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either national or local in extent, (which was made in the thirteenth chapter,) would be improper. The law derived from the separate or reserved powers of a State of the Union would be improperly described as local in respect to the limits of the State, if any persons before domiciled in such State, were found in the Territories. And the law prevailing in a Territory, or, at least, all law determining the possession of individual rights and legal capacity, would not be local as to the Territory, but a variable aggregate of the laws of a greater or less number of the States, having there a personal extent. Or the only local law determining that class of rights would be those applying to persons not known to have been formerly domiciled in some one of the States.
$ 536. And, since rights cannot be maintained except by the enforcement of obligations existing correlatively in some relation between persons, in supposing that the law of a State operates in the Territory to determine the rights of persons therein who before had been domiciled in that State, correlative obligations on the part of persons in the same Territory, though coming from another State, are necessarily supposed to be determined by the laws of the first. In determining the various relations which may exist between the inhabitants of a certain forum or jurisdiction, juridical power may be divided ; so that some relations are determinable by one juridical person and others by another. As, for example, in each State of the Union the powers held by the national Government and the “reserved” powers of the State determine different relations. But it is impossible that in any one relation the rights and obligations of those between whom it exists should be respectively determined by different legislators. The individual right of property involves the existence of obligations on the part of the community ; and the right of a slave owner in respect to his slave as the object of his right of property, involves various obligations on the part of other persons in the same jurisdiction. The doctrine that the
* And it would seem that under that theory the State law would govern the condition of the descendants of the emigrants from the States; carrying out the idea of personal laws having a heritable character. Compare ante, $ 193.
2 Compare ante, p. 309, note 1.
juridical authority of a State shall proprio vigore maintain the rights of its slave-holding citizens and status of their slaves in the Territory is, by involving the determination of the obligations of other persons not coming from the same State, incompatible with the idea that the laws of the States may, in the Territory, respectively determine the rights and obligations of persons previously domiciled within their several jurisdictions
$ 537. The further exposition of the local municipal laws of the United States will therefore be given in the form of an historical or chronological abstract of the various legislative enactments in and for the several States, the Territories of the United States, &c., affecting personal condition or status ; being a continuation of the abstract of the colonial laws, having like effect, which was given in the sixth chapter. In this will be included a notice of those provisions of the several State Constitutions which affect this topic of private law. Where such legislation refers to persons as alien to the jurisdiction, it will be noticed in its chronological order among the provisions of internal law, the law applying to resident or domiciled persons. Though its effect and constitutionality, in reference to the national Constitution, (national municipal, quasi-international law,) will be more particularly considered in a separate chapter, under the head or topic of that international law which is law in the imperfect sense, when the several States are regarded as its subjects, by reason of their independent authority, and which is, therefore, in each State, as private law, or when taking effect on private persons, identified in authority with the local municipal law of that State.
$ 538. In considering the various statutes and constitutional
Different systems of laws, having different personal extent, may exist together within the same dominion. Such laws may, historically, be of different origin. Bat while co-existing in some one State or territorial jurisdiction, their legal force or authority is derived from one and the same sovereign having the power to determine the conflict of laws which would arise, (Ante, pp. 25, 100.) It is a novel idea in jurisprudence that laws differing in personal extent, and deriving their anthority from different sovereigns, should co-exist within the same territorial dominion. See Judge McLean's observation, ante, p. 545. Judge Campbell's idea, assuming that the States severally are sovereign in the Territory, seems to be that they colonize lands vacant of law, and that the citizens of each carry with them the laws of the mother State; as the English colonists brought the laws of England. Ante, p. 116.
OF THE LAWS OF THE STATES.
provisions of the several States, a distinction will sometimes be noticed between such as refer to persons and to their relations, rights, and obligations as determined by laws already existing, and which are therefore to be applied according to the personal quality of those laws, and provisions whose terms require a broader application, or which seem to attribute rights or obligations to all natural persons, irrespectively of personal distinctions previously known; which provisions, therefore, may be held to be proclaimed by the supreme legislating power as universal. Since the universality of a law, however, properly becomes matter of judicial recognition only by the application of private international law,' the existence of law having this universal personal extent in any State will be more properly noticed in considering the international and quasi-international laws of the United States, or, in other words, the laws which in each State apply to persons known as aliens, either to the State alone or to the State and the United States, that is, foreign and domestic aliens, according to the phraseology herein before adopted for convenience of distinction,
S 539. In making this summary of legislative and constitutional provisions, it will not be attempted to show in what civil or social liberty consists in each State or local jurisdiction of the United States. Determined as it is by the existence of a variety of relations, it could only be described under a comprehensive view of all individual and relative rights under private law and the guarantees for their maintenance in the public law. Neither is it intended to give a summary view or description of slavery, as contrasted with a free condition under the common law of England or of the United States, either as a condition of personal bondage, bondage of a legal person, or as a chattel condition. The purpose in view will be to present the existence or non-existence, and the juridical modification, extension, or restriction, in each State or several local jurisdiction of the United States, of those two systems of personal laws, the origin and existence of which, in those colonies of the British empire which
CONTEMPLATED VIEW OF THE LAWS OF THE STATES
now constitute a portion of the American Union, have been considered in the former part of this work, so far as that may be accomplished by describing the legislative action of the possessors of sovereign power, affecting the enjoyment of so called “personal rights,” and by noting in connection the leading judicial decisions in cases arising under such legislation, or in which important doctrines of common law affecting those rights are prominently declared. And whether as an effect of local or State law, or as one of the national law of the United States, the subject of free condition and its contraries will, throughout, be in this work regarded exclusively as a topic of jurisprudence, or in the purely legal point of view, entirely distinct from all ethical and political considerations,
The numerals in (
indicate notes, and the reference is to the page.
Apprentices, minor, in the colonies, 218
A priori, a posteriori methods distinguished,
16 (4), 516 (1).
them, 199; slavery of by captivity, Archiv für die Civil. Praxis. See Wächter.
Aristotle, 3 (1), 16 (3), 18 (2), 27 (1),
126-128; how held in the U.S., 414. 175.
Austin's Province of Jur. Determined, 1
15 (1), 19 (3), 21 (1), 36 (3), 41 (2),
52, 93 (1), 146 (1), 148 (1), 398 (1).
sion in 15th century, 162; slave trade - action of Congress in admitting
new States, 412 (1).
Ayliffe, Pandects, 1 (1), 16 (1).
empire distinguished, 318; physical
- Laws of Maryland, 247–254.
-, Lord, Essays, 13 (4); Advance-
(1), 26 (2), 28 (2), 31 (1), 80 (2), 115
-, Nathaniel, Historical Discourse on
Baldwin, Judge, Constitutional Views, 405
(2), 408 (2); on property in slaves,