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66 NECESSARY LIMITS OF BECOGNnTON.
should exist under the jurisdiction to which they have been removed; because all the persons and things which were with them the subjects, or objects of corresponding rights, or duties, in those relations, are not transferred with them to the new jurisdiction. It is not, therefore, supposable, when persons thus pass from one jurisdiction into another, that all their rights and obligations, existing under the law of the first jurisdiction, should be maintained by the law of the second. That class of rights of persons, which in the first chapter were called absolute, or individual rights, may (since they exist in a relation of individual persons to the whole community, without distinction of specific individuals in it, and as rights of action have no determinate, or special objects,) continue to be, for the subjects of them, the same in effect; though the objects may be different, and the supreme power sustaining them is a different political personality. But those rights (the right to private property, or of private property, for instance,) so far as they are relative to specific persons and things, and those rights which were in the same chapter called relative, because arising under relations of persons to other determinate persons, cannot, it is plain, subsist under the law of the new jurisdiction unless the persons and things which are the relative subjects and objects of those rights are transferred to the new jurisdiction. But it is plain that so far as the action implied in any legal relation continues to be physically possible, notwithstanding a change of place on the part of the persons between whom, or the persons and things in respect to whom, or to which that relation has once subsisted, any of the rights of persons arising out of a relation constituted by the law of one jurisdiction, may be allowed to retain the character of a legal right, under the sovereign authority of the new jurisdiction. Whenever this is the case, the supreme national authority, having independent power in a specified territory, adopts the law of another, or allows it to take effect therein as a law of foreign origin; though its authority as law, in the strict sense, must always in that jurisdiction depend on the local sovereignty.
§76. Since, then, this allowance, or disallowance, depends on the same authority as the municipal (internal) law, it must
ACTION OF TRIBUNALS. 67
be ascertained in the same manner as the n unicipal (internal) law, resting on that authority, is ascertained. According to the view given in the first chapter of the manner in which the will of the supreme authority in states becomes expressed or assumes the form of law, that will may be ascertained either—1; from the direct expression of the will of the state in positive legislation, (esto;) or, 2; from an interpretation of natural reason by tribunals appointed by the state, (videtur.) If the sovereign or supreme power has expressed its will by legislative enactment or action having that effect, that expression is equally authoritative and controlling in this case as in the case of relations falling under municipal law strictly so called, (the internal law.) If no such expression exists, the tribunal must make this allowance or disallowance by reverting to the law of natural reason, as it reverts to the same for the presumed legislative will of the sovereign in enforcing the municipal or internal law. And, however autonomic or independent in its estimate of natural reason, as bearing on the relations of nations to each other, or of its own obligations (under that international law, which, as a law binding on states, is a law in the imperfect sense only,) the possessor of supreme legislative power, or the national sovereignty of any state may be when allowing or repudiating the effects of foreign laws, the judicial tribunals of any nation, at the present day, in pronouncing a judgment upon the same point, can refer only, either, as has just been said, to the positive legislation of the sovereign, or to standards of natural reason which have, by anterior judicial recognition and the implied sanction of the sovereign power whose will they execute, acquired the authority of law. These are—judgments of antecedent tribunals under the same national authority in like international cases; customs which have existed under that authority; accepted expositions of law by private persons; and, in cases where these domestic precedents do not furnish a criterion applicable to the case in question, the laws, usages, and judgments of other nations, in respect to the international recognition of the laws of foreign states, may be referred to, on the same principle by which such tribunals refer to the municipal (national) laws of other nations for an exposition of natural reason to be applied OO JUKAL CHARACTER—HOW PRESUMABLE.
as their own local or municipal (internal) law—the principle, namely, that, from the nature of society and of states, the laws of all states are to be taken to intend to conform to natural right, or are promulgated for jural rules, and may be judicially referred to, by the tribunals of any one nation, as an exposition of natural reason to guide in the administration of its own (national) law—whether internal or international law—in cases where the other standards of the will of the state which are more direct, do not give a sufficient rule. The limits of an autonomous judgment on the part of a judicial tribunal being, at the present day, extremely narrow.
§ 77. The propriety of this reference by the courts of any one nation, is, as to such courts in nations wherein laws have long been administered, based upon precedent—the usage of their predecessors.1 But the principle upon which such reference is made becomes itself, when once established, a rule of particular force in the international recognition of relations which have been created by foreign law; or—to employ a different form of expression—becomes more directly operative as a principle of the international private law. For, since the tribunal, in the case supposed, is necessarily proceeding on the supposition that the state, where it has not declared its will by positive legislation, must still be presumed to will that which is accordant with natural reason, it would follow—from the very nature of the assumption, which is above stated, in favor of the jural character of foreign laws,—that the state will recognize and support foreign laws and their effects upon persons and things coming within its dominion, when those laws are not contrary to the rule of right contained in the municipal (internal) law: * for if such a rule exists in that internal or local law, and
1 Smith's Compend. Merc. Law, p. 6. "Here it should be observed, that the foreign laws and foreign lawyers, who have been just mentioned as having influenced the formation of the mercantile law of this country, were never, at any period, recognized by the judges of our courts as being per K of any authority whatever. Respected the rules which they laid down may be, for the learning and sagacity which they evince, but, when they are obeyed, it is part of the law and custom of England, declared to be such, either by long usage and tradition, or by the decisions of our own courts of justice, containing an enlightened adaptation of ancient principle to modern convenience," ic.
* Potter r«. Brown, 5 East, 530, by Lord Ellenborough. "We always import, together with tneir persona, the existing relations of foreigners as between themselves, according to the laws of their respective communities; except, indeed, where these laws clash with the rights of our own subjects here, and one or other of the laws must necessarily give way, in which case our own is entitled to the preference."
TRUE BASIS OF COMITY. 69
it is applicable to persons in circumstances of natural condition similar to those in which the persons known as aliens are found, it must control, so far as applicable, all rights and obligations of those aliens, and overrule the relations created by the foreign law,—by the very supposition on which the presumption in favor of a judicial recognition of the effect of the foreign law is based, viz.:—that the state—the legislator of the forum intends to enforce jural rules, or laws which are rules of right—jus.
§ 78. It is this principle arising out of the jural nature of society, or of the state, and the method in which law is judicially ascertained, which is the true basis of, and the warrant for that judicial recognition of rights and obligations of private persons in relations created by foreign laws,1 which is commonly referred to the operation of the comity or good will of nations, and the prospect of reciprocal advantage. That recognition or allowance of the foreign law being then supposed to depend upon & judicial estimate of what comity or the prospect of reciprocal advantage requires the nation, for which the tribunal is actingjuridically, to allow.
It is evident that if comity or good will, or the prospect of reciprocal advantage is, or ought to be, a motive acting on states and nations—the possessors of sovereign legislative power—and if it does, in an ethical point of view, require states or nations in their political personality to allow foreign laws to operate within their territory, or to recognize relations created by foreign laws, it is still only a part of public international law, from the character of the persons upon whom it operates, and a law in the imperfect sense only, or of an imperfect kind only— a part of positive morality, operating on states. And though it may be admitted that it ought so to operate upon any particular state, it still will be the duty of judicial tribunals to ascertain the will of the state upon that point, before allowing or giving effect to the foreign law in any case. It is further evident that when the will of such state on this point has been 70 Hubeb's Maxims.
1 Therefore this judicial recognition of foreign laws or of their effects, is not derived apriori, or founded on an a priori juristical theory. See Keddie's Inq. El. ic, p. 280.
ascertained, it is entirely immaterial, in jurisprudence, Vhe science of positive law, to inquire what may have been the motive acting on the state or nation, exercising sovereign legislative and juridical power, which induced it to allow or require this international recognition of foreign laws. The tribunal has simply to consider it as the rule of right established by the state. And it would be, for the tribunal and for private persons, equally law and a jural rule if it should have been caused by selfishness or enmity, and be reciprocally disadvantageous.
§ 79. This doctrine of an international comity being the basis of the judicial recognition of foreign laws and their effects appears to have originated in the third of Huber's three maxims, so often cited in works on international law. These are, (Huberi: Prsel., Lib. i., Tit. 3. De Confl. L., §2) :—
1. Leges cujusque imperii vim habent, intra terminos ejusdem reipublicse, omnesque ei subjectos obligant, nee ultra. Per I. ult.ff. de Jurisdict.1
2. Pro subjectis imperio habendi sunt omnes qui intra terminos ejusdem reperiuntur, sive in perpetuum, sive ad tempus ibi commorentur. Per I. 7, §10, in Jim,, de Interd. et Peleg.'
3. Rectores imperiorum id comiter agunt, ut jura cujusque populi intra terminos ejus exercita teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium prsejudicetur.
The third of these maxims resembles the third of the three herein before given, in being only the statement of a condition of things—a law in the secondary sense: but it differs in not stating the possibility of such international allowance, but the fact that it is actually made by the rulers of empires, rectores imperiorum; and it differs, still further, in not only stating the fact, but also the motive or reason which induces the supreme power, the rectores imperiorum, to make that allowance —that is, the motive of comity. But it is not here stated that judicial tribunals, which are not rectores imperiorum, may or do, from comity, make this admission in any case, until they have ascertained that it is the will of the sovereign power for
1 This citation is the same as Dig. L. ii., Tit. i., 20.
a Thia citation is the same as Dig. L. xlviii., Tit. 22, 7, § 10, in Jinan.