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APPLIED INTERNATIONAL LAW.

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particular personal law for the regulation of such ministerial instruments of the state; the administration of which is distinct from that of the ordinary territorial law. Thus there is a rule of action for those by whom the ordinary operation and administration of the Government is continuously maintained.' And it appears that the power of pronouncing judgment under the military and naval laws of the United States is not that judicial power of the United States which is referred to in the third Article of the Constitution. For although judicial in its nature, and performed under the authority of the United States, it has been by the constant usage of all nations exceptional to the civil administration of justice; though, in England and America, subordinate to it where the rights of persons under civil laws, as distinguished from military, are concerned.2

§ 467. So there is an important class of legal relations (i. e., relations composed of legal rights and obligations) which arise out of that international law which has more of the character of public than of private law, and which, as such, may be distinguished from the ordinary positive or municipal law. From the exterior character of this law, that is, from the fact that it must operate in places not included within the territorial forum of ordinary judicial tribunals, the rights and obligations incident to these relations must be coercively maintained by the executive or administrative function of the Government, acting independently of the judicial function, in a greater or less degree; a degree determined partly by the general rules observed by civilized states in reference to such objects of human interest and action as cannot, from their nature, be distinctly divided among and included under the limits of different states, and partly by national customary law derived from the action of the predecessors of the existing Government in similar circumstances; each

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In the French, Droit gouvernemental; German, Regierungs Recht, including police law and the laws of financial economy, Droit financier, cameral und Finanzrecht, jus camerale; see Falck's Juristiche Encycl. §§ 41-44. And, in popular or republican governments, those rules by which the existence, continuance, and action of legislative bodies are determined. See Cushing's Law of Legislative Assemblies, Introduction. * See 1 Kent's Comm. 341, note; U. S. v. Mackenzie, Judge Betts' decision, U. S. District Court, in 1 New York Legal Observer, 371.

ទ Ante, § 10.

nation having in this respect a peculiar law,' a jus proprium, differing more or less from that of other nations, according to the greater or less degree in which it may be historically connected with them, or in which it may have with them a community of origin and language, and a political affinity."

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Though always supposed to conform to a general law prevailing among all nstions, public international law, the "law of nations" in that sense; and by English and American jurists it is rarely distinguished by any other name. Compare ante, p. 88, note. By the French writers it is designated droit gouvernemental exterieur; by the Germans, äusseres Regierungsrecht, or äusseres Staatsrecht; Falck's Jurist. Ency. $$ 45, 135.

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Thus, whether an administrative Government (not identical with the ultimate possessor of sovereign power) may or may not at its discretion deliver, to the custody of foreign states, persons who are demanded as obnoxious to the punitory law of such states; or, if it may so surrender such persons, whether the act requires the co-operation of two or more of the three functions of power, when separately invested, are questions not determinable by public international law alone, simply as a general rule among nations, but depend very much on the internal public law of the state and of its form of government; which, therefore, must always be taken into account in the application of an international treaty for such extradition or rendition.

Falck's Jurist. Encycl. § 135, Fr. ed. "On distingue avec raison, du droit des gens positif de chaque état particulier, le droit des gens positif universel, attendu qu'on peut apercevoir, au moins entre les peuples qui entretiennent ensemble beaucoup de relations, un accord sur les règles de droit positif aux-quelles ils conforment leurs actions et d'après lesquelles ils veulent qu'elles soient jugées."

CHAPTER XVI.

THE LOCAL MUNICIPAL LAWS OF THE UNITED STATES, AFFECTING CONDITIONS OF FREEDOM AND ITS CONTRARIES, CONSIDERED IN CONNECTION WITH PRINCIPLES OF PUBLIC AND PRIVATE LAW WHICH HAVE BEEN STATED IN PREVIOUS CHAPTERS.

§ 468. Reference has already been made, in the eleventh chapter, to the fact that at the date of the Revolution the geographical limits of the original colonies were not definitively settled. The present limits of the older thirteen States and of the States Kentucky, Vermont, and Maine, were determined by various agreements between the States, to which it is not necessary to refer more particularly, and by the cession or grant of portions of the territory claimed by them, or by some of them, to the Confederation or to the United States in their national or federal capacity. These older States will herein be taken to have had their present boundaries from the period of the separation of the colonies from the British empire. The effect of the different cessions of territory made by some of those States to the United States, in determining the existence of local laws in and for certain limits, will be considered in the history of the laws of the Territorial jurisdictions and new States afterwards formed in the territory ceded.

§ 469. It has already been shown that the people, who (under the name of "the people of the United States" in the preamble. to the Constitution) appear as the constituting and delegating

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person, and the people who, in the tenth Article of the Amendments, are declared to be, in the alternative with the States, the possessor, by reservation, of the powers not granted to the national Government, are of necessity to be recognized as already existing in the form, organization, and political personality of the people of "several States," although having, antecedently to the Constitution, a national organization and integral political personality. The existence of the political people of each several State is, therefore, not a result of the Constitution, (as of a law in the primary sense,) but only a fact proved or asserted by it, (as by a law in the secondary meaning of the term.)' And, in accordance with the view which is herein before taken of the nature of the Constitution of the United States and of the meaning of the term law when spoken of as determining the actual investiture of sovereignty, the supreme and independent powers which, according to that Constitution, are vested in the several States or the several political people of those States are not taken to be held by such States or people under a law in the strict sense contained in the Constitution; but that possession must be considered antecedent to law, in the sense of a rule, and co-ordinate with the possession of other sovereign powers by the same States, or the people of the same States, united. The Constitution, in determining this relation also, being a law in the secondary sense only, the statement or evidence of an existing fact. Though in reference to persons who are the instruments or the subjects of that power, it has the effect of law in the primary sense, or of a rule of action.

§ 470. As, therefore, the possession by the united people of those powers which in the Constitution are granted to the national Government is a fact underlying the national municipal law, it is in like manner the first or basal principle of the local law of each of the several States of the Union that the people thereof, as a political personality, pre-existent to the State Government or the organized instrument of that sovereignty, are the actual continuing and original possessors of that separate share of sovereignty spoken of in the Constitution of the United 1 Ante, §§ 330-346.

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POLITICAL PEOPLE OF THE STATES.

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States as being "reserved to the States or to the people." As the political existence of the people of each State is not caused by the Constitution of the United States, neither is the possession of those powers by that people an effect of the same; neither fact being established by it for the future; unless the guarantee for a republican government' has the effect of securing such a popular or public (national), as opposed to private, investiture of the political sovereignty to be exercised severally in such State over persons and things therein.

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§ 471. Although the fact of the possession of this share of powers by the several people of one of the States is thus a fact antecedent to the recognition of the positive law of that State, its local municipal law, yet the mode in which individual inhabitants are to participate in that sovereignty and be individual members of the political people, (which is political liberty considered as the right of private persons, according to previous definition,') is the consequence of a rule of action made positive law' by the will of that political integer, the political people of the State. Which law is private law, in respect to its effect upon natural persons, though public law in its relation to the existence of the State.

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§ 472. In each State of the Union, on the assumption of political sovereignty by the confederated colonies in the Revolution, the laws determining the actual constitution or composition of the political people of the colony continued, by the very fact of the assumption of independent supreme power by the people of the United States, and were established in the successful maintenance of that assumption."

1 Ante, § 424.

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Ante, § 354 and note.

Municipal law of the State, meaning that law which is both internal and international in personal extent, and which, in its kind, is more properly called national, as derived from the exercise of independent sovereign power such as belongs to states or nations, ante, § 9. But, to avoid confounding it with that law which is herein called national from its origin in the will of the United States as an integral nation or state, the word municipal is here used for the State law. Compare ante, p. 222, note. 4 Ante, § 352.

Ante, § 335-346. The people of the U. S. are primarily known as the people of the several States (ante, § 343). If, therefore, the doctrine of the social compact has ever been realized in the political history of this country, it must have been in the existence of some several State or States. But neither the history of the States nor that of the Union exhibits any illustration of the compact which might not, with equal

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