The New York Times reports on October 31 that at a Florida rally, Donald Trump called the Constitutional guarantee of birthright citizenship for all persons born in the U.S. "crazy" and claimed that illegal immigrants are not subject to the jurisdiction of the United States" within the meaning if the 14th Amendment. See the link to this story below at the end of this comment.

Aside from the absurdity of claiming that unauthorized immigrants are not subject to U.S. jurisdiction, which would make them immune from apprehension and deportation, Trump is not only putting his own agenda ahead of the US Constitution in the above statement, but showing total ignorance of 2,000 years of western law, going back to ancient Rome.

To be sure, the president is not alone in that regard, as anti-immigrant activists have been distorting and misrepresenting the meaning of "jurisdiction" in that amendment almost from the time that it was enacted 150 years ago, in 1868, up to the present. The history of these attempts to distort the meaning of plain and unambiguous term "subject to the jurisdiction" (of the United States) over the years is a vast subject which could take up an entire library and goes far beyond the scope of this comment. Instead i will focus on the origin of the term "jurisdiction" in ancient Roman law and how jurisdiction over litigants who were not Roman citizens was in fact carried out.

It also goes without saying that ancient Roman law and legal concepts still have a great influence on western legal systems today, not only in the civil law countries of Europe, but over the common law has well. But that is a subject for another, even bigger, library.

However, it can be safely assumed that the framers of the US constitution, and of the 14th amendment, all knew Latin and were intimately familiar with Roman law. Despite the passage of time, no serious discussion of the US Constitution can ignore or overlook Roman law, any more than a college philosophy curriculum could leave out the names of Plato and Aristotle or a discussion of evolution could fail to mention Charles Darwin.

So what is the meaning of "jurisdiction" in Roman law and how did this term originate? The answer is clear: "jurisdiction" comes from the Latin words "ius", law, and "dicere", to say. This produces the Latin term "Iurisdictio", which literally means "speaking of the law", or saying what the law is.

Adolf Berger, in his 1953 Encyclopedic Dictionary pf Roman Law, defines the term "Iurisdictio" as follows (in part):

"The term covers any judicial activity in civil matters, and in a broader sense, all activity connected with the administration of justice. With reference to the praetor, the jurisdictional magistrate par excellence of the classical times, it embraces all his acts and orders issued during the state in iure of a civil trial, such as...the order to the judge to decide the case in dispute."

In other words, this term means the power to make decisions that are binding on the parties to the litigation. (This term, obviously, has nothing whatsoever to do with the term "allegiance" with which it is often confused, especially by anti-immigrant activists. On may owe "allegiance" to s state or nation, but not to a court or tribunal.)

Now that the classical Roman law definition of "jurisdiction" is clear, the question arises: did the Roman courts or tribunals have jurisdiction over litigants who were living in Rome (or in provinces under Roman control) but did not have Roman citizenship? The answer is of course, yes.

A foreign citizen living in Rome were referred to as a "pereginus" - resident (Rome did not have a formal procedure for becoming a resident, so there was no such thing as a distinction between a legal resident and an "illegal alien".

Berger points out that there were many rights that Roman citizens had which a peregrinus did not have, but bringing a court action was not one of these excluded activities. Berger writes:

"Though excluded from the proceedings bt LEGIS ACTIO [Act of Law], a peregrine has the benefit of protection in Roman courts, in paericular before that praetor who had jurisdiction inter peregrinos from the middel of the third century B,C,"

Berger also writes:

"The praetor urbanus had jurisdiction (ius dicebat) in Rome; later (242 B.C.) a second preator was instituted and vested with jurisdictional powers in civil matters between foreigners (inter peregrinos] and between foreigners and Roman citizens (praetor peregrinus)."

For readers who may havesome knowledge of Latin, the Roan writer, Pomponius gived the following account of the creation of the office ot praetor peregrinus:

"Cumque consules avocarentur bellis finitimis neque esset qui in civitate ius reddere posset, factum est ut praetor quoque crearetur qui urbanus appellatus est quod in urbe ius redderet. Post aliquot deinde annos non sufficeinte eo praetore quod multa turba etiam peregrinorum in civitatem veniret, crearus est alius praetor, qui pregrinus appellatus est, ab eo quod plerumque inter peregrinos ius dicebat.

An approximate translation, since I am not a Latin specialist myself, would be as follows:

"Since the consuls were occupied in wars with neighboring countries and there was no one who could render legal decisions, the office of praetor was established with the title :urbanus" [for the ctiy] to render legal judgments in Rome. After some years, this was too much for one praetor to handle becuse of the large influx of foreigners xominf into Rome; therefore another praetor was created to give judgments in disputes between foreign citizens."

The above brief summary of procedure under Roman law, which was well known to the drafters of the 14rh amendment witout any possible doubt, shows beyond question that the principle of foreign citizens being "subject to the jurisdiction of the courts of their host country has been part of the western legal systems whichever the foundation of US law for more than 2,000 years.

Of course, it would be unreasonable to expect Donald Trump to know this, let alone know a single word of Latin, but maybe he could ask one of jis lawyers to fill him in on western legal history before he makes any more speeches about birthright citizenship.

Of course, if Trump did know any Latin, his answer might be that he is trying to stop the multaturba peregrinorum [great mass of immigrants] that the above passage refers to from coming to the United States in the first place.

One would certainly have to agree that stopping as many immigrants as possible, legal as well as unauthorized, from coming to the Untied States is (to use another classical expression), the Alpha and Omega (beginning and the end), of Trumo's entire immigration agenda - unless the immigrants are from white "Countries like Norway" of course.

The link to the above NY Times story is

Rogee Algase
Attorney at Law