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local protection, especially in times of sudden emergency. Secretary of State Bayard expressed a reasonable view when he declared:
“It is well settled by international law that foreigners temporarily resident in a country cannot be compelled to enter into its permanent military service. It is true that in times of social disturbance or of invasion their services in police or home guards may be exacted, and that they may be required to take up arms to help in the defense of their place of residence against the invasion of savages, pirates, etc., as a means of warding off some great public calamity by which all would suffer indiscriminately. The test in each case, as to whether a foreigner can properly be enrolled against his will, is that of necessity. Unless social order and immunity from attack by uncivilized tribes cannot be secured except through the enrollment of such a force, a nation has no right to call upon foreigners for assistance against their will.” 1
So Lord Lyons during the Civil War was instructed by the British government that "there is no rule or principle of international law which prohibits the government of any country from requiring aliens resident within its territories, to serve in the militia or police of the country, or to contribute to the support of such establishment." 2
As a general rule, nevertheless, except in cases of dual nationality or similar possibility of claim, a demand by the home government of an alien compelled to do military service results in his release from service, on grounds of comity, if not of law. In one case at least, the United States was unwilling to submit the question of such compulsory service of an American citizen in Mexico, to the Mexican courts, but demanded an immediate release. The French interventions in the Argentine, above mentioned, whether just or unjust, have often been cited as international precedents on the subject. On a
1 Mr. Bayard, Sec'y of State, to Mr. Bell, min. to the Netherlands, Feb. 3, 1888, For. Rel., 1888, II, 1325, quoted also in Moore's Dig. IV, 62; Mr. Fish, Sec'y of State, to Mr. Williamson, June 13, 1876, Moore's Dig. IV, 59. Mr. Fish sanctioned the compulsory service of a resident alien to defend a town during a siege. Mr. Fish to Mr. Williamson, July 24, 1874, Moore's Dig. IV, 58. Mr. Wilson, Act'g Sec'y of State, to Chargé Hibben, May 19, 1909, For. Rel., 1909, p. 222.
2 Quoted in instruction of Mr. Davis, Ass't. Sec'y of State, to Mr. Faxon, Feb. 17, 1870, Moore's Dig. IV, 57. See also Hall, op. cit., 206; Fiore, op. cit., $ 649; Bluntschli, Droit int. codifié, $ 391.
3 Mr. Evarts, Sec'y of State, to Mr. Morgan, Dec. 8, 1880, For. Rel., 1881, p. 751, quoted also in Moore's Dig. IV, 60.
later occasion, Belgium, heeding the protests of certain Powers, relinquished the enforcement of its act of 1907 which imposed service in the civic guard upon aliens.
At the second Hague peace conference animated discussions took place as to the right of a belligerent to require military service of neutral residents. While some favored an absolute prohibition, the validity of the municipal legislation of some states, which on occasion requires such service, was recognized. No resolutions on the subject were adopted, but the Conference expressed the “voeu” or solemn wish “that the High Contracting Powers shall seek to establish, by agreements between them, uniform contractual provisions determining the relations, in respect of military obligations, of each state with the foreigners established in its territory." 2
While many states by municipal law permit the voluntary service of aliens, which in itself raises no international question, some states, for example, France and Germany, expressly exempt foreigners from military service. An exceptional and unusual arrangement is the stipulation of the treaty of January 17, 1862 between Spain and France (art. 5) by which each country agrees to incorporate into its army the nationals of the other, resident in its territory, who have not completed their military obligations in their own country.
In the absence of treaty, there appears to be no legal reason why the exemption from military service cannot be commutated or compensated by a tax. Switzerland, by its law of June 28, 1878, imposed such a tax on foreigners established in Switzerland, unless they are exempted by treaties or belong to a state in which Swiss citizens are liable neither to military service nor to a commutation in money. The treaty of November 25, 1850, did not exempt United States citi
2 25 Clunet (1898), 204 and 814; Bonfils, op. cit., § 445, footnote. Numerous treaties confirm this exemption and Despagnet even believes that it exists apart from treaty (op. cit., 8 343).
: For a brief account of the discussions see Scott's Hague peace conferences of 1899 and 1907, Baltimore, 1909, pp. 550-555, and v. III of the official report “La deuxième conférence internationale de la paix,” 179 et seq., and v. I, 125 et seq. See also Westlake, op. cit. II, 285.
Citations in 8 R. D. I. privé (1912), 841.
zens from this tax, although almost all the countries of Europe have by treaty secured exemption from it for their subjects. After some diplomatic negotiation, the Swiss Federal Council adopted a resolution that the tax was only to be levied upon Swiss citizens who were residing in or had returned from the United States (Switzerland does not recognize the unpermitted foreign naturalization of her citizens) and not upon citizens of the United States.
The treaty with Switzerland, by which citizens of the United States are exempted from personal service only, brings up the distinctions between personal military service and the use of the alien's property for military purposes. Unless treaty provisions expressly exempt the property of the alien from all use for military purposes, there is no valid reason why his property should not furnish the same requisitions and be subject to the same servitudes as that of the native inhabitant. In the countries of Europe, it is usual to require food and fodder from inhabitants under payment of compensation, and to demand from all landowners shelter and quarter for troops and horses during manæuvers, without compensation, as a public servitude. In the absence of a treaty or unjust discrimination against a domiciled alien as such, it does not seem that foreign governments in such cases have on principle any cause for complaint.2
However willing Great Britain and the United States have been, at times, to concede the justice of the claim of foreign countries to require a limited military service of domiciled aliens, they have vigorously insisted on the right of their subjects and citizens to leave the country freely as an alternative to such service. Thus, Secretary of State Madison in 1803, declared:
“The most inviolable and most obvious right of an alien resident is that of withdrawing himself from a limited and transitory allegiance having no other foundation than his voluntary residence itself." ;
The claim of the United States during the Civil War to require mili
1 For. Rel., 1894, pp. 678-682. See paraphrase in Moore's Dig. IV, 65-66.
2 Les étrangers en France et les requisitions militaires, 8 R. D. I. privé (1912), 840-845.
3 Mr. Madison, Sec'y of State, to Mr. Pichon, French chargé, May 20, 1803, Moore's Dig. IV, 52.
tary service of resident aliens who had declared their intention of becoming citizens and had exercised the voting privilege was not contested after the option was extended of leaving the country within sixty-five days.
Many states by statute prohibit their subjects from taking military service abroad, under pain of loss of their nationality or other penalties. In other states, such service is prohibited only under the neutrality acts, according to which subjects are prohibited to take service in any foreign state against a state with which their own is at peace.?
An important chapter in the diplomatic correspondence of the United States is concerned with the attempts to secure release from the performance of military duty on the part of naturalized American citizens returning to the country of their original allegiance which either still claims the emigrant as its subject or else holds him for evasion of military duty by emigration and naturalization abroad. This matter will receive full consideration hereafter.3
It has already been observed that aliens are deprived of practically all other rights and relieved of duties having a political or public character and involving an oath of allegiance to the state, such as the competency to act as judges, advocates, jurymen, and in similar functions, although Secretary of State Fish once stated that he saw no reason why domiciled foreigners should not be required to discharge such civic duties as service upon juries, or in a municipal fire department, and other duties of like character. 4
§ 36. Meaning of the Term.
The term “civil rights" is one of most uncertain definition. A
1 Act of Congress, March 3, 1863. See Halleck, International law, 1908 ed., I, 613, footnote.
? See, for example, British Foreign Enlistment Act, 33 & 34 Vict. c. 90; U. S. Rev. Stat., $ 5281 et seq. See also Halleck, op. cit., 612.
3 Infra, $ 235 et seq.
* Mr. Fish, Sec'y of State, to Mr. Wing, April 6, 1871, Moore's Dig. IV, 58. See also Rolin, Droit int. privé, 142. In a recent treaty between Great Britain and Bolivia it is expressly provided that municipal functions may be discharged by the alien without loss of his nationality. Art. 8 of treaty of August 1, 1911, Treaty series 1912, No. 223.
number of continental publicists distinguish between those civil rights which belong to all men regardless of nationality (derived from natural law) or universally acknowledged as the common law of civilized peoples (the jus gentium of the Romans), and those which exist only by express provision of the legislature. This distinction is now admitted to be not only theoretical and difficult of application, but fallacious, 2 and to the Anglo-American mind appears useless. Other writers consider as civil rights those only which have been granted by the legislature, such other rights as are enjoyed by aliens being regarded as natural and not civil rights. Again, the term has been interpreted as meaning private rights or those sanctioned by private law, regulating the legal relations between individual and individual, as distinguished from public rights or those governed by public law, regulating the reciprocal relations between individuals and the state or of states among themselves. In its broadest sense the term includes all rights not political.3 The distinction between civil and political rights being unclear, many authors have adopted a classification of civil rights into public and private, meaning by the former term those non-political rights and liberties which involve a more direct relation between the individual and the state and are protected by public law (such as the right of individual liberty and security, liberty of conscience and of worship, etc.), and by the latter term the rights of individuals among themselves, which are protected by the private law of the state. For purposes of discussion, this is not an inconvenient arrangement.
1 This distinction is made mainly by the French publicists who rely on the authority of Pothier and Domat. See Pradier-Fodéré, op. cit., § 1636. On the confusion in meaning of the term "civil rights," see Asser-Rivier, Eléments de dr. int. privé, 38 and Rolin, op. cit., 139–140. See also Bar, op. cit., 212. We have emphasized the continental position of aliens rather than the Anglo-American, because our interest is principally in the position of Americans abroad, a question of more frequent practical importance in countries of the civil law than in those of the common law. An extended discussion of the principles governing alien legislation in continental countries, with some account of the legislation in each country, will be found in Weiss, Droit international privé (2nd ed.), II, 574 et seq.
2 Laurent, Droit civil international, Bruxelles, 1880, II, 17, 21. See also PradierFodéré, op. cit., § 1637.
3 Annuaire of the Institute of Int. Law, V, 41-43; 56-57.