those principles which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question must be considered as decided in favour of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries it was carried on without opposition and without censure. A jurist could not say that a practice thus supported was illegal, and that those engaged in it might be punished, either personally or by deprivation of property. In this commerce, thus sanctioned by universal assent, every nation had an equal right to engage. No principle of general law was more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which was vested in all by the consent of all, could be divested only by consent; and this trade, in which all had participated, must remain lawful to those who could not be induced to relinquish it. As no nation could prescribe a rule for others, no one could make a law of nations; and this traffic remained lawful to those whose governments had not forbidden it. If it was consistent with the law of nations, it could not in itself be piracy. It could be made so only by statute; and the obligation of the statute could not transcend the legislative power of the State which might enact it. If the trade was neither repugnant to the law of nations, nor piratical, it was almost superfluous to say in that court that the right of bringing in for adjudication in time of peace, even where the vessel belonged to a nation which had prohibited the trade, could not exist. The courts of justice of no country executed the penal laws of another; and the course of policy of the American government on the subject of visitation and search, would $ 133a. Buron v. Denman. § 133b. Fugitive slaves. decide any case against the captors in which that right had been exercised by an American cruiser, on the vessel of a foreign nation not violating the municipal laws of the United States. It followed that a foreign vessel engaged in the African slave-trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored to the original owners (g). The subsequent case of Buron v. Denman (h), places the matter in a still clearer light. A treaty was entered into between Commander Denman, of H.M.S. Wanderer, and King Sciacca, the Sovereign of Gallinas, a territory near Sierra Leone, for the abolition of slavery in his dominions. Acting upon this treaty, Commander Denman destroyed certain barracoons of the slave dealers, and liberated the slaves, whom he conveyed to Sierra Leone. Some of these slaves belonged to Buron, the plaintiff. Baron Parke, in summing up, directed the jury, that the proceedings of Commander Denman, at the time of their execution, had been wrongful, and would have entitled the plaintiff to recover for the loss of his goods and slaves, were it not that the defendant had acted under the authority of a political treaty, which had been subsequently ratified by the Home Government, whereby his acts had become acts of State, for which the Government, and not its officer, was responsible. These cases establish beyond controversy, that the tribunals of England recognize the right of property of the owner in the slave, so long as the slave is in the country by the law of which the owner's right is upheld (i). It has also been held in a recent case in the supreme court of the United States, that a promissory note given as the price of slaves in a State where slavery was at the time lawful, could be enforced after the abolition of slavery throughout the Union (k). Another question of great difficulty with regard to slaves is that of their position after quitting a country where they are held in bondage, and then returning to it. No one will deny that a slave is justified in escaping from his master, if he can do so without having recourse to violence, and no country would give him up to his owner in such a case. It has, however, been asserted, that when a slave has once set foot on British soil, he becomes at once and for ever a free man, and that his owner's rights thereupon cease to exist. Such a position cannot be supported. The law of England recognizes the right of an owner in a slave-owning State over his slaves, and therefore British law cannot impress the quality of freedom upon a slave who has violated his (g) The Antelope, 10 Wheaton, 66. [See The Slavers, 2 Wallace, 350.] (h) [3 Exch. 167; and see Forbes v. Cochrane, 2 B. & C. 448.] (i) [Report of Comm. on Fugitive Slaves, 1875, p. 54.] (k) [Boyce v. Tabb, 18 Wallace, 546.] master's right, so as to make the slave able to continue free on his return to the owner's country. In a case decided by Lord Stowell, Case of the slave Grace. Grace, a slave in Antigua, accompanied her mistress. to England, and then returned with her to Antigua. She was there seized by the waiter of the Customs, as forfeited for having been imported into the island, contrary to a statute prohibiting the further importation of slaves. Her owner put in a claim for her, and Lord Stowell decided in his favour, on the ground that while in England she was free, but that her liberty had been placed "into a sort of parenthesis," and as she had returned to Antigua, her owner's rights over her revived, and he was therefore entitled to her (1). Lord Chief Justice Cockburn has expressed his approval of this decision (m); and the same principle is to be found in other cases (n). Mr. Justice Story has also expressed his concurrence with this judgment (o), and the decisions of the American courts are to the same effect (p). $ 133c. The mode in which the question is most likely to present itself at Slaves the present time, is by slaves escaping on to the ships of war of foreign ships of war. escaping to States. To give back a slave to his master, knowing that he will be maltreated, and made to suffer for having attempted to regain his liberty, is repugnant to the feelings of human nature; and yet to protect him and carry him off to some country where slavery does not exist, is a violation of his owner's rights. The instructions of the Ad- British Admiralty miralty to the commanders of British ships of war, recommend that as instructions. a rule fugitive slaves should not be received on board, but the commanders are instructed that "In any case in which you have received a fugitive slave into your ship, and taken him under the protection of the British flag, whether within or beyond the territorial waters of any State, you will not admit or entertain any demand made upon you for his surrender, on the ground of slavery. No rule is, or can be laid down, as to when a fugitive is to be received on board or not" (q). Sir James Stephen has come to the conclusion, "That commanding Opinion of Sir officers of British ships of war in territorial waters are under an obliga- J. Stephen. tion, imposed by international law, to deliver up fugitive slaves who have taken refuge on board their ships when required to do so by the local authorities, in accordance with the local law. That the law of England does not forbid them to discharge this obligation. That it is doubtful whether by refusing to discharge it, they might not incur a personal responsibility to the owner of the slave. That the privilege of exterritoriality (whatever may be its exact nature and extent), is really irrelevant to the subject" (r). (1) [The Slave Grace, 2 Hagg. Ad. 131.] (m) [See Report on Fugitive Slaves, 1875, p. xlviii.] (n) [Forbes v. Cochrane, 2 B. & C. 448; Williams v. Brown, 3 Bos. & Pul. 69.] (0) [Life of Story, vol. i. p. 552.] (p) [Strader v. Graham, 10 Howard, 52; Dred Scot v. Sandford, 19 Howard, (a) [Solicitors' Journal, vol. xx. p. (r) [Report on Fugitive Slaves, 1875, p. lxi.] 133d. Slavery in the While slavery existed in some of the States of the American Union, United States. it was held by the supreme court, that laws made by any of the States to prevent or even to assist, the arrest of fugitive slaves, were unconstitutional and void (s). However, the civil war resulted in the total abolition of slavery throughout the Union. The Thirteenth Amendment to the Constitution provides that, 1. "Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. § 134. Extent of the judicial power "2. Congress shall have power to enforce this article by appropriate legislation" (t). II. The judicial power of every State extends to all as to property civil proceedings, in rem, relating to real or personal property within the territory. within the territory. § 135. Distinction between the rule of decision and the rule of procedure as affecting cases in rem. This follows, in respect to real property, as a necessary consequence of the rule relating to the application of the lex loci rei sita. As every thing As every thing relating to the tenure, title, and transfer of real property (immobilia) is regulated by the local law, so also the proceedings in courts of justice relating to that species of property, such as the rules of evidence and of prescription, the forms of action and pleadings must necessarily be governed by the same law (u). A similar rule applies to all civil proceedings in rem, respecting personal property (mobilia) within the territory, which must also be regulated by the local law, with this qualification, that foreign laws may furnish the rule of decision in cases where they apply, whilst the forms of process, and rules of evidence and prescription are still governed by the lex fori. Thus the lex domicilii forms the law in respect to a testament of personal property or succession ab intestato, if the will is made, or the party on whom the succession devolves resides, in a foreign country; whilst at the same time the lex fori of the State in whose tribunals the suit is pending determines the forms of process and the rules of evidence and prescription. (s) [Prigg v. Pennsylvania, 16 Peters, 539, 622.] (t) [Thirteenth Amendment to the Constitution of the U. S. See Memor v. (u) Vide supra, § 81. § 136. personal Though the distribution of the personal effects of an Succession to intestate is to be made according to the law of the place property ab where the deceased was domiciled, it does not therefore intestato. follow that the distribution is in all cases to be made by the tribunals of that place to the exclusion of those of the country where the property is situate. Whether the tribunal of the State where the property lies is to decree distribution, or to remit the property abroad, is a matter of judicial discretion to be exercised according to the circumstances. It is the duty of every government to protect its own citizens in the recovery of their debts and other just claims; and in the case of a solvent estate it would be an unreasonable and useless comity to send the funds abroad, and the resident creditor after them. But if the estate be insolvent, it ought not to be sequestered for the exclusive benefit of the subjects of the State where it lies. In all civilized countries, foreigners, in such a case, are entitled to prove their debts and share in the distribution (x). Though the forms in which a testament of personal property made in a foreign country is to be executed are regulated by the local law, such a testament cannot be carried into effect in the State where the property lies, until, in the language of the law of England, probate has been obtained in the proper tribunal of such State, or, in the language of the civilians, it has been homologated, or registered, in such tribunal (y). So also a foreign executor, constituted such by the will of the testator, cannot exercise his authority in another State without taking out letters of administration in the proper local court. Nor can the administrator of a succession ab intestato, appointed ex officio under the laws of a foreign State, interfere with the personal property in another State belonging to the succession, (x) Kent's Commentaries on American Law (5th ed.), vol. ii. pp. 431, 432, and the cases there cited. [Nelson, Private International Law, pp. 196 et seq.] (y) Armstrong v. Lear, 12 Wheaton, p. 169. Code Civil, liv. iii. tit. 2, art. 1000. $137. Foreign will, into effect in how carried another country. |