$5.Importance tem, founded in the natural convenience, and asserted by the general comity of the of Law of Naions to U. S. commercial nations of Europe. The system, thus introduced for the purposes of commerce, has gradually extended itself to other objects, as the intercourse of nations has The Law of become more free and frequent. New rules, resting on the basis of general convenience, and an enlarged sense of national duty, have been, from time to time, promulgated by jurists, and supported by courts of justice, by a course of juridical reasoning, which has commanded almost universal confidence, respect, and obedience, without the aid, either of municipal statutes, or royal ordinances, or international treaties. Nations now established. Present necessity of International Law. Examples. Different pro these States. § 4. Indeed in the present times, without some general rules of right and obligation, recognized by civilized nations, to govern their intercourse with each other, the most serious mischiefs and most injurious conflicts would arise. Commerce is now so absolutely universal among all countries; the inhabitants of all have such a free intercourse with each other; contracts, marriages, nuptial settlements, wills, and successions, are so common among persons, whose domicils are in different countries, having different and even opposite laws on the same subjects; that without some common principles adopted by all nations in this regard, there would be an utter confusion of all rights and remedies; and intolerable grievances would grow up to weaken all domestic relations, as well as to destroy the sanctity of contracts and the security of property. § 5. A few simple cases will sufficiently illustrate the importance of some international principles in matters of mere private right and duty. Suppose a contract, valid by the laws of the country, where it is made, is sought to be enforced in another country, where such a contract is positively prohibited by its laws; or, vice versa, suppose a contract, invalid by the laws of the country where it is made, but valid by that of the country where it is sought to be enforced; it is plain, that unless some uniform rules are adopted to govern such cases, (which are not uncommon,) the grossest inequalities will arise in the administration of justice between the subjects of the different countries in regard to such contracts. Again; by the laws of some countries marriage cannot be contracted until the parties arrive at twenty-one years of age; in other countries not until they arrive at the age of twenty-five years. Suppose a marriage to be contracted between two persons in the same country, both of whom are over twenty-one years but less than twenty-five, and one of them is a subject of the latter country, is such a marriage valid, or not? If valid in the country where it is celebrated, is it valid also in the other country? Or the question may be propounded in a still more general form. Is a marriage, valid between the parties in the place where it is solemnized, equally valid in all other countries? Or is it obligatory only as a local regulation, and to be treated everywhere else as a mere nullity? § 6. Questions of this sort must be of frequent occurrence, not only in different vinces of the countries wholly independent of each other; but also in provinces of the same empire, same empire. governed by different laws, as was the case in France before the Revolution; and also in countries acknowledging a common sovereign, but yet organized as distinct communities, as is still the case in regard to the communities composing the British Empire, the Germanic Confederacy, the States of Holland, and the domains of Austria and Russia. [Did the author class these States of ours, with French provinces and the A query as to States of Holland, now subject to a monarch, or with France, Spain, Russia, &c.? I discover nothing to indicate his view.] Innumerable suits must be litigated in the judicial, forums of these countries and provinces, in which the decision must depend upon the point, whether the nature of a contract should be determined by the law of the place, where it is litigated; or by the law of the domicil of one or both of the parties; or by the law of the place, where the contract was made; whether the capacity to make a testament should be regulated by the law of the testator's domicil, or that of the location of his property; whether the form of his testament should be prescribed by the law of his domicil, or of that of the location of his property, or of that of the place where the testament is made; and in like manner, whether the law of the domicil, or what other laws should govern in cases of succession of intestate estates. § 7. It is plain that the laws of one country can have no intrinsic force, propric of Law of Na vigore, except within the territorial limits and jurisdiction of that country. They can $5.Importance bind only its own subjects and others who are within its jurisdictional limits, and the tions to U.S. latter only while they remain there. No other nation, or its subjects, are bound to Laws restrictyield the slightest obedience to those laws. Whatever extra-territorial force they are ed to a counto have, is the result, not of any original power to extend them abroad, but of that try's limits. respect, which, from motives of public policy, other nations are disposed to yield to them, giving them effect, as the phrase is, sub mutua vicissitudinis obtentu, with a wise and liberal regard to common convenience and mutual necessities. Boullenois has laid down the same exposition as a part of his fundamental maxims. "Of strict right," says he, "all the laws made by a sovereign have no force or authority except within the limits of his domains. But the necessity of the public and general welfare has introduced some exceptions in regard to civil commerce.” 1 § 8. This is the natural principle flowing from the equality and independence of Only Sovereignty gives nations. It is an essential attribute of every sovereignty, that it has no admitted force to law. superior, and that it gives the supreme law within its own domains on all subjects ap pertaining to its sovereignty. What it yields, it is its own choice to yield; and it cannot be commanded by another to yield it as a matter of right. And accordingly it is laid down by all publicists and jurists, as an incontestable rule of public law, that one may with impunity disregard the law pronounced by a magistrate beyond his A sovereign territory. Extra territorium jus dicenti impune non paretur, [one may with im- powerless out of his domain. punity disobey a sovereign uttering law outside his territory,] is the doctrine of the Digest, and it is equally as true in relation to nations, as the Roman law held it to be in relation to magistrates. Vattel has deduced a similar conclusion from the general independence and equality of nations, very properly holding that relative strength or weakness cannot produce any difference in regard to public rights and duties, and that whatever is lawful for one nation, is equally lawful for another; and whatever is unjustifiable in one is equally so in another. And he affirms, in the most positive manner (what indeed cannot well be denied), that sovereignty, united with domain, establishes the exclusive jurisdiction of a nation within its territories, as to controversies, crimes, and rights arising therein. Law § 9. The jurisprudence, then, arising from the conflict of the laws of different Importance of nations, in their actual application to modern commerce and intercourse, is a most Internationa interesting and important branch of public law. To no part of the world is it of more United States. interest and importance than to the United States, since the union of a national government with that of twenty-four distinct, and in some respects independent states, necessarily creates very complicated relations and rights between the citizens of those states, which call for the constant administration of extra-municipal principles. This branch of public law may be fitly denominated private international law, since it is chiefly seen and felt in its application to the common business of private persons and rarely rises to the dignity of national negotiations or national controversies.2 § 10. The subject has never been systematically treated by writers on the common Not systemati· law of England; and, indeed, seems to be of very modern growth in that kingdom; cally treated in England. and can hardly, as yet, be deemed to be there cultivated, as a science, built up and defined with entire accuracy and precision of principles. More has been done to give it form and symmetry within the last fifty years, than in all preceding time. But much 1 Here was an opportunity to present to the world the radical change we had made. Though Story omitted usually, as Story says, "the laws of one country can have no intrinsic force except within [its] to notice a change we jurisdiction;" yet is it not entirely so with us. Thirty-four nations (before some seceded), the made in compeers of any other nations, were "bound to yield [perfect] obedience to those laws" which no one mercial law. of them had enacted, though, as Boullenois intimates, they have efficacy because "a Sovereign [who has] force or authority within the limits of his domains," has joined with other Sovereigns and authorized the enactment of laws upon certain questions that should be obligatory throughout their joint domains. Does not a change of commercial law, so important if not improving, merit gotice in this first treatise in English upon this subject? 2. Had the learned jurist properly understood the question of Sovereignty, alluded to in § 8, pre- Did Story un ceding, would he not have had something to add to this § 9, concerning these sovereign States derstand sov ereignty? united? $5.Importance yet remains to be done to make it, what it ought to be, in a country of such vast extent in its commerce, and such universal reach in its intercourse and polity.1 of Law of Na tions to U. S. Every State has exclusive Sovereignty and jurisdiction. What it may do. Boullenois as to the powers State. § 18. I. General Maxims of International Jurisprudence.-The first and most. general maxim or proposition is that which has been already adverted to, that every nation possesses an exclusive sovereignty and jurisdiction within its own territory. The direct consequence of this rule is, that the laws of every state affect, and bind directly all property, whether real or personal, within its territory; and all persons, who are resident within it, whether natural born subjects, or aliens; and also all contracts made, and acts done within it. A state may, therefore, regulate the manner and circumstances, under which property, whether real or personal, or in action, within it, shall be held, transmitted, bequeathed, or transferred, or enforced; the condition, capacity, and state, of all persons within it; the validity of contracts, and other acts, done within it; the resulting rights and duties growing out of these contracts and acts; and the remedies, and modes of administering justice in all cases calling for the interposition of its tribunals to protect, vindicate, and secure the wholesome agency of its own laws within its own domains. § 19. Accordingly, Boullenois has laid down the following among his general of a Sovereign principles (principes généraux). He says, (1.) He, or those, who have the sovereign authority, have the sole right to make laws; and these laws ought to be executed in all places within the sovereignty, where they are known, in the prescribed manner. (2.) The sovereign has power and authority over his subjects, and the goods, which they possess within his dominions. (3.) The sovereign has also authority to regulate the forms and solemnities of contracts, which his subjects make within the territories under his dominions; and to prescribe the rules for the administration of justice. (4.) The sovereign has also a right to make laws, to govern foreigners in many cases; for example, in relation to property, which they possess within the reach of his sovereignty; in relation to the formalities of contracts, which they make within his territories; and in relation to judiciary proceedings, if they institute suits before his tribunals. (5.) The sovereign may in like manner make laws for foreigners, who even pass through his territories; but these are commonly merely laws of police, made for the preservation of order within his dominions, whether they are perpetual or temporary. The same doctrine is either tacitly, or expressly conceded by every other jurist, who has discussed the subject at large, whether he has written upon municipal law, or upon public law.2 Restrictions of territory. § 20. II. Another maxim, or proposition, is, that no state or nation can, by its laws to their laws, directly affect, or bind property out of its own territory, or persons not resident therein, whether they are natural born subjects or others. This is a natural consequence of the first proposition; for it would be wholly incompatible with the equality and exclusiveness of the sovereignty of any nation, that other nations should be at liberty to regulate either persons or things within its territories. It would be equivalent to a declaration, that the sovereignty over a territory was never exclusive in any nation, but only concurrent with that of all nations; that each could legislate for all, and none for itself; and that all might establish rules, which none were bound to obey. The absurd result of such a state of things need not be dwelt upon. Accordingly Rodemburg has significantly said, that no sovereign has a right to give the law beyond his own dominions; and if he attempts it, he may be lawfully refused obedience; for wherever the foundation of laws fails, there their force and jurisdiction fail also. Constat igitur extra territorium legem dicere licere nemini, idque si fecerit quis, impune ei non pareri, quippe ubi cesset statutorum fundamentum, robor, et jurisdictio. P. Voet speaks to the same effect: Nullum statutum sive in rem, sive in personam, sı de ratione juris civilis sermo instituatur, sese extendit ultra statuentis territorium. Necessity of having Ameri can text books. 1 If important to England, how much more so to this country! And if no text book has yet been issued properly treating this subject, quite time is it that some jurist who understands the A B C of State Sovereignty should engage in the work. 2 These truths must be remembered. It takes sovereign power to enact a law, as will be more fully established, and when the Sovereign or Sovereigns delegate the power, as in the Federal agency, the letter of authority cannot be transcended. of Law of Na [Statute is of no effect either on person or property, beyond the territory of the enacting $5.Importance power.] Boullenois, (as we have seen,) announces the same rule: De droit étroit, toutes tions to U. S. les loix, que fait un souverain, n'ont force et autorité que dans l'étendue de sa denomination; and, indeed, it is the common language of jurists. Mr. Chief Justice Parker has recognised the doctrine in the fullest manner. "That the laws," says he, "of any state cannot by any inherent authority be entitled to respect extra-territorially, or beyond the jurisdiction of the state, which enacts them, is the necessary result of the independence of distinct sovereignties." § 23. III. From these two maxims or propositions, there flows a third, and that is, A State may give authority that whatever force and obligation the laws of one country have in another, depends to the laws of solely upon the laws, and municipal regulations of the latter, that is to say upon its another State. own proper jurisprudence and polity, and upon its own express, or tacit consent. A state may prohibit the operation of all foreign laws, and the rights growing out of them, within its own territories. It may prohibit some foreign laws, and admit the operation of others. It may recognise, and modify, and qualify some foreign laws; it may enlarge, or give universal effect to others. It may interdict the administration of some foreign laws; it may favour the introduction of others. When its code speaks positively on the subject, it must be obeyed by all persons, who are within the reach of its sovereignty. When its customary, unwritten, or common law speaks directly on the subject, it is equally to be obeyed; for it has an equal obligation with its positive code. When both are silent, then, and then only, can the question properly arise, what law is to govern in the absence of any clear declaration of the sovereign will? Is the rule to be promulgated by a legislative act of the sovereign power? Or is it to be promulgated by courts of law, according to the analogies which are furnished in the municipal jurisprudence? This question does not admit of any universal answer; or rather, it will be answered differently in different communities, according to the organization of the departments of each particular Government.1 French prov § 24. Upon the continent of Europe some of the principal states have silently European suffered their courts to draw this portion of their jurisprudence from the analogies fur- practice. nished by the civil law, or by their own customary or positive code. France, for instance, composed, as it formerly was, of a great number of provinces, governed by inces. different laws and customs, was early obliged to sanction such exertions of authority by its courts, in order to provide for the constantly occurring claims of its subjects, living and owning property in different provinces, in a conflict of the different provincial laws. In England and America the courts of justice have hitherto exercised the same authority in the most ample manner; and the legislatures have in no instance (it is believed) in either country interfered to provide any positive regulations. The common law of both countries has been expanded to meet the exigencies of the times, as they have arisen; and so far as the practice of nations, or the jus gentium privatum, has been supposed to furnish any general principle, it has been followed out with a wise and manly liberality. said, § 26. The jurists of continental Europe have, with uncommon skill and acuteness, The practice of endeavoured to collect principles, which ought to regulate this subject among all never do for Europe will nations. But it is very questionable whether their success has been at all propor- these Sovereign States-is tionate to their labour; and whether their principles, if universally adopted, would be what Story found either convenient or desirable under all circumstances. Their systems, indeed, should have have had mainly in view the juridical polity fit for the different provinces and states of a common empire, though they are by no means limited to them. It is easy to see, that in a nation, like France, before the Revolution, governed by different laws in its various provinces, some uniform rules might be adopted, which would not be equally fit for the adoption of independent nations possessing no such common interests, or such common basis of jurisprudence. The leading positions maintained by 1 Why could not this American jurist, judge in the Federal Court, point to the advance we had made, and say that our "code [Constitution] speaks positively on the subject"? and though he could not say "it must be obeyed by all persons who are within the reach of its sovereignty," he could with correctness have said-of their Sovereignties. of Law of Na $5.Importance many of the French jurists are, that the laws of a country, which concern persons, tions to U. S.. who reside within, and are subject to its territorial jurisdiction, ought to be deemed of universal obligation in all other countries; that the laws, which concern the property of such persons, ought to be deemed purely local, and the laws of a mixed character, concerning such persons and property, ought to be deemed local, or universal, according to their predominant character.1 Wheaton's Law, EDITOR'S remarks, p. xiii. seded. Wheaton republican. Wheaton is another eminent authority in law, and probably, on the International branch of International Law, would outrank any other American writer. introductory The accomplished editor, Mr. Lawrence, says, in his introductory remarks to the sixth edition: "The rank, however, which is accorded to the 'Elements of International Law,' in the cabinets of Christendom, Vattel super- where it has replaced the elegant treatise of Vattel, whose summary long proved a substitute for the more elaborate works of Grotius and Wolff, and the consideration which it enjoys, not only among diplomatists, but in legislative assemblies, and in the tribunals administering the common jurisprudence of nations, seem to render it proper," &c. Whether this be strictly correct or not, Wheaton's works have a high authority at home and abroad, and he is more nearly in accord with Grotius and Vattel, in his allusions to our States and Union, than Kent and Story. Mr. Lawrence further observes: "Mr. Wheaton, whose nearest relatives were of the school of Jefferson, and whose republican sentiments were unavoidably strengthened by his European residence, was, during these years of comparative leisure, an efficient supporter, by his contributions to the periodical press, of the administrations of Jefferson and Madison." He was therefore inclined to view our Union as mostly Federal, has Did not well numerous judicious observations, and he generally considers these States free and independent, as are the various States of Europe. Still, he throws very little light upon the nature of our Union. He published another work in 1843, History of the Law of Nations; but nowhere, as History of the I have observed, does he treat the subject as though our Federal League Law of Nations. rested altogether on the principles of International Law. Neither Pufendorf nor Vattel is much authority with him, which might be expected of a writer who brings out a seemingly new division of Sovereignty, into Internal and External. Vattel remarks upon something from Grotius, concerning an Internal Law of Nations, but a division of Sovereignty is quite another matter. Some of Wheaton's teachings cannot stand, if Grotius, Pufendorf, and Vattel are to be sustained. Quotations from both works have been marked for this section, but space need not be taken. Hereafter, some of the points of this standard authority will find an appropriate place. 7b. xxiii. understand our Union. Wheaton's He divides Wheaton, seau, &c. Some may regard it gross impertinence to class Wheaton and Story Paine, Rous and Kent with Rousseau, Tom Paine, and the French school of infidelity, liberty, equality, and fraternity. Yet on important points, the gov ernmental teachings of each and all have the same tendency. 1 Nothing in this work that I can discover any more directly recognizes the individual exist ence and sovereignty of these States of ours, and for anything that appears, he would seem to con sider a "conflict" of authority between them as equivalent to one between French provinces. |