eo adventatantes. Ast in Germania non solum dominis conceditur ut possint homines proprios vindicare, etsi eo profugerint ubi illa servitus non sit recepta (vid. Dan. Mevii Consil. jurid. de statu et vindicatione hominum propr.) verum etiam-quibus, dam locis, ipso jure fiunt servi quicunque perigrini eo adveniunt, emorandi et habitandi causa, veluti in Algonia, ubi ideo sæpe auditur paroemia: Die Luft macht eigen, id est, ipse aer homines proprios facit. Hert de homin. propr. sect. 3, § 3. Tale et olim fuit jus Wildfangiatus in Palatinatu electorali et provinciis vicinis, de quo Londorp. Act Pub. Continuat. Lib. 10, p. 126."

By the private international law of these provinces then, the peaceful alien, not protected by some special treaty, and of whatever condition at home, was regarded either as a stray chattel which the lord of the soil might appropriate, or an enemy who might be enslaved; as under the doctrine of the early Roman law. See Ante, p. 151, note 2. The passage indicates a disregard of all private international law as a protection for aliens, whether bond or free. The right accorded to feudal lords of reclaiming their serfs, was an effect of a law prevailing as between the different petty sovereigns recognized in the constitution of the German empire, at a time when feudal bondage still existed in the respective dominions of each.'

§ 263. To the Flemish and French authorities, before cited, so far as they justify the international disallowance of the master's claim of ownership, it may perhaps be objected that the distinction of race which, in the fourth chapter, was described as having about the close of the 15th century acquired recognition in universal jurisprudence-the law of nations-supporting the chattel slavery of Moors, Negroes and Indians, was not noticed, and that the rule given by these authorities should be taken to apply only to European serfs, bondsmen under feudal

In Dred Scott's case, 19th Howard 495, Mr. Justice Campbell cites, from the Capitularies of Charlemagne a rule for the rendition of fugitive slaves. Chattel slavery as well as serfdom, was probably then prevailing in all the dominions of this Emperor. See Ante, p. 159, n. Other similar laws of that time might have been cited. "Etiam Caroli M., Ludovici Pii et Lotharii leges de servis supersunt in Lib. 44, Car. M. et Longob. Imo et Guilielmi Siciliæ Regis et Frederici Imp. extant de servis fugitivis constitutiones in plac. Neap. Sed ab hoc tempore id est A. C. 1212, aut non multo secus, Christiani se mutuo in servitutem redigere desierunt." Huberus, Prælectiones, Lib. I. tit. IV. 6.

lords. In the case of Jean Boucaut and others, claimed as slaves by Verdelin, at Paris, in the year 1738, (Causes Celèbres, ed., Amsterdam, 1766, tom. 15, p. 30,) M. Tribaud, the advocate for the owner, endeavors to limit the extent of the general principle according to the distinction of race ;-"Le principe est vrai dans le cas où tout autre esclave qu'un esclave nègre arrivera dans ce Royaume."

Two instances of the application of the same rule to Moors or Mohammedans are given by the Procureur du Roi, advocate for the negroes, in the same case, p. 51, "Dans le Journal Chronologique et Historique de D. Pièrre de Saint Romuel on voit qu'en l'année 1571 une marchande de Normandie ayant amené a Bordeaux plusieurs Maures pour les vendre, le Parlement de Guyenne, par un arrêt solemnel, les mit tous hors de l'esclavage, parceque la France, mère de liberté, ne permet aucun esclave." He also relates that in the time of Henri III., the Mohammedan captives held as galley slaves in a Spanish public ship, stranded on the French coast, were set at liberty by the king's decree, and sent to Constantinople, notwithstanding the protest of the Spanish ambassador.

The question of ownership in the first case might, from the domicil of the trader and her intention to sell in France, be said to have belonged to internal, not international private law; and the second cannot perhaps be properly considered a judicial precedent, since it was a direct exercise of the sovereign power, to be distinguished from the action of judicial tribunals.1

This case of Boucaut and Verdelin, which was argued before the French admiralty, is the only one similar to that of

There is an Abrégé de la Republique de Bodin, published, London, 1755, chez Jean Nourse, two volumes, 12mo. The preface has no signature. In this abridgment, L. 1, c. 9, it is said, "La France * elle a même voulu depuis, que tout homme qui mettroit le pied sur ses terres fut libre dès ce moment, sans faire attention qu'il est contre le droit des gens d'enlever à l'étranger passant et maitre de l'esclave, un bien qui lui appartient. Les façons de penser sont de mode chez les Francais comme les adjustments. Lorsqu'une opinion saisit les esprits elle en devient l'idole."

There is no such remark in the unabridged edition, Paris, 1577, fo., nor can any similar observation be found in Knolles' translation. The Abrégé appears to be that of the President de Lavie, which he afterwards recast and published in 1760, under the title-Des corps politiques et de leurs gouvernements. (See Brunet's Manuel du Libraire, Tome 1, p. 386.) From which it may be inferred that he had introduced much of his own thought into the abrégé.

Somerset and to the Scotch case which is recorded as having occurred in France.

§ 264. In the case occurring at the siege of Metz, the liberty of the escaped slave was declared to be the legal effect of the general customary law of the kingdom-l'ancienne et bonne coutume de France. In those mentioned by Bodin, occurring in Paris and Thoulouse, the freedom was claimed under certain special grants to those cities, declaring that slaves escaping into their municipal jurisdictions should thereby become free. The slaves of Verdelin were also in Paris, and it is important to distinguish whether the judicial decision in their favor was made under the charter of Paris, regarded as a legislative act, altering a rule of the customary unwritten law of the land, or was based on the latter and general principles of private international law therein contained.

Mr. Justice Campbell in Dred Scott's case, 19th Howard's Rep., p. 497, after citing the cases mentioned by Bodin, observes, "The decisions were made upon special ordinances or charters, which contained positive prohibitions of slavery, and where liberty had been granted as a privilege; and the history of Paris furnishes but little support for the boast that she was a sacro-sancta civitas," where liberty always had an asylum, or for the "self-complacent rhapsodies" of the French advocates, in the case of Verdelin, which amused the grave lawyers who argued the case of Somerset. The case of Verdelin was decided upon a special ordinance, which prescribed the conditions on which West India slaves might be introduced into France, and which had been disregarded by the master."

It would be more accurate to say, that the claim of Verdelin was based upon a special ordinance, &c., or that claims like that of Verdelin might have been supported by the special ordi

'Mr. Justice Campbell and "the grave lawyers who argued thecase of Somerset," may have had good cause to undervalue the character of Paris as an asylum for liberty; in view of the acts of arbitrary power which had occurred there at various times. But the political or civil misfortune of the Parisians has not the slightest bearing on the question of legal status, as a question of international law. Compare ante, § 47, and note. "The force of these examples is not weakened by the reflection that they were furnished by what was at the time an undeniably despotic state." 1 Phillimore, p. 342.

nance.

The case was decided in favor of the freedom of the negroes, upon the unwritten or common law of France, as indicated in the authorities and precedents before cited, taking effect in the failure of the master to bring his claim within the protection of positive legislation-the edict of Louis XV., 1716-allowing a certain class of French colonial subjects to bring their slaves into France under certain limitations. The detention on the part of the master was sought to be justified on the ground that he had substantially complied with the requisitions of the edict of 1716; and further, while it was admitted that, under the customary or unwritten law of the kingdom, foreign slaves or the slaves of foreigners would become free by being brought into France, it was also urged that the right of the French colonist rested on the juridical will of the national sovereignty expressed in the edict of Louis XIV., 1615, known as the Code Noir, and was therefore a legal right in every part of the French empire; that the edict of Louis XV., 1716, only gave additional protection to that right in certain cases, but never had the effect of destroying it, and that therefore no French tribunal could refuse to recognize the right of such colo

'Therefore the language of Mr. Justice Campbell on page 499 of the Report, is open to material exception, where he says-" This sentence [in Somerset's case,] is distinguishable from those cited from the French courts [apparently intending to include the case of Verdelin's slaves] in this: that there positive prohibitions existed against slavery, and the right to freedom was conferred on the immigrant slave by positive law; whereas here," &c.

The preamble to the edict shows that the prevailing doctrine had been that in such cases slaves became free by the unwritten law, "Comme nous avous été informés que plusieurs habitants de nos isles de l'Amérique desirent envoyer en France quelques-uns de leurs esclaves, pour les confirmer dans les instructions et dans les exercises de notre religion, et pour leur faire apprendre quelque art et métier, dont les colonies recev. roient beaucoup de utilité, par le retour de ces esclaves: mais que ces habitans craignent que les esclaves ne prétendent être libres en arrivant en France, ce qui pouvoit causer aux dits habitants une perte considerable et les detourner d'un object aussi pieux et aussi utile." Provision is then made by Art. 2, 3, that the colonists may bring with them slaves, for the purposes mentioned; being required to obtain permission from the governor in the colony, and also to register themselves in the district of disembarkation in France. The 5th article is as follows, "Les esclaves nègres, de l'un et de l'autre sexe, qui seront conduits en France par leur maîtres, ou qui seront par eux envoyés, ne pourront prétendre avoir acquis leur liberté, sous prétexte de leur arrivée dans le Royaume, et seront tenus de retourner dans nos colonies quand leur maîtres le jugeront à propos. Mais faute par les maîtres des esclaves d'observer les formalités prescrites, par les precedens articles, les dits esclaves seront libres, et ne pourront étre reclamés." M. Denisart, Decisions Nouvelles, tit. Negres, as cited by Mr. Hargrave in 20 Howell's State Trials, p. 23, n., appears to have considered the edict, in protecting the master's right, as an alteration of the common law in France.

nist, whatever might be the rule of private international law contained in the customary law of France applicable to aliens and their slaves.'

In 1758, Francisque, a negro slave bought by his master in Hindostan, was brought by him to France. Francisque claimed his liberty: his master contended that he had carefully fulfilled the formalities prescribed by the "Code Noir;" it was answered that this law only affected African and American slaves, and could not be extended to the East Indies. The slave obtained his liberty."

§ 265. If, then, at a date shortly before the American Revolution, the practice of British and European judicial tribunals and the writings of private jurists indicated any rule respecting the international recognition of the right of an alien owner and the co-relative obligation of his slave existing under the law of

1 Tribaud, for the master, says, 15, C. C., p. 30, " On ne connoit point, il est vrai, d'esclave en France, et quiconque a mis le pied dans ce Royaume est gratifié de la liberté. Mais quelle est l'application, et qu'elle est la distinction, du principe? Le principe est vrai dans le cas où tout autre esclave qu'un esclave nègre arrivera dans ce Royaume." But he then proceeds to limit the exception still further, applying it only to slaves domiciled in the French colonies. He does not even allow the right to a French merchant arriving in the kingdom with savages whom he should claim to be his slaves. "Par exemple, qu'un estranger, qu'un négociant Francois, arrive dans ce Royaume avec des sauvages qu'il prétendera être ses esclaves: qu'un Espagnol, qu'un Anglois vienne en ce Royaume, avec des esclaves nègres dependans des colonies de sa nation; voilà le cas dans lequel par la loi, par le privilège de la franchise de ce Royaume, la chaîne de l'ésclavage se brisera, et la liberté sera acquise à de pareils esclaves." And to the same effect on p. 26.

21 Phillimore's Internat. Law, p. 342, citing Denisart, Décisions Nouvelles, tom iii., p. 406, tit. Nègre, n. 45.

From some of the Flemish and French authorities which have already been cited, it appears that the condition of absolute slavery was lawful in Spain and Portugal during 16th and 17th centuries. Absolute slavery, as a condition distinct from serfdom or vassalage, is recognized in Las Siete Partidas. (A. D., 1303), Part. IV., tit. 21, 1. i." Son tres maneras de siervos; la primera es de los que cativan en tiempo de guerra seyendo enemigos de la fe; la secunda es de los que nascen de las siervas: la tercera es quando alguno que es libre se dexa vender."

From the following it would appear that slavery had become unknown in Spanish law, except as the condition of a negro domiciled in the Indies. Asso and Manuel, Institutes, &c. Johnston's transl. of the 6th ed. Book I., tit. v., c. 1. "With regard to their civil state or capacity, men are considered, 1, as natural born subjects of their kingdoms, and as aliens or foreigners; 2, as nobles, persons entitled to the rights of nobility (hidalgos), knights (caballeros) and plebeians; 3, as laymen and ecclesiastics. The distinction into free men and slaves, which is found in our law in p. 4, tit. 21 and 22, is not now observed or acknowledged, unless it be with respect to the negroes employed in the Indies in working the mines, or held in slavery by private individuals, but even as regards this circumstance, it is foreign to this treatise."

In Denmark, negro slavery would probably have been recognized under the code of Christian V., already cited, Ante, p. 291.