629. Any relations between private persons or any distinctions in the condition of private persons under the internal law of one state may be recognized by the juridical power of any other state, in the application of private international law. The terms which first expressed distinctions of condition under the internal law may then, derivatively, be used in the enunciation of private international law.

By this law, applied by judicial tribunals, they necessarily recognize the anterior subjection of the alien to the juridical power of the state in which he had his previous domicil. For this law is founded on the fact that some relations of persons towards other persons and towards things may arise out of a previous subjection to another jurisdiction. The only limits to a recognition of such relations are the natural possibility of sustaining them in another forum, and the juridical will of the supreme power therein.'

630. The relations thus recognized in an alien may be only those of political subjection and allegiance. In this case, the alien is recognized as a foreign citizen, or one having the rights of foreign citizenship, only in those relations which, in the case of the native or naturalized subject having a domicil, arise simply from political subjection. If known to the international law of the forum as a citizen of the country in which his domicil is recognized to be, it would only be in the sense equivalent to native or naturalized subject having a domicil.

But the civil privileges and immunities, or, generally, any legal rights, attributed to the alien by the law of his domicil, may also, by the will of the sovereign of the forum, be recognized therein, so far as they can, from their nature as individual or relative rights, be therein enjoyed or maintained. Indeed, there is always a presumption that, so far as the judicial tribunal acts independently of specific legislation, it will, to that extent, sustain rights and obligations created by the law of the alien's domicil. If these rights or civil privileges of the alien, originally existing under the law of his domicil, are such as constitute him a citizen under that law, in the sense of one in

1 Ante, § 75.

* On the principle set forth in Ch. II., the principle of comity, so called.

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a condition of privilege beyond that of simple domiciled subject, native or naturalized, then the international law of the forum of jurisdiction may be said to recognize him as a foreign citizen, in the sense of one having a definite condition of privilege beyond that arising merely from subjection and allegiance to the country of his domicil.

If aliens are anywhere thus distinguished, some as being citizens in this enlarged sense, by the law of their domicil, and others as being only subjects not having citizenship in this sense; and especially if aliens are distinguished as having or not having a capacity for citizenship, in this enlarged sense, according to personal distinctions founded on either the law of their place of domicil, or the law of the forum, then citizen would have a distinct meaning from subject, as a term of private international law applied in that forum.

But if no such distinction be made between aliens, the terms citizen and subject, foreign citizen and foreign subject, would be convertible terms in the international law of the forum, whatever distinction might be made in the use of the words citizen and subject, as describing conditions under the internal law of that forum-that is, conditions of the domiciled inhabitants.

§631. With reference to these distinctions, the constitutional provision is susceptible of any one of the following readings:

1. The domiciled inhabitants, native or naturalized, of each State, shall be entitled to the privileges and immunities of domiciled inhabitants, native or naturalized, in the several States.

2. The domiciled inhabitants, native or naturalized, of each State, shall be entitled to the privileges and immunities of persons in a degree of civil privilege intended by the word citizen, as expressive of something more than the mere condition of domiciled inhabitant, native or naturalized, in the several States.

3. The domiciled inhabitants, native or naturalized, of each State, who therein enjoy citizenship, as something beyond the mere condition of domiciled inhabitants, native or naturalized, shall be entitled to the privileges and immunities of domiciled inhabitants, native or naturalized, in the several States.

4. The domiciled inhabitants, native or naturalized, of each State, who therein enjoy citizenship, as something beyond the mere condition of domiciled inhabitants, native or naturalized, shall be entitled to the privileges and immunities of citizenship as something beyond the mere condition of domiciled inhabitants, native or naturalized, in the several States.

§ 632. It has been shown that under the distribution of powers between the States and the national government, either source of law might confer on persons of foreign birth the rights which the native born inhabitant of a State holds in respect to such source; though neither of these could, unless by special provision, change the relation between such persons and the other source of law. Without such provision neither the national government nor the States could, separately, naturalize such persons; that is, place them in the relation of the native-born inhabitant, which exists towards each of these coexistent possessors of power.'

The Constitution vests in Congress the power to establish ' a uniform rule of naturalization. A rule of naturalization, whether uniform or not in its action in the different States and its application to aliens, could have but one effect or consequence-that is, to place the alien in the relation or position of a native-born inhabitant, who is in each State the natural subject of both the State and the United States. Some of the States have conferred upon aliens privileges held by native inhabitants under their several authority, without reference to naturalization under the law of Congress. Even if such grant of privilege is valid under the Constitution, it is evident that such persons are still alien in respect to the national government, or the United States, holding sovereign powers within the same jurisdiction. In arguing against such grants of privilege by the States, or against State acts of naturalization as they have been called, it has been said that foreigners might thus become citizens of a several State; and then, by the operation of this provision, they would be admitted to the privileges and immunities of citizens in the several States; and

1

Ante, §§ 391, 384.

* Curtis, J., 19 How. 578, and authorities.

that thus the State would in fact pass a naturalization law having uniform extent or operation in the several States: an effect which in all probability would prevent the result intended by the grant of power to Congress-that is, the establishment of one uniform rule of naturalization. But whether such socalled naturalization on the part of a State is valid under the Constitution or not, it may be said, in reference to the above supposed extension of its effects under this provision, that it does not appear that the foreigner would become a citizen of a State, in the sense of this provision; even if citizen here indicates only a native or naturalized inhabitant having a domicil.' Such foreigner would not by such State law be in the same relation as the native in respect to all laws operating in that State; and it must first be proved that the term citizen, in each part of this clause, only designates a person holding a certain relation towards the several State in which he is domiciled, and has no reference to his relation towards the United States and the national government.

Besides, by public international law (positive or practical law of nations), the relation of an alien-born inhabitant to his former sovereign continues, to a certain extent, to be recognized even in the country in which he is an alien; so that his obligations, under public law, in respect to that country and its civil power, are different from those of the native, until, by naturalization, the sovereign of such country has conferred new rights and transferred his obligations under public law. Hence the rights acquired by an alien, by such an exercise, of the “reserved" powers of a State, are not the same as those of the native, even in relations which, in the case of the native, are

A

'See Chirac v. Chirac, 2 Wheat. 261; Taney, Ch. J., 19 How. 405; Daniel, J., ib. 482; Curtis, J., ib. 578; McLean, J., ib. 533:-"No person can legally be made a citizen of a State, and consequently a citizen of the United States, of foreign birth, unless he be naturalized under the acts of Congress. Congress has power 'to establish a uniform rule of naturalization.' It is a power which belongs exclusively to Congress, as intimately connected with our Federal relations. State may authorize foreigners to hold real estate within its jurisdiction, but it has no power to naturalize foreigners, and give them the rights of citizens. Such a right is opposed to the acts of Congress on the subject of naturalization, and subversive of the Federal powers. I regret that any countenance should be given from this bench to a practice like this in some of the States, which has no warrant in the Constitution."

under its several share of sovereign power. Every private right derives a part of its essence from public law, and involves the coexistence of correspondent obligations imposed by that law.' All rights of a native inhabitant in each State are modified by his obligations, under the public law and Constitution of the United States, in reference to the nation and the powers held by the government of the United States. Therefore, whether citizen and subject are taken to be equivalent terms or not, the alien not naturalized in respect to the United States, or the national authority, is a citizen in an imperfect sense, even in respect to the several State. The privileges that have been granted to him by the State are not only local, merely, but are imperfect franchises, not constituting a status recognized in public international law. Therefore, the term citizen in this provision, whether taken to mean a subject merely, or a subject holding a particular degree of civil privilege, should not be taken to apply to aliens who hold the rights of native inhabitants only under the juridical authority of some several State.

It is not, however, necessary to consider this somewhat intricate question any farther; at least not in this connection, since the conclusion above stated may be taken to be supported by all the commentators on this provision of the fourth Article," who uniformly assume that the term citizen here used refers only to persons native, or naturalized under the law of Congress. In each of the four readings of this provision before given, the word naturalized will therefore be taken to refer to naturalization under the law of Congress.

§633. Supposing the signification of the term citizen in either or both parts of the provision to be that of domiciled inhabitant, native or naturalized under the law of Congress, the meaning of these terms, or the nature of the relation expressed by them, may be taken to be too well settled, or too simple, to allow of any controversy. The possession of citizenship, in that sense, or its personal extent, may be supposed to be sufficiently obvious; the facts or circumstances which constitute

1

1 Bacon, De Aug. L. 8, c. 3, s. 3:—" Sub tutela juris publici latet jus privatum." 2 Story's Comm., § 1806.