LOCAL MUNICIPAL LAW.

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The local municipal laws of the United States are those which originate in the separate sovereign power held by the people of each State, or in the powers of Congress, for local purposes, within certain limited territory; either of which last has only local or limited extent and jurisdiction within the limits either of such States or of such territory.

§ 378. Although this distinction in the municipal law is founded upon an anterior possession of sovereign powers proved or evidenced by the Constitution,' yet, since the Constitution is also itself a legislative act, and has universal prevalence and recognition in the States and in the territory belonging to the United States, as the supreme rule of positive law in public and private relations, so far as it can be applied to those relations, it must form a part of one of these divisions of municipal law; that is, the national municipal law.

§ 379. Since the legislative or juridical exercise of sovereign power can have no independent force or authority beyond the territorial limits of the state or political body holding that power, the local laws of the several States cannot have any independent extension or authority in the territory of another State of the Union, or in any local jurisdiction of the Government of the United States, nor can the local laws of districts, under the several jurisdiction of the Government of the United States, have any such independent extension and authority in the territory of any State of the Union, or of any other several jurisdiction under that Government.

§ 380. Though all positive law must be considered as operative within certain geographical limits, because always deriving its authority and coercive power from some organized political personality confined to certain limits by the natural or necessary law of nations, yet persons are always the objects of that law, and the relations of persons to each other and to things are its effects. Laws may not only be distinguished from other laws as operating within various jurisdictions, but also as having different persons for their object, and may be distinguished ac

1 Ante, § 331.

2 Ante, § 63.

3

Ante, § 21.

cording to the differences which they create between the persons upon whom they operate, as well as by their territorial jurisdictions; that is, they may be considered in respect to their personal jurisdiction or as personal laws. This distinction may also be made in the municipal law of the United States.

The laws created by the exercise of any sovereign national powers, held by any state or political body to have effect within certain territorial limits, may, or rather must, operate differently upon different persons within that territorial jurisdiction. The laws, proceeding from these sovereign powers, themselves determine, to a certain degree, their own different effect upon different persons. But there are certain general principles connected with the nature of sovereign power, or the conditions under which it is held by states and nations, which, in every jurisdiction, indicate a difference in the application of local laws to persons within that jurisdiction.2

§ 381. It was shown in the first chapter, that from the existence of separate possessors of sovereign legislative power, as public bodies or polities, having different territorial jurisdiction, and from the necessary conditions of human society and intercourse, they may, as separate polities, sustain relations towards each other in the exercise of that power. And from this necessity, incident to their existence, and from the fact that there may be some relations of persons to other persons, and some rights of action arising out of them, which cannot, under all circumstances, be maintained, as legal rights, by the distinct authority of any single possessor of that sovereign power, those maxims, or rules of action originate, which are called "international law." 3

It is a circumstance incident to the nature of sovereign national power, and its distribution between various possessors, having, according to the mode of their existence, jurisdiction within certain territorial limits, that persons within that jurisdiction, or within those limits, may be distinguished as either native or alien subjects. The recognition of persons as aliens is

1Ante, §§ 26, 27.

2 Ante, § 53.

'Ante, § 10.

PLACE OF INTERNATIONAL LAW.

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the recognition, by the sovereign source of municipal law in that jurisdiction, of an international relation. The law which affects the condition of the alien is the international law and the municipal (national) law taken together; because the recognition of a person as alien, and the discrimination of that municipal (national) law which shall be allowed to determine his relations and rights, (either that of his domicil or that of the jurisdiction in which he is an alien,) is itself international law; or, what is to say the same thing in different words, that discrimination is judicially made, in the jurisdictions whose tribunals have personal control over the alien, according to principles which, from their application, are called a law between nations, or international law; though they rest, for their legal authority and coercive force within any jurisdiction, on the sovereign power which is therein the source of municipal (internal) law.1

It

§ 382. This international relation between the possessors of sovereign national power and this recognition of persons in an international relation, may exist in reference to any one or more of the modes in which that power can be exercised. may, therefore, exist between political bodies which, according to the conditions of their existence, can exercise sovereign national power in some of its forms only. Or, which is to state the same idea in different words, the sum of sovereign national power held by any one nation may be considered as consisting of various powers, all, or some only, of which may be exercised by any specified political bodies or persons; and this international relation may exist between any such political bodies and any other such, in reference to the exercise of the powers so held by them; provided the powers, so held, are held and exercised, as sovereign, or independently of all exterior authority.

§ 383. It being a basal principle of the public municipal law of the United States, which is proved by the written Cónstitution, as the evidence of a pre-existing fact, that the sum of sovereign national power is divided between the national Government and the several States, and that the powers held by the

Ante, §§ 53, 54.

several States are sovereign in their nature and mode of exercise, by each within its own jurisdiction, they are to be considered as sovereign and independent nationalities having full right to establish laws for their own domain by the exercise of those powers.1

§ 384. This division and distribution of sovereign power in the United States and the distinction of municipal laws having a variety of territorial jurisdiction, necessitates a distinction of persons as native or alien subjects of these various jurisdictions.

The native inhabitant of any one of the States is also, of necessity, subject to the national powers vested in the Government of the United States. But though, in this sense, a native of the United States and subject as such to the authority of the national Government, he would, in every other State, be still an alien in respect to the powers exclusively vested in such other State and the local law proceeding from those powers.

Also, since the national authority, vested in the Government of the United States, extends everywhere throughout the dominion of the States, he who by birth is an alien to that national jurisdiction, would be also such in regard to any State in the Union.

Buckner v. Finley, 2 Peters, 590. "For all national purposes embraced by the federal Constitution, the States, and the citizens thereof are one, united under the same sovereign authority, and governed by the same laws. In other respects the States are necessarily foreign to and independent of each other. Their constitutions and forms of government being, though republican, altogether different, as are their laws and institutions." See also, Warder v. Arrel, 2 Wash. 298, (Court of Appeals of Virginia,) Washington, J., in Lonsdale v. Brown, 4 Wash. C. C. p. 154, after speaking of the political nature of the union between England and Scotland says, "How different is the union of these States. They are, in their separate political capacities, sovereign and independent of each other, except so far as they have united for their common defence, and for national purposes. They have each a Constitution and form of government, with all the attributes of sovereignty. As to matters of national concern, they form one government, are subject to the same laws, and may be emphatically denominated one people. In all other respects, they are as distinct as different forms of government and different laws can render them. It is true that the citizens of each State are entitled to all the privileges and immunities of citizens in every other State; that the sovereignty of the States, in relation to fugitives from justice and from service, is limited; and that each State is bound to give full faith and credit to the public acts, records, and judicial proceedings of the sister States. But these privileges and disabilities are mere creatures of the Constitution, and it is quite fair to argue, that the framers of that instrument deemed it necessary to secure them by express provisions."

Descriptions like the above will have a variety of significance, according to the political theories of the reader and the speaker.

AN INTERNATIONAL RELATION.

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Under the municipal (national) law of the United States, there may therefore be aliens to the whole Union, who, in the view of designating them by brief terms of description, may be termed foreign aliens, and aliens to a State only, who may be termed domestic aliens-a distinction similar to that existing during the colonial period between aliens to the empire and aliens to a colony; and the several States of the Union may sustain, as distinct polities, an international relation to each other, and to other possessors of supreme national power; and the maxims, or rules of action constituting international law, are applicable to the exercise of the sovereign powers held by them.

§ 385. The maxims of international law, public and private, applied to the relations of the several States toward each other, constitute, therefore, a part of the national municipal law of the United States. The propriety of considering any law as being international, and at the same time a part of the national municipal law, (law limited to the territorial extent of the United States,) arising from the fact, that the several States do possess independent and sovereign powers, and that the possession or distribution of those powers, is determined by the Constitution; which is itself national municipal law.

§ 386. From the nature of the political bodies or persons upon which it operates, international law is law only in an imperfect sense, for such bodies or persons; and, in its effect upon the rights and relations of private persons, that is, when it becomes private international law, it has the force and authority of law in the strict sense only by being enforced by the source of that municipal (internal) law, whose application to persons it is said to limit.2

In a state or nation wherein the sum of national state power, or the entire sovereignty, is concentrated in one political unity, and in which, of course, all municipal law proceeds from one and the same source, the modification of every part of that law in reference to aliens, (which modification is the private inter