international recognition. All laws determine relations of persons, (ante, §§ 21, 22,) but, according to the view here given, the personal character of a law thus internationally supported is a consequence of its international recognition, rather than the cause of it. It is said by writers on the conflict of laws quoted by Story, in Confl. of Laws, p. 12, that "personal statutes are held to be of general obligation and force every where;" and these are contrasted with real statutes which are said to have no extra-territorial force or obligation. By statutes in that use of the term are not intended legislative enactments, but any rules of law affecting relations of persons to other persons and to things and by personal statutes are generally intended those rules which have determined the individual rights of private persons and their capacity for relative rights; though the difficulty which has been experienced in stating general rules to distinguish what statutes are real, what personal, and what mixed, is a proof of the insufficiency of the distinction to determine their international admission.' It would, perhaps, be equally correct to say, that statutes which are held to be of general obligation and force every where are personal statutes. Their personal character would then be the result of the extent judicially given to them: and the question is when will a judieial tribunal be bound to admit them to have this personal extent? If the authority for the tribunal, in doing this, is found in the historical fact of their international recognition, then their personal extent is, in fact, derived from the customary law of the forum. 1Fœlix: Dr. Internat. Pr., § 5. "Statutum, coutume particulière." § 19, “Mais en même temps le terme statut, surtout dans la matière du conflict des lois est employé dans un sens plus étendu, et il est pris comme synonyme du mot loi." Merlin: Repertoire, tit. Autorisation Maritale. Bowyer: Univ. Pub. Law, p 163. 2 Kent Comm., p. 456-7. The term appears originally to have been used to designate a law whose territorial extent was limited to some several province or district of a national state or kingdom, and in that contrasted with the common law of the land. Savigny: Heut. R. R, B. III., c. i., § 347. Thus in England the particular customary laws of borough English, and gavelkind (v. 1 Bla. Comm., 74, 75) correspond to statuts of the French Provinces. Story's Confl, of Laws, § 51, and generally ch. iv. of that work. 3 Reddie's Inq. in Internat. L., pp. 425-7. Hertius: De Collisione Legum, § 4, speaking of real, personal, and mixed statutes:-" verum in iis definiendis mirum est quam sudant doctores." Schaffner, § 31. Reddie's Inq. in Internat. L. pp. 477-8. Various European writers for and against this view are cited by Wachter in Archiv. &c., Bd. 24, pp. 255-261. It would indeed seem, from the writings of the civilians, that there was a period in the jurisprudence of Continental Europe when this personal character of a law was regarded as the juridical basis of the international recognition. And it is plain that after laws of a certain class or character,-laws affecting a specific class of relations,-have, in a number of instances, been allowed international recognition on other grounds, the fact of their having been admitted to have a personal extent within foreign jurisdictions becomes an evidence, to the tribunals of any one forum, of their jural character; and, by that international recognition, they may have acquired that historical universality, which gives them, before the individual judicial tribunal, a legal existence distinct from the municipal (internal) law-the law having territorial extent in and for the forum of jurisdiction. As a class of laws which have received international recognition, in determining the relations of persons passing from one territorial jurisdiction to another, they may be called personal laws, and so distinguished from laws which have had extent only within certain territorial limits.' Most of the cases, also, which are cited by writers on this subject, to show the international recognition of certain laws denominated personal laws, have arisen between jurisdictions which, though having distinct local laws, were under one sovereignty or supreme political power: wherein, therefore, the laws of each province would necessarily be regarded as jural by the tribunals of other provinces under the same sovereign: as in the different provinces of France, when different local laws prevailed therein, but all deriving their legal force from a single juridical and legislative authority.' §108. The various legal relations which a person may sustain, in respect to persons and things, together constitute his legal condition. Some of the rights arising out of those relations must, in their nature, be local, and can be exercised only 1 Some states, though correlatively independent, may still be so connected by a customary international law, that laws affecting the condition of their respective inhabitants have a reciprocal recognition in their several tribunals which is not given by those tribunals to laws particularly derived from other states. As, for example, the various dominions constituting modern Germany. Comp. Savigny: Heut. R. R., B. III., c. i., § 348. Wachter: Archiv. f. d. Civil. Pr., Bd. 24, p. 252. 'Pothier: Coutumes d'Orleans, ch. i. Fœlix: Droit Internat. Pr., p. 24. in the jurisdiction wherein they were first created, (ante, § 75.) But the individual and also the relative rights of a legal person, if considered without reference to any specific things, may (irrespectively of their political guarantees,) continue the same in different national jurisdictions, and be considered continuing incidents of his personal condition. In a vague use of the words, such rights are often denominated personal rights. When the personal condition of a private person is spoken of, or a law is termed a law of condition, the term has reference more especially to the possession of such rights. In the Roman law, the rights which might be attributed to private persons were classified as rights belonging to different conditions, known under the name of caput or status; some rights being recognized independently of local laws, as being founded on a universal jurisprudence or jus gentium, and others being limited to the inhabitants of certain localities, being ascribed to the jus proprium, or civile, Romanum.' § 109. If, then, by the private international law which obtains in some one national jurisdiction, (either from positive legislation, or by judicial application of natural reason,) some relations of alien persons may be recognized and enforced therein which have existed under the law of a foreign jurisdiction, it will be remembered, according to what was said of the distinction between persons and things in the first chapter, that a legal relation can have that character only by a recognition of legal persons, and their capacity for legal rights. A contract, if internationally recognized as the effect of a foreign law, is necessarily known to the judicial tribunal through a recognition of a capacity to contract in some natural person. The law of the capacity of natural persons for legal relations, as the law of personal condition or status, must, therefore, enter into the international recognition of municipal laws supporting contracts. This capacity of persons is also an object of legal recognition in other relations of persons which do not have the character of contracts: some of which relations are recognized in different national jurisdictions as having a foundation in universal jurisprudence the historical law of nations: such as the relations 1 See ante, §§ 15, 19, and §§ 96, 97. of parent and child, husband and wife, guardian and ward. These relations have a legal existence in all national jurisdictions by force of customary law, having the character of principles of universal jurisprudence: although different systems of municipal (internal) law may differ in their recognition of the inception of those relations, and even differ in their judgment of the combined rights and obligations arising from them. The law of legal capacity and personality lies, therefore, at the foundation of private international law, as well as at that of the private municipal law, received or existing in any one nation or state; and the relations of persons which, together with distinctions of capacity, constitute freedom or liberty, and slavery or bondage, may be a topic of international private law, applied in any national jurisdiction, as well as of the municipal (internal) private law prevailing therein.' § 110. It appears, therefore, that when it is attempted to apply the general principles, herein before stated, in questions of the international recognition of those reciprocal rights and obligations which, in relations between private persons, constitute a condition of freedom or its opposite, the first principle which will apply is, that When persons appear within any particular national jurisdiction who have, by the law of a previous domicil, held such rights or sustained such obligations, the conditions of such persons, in respect to those rights and obligations, will be recognized, allowed, sustained, or continued by the judicial tribunals of the new forum in which they so appear, (unless legislation intervene,) when the relations constituting that condition are founded on principles which have, in the history of jurisprudence the character of universality, or of being part of a law of nations: because, as has been shown, this historical law of nations these principles of a universal jurisprudence—may be judicially received to indicate what relations are consistent with that measure of justice which the state intends to apply: though they are always liable to be disallowed, within the jurisdiction of each state, by its own autonomic legislative and juridical action, and so, in that jurisdiction, to lose their antecedent authority, as guides for the judicial action of a tribunal. This law of nations may include principles determining the possession of either individual rights or of relative rights, and may thus operate as a law of status or personal condition; which, by its general recognition among different nations, would then have a personal extent, both in international and municipal (internal) law.' 111. By the same authority from which every principle of this law of nations is derived, i. e., the concurrent juridical action of different states in international relations, some principles of this law of nations, determining the condition or status of private persons, might be exclusively applied to a distinct class, or definite portion, of mankind: and they would then have a peculiarly personal extent and character, whether manifested in international or municipal law: being, in such case, a law not only of personal condition, but a law of, or for, certain persons only though being also properly attributed to universal jurisprudence the law of nations-from their actual historical recognition among all nations."' § 112. A condition, or status, which should consist simply in the possession, or non-possession of individual or absolute rights, may easily be supposed to continue the same after a change from one jurisdiction to another. Those elements of condition which arise out of the relations of family-of husband and wife, of parent and child, of guardian and wardmay also be the same, in their essential features, after such a change. The name of bondage, or servitude, may, as has been stated in the first chapter, be attributed to various conditions of obligation in private persons, even when the rights correlative to such obligation are rights of other private persons only;-not of the state, or some possessor of political power, (ante, § 47.) When spoken of as the condition of a legal person, the obligations in which it consists may exist in reference to persons and things peculiar to some one place, or jurisdiction; or, it may be 1 In connection with this section see particularly ante, §§ 99, 100. |