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 exter nal 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

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,

§ 648. These considerations may justify the conclusion that both to determine the meaning of the term citizens of each State in this clause, and also the personal extent of the designation, if it is taken to indicate inhabitants of a State who enjoy a particular degree of civil privilege, it may be construed with reference to the anterior action of the constituent parties in discriminating between foreign and domestic aliens in respect to the enjoyment of civil franchises according to personal distinctions, having herein special regard to those which may have been judicially attributed to universal jurisprudence.

§ 649. The law, having international effect, which resulted from the juridical action of those who preceded the authors of the Constitution, has been shown to have been in part a national law, resting on a national authority, having a quasi-international extent, and partly local law, resting on the several authority of a colony. So far as the rights which the common law attributed to the subject of European race in America were such as constituted the civil franchises of a citizen (and they may be said to have been such, if the British-born subject was a citizen independently of any political qualifications), the condition of a citizen was recognized, as a superior condition to that of a simple subject of the British empire, under the law having quasi-international effect in the several jurisdictions of which it was composed.

If the political franchises of any subjects of the empire were sustained by the law of national authority and quasi-international effect, it was only in the case of persons who also held their civil privileges under the law of the same authority and effect.

If similar rights were in any several jurisdiction of the empire attributed to any other persons, on appearing therein as aliens, it was under a law of local authority.

Civil citizenship, then, if not sustained by the common law of England operating with personal extent, was dependent for its international recognition on the several juridical will of each colony or separate jurisdiction. Whether citizenship, as the condition of a domiciled inhabitant, was or was not, in every several jurisdiction of the empire, enjoyed exclusively

by persons of European race, it appears that, if enjoyed in any one such jurisdiction by a domiciled inhabitant of negro or Indian race, it had no recognition in any other such jurisdiction under the law of national authority and extent, and that there is no historical evidence of its having been definitely recognized in any colony in the case of persons of those races who might have enjoyed citizenship in some other jurisdic

tion.'

It does not appear that during the colonial period British subject and British citizen were equivalent terms in juridical use in any part of the empire; unless, perhaps, in the British islands in speaking of British subjects actually within the limits of the four seas.

It has been shown that there was nothing in the political events accompanying the Revolution and preceding the establishment of the Constitution to change the anterior personal condition under private law of any of the inhabitants of the several States, or at least nothing to alter the relative territorial or personal extent of antecedent laws, since the power of the States over the condition of private persons rather became thereby more isolated and independent in those relations which depend on private law,' and it has been seen from the course of legislation from the date of the establishment of the independence of the United States to the adoption of the Constitution that the former laws of personal condition continued to exist with very little change, in all the States during that time, except in the case of Massachusetts and Vermont. In these States the ancient distinction between their domiciled inhabitants in respect to capacity for civil and political rights may have been partially or even altogether abolished before the adoption of the Constitution, and it may be that no distinction would have been made between aliens of different races in respect to their enjoyment of the privileges and immunities of citizenship. But a recent abandonment of the distinction in the law of one or two States would hardly have the effect of altering the significancy of words in an international compact,

1

Ante, §§ 326, 327.

2

Ante, SS 433-436.