450

POWER OVER ALIENS DISTRIBUTED.

native born inhabitants, by voluntarily abandoning those relations which they held under international law, and, with the consent of the sovereign power legislating within that national jurisdiction, passing under the exclusive control of its municipal (internal) law.

This incident of the extent or operation of municipal (national) law may be considered with reference either to foreign or to domestic aliens.

§ 391. Since within any State of the United States the municipal (internal) law proceeds from two sources, the foreign alien might acquire the relations of a native born citizen under each source of that law. But in that case, the changes of the character of an alien for that of a native inhabitant, in regard to each source of that law, would not necessarily be simultaneous or have any necessary connection. There is nothing in the nature of the division of sovereign powers between the several States and the national Government, nor in the fact that the powers held by each must be taken together in order to form the sum of sovereign national power, to prevent the States from granting, each within its own territory, to an alien resident any civil (social) or political rights within the scope of the relations determined by their separate share of sovereignty. Nor is there any thing to prevent the Government of the United States from granting, within the several States, to foreign aliens, the civil or political privileges of a native of the United States in relations established under the supreme powers held by itself. But, from the sovereign and separate nature of the powers held by each, neither, without special provisions in the Constitution to that effect, could alter the personal relations of aliens towards the powers held by the other; even while having territorial jurisdiction over them, nor give to them, in all respects, the character of its own native born subjects; who, by birth, are equally native to the jurisdiction of a State and to that of the United States. And, regarding liberty as consisting in the possession of rights under some possessor of sovereign power-neither could confer upon such alien liberty in legal relations determined by the powers belonging to the other.

LAWS APPLYING TO ALIENS.

451

Still less could a State, without agreement, give to a foreign alien the rights of a native born inhabitant before the local municipal law proceeding from the separate share of power belonging to another State.

§ 392. Although, upon his removal into another State of the Union, the relations of the native inhabitant of any one State would remain unchanged, under the national municipal law, he would still, as before said, be an alien in such latter State to the local law. A State might receive such persons-domestic aliens -into the condition of its natural born subjects. But this would depend upon its own will and election-its own view of the force of international law, as law in the imperfect sense,-unless the Constitution of the United States should contain provisions regulating such change of alienage in the case of those persons, and have, in this respect, international or quasi-international effect between the several States, with the authority and extent of national municipal law.

§ 393. When the relations or rights and obligations of aliens to the United States (foreign aliens) are to be determined, as a topic of international law, it is first to be inquired,-whether any and what rights or relations are determined for them by the Constitution, as a law affecting the rights of private persons, or as private law?

Next: What are the relations and rights of persons falling within the sphere of the national Government, and what relations are subject to the remainder of power vested in the several States ?

And lastly: What is the actual application by the State, or by the national Government, on either hand, of its municipal (internal) laws to aliens; or, in other words, what is its acceptation of the private international law applying to such aliens.

§ 394. When the relations or rights and obligations of domestic aliens are to be determined, it must first be inquired how far they are fixed by that national municipal law which applies to such persons simply as native or domiciled inhabitants within the jurisdiction of the national power; so that, whether the person be domiciled or alien in respect to such State, they

452

QUASI-INTERNATIONAL LAW.

continue the same in every State; and whether that national law restrains the personal application to them as aliens of the local laws of the State in which they appear as aliens, i. e., whether it has a quasi-international effect in determining those rights; the national municipal law being herein regarded both as a territorial and municipal (internal) law, and also as a personal and international law.

According to what has been before said, this law is to be found in the Constitution operating as private law, and in the legislation of Congress, under the constitutional grant of power to legislate for the entire domain of the United States.

§ 395. This, as a law affecting relations of private persons, is always private law. But it may also have, more or less decidedly, in many respects (in reference to many relations), the marks of public law, law operating on public or political persons, in controlling or limiting the action of the local juridical power of the State in reference to such alien persons; either by acting immediately on those persons, and directly determining their relations to other persons, (in which case it is private law,) or by first acting on the State as a political person, and determining its action in reference to such aliens; in which latter case the national law having international effect is rather public law causing the States to act on private persons: and the States, in their political capacity, are then to be regarded as the real subjects of the rule. Whether there can be in the Constitution any law, in the strict and proper sense, having such effect or operation, may well be doubted. But it will be shown that the existence of such a law in certain provisions of the Constitution has in some decisions been assumed, as a ground of a legislative power in Congress in reference to those provisions.

§ 396. If there are relations or rights and obligations of domestic aliens which are left undetermined by the national municipal law, having this quasi-international effect, it is then to be inquired what has been the actual application of the local municipal law of the various States, to such persons, by the States, individually or severally? Or,-in another form of expression, according to the definition of international law before

LAW IN THE TERRITORIES, ETC.

453

given-what is the private international law in the several States applying to such persons :—that law which is denominated international from the character of the persons to whom it applies; but which is law, in the strict sense, only because identified in authority with the local municipal law of each State.

§ 397. Since the Territories, the District of Columbia, &c., have not the political nature of a State of the Union, not being inhabited by a people historically known as the people of a State of the United States, the totality of supreme power over those Territories, &c., and the inhabitants, or the sum of all the powers of a national sovereignty, (which of necessity, by the natural or necessary law of nations, must be held by or invested in some political person or persons,) can be vested solely in the nation,—the people of the United States,—the only other possessor of sovereign power recognized by the Constitutionthe evidence of the possession of sovereign power. Therefore the exercise of any of the powers of a national sovereignty over those Territories, &c., is to be determined solely by the Constitution, operating as a public rule of action, which can be the only warrant for the exercise of any of the authority possessed by the United States as one nation.*

If that residue of sovereign powers which, within the limits of the several States, is held by the people of each is, within the Territories, &c., of the United States, held (by delegation, for the United States, or the people of the United States) by the national Government or by Congress, then those Territories, &c., may be considered as being in the relative condition of a State of the Union in reference to laws proceeding from the (residuary3) class of powers, so held by the national Government or by Congress. These several jurisdictions, though not governed un

That is, powers of the same kind as that class of powers which, in and for the States, are held by the people of the State severally, and called "residuary" or "reserved" powers, in distinction from those "granted" by the people of the United States to the National Government. Johnson, J., in Am. and Ocean Ins. Cos. v. Canter, 1 Peters', 546; "In legislating for them, [the territories,] Congress exercises the combined powers of the general and of a State Government.'

454

NATIONAL AND LOCAL LAWS.

der the political organization known in the public municipal law of the United States as a State of the United States, may have, or be under, a local municipal law, while they are at the same time, also, like a State of the United States, under the national municipal law which, as private law, has equal extent throughout the whole dominion of the United States. And that local municipal law will be, like the local law of the organized States, divisible, according to the domicil or alienage of the persons to whom it may be applicable, into municipal (internal) and international law.

Whether those provisions of the national municipal law which have the effect or character of international or quasiinternational law (public and private) will also have the same effect in respect to the Territories, &c., which they have in respect to the organized States, will depend upon the proper construction of those provisions, and the proper interpretation of the terms in which that law may be expressed in the Constitution.

§ 398. The distinction of the laws of the United States into laws which are either national or local in their extent, which distinction is founded upon the political character and territorial jurisdiction of the sovereign power from which they proceed is, as has been shown,' the most obvious basis for an analytical distribution of the various laws which may affect the condition of private persons. Each of these two parts would then again be divisible, in respect to the character of the persons on whom it might operate, into municipal (internal) and international law. The two branches of international law which would thus be made, might each again be divided with reference to the specific character (in respect to domicil) of the alien persons to whom it applied, into that law which determines the relations of "domestic" aliens and that which determines the relations of 'foreign" aliens, as those classes of persons have herein before been distinguished. But-from the mode in which a part of the private international law of any country is judicially ascer

· Ante, § 377.

'Ante, § 384.