acter of citizen of a State is determined by the law of the State of domicil, or depends on some national or common standard?

The inhabitants of the United States are subject both to the powers held by the national government and to those held by the several State in which they may be domiciled. But the persons here indicated by the terms, "the citizens of each State," are called citizens of, and in respect to, the State of which they are domiciled inhabitants, not in respect to that national sovereignty in reference to which, also, they have a domicil, and to whose authority, in the same State, they are also at the same time subject, though in different relations. This construction the phraseology and the whole connection seem obviously to require.' Now the question is,-whether the persons to be recognized are determined solely by the juridical act of the State of domicil, or whether there is some common limitation of the personal extent of the words so that, even though the persons are called citizens of a State in a relation towards that State, the possession of the character of citizen of such State, so far as it is to be recog Aized in other States under this provision, is not altogether law. ndent on the will of such several State? It has already sense oshown that the terms here used to express the cominternantent of the parties, must be interpreted according the abanterior use of such terms by the same parties; that the the qurule applies in the interpretation of the legislation of any distin tate, in which case it derives its authority from the single usediority of such state, and therefore it is applicable to the essonstitution regarded as the act of the integral people; but that, in its present application, the force of the rule is ascribed to that usage of nations in their reciprocal action which originates "the positive or practical law of nations."

This former use of words by the constituent parties can only be found in the enunciation of law which had had international effect among the States and colonies. But whether

'This seems to be recognized by the judges of the Supreme Court whose opinions in Dred Scott's case have been cited, in the commencement of their inquiry, though they all lose sight of it in their reasonings,

the law which had this effect rested on the authority of the empire or nation and had a national extent, or rested on the several authority of a colony or a State and had only local extent, it must in a great degree have been identified with the international usage of all civilized nations. The use of terms by the constituent parties, in this branch of jurisprudence, is therefore in a great degree identified with the use of such terms in the general international law of civilized nations.

§ 645. The meaning of the term citizen (the subject of the first inquiry above stated) must be supposed to be one received in the several States, since the mere signification of terms must be supposed to be one commonly known to all the constituting parties. But it does not appear that, for any similar reason, the personal extent of the term in this clause (the subject of the second inquiry), though with that extent the term is used in expressing a common rule of action, should be one adopted by each State, or even by any one State, in its several juridical action.'

The various possible meanings of citizen in this clause have been indicated with reference to those definitions or fundamental relations which make the natural or necessary law of nations. If the ordinary juridical use of the term by the declaring party or parties, the States or the people of the United States, had not been sufficiently uniform to indicate the particular meaning of the term in this case, reference must be had to the usage and practice of nations in similar international relations to determine the particular meaning here intended.

If the term citizen is taken in the sense of domiciled inhabitant, native or naturalized, under a law of Congress, there can be little or no controversy as to its personal extent; for the facts constituting domicil are so settled in the national recognition of civilized nations that they must be assumed to be the same in the local law of every several jurisdiction within the United States.

So though "privileges and immunities of citizens," in the last part of the clause, are received by the constituent parties as a measure of franchises in a common rule, it does not appear that the standard of citizenship, as a condition of privilege and immunity, should be that adopted in the internal law of each State or of any State.

2

Ante, §§ 627-631.

VOL. II.-21

But if the term is taken in the enlarged sense, with limited personal application, having different personal extent in different States, it seems necessary to interpret the whole clause, as above supposed, with reference to the usage and practice of nations in applying statutes or compacts affecting private persons in international relations like those contemplated in this provision, in order to determine the personal extent of the word in this clause; that is, whether each State is to determine the extent of the word, as applicable to its own domiciled inhabitants, or whether there is a national or common standard of the personal extent of the term among the inhabitants of the States.

If, therefore, there is any criterion of the meaning of the terms, other than their anterior ordinary juridical use by the same parties, which, under rules of interpretation or construction, may be resorted to in either of these inquiries (i. e., 1, as to the meaning of the term; 2, as to its personal extent); that criterion is the same in either instance, viz.: the juridical practice of nations in allowing or disallowing within their several jurisdictions the rights and privileges attributed to alien persons under the law of their domicil.

§ 646. The possession of that degree of civil privilege which constitutes the citizen, in that sense of the word and of its cognates in which it is distinguished from the term subject, is determined by the internal law of some one state' and, except as identified with the term subject, the word citizen is not now a term employed in the international law. An international recognition of distinctive conditions of civil privilege may be traced in the history of the jurisprudence of the Roman republic and empire. Admitting that no international law, in the modern sense of an ascertained code of imperfect sanction for independent nations, could have been recognized under the Roman empire,' still a quasi-international private law, being

1 Ante, § 627.

2

Ante, Vol. I. p. 147. The reasons for commencing an inquiry of this sort by referring to the Roman law, have been explained. Vol. I. p. 144. That law is often spoken of as the source of the modern international public law. See 1 Kent's Comm. 7. But it is so only by being an exponent of universal jurisprudence. See H. S. Maine's Ancient Law (London, 1861), p. 101, and the whole 4th chapter of that work.

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 mediaval 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.

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.