THE RELATION OF THE CITIZEN DOMICILED IN A FOREIGN COUNTRY TO HIS HOME GOVERNMENT

When the thirteen colonies became a nation and formed the Constitution of the United States of America, their population was chiefly on the Atlantic seaboard. Their ships sailed to every port of the civilized world. They were alive to the importance of foreign commerce. The wars of the Napoleonic epoch and the controversies to which they gave rise, led the American people to feel that it was for their interest, not only to abstain from entangling alliances with the powers of continental Europe, but to limit their activities as far as possible to their own territory. The acquisition of Louisiana from the French in 1803 gave to the United States a fertile and almost boundless domain and afforded an opening for national growth, which of itself tended to withdraw the thought and enterprise of our people from foreign business. Undoubtedly our foreign commerce did increase down to the time of the Civil War, but it did not keep pace with the development of the country or with the growth of interstate commerce. Since the Civil War, however, the current has turned. The wealth of the United States has enormously increased. Its capital is found invested in foreign countries, and it has acquired territorial possessions not only in the Atlantic, but in the Pacific, which have changed entirely the attitude of the American people. It must inevitably be the case that in the future the number of American citizens who go to foreign countries and take up a residence there will far exceed that of any other period of our history. A few of these no doubt will become citizens of the countries to which they go, but experience shows that the great majority both of English and American citizens who reside in foreign countries still retain their citizenship. The relation borne by the home government to these citizens domiciled abroad is, therefore, a matter of great and increasing importance.

We will not attempt in this paper to deal with the subject of

expatriation, nor with the relation to those who have expatriated themselves from the government of their origin.

We will consider:

First: The obligations of citizens domiciled abroad to the home government.

Second: The duties of the home government to citizens domiciled in foreign countries.

The obligations of citizens domiciled abroad to the home government. These citizens have not renounced allegiance. They are still subject to the laws of their native country so far as these laws relate to them. It is true that legislation is presumed to relate only to transactions done within the territory over which the legislature has general jurisdiction. It is also true that in general the validity of an act done or contract made is to be determined by the law of the place where it is done, unless the contract is executory and to be performed elsewhere. In the latter case the law of the place of performance usually governs. But no court is bound to enforce a contract to do something which is considered by the jurisprudence of the forum to be intrinsically wicked (malum in se) nor a contract the enforcement of which is prohibited by the law of the forum (malum prohibitum).1 In whatever form questions come before the court of any country the policy of that country, as declared by its legislature, must furnish the rule for decision. Even where no legislation had declared this policy the Supreme Court of the United States has sometimes recognized and enforced rules of policy established by previous decisions, and held that they should determine the consequences of acts done on foreign vessels and in a foreign country. In the leading case of The Montana a bill of lading was executed and delivered in New York by which the owner of a British ship contracted to transport goods to Liverpool. The freight was payable there in British currency. A negligent act of the master committed on the Irish sea caused a shipwreck on the British coast. The court held that the well-established

1 Minor: Conflict of Law, 9; Green v. Van Buskirk, 5 Wall. 307, 312.

2 Reported sub nom. Liverpool and G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397.

policy of American law was to treat as invalid clauses purporting to exempt the carrier from responsibility for damage caused by the negligence of the master. It was therefore held that the carrier was

responsible, although the clause was valid by British law.

It is an essential element of sovereignty to determine the rule of decision for all controversies that come before its courts for judgment. In accordance with this prerogative The Montana was decided. And the whole course of American legislation and judicial decision is to the same effect.

From the foundation of the government Congress has exercised the right to regulate the acts of citizens of the United States, and attach certain prescribed consequences to those acts, although they were done in foreign countries. This is entirely in accordance with wellsettled principles of international law. "A state has the right to attach whatever significance it will within its own territory to acts of its subjects, wherever those acts may be done." 3

1. In 1799 it was enacted as follows:

"Every citizen of the United States whether actually resident or abiding within the same " who carries on correspondence with a foreign country" with intent to influence its action in any controversy with the United States, or to defeat the measures of the government of the United States," shall be punished by fine and imprisonment.*

Contemporary history shows that this act was passed because American citizens residing abroad were actually plotting to defeat the measures of the government.

2. In the following year it was enacted by Congress that no citizen of the United States should directly or indirectly hold or have any property in a vessel engaged in "carrying slaves from one foreign country or place to another." 5

In 1808 an act was passed prohibiting citizens of the United States

3 Hall: International Law, 5th ed., 49; 1 Oppenheim: Inter. Law, 195; Wharton: Criminal Law, secs. 271, 278, 279; Rex v. Sawyer, 2 Carr. & K. 100, decided by the twelve judges on questions reserved; Commonwealth v. Smith, 11 Allen 243; State v. Grady, 54 Conn. 118.

4 Act of Jan. 30, 1799, 1 Stat. 613; re-enacted sec. 5335, Rev. Stat.; sec. 5, U. S. Penal Code, March 4, 1909.

5 Act of May 10, 1800, 2 Stat. at L. 70; re-enacted sec. 5556, Comp. Stat.

"from taking on board, receiving or transporting any negro from any of the coasts of kingdoms of Africa.'

Indictments under these statutes against the slave trade were found and punishments were inflicted. Gordon, a citizen of the United States, was hanged for piracy committed in taking negroes from the coast of Africa.7

Similar legislation was adopted by the British Parliament. The two countries were equally determined to suppress the African slave trade, even where it was carried on in places outside their respective territory.8

3. In 1893 Congress passed the law known as the Harter Act, which regulates the form of bills of lading issued in foreign countries for the transportation in foreign vessels of cargoes to the United States and prohibits the insertion of certain clauses in such bills of lading. The validity of this statute and its applicability to commerce originating in foreign countries has frequently been sustained by the Supreme Court.9

4. At a very early date (1795) the right of the United States government to take jurisdiction over American citizens engaged in the violation upon the high seas of the neutrality existing between the United States and foreign governments was sustained.10

In this case an American citizen joined with French citizens who had a French letter of marque, in seizing and bringing into Charleston a Dutch vessel. France was at that time at war with Holland. It was held in the Circuit Court by Mr. Justice Wilson that the act of the American citizen in joining with the French citizen in making the seizure, vitiated the capture and that the vessel should be restored to the Dutch owner. The decree was affirmed by the Supreme Court.

As the facilities of intercourse between nations increase, and the importance of co-operation between them in regulating the conduct.

6 Act of April 20, 1808, 3 Stat. at L. 450, sec. 4.

7 U. S. v. Gordon, Blatchfield 18; Slavers (Kate), 2 Wallace 350.

8 Santos v. Illidge, 8 C. B. (N. S.) 861.

9 The Carib Prince, 170 U. S. 655; The Sylvia, 171 U. S. 463; The Chattahoochee, 173 U. S. 540.

10 Talbot v. Janson, 3 Dallas 133.

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of each other's citizens is recognized, no doubt it will come to pass. that this regulation will be affected by conventions and treaties. notable instance of such regulation is to be found in the International Opium Commission, treated of in the July number of this periodical, p. 648 et seq., SUPPLEMENT, pp. 253-276.

The establishment of the International Court of Arbitration at The Hague was an important step in the same direction. The usefulness of this court was greatly increased by the convention for the pacific settlement of international disputes adopted at The Hague in October, 1907.11

In what has thus been said it has been assumed that the authority of the United States government is as adequate and as extensive in dealing with its citizens in foreign countries as that of any other nation. In a country which is subject to the authority of a written constitution it is always necessary to examine the text of that constitution for the purpose of ascertaining whether or not a particular power claimed for the government is granted by that instrument, expressly or by necessary implication. A brief reference to this instrument is therefore needful.

The Constitution of the United States gives to Congress the power to regulate commerce with foreign nations. In Gibbons v. Ogden 12 it was said by Chief Justice Marshall, delivering the judgment of the court,

It has, we believe, been universally admitted that these words apprehend every species of commercial intercourse between the United States and foreign nations.

Again at page 197, the great Chief Justice said:

The sovereignty of Congress, though limited as to specified objects, is plenary as to those objects.

In a later case 13 these words are quoted with approval and the court adds:

The power does not stop at the jurisdictional limits of the several states. It would be a very useless power if it could not pass those lines.

11 American Journal of International Law, 2:29-43.

12 9 Wheaton 1, 193.

13 U. S. v. Holliday, 3 Wallace 407, 417.