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national law would be but the shadow of a name, and would afford no protection either to states or to individuals. It has been constantly maintained and also admitted by the Government of the United States that a Government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties.” 1
The principle that equality of treatment between nationals and aliens releases a state from pecuniary responsibility for injury to aliens is conditioned upon the fact that its administration of justice satisfies the standard of civilized justice established by international law. Foreign states, however, undertake to judge for themselves as to the local state's compliance with international standards—a defect in the system which arbitration has done much to remedy.
The United States has never taken the position that one who acquires a residence in a foreign country does so at his peril and assumes the risk of ill-treatment or injury identically with citizens. Where a state does not normally possess or is not disposed to employ sufficient power to prevent injury to the alien, the state's responsibility is considered as established; the delinquency may occur either in its legislative, executive, or judicial departments. One reason why the alien is not bound to submit to unjust treatment equally with nationals, against which the national has no judicial redress, is because the latter is presumed to have a political remedy, whereas the alien's inability to exercise political rights deprives him of one of the principal safeguards of the rights of the citizen. For this reason diplomatic inter
1 Mr. Bayard, Sec'y of State, to Mr. Connery, Nov. 1, 1887, For. Rel., 1887, pp. 751, 753. See also C. C. Hyde in Proceedings of the Amer. Soc. of Int. Law, 1911, p. 36.
2 Mr. Bayard, Sec'y of State, to Mr. Buck, min. to Peru, Aug. 24, 1886, Moore's Dig. VI, 252, in case of U. S. citizen Young killed in Peru, in 1884, by a Peruvian soldier.
*C. C. Hyde, in Proceedings, supra, 1911, p. 33. While this rule is frequently invoked by European governments against the states of Latin-America, a temporary lack of power to prevent lawless injury to aliens is not a good legal ground to invoke the responsibility of the state. This has been often asserted by the United States in mob violence cases (infra, 8 91), though indemnities have generally been paid. In times of civil disturbance, the alien like the national should be compelled to bear the necessary and incidental consequences of such conditions. This has been asserted by the United States in times when civil guarantees were suspended, e. g., during the Civil War. Only where the alien is discriminated against, by direct injury or unreasonable failure to prevent it, should the defense of civil disturbance be rejected. position may be invoked by the alien for the enforcement of his rights." The alien, therefore, is not bound to accept the treatment accorded to nationals if such treatment is in violation of the ordinary principles of civilized justice, and notwithstanding the fact that the national has no immediate remedy against the injustice.
$ 45. Treaty Rights of Aliens in the United States.
The inability of the United States to enforce the treaty rights of aliens in the states has often brought about diplomatic controversies between this country and foreign governments. The anomalous situation created by the fact that the states of the Union may legislate with reference to aliens has on several occasions threatened to disturb the friendly relations between our own and foreign governments, and the incompetence of the federal government under existing laws to compel state officials to recognize and enforce the treaty rights of aliens has had the attention of Presidents and of Congress at various times. That Congress has the power to legislate for the protection of aliens in their treaty rights, seems unquestionable. Bills have been introduced and their passage urged to give the federal courts jurisdiction over cases involving an alleged violation of the treaty rights of aliens. On several occasions, the federal government has found it necessary to pay foreign claims for the violation by the states of an alien's treaty rights, largely because it has been found practically impossible, owing to local sentiment, successfully to prosecute the guilty offenders in the state courts. The peculiar situation created
See brief of J. B. Moore in Constancia Sugar Rfg. Co. v. U. S., No. 196, before Spanish Treaty Claims Commission. See also Pinheiro-Ferreira in Pradier-Fodéré, op. cit. I, $ 405.
2 Baldwin v. Franks, 120 U. S. 678, 682, 707.
3 S. Rep. 392, 56th Cong. 1st sess. Ex-senator Turner in Proceedings of the Amer. Soc. of Int. Law, v. 2 (1908), 21 et seq. and Robert Lansing, ibid. 44-60. The responsibility of the federal government for violations of the rights of aliens, by Nelson Gammans, 8 A. J. I. L. (1914), 73–80; Ex-president Taft in the Independent, Feb. 2, 1914, pp. 156-158; Feb. 9, 1914, pp. 204-208. Simeon E. Baldwin suggests that Congress should authorize the bringing of an action by the U. S. in a state court instead of in a federal court. 13 Mich. L. Rev. (1914) 17–20.
* S. Rep. 392, 56th Cong. 1st sess. See also Baldwin v. Franks, 120 U. S. 678; S. Doc. 95, 55th Cong. 2nd sess., p. 2. See infra, p. 225.
by the urgent and solicitous appeal of a Secretary of State to a state legislature to avoid any legislation unfriendly to a foreign nation and the numerous examples of discriminatory legislation by the states against certain foreign interests, e. g., insurance companies, Japanese farmers (in California), etc., reveals not only the practical helplessness of the federal government in dealing with many phases of our foreign relations but discloses an actual encroachment by the states upon the constitutionally unrestricted power of the national government and the express prohibition to the states of dealing with foreign relations. 1
Aliens in the United States who allege a violation of treaty rights are placed in a curious position by the constitutional rule that the determination of the rights of aliens claimed under treaty is within the jurisdiction of the judiciary. Inasmuch as a treaty is the supreme law of the land, an alien invoking a right under a treaty must plead it in the usual course of judicial proceedings, and until justice has been denied him in those proceedings, the diplomatic interposition of his government is regarded as premature. Hence aliens, complaining to the Department of State through their governments of the violation of treaty rights, are referred to the courts, or if the case is already in the courts, the Executive declines to interfere on the ground of constitutional incompetence, and on the ground that a treaty merely confers substantive rights to be enforced in the appropriate courts. An act of state officials which is evidently a violation of treaty rights must often, therefore, await judicial determination before the Executive may properly interfere. If the decision of the court is against the alien, the Executive usually feels justified in rejecting any subsequent diplomatic claim which may be advanced in his behalf. Foreign governments, however, may with justice answer that no government can rightfully claim to be the final judge of its compliance with international obligations, or shield itself behind its municipal law or decisions to escape international liability. On the other hand, if the decision supports the alien's right under treaty, e. g., if the alien has been wrongfully arrested or detained in violation of treaty by
Willoughby, W. W., Principles of the constitutional law of the U. S., New York, 1912 (abridged ed.), 154 et seq.
· Bradford, Atty. Gen., in 1 Op. Atty. Gen., July 26, 1794, 2nd ser., 24.
police authorities and is subsequently released by decision of a court, the Executive has taken the position that the restoration of the alien to his rights by regular judicial proceedings releases the government from legal liability. Equitable considerations, however, have been held in flagrant cases to warrant a recommendation to Congress for the payment of an indemnity as an act of grace."
POSITION IN WAR
$ 46. Aliens in War.
But brief mention can be made of some of the more important phases and general principles of the alien's position in time of war. During the nineteenth century the theory gained ground steadily that war is primarily a relation between states, and should so far as possible leave unaffected the rights of person and property of noncombatants. The theory has been confirmed in practice by treaties between states and by international conventions, such as those at The Hague. While in strict law, war makes enemies of the subjects of the respective belligerents and authorizes their expulsion from the belligerent territory, a network of treaties has established the practical rule that aliens, nationals of an enemy state, may continue to reside, provided they maintain a neutral position, similar to that of the nationals of neutral states. In the case of merchants, nationals of the enemy state, this permission to reside and trade is usually limited to six months or one year, while in the case of others who might be regarded as alien enemies and who are engaged in peaceful occupations, provision is usually made for the security of their persons and property and their unmolested residence. We may quote the customary provision of the treaties of the United States:
"If by any fatality, which cannot be expected, and which may God avert, the two contracting parties should be engaged in a war with each other, they have agreed and do agree, now for then, that there shall be allowed the term of six months to the merchants residing on the coasts and in the ports of each other, and the term of one year to those who dwell in the interior, to arrange their business, and transport their effects wherever they please, with the safe conduct necessary to protect
Claim of 3 members of crew of Norwegian ship Ingrid, Oct. 8, 1914, H. Doc., 1172, 62nd Cong. 2nd sess.
them and their property, until they arrive at the ports designated for their embarkation. And all women and children, scholars of every faculty, cultivators of the earth, artisans, mechanics, manufacturers, and fishermen, unarmed and inhabiting the unfortified towns, villages, or places, and, in general, all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the belligerent in whose power, by the events of war, they may happen to fall; but, if it be necessary that anything should be taken from them for the use of such belligerent, the same shall be paid for at a reasonable price.
It is a general rule, rigorously enforced, that trading between enemies is prohibited during the war. The principle enunciated by Bynkershoek: "Ex natura belli commercia inter hostes cessare non est dubitandum,” has become firmly imbedded in the practice of nations, although a state may, for reasons of expediency, permit an exception by granting individuals a license to trade with the enemy. Property found violating the rule is liable to confiscation. The subject is extremely complicated and its difficulty is increased by the various criteria of enemy character applied to the ownership of the property engaged in the forbidden trade. This is equally true of most private property of enemies at sea, which is still, notwithstanding the vigorous objection of many nations, subject to capture by belligerents. The British and American rule of testing enemy character, for purposes of trading and maritime capture, by the trade domicil of the owner, differs fundamentally from the continental practice of determining
1 Art. 21, treaty of Feb. 26, 1871, between the U. S. and Italy, Malloy, Treaties, etc., 1910, I, 975.
2 Halleck, International law, London, 1908, II, ch. 23, p. 143 et seq.; Bentwich, N., Law of private property in war, London, 1907, p. 47. This rule applies in AngloAmerican law only to persons resident in the respective belligerent states. See the Mashona, 2 n. s. Journ. of the Soc. of Comp. Leg. (1900) 326–341. See British Trading with the Enemy Act, 1914, 4 and 5 Geo. 5, ch. 87 and Proclamation No. 2, Sept. 9, 1914 and amendment Oct. 8, 1914. See also Schuster, E. J., The effect of war and moratorium on commercial transactions, 2nd ed., London, 1914, pp. 7-12 and appendix; Trotter, William F., The law of contract during war, London, 1914, Part I, § 9; Page, Arthur, War and alien enemies, London, 1914, 34 et seq., and Scott, Leslie, Trading with the enemy, 2nd ed., London, 1914.
• Halleck, ibid. II, 96 et seq.; Schuster, op. cit., 7; Trotter, op. cit., part I, § 10.