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 restrictions 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 privé, 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.2 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.

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.

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.1

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.

NATIONALITY

§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 consciousOvershadowed for a time by the religious attributes of the Reformation, and obscured by feudal particularism,2 nationality emerged at the peace of Westphalia as a phenomenon distinct from religion.

ness.

§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.3 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.

1 Walker, T. A., A history of the law of nations, Cambridge, 1899, I, 148 et seq. * 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. In countries in which extraterritorial privileges are enjoyed, both sovereignty and jurisdiction may be exercised beyond the territorial limits, as is illustrated by the

1 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, § 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.

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, I, 3.