Chopin, que l'entrée dans la ville de Paris assure le maintien, et devient
l'asile de la liberté.

"Lutetiam velut sacro-sanctam civitatem omnibus præbere libertatis
atrium quoddam asiliumque immunitatis." (z)

Another instance may be added of the jealousy with which France regarded this partial abrogation of her general law in favour of liberty. 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. (a) The force of these examples is not weakened by the reflection that they are furnished by what was at the time an undeniably despotic State. Such was the law in favour of liberty, passed even by an absolute monarchy during what would now be designated the comparatively dark ages.

CCCXII The same doctrine was maintained by Poland during the
period of her existence as an independent kingdom.

Wicquefort, (b) in that part of his treatise on the functions of ambas-
sadors, in which he discusses the privileges of their residence, tells the
story of a certain Pole who, having left his country and gone into Mus-
covy, had there sold *himself into Slavery, but afterwards, being
in Holland, he fled to the house of the Polish Ambassador: "Les
[*343]
Moscovites en firent tant de bruit, que les estats de Hollande, après avoir
fait occuper toutes les avenues de la maison, y firent entrer quelques offi-
ciers et soldats pour faire la recherche du fugitif. Ils n'y trouvèrent
personne, et cependant ils firent cet affront au ministre public du roy de
Pologne. Le Polonois n'estoit point esclave né du Czaar; et s'il l'estoit
devenu en allant demeurer en Moscovie, il recouvra sa liberté naturelle
en mettant le pié dans un païs, qui ne nourrit point d'esclaves, et où on
ne devroit point sçavoir ce que c'est que de servitude ou d'esclavage. Les
Jurisconsultes François disent, que l'air de France est si bon et si bénin
que dés qu'un esclave entre dans le Roiaume, mesme à la suite d'un am-
bassadeur, il ne respire que liberté, et la recouvre aussi-tost.”

IV CCCXH The last occasion upon which an international question of
this kind was raised, happened in 1841.

A brig belonging to a subject of the United States, called the Creole, of Richmond, in Virginia, sailed on the 27th of October, 1841, with a cargo of merchandise, and one hundred and thirty-five slaves, from the Hampton Roads, for New Orleans. During the passage, the Slaves mentioned killed a slave-owner, who resisted their attempt to free themselves, wounded the captain, and compelled the rest of the crew to take the vessel into the port of Nassau, in New Providence Island, in possession of the British Crown. On their arrival, the American Consul requested. that a guard might be placed to prevent the escape of persons charged with a piratical act: the request was acceded to. An investigation was

(z) Causes Célèbres, tom. xiii. p. 562.

(a) Denisart, Décisions Nouvelles, tom. iii. p. 406, tit. Nègre, n. 45.
(b) Ambassadeur et ses Fonctions, par M. de Wicquefort, 1. i. p. 418.

+

cccxve her unreacinable to here. that, before thaay year. have clapsed, both Men. & Intern. Law. will be brought wide harmony furth with the Saw of Nature.

PHILLIMORE ON INTERNATIONAL LAW.

made into the circumstances by two British magistrates, the result of
which was, that nineteen persons were imprisoned as being connected
with the murder, the remainder being allowed to stay or depart as they
pleased. The British authorities further refused to deliver up the nine-
teen until they should have received instructions to that effect from
England.

The claim of the Government of the N. A. United States, that the
coloured persons, as the slaves were called, *should be restored
[*344]
to their master, was not acceded to on the part of the British
Government. (c) It would only have been necessary to cite, in answer
to such demands, the language of Mr. Justice Story: "So the state of
Slavery will not be recognised in any country whose institutions and
policy prohibit Slavery."(d)

Bodinus, in his first book, "De Republicâ,"(e) testifies that such had
been from early times the law and custom of France. He illustrates it
by two examples. The first was the case of a Spanish Ambassador who
brought with him a Slave in his retinue. The Slave, in spite of all re-
monstrance, claimed and obtained his freedom on entering the French
dominions. In the second instance, a Spanish merchant, happening to
touch at Toulon on his way to Genoa, with a domestic Slave among his
servants, when "hospes, re intellectâ, servo persuasit ut ad libertatum
provocaret;" the merchant complained that he had bonâ fide purchased
the slave, that he was not bound by the law of France, that he was not
resident there, but happened only to touch at a French port on his pas-
sage to Genoa, and that at least he ought to be remunerated for the pur-
chase-money of the slave; but he found that his remonstrance was fruit-
less, and made a private bargain with his slave for the continuance of
his services.

CCCXIV. On the whole, it seems not unreasonable to hope, that before many more years have elapsed, both Municipal and International Law will be brought into harmony with the Law of Nature; and that, to the question of the abolition both of Slavery and the Slave Trade, the emphatic language of Grotius may be applicable-“humano generi placuit."(f)

Ing. Slave Clance in Coast. H.S. - Prigg v. Commm & Pean 16ANK 539-63 376

>

[*345]

ナ

Slavery abolyed in 1865

*CHAPTER XVIII.

RIGHT OF JURISDICTION OVER PERSONS.

CCCXV We have now to consider the right incident to a State of absolute and uncontrolled power of jurisdiction over all Persons, and

(c) See pamphlet on the case of The Creole, already referred to, and opinion of the Law Lords in the House of Lords, February, 1842.

(d) Story's Conflict of Laws, p. 97. See also Mr. Wheaton's Treatise on Inter

national Law, vol. i. p. 146, exception 2.

(e) L. i. de Rep. p. 41. Bod. de Rep. liberi sex: Paris, 1586.

(f) L. ii. c. x. 2, 1.

over all Things, within her territorial limits, and, as will be seen in cer-
tain specific cases, without them.

CCCXVIFirst, as to the Right of Territorial Jurisdiction over Per-
sons: they are either

1. Subjects, or

2. Foreigners commorant in the land.

IX. CCCXH. 1. With regard to the jurisdiction and authority of States over their own proper subjects, no doubt can be raised; under the term subject may be included both native and naturalized citizens. With respect to native citizens, the right of which we are speaking is manifestly essential to the independence of the State. "Sanè (Grotius observes) ex quo civiles societates institutæ sunt, certum est rectoribus cujusque speciale quoddam in sous jus quæsitum."(a)

The native citizens of a State are those born within its dominions, (b)
even including, according to the law of England, (c) the children of alien
friends. So are all those born on board the ships of the navy, or within
the lines of the army, or in the house of the Ambassador, or
of the Sovereign, (d) if he should happen to be sojourning in a
foreign country.

[*346]

Every State has an undoubted claim upon the services of all its citizens. Every State has, strictly speaking, a right of prohibiting their egress from their own country, (e) a right still exercised by some of the continental powers of Europe. These rights are subject to no control or directions as to their exercise from any foreign State.

CCCXVH. Every State has a right of recalling (jus avocandi) its citizens from foreign countries, (f) especially for the purpose of performing military services to their own country. Great difficulty, however, necessarily arises in the enforcement of this right. No foreign nation is bound to publish, much less enforce, such a decree of revocation. No foreign State can legally be invaded for the purpose of forcibly taking away subjects commorant there. The high seas, however, are not subject to the jurisdiction of any State; and a question therefore arises whether the State, seeking its recalled subjects, can search for them in the vessels of other nations met with on the high seas? This question, answered in the affirmative by Great Britain, and in the negative by the United States of North America, has led to very serious and much to be lamented quarrels between the two nations.(g)

(a) L. ii. c. xxv. 8.

(b) Günther, vol. ii. p. 261.
(e) Stephen's (Blackstone's) Commentaries, vol. ii. p. 4.
Calvin's case, 7 Coke's Reports, 18 a.

(d) Vide post.

(e) "Solet hic illud quæri, an civibus de civitate abscedere liceat, veniâ non impetratâ. Scimus populos esse ubi id non liceat, ut apud Moschos: nec negamus talibus pactis iniri posse societatem civilem, et mores vim pacti accipere."-Grot. 1. ii. c. v. 24.

Wheaton, Elém. tom. i. p. 135.

(f) Günther, vol. ii. p. 309.

Heffters, s. 59.

(g) See correspondence between Mr. Webster and Lord Ashburton. Wheaton's Hist. p. 737, &c.

Vide post as to jurisdiction over ships of war, and merchant vessels in foreign harbours.

be

I queassels which it may safely predicted will not arise d'ain. For I cannot think that it could now be Corciended that he claims. B, was yranded copron Internati ohinion it was not"

CCCXXT.2. It has been said that these rules of law(7) *are [*347] applicable to naturalized as well as native citizens. But there is a class which cannot be, strictly speaking, included under either of these denominations, namely, the class of those who have ceased to reside in their native country, and have taken up a permanent abode (domicilium sine animo revertendi) in another.() These are domiciled inhabitants; they have not put on a new citizenship through some formal mode enjoined by the law of the new country. They are de facto though not de jure citizens of the country of their domicil.()

CCCXXIIt was a great maxim of the constitutional policy of ancient Rome not to allow her citizenship to be shared with that of any other State. (1) A different custom prevailed in Greece and in other States; but the Roman citizen who accepted another citizenship became ipso facto disfranchised of his former rights.

CCCXXIIt is sometimes said that a different rule prevails in modern times, and that a man can be at one and the same time the citizen of two States.(m) In truth, however, this must depend upon the civil policy and domestic regulations of each State. But it is true, as a general proposition, that a man can have only one allegiance.(n) The State may, as *Russia has done, forbid her subjects to be domiciled else[*348] where, or may permit it as England has done; but in either case, if a collision between the two allegiances, so to speak, should arise, the latter would be obliged to yield to the former. For instance, if the two countries were at war, the citizen who was taken in arms on behalf of the country of his naturalization against the country of his birth would, strictly speaking, be guilty of treason. In these times, probably, most States would take into consideration the length of time during which the new domicil had been acquired, whether offences against the original State were to be punished, or her protection invoked by her long absent citizen.

CCCXX All strangers commorant in a land, owe obedience, as

(h) Story, Conflict of Laws, s. 48. c. iii., ib. s. 540. c. xiv.
Fælix, 1. i. t. i. s. 2. Du Changement de Nationalité.

Heffters, s. 58.

Colquhoun's Civil Law, s. 393. vol. i. p. 377., ib. s. 389. p. 373.

Günther, vol. ii. p. 267.

(i) Vide post. chapters on DOMICIL, under COMITY.

Vattel, 1. i. c. xix. s. 211, &c.

(k) See a later part of this work on COMITY, for further remarks on Domicil. (1) Vide Cicer. Orat. pro Balbo, passim, especially s. 12. See Zouche's remarks thereupon, p. 2. s. ii. xiii. De Jure Feciali.

(m) Heffters (s. 59.) maintains this ground in opposition to Zouche, cited above.

Günther, vol. ii. p. 325. Einheimischen.

(n) The law is laid down with great perspicuity by Zouche. Speaking of a decision of the French tribunals on a question of Domicil, and vindicating it from the charge of private partiality, he says: "Fortassis vero id respexerunt, quod quamvis incolatus et Domicilium in externo regno sufficiunt ad constituendum aliquem subditum jurisdictioni et præstandis muneribus obnoxium non tamen sit satis ad constituendum Civem, ut eorum privilegiorum civilium sit particeps quæ in regno natis competunt nisi specialis allectio supervenerit."-De Judicio inter Gentes, pars. II. s. ii. 14.

V.

subjects for the time being (subditi temporanei), to the laws of it.(o) The limitation sometimes incident to this proposition will be stated in a subsequent section, in which the right of protecting subjects in a foreign land is discussed.

CCCXXH Naturalised foreigners are in a very different position from merely commorant strangers.(p) It has been the policy of wise States, it was especially the policy of Rome, to open wide the door for the reception and naturalisation of foreigners. (q)

*Naturalisation is usually called a change of nationality. The naturalised person is supposed, for the purposes of pro[*349] tection and allegiance at least, to be incorporated with the naturalising country.

This proposition is, generally speaking, sound; but it must admit of one qualification similar to that already mentioned with respect to the domiciled subject, if the naturalised person should have been the original subject of a country which did not allow him to shake off his allegiance (exuere patriam). In this event, if he should find himself placed in a situation the breaking out of war, for instance-in which his duties to the country of his birth and of his adoption are at variance, the former country would not regard him as a lawful enemy, but as a rebel; nor could the jus avocandi already spoken of be legally denied to her by the adopting or naturalising country, though the enforcement of the right could not be claimed. Banishment itself does not destroy the original tie of allegiance.

The Letter of Sir L. Jenkins, from Nimeguen, to Sir William Temple, at the Hague, contains the opinion of a most careful, learned, and practical jurist upon this question.

"My Lord,

"To the question you were pleased to send me, about the three Scotchmen, and the objection of the States to your memorial, that after a sentence of banishment, the allegiance of a subject is extinguished; I have this with submission to offer, that there are several things in the Practice of Nations (which is the law in the question) that make it impossible for subjects, in my poor opinion, to renounce or divest themselves of the allegiance they were born under.

"For instance, no subject of our master's (we'll put the case at home) can by the Law go out of his dominions without his leave; nor is this

(0) The Law is again very clearly and correctly stated by Zouche. "Quod quamvis Incolatus et Domicilium in externo regno sufficiunt ad constituendum aliquem subditum Jurisdictioni et præstandis muneribus obnoxium, non tamen sit satis ad constituendum civem, ut eorum privilegiorum civilium sit particeps quæ in regno natis competunt, nisi specialis allectio supervenerit."-De Jur. Fec. p. 2. 8. ii. xiv.

(p) Günther, vol. ii. pp. 266. 311. n. e.

(9) "Illud vero sine ullâ dubitatione maximè nostrum fundavit imperium, et populi Romani nomen auxit, quod principes ille, creator hujus urbis, Romulus foedere Sabino docuit, etiam hostibus recipiendis augeri hanc rempublicam oportere cujus auctoritate et exemplo nunquam est intermissa a majoribus nostris largitio et communicatio civitatis."-Cic. pro. L. Corn. Balbo. "Malè qui peregrinos urbibus uti prohibent, eosque exterminant, ut Pennus apud patres nostros, Papius nuper."-De Off. 1. iii. c. xi.