been held to be maintainable in the municipal courts of this country, founded upon a right arising out of Slavery. "When they got out of the territory where they became Slaves to the plaintiff, and out of his power and control, they were, by the general Law of Nature, made free, unless they were Slaves by the particular law of the place where the defendant received them. They were not Slaves by the law which prevailed on board the British ship of war. I am therefore of opinion, that the defendants are entitled to the judgment of the Court." CCCXI. This doctrine, it is right to say, however agreeable to the genius, is not peculiar to the free constitution of Great Britain. *In the year 1738, this generous maxim of French jurispru[*341] dence was put to its severest test in the case of "Jean Borcaut," a "Nègre Créole," which will be found reported in the thirteenth volume of the "Causes Célébres," the substance of which was as follows:-When France became possessed of colonies in the West Indies, she shared the guilt of Christian Europe in permitting Slavery in her colonies. The first edict by which it was authorised was issued in 1615, but, nevertheless, till 1716 the slaves of French colonists became free when they touched the soil of France. A royal ordonnance of that date, the provisions of which were explained and confirmed by one issued in 1738, permitted, under certain provisions ensuring their good treatment and restricting the time of their Slavery, Slaves from the French colonies to be brought by their masters into France without acquiring their freedom. One of the conditions, however, was, that the master should duly register at the first port the arrival of the Slave, the probable time of his stay, &c., &c., according to certain prescribed formalities; in any case where these conditions had not been literally and strictly fulfilled, the ancient law of France resumed its operation. There had been some omission of these prescribed formalities of registry in the case of the slave Jean Borcaut, who accordingly claimed, and after a trial before "l'Audience d'Amirauté” obtained his liberty. In the report of the trial will be found the plaidoyers for the negro, for the crown, and for the master: and in the speech of the advocate for the master there is this remarkable passage: "On ne connoît point, il est vrai, d'esclave en France, et quiconque a mis le pied dans ce Royaume, est gratifié de la liberté. "Mais quelle est l'application, et quelle est la distinction du principe? “Le principe est vrai dans le cas où tout autre esclave qu'un esclave nègre arrivera dans ce Royaume. "Par exemple qu'un étranger, qu'un négociant françois arrive dans ce Royaume avec des sauvages qu'il prétendra être *ses esclaves; [*342] qu'un Espagnol, qu'un Anglois vienne en ce Royaume avec des esclaves nègres dépendans des colonies de sa nation; voilà le cas dans lequel par la loi, par le privilége de la franchise de ce Royaume, la chaine de l'esclavage se brisera, et la liberté sera acquise à de pareils esclaves. "Voilà le cas dans lequel il faut appliquer l'art 6. du Tit. 1. liv. 1. des Instituts de Loysel. Voilà le cas où il faut dire avec M. de René 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 ambassadors, in which he discusses the privileges of their residence, tells the story of a certain Pole who, having left his country and gone into Muscovy, had there sold *himself into Slavery, but afterwards, being [*343] in Holland, he fled to the house of the Polish Ambassador: "Les 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 officiers 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 ambassadeur, il ne respire que liberté, et la recouvre aussi-tost.” CCCXIII. 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 (2) Causes Célèbres, tom. xiii. p. 562. p. 418. 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 nineteen 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 remonstrance, 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 passage to Genoa, and that at least he ought to be remunerated for the purchase-money of the slave; but he found that his remonstrance was fruitless, 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) [*345] *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 International Law, vol. i. p. 146, exception 2. (e) L. i. de Rep. p. 41. Bod. de Rep. liberi sex: Paris, 1586. (ƒ) L. ii. c. x. 2, 1. over all Things, within her territorial limits, and, as will be seen in certain specific cases, without them. CCCXVI. First, as to the Right of Territorial Jurisdiction over Persons: they are either 1. Subjects, or 2. Foreigners commorant in the land. CCCXVII. 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. CCCXVIII. 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. (c) Stephen's (Blackstone's) Commentaries, vol. ii. p. 4. Calvin's case, 7 Coke's Reports, 18 a. (d) Vide post. "Solet hic illud quæri, an civibus de civitate abscedere liceat, veniâ non im petratâ. 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. CCCXIX. 2. It has been said that these rules of law(h) *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.(2) 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.() CCCXX. It 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.(7) 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. CCCXXI. It 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. CCCXXII. 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. (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. () 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. |