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$ 37. Types of Legislative Systems.
Legislation concerning aliens and the enjoyment of rights by them may be divided into three categories: first, that which is characterized by no definite principle and retains certain grave incapacities, e. g., the denial of the right to own real estate, which still exists in the legislation of some nineteen states of the United States and in various European countries, and other arbitrary disabilities. In this class belongs the legislation of Great Britain and the United States generally, and of Denmark, Sweden, Roumania and Russia.
The second type of legislation is that based on the principle of reciprocity. This is divided into two classes-diplomatic reciprocity which is the dominating principle of the French law and has been followed by Belgium, Luxemburg (arts. 11 and 13 of these cudes) and Greece (arts. 13 and 16), and legislative reciprocity, which is the principle adopted by Germany, Austria and Servia.
Article 11 of the French Civil Code provides that "aliens shall enjoy in France the same civil rights which are or shall be accorded to Frenchmen by the treaties of the nation to which that alien belongs.” Hence the name diplomatic reciprocity.
The countries adopting this principle expressly recognize two classes of aliens, the ordinary alien, to whom the provisions of the above article apply, and privileged aliens, or those admitted to domicil, who enjoy the same civil rights as nationals. This admission to domicil is a preliminary step to naturalization comparable with our declaration of intention. It is merely a provisional grant of rights which would be subsequently enjoyed by the individual as a citizen, and is valid only so long as actual domicil in the country continues. The question has been raised whether the alien in France can enjoy rights which his national law denies him. Pillet 1 concludes that he cannot, unless (1) the act is completed in and has its effects solely in France; or (2) the act is based on public policy.
The principle of legislative reciprocity accords aliens those rights which their country by legislation grants to foreigners generally or to the subjects of the country in question. Austria formerly adopted two categories of legislative reciprocity, called material or
1 Pillet, op. cit., 223.
relative if granted by the other country to Austrians, and formal or absolute, if granted to foreigners and nationals alike. Countries adopting the principle of legislative reciprocity usually grant foreigners the same private rights as their subjects, reserving however the power to apply retorsion to the nationals of countries where aliens generally or their subjects alone are handicapped by the particular disability in question. The burden of proof is on the person alleging the disability, and not on the alien, in the first instance, to prove its absence in his national municipal legislation. The United States in the grant of various rights to aliens adopts the test of reciprocity. This test is contained in its copyright laws, in the right of aliens to sue the United States in the Court of Claims, and in other matters.
In modern legislation the principle of reciprocity was first applied by France as a restriction upon the liberal rights which had been granted to foreigners by the legislation of the revolutionary period. Other countries having failed to grant Frenchmen such liberal rights, the civil code conditioned its grant of civil rights to aliens upon the reciprocal concession of such rights to Frenchmen, guaranteed by treaty, in other states. The principle has had a profound influence upon the development of the law of aliens. It is condemned severely by numerous publicists as a survival of the system of reprisals.2
The third system of legislation governing aliens, and the one which has received most modern support, is that of assimilation to nationals, or a grant of equal rights in private law to nationals and aliens. This system was first adopted by the Italian civil code of 1865 (art. 3) and has been followed by Spain, Netherlands, Switzerland, Portugal, Norway, Japan and practically all the countries of Latin America. It has received the approval of the Institute of International Law. It provides that the alien shall enjoy the same civil rights as the national, but it does not exclude the possibility of exceptions, e. g., in the ownership of real property, or of national vessels. So the Institute of International Law added a proviso, “subject to the exceptions formally established by actual legislation." 3
Vesque von Püttlingen, Die gesetzliche Behandlung der Ausländer in Oesterreich, Vienna, 1842, § 42. Norsa in 6 R. D. I. (1874), 260.
2 Bar, op. cit., 214-216 and authorities there cited. 3 Annuaire, V, 56.
It will be seen, therefore, that classes one and three tend to approach each other. This may also be said of classes two and three, inasmuch as the extension of rights to aliens by treaty, legislation and judicial construction has greatly restricted the number and extent of the disabilities which the principle of reciprocity imposed upon the alien. As a general rule it may be said that aliens now enjoy all civil rights (rights other than political) which are not expressly denied to them. 1
§ 38. Public Rights.
It would be difficult to draw up a list of the civil rights which the alien enjoys. Indeed, no complete enumeration of legal rights has been attempted and only those have been defined which have been at times violated. Nevertheless, it is true that both by customary and statutory law numerous rights have been recognized as belonging to the alien, although their remedial enforcement is unnecessary until a threatened or actual invasion occurs. The attempt may therefore be made to review briefly the more general of the civil rights usually granted to the alien, and for the purpose of discussion we may begin with those rights called on the continent of Europe “public rights.”
Vague as is the definition of public rights and many as are the characteristics which it has in common with private rights, the term has in general been applied to those rights or faculties which are enjoyed by the individual in relation to society as a whole, and which are under the direct protection of public law. They embrace all the rights and liberties incidental to the rights of life, liberty and property and are discussed by continental writers under such heads as individual liberty, security of person and property, the liberty of circulation and emigration, liberty of conscience and worship, freedom of the press, freedom of association and assembly, the right of petition, liberty to carry on commerce and trade, the procreation of the race, etc. Some writers, like Weiss, consider these “public rights" as the rights of man. This has an unwelcome natural law flavor, and may be disregarded. Inasmuch as their enjoyment by nationals may be restricted and
1 Laurent, op. cit., III, § 321. 2 Robinson, W.C., Elements of American jurisprudence, Boston, 1900, 88 429, 430.
regulated, there is every reason to acknowledge that the public security and interests of the state may dictate, in the case of aliens, still greater restrictions and regulation.
The right of individual liberty was not always recognized in the alien, as has been noted. At the present day, of course, he is as free as the national. In the exercise of this liberty, the alien nevertheless remains subject to expulsion and extradition within the limitations already discussed, and to the local penal and police laws.
The liberty of circulation and emigration is intended to give the alien freedom to migrate where he will. The right of admission is subject to the application of the exclusion laws, or the payment of a head tax. The right of sojourn may be subjected to a tax or to such requirements as matriculation in a consulate ? or local bureau, the possession of a passport or certificate of citizenship, or, as in France by the decree of October 2, 1888, and the law of August 8, 1893, a declaration establishing the alien's identity, nationality and means of existence. This liberty is generally called in the continental treaties the right of establishment, and in treaties of the United States and Great Britain, the right of residence and travel. The right is usually confirmed by treaties reading in effect as follows:
"The citizens and subjects of the two High Contracting Parties .. shall have reciprocally the right, on conforming to the laws of the country, to enter, travel and reside in all parts of their respective territories . . . and they shall enjoy in this respect, for the protection of their persons and their property, the same treatment and the same rights as the citizens or subjects of the country or the citizens or subjects of the most favored Nation." 4
1 Rolin, op. cit., 140, 146. An extensive bibliography of the rights of aliens in practically every civilized country, gathered in the course of several years' research, is printed in the Appendix, infra.
See, however, as to a Peruvian law requiring the registration of U. S. citizens, Mr. Bayard, Sec'y of State, to Mr. Buck, min. to Peru, April 19, 1887, For. Rel., 1887, p. 932.
3 French law relating to sojourn of foreigners, Aug. 8, 1893, translated in For. Rel., 1893, p. 302. See restrictions on the right of sojourn discussed in Tchernoff, Protection des nationaux, 428, 432.
• Treaty between the U.S. and Spain of July 3, 1902, art. 1, par. 1, Malloy, Treaties, etc., 1910, II, 1702. On the effect of the "most-favored-nation" clause, especially its employment in treaties of commerce and navigation, see Stanley K. Hornbeck in This guarantee of protection is rendered effective by the customary consular conventions, which generally contain a provision that the consular officers of the respective parties may have recourse to the authorities of the respective countries within their district, whether federal or local, judicial or executive, in order to defend the rights and interests of their countrymen. They have the ultimate sanction of resort to diplomatic protection.
The liberty of conscience and freedom of worship have obtained more or less general recognition since the peace of Westphalia. These privileges are nevertheless confirmed by treaties reading in effect as follows:
The respective citizens of the High Contracting Parties "shall not be disturbed, molested nor annoyed in any manner, on account of their religious belief, nor in the proper exercise of their peculiar worship, either within their own houses or in their own churches or chapels, which they shall be at liberty to build and maintain, in convenient situations, to be approved of by the local Government, interfering in no way with, but respecting the religion and customs of the country in which they reside. Liberty shall also be granted to the citizens of either of the Contracting Parties to bury those who may die in the territory of the other, in burial places of their own, which, in the same manner, may be freely established and maintained.” 1
In the absence of treaty, there is no obligation, other than comity, to permit freedom of worship, and the vigorous attempts of countries having a state religion to prevent worship according to other doctrines and religions can be protested on the ground of comity alone. Violations of local law in this regard by individuals could not be met by diplomatic interposition; so where American bibles were introduced into certain Eastern and Catholic countries contrary to local prohibitions, good offices only were authorized to secure an amelioration in the harsh application of the law. Active propaganda of a foreign religion obnoxious to the country as a disturbance of its established religion has not been supported by the United States. But very few countries at the present day restrict peaceful worship by aliens.? 3 A. J. I. L. 395, 619 and 797 and bibliography, p. 396. See also Moore's Dig. V,
257 et seq.
1 Treaty between the U. S. and Argentine, July 27, 1853, art. 13, Malloy, Treaties, etc., 1910, I, 24.
: Notes quoted in Moore's Dig. II, $ 194, pp. 171-181.