of another. In slavery, strictly so called, the supreme power of the state, in ignoring the personality of the slave, ignores his capacity for moral action, and commits the control of his conduct as a moral agent, to the master,' together with the power of transferring his authority to another. So far as it may hold the master and slave, as individuals, morally responsible to the state in their mutual relation, it so far recognizes the personality of the slave, and changes the property into a relation between persons. § 47. It is evident that there may be political or economical regulations in a civil state which, while not interfering directly with the freedom or security of the person, or denying the abstract right of any to the acquisition or enjoyment of property, may yet, in view of public or of partial interests, by prohibition of certain modes of action, or by the grant of superior privileges to others, so obstruct the industry of some classes of persons and repress their moral and physical energies, as to make their actual condition in the social scale lower than that of others living under the control of a private master who is guided in its exercise by wisdom and benevolence. Municipal laws may so operate in disabling certain classes or races in a nation, with respect to their private or public relations, as to reduce them to a species of dependence upon more privileged classes deserving, in a general sense, the name of slavery or bondage.' The distinction of these cases from slavery, properly so called, lies in the legal view of the slave or of his labor as private property, and the greater or less denial of his personality, making the disposal of his person and labor to depend 1 Menander apud Stobœus: Florileg lx., 34. Ἐμοὶ πόλις ἐστι καὶ καταφυγὴ καὶ νόμος Spinoza: Tr. Theol. Pol., c. xvi. "Si finis actionis non est ipsius agentis sed imperantis utilitas, tum agens servus est, et sibi inutilis." 2 For illustrations of the variety of meaning attached to liberty and slavery, see 20 Howell, State Trials, Somerset's case, p. 14, note of English editor, sneering at the boasts of the French lawyers in the negro case, 13th vol. of Causes Celebres, (temp. Louis XV.,) p. 492, ed. 1747. And compare Chancellor Harper's Essay, p. 23. See Molyneux: Case of Ireland, by Almon, p. 169. "I have no other notion of slavery but being bound by a law to which I do not consent." In defining liberty, Dig. Lib. i., De statu hominum, Inst., Lib. i., Tit. 3, De jure personarum,-Libertas est naturalis facultas ejus, quod cuique facere libet, nisi si quid vi, aut jure prohibetur-the very idea of law is excluded. on the will of a single private individual, and not on a law proceeding immediately from the supreme political power.— Under a system of caste personal liberty and the right of property are controlled by laws restraining the activity of a class of persons, more or less strictly defined, to a particular course of life, and allowing only a limited enjoyment of property and relative rights. Feudal slavery confines the person to a particular locality and a subordinate range of action. There is therein a certain degree of freedom within assigned limits, and the servitude is due rather to the state than to a single master, being the result of distinct laws more or less oppressive according to their nature and number. § 48. From what has been before said of positive law, in its' most comprehensive sense, it appears that its existence in any one country, or nation, may be referred in its origin either to the legislation of some one possessor of sovereign power, (positive law, in the restricted sense,) or to the judicial recognition of principles founded in natural reason; while its authority in any particular territory, and at any particular time, depends upon its being then and there supported by some one such possessor of sovereignty, whose existence and authority is independent of law in the ordinary sense. And, since, in the present condition of the world, being entirely occupied by nationalities of some sort, the actual extent of that territory over which any possessor of sovereignty shall exercise dominion results from the public international action of different states, it may be said to be determined by international law; though it is a fact taken in jurisprudence to be independent of the will of every other national power than that which is, within that territory, the source of the municipal (national) law, both public and private. Or, more strictly speaking, those principles which apply to, and are said by way of analogy to be a law for the action or intercourse of nations, and which are public or private international law, according to the character of the persons upon whom they operate, may be taken to be divided into two portions. The first consisting of principles which are not laws in the primary sense, or not rules of action, but laws in the secondary sense only,-the statements of the mode of existence or of action of states, or political bodies: which must essentially be acknowledged in every national jurisdiction as axiomatic and basal principles: (and which, therefore, enter also into municipal law.) The second portion consisting in rules of action, laws in the primary sense, which do not necessarily have the same universal recognition and extent; but which, if received by any states, or nations, regulate the reciprocal action of those states, or nations, and of the individuals of whom they are constituted, supposing such reciprocal action to take place. Each of these portions is public law, in reference to its effects on the relations of the state, or nation, regarded as a political unity, and private law, so far as it defines or affects the relations of private individuals.' 849. The first of these portions of international law, (also entering into municipal law,) is expressed in the definitions of such terms as these,-a nation; a sovereign; sovereignty; jurisdiction; forum; national territory; domain; subjection; native subject; domicil; alien; alienage, &c.; which are terms necessarily used in the exposition both of municipal and international law. These terms are statements of the mode of existence of nations, or states, derived from the general reasoning of mankind in the social condition, independently of the legislative authority of any one of the states, nations, or political communities whose existence is defined by them. So far as these statements are constituent parts of positive law,-international, or municipal rules of action,-they belong to those principles which are judicially recognized as having the character of universal law, (herein also called from its universality the law of nations.) Although these principles are necessary axioms of all positive law, international or municipal, they are more frequently called principles of the law of nations in view of their application to the public existence of nations than in view of their origin and universal character. They form what has been frequently denominated, in reference both to their origin and application, "the natural, or necessary law of nations," and have been 1Bowyer: Univ. Pub. Law, 22. Therefore Hermogenianus, Dig. L. 5. De Just. et Jure, describes civil society, and the necessary transactions among men, as springing from jus gentium, by which he means natural law; or that which, in the words of Gaius, naturalis ratio inter omnes homines constituit. classed with international rules of action in works which treat of that law of which nations are the subjects, because it is only in international relations, public or private, that they become subjects of judicial cognizance.' § 50. The second portion of international law consists in whatever rules of conduct nations may observe towards each other, or enforce between the individuals of whom they are respectively composed. This part of international law is more arbitrary, or has not that necessary existence which is ascribed to the first portion, being dependent upon the autonomic juridical action of states; it is, therefore, appropriately denominated positive, or practical international law. But these international rules between nations are based, as also the municipal law of each, on the recognition of the definitions of their existence as nations: (which, by being so universally received, are judicially taken to belong to the universal principles, otherwise herein called law of nations.) The distinction in the use of the terms international law, and law of nations, which is to be here observed, is this:-international law is a law defined with reference to its jurisdiction, or application;—the law of nations is a law defined with reference to its origin, or historical character.' 851. It is the first portion, then, of international law to which the existence, authority, and domain of any one state, or nation, is to be attributed in a legal point of view, and not those rules of action which are here called the second portion. Because, in the theory of jurisprudence at least, the existence and power of each nation is taken to be independent of those rules; or the rules themselves are a consequence of that existence, authority, and domain. The laws, or rules of action for private persons, which are to prevail under the jurisdiction, when thus determined, of any state, or nation, are ascribed to the authority of the state as a politi 1 Reddie: Inq. in International Law, 2d ed., pp. 119-130. Vattel: Prelim., § 8. Bowyer: Univ. Pub. Law, pp. 11, 12. Some writers may, however, have employed it to signify natural equity applied to the international relations of states. 2 Browne, Civ. and Adm. Law, p. 13-15. See By Von Martens: "Positives oder pracktisches Völkerrecht." Compare an enumeration of the various synonyms used by different authors to designate these two parts of international law in Amer. Jurist, vol. xx. ; article by M. Victor Foucher. Reddie; Inq. in International Law, 2d ed., p. 410. cal person, or to the possessor of that sovereign power in which the state consists, whether they are applied as municipal (national) or international private law; or, in other words, whether they are applied with or without reference to the existence, or juridical action of other states, or nations. These laws are the proper, or peculiar law of that state; and in being confined to its limits and jurisdiction are known as the local, or territorial, or national law; or, what has been termed the "municipal law" in English and American jurisprudence, at least since the time of Blackstone. § 52. An exposition of the law prevailing within the territorial domain of any one country, or nation, is, therefore, necessarily always historical;' consisting in a statement of the existence of a possessor of sovereign national power, and of the exercise of that power in promulgating rules of action for private persons, either by positive legislation, or by judicial action, under its authority; and the law is necessarily described both as public and private law. § 53. Whatever rules of action are enforced within the domain of any one state, or nation, as its local, territorial, or national law, may apply to persons within that jurisdiction, according to any distinctions which the supreme power of that state might recognize among them; that is, the local law, by being applied to different persons according to those distinctions, becomes distinguished into different personal laws.' These distinctions may arise from principles which are connected with Bowyer: Univ. Pub. L., p. 156. "The general principle of modern times is that the territory determines the law, and the law of the territory regulates the property and contracts of all who inhabit the country. In this respect citizens differ little from foreigners, and national origin has no influence. (Savigny: Hist. R. L., French Tr., vol. i., p. 89.) We denote this state of things by the common expression, the law of the land, meaning the territorial law." Whewell: Elem. Morality, &c., B. ii., ch. vi., 209, 215. Reddie's Inquiries Element, &c., 24, 25. Hegel: Grundlinien der Philos. des Rechts, § 212. Tr.: "The science of positive law is to a certain extent an historical science, which has its beginning in authority, (or which begins by recognizing authority.") Mackeldey's Compend., § 3. "Positive law is the law established by historical facts, or the sum of those principles which are acknowledged in a state as principles of law, and consequently have authority as such." In the exposition, or teaching, of jurisprudence-the science of positive law-two schools are recognized-the analytical and the historical. But there is not any real antagonism between them. See Reddie's Inq. El., p. 88. Ante, § 25. Duponceau on Jurisdiction, p. 24. |