tary service of resident aliens who had declared their intention of becoming citizens and had exercised the voting privilege was not contested after the option was extended of leaving the country within sixty-five days. 1 Many states by statute prohibit their subjects from taking military service abroad, under pain of loss of their nationality or other penalties. In other states, such service is prohibited only under the neutrality acts, according to which subjects are prohibited to take service in any foreign state against a state with which their own is at peace.2 An important chapter in the diplomatic correspondence of the United States is concerned with the attempts to secure release from the performance of military duty on the part of naturalized American citizens returning to the country of their original allegiance which either still claims the emigrant as its subject or else holds him for evasion of military duty by emigration and naturalization abroad. This matter will receive full consideration hereafter.3 It has already been observed that aliens are deprived of practically all other rights and relieved of duties having a political or public character and involving an oath of allegiance to the state, such as the competency to act as judges, advocates, jurymen, and in similar functions, although Secretary of State Fish once stated that he saw no reason why domiciled foreigners should not be required to discharge such civic duties as service upon juries, or in a municipal fire department, and other duties of like character.4 §36. Meaning of the Term. CIVIL RIGHTS The term "civil rights" is one of most uncertain definition. A 1 Act of Congress, March 3, 1863. See Halleck, International law, 1908 ed., I, 613, footnote. 2 See, for example, British Foreign Enlistment Act, 33 & 34 Vict. c. 90; U. S. Rev. Stat., § 5281 et seq. See also Halleck, op. cit., 612. Infra, § 235 et seq. Mr. Fish, Sec'y of State, to Mr. Wing, April 6, 1871, Moore's Dig. IV, 58. See also Rolin, Droit int. privé, 142. In a recent treaty between Great Britain and Bolivia it is expressly provided that municipal functions may be discharged by the alien without loss of his nationality. Art. 8 of treaty of August 1, 1911, Treaty series 1912, No. 223. 2 number of continental publicists distinguish between those civil rights which belong to all men regardless of nationality (derived from natural law) or universally acknowledged as the common law of civilized peoples (the jus gentium of the Romans), and those which exist only by express provision of the legislature.1 This distinction is now admitted to be not only theoretical and difficult of application, but fallacious, and to the Anglo-American mind appears useless. Other writers consider as civil rights those only which have been granted by the legislature, such other rights as are enjoyed by aliens being regarded as natural and not civil rights. Again, the term has been interpreted as meaning private rights or those sanctioned by private law, regulating the legal relations between individual and individual, as distinguished from public rights or those governed by public law, regulating the reciprocal relations between individuals and the state or of states among themselves. In its broadest sense the term includes all rights not political. The distinction between civil and political rights being unclear, many authors have adopted a classification of civil rights into public and private, meaning by the former term those non-political rights and liberties which involve a more direct relation between the individual and the state and are protected by public law (such as the right of individual liberty and security, liberty of conscience and of worship, etc.), and by the latter term the rights of individuals among themselves, which are protected by the private law. of the state. For purposes of discussion, this is not an inconvenient arrangement. 1 This distinction is made mainly by the French publicists who rely on the authority of Pothier and Domat. See Pradier-Fodéré, op. cit., § 1636. On the confusion in meaning of the term "civil rights," see Asser-Rivier, Eléments de dr. int. privé, 38 and Rolin, op. cit., 139–140. See also Bar, op. cit., 212. We have emphasized the continental position of aliens rather than the Anglo-American, because our interest is principally in the position of Americans abroad, a question of more frequent practical importance in countries of the civil law than in those of the common law. An extended discussion of the principles governing alien legislation in continental countries, with some account of the legislation in each country, will be found in Weiss, Droit international privé (2nd ed.), II, 574 et seq. 2 Laurent, Droit civil international, Bruxelles, 1880, II, 17, 21. See also PradierFodéré, op. cit., § 1637. 3 Annuaire of the Institute of Int. Law, V, 41-43; 56-57. §37. Types of Legislative Systems. Legislation concerning aliens and the enjoyment of rights by them may be divided into three categories: first, that which is characterized by no definite principle and retains certain grave incapacities, e. g., the denial of the right to own real estate, which still exists in the legislation of some nineteen states of the United States and in various European countries, and other arbitrary disabilities. In this class belongs the legislation of Great Britain and the United States generally, and of Denmark, Sweden, Roumania and Russia. The second type of legislation is that based on the principle of reciprocity. This is divided into two classes-diplomatic reciprocity which is the dominating principle of the French law and has been followed by Belgium, Luxemburg (arts. 11 and 13 of these codes) and Greece (arts. 13 and 16), and legislative reciprocity, which is the principle adopted by Germany, Austria and Servia. Article 11 of the French Civil Code provides that "aliens shall enjoy in France the same civil rights which are or shall be accorded. to Frenchmen by the treaties of the nation to which that alien belongs." Hence the name diplomatic reciprocity. The countries adopting this principle expressly recognize two classes of aliens, the ordinary alien, to whom the provisions of the above article apply, and privileged aliens, or those admitted to domicil, who enjoy the same civil rights as nationals. This admission to domicil is a preliminary step to naturalization comparable with our declaration of intention. It is merely a provisional grant of rights which would be subsequently enjoyed by the individual as a citizen, and is valid only so long as actual domicil in the country continues. The question has been raised whether the alien in France can enjoy rights which his national law denies him. Pillet 1 concludes that he cannot, unless (1) the act is completed in and has its effects solely in France; or (2) the act is based on public policy. The principle of legislative reciprocity accords aliens those rights which their country by legislation grants to foreigners generally or to the subjects of the country in question. Austria formerly adopted two categories of legislative reciprocity, called material or 1 Pillet, op. cit., 223. relative if granted by the other country to Austrians, and formal or absolute, if granted to foreigners and nationals alike.1 Countries adopting the principle of legislative reciprocity usually grant foreigners the same private rights as their subjects, reserving however the power to apply retorsion to the nationals of countries where aliens generally or their subjects alone are handicapped by the particular disability in question. The burden of proof is on the person alleging the disability, and not on the alien, in the first instance, to prove its absence in his national municipal legislation. The United States in the grant of various rights to aliens adopts the test of reciprocity. This test is contained in its copyright laws, in the right of aliens to sue the United States in the Court of Claims, and in other matters. In modern legislation the principle of reciprocity was first applied by France as a restriction upon the liberal rights which had been granted to foreigners by the legislation of the revolutionary period. Other countries having failed to grant Frenchmen such liberal rights, the civil code conditioned its grant of civil rights to aliens upon the reciprocal concession of such rights to Frenchmen, guaranteed by treaty, in other states. The principle has had a profound influence upon the development of the law of aliens. It is condemned severely by numerous publicists as a survival of the system of reprisals.2 The third system of legislation governing aliens, and the one which has received most modern support, is that of assimilation to nationals, or a grant of equal rights in private law to nationals and aliens. This system was first adopted by the Italian civil code of 1865 (art. 3) and has been followed by Spain, Netherlands, Switzerland, Portugal, Norway, Japan and practically all the countries of Latin America. It has received the approval of the Institute of International Law. It provides that the alien shall enjoy the same civil rights as the national, but it does not exclude the possibility of exceptions, e. g., in the ownership of real property, or of national vessels. So the Institute of International Law added a proviso, "subject to the exceptions formally established by actual legislation." 3 1 Vesque von Püttlingen, Die gesetzliche Behandlung der Ausländer in Oesterreich, Vienna, 1842, § 42. Norsa in 6 R. D. I. (1874), 260. 2 Bar, op. cit., 214-216 and authorities there cited. 3 Annuaire, V, 56. It will be seen, therefore, that classes one and three tend to approach each other. This may also be said of classes two and three, inasmuch as the extension of rights to aliens by treaty, legislation and judicial construction has greatly restricted the number and extent of the disabilities which the principle of reciprocity imposed upon the alien. As a general rule it may be said that aliens now enjoy all civil rights (rights other than political) which are not expressly denied to them.1 $38. Public Rights. It would be difficult to draw up a list of the civil rights which the alien enjoys. Indeed, no complete enumeration of legal rights has been attempted and only those have been defined which have been at times violated. Nevertheless, it is true that both by customary and statutory law numerous rights have been recognized as belonging to the alien, although their remedial enforcement is unnecessary until a threatened or actual invasion occurs. The attempt may therefore be made. to review briefly the more general of the civil rights usually granted to the alien, and for the purpose of discussion we may begin with those rights called on the continent of Europe "public rights." Vague as is the definition of public rights and many as are the characteristics which it has in common with private rights, the term has in general been applied to those rights or faculties which are enjoyed by the individual in relation to society as a whole, and which are under the direct protection of public law. They embrace all the rights and liberties incidental to the rights of life, liberty and property and are discussed by continental writers under such heads as individual liberty, security of person and property, the liberty of circulation and emigration, liberty of conscience and worship, freedom of the press, freedom of association and assembly, the right of petition, liberty to carry on commerce and trade, the procreation of the race, etc. Some writers, like Weiss, consider these "public rights" as the rights of man. This has an unwelcome natural law flavor, and may be disregarded. Inasmuch as their enjoyment by nationals may be restricted and 1 Laurent, op. cit., III, § 321. * Robinson, W. C., Elements of American jurisprudence, Boston, 1900, §§ 429, 430. |