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56 EELATION TO SPACE AND TIME.
according to the division herein before made, (ante, § 4fi,) since they can be called laws in the secondary sense only; not being properly rules of action, but statements of a mode of existence, or of action. They must lie at the foundation of all positive law; and they have in jurisprudence the character, or extent of universal law—the law of nations, (Jus gentium^) because actually asserted, or proclaimed, and universally received, by nations, or states, as being natural and necessary principles.1
In the manifestation of this sovereign power, over persons and things, by states, or nations, originates law in the primary sense—rules of action; forming relations between persons in respect to other persons, and in respect to things. Since these relations are legal,—that is, are known as the effects of law, it is a consequence of the two maxims just stated, that they have existence only in some one jurisdiction in which that law is known as a coercive rule proceeding from the sovereign of such jurisdiction, and the rights and obligations composing those relations have no legal force beyond it.
§ 65. It was remarked in the first chapter that international law (public and private) arises from the necessarily existing circumstance that the whole variety of human interests and action cannot, from their nature, (or, it may be said, from their relation to space and time,) be distinctly divided among, and separately included under the limits of single states; and yet the juridical power of society must be supposed, in some form, either by enjoining, permitting, or prohibiting, to be exerted upon interests and actions which are not so included under the exclusive dominion of single states, (ante, § 10.) The effect of law is exhibited in legal relations, comprehending rights, with their corresponding obligations, in respect to persons, and in respect to things. The action involved in any legal relation must take place in reference both to space and time; and the conceivability of relations whose legal existence is indeterminable under the law of a single state, (which conception supposes an international law according to the definition in-the first chapter,) will arise from postulates of their existence in respect to space and in respect to time: such relations being, also, dis- 1 Bowyer: Univer. Public Law, p. 151, and the citations.
BELATIONS DI8CBIMINATED. 57
tinguishable among themselves by differences in the comparative effect of space and time in connecting their legal existence with the juridical action of more than one state.
For, first, relations may be supposed, or conceived, not to be exclusively determinable by the juridical power of a single state, by reason of differences in the respective geographical positions, at one and the same time, of the persons and things which are to be the subjects and objects of the rights therein involved.1
And, secondly, other relations may be supposed, or conceived, not to be so determinable under the juridical power of a single state, by reason of differences in the respective times at which the persons, or the persons and things, which are to be the subjects and objects of the rights involved in those relations are together found within different geographical jurisdictions: they being at one time within the territorial dominion of one state, and afterwards within that of another.
§ 66. It will be seen in comparing these classes of relations that there is a manifest difference in the degree in which it may be said that they are not exclusively determinable under the juridical power (the law) of single states.
In the class of relations first described, the persons and things which are to be the subjects and objects of the rights involved in those relations, not being at the same time under the same jurisdiction, it is actually impossible, from the axiomatic principles of jurisprudence, (natural and necessary law of nations,) that the action in which those rights must be manifested should take place without a concurrent juridical action on the part of the respective states, either producing one common rule, or consenting to the controlling operation of rules proceeding from one or from the other. In this case it may be said that the question—by which juridical power the relation is to be de. termined ?—precedes the legal existence of the relation.
1 Wheaton: International Law, Part ii., ch. 2. "It often happens that an individual possesses real property in a state other than that of his domicile, or that contracts are entered into and testaments executed by him in a country different from either, or that he is interested in successions ab intcslato in such third country; it may happen that he is at the same time subject to two or three sovereign powers—to that of his native country, or of his domicile, or to that of tho place where the property in question is situated, and to that of the place where the contracts have been made, or the acts executed."
58 THISD MAXIM.
Bat, in the other class of relations, the persons and things which are to be the subjects and objects of the rights involved in those relations, having been together under the juridical power of one state before the other is supposed to have any possible operation, the existence of a relation between them precedes the question—by which juridical power the legal force of that relation is to be determined?—: and there is not any actual impossibility that the action in which those rights must be manifested should take place without a concurrent juridical action on the part of the respective states; the persons and things between whom the relation is supposed to exist, being, at different times, under the exclusive dominion of some one juridical power.
§ 67. Now from the possible connexion, in respect to persons and things, which is here indicated between distinct sources of law having separate jurisdictions, arises the third of the three fundamental maxims before enumerated; which, like the two already stated, is only a recognition of sovereign states or nations as being the independent sources of positive law, even while stating this possible relation or connexion between them; which maxim may be thus expressed:—
III. The laws of one nation or state may, by the consent or allowance, and therefore under the authority of the supreme national power in another nation or state, have the effect of law within the jurisdiction of the latter.
This maxim, it will at once be perceived, is from the meaning of the term law, inconsistent, except as it is merely another form of the first and second. For the law—being a rule of action resting on the authority of some one sovereign—if the laws of one state can be said to take effect in the jurisdiction of another, they are in fact the law of the state in which they take effect, and not of the first.1
1 Compare Story's Confl. L., § 21, 22. Foelix Droit International Privg, § 10, 11.
Schseffner in Entwicklung des Internat. Privatreehts, 8 26, cites Zacharia, as saying. (Tr.) "Each right, and in the same degree each obligation, subsists exclusively under the laws of the land in which the right or the obligation (according to the effect of those laws) is to be enforced and is enforced under the supposed circumstances. This rule, (which in fact Is merely a reiteration of the well known maxim, Leges non valent extra territorium, in the only sense which can be given to it,) is derived, immediately, from the sovereignty of states. For if it should be held that the law of a particular state may, or must, as such, be carried into effect in another state, the legislative power of the former state could be extended over the latter, and in proportion diminish its legislative power;—the chief attribute of sovereignty. It is true that the application and execution of the foreign law would always remain with the judicial and administrative officers of the forum. But the rule according to which these officers would decide and act would have been prescribed by a foreign government. And how can they be empowered to act according to this rule, when they are only the instruments or servants of the government by which they were appointed." To this proposition the same author states three cases of exceptions, allowing them to be such in appearance only. Sclueffner calls the proposition a novel one, and denies its correctness. There is probably no real contrariety of opinion between them. Apparently Zacharia, in discriminating the law to which he should attribute the relation, looks to the political authority which coercivcly maintains the rights and obligations in which it consists, and therefore speaks of it as subsisting under the law of the forum; while the other looks to the legislator whose moral judgment attributed those rights and obligations to the persons between whom the relation is maintained, and therefore regards the relation as possibly subsisting under the law of a foreign state.
PLACE OF THE THIRD MAXIM. 59
§ 68. The first two of these three maxims are necessary propositions in defining what sovereign national power is; and lie at the foundation of all positive law—municipal (internal) or international. The third is not necessary in the same sense: being the statement of a manifestation of sovereign power which may or may not take place. It is however the statement of a relation or condition only; and therefore, like the first and second, a law in the secondary sense of the word law. It is an axiom of public law lying at the foundation of that which is herein before called private international law;—so far as such international law can be judicially recognized in any national jurisdiction, as distinct from the private municipal (internal) law of that jurisdiction:—private international law ;—which, as described in the first chapter, determines the realization of the legal relations of private persons in those interests and actions which cannot subsist or have not continued under the exclusive territorial authority of any one state or nationality: (§ 10) which relations, with the rights and obligations of which they are composed, must yet, primarily at least, as is implied in these three maxims, receive their legal existence under some one municipal (national) law.1
1 The realization—the actualization—the carrying-out of. The term employed for this by some German writers of reputation is—the Vermirklichung—the making or the being made icirklich—real or actual. Another term nearly equivalent is the Udte.ndmaehen—the making geltend—available, or in force. And this is distinguished from the ExiMent-uerdcn—the becoming, or the being made existent. Thus it is said by Schreffner § 27. "A very different thing from the Existent-icerden, (the being made, or the becoming existent,) is the GeUend-machen (the putting in force, or the being made available,) that is, the assertion that a certain fact (legal effect) has become vencirk
60 SPECIES IK INTERNATIONAL LAW.
§ 69. The municipal (national) law of any one state may contain rules of action applying originally, and as a law of local origin, to the relations of private persons within its jurisdiction, who are distinguished by the supreme power as alien, which are not rules that take notice of the effects of the laws of foreign jurisdictions in creating rights and obligations for those persons. Rules of this kind can be called international (as contrasted with internal) only in being founded on the simple distinction between native and alien subjects.1 The private international law then, so far as it can be distinguished from the municipal (internal) law of any one jurisdiction, is, in its form and manifestation, a rule regulating in that jurisdiction the admission or allowance of different municipal (internal) laws, or of their effects; being properly called private, because determining rights and obligations arising out of relations of private persons: whether the municipal (internal) law, first establishing these relations, is principally of a national and public character, or is more strictly private.
§ 70. The three maxims or propositions above given can in their nature be only statements of the self-existent or self-dependent nature of nations, states, or sovereignties, and therefore laws in the secondary sense of the word only. If the attempt is made to go beyond these, and state a rule under which this international recognition of municipal (national) laws, (the possibility of which only is implied or stated in the third maxim,) should take effect, or will take effect—a law having the force of a rule of action—a law in the primary sense, it is evident that such rule may be stated either in the form of a rule of which states or nations are the subjects, determining their respective rights and obligations, or, in the form of a rule of which private persons are the subjects. In the first alternative, the rule can only be law in the imperfect sense, or a law of the imperfect kind, and cannot determine the action of such states or nations except
UdU (realised—actualized—carried out,) under the jurisdiction of a certain law." But Waechter in his treatise (published in the same year, 1841,) on the collision of laws in Archir. £ <L Civil. Praxis, Tol 2-4, p. 237, takes the word irrwtnUiflb, as employed in a citation from Strove, in a sense which appears to be directly opposite to that above given. The first necessity in questions of this kind is a received nomenclature. 1 Such as naturalization laws, police laws relating to immigrants.