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EFFECT ON CONDITIONS OF BONDAGE.

diction, that is, to a rule identified in its coercive authority with the rest of the municipal (national) law."

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§ 118. But though a condition of slavery or bondage may exist under the local (internal) law of the forum of jurisdiction, it may therein be considered accordant with natural reason in respect to certain specific local circumstances; being the effect of a law applying to a portion of the domiciled inhabitants in reference to the existence of those circumstances only, and having a peculiarly local or national character. And, notwithstanding the existence of this slavery or bondage, there may be, in the municipal (national) law of the same jurisdiction, a general or universal attribution of personal liberty and other rights inconsistent with the condition of the alien under the law of the foreign state, to all natural persons who are not in those peculiar circumstances of local character by which, or in reference to which, the slavery existing under the internal law is legalized, i. e. declared jural-consistent with natural reason. In this case the slavery of the alien could not be judicially supported on the ground of comity--the rule so called; because still contrary to principles having (with this recognized exception under the internal law) universal extent within that jurisdiction; even though the local slavery should constitute a status -a condition of rights and obligations-very similar in its social consequences to that existing under the foreign law.

§ 119. But though the bond condition of an alien should not be maintained and continued under the law of the forum of jurisdiction, because contrary to a universal attribution of personal freedom under the local law, it does not follow that that condition would not, under the juridical power of the same forum, be recognized to have been lawful in the place of his domicil—the foreign country. If, indeed, it is not a necessary consequence of fundamental principles, yet it has always been held, in the customary jurisprudence of every country, that the jural character or rightfulness of every effect of foreign law shall be admitted at least so far as that effect is confined to the national jurisdiction of that law; whatever may be the juridical opinion of other sources of law respecting such effect as the 1 Compare ante § 68, note.

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LIMITS OF THE EFFECT.

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basis of rights and obligations to be enforced within their own jurisdictions. In other words, the relations or actions created or allowed by a foreign law are customarily recognized to have been rightful, in and for its own domain; even when rights and obligations incident to those relations or actions are not maintained or continued in the forum of jurisdiction. Therefore, although the right of an alien master in respect to his slave, sanctioned by, or existing under the foreign law-the law of their domicil—should be disallowed in the jurisdiction to which they are alien, yet, under a judicial application of natural reason, (that is, irrespectively of positive legislation,) it will be held to have been jural or rightful, as well as legal, in the foreign country-the domicil of such master and slave: or it will, at least, not be held to have been a violation of rights which in the forum of jurisdiction may be attributed to the slave, nor the subject of legal remedy in that forum.

§ 120. By the same reasoning it would appear that even where, under the law of the forum, the right of the alien master created by the law of their domicil would not continue, or be maintained as against the slave, yet rights and obligations existing under the latter law as between the master and third parties, in respect to the slave, would still be recognized and maintained. The validity of the master's right in and for the place of his foreign domicil being admitted, would lead to a judicial recognition of the obligations of third parties correlative to that right. The right of civil recompense for violation of his right as master, in the place of his domicil, might, therefore, be maintained against third parties in a jurisdiction wherein the relation itself, as between the master and slave, could not continue. So, too, contracts founded upon the ownership of slaves in foreign states would be judicially recognized, and the rights and obligations growing out of them be judicially maintained in jurisdictions wherein, under the private international law, the condition of slavery as between the alien owner and his chattel slave, or bondsman, could not continue.1

1 But in some systems of municipal (national) law a character of immorality is ascribed to certain actions which prevents them from becoming, under the jurisdiction of those systems, the basis of legal rights and obligations; even though they may have created such rights and obligations in and for the foreign jurisdiction where such action took place. Compare Robinson v. Bland, 2 Burr., 1084.

§ 121. The operation of law upon the relations of private persons is a consequence of their being actually within the territorial dominion of the sovereign state or nation from whom that law proceeds. But, as has been stated, (§ 54,) those circumstances which, in international jurisprudence, are technically called domicil, determine in many cases whether the condition of a person shall be controlled directly by the law of the jurisdiction (the internal law) in which he is found, or, indirectly, by that of some other to which he may have formerly been subject. In many instances, the intention of the person to acquire a new domicil will be held to vary the legal nature of his relations both in respect to persons and in respect to things. Servants, or slaves, either with or without their masters or owners, may appear in a foreign jurisdiction, (a jurisdiction other than that of their domicil,) either as aliens seeking a new domicil therein, or as temporary inhabitants, still continuing, in view of the law of the forum, to have their former domicil. But, in a judicial application of natural reason to the condition of either of these classes of aliens, the principles which have been herein before stated are equally of force. Whenever by the operation of these principles, or by positive legislation, the slavery of an alien person is continued after a change of domicil, it becomes a result of the municipal (internal) law of the jurisdiction of which he becomes a domiciled subject. In the other case, that is, when the domicil is not changed, it is, from the continuing alien character of the person, a result of the private international law of the same forum.

§ 122. It is always to be remembered that the international recognition of personal condition which has been considered in this chapter is only a judicial act, determined by general principles of jurisprudence, and that it is always subject both to the customary law on the subject (anterior judicial practice) which may have prevailed in the forum of jurisdiction, and also to the positive legislation of the sovereign of the forum, giving an original rule extending, or limiting, the entire judicial discretion of its tribunals.' The action of the state, or nation, being, as compared with the action of its tribunals, autonomic, or in

1 Schaffner: § 31.

Savigny: Heut. R. R., B. III., c. i., § 361 A.

SUPREMACY OF LEGISLATOR.

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dependent of law, in admitting or rejecting a foreign law upon the ground of comity, or in receiving or repudiating a principle before ascribed to the law of nations-universal jurisprudence.

NOTE.-In connection with the province of the judicial officer in this respect, a principle cannot be forgotten by American tribunals which is no where so fully illustrated as in the jurisprudence which they apply; but in stating which, in an elementary essay, it may be well to cite an authority of foreign origin. Waechter, in a note to the passage herein before cited, (§ 84, n,) after the words—" that the requisition of a constitutional form and the limits of constitutional power alone determine its validity”—i. e., validity of the statute observes: (Tr.) "The determination of this must, unquestionably, appertain to the judge. That is to say-in our constitutional states-he is bound, in dispensing the law, to follow the legislative dispositions of the government only when they conform to the requisitions of the constitutional law. It is true that he is merely the servant and instrument of the law, (Rechtsgesetzes,) but, certainly, he is the servant of a valid law (Gesetzes) only. It is, therefore, both his province and his duty, before applying a rule which claims to be a law, or an exercise of the legislative function, to examine, according to the existing constitutional law, whether it actually is a law,-—that is, whether it has those qualities which, according to the constitution, must belong to a valid law. If these are wanting, it is his duty not to regard the decree as a valid law. It is true that this has of late been denied by, &c., [citing a German writer.] But this opposite view would make the judge, in his function, the subject of the executive power, [that is, in a state where the executive and legislative functions are not clearly separated,] and destroy both his constitutional independence and the right of the citizen, which is, to owe a constitutional obedience, only, to the executive power," &c., &c. [Giving the German authorities.]

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