them better, to restore them to their masters.1 So, by the decrees of several councils, any person advising a slave to abandon the service of his master, or advising him not to serve with good faith and the most profound respect, was subject to the anathema of the Church.2

1 S. Basil. Regul. fus. Tractat. Int. xi; translated in Cassagnac's Voyage aux Antilles, tom. ii, 416.

2

Cassagnac's Voyage aux Antilles, tom. ii, 440; Bishop England's Letters to Forsyth.

SLAVES ESCAPING OR CARRIED INTO OTHER STATESPERSONAL STATUTES, AS APPLIED TO SLAVES.

§ 128. THE fugitive slave may escape beyond the limits of the State of the master's residence. If the place of his refuge is a slaveholding State, there is no doubt that his condition of slavery is not thereby affected, and that by the comity of nations, he would be delivered up upon the requisition of the master.

A more difficult and vexed question arises when the place of his refuge is a State where slavery does not exist. A conflict of laws then exists, the proper solution of which staggered the judgment of Lord Mansfield,' has placed in such direct antagonism the opinions of the ablest of foreign jurists, that Judge Story was forced to exclaim, "Non nostrum inter vos tantas componere lites," has engaged for more than half a century the judicial mind of America; and even while I write is mooted and argued as an unsettled question in the courts of more than one of the non-slaveholding States.

§ 128 a. Such a question I approach with diffidence, and ask only the judgment of honesty and candor,

'Somersett Case, 20 Howell's State Trials, 21.
Story's Conflict of Laws, § 58, et seq.

for the conclusions to which I may arrive. In considering it, I shall not confine the investigation to fugitives, but shall inquire also how far the condition of the slave is changed by the voluntary removal of his master into a non-slaveholding State. If, upon examination, we shall find that in the latter case, under any circumstances, the condition of slavery continues, a fortiori it will continue in the former where the removal is invito domino.

§ 129. A preliminary question arises as to what constitutes the domicile of a slave. We have seen that, as a general rule, it is that of the master. And this not being of choice of the slave, but by operation of law (necessarium), by no act of his can it be changed.1

§ 130. That mere residence in a country without the animus permanendi, does not effect a change of domicile, so as to subject the resident to the personal laws of the country, is well settled by the jurists of all civilized nations, as we shall see. It is frequently a question of great nicety to determine what facts will amount to a change of domicile, and many criteria are laid down to aid in elucidating this question. It would lead us too far from our main sub

'Phillimore, on the law of Domicile, 25, 60. So Menochius, in treating of Domicile, says, "Servus enim pro nihilo habetur cum mortuo comparetur." De Presumptionibus, Presumptio, xxx, § 19, p. 1035, quoted at length in Appendix to Phillimore; Burge Comm. on Col. Law, &c. i, pp. 33, 702, 751; see also 2 Martin, Lin. Rep. N. S. 408; Anderson v. Garrett, 9 Gill. 120.

Phillimore, on the Law of Domicile, pp. 101, 150, to which the inquiring reader is referred. See also Mascardus, De Probationibus, Conclusio, dxxxv; quoted at large in Appendix to Phillimore.

ject to follow the many interesting questions arising from this source, though each of them may, at some time, in practice need investigation in connection with the subject now discussed. We must content ourselves, here, with laying down the general rule, that the length of time of the residence, and the intention of remaining (to be decided from all the circumstances, and even against express declarations), are the important criteria in most cases, and that these must coexist in order to constitute a new domicile. For the intention to change a domicile, without the actual removal, will not effect a change. And, on the other hand, many jurists hold, that no length of time of residence, without the animus remanendi, will effect a change of domicile. Thus Mascardus Domicilium non contrabitur etiam per mille annos, si quis habet animum recedendi.' And adds, "So I was taught by the chief of all interpreters of the law, by Bartolus." Many of the civilians, however, held, that residence for ten years (decennalis habitatio) created a legal presumption of change of domicile; while others again supposed it to be a matter within the discretion of the judge, according to the circumstances of the particular case.* Lord Stowell entered his protest against the doctrine, that the mere fact that the original residence was for a special purpose, and with the animus revertendi, should perpetually bar the presumption of a change

1 Phillimore, 146, and American authorities there cited.

2 De Probationibus, Conclusio, dxxxv, Summarium, 12, vol. i, 248. 3 § xiii, 249.

* Phillimore, 141; Pothier, Coutumes des Duché, Bailliage et Prévôté d'Orléans, ch. i.

of domicile, and insisted, that "a general residence might grow on a special purpose."

§ 131. There can be no doubt that such a presumption would arise, if the residence were continued after the "special purpose" ceased to exist. And we might add, that a vague definite intention to return to one's country at some future time, is not sufficient to rebut the presumption of a change of domicile. Thus Lord Thurlow: "A person's being at a place, is prima facie evidence that he is domiciled at that place, and it lies on those who say otherwise to rebut that evidence." It may be rebutted, no doubt. A person travelling, on a visit, he may be there for some time on account of his health or business; the case of soldiers, ambassadors, &c. But what will make a man's domicile or home, in contradistinction to these cases, must occur to every one. A British man settles as a merchant abroad; he enjoys the privileges of the place; he may mean to return when he has made his fortune, but if he die in the meantime, will it be maintained that he had his domicile at home?" If the residence be not voluntary, but by virtue of authority, such as a military officer's, at a post to which he has been

' 2 Robinson's Adm. Reports, pp. 224, 225; see also Stanley v. Bemis, 3 Hagg. Ec. Rep. 373.

Pothier, Coutumes des Duché, Bailliage et Prévôté d'Orléans, ch. i, § 1; Phillimore, on the Law of Domicile, 148.

This is true, yet "animus mutandi domicilium nunquam presumitur, nisi probetur." Mascardus, De Probationibus, vol. i, p. 248. (Turin. 1591.)

* Bruce v. Bruce, reported in a note to Marsh v. Hutchinson, 2 Bos. & Pul. 219; see also Elbers & Kraffts v. The United Insurance Co. Johnson's Cases; Guvier v. O'Daniel, 1 Binney, 349.