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316 ORIGIN OF INTERNATIONAL RELATIONS.
exercise certain political powers within specified jurisdictions, persons might within each be recognized as native or alien, temporary or domiciled subjects, in reference to any one such jurisdiction and its local laws, and persons whether domiciled or alien might he recognized as sustaining relations caused by their previous subjection to another of those jurisdictions.
§ 236. The term jurisdiction is used to signify not only the right, power, or authority of promulgating and enforcing law in respect to persons and things within a certain district or territory, but also the territory itself within which that right, power or authority is exercised. And the term is also frequently used in a sense including both these meanings; as where persons are denominated aliens in respect to a certain jurisdiction; meaning not only to the territory, but also to the laws prevailing therein, and the political power from which they proceed.
It has been shown in the first chapter, that when private international law becomes distinguished from the municipal (internal) law in any jurisdiction, it is by its application to persons ; and that it is based upon the recognition of certain districts of territory, as being under separate political power, constituting separate jurisdictions, and of persons as being alien or native in respect to one or the other of those jurisdictions; or, rather, upon the recognition of persons in one such jurisdiction as having rights or sustaining obligations in relations arising from a previous subjection to the law of another ; and that it has always, by its application, the character of a personal law.1 § 237. A simple subjection at different times to different jurisdictions being thus the foundation of private international law, the legal relations of even the domiciled inhabitants of one jurisdiction may sometimes be therein taken to be affected by a temporary subjection, without domicil," to the laws of another; as
1 Anli, § 53.
* According to what has been said before (§§ 54, 121,) the circumstance of natural or native birth, or the congenital circumstance of a legal naturalization, is that upon which the distinction of alienage is primarily founded. But, in the practice of nations, distinguishing between persons in respect to the laws which control their condition, it is the fact or facts constituting the technical relation of domicil rather than the natural fact or circumstance of birth, or an equivalent naturalization, which, in most instances, distinguishes the alien from other persons in the national jurisdiction, to which they arc all equally subject In other words, the distinction between domiciled subjects and subjects having a foreign domicil is more comprehensive, in private international law, than that between native or naturalized and alien born subjects, which last is more important in that part of international law which is herein calledpuo lie, concerning the rights and obligations of states to each other as distinct nationalities. 1 Acts of Union, for England and Scotland, 5 & 6 Anne, c. 8, (1706,) for England and Ireland, 89 & 40, Geo. 3, c. 67, (1800.)
BEFERENCE TO DOMICIL. S17
relations arising out of contract. Thus also a loss of personal liberty, for crime committed against the state to which the person has been temporarily subject, may, in certain cases, be recognized in the domicil of such person. This instance of international law, though affecting the individual right herein particularly considered, i. e., personal liberty, is however distinct from the international recognition of status or condition, which, according to previous definition, consists in the possession or non-possession of individual rights, with capacity for relative rights in relations towards other private persons. The persons whose condition under private international law is here to be inquired into, were, in the first instance, to be recognized as aliens to some one jurisdiction, by reason of previous domicil in another; and the question to be considered is of the subsequent continuation or alteration of their rights and obligations, created under the law of such domicil, in those relations which constitute status or condition.
§ 238. Although each colony of the British Empire was a part of the integral imperial or national domain, and under one imperial or national jurisdiction, yet, in being also under a distinct local government, it constituted, in respect to it, a particular local jurisdiction. Persons in the several colonies might be distinguished as being either alien, temporary, native or naturalized, or domiciled subjects, in reference to one only, or to both of these jurisdictions, and to the two several sources of law and jurisdiction, thus having concurrent existence in each colony. And in this view, England, Scotland and Ireland might each, before the legislative union,1 be considered as being in the same manner under a local and a national jurisdiction, and persons in any one of those portions of the original dominion of the British Empire might be distinguished as native or alien, temporary or domiciled subjects, in respect to one or both of the sources of law therein.
318 LAW APPLYING TO ALIENS. Those persons who were alien, either hy birth or by domicil, to the national jurisdiction of the empire, were necessarily such also in reference to any one particular jurisdiction. But since the domicil of any person, subject, by birth or by domicil, to the national jurisdiction, would also be a domicil with reference to one only of those particular jurisdictions into which the empire was divided, any English subject, by having a domicil in one of those jurisdictions, would, when within the territory of another, be alien in respect to it and its local law; though remaining under the same national sovereignty and under the jurisdiction of the same national law.
§ 239. Whatever rules may be applied as private international law in any jurisdiction to determine the rights or relations of alien persons, must depend upon the will of the political source of the municipal (national) law therein; since no rules of action can have the force of law within any territory except by the will of the supreme power.1
The status or condition of aliens in any one of the several particular jurisdictions of the empire, whether aliens to the whole empire or to that particular jurisdiction only, would be determined by one or the other of those sources of the municipal law which prevailed therein; viz., either the national or the local authority.
To ascertain then the law applying in any one locality of the empire to the condition of an alien of either of the above described classes, it is necessary,
First, to refer to the public law, or law of political constitution, to ascertain the location of the supreme legislative or juridical power over such persons and over their various relations, (i. e., the investiture of that power, either in the local or in the imperial legislature,) and
Secondly, to ascertain the actual rule of action proceeding from such power.
§ 240. It has already been necessary, in giving an historical exposition of the origin of the municipal (national) law in
'Ante, §§ 12, 86.
SOURCES OF THE LAW. 319
America, both public and private, to indicate the several political sources of power from which the laws affecting the condition of alien persons of each of these classes in the several divisions of the empire might proceed; and also to state some of the rules or principles actually applied to determine the condition of such persons, whether aliens to the empire or to any one of the several particular jurisdictions.1 For although those rules were there described as taking effect in the American colonies with the force and extent of municipal (internal) law, they yet had, from the first, an international effect, from the national character and political associations of the persons to whom they were applied and for whom they received a personal extent,— the character of personal laws.
It has been shown that, so far as the condition of persons alien to the empire consisted in such rights of persons as were incident to relations of external commerce and intercourse with foreign nations, it was determined by the authority held by the imperial, rather than by that held by the several provincial governments ;* while such was the distribution of power in the colonies, between the local and the imperial governments, that the condition or relations of the domiciled inhabitant of any particular jurisdiction were determined, partly by a law emanating from a local authority, and partly by a national law; the latter having, in reference to such inhabitant, the same force and effect in every other jurisdiction of the empire; determining, within each, the condition of such person, so domiciled in another jurisdiction of the same empire, in all relations falling within the scope of that national law while such person was in the place of his domicil.'
§ 241. It has also been shown that with the first establishment of law in the colonies, (whether proceeding from the imperial or the local source of law,) and with the first necessary recognition of persons as aliens, (either to the territorial dominion of the empire, or to the territory of England, and the law
1 Ante, Chapter V. VI. 'Ante, § 203. 'Ante, §§ 136, 137, 193.
320 THE DISTINCTION OF KACE.
having territorial extent therein,) a personal distinction existed in the application of the national and of the particular laws; according to which both the domiciled inhabitants of the several colonies and persons known as aliens, to the colonies and to the rest of the empire, became distinguished into two classes, standing in different relations towards the imperial and the colonial authority. This distinction was founded upon a difference of race, complexion, or physical structure, and, in some degree, upon differences of religious belief; and this distinction, in having been first judicially applied among persons known as aliens to the imperial dominion, or to the laws of England, was applied as private international law, both under the imperial and the local authority, and having been continued in the municipal (internal) law of the colonies, applying to the domiciled inhabitants of those colonies, it continued to distinguish them when appearing as aliens to the jurisdiction of any one particular colony or division of the empire.
§ 242. For the alien (to the empire) of white or European race, in being a native or domiciled subject of some Christian nationality,or of such a state as was a recognized participant in the jurisdiction of public international law, was regarded as being under the protection of that law which is an acknowledged rule of action among civilized nations, though not having the force of law, in the strict sense of the word, as a rule of which nations are the subjects: and whatever rights attached to such alien under such law were, so long as he continued in alienage, regarded as being under the protection of the imperial or national power, as well as under that of any particular jurisdiction within whose territorial limits he might be found;—since all relations constituting the national intercourse with foreign states were, of necessity, controlled by the imperial rather than by the provincial authority. And when such alien of European race had become a domiciled inhabitant of any one political division of the empire, his condition, and that of his posterity, was under the charters, and the various laws of naturalization,1 deter
1 Ante, 202.