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basis of rights and obligations to be enforced within their own jurisdictions. In other words, the relations or actions created or allowed by a foreign law are customarily recognized to have been rightful, in and for its own domain; even when rights and obligations incident to those relations or actions are not maintained or continued in the forum of jurisdiction. Therefore, although the right of an alien master in respect to his slave, sanctioned by, or existing under the foreign law—the law of their domicil-should be disallowed in the jurisdiction to which they are alien, yet, under a judicial application of natural reason, (that is, irrespectively of positive legislation,) it will be held to have been jural or rightful, as well as legal, in the foreign country—the domicil of such master and slave: or it will, at least, not be held to have been a violation of rights which in the forum of jurisdiction may be attributed to the slave, nor the subject of legal remedy in that forum.
$120. By the same reasoning it would appear that even where, under the law of the forum, the right of the alien master created by the law of their domicil would not continue, or be maintained as against the slave, yet rights and obligations existing under the latter law as between the master and third parties, in respect to the slave, would still be recognized and maintained. The validity of the master's right in and for the place of his foreign domicil being admitted, would lead to a judicial recognition of the obligations of third parties correlative to that right. The right of civil recompense for violation of his right as master, in the place of his domicil, might, therefore, be maintained against third parties in a jurisdiction wherein the relation itself, as between the master and slave, could not continue. So, too, contracts founded upon the ownership of slaves in foreign states would be judicially recognized, and the rights and obligations growing out of them be judicially maintained in jurisdictions wherein, under, the private international law, the condition of slavery as between the alien owner and his chattel slave, or bondsman, could not continne.'
' But in some systems of municipal (national) law a character of immorality is ascribed to certain actions which prevents them from becoming, under the jurisdiction of those systems, the basis of legal rights and obligations; even though they may bave created such rights and obligations in and for the foreign jurisdiction where such action took place. Compare Robinson v. Bland, 2 Burr., 1084.
$ 121. The operation of law upon the relations of private persons is a consequence of their being actually within the territorial dominion of the sovereign state or nation from whom that law proceeds. But, as has been stated, ($ 54,) those circumstances which, in international jurisprudence, are technically called domicil, determine in many cases whether the condition of a person shall be controlled directly by the law of the jurisdiction (the internal law) in which he is found, or, indirectly, by that of some other to which he may have formerly been subject. In many instances, the intention of the person to acquire a new domicil will be held to vary the legal nature of his relations both in respect to persons and in respect to things. Servants, or slaves, either with or without their masters or owners, may appear in a foreign jurisdiction, (a jurisdiction other than that of their domicil,) either as aliens seeking a new domicil therein, or as temporary inhabitants, still continuing, in view of the law of the forum, to have their former domicil. But, in a judicial application of natural reason to the condition of either of these classes of aliens, the principles which have been herein before stated are equally of force. Whenever by the operation of these principles, or by positive legislation, the slavery of an alien person is continued after a change of domicil, it becomes a result of the municipal (in. ternal) law of the jurisdiction of which he becomes a domiciled subject. In the other case,—that is, when the domicil is not changed, it is, from the continuing alien character of the person, a result of the private international law of the same forum.
$ 122. It is always to be remembered that the international recognition of personal condition which has been considered in this chapter is only a judicial act, determined by general principles of jurisprudence, and that it is always subject both to the customary law on the subject (anterior judicial practice) which may have prevailed in the forum of jurisdiction, and also to the positive legislation of the sovereign of the forum, giving an original rule extending, or limiting, the entire judicial discretion of its tribunals. The action of the state, or nation, leing, as compared with the action of its tribunals, autonomic, or in
Schæffner : 8 31. Savigny : Heut. R. R., B. III., c. i., § 361 A.
SUPREMACY OF LEGISLATOR.
dependent of law, in admitting or rejecting a foreign law upon the ground of comity, or in receiving or repudiating a principle before ascribed to the law of nations—universal jurisprudence.
NOTE.— In connection with the province of the judicial officer in this respect, a principle cannot be forgotten by American tribunals which is no where so fully illustrated as in the jurisprudence which they apply; but in stating which, in an elementary essay, it may be well to cite an authority of foreign origin. Waechter, in a note to the passage herein before cited, (8 84, n,) after the words/" that the requisition of a constitutional form and the limits of constitutional power alone determine its validity”-i. e., validity of the statuten observes: (Tr.) “The determination of this must, unquestionably, appertain to the judge. That is to say-in our constitutional states—he is bound, in dispensing the law, to follow the legislative dispositions of the government only when they conform to the requisitions of the constitutional law. It is true that he is merely the servant and instrument of the law, (Rechtsgesetzes,) but, certainly, he is the servant of a valid law (Gesetzes) only. It is, therefore, both his province and his duty, before applying a rule which claims to be a law, or an exercise of the legislative function, to examine, according to the existing constitutional law, whether it actually is a law,—that is, whether it has those qualities which, according to the constitution, must belong to a valid law. If these are wanting, it is his duty not to regard the decree as a valid law. It is true that this has of late been denied by, &c., [citing a German writer.) But this opposite view would make the judge, in his function, the subject of the executive power, [that is, in a state where the executive and legislative functions are not clearly separated,] and destroy both his constitutional independence and the right of the citizen, which is, to owe a constitutional obedience, only, to the executive power,” &c., &c. [Giving the German authorities. ] CHAPTER III.
OF THE ESTABLISHMENT OF MUNICIPAL (NATIONAL) LAW IN THE
ENGLISH COLONIES OF NORTH AMERICA. PERSONAL EXTENT OF THE COMMON LAW OF ENGLAND.
$ 123. It has been shown in the first chapter in what sense it may be said, that the extent of territory over which any possessor of sovereignty shall exercise dominion is determined by public international law (S 51). When changes take place in the geographical limits of the domain so held by the possessors of sovereign powers, the same law, or more strictly, perhaps, those principles of the law of nations, universal jurisprudence, which enter equally into municipal and international public law, and are sometimes denominated the natural or necessary law of nations, may be regarded as determining the municipal (national) law which shall thereafter prevail in the territory thus transferred or acquired; at least until the new sovereign has exercised empire in establishing or promulgating law by positive enactments. Where such territory has been previously occupied by a nationality having a political organization, with sovereignty manifested in the promulgation of laws, it is a principle of the law of nations entering into international and municipal law, which, if not also a natural or necessary principle, has always been received in the customary jurisprudence of civilized states, that the laws formerly prevailing with territorial extent therein remain in force, and act as before upon all private persons within that territorial jurisdiction until changed
by the new sovereign;' with the necessary exception of the previously existing public law or law of political constitution, which is implied in the supposed fact of a change of dominion, and also with an exception which is based upon the jural character of states promulgating law as the rule of right, viz: that former laws become abrogated, by the act of acquisition, which are contrary in effect to rules which, by the tribunals of the new sovereign, are taken to have a universal extent; or which, it may be said, are taken to have moral force in human relations, as natural principles, independently of the will of the state; or which, in the language of Blackstone in a passage hereinafter cited, are taken to be part of “the law of God," as interpreted by the new possessor of sovereignty,--and so held to be universally applicable. Where the territory acquired has been previously unoccupied by any such power its future laws, that is, the laws which shall therein prevail as the territorial law, must originate in the authority of the sovereign acquiring it.
$ 124. It is a principle of the law of nations, contained in
* Bowyer : Univ. Pub. Law, p. 158. Sir Wm. Jones : Inst. of Hindu Law, Art. 203. “ In the part regarding the duty of the royal and military caste or Kchatriyas, it is laid down, that after a king has conquered a country, he ought to maintain the laws of the conquered nation as they have been promulgated." * * “The preservation of the Hindu law after the Mohammedan conquest is a remarkable fact, as the Mohammedan law has no provision resembling the laws of Manou mentioned above, but on the contrary does not tolerate the laws of a conquered nation."
Clark's Colonial Law, p. 4. Campbell v. Hall, Cowp. 209. Duponceau on Jurisdiction, p. 65. I Kent's Comm. (7th Ed.) p. 178, note.
2 Peere Williams, 75, (1722,) it was said by the Master of the Rolls to have been determined by the lords of the Privy Council, upon an appeal from the foreign plantation. * * * “3d. Until such laws be given by the conquering princo, the laws and customs of the conquered country shall hold place, unless when these are contrary to our religion or enact any thing that is malum in se, or are silent; for in all such cases the law of the conquering country shall prevail” To this extent only is the exception to the general rule true which is made in Calvin's case (17 Coke, R. 7)—"if a Christian country is conquered the laws remain, but if it be infidel, the laws of the infidel ale ipso facto abrogated,” etc. In Blankard v. Galdy (1694), as reported in Salkeld, 411, the court "held that in the case of an infidel country their laws do not entirely cease but only such as are against the law of God.” It would be difficult to find an illustration of such exception in the whole history of British conquest and colonization. For when lands occupied by savage tribes have been acquired, the country has been taken to have had no territorial law. In Campbell v. Hall, Cowp. 209, Lord Mansfield (1774) said: “The laws of a conquered country continue in force until they are altered by the conqueror; the absurd exception as to Pagans, mentioned in Calvin's case, shows the universality and antiquity of the maxim. For that distinction could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the Croisades.”
Whether laws allowing torture have been abrogated by British dominion, see Stokes on the Colonies, p. 11, Mostyn v. Fabrigas, Cowper's R. 169; Sir Thomas Picton's case, 30 Howell's St. Trials. Report of the Madras Torture Commission.