few minor semi-barbarous states.1 The criminal jurisdiction of consuls is usually limited to their own nationals; natives guilty of crimes or injuries against foreigners, must as a rule be prosecuted in the local courts. The extent of the exemption from local law depends almost entirely upon treaty, and may differ from country to country and with respect to the nationals of different states. The system of protectorates with its incidental wide foreign jurisdiction and the system of mixed courts, e. g., in Morocco, Tunis, Tripoli, Shanghai and other places, is a phase of extraterritorial jurisdiction. § 44. Equality of Alien and National not always Internationally Suffi cient. The statement is frequently made, and is undoubtedly true, that an alien establishing himself abroad must normally accept for his protection the institutions, whether of government or of justice, which the inhabitants of the state find suitable to themselves. Foreigners, therefore, are subject to the local courts and authorities, and not to separate jurisdictions, and their own governments will not normally interfere for their protection so long as they enjoy equal treatment with natives.2 1 Moore's Dig. II, §§ 259-291, pp. 593-755; Sen. Misc. Doc. 89, 47th Cong. 1st sess., memorandum from Secretary of State; Heyking, A., L'exterritorialité, Berlin,' 1889; Hinckley, F., American consular jurisdiction in the Orient, Washington, 1906; Martens, F. F., Das Consularwesen u. die Consularjurisdiction im Orient, Berlin, 1874; Lippmann, Die Konsularjurisdiktion in Orient (historical), Leipzig, 1898; Torres Campos, M., Bases de una legislación sobre extraterritorialidad, Madrid, 1896; Ravant-Bignon, R., Du droit de police des consuls dans les pays hors chrétienté, Paris, 1905; Rioche, Y., Les juridictions consulaires anglaises dans les pays d'Orient, etc., Paris, 1904. See also for Egypt, Scott, J. H., The law affecting foreigners in Egypt, Edinburgh, 1907; Lamba, H., De l'evolution de la condition juridique des Européens en Egypte, Paris, 1896; for China, Koo, V. K. W., The status of aliens in China, New York, 1912. The government of the foreigners in China, by A. M. Latter, 19 Law Quar. Rev. (1903) 316-325. Condition des étrangers en Chine by Tou Fa Scié, 2 R. D. I. privé, 1906, 110-120; for Morocco, Saurin, D., De la condition juridique des étrangers au Maroc au point de vue civil, 34 Clunet (1907), 5-19; 284-294; for Persia, La condition juridique des étrangers en Perse, by James Greenfield, 34 Clunet (1907), 257-272; 973-985; Des rapports d'affaires des Européens avec la Perse, 35 Clunet (1908), 1064–1069; for Siam, De la condition juridique des étrangers et de l'organisation judiciaire au Siam, by A. Dauge, 27 Clunet (1900), 461-477; 704-716; De la condition juridique des étrangers au Siam by G. Padoux, 35 Clunet (1908), 693–713; 1037–1054. 2 Westlake, Chapters on international law, 103; Pradier-Fodéré, III, § 1365. 7 Op. This principle has become of special importance in the Latin-American countries, where exceptions from it have been imposed, on occasion, by the exploiting countries of the Western European type. The weaker countries of Latin America, knowing the advantages under which diplomatic protection has placed aliens, have in their municipal laws, constitutions and treaties emphasized the legal equality which exists as between national and alien.1 Relying upon this presumably liberal doctrine of complete equality, the Latin-American states insist upon the application of the general principle that the alien is bound by the local law, and that the propriety of their conduct toward resident foreigners is to be tested by their municipal laws. The Pan-American Conferences of 1889 and 1901 passed formal resolutions, which subsequently found their way into constitutions and statutes, to the effect that foreigners have the same civil rights as the citizens of the nation and that the Latin-American states have not, nor do they recognize in favor of foreigners, any other obligations and responsibilities than those which by their laws they have toward their own citizens.2 The delegate of the United States to the first Pan-American Congress, Mr. Trescott, declined to subscribe to this resolution on the ground that it gave the alien "no right in protection of his interests other than such as the Government may have provided in the way of judicial trial or executive appeal to its own citizens and this principle once admitted, of course there follows the absolute exclusion of diplomatic reclamation." 3 The United States has vigorously opposed the attempt of the LatinAmerican countries to pass upon the scope of their international duty. As was said by Secretary of State Bayard, in 1887: "If a government could set up its own municipal laws as the final test of its international rights and obligations, then the rules of inter Atty. Gen. 229, 235 (Cushing). Any discrimination against the alien, e. g., a graver punishment than that inflicted upon nationals, prejudicial irregularity in judicial proceedings, violation of treaties or international law, constitutes a denial of justice and opens the right to diplomatic interposition. 1 The attempts by local legislation to avoid diplomatic interposition will be discussed hereafter, infra, § 390 et seq. * Alvarez in 3 A. J. I. L. (1909), 329, 333. * Report of the delegate in Sen. Ex. Doc. 224, 51st Cong. 1st sess., 28-29. national law would be but the shadow of a name, and would afford no protection either to states or to individuals. It has been constantly maintained and also admitted by the Government of the United States that a Government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties." 1 The principle that equality of treatment between nationals and aliens releases a state from pecuniary responsibility for injury to aliens is conditioned upon the fact that its administration of justice satisfies the standard of civilized justice established by international law. Foreign states, however, undertake to judge for themselves as to the local state's compliance with international standards-a defect in the system which arbitration has done much to remedy. The United States has never taken the position that one who acquires a residence in a foreign country does so at his peril and assumes the risk of ill-treatment or injury identically with citizens.2 Where a state does not normally possess or is not disposed to employ sufficient power to prevent injury to the alien, the state's responsibility is considered as established; the delinquency may occur either in its legislative, executive, or judicial departments. One reason why the alien is not bound to submit to unjust treatment equally with nationals, against which the national has no judicial redress, is because the latter is presumed to have a political remedy, whereas the alien's inability to exercise political rights deprives him of one of the principal safeguards of the rights of the citizen. For this reason diplomatic inter 1 Mr. Bayard, Sec'y of State, to Mr. Connery, Nov. 1, 1887, For. Rel., 1887, pp. 751, 753. See also C. C. Hyde in Proceedings of the Amer. Soc. of Int. Law, 1911, p. 36. 2 Mr. Bayard, Sec'y of State, to Mr. Buck, min. to Peru, Aug. 24, 1886, Moore's Dig. VI, 252, in case of U. S. citizen Young killed in Peru, in 1884, by a Peruvian soldier. C. C. Hyde, in Proceedings, supra, 1911, p. 33. While this rule is frequently invoked by European governments against the states of Latin-America, a temporary lack of power to prevent lawless injury to aliens is not a good legal ground to invoke the responsibility of the state. This has been often asserted by the United States in mob violence cases (infra, § 91), though indemnities have generally been paid. In times of civil disturbance, the alien like the national should be compelled to bear the necessary and incidental consequences of such conditions. This has been asserted by the United States in times when civil guarantees were suspended, e. g., during the Civil War. Only where the alien is discriminated against, by direct injury or unreasonable failure to prevent it, should the defense of civil disturbance be rejected. position may be invoked by the alien for the enforcement of his rights.1 The alien, therefore, is not bound to accept the treatment accorded to nationals if such treatment is in violation of the ordinary principles of civilized justice, and notwithstanding the fact that the national has no immediate remedy against the injustice. § 45. Treaty Rights of Aliens in the United States. The inability of the United States to enforce the treaty rights of aliens in the states has often brought about diplomatic controversies between this country and foreign governments. The anomalous situation created by the fact that the states of the Union may legislate with reference to aliens has on several occasions threatened to disturb the friendly relations between our own and foreign governments, and the incompetence of the federal government under existing laws to compel state officials to recognize and enforce the treaty rights of aliens has had the attention of Presidents and of Congress at various times. That Congress has the power to legislate for the protection of aliens in their treaty rights, seems unquestionable.2 Bills have been introduced and their passage urged to give the federal courts jurisdiction over cases involving an alleged violation of the treaty rights of aliens.3 On several occasions, the federal government has found it necessary to pay foreign claims for the violation by the states. of an alien's treaty rights, largely because it has been found practically impossible, owing to local sentiment, successfully to prosecute the guilty offenders in the state courts. The peculiar situation created 1 See brief of J. B. Moore in Constancia Sugar Rfg. Co. v. U. S., No. 196, before Spanish Treaty Claims Commission. See also Pinheiro-Ferreira in Pradier-Fodéré, op. cit. I, § 405. 2 Baldwin v. Franks, 120 U. S. 678, 682, 707. S. Rep. 392, 56th Cong. 1st sess. Ex-senator Turner in Proceedings of the Amer. Soc. of Int. Law, v. 2 (1908), 21 et seq. and Robert Lansing, ibid. 44-60. The responsibility of the federal government for violations of the rights of aliens, by Nelson Gammans, 8 A. J. I. L. (1914), 73–80; Ex-president Taft in the Independent, Feb. 2, 1914, pp. 156-158; Feb. 9, 1914, pp. 204-208. Simeon E. Baldwin suggests that Congress should authorize the bringing of an action by the U. S. in a state court instead of in a federal court. 13 Mich. L. Rev. (1914) 17-20. 1S. Rep. 392, 56th Cong. 1st sess. S. Doc. 95, 55th Cong. 2nd sess., p. 2. See also Baldwin v. Franks, 120 U. S. 678; by the urgent and solicitous appeal of a Secretary of State to a state legislature to avoid any legislation unfriendly to a foreign nation and the numerous examples of discriminatory legislation by the states against certain foreign interests, e. g., insurance companies, Japanese farmers (in California), etc., reveals not only the practical helplessness of the federal government in dealing with many phases of our foreign relations but discloses an actual encroachment by the states upon the constitutionally unrestricted power of the national government and the express prohibition to the states of dealing with foreign relations.1 2 Aliens in the United States who allege a violation of treaty rights are placed in a curious position by the constitutional rule that the determination of the rights of aliens claimed under treaty is within the jurisdiction of the judiciary. Inasmuch as a treaty is the supreme law of the land, an alien invoking a right under a treaty must plead it in the usual course of judicial proceedings, and until justice has been denied him in those proceedings, the diplomatic interposition of his government is regarded as premature. Hence aliens, complaining to the Department of State through their governments of the violation of treaty rights, are referred to the courts, or if the case is already in the courts, the Executive declines to interfere on the ground of constitutional incompetence, and on the ground that a treaty merely confers substantive rights to be enforced in the appropriate courts. An act of state officials which is evidently a violation of treaty rights must often, therefore, await judicial determination before the Executive may properly interfere. If the decision of the court is against the alien, the Executive usually feels justified in rejecting any subsequent diplomatic claim which may be advanced in his behalf. Foreign governments, however, may with justice answer that no government can rightfully claim to be the final judge of its compliance with international obligations, or shield itself behind its municipal law or decisions to escape international liability. On the other hand, if the decision supports the alien's right under treaty, e. g., if the alien. has been wrongfully arrested or detained in violation of treaty by 1 Willoughby, W. W., Principles of the constitutional law of the U. S., New York, 1912 (abridged ed.), 154 et seq. 2 Bradford, Atty. Gen., in 1 Op. Atty. Gen., July 26, 1794, 2nd ser., 24. |