in any state the condition of persons formerly subject to other jurisdictions must, for the state itself as a political person, be international law in the imperfect sense, only, of the word law; for it can only be that state's own acceptation of international obligations and rights. In other words, it will not be law in the strict sense except as identified, in respect to its authority, with the municipal law of the state.

This must be the character of whatever rule having an international effect or operation on private persons in any State of the United States may also be properly denominated international law-if the term is to be understood in the strict sense.

§ 589. But an exception may have been made by the Constitution of the United States to the exercise of the State or local power (reserved powers) in reference to persons anteriorly subject to other jurisdictions, that is, persons who in respect to the State or jurisdiction are either aliens, as before described, or persons who, while domiciled therein, have been temporarily subject to other jurisdictions; and some rule, having the effect or operation of international law by affecting such persons, may have been established by the Constitution; or power may have been granted to Congress to establish such a law.

Such provisions in the Constitution or the laws of Congress based upon such power would be identified in respect to their source and authority with the national municipal law; though in reference to the State or local jurisdiction and as modifying the extent of the law derived from the State or local authority they might be properly considered an international law for those States or jurisdictions.

§ 590. It is here supposed that such provisions in the Constitution or statutes of Congress might be so framed that they would apply, not only to the organized States of the Union, but also to the Territories and the District of Columbia as jurisdictions having, like the States, a local law. It will herein for the present be assumed that, if in such provisions the term State is alone employed, it may still perhaps be construed to include a Territory or the District of Columbia; and in the remainder of this chapter, when the term State is used, it will be understood as having, possibly, in this connection, that ex

VOL. II.-15

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

1 Ante, Vol. I. pp. 433, 434.

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 persons, 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.*

3

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

4

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.