affecting the rights of the parties, has been already noticed, ante, Vol. I., p. 490, n. 2. If the case is one of those in which the rights and obligations of the parties, though ascertained according to the State law, are maintained under the quasiinternational law which derives its authority from the Constitution of the United States, the national judiciary must ascertain the State law without reference to the judgment of the State court on the same facts. Otherwise, though that judg ment would be appealable to the Supreme Court of the United States as a case arising under the Constitution of the United States, the appeal would be nugatory.

But the case may be one in which the rights and obligations of the parties are not maintained by any provision in the Constitution, though coming within the judicial power of the United States as a case between certain persons. In such a case it would seem that the decision of the State court as to the State law in the particular case must be conclusive. The case of Dred Scott v. Sandford, if within the judicial power of the United States, was one of this character, having been brought in the Circuit Court by Scott as a citizen of Missouri against Sandford as a citizen of New York, and not as a case arising under the Constitution and laws of the United States.

The opinion of Judges Taney and Nelson, as to the force of the decision of the Missouri court as the exposition of the law of Missouri, may be sustained by this distinction.

§ 978. A variety of circumstances may be conceived in which the determination of the rights and obligations of private persons incident to conditions of freedom and its contraries would present other questions under that branch of the domestic international private law of the United States which is considered in this chapter. These for the most part might be classed under the law of contract and testamentary dispositions. No questions of this class have hitherto excited particular attention."

1 In connection with this section, see ante, in the close of Ch. X., §§ 323, 327. VOL. II.-50

CHAPTER XXXII.

THE FOREIGN INTERNATIONAL PRIVATE LAW OF THE UNITED STATES. OF NATURALIZATION. OF STATUS OF FOREIGN ALIENS. OF THE IMPORTATION OF SLAVES, AS TRADE AND AS CRIME. OF THE DEMAND AND EXTRADITION OF SLAVES AND CRIMINALS UNDER THE GENERAL INTERNATIONAL LAW.

§ 979. After considering conditions of freedom and its contraries as topics of the domestic international law, it remains to consider such conditions as they may be affected by the foreign international law of the United States which applies to persons distinguished as foreign aliens.' Under this branch of the general subject only a few principal objects of inquiry can here be briefly alluded to.

§ 980. On general principles, the law of the colonies applying to foreign aliens continued in the new States after the Revolution, modified only by the political change whereby the subjects of Great Britain became aliens in respect to the United States. The Constitution of the United States contains no provisions which directly determine any relations of foreign aliens. The rights and obligations incident to the status or personal condition of such persons depend upon the powers held by the States, except as those granted to the several departments of the national Government become a source of law affecting such persons.

981. The question as to the extent of the power "to establish a uniform rule of naturalization," has already been noticed. The existing Acts of Congress mention only “aliens being free white persons" as those who may acquire citizenship

1 Ante, §§ 384, 387, 599, and, generally, Chapters XIII. and XX.

2

Ante, §§ 75, 330, 415, 434.

under them. The question, whether Congress may or may not naturalize others, may depend upon the degree of privilege which Congress can confer under this power.'

§ 982. If the status of the foreign alien can be affected by any other legal rule resting on the powers held by that Government, it must be through the grant of powers in reference to the external relations of the United States with foreign countries and their inhabitants. These relations may, in a measure, be distinguishable as those of war and those of peace. The powers of government incident to the first of these have no proper legal connection with the personal condition of private persons.'

§ 983. The power "to regulate commerce with foreign na

1 Ante, §§ 389-391, 627-630.

In the existing civil crisis much is said of a "war power," in the exercise of which the slaves, in the States whose inhabitants are in armed opposition to the national Government, may be emancipated, at the discretion of those who, in those States, may have the supreme command of the national military force. Mr. J. Q. Adams, in a speech in the House of Representatives, April 14, 15, 1842, is said to have stated the existence of the power as a recognized doctrine of public law. In the event of any declaration of emancipation, in the exercise of such a power, and of an ensuing practical emancipation while the parties whose rights and obligations are to be affected by it are within the actual control of the military force from which the declaration proceeds, the question of the legal operation of such declaration may be supposed to arise at some time or other after the withdrawal of the military force, and whenever those rights and obligations shall be the subject of suits in the civil courts. It seems to be assumed, by those who assert the existence of the power and advocate its exercise in the revolting States, that the status of the slaves so emancipated will have been legally changed, as by ordinary emancipation by act of the owner, or by State legislation. This being supposed, and that the civil courts will, in the ordinary course of judicial decision, recognize the change of personal condition, the question occurs whether, by the same declaration of emancipation, a change in the location of power over the status of those thus emancipated will have occurred, so that the power to determine their condition as bond or free in the future will no longer be vested in the several State which they may inhabit, but pass to some other political person-the national Government, or some department or officer thereof, it may be assumed. In this case, the written Constitution will have ceased to indicate the line between the powers granted to the Government of the United States and those "reserved" to the States; and the further inquiry naturally follows, whether those thus emancipated will be the only persons whose personal condition will have been removed from the control of the State,-the personal condition of all others, of whatever color, being still subject to the State power, or whether the entire power over status of persons will, in some of the States, have become one of the powers held by the national Government, and whether the change will affect the powers of all the States equally. The assertion of power to effect a permanent emancipation, whether it be claimed for a commander-in-chief, for Congress, or for the national Government as a whole, involves the inquiry-Will a new distribution of the powers of sovereignty in the hands of the people of the United States by revolutionary change now take place? By sec. 4 of the Act of Aug. 6, 1861, An Act

tions," given to Congress in Art. I., sec. 8, must enable the national Government, in some degree, to maintain, in time of peace, the rights and obligations incident to the status of foreign aliens. Any power in respect to the admission or exclusion of such persons must be derived, apparently, from this power,' or from the treaty-making power vested in the President and Senate by Art. II., sec. 2. The limitation in Art. I., sec. 9,-"The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year eighteen hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person,”— seems to indicate that the power would, in its absence, have belonged to Congress, even before the expiration of the prohibition. But this clause, interpreted on the principle of learning the intention aliunde, and the rule of contemporanea expositio, has always been taken to give a special power in respect to the importation of slaves from Africa. Congress has passed various Acts to prevent it.

984. The status of foreign aliens, in relations not affected by the powers above spoken of, appears to be determinable according to the law of the State in which they may appear; though, from the character of the persons, the judicial power of the United States may be invoked to decide on the nature of their rights and obligations. The law determining their condition is international private law, from the character of the parties; but, being derived from the State powers, it may

to confiscate property used for insurrectionary purposes, XII. St. U. S., 319, any one who "during the present insurrection against the Government of the United States" shall require or permit persons owing him "labor or service under the laws of any State," to serve in military operations against the Government, "shall forfeit his claim to such labor, any law of the State, or of the United States, to the contrary notwithstanding. And whenever thereafter the person claiming such labor or ser vice shall seek to enforce his claim, it shall be a full and sufficient answer to such claim that the person whose service and labor is claimed had been employed in hostile service against the Government of the United States, contrary to the provisions of this Act."

Compare Judge Baldwin, noted ante, p. 766.

Ante, § 445. The question-By what law the status of persons on board of private or public vessels of the United States when not within the jurisdiction of any several State or Territory, is to be determined-may be of importance under many supposable circumstances. Compare ante, p. 770, note 2, and see Polydore v. Prince, Ware's R., 410, U. S. v. The Amistad, 15 Peters, 518.

be

very different in the different States. How far the power of the States in respect to the rights and obligations of foreign aliens may be limited by the effect of treaties with foreign nations, is a question which might be important.

985. The power to determine the relations of persons on board of private ships and vessels belonging to the United States on the high seas, or in places not under the territorial jurisdiction of any civilized nationality or power, gives existence to a class of laws having personal, as contradistinguished from territorial, extent.' These laws, so far as they apply to persons without regard to their nationality, place of birth, or naturalization, are properly part of the internal law of the United States, as distinguished from the international, law,' though they may be very important in connection with the relations of the United States towards other countries. The powers of Congress to originate such laws are derived partly from the power in respect to commerce, and partly from the power given in Art. I., sec. 8, "to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." The laws punishing persons engaged in the slave trade between foreign countries, or in buying or in seizing persons for slaves on the coasts of Africa, or on the high seas, may here be classed; while, as incidental to these powers, and to the power to prohibit the importation of persons, may be classed the laws against equipping vessels in ports of the United States with the intention of engaging in the African slave trade.'

§ 986. The power to remove persons to foreign countries, or to colonize them in barbarous and unoccupied countries, or

1 Ante, §§ 26, 27.

2 Ante, § 53.

Laws of Congress relating to the external slave trade are: Acts of March 22, 1794, An Act to prohibit the carrying on the slave trade from the United States to any foreign place or country, L. St., U. S., 347; of May 10, 1800, An Act in addition, &c. (to the above Act), II. ib., 70; of March 2, 1807, An Act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the first day of January, in the year of our Lord one thousand eight hundred and eight, ib., 426; of April 20, 1818, An Act in addition to, &c. (the last named Act), and to repeal certain parts of the same, III. ib., 450; of March 3, 1819, An Act in addition to the Acts prohibiting the slave trade, ib., 532; and also of May 15, 1820, An Act to continue in force "An Act to protect the commerc of the United States and punish the crime of piracy,” and also to make further provisions for punishing the crime of piracy, ib., 600.