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390 STATUS OF AFRICANS BY LAW OF NATIONS.

the end of the colonial period, the right of a domiciled master in respect to his baptized, civilized, American-born negro, (whether by law a chattel, or a bond person,) rested in the place of his domicil, upon the local law only, and its recognition in any other colony depended upon the principle of comity with its limitations, as they have been before described.'

§ 326. So, on the other hand, although the condition of a person of the African or Indian races, domiciled in any one jurisdiction of the empire, might, under the local law of that jurisdiction, consist in rights of the same legal nature as those which characterized the condition of an inhabitant of the same jurisdiction who was of the English or European race, yet those rights were the result of a law confined in its territorial extent to that jurisdiction, and not of a law having national extent; and therefore the support of those rights or of that condition would depend, in any other part of the empire, upon the private international law as received and applied therein by the local (colonial) source of power.

§ 327. It would depend upon the actual international recognition given by different nations to the relations of alien negroes, created under the laws of their domicil, whether any principles, having personal extent to them only, should acquire the character of a law of nations or a rule of universal jurisprudence, after the time at which chattel slavery had ceased to be supported by that law. If, for the negro race, in international relations created by the public and private law of different countries, only a partial recognition should be made of a condition of rights and privileges, such as in like circumstances would be given to whites, then, although the slavery of an alien negro might not be internationally recognized, there might a certain condition of social inferiority be assigned to him in the forum of jurisdiction, based upon universal jurisprudence.

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But it has been shown that the condition of a private person respect to privilege can be attributed to the law of nations

See ante, p. 324, where it was assumed that before the close of the colonial period the right of ownership would not have been sustained by the "common law of England "having personal extent throughout the empire. It is here stated as proved.

INTERNATIONAL SLAVE-TRADE.

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only so far as it embraces relations which will continue the same, notwithstanding a change of jurisdiction; and that, when chattel slavery is no longer recognized, no other condition of a private person can be attributed to universal jurisprudence than such as consists in the rights and obligations of the family, and those resulting from contracts. There is nothing in the history of either international or of municipal (internal) jurisprudence, during the colonial period, to indicate that there was any definite condition of a legal person, in respect to those rights which could be recognized in the case of an alien negro under a judicial derivation of law, and which might not equally have been attributed to a white or European. In all parts of the American continent, however, domiciled negroes or Indians were placed in an inferior condition to the whites; in respect either to civil or political privileges; and in that branch of the law which has been called police law, applying equally to aliens and domiciled persons, derived from statute regulation, a distinction had been made between free negroes and free whites, and the same distinction existed in all the colonies settled by European nations in America. This fact, of so general prevalence, may perhaps be said to have constituted during the colonial period a recognized disability in persons of the negro race under the "law of nations;" in this sense, that, unless specially provided against, all international transactions or agreements, affecting the right of the subjects of different countries, would be supposed to have admitted the distinction.1

§ 328. When chattel slavery had thus ceased to be supported by the jurisprudence of the greater number of civilized nations, although the trade or commerce in slaves might still be legal by the authority of other states, yet it could be maintained only in such parts of the world as the nation sanctioning it might have jurisdiction over the persons engaged in it. The slave-trade on and from the coast of Africa, though, for this reason, not supported by the law of nations,-in the sense of universal jurisprudence, at the close of the colonial period, can

1 In connection see ante, §§ 19, 75, 112, 168-170.

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LAW OF NATIONS.

SLAVE-TRADE

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not be said to have been contrary to the "law of nations; either in that sense, or in the sense of a law of which nations are the subjects; for, according to the acknowledged principles of that law, each nation might permit its own subjects to engage in the traffic on the coast of Africa. It would have been a topic of public international law only so far as it might have been the subject of an agreement between such a slave-trading nation, and the sovereign of that part of the coast of Africa from which the negroes should have been purchased :-supposing that there should have been there any organized civil authority. Even the forcible abduction or kidnapping of the native inhabitants by the subjects of a civilized government might have been legalized by such government; and it would not have been contrary to international law, except so far as it violated the rights, under the public international law, of the sovereign to whom the persons kidnapped might have been subject, if any such sovereign could have been found.

§ 329. An act of criminal violence committed by private persons upon the high seas, or anywhere beyond the territorial jurisdiction of organized civil governments, is an act punishable by the tribunals of the sovereign of the persons committing the injury. If such act of violence is allowed or sanctioned by such sovereign, it then becomes, according to the public international law, an injury against the sovereign of the persons injured,— supposing them to be the subjects of an organized civil government; the remedy for which is beyond the jurisdiction of courts of justice. But a nation may grant jurisdiction to another, or to all others, of crimes committed by its own subjects; and, by the consent of all European nations, it has been agreed that some acts of violence, by private persons, shall be punishable not only by the tribunals of their own sovereign, but by those of any nation which may obtain control over their persons. Such acts are therefore not merely contrary to the rule of right enforced by every nation, and therefore such as may be said to be contrary to universal jurisprudence-the law of nations; but they are acts over which every nation has jurisdiction, irrespectively of the national character of the persons committing them.

NOT PIRACY AT THAT TIME.

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They are therefore criminal under the "law of nations," in a peculiar sense the sense of a law of which private persons are the subjects, and which any nation may vindicate; and which is public international law also; because the right of thus vindicating it, irrespectively of the national subjection of the culprits, is dependent upon the consent or contract of different nationalities. An act of this character-one which may thus be punished, is technically called piracy. Piracy may be defined to be one of those acts which the tribunals of any nation will take jurisdiction of, and will punish.'

Although the African slave-trade was no longer supported by the law of nations-universal jurisprudence-at the close of the colonial period, it would not have been a criminal act on the part of the persons engaging in it, unless forbidden by the legislation of their own sovereign. And even if so forbidden, it would not have been punishable by the courts of any other nation as piracy, unless by the consent of that sovereign.

1 There is an ordinary use of the terms piracy, pirate, piratical, in which acts of robbery and murder are discriminated according to the place wherein committed-the high seas. But in the phrase "piracy by the law of nations," the designation has reference to the common jurisdiction which nations will assume over it. Compare the variety of opinion, on this question of definition, in United States v. Smith, 5 Wheaton, 153,

CHAPTER XI.

OF THE INVESTITURE IN THE PEOPLE OF THE SEVERAL STATES

AND OF THE UNITED STATES, OF THAT SOVEREIGN POWER WHICH IS THE BASIS OF CONDITIONS OF FREEDOM OR OF BONDAGE.

§ 330. By the Revolution and the war which was terminated by the preliminary treaty of peace of November 30, 1783, the English colonies, a portion of whose juridical history has been herein considered, became politically separated from the British empire, and a new sovereignty,' known to the rest of the world as the United States of North America, became established over their territory. To the legislative or juridical action of this sovereignty or sovereignties, the subsequent existence of any rights or obligations incident to freedom or liberty and its opposites, regarded as the conditions or status of private persons. within their territorial dominion, must be referred.

§ 331. Freedom or liberty, taken even in the widest or most general sense that of the mere negation of restraint, must vary in significancy according to the nature of the subject of which it is predicated, or the capacities of that subject for acting or being acted upon.

When freedom or liberty is attributed to a being capable of choice and action, and is not taken as the simple negation of restraint, but as a positive condition of moral privilege in reference to some rule of action, it varies in its significancy, not only ac

This term, primarily signifying supreme or sovereign power in the abstract, or the possession of that kind of power (Webster's Dict.), is often used also, as here, for the concrete,-the power and the possessor of it.

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