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PART I

RELATION BETWEEN STATE AND CITIZEN, BETWEEN STATE AND ALIEN, AND

BETWEEN STATE AND STATE

CHAPTER I

INTRODUCTION

$1. State and Individual.

The diplomatic protection of citizens abroad is a comparatively modern phenomenon in the evolution of the state, in constitutional and in international law. Not until the legal position of the state toward individuals, both its own citizens and aliens, and of states among themselves, had become clearly defined in modern public law, did diplomatic protection become a factor in international intercourse.

The history of the legal relation between the state and individuals, its own citizens and aliens, is largely a history of the transition from the system of personal laws to the territoriality of law, accompanied both by a growing control of a central power over the individuals within its jurisdiction and by the appearance of certain characteristics, territorial independence and sovereignty, as essential qualifications for admission of a state into the society of states.

1

$2. Growth of Territoriality of Law.

The territoriality of law, an accepted phenomenon of modern times, was a matter of slow development. The Roman law was not applicable to foreigners. Strictly speaking, the foreigner was an outlaw. Com

1 The growth of the state and of modern political society cannot be here discussed. The subject is ably treated by Edward Jenks in his History of politics, London, New York, 1900, and in his Law and politics in the Middle Ages, 2nd ed., London, 1913.

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merce;':custom and religion brought about an amelioration of his harsh condition to the extent of permitting the application of the foreigner's own law in legal relations among foreigners themselves and in certain commercial relations with Roman citizens. Even this privilege, however, was extended only to friendly peoples. The German tribes were more hospitable to the foreigner, although, strictly speaking, he was a person without rights. By being permitted to reside among them if unchallenged by a member of the tribe, the foreigner acquired a precarious measure of protection, usually assumed by the king or leader of the tribe. 1

In the commingling of tribes in the Frankish Empire and in the absence of any centralized or stable legal system or judicial organization previous to the time of Charlemagne, each tribe lived under its own law and the personal rights and acts of the individual and his legal status were regulated and judged according to the code of the tribe or nation to which he belonged.

This system of the application of the personal laws, as they were called, was by no means analogous to the privilege of living under their own law which Rome had extended to certain classes of friendly aliens. In the Frankish Empire, there was an equality between all the personal systems. In Rome, only the Roman law was universal, and its enjoyment was limited to Roman citizens alone. The use of foreign systems was a special concession due to the unwillingness of Rome to permit foreigners to share in the benefits of the Roman civil law. In the Frankish Empire, the various tribes and their members were equal; in Rome the position of the non-Roman was one of legal inferiority and such advantages as he came to enjoy consisted in the removal of strictions imposed by the Roman law. The Germanic peoples, before their inva

1

Bar, L. von, Theory and practice of private international law (Gillespie's translation), Edinburgh, 1892, p. 12; Bernheim, A. C., History of the law of aliens, New York, 1885, p. 7 et seq., p. 18; Frisch, Hans von, Das Fremdenrecht, Berlin, 1910, pp. 5–22. For the legal position of aliens in early law see the following works: Demangeat, Charles, Histoire de la condition civile des étrangers en France dans l'ancien et dans le nouveau droit, Paris, 1844; Sapey, C. A., Les étrangers en France sous l'ancien et le nouveau droit, Paris, 1843; Catellani, E., Il diritto internazionale privato e sui recenti progressi, Torino, 1895, 2nd ed., 13 et seq.; Weiss, A., Traité de droit international priylé, 2nd ed., Paris, 1908, v. 2, chap. 1.

sion of Rome, knew no system of personal laws, for it was their universal custom that the law of the conquering tribe replaced that of the conquered. The master abolished the law of his slave, and substituted his own. The conditions arising out of the conquest of such a cultured people as the Romans changed this custom, and in the coördinate existence of the Roman system and the body of tribal systems the germ was laid for the recognition of the personality of laws. The Roman law existed side by side with that of the dominant conquering tribe.3

The two great exceptions to the rule of the personality of laws occurred in cases where the person's individual law could not be recognized and those where such recognition was contrary to the public interest. The first exception applied to aliens and non-Christians, aliens being those whose nations were not included under the Empire. As has been observed, aliens had no rights; they were under public protection and governed by the law of their protector. An individual personal law, moreover, could not interfere with public law; so, for example, the criminal law soon became local and territorial.

In the later Middle Ages, various influences led to a transition from the principle of the personality of law to that of the territoriality of law. With the development of agriculture came a greater permanency of habitation on the part of the Germanic nations. The fixed attachment to a city or community, and intermarriage between members of the different Germanic nations, made it difficult, after a generation or two, to keep in mind individual personal laws; so that courts began to apply their own law, derived largely from the capitularies of the Emperor,

1 Bar, L. von, op. cit. 18.

2 Continental Legal History Series, v. 1, General survey of events, sources, persons, and movements in continental legal history, Boston, 1912, p. 60 et seq.

3 At the present day we may note the survival of the system of personal laws in the fact that Europeans live in various parts of the world (Turkey, China, the Malay peninsula, some of the Barbary States) under their own law, as do the Indians while on their reservations in this country. See also Asser-Rivier, Eléments de droit international privé, Paris, 1884, p. 7, footnote. In the conflict of laws there are numerous cases in which a legal relation is judged by the so-called “personal statute," either the law of the domicil or of the nationality of the individual in question, though this is rather an outgrowth of the jus gentium of the Romans than an illustration of the modern survival of the personality of laws. See also Savigny, F. C., A treatise on the conflict of laws, translation of v. 8 of his System des heutigen römischen Rechts (1849) by William Guthrie, Edinburgh, 1880, pp. 58, 60-62.

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