CHAPTER II. FARTHER CONSIDERATION OF THE NATURE OF PRIVATE NATIONAL LAW: ITS ORIGIN AND APPLICATION. INTER ITS EFFECT § 59. In the definition of international law which was given in the first chapter, it was shown to have the name of a law, only by an improper use of the term, when considered as a rule of action for states in their several entity or personality; since, though it consists of a recognized body of rules distinct from the municipal (national) law of each state or nation, it is not prescribed to them by a superior, but operates upon them as political persons, or upon private persons within their respective domain, only by their own several allowance or consent. This being the legal or juridical view of the obligation of that law; whatever may be its source in a divine rule of action, or law of nature. When, therefore, private international law operates upon private persons, in any national jurisdiction, by the allowance of the supreme power of the state, it has, in respect to sach persons, the same sanction and force as the municipal (national) law, and, as to all persons who are distinct from the state or sovereign, it has equally the effect and authority of law in the proper meaning of the term. The distinction of private international law from private municipal (internal) law arising, not from a difference in the nature of their authority over individuals, but in the character of the relations which they severally affect. § 60. When considering, in the first chapter, the mode in which positive law becomes known as the law of some one state or country (§ 48), the international law was described as being divided into two portions. The first consisting of laws in the secondary sense only,-necessary axioms, or definitions of the political existence of states,-entering into both international and municipal (national) law. The second, consisting of laws in the primary sense-rules of action—which may, or may not, exist, or be observed, between specified states. The first portion, which, as was remarked in the same place, corresponds with that which is sometimes called "the natural, or necessary law of nations," but which indicates at the same time relations of private persons, as well as the relations of states, may indeed be taken to be antecedent to, and independent of, the power of any one state but the rules of action which compose the second portion, whatever authority they may have in natural reason, become law for private individuals only by being enforced by the power which promulgates the municipal (national) law of that jurisdiction or state in which the person may be found. § 61. If, then, it is asked-wherein does private international law consist, as a rule of action in any one national jurisdiction, distinct from the municipal (internal) law of that jurisdiction? —the answer must be found by ascertaining the effect of the necessary axiomatic principles or definitions composing the first part of the international law, as before described, upon private persons and upon things; and next-the actual allowance or creation of rights and obligations of private persons, as the incidents of legal relations which have an international character from the fact that the agents and objects of action presupposed in them are persons, or persons and things, not altogether or exclusively under the juridical power of a single nation or state those persons, or those persons and things being discriminated, by the application of the axiomatic principles above spoken of, as persons subject to different jurisdictions; such persons being alien, or native, domiciled, or temporary subjects in reference to some one jurisdiction or forum. § 62. The terms or phrases by which the nature or mode of existence of states or nations is set forth or defined, are so generally known in the maxims of public law, that it is not neces sary here to attempt any separate exposition of them: though it may become necessary hereafter to consider particularly the meaning of some of those terms, as they may be used in stating international or municipal (internal) rules of action. The general principles or maxims which are contained in the definition of these terms, are set forth most at large by writers who treat of public international law, regarded as a rule of imperfect obligation (ante, § 11,) of which states or nations are the subjects; though they are equally presupposed in rules determining the relations of private persons towards those states or nations, and having the force of law in the strict sense-i. e., public municipal (national) law. § 63. Upon an examination of these maxims, as stated by writers on public law, it will be seen that there are three which may be taken for the most general or fundamental; and which are in fact but one and the same definition of sovereignty;-or they are assertions, in different forms, of the essential character of sovereignty; or, again,-descriptions of sovereign national power in three different relations. The first being a definition of sovereign national power considered, as it may be said, absolutely, or in relation to its own materials, or constituent parts; without reference to the existence of any other manifes tation or embodiment of that kind of power: which may be thus stated: I. The power of every state, or nation, is absolute, self-dependent, or supreme, within that space, or territory, which it possesses, or occupies, as its own domain, and over all persons and things therein. The second maxim is but the same assertion expressed relatively to the co-existence of several states, or nations; recognizing the limitation of each by the fact of the equally independent existence of the others; this is, that II. The sovereign power of one state, or nation, is not to be recognized as sovereign, or has no existence, as such, beyond its own domain, or territory, or within the space, or territory, which constitutes the domain of another possessor of national sovereignty. 8 64. These two maxims, when taken for maxims of international law, belong to the first portion of international law, according to the division herein before made, (ante, § 48,) since they can be called laws in the secondary sense only; not being properly rules of action, but statements of a mode of existence, or of action. They must lie at the foundation of all positive law; and they have in jurisprudence the character, or extent of universal law-the law of nations, (jus gentium,) because actually asserted, or proclaimed, and universally received, by nations, or states, as being natural and necessary principles.' In the manifestation of this sovereign power, over persons and things, by states, or nations, originates law in the primary sense-rules of action; forming relations between persons in respect to other persons, and in respect to things. Since these relations are legal,—that is, are known as the effects of law, it is a consequence of the two maxims just stated, that they have existence only in some one jurisdiction in which that law is known as a coercive rule proceeding from the sovereign of such jurisdiction, and the rights and obligations composing those relations have no legal force beyond it. § 65. It was remarked in the first chapter that international law (public and private) arises from the necessarily existing circumstance that the whole variety of human interests and action cannot, from their nature, (or, it may be said, from their relation to space and time,) be distinctly divided among, and separately included under the limits of single states; and yet the juridical power of society must be supposed, in some form, either by enjoining, permitting, or prohibiting, to be exerted upon interests and actions which are not so included under the exclusive dominion of single states, (ante, § 10.) The effect of law is exhibited in legal relations, comprehending rights, with their corresponding obligations, in respect to persons, and in respect to things. The action involved in any legal relation must take place in reference both to space and time; and the conceivability of relations whose legal existence is indeterminable under the law of a single state, (which conception supposes an international law according to the definition in the first chapter,) will arise from postulates of their existence in respect to space and in respect to time: such relations being, also, dis 'Bowyer: Univer. Public Law, p. 151, and the citations. tinguishable among themselves by differences in the comparative effect of space and time in connecting their legal existence with the juridical action of more than one state. For, first, relations may be supposed, or conceived, not to be exclusively determinable by the juridical power of a single state, by reason of differences in the respective geographical positions, at one and the same time, of the persons and things which are to be the subjects and objects of the rights therein involved.' And, secondly, other relations may be supposed, or conceived, not to be so determinable under the juridical power of a single state, by reason of differences in the respective times at which the persons, or the persons and things, which are to be the subjects and objects of the rights involved in those relations are together found within different geographical jurisdictions: they being at one time within the territorial dominion of one state, and afterwards within that of another. § 66. It will be seen in comparing these classes of relations that there is a manifest difference in the degree in which it may be said that they are not exclusively determinable under the juridical power (the law) of single states. In the class of relations first described, the persons and things which are to be the subjects and objects of the rights involved in those relations, not being at the same time under the same jurisdiction, it is actually impossible, from the axiomatic. principles of jurisprudence, (natural and necessary law of nations,) that the action in which those rights must be manifested should take place without a concurrent juridical action on the part of the respective states, either producing one common rule, or consenting to the controlling operation of rules proceeding from one or from the other. In this case it may be said that the question by which juridical power the relation is to be de termined?-precedes the legal existence of the relation. 1 Wheaton International Law, Part ii., ch. 2. "It often happens that an individual possesses real property in a state other than that of his domicile, or that contracts are entered into and testaments executed by him in a country different from either, or that he is interested in successions ab intestato in such third country; it may happen that he is at the same time subject to two or three sovereign powers-to that of his native country, or of his domicile, or to that of the place where the property in question is situated, and to that of the place where the contracts have been made, or the acts executed." |