440

NATIONAL MUNICIPAL LAW.

power which may be exercised over this territory by the United States, through their constituted instruments, must be determined by the natural or necessary law of nations,' as applied in public law to the action or mode of existence of sovereign states; or, by the reception, interpretation, or application of that law by the United States or by the national Government as their instrument; the latter being controlled in that respect by the Constitution, as the only legislative exposition of the mode in which any of the sovereign powers of the United States (i. e., of the people of the United States) are to be exercised."

§ 377. From the existence of this division of sovereign national powers to create law between the Government of the United States and the several States, which has been set forth in the last preceding chapter, and from the difference in the territorial jurisdiction of the laws thus originating, which has been above considered, a distinction may be made in the municipal laws of the United States, as being either national or local.

The national municipal law of the United States thus distinguished is that which originates in the national sovereignty of the United States, (people of the United States,) and which has national extent and jurisdiction over all persons and things within the domain of the United States, whether States, or territory not organized under a State sovereignty.

1 Ante, § 49.

The doctrine of the Supr. Court, in Dred Scott's case, 19 How. pp. 447, 449, 451, Opinion of Court, and cap. 3, is that whether the power of Congress, or of the national Government, over the Territories is derived from the "territory-or-other-property” clause, (Art. IV, sec. 3,) or is a necessary result of the existence of that Government and of its relation to the States and the people of the U. S.-Congress or that Government is not sovereign in a Territory as the people of a State are sovereign within the limits of that State, but that it is, like a State Government, restricted by the law from which it derives its existence, and that there are clauses in the Const. of the U. S., which, in and for territory, have an effect similar to that of a Bill of Rights in a State Constitution.

Mr. Benton, in his Examination of this case, holds that the Constitution of the U. S. does not have any such effect as private law in the Territories; that no rights of private persons "can be exercised under it without an act of Congress." See his introductory note. The general doctrine of the Court may be admitted, and then the question is, whether the right of a master in respect to a slave (domiciled, before, in a slave-holding State) is a right protected by the Constitution, thus operating as a Bill of Rights and as private law. This is a distinct question, and on this Mr. Benton's Examination has but little bearing. His whole argument being that Congress has absolute unrestricted power in the Territories.

LOCAL MUNICIPAL LAW.

441

The local municipal laws of the United States are those which originate in the separate sovereign power held by the people of each State, or in the powers of Congress, for local purposes, within certain limited territory; either of which last has only local or limited extent and jurisdiction within the limits either of such States or of such territory.

§ 378. Although this distinction in the municipal law is founded upon an anterior possession of sovereign powers proved or evidenced by the Constitution,' yet, since the Constitution is also itself a legislative act, and has universal prevalence and recognition in the States and in the territory belonging to the United States, as the supreme rule of positive law in public and private relations, so far as it can be applied to those relations, it must form a part of one of these divisions of municipal law; that is, the national municipal law.

§ 379. Since the legislative or juridical exercise of sovereign power can have no independent force or authority beyond the territorial limits of the state or political body holding that power, the local laws of the several States cannot have any independent extension or authority in the territory of another State of the Union, or in any local jurisdiction of the Government of the United States, nor can the local laws of districts, under the several jurisdiction of the Government of the United States, have any such independent extension and authority in the territory of any State of the Union, or of any other several jurisdiction under that Government.

§ 380. Though all positive law must be considered as operative within certain geographical limits, because always deriving its authority and coercive power from some organized political personality confined to certain limits by the natural or necessary law of nations, yet persons are always the objects of that law, and the relations of persons to each other and to things are its effects. Laws may not only be distinguished from other laws as operating within various jurisdictions, but also as having different persons for their object, and may be distinguished ac

3

1

1 Ante, § 331.

2 Ante, § 63.

'Ante, § 21.

442

PLACE OF INTERNATIONAL LAW.

cording to the differences which they create between the persons upon whom they operate, as well as by their territorial jurisdictions; that is, they may be considered in respect to their personal jurisdiction or as personal laws. This distinction may also be made in the municipal law of the United States.

The laws created by the exercise of any sovereign national powers, held by any state or political body to have effect within certain territorial limits, may, or rather must, operate differently upon different persons within that territorial jurisdiction. The laws, proceeding from these sovereign powers, themselves determine, to a certain degree, their own different effect upon different persons. But there are certain general principles connected with the nature of sovereign power, or the conditions under which it is held by states and nations, which, in every jurisdiction, indicate a difference in the application of local laws to persons within that jurisdiction.*

§ 381. It was shown in the first chapter, that from the existence of separate possessors of sovereign legislative power, as public bodies or polities, having different territorial jurisdiction, and from the necessary conditions of human society and intercourse, they may, as separate polities, sustain relations towards each other in the exercise of that power. And from this necessity, incident to their existence, and from the fact that there may be some relations of persons to other persons, and some rights of action arising out of them, which cannot, under all circumstances, be maintained, as legal rights, by the distinct authority of any single possessor of that sovereign power, those maxims, or rules of action originate, which are called "international law." 3

It is a circumstance incident to the nature of sovereign national power, and its distribution between various possessors, having, according to the mode of their existence, jurisdiction within certain territorial limits, that persons within that jurisdiction, or within those limits, may be distinguished as either native or alien subjects. The recognition of persons as aliens is

1Ante, §§ 26, 27.

'Ante, § 53.

3

Ante, § 10.

PLACE OF INTERNATIONAL LAW.

443

the recognition, by the sovereign source of municipal law in that jurisdiction, of an international relation. The law which affects the condition of the alien is the international law and the municipal (national) law taken together; because the recognition of a person as alien, and the discrimination of that municipal (national) law which shall be allowed to determine his relations and rights, (either that of his domicil or that of the jurisdiction in which he is an alien,) is itself international law; or, what is to say the same thing in different words, that discrimination is judicially made, in the jurisdictions whose tribunals have personal control over the alien, according to principles which, from their application, are called a law between nations, or international law; though they rest, for their legal authority and coercive force within any jurisdiction, on the sovereign power which is therein the source of municipal (internal) law.'

§ 382. This international relation between the possessors of sovereign national power and this recognition of persons in an international relation, may exist in reference to any one or more of the modes in which that power can be exercised. It may, therefore, exist between political bodies which, according to the conditions of their existence, can exercise sovereign national power in some of its forms only. Or, which is to state the same idea in different words, the sum of sovereign national power held by any one nation may be considered as consisting of various powers, all, or some only, of which may be exercised by any specified political bodies or persons; and this international relation may exist between any such political bodies and any other such, in reference to the exercise of the powers so held by them; provided the powers, so held, are held and exercised, as sovereign, or independently of all exterior authority.

§383. It being a basal principle of the public municipal law of the United States, which is proved by the written Con¬ stitution, as the evidence of a pre-existing fact, that the sum of sovereign national power is divided between the national Government and the several States, and that the powers held by the

Ante, §§ 53, 54.

444

NATIVES AND ALIENS.

several States are sovereign in their nature and mode of exercise, by each within its own jurisdiction, they are to be considered as sovereign and independent nationalities having full right to establish laws for their own domain by the exercise of those powers.1

§ 384. This division and distribution of sovereign power in the United States and the distinction of municipal laws having a variety of territorial jurisdiction, necessitates a distinction of persons as native or alien subjects of these various jurisdictions.

The native inhabitant of any one of the States is also, of necessity, subject to the national powers vested in the Government of the United States. But though, in this sense, a native of the United States and subject as such to the authority of the national Government, he would, in every other State, be still an alien in respect to the powers exclusively vested in such other State and the local law proceeding from those powers.

Also, since the national authority, vested in the Government of the United States, extends everywhere throughout the dominion of the States, he who by birth is an alien to that national jurisdiction, would be also such in regard to any State in the Union.

Buckner v. Finley, 2 Peters, 590. "For all national purposes embraced by the federal Constitution, the States, and the citizens thereof are one, united under the same sovereign authority, and governed by the same laws. In other respects the States are necessarily foreign to and independent of each other. Their constitutions and forms of government being, though republican, altogether different, as are their laws and institutions." See also, Warder v. Arrel, 2 Wash. 298, (Court of Appeals of Virginia,) Washington, J., in Lonsdale v. Brown, 4 Wash. C. C. p. 154, after speaking of the political nature of the union between England and Scotland says, "How different is the union of these States. They are, in their separate political capacities, sovereign and independent of each other, except so far as they have united for their common defence, and for national purposes. They have each a Constitution and form of government, with all the attributes of sovereignty. As to matters of national concern, they form one government, are subject to the same laws, and may be emphatically denominated one people. In all other respects, they are as distinct as different forms of government and different laws can render them. It is true that the citizens of each State are entitled to all the privileges and immunities of citizens in every other State; that the sovereignty of the States, in relation to fugitives from justice and from service, is limited; and that each State is bound to give full faith and credit to the public acts, records, and judicial proceedings of the sister States. But these privileges and disabilities are mere creatures of the Constitution, and it is quite fair to argue, that the framers of that instrument deemed it necessary to secure them by express provisions."

Descriptions like the above will have a variety of significance, according to the political theories of the reader and the speaker.