the United States-in their application to aliens of either class-constitutes the private international law prevailing in and for the United States; being still law only in an imperfect sense, when distinguished, in respect to its authority, from the municipal law which it modifies; since the so-called international law, in applying or restricting the municipal or local laws of any jurisdiction, still derives its legal force from the source of the local law.1

§ 388. But although that application or restriction depends, for its ultimate authority, upon the source of the municipal law, it may also be made judicially by rules derived, as a law of natural reason, from the general practice of nations, or from the writings of jurists who have analyzed that practice and shown the mode of its application in supposed or actual cases; and as such may be distinguished, in any particular state, from the municipal law, in its origin and juridical basis, as well as in its operation upon a particular class of relations.2

3

It is, however, important here to recur to a distinction in the nature and authority of those rules of action, which together may be called private international law. All law applying to private relations and personal condition is in a great degree public as well as private law. Of this international law, thus applied to private relations, a portion is preeminently public, in being connected with the very nature and mode of existence of all sovereign states, or of all possessors of sovereign power, as has been shown in the first chapter, where this portion has been described under the nature of "natural or necessary law of nations."

Since, therefore, the several States and the Government of the United States are the possessors of sovereign powers within their determined geographical limits, this portion of international law enters of necessity into the political Constitution of the United States, and forms a part of the national municipal law, and is constantly operative.

or as international law, are necessarily the same, or have the same legal force within the jurisdiction of every possessor of sovereign power. But the actual application or modification of the municipal laws of any one jurisdiction, when applied to the relations of aliens, is itself private international law, (from the character of the persons to whom it applies, which character is fixed by the maxims last above spoken of,) in the jurisdiction in which it takes place. And since that application or modification depends, within any independent jurisdiction, upon the will of the sovereign source of the municipal law for that jurisdiction, and may be different in jurisdictions under separate sovereigns, therefore this portion of international law may be said to vary under different sources of municipal law. And, in being identified in authority with the municipal law, it may truly be considered as a part of that law; though it arises from the fact that there are separate possessors of sovereign power existing under necessary conditions, and that there are actions and relations of persons which cannot continuously exist under the exclusive control of any one possessor of that power, and which therefore have an international character. Now since the several States have separate jurisdictions or domain, in which they have sovereign powers to determine the relations of private persons therein, they may have a different practice in the application of their municipal laws to aliens. Or, it may be said, their municipal laws may differ in their recognition of the relations of aliens derived from other laws. Hence a portion of the private international law may not only be different in the different States, but must be classed with local and not with national law.

§ 389. The Constitution of the United States, in being the supreme public law and the evidence both of the location of sovereign powers and of their extent and limitation in respect to private persons as well as to territory, takes effect on the persons, above described as aliens, by determining the sources (political persons) from whom the private international law, above defined, shall proceed.

1 Ante, § 10.

The Constitution might contain provisions directly establishing the absolute or the relative rights of aliens of either of the classes before described, i. e., either foreign aliens or domestic aliens, and limiting to that extent the powers of the national Government or those of the several States to affect the legal condition of such persons. Such provisions in their source and origin would be identified with the national municipal law; though being founded on a recognition of persons as aliens, they might be called a part of the private international law. In whatever degree such provisions might recognize private persons as foreign citizens or subjects—that is, persons within the dominion of the United States, not only alien to the United States, but sustaining relations to foreign states or nationsthey would be nothing more, as a law, (rule of action), for the nation, than the voluntary reception of a rule of international duty by the supreme power of the nation, and alterable at its will.

So far as such provisions might limit the application of State laws to persons who are aliens, either foreign or domestic, in respect to State jurisdictions, they would have an international effect or character by distinguishing those persons from native or domiciled subjects of those States. But, being law throughout the United States, independently of the will of the single States, as distinct political communities, the extent or personal jurisdiction of whose laws they would control, they would be law in the strict and proper sense, national municipal law— operating on all persons within the United States, irrespectively of the will of the several sources of local municipal law, and therefore not international law between the States or for the States, in that imperfect sense of the term in which international law prevails among independent nationalities.'

§ 390. Among the necessary incidents of the existence of sovereign nations or states is the fact or axiom, (natural or necessary law of nations,) that aliens, under any system of municipal law, may acquire within its jurisdiction, the character of

native born inhabitants, by voluntarily abandoning those relations which they held under international law, and, with the consent of the sovereign power legislating within that national jurisdiction, passing under the exclusive control of its municipal (internal) law.

This incident of the extent or operation of municipal (national) law may be considered with reference either to foreign or to domestic aliens.

391. Since within any State of the United States the municipal (internal) law proceeds from two sources, the foreign alien might acquire the relations of a native born citizen under each source of that law. But in that case, the changes of the character of an alien for that of a native inhabitant, in regard to each source of that law, would not necessarily be simultaneous or have any necessary connection. There is nothing in the nature of the division of sovereign powers between the several States and the national Government, nor in the fact that the powers held by each must be taken together in order to form the sum of sovereign national power, to prevent the States from granting, each within its own territory, to an alien resident any civil (social) or political rights within the scope of the relations determined by their separate share of sovereignty. Nor is there any thing to prevent the Government of the United States from granting, within the several States, to foreign aliens, the civil or political privileges of a native of the United States in relations established under the supreme powers held by itself. But, from the sovereign and separate nature of the powers held by each, neither, without special provisions in the Constitution to that effect, could alter the personal relations of aliens towards the powers held by the other; even while having territorial jurisdiction over them, nor give to them, in all respects, the character of its own native born subjects; who, by birth, are equally native to the jurisdiction of a State and to that of the United States. And, regarding liberty as consisting in the possession of rights under some possessor of sovereign power-neither could confer upon such alien liberty in legal relations determined by the powers belonging to the other.

Still less could a State, without agreement, give to a foreign alien the rights of a native born inhabitant before the local municipal law proceeding from the separate share of power belonging to another State.

§ 392. Although, upon his removal into another State of the Union, the relations of the native inhabitant of any one State would remain unchanged, under the national municipal law, he would still, as before said, be an alien in such latter State to the local law. A State might receive such persons-domestic aliens -into the condition of its natural born subjects. But this would depend upon its own will and election-its own view of the force of international law, as law in the imperfect sense,-unless the Constitution of the United States should contain provisions regulating such change of alienage in the case of those persons, and have, in this respect, international or quasi-international effect between the several States, with the authority and extent of national municipal law.

§ 393. When the relations or rights and obligations of aliens to the United States (foreign aliens) are to be determined, as a topic of international law, it is first to be inquired,-whether any and what rights or relations are determined for them by the Constitution, as a law affecting the rights of private persons, or as private law?

Next: What are the relations and rights of persons falling within the sphere of the national Government, and what relations are subject to the remainder of power vested in the several States ?

And lastly: What is the actual application by the State, or by the national Government, on either hand, of its municipal (internal) laws to aliens; or, in other words, what is its acceptation of the private international law applying to such aliens.

§ 394. When the relations or rights and obligations of domestic aliens are to be determined, it must first be inquired how far they are fixed by that national municipal law which applies to such persons simply as native or domiciled inhabitants. within the jurisdiction of the national power; so that, whether the person be domiciled or alien in respect to such State, they