which usually prescribe limits to and define the exercise of the right which the state by general international law possesses.1

MINIMUM OF RIGHTS DUE TO ALIENS

§ 21. Method of Establishing Minimum.

The establishment of the limit of rights which the state must grant the alien is the result of the operation of custom and treaty, and is supported by the right of protection of the alien's national state. This limit has been fixed along certain broad lines by treaties and international practice. It has secured to the alien a certain minimum of rights necessary to the enjoyment of life, liberty and property, and has so controlled the arbitrary action of the state. Thus, for example, it prevents the territorial courts from declining to take jurisdiction of litigation between aliens, or the confiscation of the property of an alien who by war has become an alien enemy, or the forbidding of the alien's right of succession to property.2 Nor can a state deprive the alien of the right to appeal to the diplomatic protection of his own government if the state violates this minimum of rights.

International law is concerned not with the specific provisions of the municipal legislation of states in the matter of aliens, but with the establishment of a somewhat indefinite standard of treatment which the state cannot violate without incurring international responsibility. The state's liberty of action, therefore, is limited by the right of other states to be assured that a certain minimum in this respect will not be overstepped. A stipulation in treaties or municipal statutes to the effect that the state is not responsible to alíens to any greater extent than to nationals has never prevented international claims where the minimum has been considered as violated, nor can the state's international obligations be avoided or reduced by provisions of municipal law, or by the fact that it violates the rights of its own citizens.* 1 Mr. Brown's view as to the relation between international and municipal law in the rules governing aliens, and the prominence given to treaties as a limitation upon territorial jurisdiction is opposed to modern tendencies and theories of municipal law. See chap. V of Brown, Philip M., Foreigners in Turkey, Princeton, 1914. Pillet, A., Principes de droit int. privé, Paris, 1903, p. 194.

* Pillet, 169 et seq.

'See Morse, Citizenship, § 79, presenting a forceful account (from McCarthy) of Palmerston's views. Boeck in 20 R. G. D. I. P. (1913), 366, 371.

The obligation of "special protection", often guaranteed in treaties, merely places aliens upon an equality with citizens, and is not an insurance against all injury. In a well-reasoned opinion on a claim arising out of injuries sustained by a Mexican citizen during the Civil War in the United States, Commissioner Wadsworth of the 1868 commission stated that "special protection" has been given when a government has done all in its power to put down a rebellion and enforce the law. Hall aptly remarks that a government cannot be required to provide itself with the most efficient means possible for the purpose of protecting aliens, nor is it bound to alter its form of administration to give the "highest possible" protection to the interests of foreign states. The guarantee of "equal protection" sometimes found in treaties does not confer the same substantive rights as are granted to nationals, but only assures full remedial processes for the protection of such rights as are granted to the alien.

$22. Recognition of Legal Personality.

Any attempt to define this minimum is fraught with some danger, inasmuch as it varies from state to state. In modern practice, it may be said that the first obligation of the state is the recognition of the alien's legal personality and with it, the national allegiance which binds him to his own country. In the duties which the state may impose on the alien it is limited by the obligations resulting from this bond of nationality. The state cannot compel the alien to renounce his nationality or the rights flowing from it. On the other hand, it has been noted that in the matter of status and capacity, the state (among the countries of Europe) applies his national law as his personal statute. The modern tendency is to bring about an approximation of the alien to the national in the enjoyment of civil rights. The term "civil rights", while somewhat vague in meaning, may in its broadest interpretation be regarded as including all rights not political, and embraces practically all the rights now accorded to aliens by the legislation of the more civilized states.

1 Prats (Mex.) v. U. S., July 4, 1868, Moore's Arb. 2888, 2889. See also Baldwin (U. S.) v. Mexico, Apr. 11, 1839, ibid. 2859–2866.

2 Hall, 4th ed., 230.

§ 23. Status of Foreign Corporations.

There is more uncertainty as to the extent of the obligation to recognize the legal capacity of foreign corporations. Two systems have been in vogue, the one restrictive, which gives a foreign corporation few if any rights and scarcely even recognizes its civil personality, the other liberal, which grants a foreign corporation, within certain specified limitations, the same rights as a natural person, its civil personality being fully recognized.

The restrictive system, supported vigorously by Laurent1 and his school, is founded upon the Roman "fiction" theory of the nature of juridical personality. The corporation is considered as having an existence only in the territory which has given it legal birth, and recognition of its personality abroad is deemed to require an express act of the local sovereign power, a decree, a statute or a treaty. The fallacies of this system, which with the necessities of modern international commercial relations is rapidly being discarded, consist in overemphasis of the fiction theory of the corporation, and a failure to distinguish between civil and functional capacity.

A corporation, certainly a commercial corporation, is composed of human beings and has a real personality, which is a reality in every state. Its civil capacity, consisting of its right to sue and be sued, to enter into contracts and own property, is essential to its existence, and may be recognized quite apart from any permission to transact business or fulfill its functions. With these facts in mind, the liberal system founds its doctrine upon an assimilation between foreign corporations and natural persons. The corporation's civil capacity and status are governed by its personal law and only its functional capacity is under the control and regulation of the territorial state. This control is limited to those relations of the corporation which concern the citizens of the state, its public policy, or the interests of third parties. Thus, all questions of internal management are matters of personal law and are free from interference by the territorial state. The func

1 Laurent, Droit civil international, IV, 119 et seq.; Taney, Ch. J., in The Bank of Augusta v. Earle, 13 Peters, 519 is sometimes (correctly, it is believed) cited in support of this view. See also the agreement of June 25, 1904 between the United States and Russia recognizing the civil capacity of corporations, Malloy's Treaties, 1910, II, 1534.

tional capacity of a corporation is limited by its charter and the law of the state where it transacts business.

At the present day, practically all states recognize the civil capacity of foreign corporations as they do that of natural persons. With the growth of commerce, local limitations on functional capacity are gradually being removed, either by statute or treaty, those that still exist being dictated by interests of public policy. Foreign corporations, like aliens generally, are subject to local regulations of registration and other provisions of penal and police laws.1

§ 24. Other Rights of the Alien.

Assuming that the alien has not fallen within the excluded classes and that by treaty or by legislation his right to admission is recognized, the state, it would appear, must grant him in addition rights of sojourn and trade. Some continental writers reduce these into, first, the right of international communication; and second, the right of circulation and residence. The right of communication implies the use of the mails, transportation facilities, secrecy of correspondence, etc. The right of circulation and residence is subject to the requirement of passports and the possibility of expulsion, should the alien's presence become a menace to the public interests of the state. From the rights of residence and circulation spring the right to security of person and property, always subject, however, to the penal laws and local ordinances.

"Civil rights" being a term of uncertain definition, numerous publicists have adopted a category of rights, which they call public rights, the

1 This important subject, the status of foreign corporations, cannot here be treated exhaustively. Full discussions will be found in the excellent monograph of Edward H. Young, Foreign companies and other corporations, Cambridge, 1912, and particularly in his article: Status of foreign corporations and the legislature, 23 Law Quarterly Review (1907), 151–164, 290–303. See also Pillet, A., Des personnes morales en droit international privé, Paris, 1914; Haladjian, B., Des personnes morales étrangères, Paris, 1901; and Mamelok, A., Die juristische Person im internationalen Privatrecht, Zurich, 1900, and the works cited in the general and national bibliographies in the Appendix, infra, especially the works by Diena, Diritto commerciale internazionale, I, p. 229 et seq., Bar, op. cit., 227 et seq.; Dicey, op. cit., 485, and for American cases, 487-489; Pillet, op. cit., 181 et seq.; Moore's Dig., IV, 19 and Annuaire of the Institute of Int. Law, v. XI (1891 session), 171, and for public and quasi-public corporations, v. XVI (1897 session), 279 et seq.

2 Pillet, op. cit., 186; see also Baty, T., International law, London, 1909, 41.

enjoyment of which must be granted to every alien. A list of these rights is difficult to draw. They include personal and religious liberty and inviolability of domicil, liberty of the press, and other rights. In particular, the alien has the right to equal protection of the laws, which involves access to the courts and the use of the executive arm of the government in the enforcement of the rights granted.

MAXIMUM POWER OF STATE OVER ALIENS

§ 24a. Matters of Public Law.

Just as there is a minimum limit of rights and concessions which the state must grant to aliens, so there is a maximum limit of control by the state which it cannot exceed without violating the rights of other states. The obligations due by the alien to his national state and the rights incident to the bond of nationality constitute the raison d'être of this superior limit of the action of the state with respect to aliens. In greater part it operates as a check upon the state of residence in the grant of political rights and the exaction of political duties. Thus, the alien as a general rule cannot become a voter and is ineligible to public office. Similarly, he is unable to practice those professions or occupations which involve the taking of an oath of allegiance; so in many countries, he cannot become a judge, an attorney at law, a juryman, or witness to certain transactions. The bond of nationality in other respects inhibits the freedom of action of the state over the alien. Thus, it cannot confer citizenship upon him against his will, or without his manifesting an intention to change nationality. States have by agreement and concession fixed among themselves the conditions under which they will recognize the denationalization of a citizen and his naturalization in another state. The attempts of Venezuela in 1855 and Brazil in 1889 to force citizenship on resident aliens met with vigorous protest.1 So the state likewise cannot require military service from the alien, nor subject him to the extraordinary taxes and military burdens which citizens must bear. These exemptions are usually provided for by treaty and will be more fully discussed presently.

1 17 Clunet (1890), 766; Thomas in 4 R. G. D. I. P. (1897), 641. See, however, W. W. Willoughby in 1 A. J. I. L. (1907), 924. See also infra, § 232.