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sovereign national power, from whom the principle derives its coercive force. For while it is evident that no state has of itself any power to establish a new principle in universal jurisprudence—the historical law of nations, (i. e., the law whose universality is a historical fact,) which, from having that character, is receivable by the tribunals of any one country as being presumptively accordant with natural reason every where, yet, within its own territory and jurisdiction, it may attribute to any principle the character of a law which is to be applied universally, —that is, applied by its own judicial tribunals to all persons, within its own jurisdiction, in certain circumstances of natural condition, or as one founded on the nature of individual men forming the constituents of society; whether it be consonant or not with the code of universal law, or the law of nations, historically known.
$ 99. Although, therefore, in the course of the international recognition of the effects of foreign laws, and of the general progress of jurisprudence among civilized nations, some relations, rights and obligations of alien persons, or more generally, -of persons before subject to other jurisdictions,-are, from their general prevalence among nations, as proved by history, to be judicially allowed therein, as accordant with natural reason, or as jural relations,—yet that recognition will always be limited by whatever principles in the municipal (internal) law of the forum of jurisdiction, may have a universal personal extent, or apply to all persons under that jurisdiction in certain circumstances of natural condition; being promulgated by the supreme source of the local law as principles which ought to apply to all natural persons in such circumstances.
It being here asserted that the judicial recognition and admission of the effects of foreign laws on a presumptive accordance with natural reason, (ante $ 77,) is always limited by the operation of local laws having universal personal extent, it may be objected, that this reference to a universal jurisprudencethe historical law of nations, in the application of private international law, is of no actual force; and that is sufficient to say, that relations existent under foreign laws are always to be judicially maintained, on the principle of comity, (so called,) unless
the local law having universal personal extent produces rights and obligations inconsistent with those relations. But the validity of this reference is found in the fact that the personal extent of laws,—the question whether they are universal or limited, is ordinarily determined, (as is the far greater part of all positive law,) by judicial action; and that this is to be in the mode in which any rule of law is judicially determined: that is, from external indices of natural reason already accepted by the state ; of which universal jurisprudence—the law of nations, must always be one. And here is shown the genital connection of universal jurisprudence, or the law of nations, with that part of the laws of each country which is universally applied, has universal personal extent, so far as the legislative or juridical power of that country extends. For the actual universal jurisprudence—the historical law of nations-grows out of, or is discernible by the discrimination, (under private international law,) of a part of the law of each nation having universal personal extent, and constituting a standard, in its own courts of law, of the accordance of foreign laws with natural reason.'
$ 100. It may also be objected that it is a contradiction in terms to recognize a principle as forming part of the law of nations, or as being a principle of universal jurisprudence, and at the same time to intimate a possibility of its being contravened by the local law; for if it is not recognized in the local law it is not universally received; or is not part of the laws of all nations. Strictly speaking, this is true. Yet it is evident that the sovereign legislative power may contravene principles which before were universally received, or which in the history of jurisprudence have before had the character of a law of nations. But still these principles will be judicially known to have had that character, up to the period of such legislative act; and the tribunal would still recognize them as being, in the absence of legislation, the best exponent of the will of the sovereign power.
? It will be shown, however, in subsequent chapters, that there are cases, incident to the settlement of new countries, or the establishment of laws in countries which have not before had a local, territorial, or national law, wherein universal jurisprudence --the law of nations, becomes practically operative in a more direct manner; that is, where it is not merely a judicial means of ascertaining what principles of the local law mive universal personal extent.
And here appears the connexion or identity of the law of nations
-universal jurisprudence-with the only natural law, having the character of a rule of action, which can in the jurisprudence of any one country be distinguished from the rest of the posiitive law.' Ordinarily, the law of nations of the period is always incorporated in the customary municipal (national) law of the forum,' operating either as internal or as international law; and such is the intimate connection of the two attributions of universality under a judicial discrimination of the law (ante § 29– 36,) that it would be difficult to separate them. The instances will be few, if any there can be, where an opposition will occur of the law of nations, judicially cognizable at any particular period, and a local law having universal personal extent by judisial recognition only. Though it is plain that the supreme legislative power of the state may always disallow the rules of this universal jurisprudence by promulgating a contrary rule, having either a limited or a universal personal extent within its own jurisdiction.
$ 101. General or universal jurisprudence—the science of universal law, or the law of nations, so far as it exists distinct from the common or unwritten law of any one state or nation, is known by the long continued international comparison of the laws of various states; the ascertained harmony of their legislation, and of the judicial decisions of their tribunals; collected, digested and expounded by private jurists, and, in course of time, forming a distinct repository of legal principles, and, in some sense, a code of law having universal jurisdiction."
? Hence the jus gentium of the Roman jurists was often described by them as being identical with the unalterable rules of natural justice. Inst. Lib. 1. Tit. 2. $ 11, and hence with the Roman rhetorical writers it is often identified with natura, jus naturale. See Savigny : Heut. R. R, B. I. c. 3, § 22, and compare ante $ 19, 34; and Austin, Prov. of Jurisp. p. 190.
* Savigny: Heut. R. R., B. 1. c. 3, § 22.
* Wheaton, International law, $ 10, thus cites from Heffter's Europäischer Völkerrecht, $ 2.
" According to Hefter, one of the most recent and distinguished public jurists of Germany,--the law of nations, jus gentium, in its most ancient and extensive acceptation, as established by the Roman jurisprudence, is a law (Recht) founded upon the general usage and tacit consent of nations. This law is applied, not merely to regulate the mutual relations of states, but also of individuals, so far as concerns their respective rights and duties, having every where the same character and the same effect, and the origin and peculiar form of which are not derived from the positive institution of any particular state.' According to this writer the jus gentium consists of two distinct branches.
The distinction of the laws of any one state into rules which its tribunals are to extend to its domiciled subjects only, (or rather to persons who have never actually sustained relations under other laws,) and rules which, as having that universal personal extent which has been above described, they are to apply to all natural persons, whether they have or have not sustained relations under other laws, is necessarily connected with the recognition of such a general or universal jurisprudencethe science of a law of nations historically known by the application of international law. For the juridical and legislative action of nations or political states, is, as before shown, one of the most authoritative indices of natural reason, and therefore a test to determine what principles, in the local or internal law, may be judicially taken to be the effects of rules which are not only jural in and for that jurisdiction, but rules so far founded on the nature of man, in civil society, that they may be always judicially presumed consonant with the natural conditions of human existence, and therefore of universal personal extent or application;' and at the same time the separate judgment of
“1. Human rights in general, and those private relations which sovereign states recognize in respect to individuals, not subject to their authority.
“ 2. The direct relations existing between those states themselves.
"In the modern world, this later branch has exclusively received the denomination of law of nations, Völkerrecht, Droit des Gens, Jus Gentium. It may more properly be called external public law, to distinguish it from the internal public law of a particolar state. The first part of the ancient jus gentium has become confounded with the municipal laws of each particular nation, without, at the same time, losing its original and essential character. This part of the science concerns, exclusively, certain rights of men in general, and those private relations which are considered as being under the protection of nations. It has usually been treated of under the denomination of private international law.'
“Heffter does not admit the term international law,(droit international,) lately introduced and generally adopted by the most recent writers; according to him, this term does not sufficiently express the idea of jus gentium of the Roman jurisconsults. He considers the law of nations as a law common to all mankind, and which no people can refuse to acknowledge, and the protection of which may be claimed by all states. He places the foundation of the law on the incontestable principle that wherever there is a society, there must be a law obligatory on its members; and he thence deduces the consequence that there must likewise be for the great society of nations an analogous law.” But compare ante § 37 and the note.
Savigny, Vocation for our Age for Legislation and Jurisprudence, Hayward's transl p. 110.
“ On this point the well known prize question of 1788 merits consideration; which : equired a manual in two parts, of which the first was to contain a law of nature abstracted from the code. [Code of Prussia,] the second, an abstract of the positive law itself. This notion of the law of nature was very superciliously received, and thereby injustice was done to it; certainly, under this name, that ought to have been set forth which the legislator himself regards as universal, and not of mere positive enactment, in
each nation upon this point cannot, as has been shown, be manifested, except in the application of international law. In the present advanced state of jurisprudence, among civilized nations, when the various effects of international intercourse upon the relations of private persons have been so frequently made the subject of judicial and legislative consideration, the customary laws of commerce and war furnish rules which will be judicially known as authoritative, in ordinary cases, until new legislation intervenes. And it is rarely the case that a tribunal can make an original discrimination of its own municipal (internal) law, as being either universal or particular in its extent or application to private persons, when deciding on the international allowance of the effects of foreign laws.
$ 102. But if it is necessary in any case to decide,—whether any rule or principle of its own municipal (internal) law is to be taken, independently of any exterior authority, or criterion, to be an assertion of a universal principle-one applying to all mankind, or, rather-one to be applied to all persons within the jurisdiction of the state in certain circumstances of natural condition, irrespectively of their national character or previous subjection to other laws,—the tribunal can have no other guide than the rules of ordinary reasoning applied to the mode in which the municipal (internal) law is asserted or promulgated in reference to persons and things within its own territorial
his laws ;- an interesting historical problem; exactly resembling that of the Roman jus gentium."
As will be shown hereafter, the Romans took the jus gentium, i.e. law known by its acceptance among all nations, to be the best exposition of the law of nature, regarded as a rule of action, or a law in the primary sense of the word. After the establishment of Christianity in Europe, the Christian Church assumed the possession of a criterion of the law of nations, in a Revelation of which it was the instrument and exponent. (Arnoldi Corvini Jus Canonicum, p. 2.) It then denied the authority of the natural reason of mankind, however concurrent; and in a large part of Europe-perhaps the whole of Europe, anterior to the reformation, the canon law took the place of the jus gentium of the Romans; that is, beoame the written code of universal jurisprudence. In the canon law digests, natural law is first asserted as that part of the pational law of each country, quod inter omnes populos peræque custoditur: it being understood that the exposition of this universal natural law is the organized Christian Church. (T. Bozius, De Jure Status. Romæ, 1600.) From this time it would appear that jus gentium and law of nations, in the modern writers, were put for a law of which nations are the subjects, which law, as will hereinafter be shown, was, during the Roman Empire, identified with their jus publicum and jus feciale. Compare Decretals Prima Pars. Distinct. I. c. ix. Phillimore on International Law, p. 24, note. Heineccius, 1737. Jur. Nat. et Gent. L. I. c. i. $ 21. Butler's Horæ Juridice Essay, Canon Law.