citizenship or some of its incidental rights, e. g., diplomatic protection.1

§ 35. Military Service.

The denial of political rights involves an exemption from political duties. Being without the privileges, the alien is correspondingly exempt from the responsibilities attaching to membership in the political community. Thus, a long series of treaties now in force exempts the alien from compulsory military service and from forced loans or military requisitions, and in some cases this exemption extends to service in the national guard or militia.2 The treaties of the United States with some countries exempt only consular officers from compulsory military service.

Two treaties, typical of those concluded by the United States may be quoted. The treaty of July 27, 1853, with the Argentine Republic (art. 10) reads as follows:

"The citizens of the United States residing in the Argentine Confederation, and the citizens of the Argentine Confederation residing in the United States, shall be exempted from all compulsory military service whatsoever, whether by sea or by land, and from all forced loans, requisitions or military exactions." 3

The treaty with Italy (art. 3) reads:

"They [citizens] shall . . . be exempt from compulsory military service, either on land or sea, in the regular forces, or in the national guard, or in the militia." 4

Whether, in the absence of treaty, domiciled aliens enjoy such an exemption is somewhat doubtful. The Norwegian military law of 1857 required military service from aliens who had acquired a "fast domicilium." A British subject, having demanded the protection of Great Britain against this law was directed to go to the courts,

2 Hall, op. cit., 205; Despagnet, op. cit., § 343. Treaties of the U. S. providing for such exemptions are cited by H. T. Kingsbury in Proc. Amer. Soc. of Int. Law, 1911, 218-222.

3 Malloy, Treaties, etc., 1910, I, 23. See also arts. 8 and 9 of the treaty of August 1, 1911 between Great Britain and Bolivia, Treaty series 1912, No. 223.

4 Malloy, Treaties, etc., 1910, I, 970.

for in the absence of treaty Great Britain could ask for exemption only on principles of equity, on the ground that Norwegians were not subject to military service in England.1 The legality of the action of France in blockading the La Plata in 1838 and of France and England in blockading Buenos Ayres in 1846 because the Argentine Republic had compelled subjects of these countries domiciled over three years in Argentine to do military service, is questionable.2 The United States and Great Britain have conceded extensive rights to foreign governments in enlisting their resident citizens or subjects for all purposes of local defense or police duty. Thus Secretary of State Seward said:

3

"This government is not disposed to draw in question the right of a nation in a case of extreme necessity to enroll in the military forces all persons within its territories, whether citizens or domiciled foreigners." Secretary of State Fish in 1869 assumed the position that

"this Government, though waiving the exercise of the right to require military service from all residents, has never surrendered that right and can not object if other governments insist upon it."

4

The law officers of the Crown rendered an opinion in 1894 to the effect that, by the general rule, an exemption from compulsory military service did not exist, but that treaties had largely established it."

These admissions, however, cannot be construed as authorizing compulsory service in the regular army of a nation (i. e., what might be called political service), but only enrollment for police purposes and

1 Mr. Crowe to Mr. Foreman, Report of the Royal Commissioners on naturalization and allegiance, 1869, Appendix, p. 71.

2

4

Fiore, Nouveau droit int. pub., § 647.

Mr. Seward, Sec'y of State, to Mr. White, July 10, 1868, Moore's Dig. IV, 57.

* Mr. Fish, Sec'y of State, to Mr. Redmond, Apr. 3, 1869, Moore's Dig. IV, 57. 'Mr. Bayard to Mr. Gresham, Sec'y of State, July 19, 1894, For. Rel., 1894, p. 253. The admission by Great Britain, during the Civil War, that those British subjects who had declared their intention of becoming American citizens and had exercised the elective franchise, were properly subject to military duty, if they remained resident, cannot be construed as a consent to the military service of British subjects, but rather as an acknowledgment that by exercising political rights and becoming at least inchoate American citizens, they had subjected themselves to the political obligation of military service.

local protection, especially in times of sudden emergency. Secretary of State Bayard expressed a reasonable view when he declared:

"It is well settled by international law that foreigners temporarily resident in a country cannot be compelled to enter into its permanent military service. It is true that in times of social disturbance or of invasion their services in police or home guards may be exacted, and that they may be required to take up arms to help in the defense of their place of residence against the invasion of savages, pirates, etc., as a means of warding off some great public calamity by which all would suffer indiscriminately. The test in each case, as to whether a foreigner can properly be enrolled against his will, is that of necessity. Unless social order and immunity from attack by uncivilized tribes cannot be secured except through the enrollment of such a force, a nation has no right to call upon foreigners for assistance against their will." 1

So Lord Lyons during the Civil War was instructed by the British government that

"there is no rule or principle of international law which prohibits the government of any country from requiring aliens resident within its territories, to serve in the militia or police of the country, or to contribute to the support of such establishment." 2

As a general rule, nevertheless, except in cases of dual nationality or similar possibility of claim, a demand by the home government of an alien compelled to do military service results in his release from service, on grounds of comity, if not of law. In one case at least, the United States was unwilling to submit the question of such compulsory service of an American citizen in Mexico, to the Mexican courts, but demanded an immediate release.3 The French interventions in the Argentine, above mentioned, whether just or unjust, have often been cited as international precedents on the subject. On a 1 Mr. Bayard, Sec'y of State, to Mr. Bell, min. to the Netherlands, Feb. 3, 1888, For. Rel., 1888, II, 1325, quoted also in Moore's Dig. IV, 62; Mr. Fish, Sec'y of State, to Mr. Williamson, June 13, 1876, Moore's Dig. IV, 59. Mr. Fish sanctioned the compulsory service of a resident alien to defend a town during a siege. Mr. Fish to Mr. Williamson, July 24, 1874, Moore's Dig. IV, 58. Mr. Wilson, Act'g Sec'y of State, to Chargé Hibben, May 19, 1909, For. Rel., 1909, p. 222.

2 Quoted in instruction of Mr. Davis, Ass't. Sec'y of State, to Mr. Faxon, Feb. 17, 1870, Moore's Dig. IV, 57. See also Hall, op. cit., 206; Fiore, op. cit., § 649; Bluntschli, Droit int. codifié, § 391.

3 Mr. Evarts, Sec'y of State, to Mr. Morgan, Dec. 8, 1880, For. Rel., 1881, p. 751, quoted also in Moore's Dig. IV, 60.

later occasion, Belgium, heeding the protests of certain Powers, relinquished the enforcement of its act of 1907 which imposed service in the civic guard upon aliens.1

At the second Hague peace conference animated discussions took place as to the right of a belligerent to require military service of neutral residents. While some favored an absolute prohibition, the validity of the municipal legislation of some states, which on occasion requires such service, was recognized. No resolutions on the subject were adopted, but the Conference expressed the "voeu" or solemn wish "that the High Contracting Powers shall seek to establish, by agreements between them, uniform contractual provisions determining the relations, in respect of military obligations, of each state with the foreigners established in its territory." 2

While many states by municipal law permit the voluntary service of aliens, which in itself raises no international question, some states, for example, France and Germany, expressly exempt foreigners from military service.3 An exceptional and unusual arrangement is the stipulation of the treaty of January 17, 1862 between Spain and France (art. 5) by which each country agrees to incorporate into its army the nationals of the other, resident in its territory, who have not completed their military obligations in their own country.4

In the absence of treaty, there appears to be no legal reason why the exemption from military service cannot be commutated or compensated by a tax. Switzerland, by its law of June 28, 1878, imposed such a tax on foreigners established in Switzerland, unless they are exempted by treaties or belong to a state in which Swiss citizens are liable neither to military service nor to a commutation in money. The treaty of November 25, 1850, did not exempt United States citi

125 Clunet (1898), 204 and 814; Bonfils, op. cit., § 445, footnote. Numerous treaties confirm this exemption and Despagnet even believes that it exists apart from treaty (op. cit., § 343).

For a brief account of the discussions see Scott's Hague peace conferences of 1899 and 1907, Baltimore, 1909, pp. 550-555, and v. III of the official report “La deuxième conférence internationale de la paix," 179 et seq., and v. I, 125 et seq. See also Westlake, op. cit. II, 285.

Citations in 8 R. D. I. privé (1912), 841.

* 14 Clunet (1887), 326; 12 ibid. (1885), 92.

zens from this tax, although almost all the countries of Europe have by treaty secured exemption from it for their subjects. After some diplomatic negotiation, the Swiss Federal Council adopted a resolution that the tax was only to be levied upon Swiss citizens who were residing in or had returned from the United States (Switzerland does not recognize the unpermitted foreign naturalization of her citizens) and not upon citizens of the United States.1

The treaty with Switzerland, by which citizens of the United States are exempted from personal service only, brings up the distinctions between personal military service and the use of the alien's property for military purposes. Unless treaty provisions expressly exempt the property of the alien from all use for military purposes, there is no valid reason why his property should not furnish the same requisitions and be subject to the same servitudes as that of the native inhabitant. In the countries of Europe, it is usual to require food and fodder from inhabitants under payment of compensation, and to demand from all landowners shelter and quarter for troops and horses during manoeuvers, without compensation, as a public servitude. In the absence of a treaty or unjust discrimination against a domiciled alien as such, it does not seem that foreign governments in such cases have on principle any cause for complaint.2

However willing Great Britain and the United States have been, at times, to concede the justice of the claim of foreign countries to require a limited military service of domiciled aliens, they have vigorously insisted on the right of their subjects and citizens to leave the country freely as an alternative to such service. Thus, Secretary of State Madison in 1803, declared:

"The most inviolable and most obvious right of an alien resident is that of withdrawing himself from a limited and transitory allegiance having no other foundation than his voluntary residence itself." 3

The claim of the United States during the Civil War to require mili

1 For. Rel., 1894, pp. 678-682. See paraphrase in Moore's Dig. IV, 65–66.

2 Les étrangers en France et les requisitions militaires, 8 R. D. I. privé (1912), 840-845.

3 Mr. Madison, Sec'y of State, to Mr. Pichon, French chargé, May 20, 1803, Moore's Dig. IV,

52.