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STATUS IN INTERNATIONAL LAW. 101
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, Homanum.1
§ 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, §§ I?, 19, and §§ 96, 97.
102 STATUS TJNDEB LAW OF NATIONS.
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.1
§ 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
1 Ante, §§ 25—27, and §§ 53, 54.
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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.1
§ 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 ward— may 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 aectiot see particularly ante, §§ 99, 100. * See ante, §8 53, 58.
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said, the relations of which it is an incident may have an essentially local character; being such as could not be upheld, or continued, except in and for some jurisdiction by whose local law they were created. The relation of master and servant, when consisting in the involuntary absolute servitude of one person in respect to all objects of action—correlative to the right of another private person, is one which might continue the same in any jurisdiction. Whenever the servitude is limited, and in reference to specific local personalities things or circumstances, it is a condition which cannot exist in other states, or national jurisdictions, to which the subject of that condition may be transferred. Such a condition of bondage cannot, therefore, become one recognized by universal jurisprudence, or a law of nations. Absolute servitude of a legal person, in respect to all objects of action, might, however, be so recognized under principles having that historical character. Still more easily may chattel slavery be so recognized; it being a condition which in every state may be the same; for a thing—the object of rights, may be such within any territorial jurisdiction.1 § 113. Whatever incidents in the personal condition of an alien should be ascribed to universal jurisprudence, by the tribunals of any one national jurisdiction, would be sustained, as under the international private law of the forum, while he should continue therein in alienage, and would become recognized effects of the municipal (internal) private law on his acquiring a domicil; taking effect as a personal law, (ante, § 54.) In other words, the rule of action, to which those incidents should be ascribed, would have like operation in the new forum upon the condition of the person coming from another jurisdiction, whether he should, or should not acquire a domicil in the new forum. While considered an alien, the operation of such rule would be classified under international law; and upon his acquiring a domicil, the same rule would become a recognized part of the municipal (internal) law. In this case, there would be no conflict between the laws of different jurisdictions, and no illustration of the so-called rule of comity, (ante, § 96.)
§ 114. If any incident of the personal condition of the alien
1 Compare §§ 44—47.
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is not founded on, or supported by this universal jurisprudence, or historical law of nations, its support in the forum of jurisdiction is then dependent upon the principle of comity, or that principle (the reason and nature of which has been before explained, §§76-78,) which gives admission to the effects of foreign laws, so far as natural circumstances of condition admit therein of the continuous existence of relations which first arose under the law of the former domicil; and the foreign law, creating those rights and obligations, may receive a personal extent under the authority of the sovereign of the new forum—the forum of jurisdiction. But the operation either of the law of nations— universal jurisprudence—or of the judicial rule of comity, upon the condition of alien persons, may always be contravened by the autonomic legislation of the supreme power. And the legal effect of each is also constantly subject to the limitation of a judicial application of rules, identified with the local law, (the internal law,) having universal personal extent. For if the local law attributes any rights, or obligations, universally within its jurisdiction,—i. e., to all natural persons, or to all natural persons in certain circumstances of natural condition, the possession of which is inconsistent with the relations formerly sustained by such persons under the law of their previous domicil, then the rights and obligations which, in those relations, constituted conditions of freedom, or its opposites, cannot, according to the general principles before stated, (§§ 77, 88,) be judicially sustained, nor receive a personal and international extent, under the authority of the sovereign of the forum of jurisdiction, either by force of comity—the judicial rule—or by being the effects of rules which may antecedently have been actually common among all nations, or have acquired the historical character of a law of nations.
§ 115. In determining what principles affecting the condition of persons domiciled under the local law, (or, in other words, what principles of the internal law,) are to be taken to have this universal personal extent to all natural persons within the national jurisdiction, the most authoritative indication is in such statutory enactments as may give this extent to the attribution of any right. Next in order are judicial precedents of