DISTINCTION OF PERSONS.

49

Thus, there is a natural possibility that the same person may, at different times, be subject to different jurisdictions; and there is in every state a natural and necessary distinction between native-born subjects and alien-born subjects; which, so far, is a necessary, or axiomatic principle. But the different legal relations which make the legal distinction between native and alien subjects, or between temporary subjects and domiciled subjects, depend upon some rule of action enforced by the

state.

The fact of being present within a particular jurisdiction, with or without concomitant circumstances, might be taken, irrespectively of the circumstances of native, or foreign birth, to be that which should determine the operation of the laws of a state upon persons within its territorial jurisdiction in which case, the recognition of such fact becomes an axiomatic principle, in determining the relations of persons thus distinguished. A residence, or continuance, under certain conditions, to which it is not necessary here to allude more particularly, is, under the name of domicil, actually thus recognized: that is, it is actually taken to have a certain effect in determining the operation of the local law. The local, or territorial law of any one state or country might possibly make no distinction, between persons subject to its authority, in respect either to the circumstance of native or alien birth, or to that state of circumstances which is known as domicil: and if it were possible that there should be no recognition of legal rights and obligations arising out of relations caused by previous subjection to another dominion, there would, in that case, be no manifestation of international law, operating as private law.' When the local or municipal law is spoken of as applying territorially, without reference to persons as alien and native, or alien and domiciled, it is contrasted with international law-taken in the sense of a rule of which states are the subjects.

But when the rights and duties of private persons within any national dominion differ according to the circumstance of domicil or alienage; or vary as they may or may not have been subject to a foreign jurisdiction, the local or national law

'Bowyer: Univ. Pub. Law, 151-3.

is spoken of as applying differently to the persons so distin guished and in acquiring the character of a personal law, (in contrast with a territorial law,) may be itself divided into strictly municipal, (or internal), private law, and international private law; though each part rests on the same political authority and the condition of private persons, whether regarded as the subjects of rights and duties, or as only objects of action, (ante, § 21), is a necessary topic of one or the other of these divisions of the local, municipal, civil, or national law of each country.'

§ 55. According to what has been before said, every law determining the relations of natural persons, whether alien o native, is to be ascertained either from positive legislation, or by judicial recognition of laws founded in natural reason, and identified with the will of the state, (§ 29.) The autonomous decree (esto) of a sovereign power may attribute any rights or obligations, (being restrained only by the necessary conditions of things-§ 6,) to particular persons, or may attribute them generally to all persons within the territorial jurisdiction of that sovereign source of law." The tribunal, which administers law as the pre-existing will of the state, is restricted to declaring what law is (videtur), and in the personal extent which it gives to laws must be guided by certain existent criteria.

The ascertained will of the state is binding on all within its jurisdiction; though it has unequal effect upon different persons; creating different rights and obligations, in relations in which they are the subjects of rights and duties, or the objects of action. The action of men in society being different, the relations, rights and duties of all cannot be alike.

But an individual or absolute right may be ascribed by the law of a country to any number of natural persons within its domain, though it must be exercised by each, relatively to different persons and things-the objects of action.

1

Mr. Reddie uses the term internal law as synonymous with that law which he calls the national law-Blackstone's municipal law, and thus loses the benefit of the distinctive term internal to mark this division of the national (municipal) law according to its application to different persons. See Inq. Elem. &c., p. 97.

Compare Massé Droit Commer., Tom. i., § 37, and ́§§ 57–60, defining le droi civil, including le droit commercial.

2

Compare State v. Manuel, 4 Dev. & Batt., N. C. Rep. p. 23.

LAWS OF UNIVERSAL PERSONAL EXTENT.

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56. Such a right may attach to all domiciled persons, or to all alien persons. A certain condition or status of natural persons, whether consisting in rights and duties of a legal person, or in a chattel condition, may, whether determined by positive legislation or by a judicial application of natural reason, be the effect of either municipal (internal), or of international law, or of both; the extent, or application to persons, of a law originating in positive legislation, depending upon that legislation only; and there being no necessity for supposing that the dictates of natural reason on this point will be the same, in rules of action applying to alien persons, as in those relating to the native or domiciled inhabitants of any supposed national jurisdiction.

$57. Or the state, or supreme power, may attribute any individual right or rights to each natural person within its domain, whether domiciled or alien. In this case, the law attributing those rights, would, in the jurisprudence of that state, be a universal principle in respect to its personal extent; that is, in applying equally to each natural person. In this case, the individual rights so attributed are not only distinguishable from relative rights by existing in respect to the whole community, independently of relations towards specific persons and things, (ante, § 40,) but they may be called absolute, or primordial, or natural rights, because the law attributes them to natural persons simply as such, or as beings possessing the human form and nature, and as an intrinsic element of their human character.

§ 58. The extent of any principle or rule affecting the status of private persons is always subject to the supreme legislative power. But in the absence of such legislation, it must be determined by judicial criteria of natural reason as before set forth. (§§ 29 to 36.) Rules or principles determining the condition or status of natural persons may be derived from universal jurisprudence. But it is to be borne in mind, that, in being so derived into the jurisprudence of any one state, they do not, therefore, have the universal personal extent which is above spoken of. This extent of a personal law being dependent upon the will of the state in which it is applied; while a uni

versal character, ascribed to any principle, has reference to its juridical source or origin; that is, depends upon the fact of its having been applied by all nations, or the greater part, (ante, §§ 36-38:) which application may have been in respect to a greater or less proportion of persons.

The different extent of laws to natural persons according to their subjection at different times to different national jurisdictions, and the mode in which, by the application of international law to the relations of private persons, universal jurisprudence may be distinctly recognized, and local or territorial laws, affecting condition or status, may receive universal personal extent, will be considered in the following chapter.

NOTE.-The following extract from an Essay by Henry Sumner Maine, LL. D., On the Conception of Sovereignty, and its importance in International Law-Papers read before the Juridical Society, London, June, 1855-p. 26, may, with some readers, serve to justify expressions in the text, which may at first appear to be an attempt after a useless novelty of expression. Speaking of Austin's Province of Jurisprudence Determined, Dr. Maine says, p. 29: "And here, as I have alluded to Mr. Austin's treatise, I trust I may be pardoned for saying that I know no reason, but one, why it has not long since dispelled the indifference to the systematic study of Jurisprudence which was so eloquently lamented at the inaugural meeting of this society. [By Sir Richard Bethell, p. 1, of the same tract.] The one drawback on its usefulness has been its style-which is such as to repel a superficial reader, and not to attract even a patient one; but it would be foolish not to admit that there are abundant excuses for the peculiarity. England has no literature of jurisprudence; consequently, the English language comprises no true juristical phraseology. Our English law terms are strictly terms of art, and it would be absurd to attempt to strain them beyond their welldefined, long accepted, and technical meaning. The language, then, which must be used for questions of universal jurisprudence is popular language, infected with all the vices of common speech, vague, figurative and general. In employing it for such an examination of these questions as is appropriate to closet study, it is necessary to be constantly limiting and qualifying it, to be perpetually weeding it of metaphor, and to be carefully cleaning it from the misleading suggestions which lurk in mere arrangements of words and collocations of phrase. Among the numberless advantages which may be looked for from an extended study of Roman law, I am not sure that the highest will not be the introduction of a terminology, neither too rigid for employment upon points of the philosophy of law, nor too lax and elastic for their lucid and accurate discussion."

§ 59. In the definition of international law which was given in the first chapter, it was shown to have the name of a laro only by an improper use of the term, when considered as a rule of action for states in their several entity or personality; since, though it consists of a recognized body of rules distinct from the municipal (national) law of each state or nation, it is not prescribed to them by a superior, but operates upon them as political persons, or upon private persons within their respective domain, only by their own several allowance or consent. This being the legal or juridical view of the obligation of that law; whatever may be its source in a divine rule of action, or law of nature. When, therefore, private international law operates upon private persons, in any national jurisdiction, by the allowance of the supreme power of the state, it has, in respect to such persons, the same sanction and force as the municipal (national) law, and, as to all persons who are distinct from the state or sovereign, it has equally the effect and authority of law in the proper meaning of the term. The distinction of private international law from private municipal (internal) law arising, not from a difference in the nature of their authority over individuals, but in the character of the relations which they severally affect.

§ 60. When considering, in the first chapter, the mode in which positive law becomes known as the law of some one