« 이전계속 »
DUTY OF TRIBUNALS. 61 by being identified with their several autonomic will or consent; and it will he public international law, from the character of the persons upon whom it operates, or for whom it is said to be a rule. In the second alternative the rule may have the coercive character of positive law, in reference to the action of private persons, and be a rule which judicial tribunals may apply, or will be bound to apply in determining the rights and obligations of such persons, in relations in respect to other persons and in respect to things; being private international law from the character of the persons upon whom it operates, or for whom it is said to be a rule. But it is evident with regard to the possibility of any such rule—a rule having the character of positive law,— that it must be part of some municipal (national) law; that is, it must, according to previous definition, be identified with, or rather must derive its existence from, the ascertained will of some legislator,—some political person vested with the authority of society or of the state.
Now to whatever degree the state or nation, or the possessors of supreme or sovereign power, may, in their political entity or personality, be bound (by public international law—the law of "positive morality"—Austin, ante § 11, n.) to allow foreign laws to take effect within their own jurisdiction, their judicial tribunals have the like duty, in allowing or refusing the international admission of foreign laws, which they have in enforcing the municipal law strictly so called—the internal law—the law operating within each national jurisdiction irrespectively of the existence of other such jurisdictions; they must ascertain the will of the supreme power of the state in reference to such international allowance.
§ 71. It will be remembered that the relations which it was supposed might be indeterminable under the legislative power, or the law of a single state were herein before divided or classified by differences in the comparative effect of space and time in connecting their legal existence with the legislative action of more than one state, (ante § 65.)
In regard to the first class of relations—that namely in which the persons and things, which are to be the subjects and objects of the rights involved in those relations, are not all supposed to
62 THE TERM CONFLICT OF LAWS.
be at one time under one and the same jurisdiction, (in which case the question, by which legislative power the relation is to be determined, would precede the existence of the relation, and where it would be impossible that the action in which those rights must be manifested should take place without some concurrent legislative action on the part of the respective states within which those persons and things should be found, either producing one common rule or consenting to the controlling operation of rules proceeding from one or from the other,)—the question of the existence and determination of these relations, when raised before a judicial tribunal, may appropriately receive the name of a question of the conflict of laws; which name has been given by Huber, Story, and others, to cases determined by private international law as herein described.
That name, however, is evidently less appropriate to express the question of the existence and determination of the second class of relations, before described: since, according to the supposition, the persons between whom they are to exist, or the persons and things who are to be the subjects and objects of the right involved in that relation, are always at some one time under the exclusive dominion of some one state.
§ 72. The international determination of the first class of relations constitutes one of those topics of jurisprudence wherein it has been found most difficult for judicial tribunals, or for private jurists and law writers, to agree in a priori deductions from elementary and necessary principles.1 Rules, however, may exist, in regard to this class of relations, in the jurisprudence of any one country, either originating in positive legislation or in judicial precedent, which, of course, must be taken to have been intended for jural rules, or rules founded in natural reason, and not merely arbitrary and accidental determinations. And so far as any rules are found to have been concurrently adopted in the jurisprudence of different nations, they thereby acquire the character of a universal jurisprudence or law of nations; and there is in that fact an authority for the judicial tribunals of any
1 To these rules the citation given by Schseffher, § 22, note, well applies:—" Leyser; Med. ad Pand. Sp. 283, p. 1162. says in regard to Farinacius and others. Begnlas in illis mnltas invent, sed quando eas cum subjectis limitationibus contuli, ip&arum regularum nihil superesse vidi."
STATUS IN INTERNATIONAL QUESTIONS. 63
one country or state, (in the silence of the local legislation or customary law on that point,) to adopt them, as being presump tively accordant with the legislative will of the nation or state whose juridical authority they exercise.1 But it appears to have been difficult, even by such an a posteriori or inductive method, to discover any harmonious and consistent system of rules applicable in such cases.'
The determination of the second class of relations is simpler, because the relations are first taken to be in existence under the legislative action of one state or nation, or one possessor of sovereign power, and the question is of their continuance or realization under the legislative and juridical power of another.
§ 73. Since status or personal condition, as defined in the first chapter, consists principally in the possession of individual rights, and the relations of which it is an incident do not imply the exercise of rights relative to specific things, it must always be at any one time under the legislative power of some one state; that is, the state within whose actual territorial jurisdiction the natural person may be found, whose status or personal condition is to be determined. So far, therefore, as it may become a topic of private international law, it appears as an incident of the relations of the second class above described. That is to say, the status of a natural person can become a question of private international law, only when such person is supposed to have had a status or personal condition in relations created under some foreign law, which relations being regarded as existing or having existed under the foreign law—the question is of their realization, actualization, or continuance.
Since the inquiries to be pursued in the following pages will be limited to questions connected with the law of status or condition, private international law will in this chapter be further considered only as it may determine relations of the second of the two classes above described.
1 The principle—locus regit actum, when applied to this class of cases, may however be cited as an example. And compare Savigny: Heut. R. R., B. 3, c. i, § 348. The eighth volume of this work of Savigny relates exclusively to the conflict of laws.
'Saul r>. His Creditors, 17, Martin's Rep. Louisiana, 569, by the court: " We know of no matter in jurisprudence so unsettled, or none that should more teach men distrust of their own opinions, and charity for those of others"
64 DISTINCTIONS FOUNDED ON SUBJECTION.
§ 74. Although the question before the tribunal determining the status, or condition of private persons under international law, regards the maintenance of legal relations of persons, or of correlative rights and duties of persons, in respect to persons and things included under a certain national jurisdiction, those relations, or those rights and obligations, are not, by the very implication of the third maxim, to be regarded as entirely dependent, or not so in the first instance, upon that municipal (internal) law which is the territorial law, or local law, of that jurisdiction in which those persons and things are found. Whenever a question is made of the determination, under private international law, of rights and duties incident to the class of relations now under consideration, a recognition of private persons as aliens, in respect either of birth or of domicil, or at least as having been anteriorly subject to some other jurisdiction, is pre-supposed; and the private international law (i. e., that part of the national law of the jurisdiction which is to determine that question,) is applied as a personal law,—a law attaching to certain persons in virtue of their anterior subjection to a foreign jurisdiction, irrespective of the general territorial operation of that municipal (internal) law of the forum to which they are, or have been, alien in a greater or less degree, or under a greater or less variety of circumstances, (ante, § 53.)
It was stated in the first chapter, that the contrasted relations (conditions) of alien and native subjects are necessary or axiomatic ideas in international law, being stated in those definitions which form the first portion of international law (public and private) according to the division there given. But the fact of mere subjection, independently of place of birth, to different jurisdictions, is that upon which the distinction of an international law—being a rule determining the relations of private persons, and operating as part of the municipal (national) law of some one state, or nation—is founded. It being possible that within the jurisdiction of any particular state persons may be present who have been subject to the territorial jurisdiction of another, the laws of the first may be conceived of as making no distinction between them and others in consequence of that fact. But the laws of a state are not necessarily nor usually
RESULTS OF SUBJECTION BECOGNIZED. 65
tins equally operative. All within a national jurisdiction are equally subject to the supreme power of the state, but the laws therein (i. e., the national law,) may apply differently to natives, and to those originally coming from another national jurisdiction. This difference in the application of the national law may be combined with the recognition of the rights and obligations of private persons in relations caused by a foreign law to which they have been previously subject; and there may be a difference in the degree of this recognition, and in the extent of the local, or territorial law of the forum to persons who are not native, by discriminating between them in respect to their being either permanent and domiciled, or transient and temporary subjects. When the previous actual, or territorial subjection of certain private persons to a foreign law is judicially recognized in the forum of jurisdiction, and the question is made of the realization or continuance therein of rights and obligations of those persons in relations existing under that foreign law, then the local or national law operates as private international law. For though this distinction between persons is made under some municipal (national) law—i. e., some law known as the positive law of some one nation, or state—that law, being differently applied to persons thus discriminated, or distinguished,—may be denominated international, because it then determines the operation of the municipal (national) laws of different countries, or states. In these cases, the relations of certain persons are recognized simply as facts existing by the operation of a foreign law; but the validity of the rights and obligations included in them is determined solely by the local juridical authority. And so far as the tribunals of the forum are concerned, the relations existing under the foreign law are to be brought to their judicial cognizance by proof, like other facts: they are not legal effects which the tribunal is bound independently to take notice of.1
§ 75. When persons and things pass from one national jurisdiction into another, it is impossible, in the nature of things, that all the relations in which they were the subjects, or objects of rights and duties under the law of their original jurisdiction,
1 Fcolix: Dr. Int. Pr., § 18. Story: Conf. L., § 637, and the cases cited.