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46 POSITIVE INTEBNATIONAL LAW.
classed with international rules of action in works which treat of that law of which nations are the subjects, because it is only in international relations, public or private, that they become subjects of judicial cognizance.1
§ 50. The second portion of international law consists in whatever rules of conduct nations may observe towards each other, or enforce between the individuals of whom they are respectively composed. This part of international law is more arbitrary, or has not that necessary existence which is ascribed to the first portion, being dependent upon the autonomic juridical action of states; it is, therefore, appropriately denominated positive, or practical international law.' But these international rules between nations are based, as also the municipal law of each, on the recognition of the definitions of their existence as nations: (which,by being so universally received, are judicially taken to belong to the universal principles, otherwise herein called law of nations.) The distinction in the use of the terms international law, and law of nations, which is to be here observed, is this:—international law is a law defined with reference to its jurisdiction, or application;—the law of nations is a law defined with reference to its origin, or historical character.'
§ 51. It is the first portion, then, of international law to which the existence, authority, and domain of any one state, or nation, is to be attributed in a legal point of view, and not those rules of action which are here called the second portion. Because, in the theory of jurisprudence at least, the existence and power of each nation is taken to be independent of those rules; or the rules themselves are a consequence of that existence, authority, and domain.
The laws, or rules of action for private persons, which are to prevail under the jurisdiction, when thus determined, of any state, or nation, are ascribed to the authority of the state as a politi
1 Reddie: Inq. in International Law, 2d ed., pp. 119—130. Vattel: Prelim., §8. Bowyer: Univ. Pub. Law, pp. 11, 12. Some writers may, however, have employed it to signify natural equity applied to the international relations of states. See 2 Browne, Civ. andAdm. Law, p. 13-15.
* By Von Martens: "Positives oder pracktisches Vfllkerrecht." Compare an enumeration of the various synonyms used by different authors to designate these two parts of international law in Amer. Jurist, vol. xx.; article by M. Victor Koucher.
'Reddie: Inq. in International Law, 2d ed., p. 410.
HISTORICAL ELEMENT IN LAW. 47
cal person, or to the possessor of that sovereign power in which the state consists, whether they are applied as municipal (national) or international private law; or, in other words, whether they are applied with or without reference to the existence, or juridical action of other states, or nations.1 These laws are the proper, or peculiar law of that state; and in being confined to its limits and jurisdiction are known as the local, or territorial, or national law; or, what has been termed the "municipal law" in English and American jurisprudence, at least since the time of Blackstone.
§ 52. An exposition of the law prevailing within the territorial domain of any one country, or nation, is, therefore, necessarily always historical;* consisting in a statement of the existence of a possessor of sovereign national power, and of the exercise of that power in promulgating rules of action for private persons, either by positive legislation, or by judicial action, under its authority; and the law is necessarily described both as public and private law.
§ 53. Whatever rules of action are enforced within the domain of any one state, or nation, as its local, territorial, or national law, may apply to persons within that jurisdiction, according to any distinctions which the supreme power of that state might recognize among them; that is, the local law, by being applied to different persons according to those distinctions, becomes distinguished into different personal laws.' These distinctions may arise from principles which are connected with
1 Bowyer: Univ. Pub. L., p. 156. "The general principle of modern times is that the territory determines the law, and the law of the territory regulates the property and contracts of all who inhabit the country. In this respect citizens differ little from foreigners, and national origin has no influence. (Savigny: Hist. R. L., French Tr., vol. i., p. 89.) We denote this state of things by the common expression, the law of the land, meaning the territorial law."
* Whewell: Elem. Morality, &c., B. ii., ch. vi., 209, 215. Reddie's Inquiries Element, &c., 24, 25. Hegel: Grundlinien der Philos. des Rechts, § 212. Tr.: "The science of positive law is to a certain extent an historical science, which has its beginning in authority, (or which begins by recognizing authority.")
Mackeldey's Compend., § 3. "Positive law is the law established by historical facts, or the sum of those principles which are acknowledged in a state as principles of law, and consequently have authority as such."
In the exposition, or teaching, of jurisprudence—the science of positive law—two schools are recognized—the analytical and the historical. But there is not any real antagonism between them. See Reddie's Inq. EL, p. 88.
'Ante, § 25. Duponceau on Jurisdiction, p. 24.
48 INTERNAL AND INTERNATIONAL LAW.
the existence of states and nations, or their mutual intercourse, and which are manifested, or employed in rules having an international application. In this manner, when the international law is applied, or enforced by any state, or nation, upon persons within its jurisdiction, and becomes identified in authority with the municipal (national) law thereof, it is at the same time distinguished as a personal law.1
In view of this difference of application, the private law prevailing within any national jurisdiction may be distinguished into municipal private law, (which, with propriety, may be called internal* private law,) and international private law, according to the character of the persons to whom it applies.
§ 54. To illustrate more fully this distinction in the application of the local, or territorial law of any one state to persons: —It is an axiomatic principle of universal law, included in that "natural and necessary law of nations," which was described as forming the first portion of international law, under the division herein before given, that the effect of sovereign power upon the legal relations of the person is co-existent with the presence of such person within the limits which the public law (international and municipal) assigns to the jurisdiction of the state, or sovereign. This actual presence, and the relation of subjection which is incurred by it, may commence either by the birth of the person, or by his entry from some foreign jurisdiction.
1 Reddie's Inq. in Intemat. Law, pp. 463-6. International, as well as municipal law, must also apply to things as well as persons; that is, the rights (with their correspondent obligations) which are determined by international law may be rights in respect to things; but whenever rights, or obligations, in respect to things, are ascribed to international law, as contrasted with municipal (internal) law, the law has a personal extent from the character of the persons who sustain the relations constituted by those rights and obligations.
* The law prevailing locally thus becomes distinguished into internal and international according to Bentham's terminology. Or it might be said to be distinguished as acting internally or internationally, according to "the political quality of the persons whose conduct is the object of the law. These may on any given occasion be distinguished as members of the same state, or as members of different states; in the first case, the law may be referred to the head of internal, in the second to the head of international jurisprudence." Bentham: Morals and Legislation, ch. xix., §2, (xxv.)
Bowyer's Commentaries on Modern Civil Law, Loud., 1848, p. 18. "Thusjurists of modern times have divided public law into internal and external. The former is that which regulates the constitution and government of each community, or commonwealth, within itself, and the latter is that which concerns the intercourse of different commonwealths with each other: this is properly known by the name of international 1 Bowyer: Univ. Pnb. Law, 151-3.
DISTINCTION OF PEB80N8. 49
Thus, there is a natural possibility that the same person may, at different times, be subject to different jurisdictions; and there is in every state a natural and necessary distinction between native-born subjects and alien-born subjects; which, so far, is a necessary, or axiomatic principle. But the different legal relations which make the legal distinction between native and alien subjects, or between temporary subjects and domiciled subjects, depend upon some rule of action enforced by the state.
The fact of being present within a particular jurisdiction, with or without concomitant circumstances, might be taken, irrespectively of the circumstances of native, or foreign birth, to be that which should determine the operation of the laws of a state upon persons within its territorial jurisdiction: in which case, the recognition of such fact becomes an axiomatic principle, in determining the relations of persons thus distinguished. A residence, or continuance, under certain conditions, to which it is not necessary here to allude more particularly, is, under the name of domicil, actually thus recognized: that is, it is actually taken to have a certain effect in determining the operation of the local law. The local, or territorial law of any one state or country might possibly make no distinction, between persons subject to its authority, in respect either to the circumstance of native or alien birth, or to that state of circumstances which is known as domicil: and if it were possible that there should be no recognition of legal rights and obligations arising out of relations caused by previous subjection to another dominion, there would, in that case, be no manifestation of international law, operating as private law.1 When the local or municipal law is spoken of as applying territorially, without reference to persons as alien and native, or alien and domiciled, it is contrasted with international law—taken in the sense of a rule of which states are the subjects.
But when the rights and duties of private persons within any national dominion differ according to the circumstance of domicil or alienage; or vary as they may or may not have been subject to a foreign jurisdiction, the local or national law 50 PERSONAL EXTENT OF LAWS. is spoken of as applying differently to the persons so distin guished: and in acquiring the character of a personal law, (in contrast with a territorial law,) may be itself divided into strictly municipal, (or internal), private law, and international private law; though each part rests on the same political authority: and the condition of private persons, whether regarded as the subjects of rights and duties, or as only objects of action, (ante, § 21), is a necessary topic of one or the other of these divisions of the local, municipal, civil, or national law of each country.1
§ 55. According to what has been before said, every law determining the relations of natural persons, whether alien oi native, is to be ascertained either from positive legislation, or by judicial recognition of laws founded in natural reason, and identified with the will of the state, (§ 29.) The autonomous decree (esto) of a sovereign power may attribute any rights or obligations, (being restrained only by the necessary conditions of things—§ 6,) to particular persons, or may attribute them generally to all persons within the territorial jurisdiction of that sovereign source of law.' The tribunal, which administers law as the pre-existing will of the state, is restricted to declaring what law is (videtur), and in the personal extent which it gives to laws must be guided by certain existent criteria.
The ascertained will of the state is binding on all within its jurisdiction; though it has unequal effect upon different persons; creating different rights and obligations, in relations in which they are the subjects of rights and duties, or the objects of action. The action of men in society being different, the relations, rights and duties of all cannot be alike.
But an individual or absolute right may be ascribed by the law of a country to any number of natural persons within its domain, though it must be exercised by each, relatively to different persons and things—the objects of action.
1 Mr. Reddle uses the term internal law as synonymous with that law which he calls the national law—Blackstone's municipal law,—and thus loses the benefit of the distinctive term internal to mark this division of the national (municipal) law according to its application to different persons. See Inq. Elem. &c., p. 97.
Compare Masse: Droit Commer., Tom. i., §37, and §§ 57-60, defining le droit civil, including le droit commercial.
* Compare State v. Manuel, 4 Dev. A Batt, N. C. Rep. p. 28.