doubtless internationally unimportant, so long as the attempt is successful. As a practical means, however, of fulfilling its duty towards the outside world, the territorial sovereign finds itself obliged to have recourse to a judicial system and valiantly to maintain it; for by no other means is it able under normal circumstances to meet the requirements of the law of nations. Even the military arm of the government appears to offer no adequate substitute in seasons of peace for civil tribunals.1

The value of a judicial system with respect to foreign powers depends upon the means which it affords them and their nationals to obtain redress in local forums. The efficacy of those means is always to be tested by the standard which the family of nations has fixed; and the evidence of that standard is to be found in the practice of enlightened States.2

§ 267. The Same.

The individual State cannot itself alter the international standard. The freedom of a State in adopting a form of government of its own choice, or in framing a constitution of its own devising, is always subject to the requirement that the territorial sovereign shall not thereby render itself impotent to fulfill acknowledged duties of doing justice with respect to foreign powers. If a State, acting designedly, renders itself deficient in this regard, it not only fails to escape responsibility, but also, by reason of its conduct, invites the intervention of aggrieved States.

3

and following; also President Taft, Annual Message, Dec. 7, 1911, id., XIXVI. Cf. also communication of Mr. Lansing, Secy. of State, to the Secy. of Foreign Relations of the de facto Government of Mexico, June 20, 1916, with respect to conditions calling for the pursuit of Villa, Am. J., X, Supp., 211.

At least such is the profound conviction in States such as the United States where Anglo-American theories prevail, and where trial by jury is firmly planted in the fundamental law.

Declared Mr. Root, President of the American Society of International Law, April 28, 1910: " "The rule of obligation is perfectly distinct and settled. Each country is bound to give to the nationals of another country in its territories the benefit of the same laws the same administration, the same protection, and the same redress for injury which it gives to its own citizens, and neither more nor less; provided the protection which the country gives to its own citizens conforms to the established standard of civilization.

"There is a standard of justice very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world. The condition upon which any country is entitled to measure the justice due from it to an alien by the justice which it accords to its own citizens is that its system of law and administration shall conform to this general standard. If any country's system of law and administration does not conform to that standard, although the people of the country may be content and compelled to live under it, no other country can be compelled to accept it as furnishing a satisfactory measure of treatment to its citizens." Proceedings, Am. Soc. Int. Law, IV, 16, 20-21.

3 Robert Lansing, Proceedings, Am. Soc. Int. Law, II, 44, 45.

The United States, in which the power to deal with the outside world is lodged exclusively in the Federal Government, could not avoid responsibility for the neglect of a duty of jurisdiction towards a foreign power, occurring within the bounds of one of the States of the Union, by showing, if such were the fact, that by the Constitution, the right and power to do justice in the particular matter were vested in the government of the commonwealth within whose domain there had been a denial of justice.1 Nor could the United States fairly deny responsibility for the consequences of neglect in the performance of duties of jurisdiction with respect to aliens resident in a State of the Union by reason of the failure of Congress to enact laws necessary to insure performance. Lack of legislation which may be requisite to enable a State to fulfill its international obligations, howsoever arising, never affords a defense in public law for the consequences of such inaction.3

It cannot be admitted that a State may by local enactment lessen the scope of its duty of jurisdiction, inasmuch as it is always fixed by international law. Thus the effort to restrict by local legislation the measure of justice to be accorded the resident alien, or the right of his State to interpose in his be

4

1 Art. IV of the Resolution adopted by the Institute of International Law September 10, 1900, declares:

"The government of a federal state composed of several small states represented by it from an international point of view, can not invoke, in order to escape the responsibility incumbent on it, the fact that the constitution of the federal state confers upon it no control over the several states, or the right to exact of them the satisfaction of their own obligations." Annuaire, XVIII, 255, Moore, Dig., VI, 954; also J. B. Scott, Resolutions, 160.

Compare Mr. Evarts, Secy. of State, to the Chinese Minister, Dec. 30, 1880, For. Rel. 1881, 319, Moore, Dig., VI, 820.

2 See President Harrison, Annual Message, Dec. 9, 1891, For. Rel. 1891, v, Moore, Dig., VI, 840.

Concerning the need of legislation by Congress to enable the Federal Government to perform international obligations with respect to aliens, see also President McKinley, Annual Message, Dec. 5, 1899, For. Rel. 1899, xxii-xxiv, Moore, Dig., VI, 846; President Roosevelt, Annual Message, Dec. 3, 1906, For. Rel. 1906, I, xliii; President Taft, remarks before Am. Soc. Int. Law, April 29, 1910, Proceedings, Am. Soc., IV, 44-45; Charles H. Watson, "Need of Federal Legislation in Respect to Mob Violence in Cases of Lynching of Aliens", Yale Law J., XXV, 561.

3 Mr. Root, Proceedings, Am. Soc., IV, 16, 25. Also, Claims Arising from Mob Violence, infra, §§ 290–292.

Compare Mr. Evarts, Secy. of State, to Sir E. Thornton, British Minister, March 7, 1881, MS. Notes to Great Britain, XVIII, 461, Moore, Dig., VI, 663; see, also, distinction made by Mr. Fish, Secy. of State, to Mr. Partridge, Minister to Brazil, No. 141, March 5, 1875, MS. Inst. Brazil, XVI, 455, Moore, Dig., VI, 815.

See, for example, Venezuelan decrees of 1873, For. Rel. 1883, 917-918, Moore, Dig., VI, 318; also concerning these decrees, Mr. Fish, Secy. of State, to Mr. Pile, Minister to Venezuela, No. 63, May 29, 1873, United States and

1

half, is commonly protested against by the country whose national is thus adversely affected. The United States will not, for example, admit that the failure of an American citizen to be matriculated in accordance with the provisions of a statute of a foreign State where he may reside, deprives him of the protection of his own government, or lessens its right to interpose in his behalf.2

It is frequently asserted that the alien is entitled, with respect to the protection of his life and property, to no greater safeguards, and to no better means of redress by judicial process, than are accorded nationals of the State where he finds himself.3 This contention may be due to the circumstance that in the territories of enlightened States, such individuals are commonly able to obtain justice whether as plaintiffs or defendants, and in both civil and criminal causes. It may be partly attributable also to the habit of States in demanding by treaty that their respective nationals be placed upon an equal footing with those of the country of residence in what relates to the protection of life and property within its borders. Thus it happens that the true test of the extent of the duty of the territorial sovereign oftentimes disappears from view. Whenever, on the other hand, the local judicial system serves to work injustice to the national of the territorial sovereign by failing to accord him that protection which enlightened States habitually place within the reach of their own citizens, and which, therefore, it is believed that he should

Venezuelan Claims Commission (1895), 451, Moore, Dig., VI, 319; Mr. Frelinghuysen, Secy. of State, to Mr. Baker, Minister to Venezuela, No. 292, April 18, 1884, Senate Ex. Doc. 143, 50 Cong., 1 Sess., 81, 85, Moore, Dig., VI, 320.

1 Mr. Frelinghuysen, Secy. of State, to Mr. Soteldo, Venezuelan Minister, April 4, 1884, For. Rel. 1884, 599, Moore, Dig., VI, 321; Mr. Frelinghuysen, Secy. of State, to Mr. Morgan, Minister to Mexico, No. 732, Feb. 17, 1885, For. Rel. 1885, 575, Moore, Dig., VI, 312.

2 See, for example, Mr. Bayard, Secy, of State, to Mr. Morgan, Minister to Mexico, May 26, 1885, MS. Inst. Mexico, XXI, 297, Moore, Dig., VI, 313; Mr. Bayard, Secy. of State, to Mr. Howe, May 8, 1885, 155 MS. Dom. Let. 323, Moore, Dig., VI, 313; also, generally, documents in Moore, Dig., VI, 309-324.

3 Mr. Butler, Atty.-Gen., 3 Ops. Attys.-Gen., 254, Moore, Dig., IV, 2; Mr. Cushing, Atty.-Gen., 7 Ops. Attys.-Gen., 229, Moore, Dig., IV, 7; Mr. Webster, Secy. of State, to Mr. Calderon de la Barca, Spanish Minister, Nov. 13, 1851, 6 Webster's Works, 509, 511, Moore, Dig., VI, 812; Mr. Evarts, Secy. of State, to the Chinese Minister, Dec. 30, 1880, For. Rel. 1881, 319, Moore, Dig., VI, 820, 822; Mr. Hay, Secy. of State, to Baron Riedl, Austro-Hungarian Chargé d'Affaires ad interim, Feb. 4, 1899, For. Rel. 1898, 152, 155, Moore, Dig., VI, 874, 879.

See, also, Wadsworth, Commissioner, in case of Salvador Prats, MexicanAmerican Commission, Convention of July 4, 1868, Moore, Arbitrations, III, 2886, 2888; Opinion of Palacio, Commissioner, in same case, id., 2892, 2893.

enjoy, it becomes apparent that the duty of jurisdiction is to be tested by a different standard. Thus if the alien suffers absolute wrong through the operation of local laws or procedure, although applied without discrimination, the State of his allegiance will raise its voice in protest.1 Whenever it does so, the insufficiency of the domestic standard is emphasized.

The alien may no doubt be the object of some discrimination without necessarily imputing to the country of his residence a violation of international law. This is true when it appears that, notwithstanding the discrimination, he is able to secure such a measure of justice as States commonly require and obtain for their nationals resident abroad. The provision in the French law that an alien shall give security for costs in a suit brought against a citizen is typical.2 So long as foreign powers acquiesce, the discrimination cannot be regarded as internationally illegal.

The alien may, however, by reason of his foreign nationality, need and actually receive a means of redress other than that accorded the national of the territorial sovereign. The tribunals and processes found adequate for the exercise of jurisdiction with

1 See, for example, Baron von Riedenau of the Austro-Hungarian Legation, to Mr. Hay, Secy. of State, For. Rel. 1899, 31, 35; Mr. Bayard, Secy. of State, to Mr. Buck, Minister to Peru, No. 85, Aug. 24, 1886, MŠ. Inst. Peru, XVII, 231, Moore, Dig., VI, 252; Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, Minister to England, April 25, 1882, For. Rel. 1882, 230-233, Moore, Dig., VI, 275; Mr. Blaine, Secy. of State, to Mr. Dougherty, Chargé, No. 430, Jan. 5, 1891, MS. Inst. Mexico, XXIII, 14, 21, Moore, Dig., VI, 802, 803.

2 Art. 16 of the Code Civil, as amended by the law of March 5, 1895, Dalloz, Codes Annotés, I, 199.

See, also, J. Brissaud, History of French Private Law, translated by Rapelje Howell, Continental Legal History Series, § 582; James Barclay, Proceedings, Am. Soc., V, 57; Joseph H. Beale, Harv. Law Rev., XXVI, 193 and 283; Mr. Adee, Acting Secy. of State, to Signor Carignani, Italian Chargé, Oct. 10, 1901, For. Rel. 1901, 310.

"We find in continental Europe a good deal of diversity in regard to the furnishing of indemnity judicatum solvi. Some nations, among which we find Italy, Portugal, Denmark and a few smaller ones, have abolished it entirely. The Italian Civil Code of 1865, Article 8, provides that: 'the alien is admitted to the enjoyment of the civil rights accorded to citizens.' Italy in this respect, as in many other matters relating to private law, is in the forefront of civilization. Countries like Belgium and Luxemburg follow the French rule, as does Holland. Russia exacts indemnity judicatum solvi except in the case where the plaintiff is solvent. Switzerland, like England and the United States, does not discriminate between its citizens and aliens, but requires all nonresidents to furnish security. Germany bases its law entirely upon the system of legislative reciprocity. The German judge must ascertain the law regarding security prevailing in the country to which the plaintiff belongs. Austria, since 1898, has adopted the same system, as has been done by Spain and Hungary. All these countries, however, have also numerous treaties of exemption, and it is necessary in each case to ascertain whether the country of the forum does not have a treaty with the nation to which the plaintiff in the particular case belongs." Frederic R. Coudert, in Proceedings, Am. Soc., V, 192, 206.

respect to the latter may notoriously fail when the complainant is an alien and local prejudice is aroused against him. This has been recognized both by the Constitution and legislation of the United States in conferring upon aliens under specified circumstances the right to invoke the jurisdiction of the Federal Courts.1 The reason for the distinction, which is manifested also in the frequent efforts made to encourage the Congress to enact a law causing certain offenses in derogation of rights conferred by treaty upon foreigners residing in American territory to be cognizable in the Federal courts,2 is not for the purpose of affording the alien more favorable treatment than is accorded the national, but rather to give to the former by a different process, an equal opportunity to secure such measure of justice as should be within the reach of every resident of the national domain.

b.

Operation of the Judicial System

(1)

§ 268. When the Alien Invokes the Aid of the Courts. The alien must be given access to the courts whether as a complainant in a civil action or as instigator of criminal proceedings to be undertaken by the State.3 Except for the possible obligation to furnish security for costs in a civil action, he must not be subjected to discrimination by reason of his foreign nationality.*

1 Constitution, Art. III, Section 2. According to paragraph 17, of the Federal Judicial Code, 36 Stat. 1093, U. S. Comp. Stat. 1918, § 991 (17), the United States District Courts are given original jurisdiction "of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States."

See, also, § 34 of Federal Judicial Code, 36 Stat. 1098, U. S. Comp. Stat. 1918, § 1016, specifying conditions when a personal action brought in any State court by an alien against a citizen of a State who is, or was at the time the alleged action accrued, a civil officer of the United States, may be removed to the United States District Court.

2 See, for example, President McKinley, Annual Message, Dec. 5, 1899, For. Rel. 1899, xxii-xxiv, Moore, Dig., VI, 846.

3 Mr. Bayard, Secy. of State, to Mr. Jackson, Minister to Mexico, Sept. 7, 1886, MS. Inst. Mexico, XXI, 574, Moore, Dig., VI, 680; Mr. Bayard, Secy. of State, to Mr. Buck, Minister to Peru, No. 104, Nov. 1, 1886, MS. Inst. Peru, XVII, 252, Moore, Dig., VI, 267. In this connection it may be observed that it is not the duty of a State to clothe its courts with jurisdiction to adjudicate with respect to claims of aliens against other aliens arising in places outside of the territory or control of the State. See, for example, The Gloria De Larrinaga, 196 Fed. 590.

4 Mr. Bayard, Secy. of State, to Mr. Copeland, Feb. 23, 1886, 159 MS. Dom. Let. 138, Moore, Dig., VI, 699; Mr. Porter, Acting Secy. of State, to Mr. Phelps, Minister to Peru, No. 131, June 4, 1885, MS. Inst. Peru, XVII, 154, Moore, Dig., VI, 253.