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has claimed and exercised the power to recognize or not to recognize the bond status of strangers. And when nations have not allowed their own subjects to hold negroes in slavery, they have, almost without exception, rejected the claims of foreign owners voluntarily entering their dominions. Their right so to do has never been questioned.”—(Hurd, 374.) This being the state of the laws of certain civilized kingdoms, the universality in jurisprudence, on which property the law of nature depends, was not, at the time of Somersett's case, such as to support the bond condition and its consequences contended for. The law of the colony, which was in this respect a foreign jurisdiction, was “jural” in and for the colony itself. But the law of England attributed the right of personal liberty to all natural persons within its territorial jurisdiction. The jus gentium varies at dif

. ferent times. Legislation and received judicial decisions may deprive an accepted rule of law of its universal character. About the epoch we have been referring to, the relation between master and slave had been subjected to the process

of being unsettled, and it happened that Somersett's was that on which "a judicial tribunal had been obliged to decide in a controversy between the master and slave, whether such a right of private dominion and correlative obligation could be maintained in England." The sale of slaves in our seaport towns, and the continuance of enforced servitude of negroes brought over to England, remained in practice, its legality or illegality not being definitely raised in a determinate form, till the right was brought to an issue by the dispute between Mr. Stewart and his negro.

The uncertain state of the law with respect to the subject before us, in the last century in England, may be observed in the

, course of the discussion already adverted to. Thus we see, with regard to the question of the effect of the religious tenets of the slave, or the physical fact of his having been subjected to baptism, great difficulty seems to have existed. “There was once a doubt," says Lord Hardwicke," whether if slaves were christened they

* In Horne's “Memoirs ” it is said, that “Sıracens who are taken by Christians, or bought, and brought to Christianity by grace,” become free.

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would not become free by that act; and there were precautions taken in the colonies to prevent their being baptized, till the opinion of Lord Talbot and myself, then attorney and solicitor general, was taken on that point. We were both of opinion that it did not at all alter their state."--Pearne v. Lisle, (Ambl. 75, anno 1769.) Moreover, in the same case, the opinion of Lord Holt, C. J., that the moment a slave sets foot in England he becomes free, is denied ; while, in 1762, the claim as to a negro (of whom it was thought advisable to own that "he had been baptized”) having arisen, Lord Northington declared that, “As soon as a man sets foot on English ground he is free; a negro may maintain an action against his master for ill-usage, and may have habeas corpus if restrained of his liberty.”

We may indeed perceive, that the mutability of the law was expressing itself in the irregularities and discrepancies which we observe in the interpretation of the common law of the realm, just as the law of nations, depending as it does on the juridical and mutable action of states, is itself liable to change. “It is capable (says Dr. Whewell) of progressive standards; it is fixed for a given time, and obligatory while it is fixed; but it must acknowledge the authority of morality, and must, in order to conform to the moral nature of man, become more and more moral.” Thus the “ change in the law” is noticed by Lord Stowell as having been introduced by Lord Mansfield in the Somersett case, was one of which he was the instrument, but which was the result of that which makes and changes human opinion at all times.

Before we glance at the jurisprudence of other states of Europe, with a view of seeing what has been the course pursued with regard to the subject we are considering, we may refer to the case in Scotland so often mentioned, Knight v. Wedderburne, (1775-8.) That it caused a great sensation is evidenced by the fact that Boswell (whose predominant passion was to push himself into every thing that was making a noise in society, and to endeavour to attract a share of any passing notoriety) induced Dr. Johnson to talk and write on the subject. The great majority

of the lords of session decided for the negro, he tells us ; while four (including of course Lord Monboddo) “ maintained the lawfulness of a status which has been acknowledged in all ages and countries, and that when freedom flourished as in old Greece and Rome." However, the court held, “ that dominion assumed over the negro under the law of Jamaica, being unjust, could not be supported in this country to any extent ; that therefore the defender had no right to the negro's service for any space of time, nor to send him out of the country against his consent.” In 1757, another instance occurred of a slave rebelling against his master's right; but the negro died before the case was decided. It is curious that, during this period, there were actually classes of colliers, coal-heavers, and salters, in Scotland, whose status was that of slavery or bondage, being bound for life to particular collieries and works, and transferable with them by the masters. The 15 Geo. III. c. 28 (1775), was passed to put an end to this state of things and this not being effectual, another in 1799 was passed to enforce the reform.

Amongst the anomalies with which the law of slavery in England was beset was this: that the statute book and treaties contained undoubted recognition of the principle of the institution, while judicial authorities and public opinion were condemning it. By Wm. III. c. 26, the trade in Africa, which signifies especially “the slave trade,” is recited to be “highly beneficial and advantageous to the kingdom, and to the plantations and colonies therewith belonging" By Article 12 of the treaty of Utrecht (between Great Britian and Spain, 1713), there was granted “to her Britannic Majesty, and to the company of her suljects established for that purpose," the contract for introducing negroes into Spanish America for thirty years; and facilities for selling them were given. The 23 Geo. II., c. 31, recites that it was necessary to supply the plantations and colonies “ with a sufficient number of negroes at reasonable rates." The 29th section, however, shows that the distinction was made between kidnapping and violent seizing “natives, to the prejudice of the said trade," and the peaceful purchase of slaves from African slave-dealers. This in the French town, found, to his amazement and disgust, that the magistrates were bent upon giving the slave his freedom. Barrington, in the statutes, p. 254, says—“It appears from

, Boulainvilliers, that the question was formerly much agitated in the French courts of justice; but in the Institutes Coustumières (1679), it is laid down with great precision, that a slave becomes free as soon as he enters the French territories, and is baptized. “Toutes personnes sont franches en ce Royaume, et si-tost qu'un esclave a atteint les marches d'iceluy se faisant baptizer est affranchi.” So in Remarques du Droit François (1680), the same doctrine, that the French kingdom knows no distinction of

persons, bond or free. Although these passages are conclusive as to the theory of French law, and as bearing upon the general law of nations, yet, in fact, serfdom in a very stringent form existed at this time, and long after, in France. As regards “ the incompatibility of slavery with the soil or with the air of France,” it is said, “many persons (the serfs or mainmortables—they had other denominations) in different parts of that country continued, until its convulsive revolution, to exist in a condition which, if it were not, strictly speaking, slavery, undoubtedly bore a very strong resemblance to that status.'

Lack of space prohibits our following the authorities bearing upon the laws of other states, which may be found collected in the State Trials (vol. 20), and in the 8th chapter of Mr. Hurd's treatise. The latter writer comes to the conclusion which we will quote, as we think it is perfectly sound.—"If, then, at a date shortly before the American revolution, the practice of British and European judicial tribunals, and the writings of private jurists indicated any rule respecting the international recognition of the rights of an alien owner, and the correlative obligation of his slaves existing under the law of their domicile, that rule was, it would seem, that in a country wherein the condition of slavery could not exist as an effect of the internal or local law, or wherein no domiciled subject, of whatever race or complexion, could be held in slavery, the correlative rights and obligations of masters and

1 20 State Trials, 1370.


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slaves domiciled in other countries, could not be protected and enforced by the judicial tribunals of the forum.”—($ 265.)

It is readily seen how the institution of slavery has been, during later periods, a fruitful source of questions arising between nations and governments, and has occasioned appeals to international law, a consideration of their “conflict” as it has been termed. Hence in a treatise like that of Mr. Hurd, it became essential to define, as he has undertaken in his first chapter, the terms used by writers on jurisprudence, and to consider the principles which lie at the base of recognised systems of law among civilized communities. The vague employment of language has produced at all times much ambiguity in this department of legal study, and causes, moreover, a great distaste to its study. As Dr. Maine has well said, in a paper read before the juridical society, the English language comprises no true juristical phraseology. “Our English law terms are strictly terms of art, and it would be absurd to attempt to strain them beyond their well-defined, long-accepted, and technical meaning. The language then which must be used for questions of universal jurisprudence is popular language, infected with all the vices of common speech, vague, figurative, and general. In employing it for such an examination of these questions as is appropriate to closet study, it is necessary to be constantly limiting and qualifying it, to be perpetually weeding it of metaphor, and to be carefully cleaning it from the misleading suggestions which lurk in mere arrangements of words and collocations of phrases.” The facts here mentioned will explain in great measure why it is so common to find in legal authors on these subjects, such hard writing, involved style, and sometimes repugnant doctrines. Another explanation is indicated in the following remark of Bentham :-"Of what stamp are the works of Grotius, Puffendorf, and Burlamaqui? Are they political or ethical, historical or judicial, expository or censorial ? Sometimes one thing, sometimes another, they seem hardly to have settled the matter with themselves. A defect this, to which all books must almost unavoidably be liable, which take for their subject the pretended law of nature; an obscure phantom,

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