of all the colonies, became essentially modified. And, whether the colonial governments con

1 Ante, pp. 268, 269.

ceived such legislation beyond their powers or not, those laws were repealed, or fell into neglect.

§ 252. There are, probably, no extant records of judicial determinations, by the colonial courts, of questions relating to status or condition, having the international or quasi-international character which was before indicated. If the eighth article of the agreement between the New England colonies, in 1643, and the seventh, in that of 1672, may be presumed to have been supplemental to the unwritten law, it might be argued from their existence, that the courts in those colonies could not, without them, have maintained the master's claim, in pais, over the persons designated by the term servants. But it is,

perhaps, equally just to infer that the object of the compact was, not so much to give a legal existence to the right of the alien owner, as to facilitate its peaceable establishment by giving the local authorities power to adjudicate on a claim or demand to be made by him before them, in the first instance; and, after the judicial establishment of the right, to maintain, in his behalf, the custody of the slave or servant while within the limits of the forum, or, it may be said, to deliver up the slave or servant to the master, when he could repass the territorial limits of the forum.1

§ 253. As to indentured servants, it is not unlikely that a variety of practice obtained in the different colonies as to the international recognition of their relations towards the persons claiming their services under the law of another jurisdiction. From the order sent out from England, in 1633,2 the Virginian order in reference to Dromond's servant, and the clauses just referred to in the New England Articles, it may be inferred that the judicial tribunals did not, generally, consider it their pro

3

1 It is to be noticed that even if the relation between the alien owner and servant or slave was, in any colony, supported by the unwritten private international law, yet the owner could not, by it alone, make any claim upon the public authority for the delivery of such servant or slave. He would have the right to seize the body of such servant or slave, (making a claim in pais,) but then his right could be determined upon and a delivery be made to him only in some action brought in behalf of the alleged servant or slave. Under the compact only could there be a delivery on claim.

vince to enforce the obligations of such persons, in the absence of legislative enactment.'

As has been already observed, the relation of minor apprentices to their masters may have been at the same time judicially recognized, in case of the claim of an alien master to a fugitive apprentice, under the national law having a personal extent to subjects of English race. But it is highly probable that the articles in the New England compacts were practically applied to this class of persons, as well as to others bound to a service for years.

§ 254. It is also highly probable that, under the New England compacts, the term "servants" was taken to include negro slaves. But, whatever inference might be drawn from this for or against the validity of the master's right under the unwritten international law, there can be little doubt that, in all the colonies, slavery continued to be judicially supported in the case of negro slaves introduced from other jurisdictions, except so far as such introduction may have been limited by legislative enactment; and this, whether such slaves were brought in to be permanent residents or were only sojourners, either accompanying a non-resident owner or being fugitives. And this, it may be supposed, was the case even in those colonies, if any such there were, where the local slavery may have been considered the condition of a legal person, as contrasted with chattel slavery." And even in Massachusetts, if there was a time, prior to the Revolution, when no domiciled negro could have been held there as a slave, it is probable that the relation between owners and slaves, domiciled elsewhere, would have been judicially maintained.

§ 255. Of all the cases decided in the English courts, which were cited in the fourth chapter,' that of the negro, Somerset,

But since, in the earlier period of the colonial history, persons were occasionally banished from some one of the colonies under a sentence to be sold as servants in some other colony, it was evidently presupposed that such sentence would be recognized in the latter.

2 It may be inferred that this was the case, because the contrary has never been asserted in the cases which have occurred since that period.

Among these might have been noted, next to Butts vs. Penny, Sir Thomas Grantham's case, (1686,) as given in 3 Mod. R. 120; "He bought a monster in the