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which applied to all persons within the Empire without discrimination of race or nation. Although local customs continued to prevail, they applied, instead of to distinct individuals, to all those within a certain locality. The church, by its dominance in certain spheres of law, particularly the family relations, helped to substitute legal uniformity for the diversity of personal laws.
Feudalism, however, was the most vital factor in breaking down the principle of personality. With the intermingling of the races under a fixed home life, with the final acceptance of one religion to replace paganism, with the centralization of legal relations around the idea of land ownership, personal systems lost their utility. In most private legal relations one rule had become dominant over the many conflicting rules previously applied. In the field of public law the feudal fief became the unit of administration, and within it all classes of persons having identical rights in land, had identical rights and duties with respect to their lord. Within the various classes of liegemen rights were equal.
These influences ultimately brought about the disappearance of personality as the criterion of the application of law and substituted territoriality and local uniformity, notwithstanding the fact that certain groups, such as the citizens of certain towns, members of certain guilds, and churchmen were accorded special privileges within the territorial limits.
In the feudal system we find some of the primary elements of the relation between the state and its citizen and the protective functions of the state. Feudalism embodied the notion of the territoriality of rights with the personal relation between lord and liegeman now known under modern transformations as sovereignty. Although land ownership became an index of rights and duties, thus strengthening the territorial principle, and the oath of personal allegiance established the reciprocal obligations of protection and service between the feudal lord and his liegeman, it is to be noted that the lord's jurisdiction and control over his man did not transcend the boundaries of his fief. It was only with the French Revolution, which emphasized the rights of the individual, both at home and abroad, that a definite practice arose of extending diplomatic protection to citizens abroad.
1 General survey of continental legal history, 80-83; Savigny, op. cit. 63–74.
§ 3. Development of Nationality.
The Thirty Years' War was an epoch-making event in the history of international law. It was not merely a great struggle between Protestantism and Roman Catholicism, but from it emerged the principle of territorial independence as opposed to imperialism. The international system of the present day was definitely marked out and the characteristics of the modern state defined. While unequal in power, the states in the system were recognized each as independent, as legally equal, and as exercising exclusive jurisdiction within certain definite territorial limits. The removal of the common superior fostered what had in fact for years been a sense of national independence and national consciousness. Overshadowed for a time by the religious attributes of the Reformation, and obscured by feudal particularism, nationality emerged at the peace of Westphalia as a phenomenon distinct from religion.
§ 4. Nature of Citizenship.
Citizenship (or nationality) is the status of an individual as subject or citizen in relation to a particular sovereign or state, and signifies membership in an independent political community. It traces its origin to the time when the city was the largest autonomous unit to which the individual was attached and its meaning has expanded with the growth of that unit into the modern state. It involves a legal and political relationship between the state and the citizen, by virtue of which he is endowed with certain qualities distinguishing him from other individuals. The conditions on which citizenship shall be acquired and granted, the individuals to whom this status shall be extended, and the rights and obligations incurred by the relationship are fixed by the municipal public law of each state. Al
1 Walker, T. A., A history of the law of nations, Cambridge, 1899, I, 148 et seq. 2 Brissaud, J., A history of French private law, Boston, 1912, p. 874.
* Gerber, C. F., Grundzüge des deutschen Staatsrechts, Leipzig, 1880, 3rd ed., 229; Morse, A. P., A treatise on citizenship, Boston, 1881, pp. x, 4, 36; Foote, J. A., Foreign and domestic law, Private international jurisprudence, 4th ed. by Coleman Phillipson, London, 1914, p. 1.
legiance, the tie which binds the citizen to the political group to which he belongs, is due to the state, the juristic personality of the nation.
Citizenship is essentially a personal relationship, as is sovereignty or the supreme legal authority of the state over those whom it controls. The subjects of the state are all those persons over whom it exercises sovereignty, which in constitutional law include not merely citizens, but aliens residing within its territory or otherwise subject to its control. A territory is not in fact an essential element of sovereignty, although international law has arbitrarily conditioned the enjoyment of membership in the international community on the possession of a territory. It is by virtue of the personal relationship involved in sovereignty and citizenship that the state may declare its laws binding on its citizens even when abroad and by virtue of which its obligations to those non-resident citizens continue to exist.2
Jurisdiction, or the right of physical control over persons, has, however, become territorial, and thus it occurs that the laws of the state, while theoretically binding on the subject so far as made applicable to him, are unenforceable beyond the territorial limits of the state, unless accompanied by extraterritorial jurisdiction or enforced by the foreign sovereign by international arrangement.3 In countries in which extraterritorial privileges are enjoyed, both sovereignty and jurisdiction may be exercised beyond the territorial limits, as is illustrated by the
Crane, Robert T., The state in constitutional and international law, Baltimore, 1907, p. 69; Hall, International law, 6th ed., Oxford, 1909, pp. 17, 19.
2 Congress exercises the right to regulate certain acts of United States citizens abroad and attach prescribed consequences to those acts. E. P. Wheeler, The relation of a citizen in a foreign country, in 3 A. J. I. L. (Oct. 1909) 871, and cases there cited. In England this right rests on Crown prerogative, acts of Parliament and common law. See Hall, W. E., Foreign powers and jurisdiction of the British Crown, Oxford, 1894, pp. 8–13. See also Fiore, P., Nouveau droit international public (Antoine's trans.), Paris, 1885, 8 644; Lomonaco, G., Trattato di diritto internazionale pubblico, Napoli
, 1905, p. 166; Martens, F. de, Traité de droit international, Paris, 1883, I, 442; Despagnet, Frantz, Cours de droit international public, 4th ed., Paris, 1910, p. 467.
3 The notion that citizens, resident abroad, by virtue of their allegiance still fall under the operation of the laws of their national state, is a fallacy often encountered in the writings of publicists. They are subject only to such national laws as the legislature expressly makes binding upon them. See Piggott, Nationality, London, 1906, 1, 3.
consular courts of various powers of the first class in countries like China and Turkey. The will of the state, therefore, is not merely limited in its expression by its constitution and laws, but its enforcement is limited externally-except for the grace of other states, due to custom or comity-by the territorial boundaries of the state.
$ 5. Nature of the Bond.
In pure constitutional theory, citizenship is imposed by the state, by virtue of its sovereignty, on whomsoever it will, and independently of the will of the person. It is not created by or at the consent of the individual. The theory is limited in its application by the international rule that states permit their subjects to acquire a new citizenship, or rather predicate their recognition of such a change, on the condition that it shall have been a voluntary act of the subject accompanied by an actual change of domicil and political affiliation.
André Weiss, the eminent jurist of Paris, has presented an ingenious and plausible argument to show that citizenship or nationality is contractual in its nature.3 “It is to-day generally recognized,” says Weiss, “that the bond of nationality is a contractual one; and that the bond which unites to the state each of its citizens is formed by an agreement of their wills, express or implied." This theory has been severely criticized, among others by Stoerk 4 and by Piggott, and it is now considered fallacious. Some modern authors, however, find in the grant of nationality, i. e., naturalization, a public legal act of a bilateral character, but even these publicists admit that the
1 W. W. Willoughby in 1 A. J. I. L. (1907) 925; Heilborn, P., System des Völkerrechts, Berlin, 1896, p. 75 et seq., and opinions of Gierke, Oertmann, Gerber and Laband there cited.
2 Willoughby in 1 A. J. I. L. (1907) 924.
3 Annuaire de l'Institut de Droit International, v. 13 (1894), 162 et seq. See also Cogordan, Droit des gens. La nationalité, 2nd ed., Paris, 1890, $ 2.
Stoerk, F., Les changements de nationalité et le droit des gens in 2 R. G. D. I. P. (1895) 273 et seq. See also Nys, E., Le droit international, 2nd ed., Bruxelles, 1912, II, 257.
- Piggott, F. T., Nationality, London, 1906, I, 5–10.
6 Laband, Paul, Das Staatsrecht des deutschen Reichs, 5th ed., Leipzig, 1911, p. 177; Jellinek, Georg, System der subjectiven öffentlichen Rechte, 2nd ed., Tübingen, 1905, p. 198. The majority of publicists deny that the conceptions of private law furnish any analogy to the peculiar relations created by public law. See relation is not analogous to a private contractual obligation but rather to the contract of adoption in family law.
The relation between the citizen and his state is in fact a relation sui generis. Admission into membership in the state and to the status of citizenship is an act of sovereignty. Being neither a contract nor an act of grace, Stoerk has denominated it a sociological fact, a distinguishing mark of the state itself. In discussing expatriation, the United States Supreme Court, on several occasions prior to the expatriation act of July 27, 1868 (R. S. 1999), expressed the opinion that "the doctrine of allegiance .. rests on the ground of a mutual compact between the government and the citizen or subject, which it is said, cannot be dissolved by either party without the concurrence of the other." 2
The theory of a compact in the relation between the state and its citizens has engaged the attention of political philosophers for centuries. It became important in the eighteenth century when some writers in the American colonies, appealing to the Englishman Locke, forcefully advanced the theory that the individual enters the state by voluntary agreement, and may establish the conditions of his membership and the limitations of the power of the state. In France, Montesquieu and Rousseau were its most prominent champions. In arriving at the true legal relation between the state and the individual we are not concerned with either of the political theories (1) that the entire sphere of right of the individual is the product of state concession and permission, or (2) that the state not only creates rights but leaves the individual that measure of liberty which it does not itself require in the interest of the whole.3
Stoerk, Felix, Zur Methodik des öffentlichen Rechts, Wien, 1885, and authorities there cited.
1 Stoerk in 2 R. G. D. I. P. (1895) 288.
2 Inglis v. Sailor's Snug Harbor, 3 Peters (1830), 124; Talbot v. Janson, 3 Dallas (1795), 162. See also cases cited by Wise, J. S., American citizenship, Northport, 1906, p. 263. While not a mutual compact, it is true that as a status imposed by the state, citizenship and allegiance could only be renounced when permitted by the state. In most modern states, except Russia and Turkey, municipal legislation has granted the individual this power.
3 On this entire subject see Jellinek, G., The declaration of the rights of man and of citizens, New York, 1901 (Max Farrand's translation), 80, 90 and 95.