law in the strict sense with international effect, must at one time have existed, and must have been shown in the recognition of personal laws, so called, or in the personal extent given to the laws of an alien's domicil determining his status or condition. The various degrees of civil privilege ascribed to persons domiciled in Rome itself, distinguishing them as cives Romani, Latini, perigrini, libertini, &c., would necessarily be recognized in the colonies and provinces, where similar distinctions must also have existed which had in some degree a similar international recognition throughout the empire. The character of citizen, in that sense of the term which implies the possession of privileges not necessarily incident to the character of free subject, or inhabitant of free condition, must have been thus internationally recognized for a long period under the Roman dominion. At this time the distinction between citizens and subjects may be said to have existed in the international law, but continued to become less marked, until the peculiar character of citizenship, in distinction from the condition of subject, became lost under Justinian, after which time no differences of civil condition were maintained under the private international law, except in the universal recognition of conditions of personal freedom and of personal or chattel slavery." When the feudal system had brought new forms of civil life in place of those which had existed under the declining empire, a new class of personal distinctions, congenital with the relations of lord and vassal, freeman and villain became known under the various municipal (internal) laws of Europe, and later, in the medieval period, citizenship again became a condition distinguishable from that of the simple subject. It consisted then, as in the Roman law at first, in the possession of franchises of a local character. The various conditions of vassalage were the incidents of relations of persons to other persons in respect to particular things and places, and such as could not be continued under other jurisdictions. The condition of a citizen or burgher was exhibited in relations which could exist 1 Ante, § 107. 2 See Colonia, Civitas, Provincia, in Smith's Dict. of Antiquities. 3 only in particular places and spheres of action. Except under that limited application of the ancient jus gentium which obtained in respect to the native races of Africa and America, no status or personal condition, not included under the relations of family, was internationally supported by universal jurisprudence. But, even when international private law existed only in some usages of commercial intercourse and in some of the rules of chivalry, there was yet a very general international recognition of all the feudal conditions, so far as they did not consist in relations of persons to other persons in respect to land or the products of land." It would seem that at an early period of modern European history, aliens to the forum were so far distinguished in condition according to the laws of their domicil as to induce writers on this subject at a later period to declare, as a rule of customary law derived a posteriori from the anterior juridical practice of European states, that personal laws, including laws of status, were to be everywhere internationally recognized. That proposition has not herein been recognized as a proper statement of the principle regulating, as between independent nations, the extension of laws affecting personal condition.' Yet the fact of its having obtained currency sufficiently proves that, while the internal law of the several countries of western Europe supported marked distinctions in personal privilege, and while the possession of those civil rights which constitute citizenship, in the enlarged sense, was not under those laws attributed to all domiciled persons, nor even to all who enjoyed the right of personal liberty, there was at the same time an international discrimination of persons before domiciled in other countries, as possessing or not possessing those rights which constitute the condition of a citizen as distinguished from the simple condition of the subject. It might then be inferred that the term citizen, if employed 1 Ante, §§ 167, 168. 2 Wildman's International Law, 3. The author, after distinguishing the law of nations of the Romans as being universal jurisprudence, says: "In the same sense the feudal system has been designated the law of nations of the Western World," i. e., western Europe. The Danish Laws of Christian V. B. 3, c. 2, s. 2, declares "foreign nobles to enjoy the privileges of Danish nobility." 3 Ante, § 107. at that time in statutes or treaties, was to be interpreted either in the sense of subject or in the enlarged sense, according to the anterior prevalence of personal distinctions in respect to the enjoyment of civil rights under the juridical power of the constituent or legislating party or parties. It may be said. that, if used with reference to aliens in the several legislation of any one state, it could not be equivalent to the term subject; if such state had before, either by positive legislation or unwritten law, discriminated between alien persons in the possession of those rights which constitute citizenship as contrasted with simple subjection, and that, as between countries which had before maintained such distinctions in their respective laws, the term, in a compact, would not be synonymous with domiciled subject, native or naturalized, until each state had so extended the possession of civil rights among its domiciled inhabitants that in its internal law citizen and subject were convertible terms. While personal laws were distinguishable in the internal jurisprudence of a country; while men were distinguished in it as persons and as property, or as lords and vassals, or as freemen and bondmen, or as freemen by the public and private law, having civil or political and civil franchises, and men of free condition liable in a different degree to personal disabilities under the private law, whose rights had no guarantee in the public law of the state (supposing the state to be republican in constitution), citizen and subject would not be equivalent and convertible terms in its separate legislation, whether the domiciled inhabitants, or aliens-persons before domiciled in other jurisdictions-were intended. So, in the joint or reciprocal legislation of two or more states which had before admitted such a distinction of conditions under their respective laws, the term citizen would judicially be held to apply, at the farthest, only to those subjects of either who by the law of their domicil were invested with those privileges and immunities which by that law might constitute citizenship in the sense of a condition of civil franchise beyond that necessarily incident to the condition of a subject. $647. Citizenship, in this sense of the word, cannot be attributed in any forum of jurisdiction to alien persons without recognizing the law of their domicil as the juridical source from which that condition of privilege proceeds. It must, for the greater part at least, be attributed to the particular law, jus proprium of some one country.' But it might, in some of its incidents, be founded on principles more generally recognized, and distinctions among natural persons, as capable or not capable of such citizenship, might be attributed to universal jurisprudence. When various degrees of civil privilege were internationally recognized in the different provinces under Roman dominion, they were ascribed to the central or imperial legislative authority rather than to that of some country or province in which the persons to whom they were attributed had a domicil. They had, in this, something of the character of conditions resting on the jus gentium. It has been seen that the doctrine of the liability or capacity of persons of the negro and other races to chattel slavery had been ascribed to universal jurisprudence, and it has been suggested, in another chapter, that the attribution to such persons of a disability or inferiority as compared with others in respect to civil rights and privileges, might, by its general recognition, have acquired the same character." The principles of universal jurisprudence may take effect as private law-that is, establish relations between private persons. But since such principles form the only standard of natural reason to which nations can refer as to a law of external authority, they must be presumed to have been understood in international compacts affecting relations of private persons, and therefore they will apply to the construction of such compacts, when not definitely rejected by express provision. The personal distinction between the negro and Indian races and the European or white is the most marked of any that have affected the possession of civil rights under the juridical power of civilized nations. It has been already shown that in many different jurisdictions it has been recognized in laws limiting the admission of aliens to political and civil rights. This distinction has been principally operative in the interna 1 1 Ante, § 152. 2 Ante, § 327. tional relations of Europeans since the discovery of America and the local laws of the new states founded there by them. But a similar distinction restricting persons of other races in respect to the enjoyment of civil franchises may be found in the laws of European countries. The disabilities of persons of Hebrew race who adhered to their ancient creed, and of persons of the race called, in English, the Gipsy, have been maintained in the law of every European nation.' Their status of civil disability may be said, from its general enforcement, to have been a doctrine of the jus gentium for those countries since the Christian era. There is no doubt but that, as between European states, they would have been judicially held until a comparatively recent period to modify the personal extent of the term citizen or any other which might have been used in an international compact to indicate persons who, within the jurisdiction of any one of the contracting parties, were to be recognized not merely as subjects of the other party but as subjects possessing a certain degree of civil privilege, and that any such state would not have hesitated to discriminate the subjects of another according to these distinctions of race; although by the law of their domicil those before subject to these disabilities had been fully emancipated and vested with the rights and privileges incident to citizenship in the enlarged sense. At least, while these disabilities continued to be maintained by the internal law of either state in the case of its domiciled subjects being of those races, the personal distinctions which had formerly been of universal prevalence would have been applied by such state to interpret a treaty which should refer to a class of the subjects of each as persons who, within the jurisdiction of the other, were to be recognized not merely as subjects of the state in which they were domiciled, but as persons possessing a certain degree of civil privilege. The first article in the edict of Louis XIV., of 1724, commonly known as the Code Noir of Louisiana, decrees the expulsion of Jews from the colony; all the other articles relate to negroes and slaves. In Wells v. Williams, 1 Ld. Raymond 282:-" A Jew may sue at this day; but heretofore they could not, for they were looked upon as enemies." (Cited arguendo in Shaw v. Brown, 35 Mississippi, 299.) Molloy De Jure Maritimo (1744), B. III. c. 6; of the Jews. In Prussia, Jews are, or were recently, excepted in the law of naturalization. 1 Phillimore's Int. Law, 352. |