law, in the strict sense of the word, independently of the authority of the municipal (national) law of the State in which they are applied. They could not be judicially used to determine rights and duties of private persons, irrespectively of the will of that political power which the tribunal, recognizes as the source of the municipal (internal) law. This is a necessary consequence of the doctrine, that the authority of each political State or nation is independent of any exterior rule.'

§ 582. Since the relation of persons to things, and of persons to other persons in respect to things, is necessarily contemplated in every department of positive law, the distinction between persons and things necessarily enters into international law. But, since personal freedom and the possession of individual rights are here principally considered, the distinction will be noticed as a topic of this division of the law only in determining the international extent of a discrimination of natural persons, as being either legal persons or objects of property.

§ 583. The territorial and personal extent of all private law, or all law which may affect the condition or rights of any natural person, within the geographical limits of the United States, depends upon the public and political law of their existence; that is, upon the actual distribution of sovereign power between the several States and the national government. As a consequence of such distribution, there is in each of the States a separate and distinct part of the municipal law resting on the share of sovereign power separately and locally held by the people of that State, and a co-existent part resting on the authority of the United States held by the national government, and having national extent. Therefore, while

2

1 See the second chapter of this work.

According to Mr. Calhoun's theory, both laws, in any one State, rest ultimately upon one and the same political authority, i. e., the people of the State; they are severally administered by different governments, each equally the agent of that people. 1 Calhoun's Works, 167, 168. Incidental to this theory is the doctrine that the State may, at its discretion, revoke the powers granted to the national government as its agent or attorney, thereby absolving all private persons within its limits from any allegiance which they could before have been said to owe to that government, and, of consequence, making treason against it impossible within such State; while any who may therein assume to act under the authority

each person within the limits of the United States remains everywhere under the same national law, he is always also under some particular or local subjection to a law proceeding from a State or a local authority. And this may be said of persons in the Territories of the United States, since the laws having a particular or local extent therein are, in this relation, of the same nature and extent as State laws, whether they proceed from the powers held by Congress, or by the national government, in respect to the Territories, or from some other possessors of legislative power.

§ 584. The distinctions of domicil and alienage arise from the division of organized civil society into separate political communities, and from the possibility of a relation between those communities, in respect to the operation of the laws proceeding from the political and civil power which they severally possess over private persons recognized as their subjects, under that condition of things herein called the natural or necessary law of nations.'

The recognition of these distinctions, and of persons whose legal relations vary according to the greater or less extent of the laws of their respective domicils and those of other jurisdictions to which they are or may have been actually subject, is that wherein private international law consists. Now, since the powers reserved to the States, severally, as well as those delegated to the national government, are sovereign in their nature and mode of action, though neither of the two depositaries of power possesses separately the whole sum of the sovereign power incident to a national existence,' there may be a discrimination of persons with reference to the personal extent of the laws proceeding from these several sources. Persons subject to both or to either of these depositaries of power may be recognized as differently affected by the law proceeding from either, accordingly as they may or may

of that government, as declared by the Constitution of the United States, become either traitors to the State, or its public enemies, according as they may be domiciled inhabitants of the State or of some other part of the United States. The "secessions" of the present winter of 1860-61 are only the practical assertion of the doctrine and its consequences.

1

Ante, §§ 49, 54.

Ante, § 65.

3 Ante, § 346.

not have been before subject to the law of some other jurisdiction. By this recognition there will arise, under the jurisdiction of each of these sources of municipal (internal) law, a co-existent private international law, and the distinctions of domicil and alienage will exist in reference either to the national law of the United States, or to the laws of some one State, or to both at the same time.

Thus, in every portion of the dominion of the United States there may be aliens who are such in reference to the laws of every State and to the national law. These, according to previous definition, adopted for the sake of brevity of expression in distinguishing alien persons, are herein termed foreign aliens. So there may be those who are aliens in reference only to some State or local jurisdiction and its local laws, being native-born or naturalized inhabitants of the United States having a domicil, in some other State or local jurisdiction, with reference not only to the dominion of the State, but also to that of the United States, who therefore are not aliens in respect to the national law when found in other parts of the United States. Such persons are herein designated domestic aliens.' This domestic alienage, or alienage existing only in respect to the local law of a State, is similar to that which existed during the colonial period in the case of British subjects towards the several jurisdictions of the British empire other than that of their particular domicil. Though now, or as it exists under the present political Constitution of the United States, it is even more distinct and definite than before; since the powers now held by the States separately are, by the public law of the United States, independent of any control or overruling authority similar to that claimed by the imperial government during the colonial period."

$585. According to previous definition, the personal extent of the national and local municipal laws of the United States will depend chiefly upon the distinctions of domicil and alienage in reference to the several jurisdictions existing in the

United States. Yet, since even the domiciled inhabitants of any State or country may sometimes be regarded therein as sustaining obligations or having rights which arise out of a previous temporary subjection to the law of a foreign jurisdiction, the private international law may to a certain degree be regarded as affecting the relations of such persons, even when they have returned to their forum domicilii, and it will be necessary hereinafter to consider such a possible application of private international law to the condition or status of private persons within the United States. But, though it is a mere subjection of private persons to different jurisdictions at different times which gives rise to the widest application of private international law (conflict of laws), yet it is the distinction of persons as having or not having a domicil in respect to various laws which gives rise to the most palpable and striking manifestations of a private international law as contrasted with the municipal (internal) law.' It is this distinction which, in this and the succeeding chapters, will be mainly noticed, in reference to the several jurisdictions existing in the United States and the international or quasi-international law applying to the two classes of aliens above distinguished.

586. The private international law is herein to be considered with reference to each of the depositaries of sovereign power recognized in the Constitution, according to the authority which each may have, under it, to limit, or to refuse to limit, the municipal (internal) law proceeding from itself, by the admission of the effect of laws of other jurisdictions, and, in so doing, to allow or disallow the existence and obligation of international private law. Therefore, to ascertain the existing private international law affecting the condition or status. of aliens of either class, it is necessary to consider

1. The distribution or location of power to affect the rights and obligations of private persons by the creation of municipal (internal) law; which power is either in the United States and the national government as their representative, or in the States severally.

1 Ante, § 54.

2 Ante, § 388.

2. The actual modification of the municipal (internal) laws proceeding from those several sources of law, by the international law, as it has been received or allowed by each of those

sources.

But since the Constitution of the United States is both public and private law, and, by the same words, evidences the distribution or investiture of political power and promulgates rules of action creating various rights and duties for private persons, as has been shown in another place,' it will be impossible to consider either of the two heads above designated without a partial examination of the other. This necessity will be more definitely explained in the following sections.

§ 587. In the statement of the distribution of sovereign powers under the Constitution and in the exposition of the national municipal law in reference to freedom and its contraries, it was shown that the power over absolute or individual rights and over those relative rights which are most essential in determining personal condition or status is found in the several States, existing as separate political organizations. Therefore, the status or condition of all private persons, both of native-born or domiciled persons and of those who are alien by birth or domicil, would, within each State, be determined by the State powers and the coercive rule proceeding from them; and the law of each State, thus formed, will be either municipal (internal) or international law, according to its personal application to one or the other of these two classes of persons. The municipal (internal) law will be that which applies to persons as the domiciled inhabitants of the State, with no reference to any anterior subjection to the law of other jurisdictions. The international law will be that which applies to persons in reference to a former subjection to some other dominion; whether those persons have a domicil in the State (the forum of jurisdiction) or a domicil elsewhere, either in a foreign country (foreign aliens) or in another State or several jurisdiction of the United States (domestic aliens).

§ 588. But it will be remembered that the rule determining

1 Ante, §§ 369, 408

2

Ante, vol. I. pp. 483, 484.