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LAW-PUBLIO AND PRIVATE.
$ 25. By regarding states, or sovereign powers, as determining either the laws of their own existence, or the rules of action for persons subject to their supremacy, international and municipal (national) law may each be divided into two parts—viz., public and private ; though, since the relations of individual persons are in the end the objects of each division, the distinction cannot throughout be accurately observed.' It is, perhaps, more correct to say, municipal (national) and international law may each be distinguished as either public or private law, according to the public or private character of the persons whom it affects.'
That may be called private municipal (national) law which determines, within the limits of a state, the relations of persons towards each other in all incidents of the social state distinct from the political existence of the supreme power.
The public part of municipal (national) law is that by which the supreme power defines or asserts its own nature, bounds, and purposes within its own limits; and the investiture or seat of that power; either, as existing undivided, or centralized in a whole people, or in a larger or smaller portion of it, or in a single family, or person; or, as being divided and distributed, according to its objects, among various depositaries.
Mackeldey's Compend. Introd., § 8. “With respect to its object, all positive law may be divided into public and private law. The public law (jus publicum) comprehends those rules of law which relate to the constitution and government of the state; consequently, it concerns only the relations of the people to the government, The private law (jus privatum) comprehends those rules which pertain to the juridical relations of citizens among themselves.” This division of the law into public and private is found in the Institutes, and observed principally in the writings of the civilians. If not very philosophical, or distinctive, it is convenient, especially in treating of conditions of freedom, or its opposites; which are spoken of in a political, as well as a social connection. It is not, however, essential that the subject of jurisprudence should be thus divided. Austin, in Prov. Jurisp., Appendix, lxi., observes: “As I shall show, also, every department of law, viewed from a certain aspect, may be styled private; whilst every department of law, viewed from another aspect, may be styled public. As I shall show further, public law and private law are names which should be banished the science ; for since each will apply indifferently to every department of law, neither can be used conveniently to the purpose of signifying any." As I shall show, moreover, the entire corpus juris ought to be divided at the outset into law of things and law of persons; whilst the only portion of law that can be styled public law with a certain, or determinate meaning, ought not to be contradistinguished with the law of things and persons, but ought to be inserted in the law of persons as one of its limbs, or members."
Mr. Reddie: Inquiries Element. &c., 261-2, regards the distinction between public and private law as essential in every systein.
Savigny: Heut. Rom. Recht, B. i., c. 2, $ 9. The German term bürgerliches Recht corresponds to private law. Heffter: Europ. Völkerr., $ 37.
The private international law' determines the relations of individuals towards other national authorities or jurisdictions than that with which by the public municipal and international law they are primarily associated as subjects; and constitutes, in connection with the private municipal law, the rules of ordinary peaceful intercourse of nations as composed of private individuals.
Public international law is that which concerns the mutual relations of sovereign states or powers, as such; determining the nature of such relations, and, for the purpose of maintaining them, furnishing the rules of diplomatic intercourse and military arbitrament.
By these two divisions of public law, in various forms of expression, have been determined the territorial limits for the exclusive sovereignty of different nations, in legitimating acts of force, or agreement, as being rightful in their own nature, or in their existing results.
$26. The distinction of the law as being municipal (national) and international is founded on the separation of society into states occupying certain distinct geographical limits, or portions of territory: the two branches, municipal (national) and international, each contemplate the agents and objects of action according to the territorial jurisdiction under which they may be found. The international law recognizing states as having authority within certain territory, and persons as primarily subject to one or another system of municipal (national) law according to their locality. In this view laws are territorial in their nature, as having effect within certain geographical limits.
But law is always in its nature personal, or a law for certain persons. Jurisdiction is a term signifying the authority of law over a certain territory, or over certain persons; but since the action of persons must always be the essential object of all laws, the jurisdiction of laws over a certain territory means over all persons within that territory.
1 The use of the term Private International Law is now very generally received; vide 1 Kent's Comm., p. 2, referring to M. Victor Faucher. See, also, an article by the latter on Private International Law, in Am. Jurist, vol. xx., p. 33. Story: Conf. Laws, p. 9. Phillimore : International Law, Pref. xv., and p. 12. Felix: Tr. du Droit International Privé, $ 1. “Le droit international se divise en droit public et en droit privé." Schaffner: Entwicklung des Internationalen Privat Rechts; Frankfort, 1841. Heffter: Europ Völkerr., $ 38. Waechter, in Archiv. f. civil. Praxis, Bd. 24, 25.
And though laws are known as rules having a coercive force only in and for some particular geographical district, they may be spoken of, or classified and distinguished, by their application to particular persons. Laws in establishing relations among men, necessarily establish differences between them as the subjects or objects of the rights and obligations composing those relations, and persons under any system of law may be classed according to the differences which it recognizes among them; and the law itself may be distinguished as attaching to certain persons, or as being divided into different personal laws, as well as being the territorial law of some national jurisdiction.
$ 27. This distinction of laws as personal may obtain both in national (municipal) and international law; and it is essential when those divisions are contrasted with each other as the constituent parts of private law-i. e., law applying to private persons. The national (municipal) law, which, according to the definition of it before given, applies to persons as the law of a certain territory, may create a variety of relations for different individuals; and when the international law (which is law in an imperfect sense only when states are regarded as its subjects) is applied or enforced by some state within its own territory, and becomes a law acting on private persons, it is necessarily applied as a personal law; because it is applied by recognizing persons as connected with different nations, and by way of exception to the territorial, or municipal law of some one state. So far as it exists distinct, within any one jurisdiction, from the national law thereof,-it applies as a personal law.
So far as any legal principles which are included in the universal law, or “law of nations," establish relations for, or between particular persons, they also may be considered as a
? Hobbes: Leviath. De Civitate, c. xxvi. "Legum autem alia civibus statuitur universis ; alia certis provinciis; alia certo hominum generi; alia homini quandoque singulari.” Story: Conflict of Laws, $51. Bowyer's Univ. Public L., p. 144-7. Hamilton's Hedaya : Introductory Disc., respecting personal laws in Hindostan; and Stat. 21, Geo. III., ch. 70, relating to Inhabitants of British India. Sir Wm. Jones : Inst. of Hindu Law, art. 203. Savigny: Geschicte d. R. R. im Mittelalter, Bd. i., p. 115. Canciani: Leges Barbarorum Antiq., vol. i., p. 345. SachsenspiegelSchwabenspiegel: Ancient Collections of the customary law of the Saxons and Suabians. The jurisprudence of the Middle Ages was characterized by the personal extent of laws; and, as matter of history, the personal extent of law has been anterior to its territorial extent. See Savigny : Heut. Rom. R., $ 346.
personal law, taking effect by their recognition by separate states, or nations, each applying them in municipal, or international law, as before defined.
$ 28. Although it is herein before assumed that natural law has no recognition in jurisprudence as legally authoritative, except as it is supported by the power of society, or of the state, and therefore, when legally or judicially operative, must be identified with positive law, yet it is also considered as being true in point of fact that all sovereign states have acknowledged in some form the pre-existence of natural principles of right, and as the originators of positive law have claimed to correspond with them. Among authors and legislators these principles have always been recognized under names indicating the difference of their origin from that strictly called positive law, such as the law of nature, the divine law, the law of right reason, &c.'
Whether all interpretation of these principles, given by sovereign states in their municipal laws, can be considered as actually corresponding with the real divine, or natural rule, which they suppose to be pre-existing, may be judged from the various decisions which successive generations of lawgivers have passed on the acts of their predecessors, each in turn founding their own judgments and corrections upon a claim to more just views of truth and right reason.
$ 29. The application of jurisprudence to the relations of persons and things is in most modern states made by judicial tribunals, distinct from the supreme legislating authority of the state. But whatever rules or principles such tribunals may apply as law, they apply them as being the will of the supreme authority, and as being themselves only the instruments of that will. The will of the state is to be ascertained by the tribunal in one of the following methods :
First. Direct, or positive legislation, is the first and ruling indication of the will of the state, whether it acknowledges or refers to any rule of natural origin or not.
Second. Since the will of the state is to be presumed to
accord with natural law, where the positive legislation of the state does not decide, the tribunal must ascertain the natural law which is to be enforced as the will of the state.' But this law can only be determined by such criteria as are supposed to be recognized by the supreme power of the state, if such criteria exist; and this law when so determined becomes identified in its authority with positive law.'
If a state is supposed to be in the commencement of its existence as a state administering law, or governing by law, the only exposition of this natural law would be the reason and conscience of the judicial tribunal.'
$ 30. But since every judgment of the tribunal which has been executed and upheld by the power of the state must be received as accordant with its will, every such judgment becomes an indication of the natural law, as received by the state, and, therefore, equal in authority, for the judgment of future tribunals, to the law received by positive legislation. Tribunals established by the state have, therefore, of necessity, a quasi-legislative power; or—the tribunal, the object of whose institution is to apply the law given by the state, is incidentally a source of law.'
But there is this difference between its powers in this respect and those of the state itself, that the latter is not, in any legal
To use the terms of Roman jurisprudence—the law proceeding from the legislator is expressed by esto; that proceeding from the tribunal by videtur. Bacon de Aug. Sc., Lib. viii., c. 3, 10.Aphorismus 32. “Curiæ sunto et jurisdictiones quæ statuant, ex arbitrio boni viri et discretione sana, ubi legis norma deficit Lex enim, ut antea dictum est, non sufficit casibus sed ad ea quæ plerumque accidunt aptatur. Sapientissima autem res Tempus, (ut ab antiquis dictum est,) et novorum casuum quotidie auctor et inventor."
2 Ram on Judgment, p. 2: “A judgment that is constructed of certain materials which are law, and is, when delivered, a part of the law of the land." Legislation is first in respect to authority, but in the natural order of existence the judicial rule appears first. Reddie's Inquiries, &c., p. 110-112.
3 See Encyc. Am., vol. vii., pp. 576, 580, 586. Appendix ; Law, Legislation, Codes : by Judge Story-do. p. 584. "The legislation of no country probably ever gave origin to its whole body of law. In the formation of society, the principles of natural justice and the obligations of good faith must have been recognized before any common legislature was acknowledged," &c. Cushing : Introd. to Study of the Roman Law, Boston, 1854, p. 22.
Reddie's Ing. Elem. &c., p. 193-5. Bentham, objecting against this source of law, calls the common law, a law ex post facto : see Papers relative to Codification, No. I., $ 3, and Reddie's Inq. Elem. &c., Suppl., p. 104. Dig. L. i., Tit. 4, § 38. Consuetudinem, aut rerum perpetuo similiter judicatarum auctoritatem, vim legis obtinere debere.