§6. "Temporary Allegiance" of Aliens.

Foreigners within the state owe it a considerable measure of obedience in return for the local protection they receive while residents. This obedience has often been termed temporary and qualified allegiance in contradistinction to the permanent and absolute allegiance owed by the citizen.1 In truth, it is a misnomer to speak of "temporary allegiance" due by a foreigner. The nature of the foreigner's subjection to the state of his residence was described by Secretary of State Webster in 1851 in his report on Thrasher's case as follows: 2

Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native born subject might be, unless his case is varied by some treaty stipulation.

The migration of the citizen of one state to another and his residence in the latter brings about in constitutional theory a double citizenship, of primary and organic nature with respect to his home state and of a temporary and qualified nature with respect to the state of residence. It subjects the individual for different purposes and in different degrees to the sovereignty of two states. The conflicting claims of two or more states to the citizenship and obedience of the same individual have been to a great extent settled by mutual forbearances, although differences in municipal legislation in some instances still give rise to cases of double nationality and even of no nationality (Heimatlosen).3

§7. Source of Rights of Individual.

Nationality (a less ambiguous term than its synonym, citizenship) is the most important of the three relations in which a person may

Mr Justice Field in Carlisle v. United States, 16 Wallace, 147, at 154; adopted by Willoughby in 1 A. J. I. L., 924.

The works of Daniel Webster, Boston, 1851, VI, 518, at 526, cited also in Carlisle v. United States, 16 Wall. 155; see also Mr. Justice Gray in United States v. Wong Kim Ark, 169 U. S. 649.

'Cogordan, op. cit., 11-14.

be subject to the control of a particular state. These three, in the order of the closeness of the bond, are actual residence, domicil, and nationality or citizenship (Staatsangehörigkeit, nationalité).1 Used in the ethnographic sense, a nation is a collection of human beings held together by certain common physical or racial characteristics; used in the legal sense, it denotes a politically united people, and its derivative "nationality" is used to represent the bond which attaches the citizen by certain qualities to the state. It has already been noted that by virtue of the bond the citizen is provided with certain rights, in particular, political rights, and is charged with the performance of certain duties to his state in return for the benefits of citizenship.3 Stoerk and Oppenheim believe that nationality is a condition precedent to the enjoyment of international rights, a statement which von Bar refutes by showing that heimatlosen or those without nationality are entitled to these rights. International rights are commonly considered to be those which are universally accorded by the national law of all civilized states to individuals within its jurisdiction.

Confusion arises because in the present state of our civilization, the individual, as a human being, is accorded certain fundamental rights by all states professing membership in the international community. In constitutional governments, they have often received the name "rights of man." These rights, uncertain as they are in content, were denominated by Blackstone as the absolute rights of all mankind, the right to personal security, to personal liberty and to private property." At one period in the history of law they were known as "natural

1 Cogordan, op. cit., § 1.

2 Bar, op. cit., 111; Stoerk in Holtzendorff's Handbuch des Völkerrechts, Berlin, 1885, II, 589–591.

3 Stoerk in Holtzendorff's Handbuch, II, 630-636; Heilborn, op. cit., 75 et seq.; Oppenheim, International law, London, 1912, § 291; Gareis, K. Institutionen des Völkerrechts, Giessen, 1901, § 53; Cockburn, Alexander, Nationality, London, 1869, p. 186; Nys, E., op. cit., II, 257.

4 Stoerk in Holtzendorff's Handbuch, II, § 114, p. 589; Oppenheim, op. cit., I, § 291; Bar, op. cit., 111.

5 What is regarded as private property may differ from state to state, e. g., slaves were, until recently, property in some states. See The Amistad, 15 Pet. 518; The Creole, 30 St. Pap. 181-193. These rights may, of course, be forfeited to society by due process of law. See Kepner v. U. S., 195 U. S. 100.

rights," and this conception played a prominent part in justifying the eighteenth century political philosophy which culminated in the French Revolution. These rights, as incidental to natural law, the adherents of which school of legal philosophy were the founders of international law, were logically denominated international rights and sometimes human rights. Whether the recognition of these rights is the result of history and the unconscious growth of law or whether it is the result of conscious legislation, it is certain that by legislative and judicial declaration certain fundamental rights of the individual in a civilized state have been positivized in the same way that the Roman jurisconsults by their jus respondendi positivized the principles of the jus naturale.3 These rights, like all rights, are really creations. of public sentiment, legally protected interests, which may be expressed either by custom or legislation.

2

If these rights of a resident alien are violated without proper redress in the state of residence, his home state is warranted by international law in coming to his assistance and interposing diplomatically in his behalf. Reasoning from this fact, many publicists assert that whatever rights the individual has in a state not his own are derived from international law, and are due him by virtue of his nationality. Ast a matter of fact, the alien derives most of his rights-fundamental or human rights and others-by grant from the territorial legislature, international law fixing a minimum which cannot be overstepped and authorizing certain agencies, usually the national state, to remedy and punish a breach. Whether these "rights of humanity" have their origin in international law, or are merely concomitants of existence in a civilized state, the recognition of which rights a state must show as

For the history of natural rights and the modern theories see Ritchie, D. G., Natural rights, London, 1895, chs. 1 and 2. An analysis of the so-called rights is undertaken by Ritchie, ch. 6 et seq.

For a summary account of the history of legal theory and the various schools of legal thought see Borchard, E. M., Guide to the law and legal literature of Germany, Washington, 1912, 25 et seq.

See Muirhead, James, Historical introduction to the private law of Rome, London, 1899, 2nd ed., 283. See also 1 Annuaire of the Institute of Int. Law, 124. The Supreme Court has recognized the existence of these "fundamental rights" in Hawaii v. Mankichi, 190 U. S. 197, 217; Kepner v. U. S., 195 U. S. 100, 123; Dorr v. U.S., 195 U. S. 138, 144.

a condition of membership in the international community, international law, nevertheless, provides them with a definite sanction.1 This view, it would seem, is confirmed by the fact that where a state under exceptional circumstances disregards certain rights of its own citizens, over whom presumably it has absolute sovereignty, the other states of the family of nations are authorized by international law to intervene on grounds of humanity. When these "human" rights are habitually violated, one or more states may intervene in the name of the society of nations and may take such measures as to substitute at least temporarily, if not permanently, its own sovereignty for that of the state thus controlled.2 Whatever the origin, therefore, of the rights of the individual, it seems assured that these essential rights rest upon the ultimate sanction of international law, and will be protected, in last resort, by the most appropriate organ of the international community-the national state of the individual or those states whose interests are most directly affected.

The rights of man as proclaimed by the political philosophers of the American and the French revolution were given positive constitutional expression in France and the United States in 1789,3 and since then have in some form been incorporated in most modern constitu

1 See Opinion of Central-American Court of Justice in Diaz v. Guatemala, 3 A. J. I. L. (1909) 743.

2 Rougier, La théorie de l'intervention d'humanité in 17 R. G. D. I. P. (1910), 472. Thus intervention on behalf of co-religionists in the Orient and elsewhere has on numerous occasions been undertaken. Pillet, A., Principes de droit international privé, Paris, 1903, p. 171. See the interesting discussion on the abolition of torture in Morocco and European intervention in 17 R. G. D. I. P. (1910) 98. Lawrence (4th ed.) 129, considers interventions on the ground of humanity as outside the ordinary rules of international law.

There had been a definite declaration of rights in Virginia in 1776, and the preamble and first paragraph of the Declaration of Independence of July 4, 1776 was in the nature of a declaration of rights. These documents with the French Déclaration des droits de l'homme et du citoyen of 1789, as prefixed, with amendments, to several French constitutions, are to be found in the appendix to Ritchie, op. cit. See also the first ten amendments to the United States Constitution.

These rights of man had been the subject of discussion by political philosophers of France and England for many years before 1789. They received most forceful expression in the American colonies in numerous pamphlets and tracts, notably those of James Otis and Samuel Adams. See Jellinek, G., The declaration of the rights of man and of citizens (translated by M. Farrand), New York, 1901, pp. 80–84.

tions. The municipal law of each state prescribes the manner in which these rights shall be exercised.

Among the rights which have been considered as the rights of man are those to which international lawyers have applied the term "international rights," those general rights which the individual enjoys in every civilized country and which are normally protected by every state of the international family. Fiore enumerates these rights as (1) the right of personal liberty; (2) the right of property; (3) the right to exercise civil rights in conformity with the public law of the state; (4) the right of religious worship. Martens 2 includes among the imprescriptible rights of man the right to live and procure the means to live; the right to develop intellectual faculties; the freedom of emigration and intercourse; and the right to be respected in person, life, honor, health and property. With this universality of rights of the individual in view, Stoerk and others have coined the term "Völkerrechtsindigenat, or, as Bentham has expressed it, "citizen of the world." 4

13

§ 8. Nationality as Title to International Redress for Violation of Rights.

The alien, it has been observed, possesses other than human rights. These other rights, e. g. copyright, trade-mark rights and commercial rights generally, are derived either from the municipal law of the state of residence or from treaties and conventions concluded for his benefit by his home government. It is only the latter class of rights, which are not enjoyed by aliens generally under the municipal law of the Fiore, P., Nouveau dr. int. pub. (Antoine's trans.) § 697.

1

2

Martens, F. de, Traité de droit international, Paris, 1883, I, 440. See also Gareis, op. cit. 150. Esmein divides the individual rights recognized by public law into two categories: (1) civil equality, or equal rights and duties, and (2) individual liberty, or the material and moral interests of the individual. See Esmein, Eléments de dr. const., p. 369, cited by Nys, II, 257. See also A. H. Snow in 8 A. J. I. L. (1914) 196. 'Stoerk in Holtzendorff's Handbuch, II, §§ 113-114; Gareis, op. cit., § 53. See Rivier, Principes, I, 12, Oppenheim, I, § 291, and Bluntschli, § 23, citing Kant. Triepel and Jellinek consider the concept of Völkerrechtsindigenat as worthless. Triepel, H. Völkerrecht und Landesrecht, Leipzig, 1899, p. 14; Jellinek, G., System der subjektiven öffentlichen Rechte, 2nd ed., 1905, p. 324.

'Extracts printed in Wheaton's History of the law of nations, New York, 1845, pp. 329-331.