more modern theory, entirely individualistic and utilitarian, supported strongly by Macaulay, Bentham and John Stuart Mill, regarded the state as a means only to insure and increase the sum of private happiness.1

The one-sidedness of each of these views has become more evident with the growth of social legislation during the past generation. The state is not merely an end in itself, nor only a means to secure individual welfare. Just as the nation is something more than a sum of the individuals belonging to it, so the national welfare is more than the sum of individual welfare. National welfare and individual welfare are indeed intimately bound together. In an impairment of individual rights, the state, the social solidarity, is affected; 2 yet where, in a particular case, the redress of the individual wrong would involve too great a social cost, it may be overlooked, and the measurement of the balance of advantages is in the discretion of the government.

The assurance of the welfare of individuals, therefore, is a primary function of the state, accomplished internally by the agency of municipal public law, and externally through the instrumentalities of international law and diplomacy. The establishment of the machinery to insure this object constitutes an essential function of state activity -within, protecting every member of society from injustice or oppression by every other member; without, protecting its citizens from violence and oppression by other states. Authorities differ in giving expression to this function of the state, but modern publicists agree that it finds its basis in the nature of the state and in the doctrine of Locke that "the end of government is the good of mankind." 3

Paris, 1901, p. 288. See the theories of Kant and Humboldt as discussed in Bluntschli, op. cit., 68.

1 McKechnie, op. cit., 77; Ritchie, op. cit., 87. 2 Duguit, op. cit., 290.

McKechnie, op. cit., 74; Bluntschli, op. cit., 319 et seq. For an account of the contributions of a long line of publicists to political theory and philosophy, especially as involved in the relation of the state to the individual, and the struggle between authority and liberty, see the works of McKechnie, Bluntschli, and Duguit cited above, and Yeaman, G. H., The study of government, Boston, 1871, and LeroyBeaulieu, P., The modern state in relation to society and the individual, London,

International lawyers, unwilling to indulge in philosophical speculation as to the relation between the state and the individual, assert that the final mission of the state and the aim of international organization culminates in the guaranty of the collective security of the nation and the personal security of the individual and of his rights, and the promotion of social and individual welfare.1 Diplomatic protection, therefore, as a governmental function to achieve security and justice, results from the very nature of the state. It is entirely consistent with the principle of independence, when it is recalled that the latter, as an attribute of states, is only recognized by international law on the theory that it is the best means of accomplishing state functions. Its basis being practical, international law permits it to be set aside, when it is misapplied, by the diplomatic interposition of those states whose interests, through their citizens, have been prejudiced by the delinquency. Diplomatic protection thus conforms with the aim of international organization-the advancement and perfection of those rights which the modern development of international law, by custom and treaty, has recognized as inherent in the individual.

1 See, e. g., Martens, op. cit., § 85; Holtzendorff's Handbuch, I, § 15; and Huber, Beiträge zur Kenntnis der soziologischen Grundlagen des Völkerrechts u. Staatengesellschaft in 4 Jahrbuch des öffentlichen Rechts (1910), 56–134; Vattel, ChittyIngraham ed., Phila., 1855, Prelimin. § 22; Bk. I, ch. II, §§ 13-16; see also A. H. Snow, "The American philosophy of government", in 8 A. J. I. L. (1914), 191, 200 and Hobhouse, Leonard T., Social evolution and political theory, New York, 1911, Chap. IX; Wilson, Roland K., The province of the state, London, 1911, Chaps. I and II.

2 Pillet, A., Le droit international public, ses éléments constitutifs, domaine et objet, 1 R. G. D. I. P. (1894), 5.

CHAPTER II

THE ALIEN

§ 17. Historical Development of Legal Position of Alien

The legal position of the alien has in the progress of time advanced from that of complete outlawry, in the days of early Rome and the Germanic tribes, to that of practical assimilation with nationals, at the present time. In the Twelve Tables of Rome, the alien and enemy were classed together, the word hostis being used interchangeably to designate both. Only the Roman citizen had rights recognized in law. When Rome became a conquering and commercial nation, certain classes of foreigners were admitted into friendly relations with that government. By special treaty, or through hospitality, or the necessities of commerce, these aliens were accorded the benefits of the socalled jus gentium, or the law common to all mankind, for the jus civile was reserved exclusively for Roman citizens. The barbarians, or those with whom the Empire had no friendly relations, had no rights at all. The Prætor Peregrinus, first appointed in 242 B. C. was the special judge of the legal relations of aliens, either among themselves or with Romans, and he applied the jus gentium.

The Germanic tribes, in the early period, were hardly more hospitable to the alien than were the Twelve Tables of the Romans. Their later wanderings, however, brought them into constant relations with foreigners, and while rights of foreigners were not recognized, the practice of hospitality ameliorated the alien's harsh position of outlawry.

1 Bernheim, A. C., The history of the law of aliens, New York, 1885, p. 7 et seq. For the history of the law of aliens see also the works of Frisch, Hans von, Das Fremdenrecht, Berlin, 1910, pp. 5-22; 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; Weiss, A., Traité de droit international privé, 2nd ed., Paris, 1908, v. 2, chap. 1; Pierantoni, A., Trattato di diritto internazionale, Rome, 1881, v. 1. The etymology of the words used to describe aliens is discussed in Bernheim, 20–21.

In the feudal period, when the principles of unchallenged residence of an alien for a certain period (generally a year and a day), and voluntary subjection to the protecting patronage, first of a member of the tribe and later of the feudal lord, had become recognized institutions, the disabilities of the alien became more clearly defined. The disabilities and restrictions differed in degree in different baronies, although based on similar principles. In the restriction of personal liberty, the "jus wildfangiatus," the exactions ranged from the imposition of complete serfdom, or a prohibition to leave the domain or to marry without the lord's consent, to almost complete personal freedom, subject to payment of taxes and fines. The principle of the so-called droit d'aubaine (literally translated, "right of the foreigner") was in force throughout the feudal period. Properly speaking, this involved the right of the lord or fiscus to take the estate of the foreigner at his death, and in application consisted of the disability of the foreigner to take by succession or to become a testator, either unconditionally, or subject to the payment of certain sums to the lord.2 Political rights there were none. The principal difference between the person who was born in the fief or race and the stranger who settled there was in the immunity of the former from the droit d'aubaine. Until the time when political rights were conceded, the essential difference between nationality and domicil was slight.. As has been observed, nationality, as the bond through which the citizen is attached to his state, securing through his state the recognition and the ultimate enforcement of rights abroad, did not clearly emerge as a legal relation with definite individual rights until the period of the French revolution.

From the fifteenth to the nineteenth centuries, many of the feudal disabilities of aliens were retained in principle though reduced in severity of application. It will not be feasible to enter into any detailed account of the degrees of alienage, nor of the various disabilities to which aliens were subjected.3 The most important were the droit d'aubaine and the somewhat less onerous jus detractus or droit de dé

1 Bernheim, op. cit., 35, 44.

2 Bernheim, op. cit., 37, 46; Frisch, op. cit., 22 et seq. See Bernheim, op. cit., 41, 49.

traction, a reduction or tax on property first applied in Germany on property which a German resident of one province acquired in and removed from another province. It applied at first not to all foreigners, but only to persons belonging to different provinces of the same nation. By the eighteenth century, it had become a widespread institution in Europe, and applied to all foreigners. The alien, moreover, was incapable of taking ab intestato, nor could he become a testator. He was also subjected to various discriminations in the matter of civil and criminal procedure.

In England, the feudal period was of briefer duration than on the Continent. The droit d'aubaine did not ripen into a legal institution, nor was the alien protected by the sovereign.1 Statutes passed from time to time removed the more onerous of the disabilities of the alien. Merchant aliens who were always favored by English law received by license a limited right to reside and trade in England, subject to payments of various kinds.2 In the course of time the privileges of alien merchants were enlarged and extended to other aliens as well. Curiously, however, the feudal notions of real property, the ownership of which involved an oath of allegiance, which of course could not be taken by an alien, prevailed in England up to 1870, when by the act of 33 Vict. c. 14, aliens were first rendered capable of taking title in fee to real property.3

With the growth and necessities of commerce and the more frequent intercourse with aliens, combined with the enlightened views of individual rights which the French Revolution brought in its train, the more onerous of the disabilities of aliens, principally the droit d'aubaine and the droit de détraction, were gradually abolished by treaty and statute, so that at the present time, in his private relations, the legal position of the alien is practically the same as that of the

1 Bernheim, op. cit., 51 et seq.; Hansard, Geo., Treatise on the law relating to aliens and denization and naturalization, London, 1844; La Baron, F. A., Code des étrangers, London, 1849; Henriques, H. S. Q., The law of aliens and naturalization, London, 1906, 1 et seq.

2 Walford, C., A review of the early laws regulating the privileges of foreign merchants in 9th Annual Report (1881) of the Asso. for the Reform and Codification of the Law of Nations, 198-224.

3 Bernheim, op. cit., 124 et seq.; Henriques, op. cit., 3-6.