3. In the American slaveholding states, the moral personality of those held in the customary slavery has been recognized by jurisprudence and statute to an extent which makes it difficult to say whether, there, slaves are now by law regarded as things and not legal persons (though subject to the laws which regulate the title and transfer of pro perty), or whether they s.re still things and pro perty in the same sense and degree in which they were so formerly. Compere laws and authorities in Cobb's Law of Negro Slavery, ob. iv., v. If it is difficult to show wherein the existing condition is otherwise different from the older slavery than by being juristically distinguishable as the condition of a legal person, the distinction is of little import ance under the internal law of those states. But in international private law it may be important to discriminate whether this servile condition is the effect of law peculinr to those states, or of doctrines of universal jurisprudence like those which, operat ing in the law of international exchange, sustained in the colonies, if not in England also, at one period, the slavery of negroes imported from Africa in the seventeenth and eighteenth centuries. 1 Hurd, Law of Freedom and Bondage, 0 201. the chattel condition recognized in the law of the Roman empire and revived in the inception of modern negro slavery is the only form of servitude which was ever thus distinguishable as a condition recognized by universal jurisprudence; and it is, beside9, the only form which can be so recognized, because it is the only servile status which, wherever recognized, is one and the same ; fur bondage of legal persons necessarily varies in different juris dictions, by being connected with various local cir cumstances. Ibid. 0 112.
If a servile condition, existing in these states, is now distinguishable as bondage of legal persons, it is thereby proved to be based on the particular law of those states. But, indeed. if the contrary be true, and if in those states slaves have been or aro things in law, as are inanimate chattels or domestic animals, yet on passing from these states into other jurisdictions they could be held to be such only so long as they may have been so regarded by the universal jurisprudence of the commercial world, So long only, if ever before, could they be said to be property beyond the limits of those states. The dictum that slavery, is the creature of positivelaw, 20 How. St. Tr. 1; 18 Pielt. Mass. 212, can mean only that slavery rests on the particular law of the countries wherein it exists. Hence, when slaves arc carried out of the slaveholding states they are not property, unless brought into some jurisdic tion which by its particular law recognizes them as property; elsewhere they are legal persons, even where they may be regarded as I arsons in bondage whose obligation to service may still be enforced. Hence, whatever may he the nature of slavery in those states, the slave who has escaped into an: other is known only as a legal person, in bondage, to the national law which requires his being de livered up on claim. Coast. art. iv. 0 2, p. 3, So, when carried into a territory of the 'United States, he is not property there, as was the negro slave im ported into the American colony from Africa in the seventeenth and eighteenth centuries, unlcs,s there he a law particular to that territory declaring him to be property.
4. Whether such slave, when brought into a ter ritory wherein there is no local law, ascertained from statute or precedent, for or against slavery, will continue in a condition of bondage, is not as yet determined by judicial decision. In the ab sence of authoritative legislation, it should be deter mined by those general international rules which determine 'in any one place whether the toaster's right and the correlative obligation of the bond man shall continue, when they may have come thither from the jurisdiction which had before sup ported the relation between them. A general prin ciple in favor of the recognition of nny relation created by foreign law, provided the local law does not attribute to every person some right incon sistent with the rights and obligations existing in that relation (the principle generally called inter national comity, 1 Hurd's Freedom, &c. 88), would
support the relation between such master and bond man in any jurisdiction wherein the local law doc9 not attribute liberty universally, i.e. to every natural person. (See FREEDOM.) In the non-slaveholding states of the Union this universal attribution of liberty prevents the judicial recognition of the master's right, under any circumstances not coming within the intent of some clause of the second sec tion of the fourth article of the constitution. In the territories of the United States it would be necessary to ascertain the political source of law for the territory, to know whether liberty is or is not there in like manner universally attributed. It has been held that congress had no power to pass the act of 1820 prohibiting slavery in the northern portion of Louisiana Territory. 19 How. 393. But whether this is a consequence of covenants in the treaty ceding that particular territory, or of the extra-state efficacy of the laws of the slave holding states, or of a recognition of slaves in the constitution of the United States, as being pro perty protected against legislative action by the fifth article of the amendments, was not settled by a mejority of the court. If the power to exolude slavery be hold by congress, or by some other poli tical personality having a local existence in the territory, yet until the power should be exercised in a positive prohibition the general principle of international private law might support it there, unless, as is claimed by some, there be a principle in the national law of the United States by which liberty is attributed to every natural person whose status is not determined by the authority of some one of the organized states of the Union. So, too, the dogma that slavery or involuntary servitude cannot lawfully subsist anywhere without previous positive enactment (a doctrine contradictory to his tory) would prevent the judicial recognition in the territories of any servile condition, unless esta blished by legislation.
5. If the right of such master and the obliga tion of such slave could, by the application of these principles, be recognized in any case whatever in a territory thus vacant of a particular local law, the relation between them would continue therein ir respective of change of domicil, so that a condi tion of bondage as an effect of internal law would thereafter be recognized by the incipient, unwrit ten jurisprudence of the territory. But, since it had not therein been recognized as the status attri buted to universal jurisprudence (i.e. the ancient chattel slavery), the master's right should not be judicially regarded as a right in respect to a thing, nor be protected against legislative power under constitutional guarantees of property, like that in the fifth article of the amendments. But see, contra, Taney, Ch. J. 19 How. 451.
Some claim that the universal attribution of liberty in non-elaveholding states does not affect the relation of master and slave being in such state for temporary visit merely; that judges may in such cases support the claim of mastership by dispensing an international comity in the state's behalf; or that the doctrine that the law of per sonal status accompanies the person ie the eon tr 'Bing principle. Cobb's Law of Negro Slay. c. vii. Some hold that the courts must recognize and dispense a peculiar inter-state comity, going beyond the demands of a similar comity between distinct nations. Some maintain that such an inter state comity is recognized and made judicially ap plicable to private persons, irrespective of either national or state legislation, by the article of the constitution above cited. Ibid. oh. x., xi. And see opinions and arguments in Lemmon case, 20 N. Y. 562. See SLAVE; SLAVERY; SLAVE-TRADE; SERVOS.