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ATTRIBUTION OF LEGAL PERSONALITY.
antecedent tribunals representing the same political source of law; though, from the manner in which the extent of any principle is judicially determined, such precedents are hardly distinguishable-separately from the customary recognition of universal jurisprudence, (see ante, SS 99, 100.) In countries wherein jurisprudence has long been developed, the test of this universality of extent will ordinarily be found in one or the other of these sources of law-either the law of nations, or positive legislation. But if cases, affecting personal condition, are supposable in which these do not apply, it may be taken to be a legitimate result of the axiomatic principles of jurisprudence, rendered legally authoritative by the practice of legislating states, that wherever (in whatever national, or independent jurisdiction,) the juridical declaration of capacity for legal rights is not made by creating a relative condition of legal superiority for certain natural persons over other natural persons, but is judicially recognized as the statement of a law in the secondary sense of the word law, or of a mode of existence, antecedent to all rules of action embraced in the positive law of that jurisdiction, it has therein in that jurisdiction) the charaeter of a law of universal personal extent, which must be judicially applied as municipal (internal) law, and also as international law. Where, therefore, the local, or municipal law, operating as the internal, or territorial law, upon persons regarded as its native, or domiciled subjects, takes cognizance of them as legal persons, as well as natural persons, attributing to them capacity for legal rights and duties, simply as a part or incident of the attributes of natural persons, the constituents of society, it thereby declares, or recognizes a natural law or principle-a law in the secondary sense—which must be received and applied by its tribunals, or judicial officers, as a universal law in reference to natural persons appearing within its jurisdiction. And, in this case, no law of a foreign jurisdiction regarding a natural person as a thing, or chattel—the object of rights only, without capacity for rights---can be allowed by those tribunals to have international recognition; unless, by direct act of positive legislation, (statutes, or treaties, such law of a foreign jurisdiction, formerly binding on the alien, is al
ATTRIBUTION OF LEGAL RIGHTS.
lowed to take effect as a law personal to him, and exceptional to the local, or territorial law. The alien must be regarded, in all jadicial processes, like the native or domiciled inhabitants of the jurisdiction, as being possessed of all the rights which the local law attributes to natural persons who are not aliens, and as owing only those obligations which are derived from some law for legal persons, and of such a character that they may be recognized internationally without contravening in other respects the law of natural rights and universal application as judicially known in that jurisdiction.'
$116. But personality or capacity for legal rights might be recognized in all natural persons by the laws of one national jurisdiction, though relations might also be established, under those laws, which would give to one person a control over another, such as is inconsistent with the legal possession of personal liberty by the latter; and these rights of control and correlative obligations of subjection might be internationally recog. nized in other national jurisdictions, as the incidents of a relation between legal persons. Thus the loss of personal liberty under the criminal law of another state might be international. ly supported, while the personality of the individual whose freedom is compromised or denied is not disallowed. Or the relations of parent and child, guardian and ward, master and servant,—where the servitude of the latter is involuntary, though not of the chattel character,-might be internationally allowed in a jurisdiction wherein, on the grounds above stated, chattel slavery could be disallowed or ignored, under a judicial application of the private international law. But it is impossible to conceive of a legal attribution of personality without at the same time attributing some definite or specific legal rights, individual or relative (ante SS 45, 46.) Whenever legal obligations are attributed to a natural person, the law, which creates those obligations, must enable him by a legal capacity for choice and action, to fulfil those obligations,--recognizing such action to be according to a legal faculty or power of action,--and consequently recognizing a certain possession of legal rights. It would otherwise enable others to act in reference to him simply
* See ante, § 102.
UNIVERSAL ATTRIBUTION OF A RIGHT.
as an object; and so make him a chattel or thing, to which not even legal obligations can be attributed. Legal personality must consist in and by rights, (SS 43, 44.) The municipal (local or internal) law must make this recognition of personality by the attribution of some rights; though it is not necessary, and is, indeed, naturally impossible, that all persons should sustain similar relations. Some rights, however, may be attributed to persons which are not incidents of relations of specific persons to other specific persons, or which may be equally attributed to any number of persons; while others must be taken to be incidents of relations caused by laws having, necessarily, limited personal extent, (SS 55–57.) Where by the local or internal law all domiciled inhabitants are recognized as legal persons, irrespectively of the possession of relative rights, ordinarily so called, ($ 40,) and that recognition of legal personality is made, not simply as the attribution of a naked right to life, protected by public criminal law, vindicating the welfare of the state, ($ 45,) but by attributing definite individual or absolute rights, protected by the private law of remedy,—there the local law, attributing those rights, must be looked upon as the recognition of, or statement of, a law in the secondary sense,-a natural law; and those rights be taken to be the incidents of a state of things existing independently of rules of action established by the state. Being of this character it may be judicially taken to be a law of universal personal extent ; that is, one applying to all persons within the power or recognized territorial jurisdiction of that law, and those rights may be attributed to all, as being natural or primordial rights,—that is, rights incident to the condition of persons in the simple primordial relation of individual members of civil society. Where the right of personal liberty is thus attributed by the municipal (internal) law to each individual domiciled within the limits of a state or national jurisdiction, it must be taken to be attributed to those natural persons under a law intended, by its political source, to be a law of universal personal application; which is to be judicially taken to apply to all persuns within the territorial jurisdiction of that law, irrespectively of their domicil or their previous subjection to other laws or jurisdictions; and this attribution of that right
will be made whenever the condition of a person is to be determined under the private international law of that jurisdiction.'
$ 117. But where the local (internal) law itself supports relations, between its domiciled inhabitants, in which some persons do not enjoy the rights of personal liberty, or are placed in a condition of obligation, correlative to the rights of others, which may be called a condition or status of slavery or bondage, there the local law does not attribute the right of personal freedom, nor any other right,-inconsistent with such condition of bondage, -universally, or to all natural persons. And, according to principles before stated, the slave or bond condition of an alien, caused by, or existing under the law of his former domicil, will receive judicial support, or become realized, actualized, or carried out under the “comity of nations” or the judicial rule which is known under that name: being then a legal effect ascribed to the private international law of the forum of juris
'Though there may be a great want of harmony among the writers who, distin. gaishing between real, personal and mixed statutes, have attempted to give general rules for their international recognition, they have unquestionably agreed, to a very great extent, in saying that the status, condition or capacity for rights of a natural person is every where judicially determinable according to the law of his domicil. See Story: Conf. L. ch. iv. and the older authorities there cited. Savigny : Heut. R. R. B. III. C. i § 362. Fælix: Dr. Int. Pr. & 29.
This principle has been so often judicially applied that, subject to certain exceptions, more or less generally admitted, it may be regarded as a rule of the customary international private law of civilized states, having the character of a rule of universal jurisprudence. (See ante § 93.) But no one exception to this rule is more harmoniously recognized by the authorities than this,--that the condition of involuntary servitude established by the law of the domicil, will not be recognized in another independent territory wherein such a condition is unknown to the local law. See Story : Conf. L. S 96. Savigny : B. III. c. i. $ 849; and $ 365, A. 7. Wæchter: Archiv. Bd. 25, p. 172. Schaffner: $ 34. Fælix: Dr. Int. Pr. $ 81, note. Phillimore : Internat. L. p. 335.
These authors, however, do not now explain how the tribunal is to know that the law which it has to determine and administer forbids, in this case, the operation of the general rule. They either state the exception as one founded on the customary international law of all states, or of a certain number of states, or of some one state, (making it a rule of some one national law,) or else they assume that the tribunal will derive it by a subjective conception of the will of the legislator or juridical sovereign. In other words, they assume that the tribunal must declare the existence of such a condition contrary to jnral rules In the first alternative it is evident that the customary international law, either of all states, or of a number of states, or of some one state, on this point, may be different at different times; in the other, that it is the moral judgment of these writers themselves which makes the rule, and that it is an a priori assumption on their parts.
And there is another deficiency in this reference to the law of the domicil ; for since the domicil of a person is determined, in a great degree, by his own act of choice, (see Savigny : Heut. R. R., B. III. c. i. $ 360,2,) the question of domicil may depend upon the status ; for since a slave cannot, as such, elect à domicil, the question of his domcil may involve a prior determination of his status.
EFFECT ON CONDITIONS OF BONDAGE.
diction, that is, to a rule identified in its coercive authority with the rest of the municipal (national) law.'
$ 118. But though a condition of slavery or bondage may exist under the local (internal) law of the forum of jurisdiction, it may therein be considered accordant with natural reason in respect to certain specific local circumstances; being the effect of a law applying to a portion of the domiciled inhabitants in reference to the existence of those circumstances only, and having a peculiarly local or national character. And, notwithstanding the existence of this slavery or bondage, there may be, in the municipal (national) law of the same jurisdiction, a general or universal attribution of personal liberty and other rights inconsistent with the condition of the alien under the law of the foreign state, to all natural persons who are not in those peculiar circumstances of local character by which, or in reference to which, the slavery existing under the internal law is legalized, i. e. declared jural-consistent with natural reason. In this case the slavery of the alien could not be judicially supported on the ground of comity—the rule so called ; because still contrary to principles having (with this recognized exception under the internal law) universal extent within that jurisdiction; even though the local slavery should constitute a status -a condition of rights and obligations-very similar in its social consequences to that existing under the foreign law.
$119. But though the bond condition of an alien should not be maintained and continued under the law of the forum of jurisdiction, because contrary to a universal attribution of personal freedom under the local law, it does not follow that that condition would not, under the juridical power of the same forum, be recognized to have been lawful in the place of his domicil—the foreign country. If, indeed, it is not a necessary consequence of fundamental principles, yet it has always been held, in the customary jurisprudence of every country, that the jural character or rightfulness of every effect of foreign law shall be admitted at least so far as that effect is confined to the national jurisdiction of that law; whatever may be the juridical opinion of other sources of law respecting such effect as the
* Compare ante 8 68, note.