CHAPTER XXIII.

DOMESTIC INTERNATIONAL LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. THE MEANING AND EXTENT OF THE TERM,

66 THE CITIZENS OF EACH STATE," IN THE FIRST PARAGRAPH

OF THE SECOND SECTION OF THE FOURTH ARTICLE OF THE
CONSTITUTION.

§ 626. The first paragraph of the second section of the Fourth Article is in these words:

"The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The legal effect of this provision depends—

1. On the personal application of the words, "the citizens of each State," and

2. On the rights intended by the phrase, "all privileges and immunities of citizens."

A distinct inquiry is presented by each phrase, but they both involve a determination of the force of the term citizen, as descriptive of a private person, or of his legal condition. In the first part of the clause it is denominative of a class of persons; in the latter part it is descriptive of a class of rights.

The Constitution does not itself furnish any definition of the term citizen, nor indicate its personal extent.' It has been shown that the terms employed in these clauses must be interpreted by their previous juridical use in enunciating that international and quasi-international law which had been sanctioned by the constituting people, or those to whose political and juridical power and place they had succeeded. In each of these branches of law those constant relations must have been recognized which are expressed in those definitions or axiomatic principles which have been called "the natural or necessary law of nations." Before citing any authorities on this provi

2

1 Rawle on Const. p. 85; Taney, C. J., 19 How. 411; Curtis, ib. 577. Ante, § 49.

sion, or attempting an independent examination of either of the two points above specified, it is necessary to analyze the nature of either inquiry, by discriminating the various senses of the word citizen in the English, and of the cognate term in other European languages, as it may be used in describing these constant relations.

§ 627. We do not find the term citizen juridically employed in the English language to designate a relation or condition existing peculiarly under the law of England. All European languages derived from the Latin possess a term of the same origin, and in all it has, as popularly used, nearly the same variety of meanings, all expressive of the condition of a legal person in respect either to civil or to political privilege, or to both. But in designating the status of a private person with reference to the public law, it has, in some of the countries in whose vernacular the term is found, a very restricted signification compared with some of its meanings in other countries where the equivalent word is also popularly used with the same limited signification. In some juridical systems it may only be equivalent to subject, a word found in the same languages under analogous changes of form, and of like origin, expressing only that relation which every person within the limits of a political state holds towards the possessors of supreme power. From the very nature of civil society, organized in distinct states, the relation of subjection is everywhere the same.'

The term originally referred to the existence of municipal corporations and the local privileges of its members, which might be either civil (social) or political. It was a term of European internal laws, public and private, as distinguished from international law, indicative of a condition of the inhab

There may be many in this country who would question these propositions. Chief Justice Jay, in Chisholm v. Georgia, 2 Dallas, 470, said:-" At the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called), and have none to govern but themselves. The citizens of America are equal as fellow-citizens, and joint tenants of the sovereignty." And Wilson, J., ib. 458:-" Under that Constitution, there are citizens, but no subjects." And see the opinions in Dred Scott's case, cited in this chapter. The idea that in republics the subject and the sovereign become identified, and the idea of the two existing together, as united opposites, in the idea of citizen, is probably derived from Rousseau.

itants of certain localities, or of some distinct class, as discriminated by the supreme power. It was a term of limited personal application, implying peculiar personal franchises in the individuals of a class, and differences of condition among the subjects of the state resulting from personal laws.'. When the possession of these privileges ceased to be distinctive of any one portion of the inhabitants, the rights of the citizen would be synonymous with those of each subject of the state, and in the internal law of such state they would be convertible terms. Wherever the terms have been used to distinguish persons under the internal law, the condition of citizen includes, of necessity, whatever is expressed by subject; all rights and duties attributable to the subject are equally attributable to the citizen; while the condition of subject expresses only a limited portion of the relations indicated by the term citizen.

§ 628. All within the territory of a nation are subjects of its dominion to the extent of owing obedience to its laws; and where no reference is had to any external relation of the state, the term citizen is often applied to all actually present within the territorial jurisdiction. But, even in expressing relations under the internal law, reference is often had to the co-existence of other nations; and hence distinctions arise between the persons actually subject to the same jurisdiction, founded on the natural circumstance of birth, the legal circumstance of naturalization, and the facts constituting what is technically called domicil. These facts and circumstances form the basis of private international law; and when reference is had to the condition of private persons as connected with one or another of several co-existent states, it is only native or natural born subjects domiciled within the jurisdiction of a state, and those of foreign birth, likewise having a domicil therein, whom the supreme power may choose to put in the same relation towards itself as the native subject (i. e., naturalize), who can be called citizens. Whether the word is then taken in the limited sense, equivalent to subject, or refers to a distinctive condition of personal privilege, it can apply only to native or naturalized persons having a domicil.

1

Ante, §107.

2 Ante, § 273.

3

Ante, § 121.

§ 629. Any relations between private persons or any distinctions in the condition of private persons under the internal law of one state may be recognized by the juridical power of any other state, in the application of private international law. The terms which first expressed distinctions of condition under the internal law may then, derivatively, be used in the enunciation of private international law.

By this law, applied by judicial tribunals, they necessarily recognize the anterior subjection of the alien to the juridical power of the state in which he had his previous domicil. For this law is founded on the fact that some relations of persons towards other persons and towards things may arise out of a previous subjection to another jurisdiction. The only limits to a recognition of such relations are the natural possibility of sustaining them in another forum, and the juridical will of the supreme power therein.'

8630. The relations thus recognized in an alien may be only those of political subjection and allegiance. In this case, the alien is recognized as a foreign citizen, or one having the rights of foreign citizenship, only in those relations which, in the case of the native or naturalized subject having a domicil, arise simply from political subjection. If known to the international law of the forum as a citizen of the country in which his domicil is recognized to be, it would only be in the sense equivalent to native or naturalized subject having a domicil.

But the civil privileges and immunities, or, generally, any legal rights, attributed to the alien by the law of his domicil, may also, by the will of the sovereign of the forum, be recognized therein, so far as they can, from their nature as individual or relative rights, be therein enjoyed or maintained. Indeed, there is always a presumption that, so far as the judicial tribunal acts independently of specific legislation, it will, to that extent, sustain rights and obligations created by the law of the alien's domicil. If these rights or civil privileges of the alien, originally existing under the law of his domicil, are such as constitute him a citizen under that law, in the sense of one in

2

On the principle set forth in Ch. II., the principle of comity, so called.

VOL. II.-18

a condition of privilege beyond that of simple domiciled subject, native or naturalized, then the international law of the forum of jurisdiction may be said to recognize him as a foreign citizen, in the sense of one having a definite condition of privilege beyond that arising merely from subjection and allegiance to the country of his domicil.

If aliens are anywhere thus distinguished, some as being citizens in this enlarged sense, by the law of their domicil, and others as being only subjects not having citizenship in this sense; and especially if aliens are distinguished as having or not having a capacity for citizenship, in this enlarged sense, according to personal distinctions founded on either the law of their place of domicil, or the law of the forum, then citizen would have a distinct meaning from subject, as a term of private international law applied in that forum.

But if no such distinction be made between aliens, the terms citizen and subject, foreign citizen and foreign subject, would be convertible terms in the international law of the forum, whatever distinction might be made in the use of the words citizen and subject, as describing conditions under the internal law of that forum-that is, conditions of the domiciled inhabitants.

§ 631. With reference to these distinctions, the constitutional provision is susceptible of any one of the following readings:

1. The domiciled inhabitants, native or naturalized, of each State, shall be entitled to the privileges and immunities of domiciled inhabitants, native or naturalized, in the several States.

2. The domiciled inhabitants, native or naturalized, of each State, shall be entitled to the privileges and immunities of persons in a degree of civil privilege intended by the word citizen, as expressive of something more than the mere condition of domiciled inhabitant, native or naturalized, in the several States.

3. The domiciled inhabitants, native or naturalized, of each State, who therein enjoy citizenship, as something beyond the mere condition of domiciled inhabitants, native or naturalized, shall be entitled to the privileges and immunities of domiciled inhabitants, native or naturalized, in the several States.