Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/41

 residing there, either temporarily or permanently, is entitled to claim his freedom there, we come to a question upon which there is a greater conflict of authority, namely, what is the status or condition of a slave who does not avail himself of that right, but returns with his master to a slave State. This question, as it seems to us, may be most satisfactorily solved by the application of a few elementary principles.

The following maxims are to be found in the Institutes of Justinian: "''Omnes homines aut liberi sunt, aut servi." "Libertas est naturalis facultas ejus, quod euique facere libet, nisi si quid vi aut jure prohibetur" "Servitus est constitutio juris gentium, qua quis dominio alieno contra naturam subjicitur''." Lib. 1, tit. 3. And these definitions hold good to this day; for, under every system of law, all men are either freemen or slaves; freedom is the natural power to do what one pleases, unless restrained by force or law; and slavery is an institution of positive law, by which one man is subjected to the dominion of another, against nature.

The three principal maxims laid down by Huberus for determining all questions arising from the conflict of laws, and which have been universally followed, are thus translated by Story: "The first is, that the laws of every empire have force only within the limits of its own government, and bind all who are subjects thereof, but not beyond those limits. The second is, that all persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof. The third is, that the rules of every empire from comity admit that the laws of every people, in force within its own limits, ought to have the same force everywhere, so far as they do not prejudice the powers or rights of other governments, or of their citizens." Story on Conflict of Laws, §29. It follows that the condition and capacity, impressed upon a person by the law of his birthplace, follow and accompany him everywhere, until he comes to reside, either temporarily or permanently, in a country whose policy prohibits that condition, or refuses to recognize that capacity, and he then changes his condition, and becomes incapable of performing those acts which the law there does not recognize his right to perform. On his return to the country of his birth, or to another State whose laws are similar, he may perhaps reacquire the capacity he had lost, so far as that can be done consistently with the rights of others; but the new condition he has assumed will not be changed, unless that