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of practically all the civilized countries. Under section 1 (e) of the Act, extending protection to the mechanical reproduction of musical works, additional proclamations have been issued in favor of many countries.
The limitations on the property rights of aliens in certain national resources, e. g., national vessels, national mines, and other kinds of property have already been noted. In other matters of private law aliens enjoy practically the same rights as nationals. In family law, a few restrictions may be noted. Countries of the white race frequently prohibit intermarriage with those of other races. In some countries, aliens are limited in their rights of adoption and guardianship. In France, for example, an alien cannot be a guardian.' In commercial matters, the alien often labors under minor disabilities; for example, under the French bankruptcy laws, an alien cannot, by an assignment for the benefit of his creditors, release himself from personal liability for his debts.
$ 40. Transient and Domiciled Aliens.
From what has gone before it will have been seen that there are different categories of aliens, differing in the degree of fixity which their residence possesses. For the purpose of examining their rights and obligations, we may distinguish two important classes, transient and domiciled aliens. By the municipal law of some states the domiciled alien occupies a position, in practically all respects except the exercise of political rights and duties, the same as that of the national. This is the case in France and a few other countries. In the Latin American countries the domiciled alien is required to fulfill many obligations from which the transient alien is exempt. Publicists differ in the emphasis laid upon the importance of the distinction.Treaties often fail to take account of it. Unquestionably, however, the fact that the domiciled alien is more closely identified with the country
Weiss, op. cit. II, 228 et seq. De la tutelle des mineurs d'après les principales législations de l'Europe, by E. Lehr, R. D. I. 1902, pp. 315–340; Zur Frage der Bevormundung fremder Staatsangehöriger, by Scheuffler, 1 Ztschr. f. int. privat u öffent. Recht (1890), 181–186.
2 Phillimore, op. cit. II, 6 considers it of great importance; Pradier-Fodéré, op. cit. III, § 1371, does not.
of residence than the transient alien is of great importance in determining their respective rights and duties, both in the country of residence and with respect to the home or national state.1
In the United States and Great Britain domicil plays an even more important part than nationality in determining the civil status of an individual. In the matter of the capture of private property at sea by a belligerent, such property is regarded as enemy or neutral not according to the nationality of its owner, but according to the territory in which the owner has his commercial domicil—this on the ground that his industry adds to the strength of the country in which it is carried on. At an early period in the development of continental law domicil preceded nationality (where they were not identical) as the criterion of a man's personal status. In this respect nationality has replaced domicil on the continent.
In international law, foreigners who have become domiciled in a country other than their own, acquire rights and must discharge duties in many respects the same as those possessed by and imposed upon the citizens of that country. In some countries, as in Mexico, the transient foreigner cannot acquire real estate. The transient foreigner, on the other hand, is not generally subject to personal taxes. He can, in some countries, as in Belgium and Brazil, be more easily expelled than the domiciled alien. The domiciled alien owes to the state of his residence practically all the duties of the native except such as have a political character; for example, he is subject to the same taxes, and the United States, at least, has always considered that he is subject to service in the civic guard, and may be required to aid in preserving public order and even to support and defend, in all ways except general military service, the interests of the state whose local protection he enjoys. Both the United States and Great Britain
1 Phillimore, op. cit., II, 6; Fiore, Nouv. dr. int. pub. (Antoine's trans.), 8 647; Pomeroy, Woolsey's ed., 249.
2 Westlake, op. cit., I, 212. In France and other continental countries, nationality determines enemy or neutral character, as it determines status and capacity. 3 Lau Ow Bew v. U.S., 144 U. S. 47.
Bar, op. cit., 221. 6 Supra, p. 65. Mr. Fish once expressed the opinion that domiciled aliens might be required to serve on juries and in the fire department and to perform similar
have on occasion intimated that even military service might be required of permanently domiciled aliens, subject always to the alternative of leaving the country. In numerous treaties between the Latin American countries only transient aliens are exempted from military service and from extraordinary contribution, forced loans, military requisitions, and similar burdens which nationals must bear.2
On principle, indeed, permanently domiciled aliens should share the normal burdens of the native inhabitants of the country in which they have established their permanent residence. This applies especially to the sacrifices which civil commotion, insurrection and civil war impose upon the inhabitants. The Latin American countries have suffered severely from the apparent unwillingness of European governments to share this view. The citizen domiciled abroad escapes military service in his own country, jury duty, extraordinary taxes, and all accidents of national life, such as riots, war, etc. By reason of his alienage, he escapes the most burdensome of these duties in the country of his domicil and is only slightly affected by the calamities of local life, having often, indeed, as has been proved by Latin American experience, a claim to preferential treatment on the assumed ground of the negligence of the national government in permitting a revolution to arise, or in not suppressing it.3
Domiciled aliens like transient aliens are protected by their national governments against ill-treatment, arbitrary proceedings or irregular exercise of the rights of local authorities, denial of justice or violation of treaties or the principles of international law. By the law of 1907, the United States has sought, in the case of naturalized citizens, to prevent any unfair claim upon its protection by withdrawing it on evidence (rebuttable on specific grounds) of a limited residence abroadtwo years in the country of nativity, or five years in any other country.4 duties. Mr. Fish, Sec'y of State, to Mr. Wing, April 6, 1871, Moore's Dig. IV, 58. See also Pomeroy, op. cit. 249.
Supra, p. 68. See also Lomonaco, op. cit., 218; Fiore, op. cit., $ 647. 2 Pradier-Fodéré, op. cit. III, § 1373.
3 Infra, $ 97. Lisboa, Les fonctions diplomatiques, p. 190; Pradier-Fodéré, III, § 1371. Mr. Seward, however, declined to extend protection to permanently domiciled aliens (citizens of the U.S.) in the Panama Riot claims. British Naturalization report, App. 64. See also infra, $ 326.
* Infra, 88 242, 330.
As applied to native citizens, protection is still extended notwithstanding foreign domicil, though, as will be seen hereafter, that is taken into account in determining both the title to and the extent of protection. One of the justifications for such protection in the case of citizens domiciled abroad is the fact that having no political share in the government of their domicil, they are denied that expression of disapproval and privilege of bringing about a change of administration which native citizens enjoy, and that ultimate foreign protection is the only sanction that they have for asserted rights. A freer extension of political rights to domiciled aliens without an attempt to impose local citizenship upon them would remove one important element of justification for foreign intervention in Latin America.
§ 41. Subjection to Territorial Law.
In return for the protection of person and property which by municipal law and treaty the country of residence assures to the alien, he owes obedience to the local law or what has been called “temporary allegiance" to the state. This rule applies to the persons and property of aliens entering the territory, and from it only certain privileged classes of aliens are exempt. These include foreign sovereigns and diplomatic officers, foreign public ships, and in the case of countries in which extraterritorial privileges are exercised, aliens governed by the so-called capitulations or special treaties. By treaty, states usually provide that their consuls shall have a limited jurisdiction over their merchant vessels in matters not affecting the peace of the port. An involuntary entrance of a vessel, under duress or by stress of weather, has been held not to be such a submission to local law as would properly incur the imposition of local penalties. The plenitude of territorial jurisdiction and the submission of aliens to local
1 Sec'y of State Webster in Thrasher's case, Webster's Works, VI, 524; Carlisle v. U. S., 16 Wall. 147; Wharton's Dig. II, § 203; Moore's Dig. IV, 9–17. See also Pradier-Fodéré, op. cit. I, § 403; III, & 1365; Lomonaco, op. cit., 217; Despagnet, Dr. int. public, § 342; Cockburn, Nationality, 139; Cushing in 7 Op. Atty. Gen. 229, 235.
2 Moore's Dig. II, 272 et seq.
* Cases referred to in Moore's Dig. II, 339 et seq., and The Alliance (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 29, 32.
law will be considered under two of its most important aspects, taxation and criminal jurisdiction.
The power to impose taxes is an attribute of sovereignty, and where the person or the property in question is a proper subject of taxation the species of tax and its amount is left to the government exercising the power. So long as the tax is uniform in operation and may fairly be considered a tax and not a confiscation or unfair imposition, no successful representation can be made to a foreign government on behalf of the aliens affected. Complaints of excessive taxation are properly questions for submission to local courts. Unjust or illegal exactions cannot, however, be enforced under the disguise of taxation. The territoriality of taxation has been adopted as a practically universal principle, the tax affecting property or person in the territory or transactions there undertaken. The alien is properly subject to the ordinary industrial, excise, internal revenue and license taxes and duties and to property and income taxes. The transient alien, however, is internationally exempt from personal taxes.
In the absence of treaty, foreigners may be more heavily taxed than nationals, but at the present day, if not by statute then by treaty, the alien has generally been secured against any discrimination in taxation as against the native inhabitant. The alien is often required
1 Mr. Fish, Sec'y of State, to Mr. Davis, min. to Germany, Nov. 21, 1874, Moore's Dig. IV, 20; Mr. Bayard, Sec'y of State, to Mr. Cox, min. to Turkey, Nov. 11, 1885, For. Rel., 1885, 878; Sec'y of State Hay to Mr. Harris, amb. to Austria (case of H. M. Braem), For. Rel., 1899, 48, 50. See other state papers in Moore's Dig. IV, 20 et seq. and II, 55 et seq.
: Mr. Fish, Sec'y of State, to Mr. Mantilla, Jan. 11, 1876, Moore's Dig. IV, 21.
• Heffter (Geffcken-Bergson) op. cit., $ 62, pp. 142–145. Des bases légitimes des impôts en droit international by E. Lehr, 35 R. D. I. (1903), 547–555.
* The imposition of a head tax on immigrants or a tax on sojourn, which some countries still exact, is not in derogation of this principle. Heffter, op. cit., 144; Mr. Porter to Mr. Emmet, min. to Turkey, June 8, 1885, For. Rel., 1885, 848. The resident alien, even though not domiciled, is subject to personal taxes in France, and probably in other countries. Decision of the Conseil d'Etat, Despagnet, Dr. int. privé, 131.
• Certain kinds of foreign business concerns, particularly life insurance companies, have occasionally been discriminated against in taxation and other ways, even in the United States. In a recent case, the federal government declined to interfere with state legislation in Iowa, Missouri and Nebraska taxing foreign insurance companies more heavily than national companies—this notwithstanding treaties by