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AN INTERNATIONAL RELATION.
Under the municipal (national) law of the United States, there may therefore be aliens to the whole Union, who, in the view of designating them by brief terms of description, may be termed foreign aliens, and aliens to a State only, who may be termed domestic aliens—a distinction similar to that existing during the colonial period between aliens to the empire and aliens to a colony ;' and the several States of the Union may sustain, as distinct polities, an international relation to each other, and to other possessors of supreme national power ; and the maxims, or rules of action constituting international law, are applicable to the exercise of the sovereign powers held by them.
$ 385. The maxims of international law, public and private, applied to the relations of the several States toward each other, constitute, therefore, a part of the national municipal law of the United States. The propriety of considering any law as being international, and at the same time a part of the national municipal law, (law limited to the territorial extent of the United States,) arising from the fact, that the several States do possess independent and sovereign powers, and that the possession or distribution of those powers, is determined by the Constitution; which is itself national municipal law.
$ 386. From the nature of the political bodies or persons upon which it operates, international law is law only in an imperfect sense, for such bodies or persons; and, in its effect upon the rights and relations of private persons, that is, when it becomes private international law, it has the force and authority of law in the strict sense only by being enforced by the source of that municipal (internal) law, whose application to persons it is said to limit.?
In a state or nation wherein the sum of national state power, or the entire sovereignty, is concentrated in one political unity, and in which, of course, all municipal law proceeds from one and the same source, the modification of every part of that law in reference to aliens, (which modification is the private inter
national law as received within that jurisdiction,)' depends upon one and the same possessor of sovereign power. If within a single state or nationality the sum of sovereign powers can be divided between different depositories, each of which is a source of municipal law, the question would arise,-by whom is the modification of those laws in respect to aliens, to be made ? or,—from whom does the international law, which regulates the application of those laws to aliens, proceed ? Within the limits of any one of the United States, all persons are subject to a sovereignty divided between the national Government and the State ; and each is a source of municipal law for that jurisdiction. The powers held by each of these being sovereign, the laws proceeding from each affect, according to their purpose, all persons found within their assigned territorial dominion ; and the application of each of those divisions of municipal law to the rights and relations of aliens would be fixed, for each, by its own sovereign source. Or to express the same somewhat differently,—the international rules modifying the application of either of these divisions of municipal law to the relations and rights of aliens, would be those allowed by the originating source of that division of municipal law. Those rights and obligations of persons which were under the control of one of those sources of law, in the case of native-born subjects, would, as rights and obligations of an alien subject, be determined by the same power, that is, the same source of law,
$ 387. But it is only foreign aliens, who, within any State of the Union, are aliens at the same time towards the jurisdiction and forum of each of these divisions of municipal law and their respective sources. Domestic aliens are such as are always at the same time native or domiciled subjects of the national law. In the case of the first, that is, the foreign alien, the application of both parts of the municipal law, the national and the local, is to be considered : in the case of the second, that is, the domestic alien, only the application of one of those divisions—the local. This modification of the municipal laws of
Anto, p. 65.
the United States—in their application to aliens of either class—constitutes the private international law prevailing in and for the United States ; being still law only in an imperfect sepse, when distinguished, in respect to its authority, from the municipal law which it modifies; since the so-called international law, in applying or restricting the municipal or local laws of any jurisdiction, still derives its legal force from the source of the local law.!
$ 388. But although that application or restriction depends, for its ultimate authority, upon the source of the municipal law, it may also be made judicially by rules derived, as a law of natural reason, from the general practice of nations, or from the writings of jurists who have analyzed that practice and shown the mode of its application in supposed or actual cases; and as such may be distinguished, in any particular state, from the municipal law, in its origin and juridical basis, as well as in its operation upon a particular class of relations.
It is, however, important here to recur to a distinction in the nature and authority of those rules of action, which together may be called private international law. All law applying to private relations and personal condition is in a great degree public as well as private law. Of this international law, thus applied to private relations, a portion is preëminently public, in being connected with the very nature and mode of existence of all sovereign states, or of all possessors of sovereign power, as has been shown in the first chapter, where this portion has been described under the nature of “natural or necessary law of nations."
Since, therefore, the several States and the Government of the United States are the possessors of sovereign powers within their determined geographical limits, this portion of international law enters of necessity into the political Constitution of the United States, and forms a part of the national municipal law, and is constantly operative.
These principles or maxims, whether applied as municipal
or as international law, are necessarily the same, or have the same legal force within the jurisdiction of every possessor of sovereign power. But the actual application or modification of the municipal laws of any one jurisdiction, when applied to the relations of aliens, is itself private international law, (from the character of the persons to whom it applies, which character is fixed by the maxims last above spoken of,) in the jurisdiction in which it takes place. And since that application or modification depends, within any independent jurisdiction, upon the will of the sovereign source of the municipal law for that jurisdiction, and may be different in jurisdictions under separate sovereigns, therefore this portion of international law may be said to vary under different sources of municipal law. And, in being identified in authority with the municipal law, it may truly be considered as a part of that law; though it arises from the fact that there are separate possessors of sovereign power existing under necessary conditions, and that there are actions and relations of persons which cannot continuously exist under the exclusive control of any one possessor of that power, and which therefore have an international character. Now since the several States have separate jurisdictions or domain, in which they have sovereign powers to determine the relations of private persons therein, they may have a different practice in the application of their municipal laws to aliens. Or, it may be said, their municipal laws may differ in their recognition of the relations of aliens derived from other laws. Hence a portion of the private international law may not only be different in the different States, but must be classed with local and not with national law.
$ 389. The Constitution of the United States, in being the supreme public law and the evidence both of the location of sovereign powers and of their extent and limitation in respect to private persons as well as to territory, takes effect on the persons, above described as aliens, by determining the sources (political persons) from whom the private international law, above defined, shall proceed.
* Ante, $ 10.
The Constitution might contain provisions directly establishing the absolute or the relative rights of aliens of either of the classes before described, i. e., either foreign aliens or domestic aliens, and limiting to that extent the powers of the national Government or those of the several States to affect the legal condition of such persons. Such provisions in their source and origin would be identified with the national municipal law; though being founded on a recognition of persons as aliens, they might be called a part of the private international law. In whatever degree such provisions might recognize private persons as foreign citizens or subjects—that is, persons within the dominion of the United States, not only alien to the United States, but sustaining relations to foreign states or nationsthey would be nothing more, as a law, (rule of action), for the nation, than the voluntary reception of a rule of international duty by the supreme power of the nation, and alterable at its will.
So far as such provisions might limit the application of State laws to persons who are aliens, either foreign or domestic, in respect to State jurisdictions, they would have an international effect or character by distinguishing those persons from native or domiciled subjects of those States. But, being law throughout the United States, independently of the will of the single States, as distinct political communities, the extent or personal jurisdiction of whose laws they would control, they would be law in the strict and proper sense, national municipal lawoperating on all persons within the United States, irrespectively of the will of the several sources of local municipal law, and therefore not international law between the States or for the States, in that imperfect sense of the term in which international law prevails among independent nationalities.'
$ 390. Among the necessary incidents of the existence of sovereign nations or states is the fact or axiom, (natural or necessary law of nations,) that aliens, under any system of municipal law, may acquire within its jurisdiction, the character of