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limits. It is probably impossible to state any legal rules controlling that judgment of the tribunal, (arbitrium boni viri,) unless equivalent to the following :
1. If the will of the state, in reference to the action of private persons in certain supposed circumstances, is expressed by direct legislative acts—a form of words,—it may be expressed in words requiring a universal application, or an extent to all natural persons within the jurisdiction of the state.
2. Wherever the local internal law, derived either by positive legislation or by custom-judicial interpretation of natural reason, attributes rights or duties, to the native or domiciled inhabitants of its jurisdiction, as the incidents of a relation existing independently of the rules of action which it enforces as positive law; or, to vary the form of expression, where its rules of action are predicated upon the recognition of such a relation as being part of an existing state of things, in which such persons as the constituents of society are found, and as being the effect of law in the secondary sense of the word, (and therefore of natural law, in the only sense in which it is, in jurisprudence, distinguishable from positive law, ante, $$ 19, 57,) the source of that local law must be judicially presumed to attribute the same rights and duties to all persons within the jurisdiction or forum, who are in the same circumstances of natural condition.
$ 103. But since the supreme national power of the state may always, by special legislation, determine the legal relations of any particular persons within its domain, and legislation, where it exists, is superior to any indication of the will of the state judicially derived from any other source, the private international law of any one country may, in part, consist of rules applying to aliens (or persons anteriorly subject to other jurisdictions) only, thus derived from positive legislation, modifying, wherever they extend, the judicial application either of principles derived from universal jurisprudence—the historical law of nations—or of principles of the local law having before had a universal personal extent within that jurisdiction. So that private international law, as well as every other branch of posi
AUTHORITY OF PRIVATE INTERNATIONAL LAW.
tive law, may be ascribed either to a natural origin, or to a positive one strictly so called ;-positive legislation.'
$ 104. The international law, in determining under judicial application the rights and duties of persons not sovereign, or not holding sovereign power, is thus a part of the private law prevailing within a national jurisdiction—a rule for persons and tribunals under that jurisdiction, coexistent with the private municipal or internal law therein, and distinct from it in its object and purpose, but not in its authority or political source. It being observed that by such a distinction in the object of the law, and by the recognition of persons as alien to the supposed municipal (internal) law, the first part of international law, (according to the division before given, $ 48,) is necessarily implied; which part has the character of law in the secondary sense only, being axiomatic principles connected with the existence of states and nations, among which the three fundamental maxims before given, (S$ 63, 67, 68,) are in fact comprised. Thus the international private law, as well as every other branch of private law, has also the nature of public law, since it determines, to a certain extent, the mutual relations of states, or the holders of sovereign power. Though, so far as it may do this, the rights and duties of states, incident to those relations, are not the effect of law in the same sense as are the rights and duties of private persons, growing out of those relations; the international law being, for private persons, a law in the strict sense of the word, by the authority of the author and source of that municipal (national) law, to whose jurisdiction they may be subject; but, for states or sovereigns, only a law acknowledged by themselves to have moral obligation,-a rule of “positive morality.” It being only by way of analogy that any rules of action can be called a law for sovereign nationalities.
$ 105. The settlement, on general principles, of the international prevalence of laws having different national origins, forms that topic of jurisprudence which has been denominated by Huber, Story, and others, “the conflict of laws.”: Strictly
* Compare ante, 88 29–36.
* See ante, § 11, and note. : The phrase collisio legam (Hertius) is also employed : with the Germans--Collision der Gesetze. This, like the term comity, has been called by some of them a romantic—" abentheurlich ”-expression : (Maurenbrecher: Deut. Pr. R., 2. Ausg., $ 76, not. 3.) Wächter, admitting that the term is liable to misconstruction, retains it because its significance is now well understood. Archiv. f. Civ. Prax. Bd., 24, p. 237, n.
CONFLICT OF LAWS-PERSONAL LAWS.
speaking, there are no conflicting laws known to any national jurisdiction. Every rule which has the force of law within any one such jurisdiction derives its force from one sovereign will, and conflicts with no other rule having the same force; whatever may have been the process by which it is judicially ascertained or derived, either by following judicial criteria of natural reason, or the expressed will of the political source of law for that jurisdiction. This is a consequence of the first two of the three fundamental maxims before given, or only another mode of stating them.
$ 106. If the supreme power of the state maintains within its own domain any rights or obligations of persons which have not attached to those persons under its own territorial or local law, the law under which those rights and obligations were created has a particular personal extent, or operates as a personal law. The private international law is a personal law so far as it applies only to a certain class of persons, viz. aliens, or persons who sustain relations which have been created by the law of a foreign jurisdiction, ($ 53.) Those relations having been once thus recognized in international law, the rights and obligations arising from them will be continued, in the same territorial jurisdiction, when such aliens become domiciled inhabitants; unless there is some provision of the local (internal) law which specifically forbids their attribution to domiciled subjects. And the law which had at first a personal extent, by being internationally recognized in the case of aliens only, may thus thereafter become a part of the municipal (internal) law having a new territorial extent.
$ 107. It should be noted that the principle upon which this international recognition and continuance is made is not that the law recognized had a personal character, originally, in the territory in which it first existed, and established those rights and obligations which are here supposed to become the subject of
As to the case of different laws originating under the same national authority and not conflicting in this sense ; see Bowyer. Univ. Pub. Law, p. 146—7. Lindley's Thibaut, $ 37. Savigny : Heut. R. R., B. III., c. i., $$ 346, 347, 348.
international recognition. All laws determine relations of persons, (ante, $$ 21, 22,) but, according to the view here given, the personal character of a law thus internationally supported is a consequence of its international recognition, rather than the cause of it. It is said by writers on the conflict of laws quoted by Story, in Confl. of Laws, p. 12, that “personal statutes are held to be of general,obligation and force every where;” and these are contrasted with real statutes which are said to have no extra-territorial force or obligation. By statutes in that use of the term are not intended legislative enactments, but any rules of law affecting relations of persons to other persons and to things :' and by personal statutes are generally intended those rules which have determined the individual rights of private persons and their capacity for relative rights;' though the difficulty which has been experienced in stating general rules to distinguish what statutes are real, what personal, and what mixed, is a proof of the insufficiency of the distinction to determine their international admission. It would, perhaps, be equally correct to say, that statutes which are held to be of general obligation and force every where are personal statutes. Their personal character would then be the result of the extent judicially given to them: and the question is—when will a judicial tribunal be bound to admit them to have this personal extent? If the authority for the tribunal, in doing this, is found in the historical fact of their international recognition, then their personal extent is, in fact, derived from the customary law of the forum.“
Fælix: Dr. Internat. Pr., $ 5. "Statutum, coutume particulière." $ 19, “ Mais en même temps le terme statut, surtout dans la matière du conflict des lois est ernployé dans un sens plus étendu, et il est pris comme synonyme du mot loi." Merlin : Repertoire, tit. Autorisation Maritale. Bowyer: Univ. Pub. Law, p 163. 2 Kent Comm., p. 456-7.
The term appears originally to have been used to designate a law whose territorial extent was limited to some several province or district of a national state or kingdom, and in that contrasted with the common law of the land. Savigny: Heut. R. R., B. III., c. i., $347. Thus in England the particular customary laws of borough English, and gavelkind (v. 1 Bla. Comm., 74, 75) correspond to statuis of the French Provinces.
Story's Confl. of Laws, $ 51, and generally ch. iv. of that work.
* Reddie's Ing. in Internat. L., pp. 425—7. Hertius: De Collisione Legum, $ 4, speaking of real, personal, and mixed statutes :-“ verum in iis definiendis mirum est quam sudant doctores."
* Schaffner, $ 31. Reddie's Ing. in Internat. L. pp. 477-8. Various European writers for and against this view are cited by Wächter in Archiv. &c., Bd. 24, pp. 255—261.
PREVALENCE OF PERSONAL LAWS.
It would indeed seem, from the writings of the civilians, that there was a period in the jurisprudence of Continental Europe when this personal character of a law was regarded as the juridical basis of the international recognition. And it is plain that after laws of a certain class or character,-laws affecting a specific class of relations,-have, in a number of instances, been allowed international recognition on other grounds, the fact of their having been admitted to have a personal extent within foreign jurisdictions becomes an evidence, to the tribunals of any one forum, of their jural character; and, by that international recognition, they may have acquired that historical universality, which gives them, before the individual judicial tribunal, a legal existence distinct from the municipal (internal) law-the law having territorial extent in and for the forum of jurisdiction. As a class of laws which have received international recognition, in determining the relations of persons passing from one territorial jurisdiction to another, they may be called personal laws, and so distinguished from laws which have had extent only within certain territorial limits.'
Most of the cases, also, which are cited by writers on this subject, to show the international recognition of certain laws denominated personal laws, have arisen between jurisdictions which, though having distinct local laws, were under one sovereignty or supreme political power: wherein, therefore, the laws of each province would necessarily be regarded as jural by the tribunals of other provinces under the same sovereign : as in the different provinces of France, when different local laws prevailed therein, but all deriving their legal force from a single juridical and legislative authority.'
$ 108. The various legal relations which a person may sustain, in respect to persons and things, together constitute his legal condition. Some of the rights arising out of those relations must, in their nature, be local, and can be exercised only
Some states, though correlatively independent, may still be so connected by a customary international law, that laws affecting the condition of their respective inhabitants have a reciprocal recognition in their several tribunals which is not given by those tribunals to laws particularly derived from other states. As, for example, the various dominions constituting modern Germany. Comp. Savigny: Heut. R. R., B. III., c. i., & 348. Wächter: Archiv, f. d. Civil. Pr., Bd. 24, p. 252.
Pothier: Coutumes d'Orleans, ch. i. Foelix : Droit Internat. Pr., p. 24.