1

In the feudal period, when the principles of unchallenged residence of an alien for a certain period (generally a year and a day), and voluntary subjection to the protecting patronage, first of a member of the tribe and later of the feudal lord, had become recognized institutions, the disabilities of the alien became more clearly defined. The disabilities and restrictions differed in degree in different baronies, although based on similar principles. In the restriction of personal liberty, the "jus wildfangiatus," the exactions ranged from the imposition of complete serfdom, or a prohibition to leave the domain or to marry without the lord's consent, to almost complete personal freedom, subject to payment of taxes and fines. The principle of the so-called droit d'aubaine (literally translated, "right of the foreigner") was in force throughout the feudal period. Properly speaking, this involved the right of the lord or fiscus to take the estate of the foreigner at his death, and in application consisted of the disability of the foreigner to take by succession or to become a testator, either unconditionally, or subject to the payment of certain sums to the lord.2 Political rights there were none. The principal difference between the person who was born in the fief or race and the stranger who settled there was in the immunity of the former from the droit d'aubaine. Until the time when political rights were conceded, the essential difference between nationality and domicil was slight. As has been observed, nationality, as the bond through which the citizen is attached to his state, securing through his state the recognition and the ultimate enforcement of rights abroad, did not clearly emerge as a legal relation with definite individual rights until the period of the French revolution.

From the fifteenth to the nineteenth centuries, many of the feudal disabilities of aliens were retained in principle though reduced in severity of application. It will not be feasible to enter into any detailed account of the degrees of alienage, nor of the various disabilities to which aliens were subjected.3 The most important were the droit d'aubaine and the somewhat less onerous jus detractus or droit de dé

1 Bernheim, op. cit., 35, 44.

2 Bernheim, op. cit., 37, 46; Frisch, op. cit., 22 et seq.

* See Bernheim, op. cit., 41, 49.

traction, a reduction or tax on property first applied in Germany on property which a German resident of one province acquired in and removed from another province. It applied at first not to all foreigners, but only to persons belonging to different provinces of the same nation. By the eighteenth century, it had become a widespread institution in Europe, and applied to all foreigners. The alien, moreover, was incapable of taking ab intestato, nor could he become a testator. He was also subjected to various discriminations in the matter of civil and criminal procedure.

In England, the feudal period was of briefer duration than on the Continent. The droit d'aubaine did not ripen into a legal institution, nor was the alien protected by the sovereign.1 Statutes passed from time to time removed the more onerous of the disabilities of the alien. Merchant aliens who were always favored by English law received by license a limited right to reside and trade in England, subject to payments of various kinds.2 In the course of time the privileges of alien merchants were enlarged and extended to other aliens. as well. Curiously, however, the feudal notions of real property, the ownership of which involved an oath of allegiance, which of course could not be taken by an alien, prevailed in England up to 1870, when by the act of 33 Vict. c. 14, aliens were first rendered capable of taking title in fee to real property.3

With the growth and necessities of commerce and the more frequent intercourse with aliens, combined with the enlightened views of individual rights which the French Revolution brought in its train, the more onerous of the disabilities of aliens, principally the droit d'aubaine and the droit de détraction, were gradually abolished by treaty and statute, so that at the present time, in his private relations, the legal position of the alien is practically the same as that of the

1 Bernheim, op. cit., 51 et seq.; Hansard, Geo., Treatise on the law relating to aliens and denization and naturalization, London, 1844; La Baron, F. A., Code des étrangers, London, 1849; Henriques, H. S. Q., The law of aliens and naturalization, London, 1906, 1 et seq.

* Walford, C., A review of the early laws regulating the privileges of foreign merchants in 9th Annual Report (1881) of the Asso. for the Reform and Codification of the Law of Nations, 198-224.

* Bernheim, op. cit., 124 et seq.; Henriques, op. cit., 3-6.

national. Minor disabilities of various kinds have in different places survived, as, for example, the prohibitions to hold real property, or to convey an indefeasible title by will, which still exist in various states of the United States; certain restrictions as to the admission of undesirable classes due to social and economic reasons; and various procedural discriminations intended as a protection to the national, as the security for costs (cautio judicatum solvi) required of the alien plaintiff. These disabilities differ in detail from country to country. They will be considered presently in the discussion of the position of the alien in international law.

§ 18. Relation of Law of Aliens to Different Branches of Law.

The law of aliens enters the domain both of public and private international law. The latter records the rights recognized and denied by positive municipal law; the former controls and criticizes the municipal grant or refusal of these rights. The responsibility of the state toward individuals, both nationals and aliens, is in first instance a matter of municipal law. To establish the extent of this responsibility, or the state's failure in a given case to fulfill its international duty, the legal position of the alien in municipal law must first be determined.

§ 19. Position of Alien in Municipal Law.

The alien in law occupies a position between two extremes-the one a barbaric exclusion of all aliens, the other, a complete equality of nationals and aliens. The first extreme, complete exclusion, is no longer compatible with the existence of the state as a member of the society of nations. Continental writers base the custom of international intercourse on the so-called right of each state to enter into commercial intercourse with the other states of the international community. Anglo-American writers, on the other hand, find no such right to exist apart from treaty.2 A few continental publicists admit that the duty

1

Beale, Jos. H., The jurisdiction of courts over foreigners in 26 Harvard Law Rev. (Jan., 1913), 193, 196.

2 Westlake, I (2nd ed.), 217; Oppenheim, I (2nd ed.), 199; Woolsey, Introduction (1872), § 25.

of the state to enter into commercial relations is not absolute, and agree that a state may impose prohibitive customs tariffs or prevent export by a burdensome tax, e. g., the prohibitive tax on occasion assessed on the export of Brazilian coffee. As a practical matter, it is within the sovereign power of a state to isolate itself (as was done within the last century by China, Japan, Paraguay and Argentine), though this isolation may be inconsistent with membership in the family of nations.1 Practically all of the civilized states have now within definite limits granted a right of residence and travel to unobjectionable foreigners and accorded them a wide range of incidental rights. The universality of the right of sojourn granted to foreigners affords some justification for the continental theory that there is a right of international intercourse which these treaties merely confirm, define and regulate. On the other hand, the recognized inherent power of a state to exclude foreigners, which, however, is now exercised only against certain classes of undesirable aliens, lends direct support of the Anglo-American view that apart from treaty and concession there is no right of international intercourse notwithstanding the fact that without such intercourse international existence would be impossible.2 At the present day the right of admission and sojourn on the part of unobjectionable aliens is almost universally recognized. Qualifications of the right, which are to be found in the possibilities of exclusion, expulsion and the fixing of conditions of sojourn by the state, must in practice be based upon reasonable grounds.

The legal position of aliens is fixed by municipal law, but international law and the obligations of the state toward the other states of the international community, have imposed certain restrictions upon the freedom of the legislator and territorial sovereign.3 Another effective agency of control-aside from extraterritoriality-has been the fact that the measure of a nation's right to require a certain standard of treatment for its subjects abroad constitutes its own standard for the treatment of aliens. The present inquiry, therefore, is directed toward

1 Despagnet, F., Cours de droit int. public, 4th ed., 236, and authorities there cited * Charles Earl in Proceedings of the Amer. Society of Int. Law, 1911, p. 82. 'Despagnet, F., op. cit., § 334; Rolin, A., Principes du droit int. privé, I, Introduc

establishing the minimum of rights which the state must accord the alien and the maximum power of control over him-a minimum below which it cannot descend and a practical maximum which it cannot transcend without violating the international standard of right of the alien and duty of the state, and incurring responsibility to his national government.

$20. Sources of the Law of Aliens.

Before undertaking this examination it will first be desirable to ascertain the sources of the law of aliens. Treaties are the first sourceusually called in Europe treaties of establishment or commercial treaties, and in the United States treaties of commerce and navigation. The questions dealt with in these treaties, which form part of the municipal law of states, differ with the degree of culture and civilization of the contracting parties. The higher a state in culture, the more special the topics mentioned in the treaties, for the general principles governing the treatment of aliens, e. g., protection of life, liberty and property, are recognized by all civilized states. These principles are either embodied in the constitutions or are considered so fundamental that no express declaration or guaranty is required. In matters of private law the treaties contain but few provisions. The rule is generally recognized that the alien and the national are practically assimilated. In treaties between states of a different standard of culture, or fundamentally different in morals or religion, there is usually a detailed expression of every right of the alien, very little being taken for granted. Thus the treaties with the Balkan states are more detailed in their specification of treatment than those among the larger European states.1

The second source of law governing aliens is municipal legislation, which may be divided into two categories: first, general legislation, which affects national and alien alike, or such legislation from the force of which the alien is not expressly excluded, and secondly, special statutes concerning aliens, which are found in a great many countries and particularly in the countries of Latin America. These statutes have no application to the nationals of the state. Among these special statutes are the laws governing exclusion, expulsion and extradition,

1 Frisch, op. cit., 92 et seq.