and will be protected by that state when his rights, as measured not necessarily and finally by the local, but by the international, standard are invaded.

§ 15. Right and Duty of Protection.

Many writers consider diplomatic protection a duty of the state,1 as well as a right. If it is a duty internationally, it is only a moral and not a legal duty, for there is no means of enforcing its fulfillment. Inasmuch as the state may determine in its discretion whether the injury to the citizen is sufficiently serious to warrant, or whether political expediency justifies, the exercise of the protective forces of the collectivity in his behalf,2-for the interests of the majority cannot be sacrificed-it is clear that by international law there is no legal duty. incumbent upon the state to extend diplomatic protection. Whether such a duty exists toward the citizen is a matter of municipal law of his own country, the general rule being that even under municipal law the state is under no legal duty to extend diplomatic protection.5

3

The state has, however, in international law, a right as against other states to protect its citizen abroad. This international right is universally admitted, and attempts to limit it by the municipal legislation of defendant states have not been successful. The individual is also often said to have a right to the protection of his government.7 This is, however, a moral rather than a legal right, for it is unenforce

1 Martens, Traité, 444 and as arbitrator in Costa Rica Packet (Gt. Brit.) v. Netherlands, May 16, 1895, Moore's Arb. 4952. Lomonaco, op. cit., 212, calls it "always a sacred duty." Grotius, II, ch. XXV, §§ 1 and 2; Vattel, I, ch. II, §§ 13– 16; Fiore, Dir. int. codificato, 5th ed., § 531 note; Pradier-Fodéré, § 402. * Infra, § 143.

'Oppenheim, I, § 319; Heilborn, System, 70.

'Diena, Dir. int. pubblico, Napoli, 1908, p. 258; Heilborn, System, 70. Mr. Frelinghuysen, Sec'y of State, to Mr. Soteldo, April 4, 1884, For. Rel. 1884, 601.

Certain German writers, basing their contention upon art. 3, § 6 of the Constitution of the German Empire, which provides: "Against foreign states all Germans equally have the right to demand the protection of the Empire," assert that there is a municipal duty to protect. Seydel, Bayerisches Staatsrecht, I, p. 300, note 43; Grabowsky in 12 Verwaltungsarchiv (1904), 232 et seq.

Infra, § 390 et seq.

1 Infra, § 138.

able by legal methods.1 Even under the German constitution, which expressly accords German subjects the right to protection, no legal remedy or means of enforcing the right has been granted.2

THE PROTECTIVE FUNCTION

§ 16. Political Philosophy. Function of the State.

In arriving at the basis for the external activity of the state in protecting citizens abroad, we are led into the field of the true function of the state. Being concerned primarily with international law, or the material and external sides of state activity, we can avoid all abstract philosophy, with the attempt to bring the meaning of the term "state" into harmony with a general theory of the universe.3

From the beginning of civilization, the relation between the state and the individual and the proper sphere of the activity of each have been discussed by political philosophers. Under the ancient theory of the state, especially among the Greeks, the state was regarded as the ultimate aim of human life, an end in itself. Individuals appeared only as parts of the state; their rights and welfare were recognized only to the extent that it was serviceable to the state. By the time of the Romans, with its absence of political freedom but strong protection for private rights, a more just sense of the relation between state and individual obtained, at least so far as the sphere of law is concerned. The Kantian theory of the Rechtstaat considered the sole duty of the state the maintenance of the legal security of each individual. This attempt to narrow the sphere of governmental activity was adopted by the orthodox political economy which reduced the function of the state to the minimum of maintaining security.5 A

1 I. e., the individual has no legal claim to protection. Rivier, Principes, I, 272. 2 Seydel and Grabowsky, op. cit., consider it a subjective right, i. e., that the individual has a legal claim to protection. Jellinek contests this view, asserting that the right to protection is a reflex of an objective right, i. e., the individual has no formal legal claim to it. Jellinek, System, 2nd ed., 1905, pp. 119-120. Laband states, rather equivocally, that protection by the state is not a favor or a gratuity, but that the individual's right is recognized. Deutsches Staatsrecht, I, 139, cited by Jellinek, 119.

3 McKechnie, S. W., The state and the individual, Glasgow, 1896, p. 52.

4 Bluntschli, J. K., The theory of the state, Oxford, 1898, p. 305.

5 Duguit, L., Etudes de droit public. 1. L'etat, le droit objectif et la loi positive,

more modern theory, entirely individualistic and utilitarian, supported strongly by Macaulay, Bentham and John Stuart Mill, regarded the state as a means only to insure and increase the sum of private happiness.1

The one-sidedness of each of these views has become more evident with the growth of social legislation during the past generation. The state is not merely an end in itself, nor only a means to secure individual welfare. Just as the nation is something more than a sum of the individuals belonging to it, so the national welfare is more than the sum of individual welfare. National welfare and individual welfare are indeed intimately bound together. In an impairment of individual rights, the state, the social solidarity, is affected; 2 yet where, in a particular case, the redress of the individual wrong would involve too great a social cost, it may be overlooked, and the measurement of the balance of advantages is in the discretion of the government.

The assurance of the welfare of individuals, therefore, is a primary function of the state, accomplished internally by the agency of munic- V ipal public law, and externally through the instrumentalities of international law and diplomacy. The establishment of the machinery to insure this object constitutes an essential function of state activity —within, protecting every member of society from injustice or oppression by every other member; without, protecting its citizens from violence and oppression by other states. Authorities differ in giving expression to this function of the state, but modern publicists agree that it finds its basis in the nature of the state and in the doctrine of Locke that "the end of government is the good of mankind." 3

Paris, 1901, p. 288. See the theories of Kant and Humboldt as discussed in Bluntschli, op. cit., 68.

1 McKechnie, op. cit., 77; Ritchie, op. cit., 87.

2 Duguit, op. cit., 290.

* McKechnie, op. cit., 74; Bluntschli, op. cit., 319 et seq. For an account of the contributions of a long line of publicists to political theory and philosophy, especially as involved in the relation of the state to the individual, and the struggle between authority and liberty, see the works of McKechnie, Bluntschli, and Duguit cited above, and Yeaman, G. H., The study of government, Boston, 1871, and LeroyBeaulieu, P., The modern state in relation to society and the individual, London,

International lawyers, unwilling to indulge in philosophical speculation as to the relation between the state and the individual, assert that the final mission of the state and the aim of international organization culminates in the guaranty of the collective security of the nation and the personal security of the individual and of his rights, and the promotion of social and individual welfare.1 Diplomatic protection, therefore, as a governmental function to achieve security and justice, results from the very nature of the state." It is entirely consistent with the principle of independence, when it is recalled that the latter, as an attribute of states, is only recognized by international law on the theory that it is the best means of accomplishing state functions. Its basis being practical, international law permits it to be set aside, when it is misapplied, by the diplomatic interposition of those states whose interests, through their citizens, have been prejudiced by the delinquency. Diplomatic protection thus conforms with the aim of international organization-the advancement and perfection of those rights which the modern development of international law, by custom and treaty, has recognized as inherent in the individual.

1 See, e. g., Martens, op. cit., § 85; Holtzendorff's Handbuch, I, § 15; and Huber, Beiträge zur Kenntnis der soziologischen Grundlagen des Völkerrechts u. Staatengesellschaft in 4 Jahrbuch des öffentlichen Rechts (1910), 56-134; Vattel, ChittyIngraham ed., Phila., 1855, Prelimin. § 22; Bk. I, ch. II, §§ 13-16; see also A. H. Snow, "The American philosophy of government", in 8 A. J. I. L. (1914), 191, 200 and Hobhouse, Leonard T., Social evolution and political theory, New York, 1911, Chap. IX; Wilson, Roland K., The province of the state, London, 1911, Chaps. I and II.

2 Pillet, A., Le droit international public, ses éléments constitutifs, domaine et objet, 1 R. G. D. I. P. (1894), 5.

CHAPTER II

THE ALIEN

§ 17. Historical Development of Legal Position of Alien

The legal position of the alien has in the progress of time advanced from that of complete outlawry, in the days of early Rome and the Germanic tribes, to that of practical assimilation with nationals, at the present time. In the Twelve Tables of Rome, the alien and enemy were classed together, the word hostis being used interchangeably to designate both. Only the Roman citizen had rights recognized in law. When Rome became a conquering and commercial nation, certain classes of foreigners were admitted into friendly relations with that government. By special treaty, or through hospitality, or the necessities of commerce, these aliens were accorded the benefits of the socalled jus gentium, or the law common to all mankind, for the jus civile was reserved exclusively for Roman citizens. The barbarians, or those with whom the Empire had no friendly relations, had no rights. at all. The Prætor Peregrinus, first appointed in 242 B. C. was the special judge of the legal relations of aliens, either among themselves or with Romans, and he applied the jus gentium.

The Germanic tribes, in the early period, were hardly more hospitable to the alien than were the Twelve Tables of the Romans. Their later wanderings, however, brought them into constant relations with foreigners, and while rights of foreigners were not recognized, the practice of hospitality ameliorated the alien's harsh position of outlawry.

1 1 Bernheim, A. C., The history of the law of aliens, New York, 1885, p. 7 et seq. For the history of the law of aliens see also the works of Frisch, Hans von, Das Fremdenrecht, Berlin, 1910, pp. 5-22; Demangeat, Charles, Histoire de la condition civile des étrangers en France dans l'ancien et dans le nouveau droit, Paris, 1844; Sapey, C. A., Les étrangers en France sous l'ancien et le nouveau droit, Paris, 1843; Weiss, A., Traité de droit international privé, 2nd ed., Paris, 1908, v. 2, chap. 1; Pierantoni, A., Trattato di diritto internazionale, Rome, 1881, v. 1. The etymology of the words used to describe aliens is discussed in Bernheim, 20-21.