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plying to all legislative acts. But, under any construction which may be given to any of these provisions, they are all assumed to indicate an international or a quasi-international relation, whether it be a relation between the States, or between States and the inhabitants of other States, or between private individuals discriminated as inhabitants of different States, and the persons standing in the relation indicated are regarded as the subjects of international rights and obligations. From these admitted characteristics the intended effect of these provisions upon relations of private persons cannot be determined without reference to rules of interpretation and construction which would apply to international agreements; even though their legal force or operation, when their meaning has been ascertained, should be held to be not merely that of ordinary international agreements between the several States whose jurisdiction and laws are therein referred to, but that of private law resting on one sovereign will, having equal authority throughout the United States.'

§ 605. The standard of. the meaning of the contract must be one common to all the parties to that contract. The force of international contracts, when judicially applied to private persons, is determined by principles taken to be a rule for states, and called, in that sense, international law or law of nations. If such a rule can exist and be judicially applied, there must be a similar juridical use by different states or nations of the terms which define those relations of private persons which grow out of their co-existent, but independent, existence and reciprocal action. A principal part of international law, whether public or private, consists in definitions or statements of relations so internationally recognized. The terms used in an international compact, having reference to relations arising out of the reciprocal action of the constituent parties upon private persons, must be judicially explained or interpreted by their anterior juridical use by the same parties in reference to similar relations. To interpret the terms used in these in

1 Marlatt v. Silk, 11 Peters, 22; Judge Wayne's opinion in Prigg's case, 16 Peters, 642; and note to the opinion of the Court in Sims' case, 7 Cushing, 311. Ante, § 49.

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ternational or quasi-international provisions of the Constitution, reference must be had to the most common juridical use made of them by the States, or their political predecessors, in determining the same class of relations.

Since there was formerly within the same territorial dominion a national municipal law which, in its application to persons, had the effect of private international law within the several colonial jurisdictions into which that dominion was divided, and also an ordinary international law having similar effect between the several colonial polities, though dependent in each upon its own several will,' that municipal law having national extent and authority, and that international law having local extent and authority but a general recognition under the several and independent juridical action of the different colonies or States, must together be taken for the international law formerly prevailing within the dominion of the present United States and enforced by their political predecessors. The use of words which formerly obtained in the application of each of these divisions of that law to persons and things, or circumstances and relations, correspondent with those contemplated in these provisions, would be properly received as indicating the verbal usage common to the parties who established the Constitution, in interpreting these international or quasiinternational provisions. If the terms employed in the Constitution have also had a particular meaning in the local municipal (internal) laws of the several States, it will be controlled by the use they may have had in those legislative and judicial acts which were expository of this international or quasi-international law and usage as received by the possessors of sovereign power who established the Constitution, or by those. who were their political predecessors in the same territorial jurisdiction; whether the rule announced by such acts emanated from the central imperial authority and operated as law in the strict sense, or from the different local authorities, and was law in the imperfect sense only, as between the colonial jurisdictions or the succeeding States, because dependent, for

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its effect on private persons within each, upon their several will and consent.

Besides, when the actual use of words in the jurisprudence of legislating states has not been sufficiently determinate to indicate legislative intention, the anterior action of the lawgiver in regard to the same subject-matter may be referred to, to interpret laws, treaties, or any act of a legislative character.' The particular meaning of the words of these provisions in the Fourth Article may be sought by comparing the various possible meanings, as known by usage of words, with the known effects of the antecedent juridical action of the constituent parties, or their political predecessors, in reference to persons and things in corresponding circumstances; or, in other words, by comparing the possible effects of these provisions with the effects of the antecedent international law and usage obtaining among the colonies and States in their exercise of a several and correlative jurisdiction, over persons and things, similar to that which the States now have under that distribution of power which is established by other parts of the Constitution."

§606. Or, to repeat in substance the same rule of interpretation under a more condensed form, whether these provisions are or are not to be regarded as law in the strict sense and the private municipal (internal) law of the whole country as one nation, and whether the States or private persons are to be regarded as their immediate subjects; yet, to ascertain their effect on the relations of private persons, reference must be had to the anterior juridical action of the constituent parties in the de

1 Dig. L. I., t. 3, De legibus, etc., 37. Si de interpretatione legis quæratur, in primis inspiciendum est, quo jure civitas retro in ejusmodi casibus usa fuisset; optima enim est legum interpres consuetudo. The custom meant seems to be

one which existed before the statute (lex) was enacted. Yet the last sentence is often quoted as meaning that the customary interpretation of a statute is the best, or the correct interpretation: e. g. Sedgwick on Statutory and Constitutional Law, 255. But of what use would such a rule be when a statute is to be interpreted for the first time.

* Such a determination of the meaning of words by the former law is probably distinguished as construction by some of those who make a distinction between interpretation and construction. The same international law and usage will hereinafter be referred to in the construction of these provisions as public law; that is, in ascertaining which of the four views or constructions of these provisions, already mentioned ante, § 602, is to be adopted.

termination of relations arising under the same or parallel circumstances; that is, to the international private law of the colonial period and the periods of the revolution and the confederation, as it existed in the two forms already described, viz. :

1. The municipal law of the whole empire, affecting relations between the inhabitants of its various jurisdictions as constituting the parts of one integral nation.

2. That rule of imperfect authority, more properly called international, which prevailed among these various jurisdictions as they were independent and distinct, under their several acceptance of international law as a rule for political communities, and which rested within each such jurisdiction upon its several local authority, for its legal effect upon private persons; though, also, judicially derived from the general juridical practice of nations, as indicating the rule of natural reason regulating the international allowance of the effects of different municipal laws.'

'Ante, §§ 36, 93.

CHAPTER XXII.

OF THE DOMESTIC INTERNATIONAL PRIVATE LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. OF THE FIRST SECTION OF THE FOURTH ARTICLE OF THE CONSTITUTION.

§ 607. The first of the provisions of the Constitution which are herein before spoken of as having a specific international character is that contained in the first section of the Fourth Article, viz.:

"Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

If the acts, records, and judicial proceedings here spoken of are manifestations of the juridical power of the States by which rights and obligations in relations incident to conditions of freedom and its contraries are created or proved to exist,' this provision may obviously be of much importance in connection with the subject of this treatise.

§ 608. The first in importance of questions of interpretation, arising under this clause, is the general one of its object, or, more specifically, what is intended by giving "full faith and credit to," &c., and what is that "effect" which the Congress is hereby empowered to prescribe by general laws.

Of the existing juridical opinion which in this inquiry it is proper first to examine,' the first in order of time, if not

1 As for example in Coleman v. Guardian of negro Ben, 2 Bay, 485. 2 See ante, § 603.

For remarks on the order to be pursued in these inquiries, see ante, § 490. In proportion to its nearness in time to the adoption of the Constitution a statute may have a peculiar authority in interpretation, on the doctrine of contemporaneous exposition, distinct from that authority which it has in being legislative exposition. See Sedgwick on Construction, p. 593; and for cautions in applying the doctrine, see Story's Comm., § 406.

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