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CHAPTER XV.

OF THE NATIONAL MUNICIPAL LAW OF THE UNITED STATES THE SUBJECT CONTINUED OF THE PERSONS WHO MAT APPLY THAT LAW BY THE EXERCISE OF JUDICIAL POWER.

§ 437. Under every form of government the investiture of the power to apply the law is a circumstance to be considered in determining those conditions of private persons which may be established under law. It may here be assumed that, in a republican government, this power should always be distinguished, in its exercise, from the power to promulgate laws— the legislative or juridical power. The coercive application of the laws of a country is by the instrumentality of ministerial or administrative functionaries co-operating with the judicial. It may be difficult to distinguish, in every instance, between the persons so co-operating, as being either administrative or judicial officers. But in a government wherein the three functions of sovereign power are separately invested, the judicial function becomes the test of the administrative or ministerial.'

§ 438. Whatever may be the intended operation of the national municipal law of the United States in causing rights or obligations, incident to conditions of freedom or its contraries, in

1 But legislative assemblies are considered as holding the judicial function to a certain extent, (1 Peters' R. 668,) with the powers incident to courts of law; in the exercise of which their judgment is final, whether the occasion for it arose in the course of the legislative or of some other function. Cushing's Law of Legislative Assemblies, Part III. ch. iii, iv. In 2 Kent's Comm. 30, note, the author seems to think that the American legislative bodies are (in the absence of any constitutional provisions) as uncontrollable in this respect as the English houses of parliament.

OF THE JUDICIAL POWER. 487

private persons, the investiture of the judicial function, by which its application as a coercive rule is to be determined, is an important incident of those conditions.

In the previous chapter it was necessary to consider the relative extent of the judicial functions derived from the United States and from the several States, in applying the Constitution operating as the supreme public law and the evidence of the location of sovereign juridical power. The question, of jurisdiction under the national municipal law, which is here presented, is also a question of the public law; although here regarded, mainly, as one of private law ; that is, one in reference to the relations of private persons.

§ 439. This question, respecting the exercise of the judicial function in carrying into effect the national municipal law, arises from the fact that, within the limits of each State of the Union, the sum of sovereign power over the territory of such State and all persons and things therein is divided between the particular State and the national Government of the United States in their national capacity; and that, since the powers held by each are sovereign in their nature, the governmental organization of each must include tribunals for the execution of the law derived from the powers so held by it.

Now, though the tribunals thus constituted by these coordinate possessors of sovereignty have jurisdiction over the same territory and the same persons, the tribunals deriving their authority from one of them will not, necessarily, have the power to apply the law proceeding from the juridical powers held by the other.

§ 440. Since the three functions of political power must be united in the hands of its ultimate possessor, (if it is sovereign political power,)1 it is evident that, in order that the powers of each of these two political entities or personalities may be actually sovereign and independent, the judicial function, for the administration of the law proceeding from either, must be exercised by its own instruments. By the concurrence indeed of the two political sources of law, the tribunals ap

1 Ante, p. 424.

488 CONCURRENT JUDICIAL POWER.

pointed by either one might administer the law derived from the legislative or juridical power of the other; in which case the judicial function of each would merely he exercised by the same persons; while still having an essentially independent political existence, or being still derived from different political sources.

§ 441. If this question of the exercise of judicial power in applying the national municipal law be thus made with reference to the jurisdiction of the State courts, it becomes equally a question of the local municipal law of those States, the subject of the next chapter; as it is here a question of the national law.

§ 442. The law, whose judicial application is to be here considered, includes that which has an international effect between the States, (being herein distinguished from other portions of the national law by the character of the persons to whom it applies,) and which is to be separately considered, in succeeding chapters, under the name of the domestic international law of the United States; or, at least, it includes that portion of that international law which has a g-wasi'-international effect between the States, in being derived from the Constitution and identified with the national municipal law in its authority.1

§ 443. In the sixth Article of the Constitution of the United States it is declared, that "this Constitution and the laws of Congress made in accordance with it shall be the supreme law of the land, and all State courts shall be bound by it, any thing in the laws of the States to the contrary notwithstanding." And since the several States, or the people of the States, who within their several State limits possess in severalty certain sovereign powers, united in establishing the Constitution of the United States and in authorizing Congress to legislate, for certain purposes, with national extent, it might be argued, from this fact alone, that the national municipal law is the legislative will of each several possessor of State power.* It would seem, therefore, that the judicial tribunals under that State power would have jurisdic'Ante, § 402, I. » 1 Calhoun's Works, p. 252.

INDEPENDENT JURIDICAL ACTION. 489

tion to apply the national law, as well as the law which rests solely on the separate (reserved) powers of that State, whenever the persons and things affected by such national law should be found within the territorial forum of their jurisdiction.

§ 444. But in establishing the Constitution of the United States and in so exercising power jointly, or as one nation, the people of the United States have created a Government and invested the powers held by them jointly, orin their national capacity, in that Government; to be exercised by the three functions of sovereignty, as powers originally sovereign in its hands.1 Now, in order that the judicial function of the national Government in reference to the national law may be independent of any application of that function derived from the State powers, it is evident that the national Government must have an entire possession or exercise of such judicial power as is requisite for the application of the national law, and, hence, the power, at its option, of exercising it by instruments of its own appointment. The several States and the Government of the United States are altogether distinct in the possession of their legislative or juridical powers over the action of private persons, and the law (private law) proceeding from the one must be judicially administered independently of the judicial function held by the other. Or, if the laws resting on the powers of the United States and the laws resting on the powers of the several States may, within the territorial jurisdiction of a State, be together administered by the tribunals of either one, such exercise of the judicial power must be supposed to be consistent with the admitted distribution of sovereign power between the two sources of law which is evidenced by the Constitution of the United States.

§ 445. An exception to this may be supposed to exist under the clause in the second section of the third Article, which describes the judicial power, vested in the Supreme Court and such inferior courts as Congress may establish, as extending to cases between certain persons; since such cases may involve the determination of rights and obligations as legal effects origi

1 Ante, §. 360.

490 CONCURRENT JUDICIAL ACTION.

nating under, or created by or made to exist by the juridical exercise of State powers.l

But there is not here any actual exception, since, by this determination of the extent of the national judicial power, the rule which governs these cases only becomes identified in authority with the national law, though it may have originated in the juridical will of one of the States; and, when applied in such a case, it takes effect as, or may be classified under, the gwcm'-international law (a part of the national law) by the character of the persons upon whom it acts, or whose rights and obligations it determines. The rule of action determining the rights and obligations of private persons in these cases is still supposed to be taken by the national judiciary as one resting on the several legislative (juridical) will of a State.2

Ante, §§ 368, 429.

* Judiciary act of 1789, sec. 34, 1 Stat at Large, 81, Brightly's Digest, 792, and cases cited; 1 Kent's Comra. 342, not*. The rule applies with particular force where "rights of person and property," or individual rights, are to be determined. U. S. v. Wonson, 1 Gallison, 18; Mayer v. Koulkrod, 4 Wash C. C. E. 349, 355 ; Campbell v. Claudius, Peters' C. C. R. 484. The authorities concur that the national judiciary will regard the State courts as the best expositors of the State's law or juridical will. See those above, and Elmendorf r. Taylor, 10 Wheaton, 159; Mr. Clay, in Groves v. Slaughter, 15 Peters, 485; Strnder t>. Graham, 10 Hownri, 82, 93; Dred Scott's case, 19 Howard, 452, 459, 465, 547, 557, 603. But, unless the decision of the court in the last-named case be an exception, it has not been held either that the national judiciary must regard a decision of a State court in reference to the same facts and persons as a controlling exposition of the State law to be applied, or that it will accept the latest decision of the State court (compared with earlier State authorities) as the ruling criterion of that law.

In that case, the Justices who concurred in the decision of the court seem to have held, (with Ch. Jnstice Taney, p. 453, and Mr. Justice Nelson, p. 465,) that the court below (the U. S. C. C.) and the State court (in 15 Misouri R. 576,) had correctly interpreted the law (juridical will) of the State in such cases. The dissenting justices (McLean, p. 547-557, and Curtis, p. 594-604,) held that the State law had not been properly understood.

This point of the case will be further examined hereinafter, as a question under one branch of the domestic international law, (ante, § 402; 2.) But it may be noticed here that, in the State court, the two concurring Justices seem to have admitted (with the other judge, Gamble, C. J.) that both the private international law which, as prevailing among nations, customarily obtains judicial recognition in every forum, (ante, § 238,) and the earlier Missouri cases supported a different judgment; that they expressly based their decision on that idea, of deciding what comity does or does not require from the State, the inadmissibility of which was urged in the second chapter, (jjj 81-fC>.) and. declaring "that times are not as they were when the former decisions on the subject were made," they derive positive private law from their personal views of the comity obligations of the State, in reference to the external action, legislative and political, of other States and their inhabitants; (15 Missouri R. 682; 19 Howard, 552.) It was in reference to these "fundamental principles of private international law," and " principles of universal jurisprudence," that Mr. Justice Curtis especially urged, (pp. 594,

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