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86 LAW OP NATIONS—JUS GENTIUM.
existence of other similar jurisdictions; and they have, consequently, a peculiar local or territorial character; as have also the relations created by those laws.
The legislative (juridical) authority by which any principles, having this universal character in the history of jurisprudence, are recognized by the tribunal as being accordant with natural reason, and allowed to determine the relations of alien persons, is, indeed, that of the state within whose limits such aliens may be found, and that recognition is ultimately dependent on the political possessor of the supreme civil power. But this is not inconsistent with the assertion, that in the progress of jurisprudence among different nations, a portion of the law of each may be said to result from the general promulgation of all nations, the effects of which its judicial tribunals will recognize without reference to their own national sovereign as the source or origin of law, though such effects are still known to depend in each jurisdiction upon the will of the supreme power, and are recognized and accepted with the intention of carrying out that will.1 Or, making use of the language of the Institutes, it may be said, that the interpretation of law as a rule of right, and one founded in natural reason,—quod naturalis ratio inter omnes homines constituit—has been, as matter of history, so uniform in respect to some relations of persons, and has been Bo frequently and so harmoniously applied as private international law, that it may be known as that law which inter omnes populos perseque custoditur:—a jus gentium,—a law among nations, or universal law; the effects of which may be
1 Savigny: Heut. Rom. R., B. i., c. 3, § 22. Tr.: "In the commencement of their intercourse with the neighboring foreign states it became necessary for the Roman tribunals to recognize, together with their own national law, a law applicable to foreigners; and not merely the law of some one foreign state, but that which was common to a number of such states. By the extension of the Roman dominion, and the greater diversity of their intercourse with foreigners, their field of view in this respect became proportionately enlarged, and in this manner they gradually conceived the more abstract idea of a law common to the Romans together with all nations, or all mankind. It is evident that the Romans, in founding this conception on observation, could not but have seen that their induction was imperfect, because they did not know every nation, and it is certain that they never were careful to ascertain whether their jus gentium actually obtained in the laws of all those that they did know. Still it was natural, after recognizing this comparative universality, to go back to its source, and this they found to be, universally, in naturalis ratio; i. e., the consciousness, implanted in the common nature of man, of a moral rule."
See also, Ilist of Rom. L. in the Middle Age, by the same author; Cathcart's Tr., ch. L, § 1; and in Fcalix: Dr. Int. Pr., § 122, a recognition of this feature of the Roman law; contrasting it with a remarkable difference in this respect, in the modern French international jurisprudence. 1 Compare ante, § 34, and notes.
APPLICATION OF THE JUS GENTIUM. 87
particularly enumerated, as is done in the Institutes, Lib. I., tit. ii., § 2. Ex hoc jure gentium omnes psene contractus introducti sunt, ut emtio, venditio, locatio, conductio, societas, depositum, mutuum et alii innumerabiles. And in the jurisprudence of every nation the law may be distinguished as being either rules peculiar to itself, jus civile oTproprium, or else rules common to it with the rest of mankind, jus gentium; each of which divisions of the law (national law,—jus civile in that sense) may be applied as international or as municipal (internal) law: that is, may be applied either to alien or to domiciled subjects. The term "law of nations" has, in modern jurisprudence, been generally taken to mean public international law only: but the original use of the term, in Roman jurisprudence, as will be hereinafter more fully shown, (ch. iv.,) was that of a private law universally recognized.1
§95. And though these principles of a so called universal jurisprudence have that character from the historical fact that the relations created by them have been found in force among all nations, and therefore must be supposed to be already known effects of the local (internal) law of each single nation,' yet they may retain their jural character andbe judicially recognized and applied, on the ground of their historical universality, even when none of the domiciled inhabitants of the forum sustain such relations under the municipal (internal) law.
Having once acquired the character of jural rules, in the jurisprudence of each state, by an a posteriori or inductive method, —i. e. from the fact of their general recognition,—they will thereafter obtain and operate as a priori principles,—or principles from which consequences are to be drawn deductively, and will be judicially recognized, by the tribunals of anyone nation, because having this character.'
§ 96. Therefore when persons who sustain legal relations under the legislative or juridical authority of some state of dom
'Quod civile non idem continuo gentium; qnod autem gentium idem civile esse deset Cicero de Off III. 17. Gaius, ap. Dig. Lib. L Tit. i. § 9.
1 Peckius, de Regulis Juris, 1.
88 JCS GENTIUM IN THE LOCAL LAW.
icil, appear as aliens within any other national jurisdiction, those relations, and the rights and obligations in which they consist, will be recognized, allowed, sustained or maintained, by the judicial tribunals within that jurisdiction, when such anterior relations were founded on principles which have this universal character in the history of jurisprudence; without instituting de novo a comparison of those relations with the effects of the local (internal) law: and they will be internationally supported as consistent with the power, law and right—potestate et jure—of the state having jurisdiction; until positively disallowed by the will of the supreme national power, to be ascertained by some known judicial method.1 In fact when the anterior relations of aliens are thus continued by the recognition of the historical universality of the legal rule from which they arise, that recognition is an application of international private law only from the character or position of the persons to whom those relations are ascribed. But there is in this case no conflict between the laws of the two forums or jurisdictions, nor any occasion to suppose the operation of international comity,—the comity of the nation. For in this case, by the recognition of the universal prevalence of these principles, the relations so sustained may be said to derive their support directly from the municipal (national) law of the forum—the same law, in its legislative source and authority, as that which determines the relations of domiciled inhabitants; for being principles of a universal jurisprudence they must be supposed to form a part of that law.' But
1 Thus in Scnmshire vs. Scrimshire, 2 Hagg. Cons. Rep. p. 421,it is said, "As there is no positive law of this country which prohibits the court from taking notice of the jttsg'ntium."
Greenl. Evid. I. § 5. "In like manner the law of nations and the general customs and usages of merchants, as well as the general law and customs of our own country, are recognized without proof by the courts of all civilized nations." (Citing 2 Ld. Raymond, 1542, Heineccius ad Pand 1. 22, tit. 3, sec. 119. 1 Bl. Corom. 75, 76, 85.) —Here the same universal jurisprudence seems intended, though the term "law of nations" is probably conceived of as being public rather than private law.
* Scrimshire vs. Scrimshire, 2 Hagg. Consistory R. p. 417. "The jus gentium is the law of every country; every country tnkes notice of it, and this court, observing that law in determining upon this case, cannot be said to determine English rights by the law of France, but by the law of England, of which the jus gentium is a part."— Here the term jus gentium—law of nations, is used in its original signification—that of private law,—a law determining the relations of private persons which is known by its universal reception. There are many other cases in which the law of nations is said to be part of the law of England, when, by that term, public international law—the rule acting on nations as political persons is intended: BI. Coium. I. p. 273
ITS AUTHOKITT HOW LIMITED. 89
since it is only by the recognition of some persons as aliens, or as having before sustained relations which did not, in the first instance, exist under the legislative authority of the country to which they are alien, that such discrimination can be made, it is only, or primarily at least only, in international law that this universal law or jurisprudence can be recognized.1
When any principles of universal jurisprudence have been thus recognized and applied, in the international law of any particular jurisdiction, to determine the condition of alien persons, they will also form a part of the municipal (internal) law of the same jurisdiction, if the alien persons, or those formerly subject to the national law of another domicil, acquire a new domicil in that jurisdiction. Being received as an authoritative exposition of natural reason, with the extent of a personal law, (§ 27,) they must be held to be equally authoritative to determine the condition of the same persons in the forum to which they are transferred whether they retain or lose their former domicil.
§ 97. But however general that recognition of any rule of action may have been among the various states or nations of the world, it is not a universal law in the sense of being a judicial rule within the jurisdiction of every state independently of its own will or consent. The word universal is a term here applied to a rule or principle in respect of its historical prevalence, and not in respect to an intrinsic universal authority; its actual force, before the tribunals of any state, lying only in the judi
IV. p. G7. Triquet r. Bath, 3, Burr. 1480. Respub. v. Longchamps, 1, Dall. 111. The admiralty Reports, passim; but this latter use is not proper; except in the consideration that public international law always involves, to a certain extent, the relations of private persons.
'Tims the law of maritime commerce prevailing in some one country consists in a great degree in the law of nations, or universal jurisprudence; because it must, in a great measure, be formed by the judicial application of private international law; or, in other words, because in point of fact, those relations of private persons which are known in maritime commerce, generally involve actions which must take place in some other jurisdiction than that in which the correlative rights and obligations arising out of those relations have been enforced or are to be enforced.
Kaimes, Princip. of Eq. B. III. c. 8. "Thus in the Kingdom of Scotland, all foreign matters were formerly heard and decided on by the King in council; in later times a special jurisdiction has been vested for that purpose in the court of Sessions, which decides all such causes on general principles < if Equity."
Gains : Com. I. § 92, calls the jus gentium:—" Leges moresqne peregrinoram ;" see also Reddie: Hist. View of the Law of marit. Com. p. 82, 118. Waechter, Arch. f. d. JiviL Prax. Bd. 24, p. 245-6. Smith's Diet. Antiq. voc.—Praitor.
90 DISTINCTION IN ATTBIBinTNG UNIVERSALITY.
cial presumption that such principle is accordant with natural reason, and that the state, therefore, intends to enforce it as law.1
If the state, or those who hold the supreme power thereof, have promulgated any principles with a universal personal extent, i. e. an application to all natural persons within its jurisdiction, which are contrary to the principles of the law historically known as universal, or which produce opposite effects, the tribunal is bound to apply those principles of its own local law, as a test of the accordance of foreign laws with natural reason, without regard to the principles of universal jurisprudence—the law of nations—thus historically known."
§ 98. It must be carefully noted that, in this inquiry into the principles regulating the admission or the exclusion of the effect of foreign laws, the term universal is applied to legal principles in reference to two entirely distinct incidents of their existence. In the one case the qualitative term universal is used with reference to the anterior reception of a legal principle among all nations, or at least all nations that are considered, by the state under which the tribunal acts, as sufficiently enlightened to be authoritative exponents of natural reason (§ 36). In the other case the same term is employed with reference to the application of a legal principle to all individuals within the power or jurisdiction of some one state, nation, or possessor of
1 The historical law of notions, the universal jurisprudence thus manifested in international law, is therefore the natural law, so far as it can be recognized in jurisprudence, (ante § 34-36). The following passage from Long's Discourses, p. 62, is a modification from that before given from Savigny; but it is here inserted as showing the modern apprehension of the jus gentium:
"The observation of those rules of law in their own system which were of a general character and not peculiarly Roman, and the comparison of them with like rules of law which obtained in other states, may have led the Romans to a consideration of those universal principles which prevail in the laws of all nations. In matters in dispute between aliens and Romans, they must also have been led to a practical acquaintance with the law of foreign states, and to the reception of such law, when it was recommfnded by reasons of utility, and when it was not opposed to the positive rules of their own Jus Civile. As the Romans were a practical, and not a theoretical, people, it seems that it was in this way, by their intercourse with other people, that they were led to the assumption or the acceptance of the notion of rules of law more general than the strict Roman rules. This was the probable origin of the notion of a Jus Gentium, or Jus Naturale or natural law, which two terms are perfectly equivalent in the Roman writers. The term Jus Gentium has a reference to the mode in which the notion originated, that is, from the intercourse with other states; the Jus Naturale is the term more applicable to the induction, when made more complete by further acquaintance with the institutions of other people, and by the development of more universal notions."
* See ante, § 77, and § 88.