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THE JUDICIAL RULE STATED. 81

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contemplates. The judicial officer, while enforcing the local law as the rule of right, must apply it according to the limitations and with the extent intended by the supreme sovereign will. And in the jurisprudence of every state its own laws may be distinguished as being jural, either by being merely expedient and suitable to circumstances of position and character peculiar to itself, or jural by enforcing obligations founded on the nature of man and co-extensive with human existence; (though this distinction is the growth of an advanced stage of jurisprudence, as will be shown.) In other words, although the municipal (internal) law of any nation is always to be taken as a rule of right for its own national domain, it does not follow that it has been asserted by its author for a rule of universal obligation, or as the rule which ought to be everywhere applied to persons and things in like circumstances; in such a sense that the tribunals of that nation are bound to consider every rule contrary to natural reason which should produce effects unknown to the local law.

§ 88. When, therefore, we pass beyond that portion of international law which consists in necessary axiomatic principles, recognized in the very existence of states or nations (and which includes the three axiomatic maxims herein before given, § 63, 67,) to that portion which becomes a rule of action and a law in the primary sense for judicial tribunals, in making that international recognition and allowance of foreign laws which is only supposed in the third of those maxims, that part which, though dependent for its force as law upon the autonomous and uncontrolled action of single states, and therefore, not a law in the strict sense for the state, is yet a law in the strict sense for the judicial tribunal and for private persons—private international law, included in the national law of the forum—the first, or simplest general principle which may be stated for such law, seems to be this:—That relations of persons and their constituent rights and obligations, existing under the law and jurisdiction of one state are to be judicially admitted to international recognition (that is, be allowed to have legal effect) within the jurisdiction of other states, when they are not inconsistent with those principles which in the jurisdiction of the latter are juridically known as

82 ITS AUTHORITY AS POSITIVE LAW.

principles of universal personal application and extent, or which the local law applies to all natural persons within its power and territorial jurisdiction.1 And this will include the test for the admission of foreign laws, which is implied in Huber's third maxim—the power and law of right,potestas and jus, of the nation; or that given by Story's version of the same as the limits of comity,—" the known policy and interest" of the state in which is supposed to be the forum of jurisdiction. For the power (sovereignty) and jural character of a state lie at the foundation of its whole law, public or private, constituting the objects of its existence as a part of political society, which are considered by it in the minutest application of law, and must be judicially regarded as the policy and interest of every state, which it maintains wherever it acts as a source of law, or which it applies to all persons within its jurisdiction.

This principle so stated may be regarded as law,—in the sense of a rule of action which is applicable by judicial tribunals; though, in the nature of the case, it cannot acquire the force of a rule to which the state is subject, as under a law in the strict and proper sense of the word. And though, under this rule, the foreign law may be said to produce legal effects, the authority which gives it its coercive force over private persons and the legislative will which directs the tribunal to apply it is always that of the nation having supreme power in the forum. Therefore, the law which causes the legal effect to be realized or actualized is not the law of the foreign country, but that of the forum.' The law of the foreign country does not operate in the forum, but it is only a fact or circumstance upon which the local juridical power operates; and therefore the foreign law is always to be proved like any other fact.'

§ 89. But since there may be recognized exceptions to the extent of every general rule, there may, in anyone jurisdiction, be a person or persons whose relations to other persons and to LIMITS IN ATTRIBUTION OF UNIVERSALITY. 83 things are, by force of certain local circumstances, regarded by the supreme power as being specially exempt from the operation of rules or principles to which, irrespectively of those local circumstances, a universal personal extent is attributed; and in this case, notwithstanding the actual exception, under the law of the forum, (the internal law,) to the universal extent of these rules or principles, they must still, in their otherwise universal extent, be judicially applied to limit the effects of foreign laws in the manner above indicated.

1 The rule given by Schreffner, § 22, for the most general one, may be translated, "Each legal relation is to be adjudicated according to the law of the state wherein It has become existent (wo es existent geworden ist.) And with this, regard must be paid to those laws whose whole design is to cause a legal relation to be recognised a* tuch only when it accords with those laws."

■ See ante, § 67, and note. 'See ante, § 74.

§ 90. But if a relation may thus have a jural existence in a certain national jurisdiction, though contrary to principles having an otherwise universal personal extent, there might, in other countries, be legal relations which, though contrary to the same principles, should be equally accordant with natural reason in and for the local circumstances of such other countries. And when the persons who sustained rights and obligations in those relations have passed into other dominions, in which the universal personal extent of a principle having a contrary effect will prevent their continuance, still the action arising out of those relations may be regarded as having been lawful in their original forum—the forum domicilii—though in the new forum—the forum of jurisdiction, they can no longer continue.

§ 91. The effect of laws having this universal extent must be, like that of every other, to create relations and to attribute rights and their correlative duties, (§22.) The rights so attributed by these laws must be in either individual (absolute) or relative. But rights ordinarily known as relative are the attributes of particular persons, in specific relations to other particular persons, (§ 40.) A legal capacity for those rights, which is in itself, in some sense, an individual right, may be universally attributed; though, in the nature of the case, the same relative rights cannot be attributed to all. Individual or absolute rights, however, which exist in relations of one individual to all persons in the community in which such individual may be found, may be attributed to all persons constituting that community. The laws, therefore, which, in having universal personal extent, control the international admission of the effects of foreign laws in reference to the status of private persons, will

84 CRITERIA OF THE EXTENT OF LAWS.

principally be such as attribute some individual right with its correspondent obligations.

§ 92. This international comparison of foreign laws with the local or municipal law and a universally applicable rule of right contained therein, must always be, in its earliest occurrence, an autonomic discrimination on the part of the tribunal. That is, supposing such international question to have arisen for the first time, it would depend upon the unsupported moral sense—the conscientious judgment of the tribunal, (arbitrium boni viri,) in the absence of any positive legislation: every such judgment becoming, of course, a precedent and a law for succeeding tribunals, acting under the same national authority; by which, in course of time, an ascertained customary private international law arises, in and for that jurisdiction.

This juridical act of admitting or rejecting the effects of foreign laws, on the ground of their being repugnant or otherwise to principles of the local law, which are applicable to all persons in certain circumstances of natural condition, is, strictly speaking, the act of judicial tribunals only. It is, however, in a certain degree, conceivable as being the act of a legislator also. (See post, § 102.)

§ 93. But, in whatever way manifested, this juridical action, when it has taken place on the part of various nations, forms one of those criteria by which the tribunals of any one state may determine what principles, or rules, shall be taken to be rightful, or rules accordant with natural reason, and applicable as the presumptive will of the state under whose authority they act; and also to determine the personal extent of those rules: that is, in the absence of positive legislation, or of precedents of local origin, {ante, § 33.) And it is to be observed that, in making this discrimination of laws which shall have a personal extent and international recognition in some other jurisdiction than that in which they were first enforced, the practice of other nations in similar cases has a more original and intrinsic force, as an international precedent, (or a precedent of private international law,) for the tribunals of any one state, than foreign law and jurisprudence has, as an exposition of right in cases falling under the department of municipal (inter

ORIGIN OF A UNIVERSAL JURISPRUDENCE. 85

nal) law. Because it is only by supposing the existence of independent jurisdictions, and a judgment of the tribunals of one, in allowing or disallowing the effects of another's laws, that there can be any exemplification of a judgment, by the recognized interpreters of the will of states, deciding what effects produced by the laws of one state are incompatible with the power and law of right—potestas et jus—of another, and what principles of the law of particular states are to be taken to have universal personal extent under the jurisdiction of those states, or constant application to all persons in certain circumstances of natural condition.

§ 94. But in the continuous repetition of similar judgments by the tribunals and legislators of different nations through a long period of time, and the mutual reference made by them to such judgments; together with the customarily received comments of private writers of various nations upon the same, based upon the idea that such judgments contain an exposition of natural reason, some principles, from being constantly recognized by many different nations, will acquire, in the jurisprudence of any one nation, the known character of universal principles, or principles of a universal jurisprudence. For though, taking law in the strict sense of the word, jurisprudence is the science of the law of some one country or nation, (§ 18,) yet, by distinguishing (national) law into municipal (internal) and international, and by the application of the latter to the relations of persons formerly subject to foreign jurisdictions, a portion of the jurisprudence of each country will be identified with the science of a universal law, or law of nations. This, though dependent on the supreme national power for its continuance, or coercive effect within the jurisdiction of that nation, may yet, by its tribunals, be considered principles presumed to have universal territorial extent and obligation, and to have legal force distinct from those rules or laws which the state may promulgate as originating in its own separate juridical or legislative power: which last, though equally jural,—or equally intended to conform to natural reason,—are promulgated as law for one dominion only, or, rather, for persons as being simply the inhabitants of its own jurisdiction, without reference to the

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