right of the master, in respect to such slave, be thereafter maintained in other jurisdictions of the empire as a right resting on the common law of England, having, as to such master, personal extent throughout the empire.' b. Nor could the master's right be thereafter recognized under the law of transit, as property.1 § 285. And further, admitting the legal character of slavery to have remained unchanged in the place of domicil, and that there had been a time, during the planting of the colonies, when the slave condition of negroes and Indians domiciled in some one colony should properly have received international recognition in every other part of the empire, as being the effect of universal jurisprudence-the law of nations-yet this law is, in its nature, always liable to change. It may have changed during the colonial period, in respect to the slavery of Africans and Indians, as it had before changed in respect to the personal condition of persons of other races.3 If then it were true as matter of historical fact that this law or jurisprudence, gathered from the laws and customs of those nations whose juridical action is the source of that law, had so changed, no tribunal of any one nation, nor of any several jurisdiction of the British empire, would thereafter have had the same judicial reason for supposing the slave-condition of an alien person of one of those races, entering into its jurisdiction, to be recognized by the supreme civil power, whose will it should apply as law; the reason, namely, that it was to be considered the result of a law having universal recognition, and which presumptively constituted a portion of the municipal (national) law of the forum. § 286. The question whether any rule or doctrine of the law of nations, universal jurisprudence, has, during any period of time, continued unaltered, is a question of fact. The doctrines 'Ante, §§ 243, 244. 2 Ante, § 272. 3 Ante, § 39. Ante, §§ 162, 163, 167. In attributing any legal rule to the universal jurisprudence, the jus gentium of any particular period, it will be perceived that no change of that law can be simultaneous among those nations which are the sources of that law. The tribunal of any ALTERATION OF JUS GENTIUM. of that law, at any particular time, are judicially known from the juridical action of all civilized nations; distinguishing such principles as are received in all foreign jurisdictions, or allowed to have personal extent without reference to territorial limits. And though certain legal effects (rights and obligations) should be found to exist under the juridical action of many or all civilized nations, yet, if under that action they are commonly limited to specific localities, they are not attributable to universal jurisprudence.' Though slavery may, by some European powers, have been maintained in their American possessions, yet, if its incidental rights and obligations were disallowed by them in Europe, it was then judicially known as a result of a local law, jus proprium, only, and no longer ascribed to the jus gentium, universal jurisprudence. Now, leaving out of view, for the present, the juridical action the of the British empire or of any several political part of it, authorities already cited in the last chapter may alone prove that the law of nations, in respect to slavery, had changed during the colonial period; that change being shown by the judicial attribution, in European states, of personal liberty to Moors, negroes, and Indians, without regard to their legal condition in a foreign domicil; even, in some instances, where that domicil was a colony under the same political dominion as the forum of jurisdiction. 2 § 287. Therefore, even if the authorities referred to did not, as precedents of customary private international law, establish a rule judicially applicable in like cases by the tribunals of the several jurisdictions of the British empire, yet, in determining one state, when seeking the doctrine of the law of nations, the exposition of universal jurisprudence, must look to the additive verdict of many national authorities in their municipal (internal) and international law, expressed by legislation or judicial decision. And though, comparing century with century, it may be unhesitatingly declared that the doctrine of that law has changed on some particular point, yet it may be impossible to indicate the exact time at which that change should have been first recognized. This act of discrimination is in its nature autonomic on the part of the tribunal. There can be little doubt that there was once a period when to kill or sell one's children was a paternal power or right recognized among all nations. (Comp. Bynkershoek's Essay on this right under the Roman law.) Abraham, proposing to slay his son, obeyed a command higher than human laws; but it is not unlikely that his power to do so was admitted by the jurisprudence of those among whom he lived. 'Ante, §§ 99-102. * Ante, § 258. right of the master, in respect to such slave, be thereafter maintained in other jurisdictions of the empire as a right resting on the common law of England, having, as to such master, personal extent throughout the empire.1 b. Nor could the master's right be thereafter recognized under the law of transit, as property.' 2 § 285. And further, admitting the legal character of slavery to have remained unchanged in the place of domicil, and that there had been a time, during the planting of the colonies, when the slave condition of negroes and Indians domiciled in some one colony should properly have received international recognition in every other part of the empire, as being the effect of universal jurisprudence-the law of nations-yet this law is, in its nature, always liable to change. It may have changed during the colonial period, in respect to the slavery of Africans and Indians, as it had before changed in respect to the personal condition of persons of other races. If then it were true as matter of historical fact that this law or jurisprudence, gathered from the laws and customs of those nations whose juridical action is the source of that law, had so changed, no tribunal of any one nation, nor of any several jurisdiction of the British empire, would thereafter have had the same judicial reason for supposing the slave-condition of an alien person of one of those races, entering into its jurisdiction, to be recognized by the suwhose will it should apply as law; the reason, preme civil power, namely, that it was to be considered the result of a law having universal recognition, and which presumptively constituted a portion of the municipal (national) law of the forum. § 286. The question whether any rule or doctrine of the law of nations, universal jurisprudence, has, during any period of time, continued unaltered, is a question of fact. The doctrines 1 Ante, §§ 243, 244. 2 Ante, § 272. 'Ante, § 39. Ante, §§ 162, 163, 167. In attributing any legal rule to the universal jurisprudence, the jus gentium of any particular period, it will be perceived that no change of that law can be simultaneous among those nations which are the sources of that law. The tribunal of any ALTERATION OF JUS GENTIUM. of that law, at any particular time, are judicially known from the juridical action of all civilized nations; distinguishing such principles as are received in all foreign jurisdictions, or allowed to have personal extent without reference to territorial limits. And though certain legal effects (rights and obligations) should be found to exist under the juridical action of many or all civilized nations, yet, if under that action they are commonly limited to specific localities, they are not attributable to universal jurisprudence. Though slavery may, by some European powers, have been maintained in their American possessions, yet, if its incidental rights and obligations were disallowed by them in Europe, it was then judicially known as a result of a local law, jus proprium, only, and no longer ascribed to the jus gentium, universal jurisprudence. Now, leaving out of view, for the present, the juridical action of the British empire or of any several political part of it, the authorities already cited in the last chapter may alone prove that the law of nations, in respect to slavery, had changed during the colonial period; that change being shown by the judicial attribution, in European states, of personal liberty to Moors, negroes, and Indians, without regard to their legal condition in a foreign domicil; even, in some instances, where that domicil was a colony under the same political dominion as the forum of jurisdiction. § 287. Therefore, even if the authorities referred to did not, as precedents of customary private international law,2 establish a rule judicially applicable in like cases by the tribunals of the several jurisdictions of the British empire, yet, in determining one state, when seeking the doctrine of the law of nations, the exposition of universal jurisprudence, must look to the additive verdict of many national authorities in their municipal (internal) and international law, expressed by legislation or judicial decision. And though, comparing century with century, it may be unhesitatingly declared that the doctrine of that law has changed on some particular point, yet it may be impossible to indicate the exact time at which that change should have been first recognized. This act of discrimination is in its nature autonomic on the part of the tribunal. There can be little doubt that there was once a period when to kill or sell one's children was a paternal power or right recognized among all nations. (Comp Bynkershoek's Essay on this right under the Roman law.) Abraham, proposing to slay his son, obeyed a command higher than human laws; but it is not unlikely that his power to do so was admitted by the jurisprudence of those among whom he lived. 'Ante, §§ 99-102. * Ante, § 258. the international recognition of slavery, they were evidence of what was or was not judicially receivable as an effect of universal jurisprudence. So that, supposing slavery to have remained the same chattel condition in the colonies, under their local laws, it could no longer be said to be a constitution of the law of nations, in the sense of a legal effect known by its actual prevalence among all nations or all enlightened nations. The condition of a negro who had been a slave in the place of his domicil could not then be judicially supported in any forum of jurisdiction upon this ground, after this change in universal jurisprudence had actually taken place. § 288. a. Contemporaneously with the occurrence of this change in the law of nations, the master's right of ownership ceased to be supported by the common law of England, embracing the law of nations, and having as to him a personal extent throughout the empire.' 1 b. The same change would in like manner, whenever it occurred, have limited the effect of the international rule of transit as a protection of the right of masters in slaves whom they should, though for a temporary purpose, bring with them within the limits of any part of the empire wherein slavery was not allowed by the internal law." § 289. In a jurisdiction wherein negro slavery had been introduced under the old law of nations and wherein it has continued to have essentially the same chattel characteristics, there, the condition might have, or in the jurisprudence of that state it might have the same legal character as before, and be still recognized to be one of those effects of law which are received as deductions from a priori principles and taken to accord with natural reason, whether the right and obligation in which such effect consists are ascribed to temporary or to domiciled subjects. And as between two jurisdictions, in each of which slavery retained its essentially chattel character, it may be that, as to them, or in the judicial apprehension of their several courts, it should still be ascribed to universal jurisprudence though it should have been abandoned Ante, §§ 244, 245. • Ante, § 272. |