But, in the other class of relations, the persons and things which are to be the subjects and objects of the rights involved in those relations, having been together under the juridical power of one state before the other is supposed to have any possible operation, the existence of a relation between them precedes the question-by which juridical power the legal force of that relation is to be determined?-: and there is not any actual impossibility 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; the persons and things between whom the relation is supposed to exist, being, at different times, under the exclusive dominion of some one juridical power.

8 67. Now from the possible connexion, in respect to persons and things, which is here indicated between distinct sources of law having separate jurisdictions, arises the third of the three fundamental maxims before enumerated; which, like the two already stated, is only a recognition of sovereign states or nations as being the independent sources of positive law, even while stating this possible relation or connexion between them; which maxim may be thus expressed :

III. The laws of one nation or state may, by the consent or allowance, and therefore under the authority of the supreme national power in another nation or state, have the effect of law within the jurisdiction of the latter.

This maxim, it will at once be perceived, is from the meaning of the term law, inconsistent, except as it is merely another form of the first and second. For the law-being a rule of action resting on the authority of some one sovereign-if the laws of one state can be said to take effect in the jurisdiction of another, they are in fact the law of the state in which they take effect, and not of the first.'

1

Compare Story's Confl. L., § 21, 22. Fœlix Droit International Privé, § 10, 11. Schaffner in Entwicklung des Internat. Privatrechts, § 26, cites Zacharia, as saying. (Tr.) "Each right, and in the same degree each obligation, subsists exclusively under the laws of the land in which the right or the obligation (according to the effect of those laws) is to be enforced and is enforced under the supposed circumstances. This rule, (which in fact is merely a reiteration of the well known maxim, Leges non valent extra territorium, in the only sense which can be given to it,) is derived, immediately, from the sovereignty of states. For if it should be held that the law of a particular

68. The first two of these three maxims are necessary propositions in defining what sovereign national power is; and lie at the foundation of all positive law-municipal (internal) or international. The third is not necessary in the same sense: bęing the statement of a manifestation of sovereign power which may or may not take place. It is however the statement of a relation or condition only; and therefore, like the first and second, a law in the secondary sense of the word law. It is an axiom of public law lying at the foundation of that which is herein before called private international law;-so far as such international law can be judicially recognized in any national jurisdiction, as distinct from the private municipal (internal) law of that jurisdiction:-private international law ;—which, as described in the first chapter, determines the realization of the legal relations of private persons in those interests and actions which cannot subsist or have not continued under the exclusive territorial authority of any one state or nationality: (§ 10) which rela tions, with the rights and obligations of which they are composed, must yet, primarily at least, as is implied in these three maxims, receive their legal existence under some one municipal (national) law.'

state may, or must, as such, be carried into effect in another state, the legislative power of the former state could be extended over the latter, and in proportion diminish its legislative power;-the chief attribute of sovereignty. It is true that the application and execution of the foreign law would always remain with the judicial and administrative officers of the forum. But the rule according to which these officers would decide and act would have been prescribed by a foreign government. And how can they be empowered to act according to this rule, when they are only the instruments or servants of the government by which they were appointed." To this proposition the same author states three cases of exceptions, allowing them to be such in appearance only. Schaffner calls the proposition a novel one, and denies its correctness. There is probably no real contrariety of opinion between them. Apparently Zacharia, in discriminating the law to which he should attribute the relation, looks to the political authority which coercively maintains the rights and obligations in which it consists, and therefore speaks of it as subsisting under the law of the forum; while the other looks to the legislator whose moral judgment attributed those rights and obligations to the persons between whom the relation is maintained, and therefore regards the relation as possibly subsisting under the law of a foreign state.

1

The realization-the actualization-the carrying-out of. The term employed for this by some German writers of reputation is the Verwirklichung-the making or the being made wirklich-real or actual. Another term nearly equivalent is the Geltendmachen--the making geltend-available, or in force. And this is distinguished from the Eristent-werden-the becoming, or the being made existent. Thus it is said by Schaffner § 27. "A very different thing from the Existent-werden, (the being made, or the becoming existent,) is the Geltend-machen (the putting in force, or the being made available,) that is, the assertion that a certain fact (legal effect) has become verwirk

§ 69. The municipal (national) law of any one state may contain rules of action applying originally, and as a law of local origin, to the relations of private persons within its jurisdiction, who are distinguished by the supreme power as alien, which are not rules that take notice of the effects of the laws of foreign jurisdictions in creating rights and obligations for those persons. Rules of this kind can be called international (as contrasted with internal) only in being founded on the simple distinction between native and alien subjects.' The private international law then, so far as it can be distinguished from the municipal (internal) law of any one jurisdiction, is, in its form and manifestation, a rule regulating in that jurisdiction the admission or allowance of different municipal (internal) laws, or of their effects; being properly called private, because determining rights and obligations arising out of relations of private persons: whether the municipal (internal) law, first establishing these relations, is principally of a national and public character, or is more strictly private.

§ 70. The three maxims or propositions above given can in their nature be only statements of the self-existent or self-dependent nature of nations, states, or sovereignties, and therefore laws in the secondary sense of the word only. If the attempt is made to go beyond these, and state a rule under which this international recognition of municipal (national) laws, (the possibility of which only is implied or stated in the third maxim,) should take effect, or will take effect—a law having the force of a rule of action-a law in the primary sense, it is evident that such rule may be stated either in the form of a rule of which states or nations are the subjects, determining their respective rights and obligations, or, in the form of a rule of which private persons are the subjects. In the first alternative, the rule can only be law in the imperfect sense, or a law of the imperfect kind, and cannot determine the action of such states or nations except

licht (realized--actualized-carried out,) under the jurisdiction of a certain law." But Waechter in his treatise (published in the same year, 1841,) on the collision of laws in Archiv. f. d. Civil. Praxis, vol. 24, p. 237, takes the word verwirklicht, as employed in a citation from Struve, in a sense which appears to be directly opposite to that above given. The first necessity in questions of this kind is a received nomenclature. 'Such as naturalization laws, police laws relating to immigrants.

by being identified with their several autonomic will or consent; and it will be public international law, from the character of the persons upon whom it operates, or for whom it is said to be a rule. In the second alternative the rule may have the coercive character of positive law, in reference to the action of private persons, and be a rule which judicial tribunals may apply, or will be bound to apply in determining the rights and obligations of such persons, in relations in respect to other persons and in respect to things; being private international law from the character of the persons upon whom it operates, or for whom it is said to be a rule. But it is evident with regard to the possibility of any such rule-a rule having the character of positive law,that it must be part of some municipal (national) law; that is, it must, according to previous definition, be identified with, or rather must derive its existence from, the ascertained will of some legislator,—some political person vested with the authority of society or of the state.

Now to whatever degree the state or nation, or the possessors of supreme or sovereign power, may, in their political entity or personality, be bound (by public international law-the law of "positive morality”—Austin, ante § 11, n.) to allow foreign laws to take effect within their own jurisdiction, their judicial tribunals have the like duty, in allowing or refusing the international admission of foreign laws, which they have in enforcing the municipal law strictly so called-the internal law-the law operating within each national jurisdiction irrespectively of the existence of other such jurisdictions; they must ascertain the will of the supreme power of the state in reference to such international allowance.

§ 71. It will be remembered that the relations which it was supposed might be indeterminable under the legislative power, or the law of a single state were herein before divided or classified by differences in the comparative effect of space and time in connecting their legal existence with the legislative action of more than one state, (ante § 65.)

In regard to the first class of relations-that namely in which the persons and things, which are to be the subjects and objects of the rights involved in those relations, are not all supposed to

be at one time under one and the same jurisdiction, (in which case the question, by which legislative power the relation is to be determined, would precede the existence of the relation, and where it would be impossible that the action in which those rights must be manifested should take place without some concurrent legislative action on the part of the respective states within which those persons and things should be found, either producing one common rule or consenting to the controlling operation of rules proceeding from one or from the other,)—the question of the existence and determination of these relations, when raised before a judicial tribunal, may appropriately receive the name of a question of the conflict of laws; which name has been given by Huber, Story, and others, to cases determined by private international law as herein described.

That name, however, is evidently less appropriate to express the question of the existence and determination of the second class of relations, before described: since, according to the supposition, the persons between whom they are to exist, or the persons and things who are to be the subjects and objects of the right involved in that relation, are always at some one time under the exclusive dominion of some one state.

72. The international determination of the first class of relations constitutes one of those topics of jurisprudence wherein it has been found most difficult for judicial tribunals, or for private jurists and law writers, to agree in a priori deductions from elementary and necessary principles.' Rules, however, may exist, in regard to this class of relations, in the jurisprudence of any one country, either originating in positive legislation or in judicial precedent, which, of course, must be taken to have been intended for jural rules, or rules founded in natural reason, and not merely arbitrary and accidental determinations. And so far as any rules are found to have been concurrently adopted in the jurisprudence of different nations, they thereby acquire the character of a universal jurisprudence or law of nations; and there is in that fact an authority for the judicial tribunals of any

To these rules the citation given by Schaffner, § 22, note, well applies :-"Leyser; Med. ad Pand. Sp. 283, p. 1162. says in regard to Farinacius and others. Regulas in illis multas inveni, sed quando eas cum subjectis limitationibus contuli, ipsarum regularum nihil superesse vidi."