tended meaning, or as being equivalent to the words-State or other jurisdiction which, like each of the States, has a several

local law.'

$591. If such constitutional provisions and statutes of Congress should, like other portions of the national municipal law, be taken to act imperatively on all persons within the jurisdiction of the United States, irrespectively of the share of sovereign powers belonging to each State severally and without the intervention or juridical action of the States exercised by each within its own jurisdiction, they would have a different character and authority, in respect to the jurisdiction of any State, from international law as ordinarily existing between independent nationalities, then being law in an imperfect sense only, and acting on private persons within any state or national domain by its own sovereign allowance or acceptation.

On the supposition above stated, these provisions and statutes would not depend for their international effect upon the will of the local dominion, the extent of whose municipal law they should limit or control.

$592. According to the view of the nature of the Constitution which has herein been taken, every provision contained in it which declares the rights and obligations of private persons (whether it operates as internal or as international law) is to be regarded as of itself sufficient to give legal existence to those rights and obligations in the relation which they consti

tute.

If, on the contrary, the Constitution is to be considered the formulary of a federal compact between States, each originally and severally possessing all the attributes of a sovereign nation; if it now operates in each State of the Union only by being identified with the continuing will of that State or of the people thereof as a several independent sovereignty; if it is always subordinate to and dependent on that will for its coercive effect on private persons, then it would seem that all its provisions have the character of public international law only, and that the relations of private persons are not affected

by any of its clauses, otherwise than as they might be by ordinary international treaties or compacts.'

593. If, as some have maintained, the constitutional provisions the object of which is to secure within the jurisdiction of the several States rights and obligations of private persons, with reference to their previous subjection to the laws of other jurisdictions, were intended to act on the States themselves as political persons and to create a relation in which they, as such persons, should be the subjects of a right or of a duty, these provisions would have the force of public international law only, even though the legal relations of private persons may be involved in the maintenance of such right and the fulfillment of such duty. Or, whether such provisions would of themselves act on private persons and be classed as private international law-would depend on the question, whether, while acting on the States as their subjects, the Constitution had provided means for making them coercive independently of the action of the several States, or had left their effect upon private persons to depend, in each State, upon the action of the State power. In the latter case, these provisions would not be law in the strict sense, and they could acquire the force of positive law only by means of some juridical action on the part of the State, by which they should become part of that international law which in each State is, in its authority over private persous, identified with the municipal or local law of the State. If, on the contrary, a power had been vested by the Constitution in the government of the United States to enforce the duty and sustain the rights comprehended in that international relation by acting either on the States or their governments as political persons, or on natural persons within their territorial limits, these provisions would of themselves create legal relations. In this case, at least after the rights and obligations of private persons which are involved in the relation had been. declared by the legislative action of the national government, they would have the same force and effect as private law which

'See this illustrated, 1 Calhoun's Works, pp. 206–212.

would belong to the constitutional provisions and statutes of Congress described in a former section.'

§ 594. But though, according to the view herein taken, the clauses in the Constitution having this international or quasiinternational character are limitations of the powers of the States, in respect to some relations of private persons, they resemble other clauses which contain restrictions on the States, and others which, according to their specific tenor, delegate power to the national government, in being the evidence of the "residuary "powers of the States in reference to other relations. These clauses recognize the fact, that there are certain powers of sovereignty vested in the States which, except as by these clauses limited, are exercised independently and affect the condition and relations of all persons within each State as by its own local law. They therefore recognize or are consistent with the existence of a true international private law between the several States."

595. If among the provisions of the Constitution there were any declaring the rights and obligations of private persons within the limits of the United States, with reference to their anterior subjection to the laws of foreign jurisdictions, or any prescribing rules for the action of the national government in relations existing between the States, united and several, and foreign nations, such provisions would be a law in the strict sense for that government and for the several States, by being identified in respect to source and authority with the national municipal law, though affecting the international relations of the United States as a distinct jurisdiction among the family of nations. But, they would not be binding on the ultimately sovereign nation, as law, in the strict sense, however nearly they might coincide with the general international usage of other nations, since within the territory of the United States, regarded as a single political state, they would have authority only by the national will. They would only be the national reception of international right and duty, and be liable to change by the same power, irrespectively of the will of any external source of positive law.*

Ante, § 591. Ante, § 361. 'Ante, §§ 587, 588.

1 Ante, Vol. I. p. 499.

596. So far as the relations of foreign alien persons are not fixed by any provisions of the Constitution, the private international law determines their condition under the national or the State jurisdiction respectively, only through its recognition and allowance by the government of the United States or by the several States individually; according to the nature of the power held by that government or by each several State, within their respective jurisdictions, over the relations of private persons without reference to the distinctions of domicil and alienage.

Wherein the relations of domestic aliens are undetermined by the Constitution or by the legislation of Congress under it, the operation of the respective local laws of the State of their domicil and of the State forum in which they may be found is also determined, in the latter, by international law only as it may be received and allowed by the source of the municipal (local) law therein; the several States being in this respect like independent nationalities.

$597. This international allowance may be regulated by positive legislation proceeding from the source of the municipal (internal) law of the jurisdiction in which the alien, or person anteriorly subject to another jurisdiction, is found. But besides, according to what has been said in earlier chapters respecting the nature of private international law, there are rules for the international allowance and application of different municipal laws to persons known as aliens or persons thus before subject. to other jurisdictions, which, though not derived from positive legislation, may be judicially recognized as authoritative in making such allowance and application; rules which are distinguished in their personal extent from the municipal (internal) law of the jurisdiction in which they are applied, though identified with it in authority and always subject to modification by legislation proceeding from the political source of that municipal law.'

§ 598. The judicial allowance of any rules or maxims to have international effect in any particular case where specific legislation does not apply, is to be settled by the following considcrations.

1 Ante, § 122.

The principle, already stated, in regard to the continuance of the laws prevailing territorially in any dominion upon a change in the investiture of sovereign power over it,' extends to the recognition of rules formerly received within that dominion for international law, as it does to the recognition of the former municipal (internal) law, with the same exception in regard to laws conflicting with the existence or political conditions of the new sovereignty. Whatever therefore had been received as a rule of international intercourse for the colonies remained and had the same effect as private international law for the new States; modified in its application to private persons by the fact that Great Britain and the residue of the British empire had become a foreign dominion in all respects.

This international law would afterwards be liable to change in its various applications according to the distribution of sovereign power among the new States, still continuing parts of one nation by their public law. This distribution has occasioned the distinction of a national municipal law and the local laws of the States, and a discrimination of persons as foreign and domestic aliens. Until changed by positive legislation, then, the general principles already stated in the historical description of the colonial law will determine the extent of these different laws in respect to persons before subject to other jurisdictions. They will be judicially taken to determine the extent of the national municipal (internal) law and of the State municipal (internal) law to foreign aliens, and the allowance, as to them, of the effects of foreign laws. They will in like manner be taken to determine the extent of the local municipal (internal) laws of the several States to domestic aliens, and the allowance, as to them, of the effect of the laws of their domicil. These general principles, illustrated in the customary jurisprudence of the colonies, together with the constitutional provisions and the legislation of Congress and of the several States, having either international or quasiinternational effect, will therefore constitute the private international law of the United States. These will be the law

1

1 Ante, § 123.

Ante, § 342.

3

Ante, §§ 377, 384.