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quired. In this class are Austria-Hungary, Germany, Egypt, Spain, Brazil, Mexico and Roumania.
4. In the last system, the judgment is reëxamined before the exequatur issues. This is the practice of France, Chile, Denmark, Haiti, Luxemburg, Netherlands, Norway and Sweden.
Numerous treaties, which the civil law countries frequently conclude, regulate the effect and the execution of foreign judgments as between the contracting parties.”
$ 39. Private Rights.
In taking up the rights of the alien in private law, the ownership of real property may first be considered. The right to acquire immovables, by purchase or descent, and to own and dispose of them may be forbidden to aliens. While no longer the general rule, a few states, for economic or political reasons, still restrict the ownership of real property within their territory to nationals. This is still the case in some fifteen states of the United States, in Russia within certain districts, and in Roumania, and was the case in Turkey until 1867 and in England until 1870. Mexico forbids aliens to acquire real property within sixty miles of the frontier or thirty miles of the sea. In a few other countries, like Japan and Haiti, the right to own realty is limited.* Fiore traces these restrictive provisions to the feudal system. The practice had its origin perhaps in a fear that control of national territory by foreigners opened too great a danger of foreign influence, domination or conflict. Some writers consider it curious that in countries in which the requirement of citizenship for the enjoyment of civil rights is of least force, as in the United States and Great Britain, where rights are based on domicil, the national territory should be regarded as so peculiarly sacred. The disability of an alien
1 It seems, however, that the German courts refused to enforce against German insurance companies certain judgments obtained in California by American policyholders sustaining losses in the San Francisco earthquake and fire, notwithstanding that a reciprocal right would be granted in California. For. Rel. 1910, 522.
2 Despagnet, Dr. int. privé, § 201 et seq. On the whole subject see Despagnet, op. cit., 88 190-209; Weiss, op. cit. V, 543–734; Piggott, F. T., Foreign judgments and jurisdiction, Hong Kong and London, 1908, 3 v.
3 Moore's Dig. IV, 43 et seq.; for law in the United States, see ibid. 32 et seq.
to hold real property in the United States may be removed by treaty, and the treaty of 1778 between the United States and France allowed citizens of either country to hold lands in the other. By reason of the existing restrictive legislation of many of the states, the federal government, as a matter of policy, would hardly now conclude treaties granting aliens the right to hold real property in the United States, though there appears little doubt of its power so to do. At common law aliens could take by act of a party but not by operation of law; and they may convey or devise to another, but such title is always liable to be divested at the pleasure of the state by office found. It has even been held that an alien enemy might take lands by devise until office found.5
A legal prohibition to own real estate, as was the case in Haiti in 1885, did not prevent the United States from making a claim on account of an injury to real property owned there by an American citizen, notwithstanding Haiti's defense of his legal inability to own such property. The United States contended that his title was merely defeasible and that he owned something, for the arbitrary spoliation of which by the government he had a claim for redress. Until legal proceedings are instituted to oust the alien, his inchoate interests should be protected, and even if his title was one of possession only, this must be protected until by due process of law he is dispossessed.
The evolution of the right of succession to real property is characteristic of the history of the rights of aliens. The absolute prohibition to succeed which existed up to the eighteenth century was replaced by the imposition of severe taxes under the system of the droit d'aubaine. After the gradual abolition of the droit d'aubaine
Orr v. Hodgson, 4 Wheat. 453.
: Butler, C. H., Treaty-making power of the U. S., New York, 1902, II, 8 330 et seq.; Burr, C. H., Treaty-making power of the U. S., Philadelphia, 1912, p. 339 et seq. and Ware v. Hylton, 3 Dallas, 199; Chirac v. Chirac, 2 Wheat. 259; Fairfax v. Hunter, 7 Cranch, 603; Hauenstein v. Lynham, 100 U. S. 483; and Geoffroy v. Riggs, 133 U. S. 258.
* Hauenstein v. Lynham, 100 U. S. 483; Martin v. Hunter, 1 Wheat. 304; Governeur . Robertson, 11 Wheat. 332.
Fairfax v. Hunter, 7 Cranch, 603. • For. Rel., 1885, pp. 525–526.
by statute and treaty, the right to succeed has been freely granted, though in some states it is still conditioned upon reciprocity.
As it is against the policy of the United States to decree forfeitures, treaties have usually provided that aliens who cannot take property by descent shall have the right to dispose of their property and remove the proceeds within a reasonable time. So, for example, article 2 of the treaty of May 8, 1848, between the United States and Austria-Hungary, provides:
"Where, on the death of any person holding real property, or property not personal, within the territories of one party, such real property would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of two years to sell the same, which term may be reasonably prolonged, according to circumstances, and to withdraw the proceeds thereof, without molestation, and exempt from any other charges than those which may be imposed in like cases upon the inhabitants of the country from which such proceeds may be withdrawn." ; The payment of a droit de détraction, or tax on the removal of alien property from the state, has since the beginning of the nineteenth century been practically abolished by statute and treaty.
The power to acquire, own and dispose of personal property is a universally recognized right of aliens. It is often guaranteed by treaty, subject merely to the payment of the same taxes as are paid by citizens. The following clause is typical of the treaties concluded by the United States:
"The citizens or subjects of each of the contracting parties shall have power to dispose of their personal property within the States of the other, by testament, donation or otherwise; and their heirs, legatees and
1 E.g., in Austria, Sweden and the United States. Art. 726 of the French civil code amended the liberal principles of the French revolutionary period which had completely abolished the droit d'aubaine. By the French law of July 14, 1819, art. 726 of the Civil Code, which conditioned the right to succeed upon diplomatic reciprocity, was repealed. This liberal principle was followed in the Belgian law of April 27, 1865 and has been adopted by Spain, Italy, Denmark, the Netherlands and Great Britain. Succession taxes are due from non-resident aliens on estates in the territory as from nationals.
? Malloy, Treaties, etc., 1910, I, 34. See as to the construction of a similar treaty with Switzerland, Hauenstein v. Lynham, 100 U. S. 483.
donees, being citizens or subjects of the other contracting party, shall succeed to their said personal property, and may take possession thereof, either by themselves or by others acting for them, and dispose of the same at their pleasure, paying such duties only as the inhabitants of the country, where the said property lies, shall be liable to pay in like
Consular conventions usually provide for the intervention of their national consul in the administration of the estates of deceased aliens, dying without local representatives.?
Rights in industrial and literary property are protected by treaties of reciprocity, or by collective conventions such as the Paris convention on industrial property of March 20, 1883 and the Berne convention on literary property of September 9, 1886. Compliance with the formalities of the local law is always required. The patent and trademark treaties concluded by the United States reciprocally assure domestic treatment to the respective citizens of the contracting parties. Legislation differs slightly from country to country. In the absence of treaty aliens are dependent upon the provisions of local law relating to the protection of aliens. In a case arising before the conclusion of the treaty between the United States and Germany an American inventor sought the assistance of the Department of State because of the use by the government of Germany of his invention, for which as an alien he could secure no patent. The Department of State answered:
"If the laws of the country afford no protection in such cases, it is not competent for this Government, by a diplomatic channel, to supply the
1 Treaty of May 8, 1848 with Austria-Hungary, art. I, Malloy, Treaties, etc., I, 34.
2 R. S. 1709 seq., U.S. Cons. Regulations, § 389 et seq. But see Rocca v. Thompson, 223 U. S. 317; In re Lis' estate, 139 N. W. 300 and article by F. R. Coudert in 13 Columbia Law Rev. 181-201. See also infra, $ 166.
: Despagnet, Dr. int. privé, $ 85 et seq., 62 (France); Pradier-Fodéré, op. cit. IV, $8 2219–2253; Darras, A., Du droit des auteurs et des artistes dans les rapports internationaux, Paris, 1887; Silvy, E., Des droits des auteurs et des artistes sur leurs oeuvres au point de vue international, Grenoble, 1894; Unions et accords en matière de protection de la propriété littéraire et artistique by Röthlisberger, 1 R. D. I. privé (1905), 300-307; 1908, 88–110; De la révision en 1908 de la convention de Berne by J. Dubois, 36 Clunet (1909), 954–982; Brun, J. L., Les marques de fabrique et de commerce en droit français, droit comparé et droit international, Paris, 1895. omission, or to procure either protection for an American inventor or compensation for his invention.". Nor, in general, will a country grant greater rights to the owner of a patent or trade-mark than he has in his own country. Thus, the German Supreme Court in a decision of May 8, 1907 held that an alien invoking for his goods the protection of the German law must show that his merchandise is equally protected in his own country, i. e., that the remedy which he seeks under the German law is one that is secured to him by the law of his own country.”
The United States copyright law of March 4, 1909 provides, section 8:
"That the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this Act: Provided, however, That the copyright secured by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only:
“(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or
“(b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this Act or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto.
“The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this Act may require." In accordance with these provisions requiring identical treatment or reciprocal treatment to Americans abroad, the President has issued proclamations extending the benefits of our Copyright Act to citizens
1 Mr. Cadwalader, Act'g Sec'y of State, to Mr. Broadwell, July 28, 1875, Moore's Dig. VI, 754.
2 Zeitschrift für Industrierecht, 1906, p. 261 cited in Singer, Trade-mark laws of the world, 1913, p. 223. In various countries of South America, on the other hand, the first person to register a trade-mark, regardless of his ownership, receives protection, even against the rightful owner. Many alien owners of trade-marks are thus defrauded.