As applied to native citizens, protection is still extended notwithstanding foreign domicil, though, as will be seen hereafter, that is taken into account in determining both the title to and the extent. of protection. One of the justifications for such protection in the case of citizens domiciled abroad is the fact that having no political share in the government of their domicil, they are denied that expression of disapproval and privilege of bringing about a change of administration which native citizens enjoy, and that ultimate foreign protection is the only sanction that they have for asserted rights. A freer extension of political rights to domiciled aliens without an attempt to impose local citizenship upon them would remove one important element of justification for foreign intervention in Latin America.

§ 41. Subjection to Territorial Law.

In return for the protection of person and property which by municipal law and treaty the country of residence assures to the alien, he owes obedience to the local law or what has been called "temporary allegiance" to the state.1 This rule applies to the persons and property of aliens entering the territory, and from it only certain privileged classes of aliens are exempt. These include foreign sovereigns and diplomatic officers, foreign public ships, and in the case of countries in which extraterritorial privileges are exercised, aliens governed by the so-called capitulations or special treaties. By treaty, states usually provide that their consuls shall have a limited jurisdiction over their merchant vessels in matters not affecting the peace of the port.2 An involuntary entrance of a vessel, under duress or by stress of weather, has been held not to be such a submission to local law as would properly incur the imposition of local penalties. The plenitude of territorial jurisdiction and the submission of aliens to local

3

1 Sec'y of State Webster in Thrasher's case, Webster's Works, VI, 524; Carlisle v. U. S., 16 Wall. 147; Wharton's Dig. II, § 203; Moore's Dig. IV, 9-17. See also Pradier-Fodéré, op. cit. I, § 403; III, § 1365; Lomonaco, op. cit., 217; Despagnet, Dr. int. public, § 342; Cockburn, Nationality, 139; Cushing in 7 Op. Atty. Gen. 229, 235.

2 Moore's Dig. II, 272 et seq.

3 Cases referred to in Moore's Dig. II, 339 et seq., and The Alliance (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 29, 32.

law will be considered under two of its most important aspects, taxation and criminal jurisdiction.

1

The power to impose taxes is an attribute of sovereignty, and where the person or the property in question is a proper subject of taxation the species of tax and its amount is left to the government exercising the power. So long as the tax is uniform in operation and may fairly be considered a tax and not a confiscation or unfair imposition, no successful representation can be made to a foreign government on behalf of the aliens affected. Complaints of excessive taxation are properly questions for submission to local courts. Unjust or illegal exactions cannot, however, be enforced under the disguise of taxation. The territoriality of taxation has been adopted as a practically universal principle, the tax affecting property or person in the territory or transactions there undertaken. The alien is properly subject to the ordinary industrial, excise, internal revenue and license taxes and duties and to property and income taxes.3 The transient alien, however, is internationally exempt from personal taxes.1

In the absence of treaty, foreigners may be more heavily taxed than nationals, but at the present day, if not by statute then by treaty, the alien has generally been secured against any discrimination in taxation as against the native inhabitant.5 The alien is often required

1 Mr. Fish, Sec'y of State, to Mr. Davis, min. to Germany, Nov. 21, 1874, Moore's Dig. IV, 20; Mr. Bayard, Sec'y of State, to Mr. Cox, min. to Turkey, Nov. 11, 1885, For. Rel., 1885, 878; Sec'y of State Hay to Mr. Harris, amb. to Austria (case of H. M. Braem), For. Rel., 1899, 48, 50. See other state papers in Moore's Dig. IV, 20 et seq. and II, 55 et seq.

Mr. Fish, Sec'y of State, to Mr. Mantilla, Jan. 11, 1876, Moore's Dig. IV, 21. 'Heffter (Geffcken-Bergson) op. cit., § 62, pp. 142–145. Des bases légitimes des impôts en droit international by E. Lehr, 35 R. D. I. (1903), 547–555.

The imposition of a head tax on immigrants or a tax on sojourn, which some countries still exact, is not in derogation of this principle. Heffter, op. cit., 144; Mr. Porter to Mr. Emmet, min. to Turkey, June 8, 1885, For. Rel., 1885, 848. The resident alien, even though not domiciled, is subject to personal taxes in France, and probably in other countries. Decision of the Conseil d'Etat, Despagnet, Dr. int. privé, 131.

'Certain kinds of foreign business concerns, particularly life insurance companies, have occasionally been discriminated against in taxation and other ways, even in the United States. In a recent case, the federal government declined to interfere with state legislation in Iowa, Missouri and Nebraska taxing foreign insurance companies more heavily than national companies-this notwithstanding treaties by

to pay special taxes, for sojourn, for license to do business or for other reasons.1 If the taxes are reasonable and apply uniformly to all aliens, foreign governments recognize the legality of the practice. It may be justified as compensation for an escape from certain political burdens. A discrimination against the nationals of one or more countries alone would be an unfriendly act, and give rise to diplomatic or more forceful measures.

The matter of double taxation, while largely adjusted by statute or treaty, occasionally presents interesting problems. Thus, France taxes stocks and bonds in France, regardless of who owns them, whereas Switzerland taxes the income of residents from whatever source derived. Cases of double taxation are becoming less frequent, as municipal legislation recognizes the injustice of the practice.2 If the tax is exorbitant, so that it necessarily will result in driving aliens out of business, foreign governments will protest. A successful protest was rasied against the proposed enforcement of a Haitian law of 1876 which would have had this effect.3

§ 42. Criminal Proceedings.

It is a general principle of international law that every nation, which Belgian and Swiss companies were in a more favorable position than others. The United States answered a British protest by referring the British companies to the courts if they considered a treaty to have been violated, but declined to conclude a treaty by which the freedom of state legislation might be hampered. For. Rel., 1899, 345-348. See also H. T. Kingsbury in 1911 Proceeding of the Amer. Soc. of Int. Law, 215-218.

1 In Maine, statutes prescribing pedler's licenses for aliens were held unconstitutional as a discrimination between aliens and citizens. State v. Montgomery, 94 Me. 192; State v. Mitchell, 97 Me. 66.

2 Lehr in 12 R. D. I. (1880), 108 and 28 Clunet (1901), 722; 14 to 22 Annuaire of the Institute, and supra, p. 22, note 3.

Haiti at various times has imposed discriminatory taxes and other conditions upon foreigners. The United States on numerous occasion (1876, 1893, 1897, 1903 and others) has protested against these discriminations (which were usually directed against foreign business), particularly as the treaty of Nov. 3, 1864 provided for equality in taxation. For. Rel., 1904, 371-384; For. Rel., 1907, 728-742. The last protest was made after the abrogation of the treaty. It appears to have been successful. A small license fee on foreigners engaged in business was apparently not objected to. See also decision of Day, arbitrator, in Metzger (U. S.) v. Haiti, Oct. 18, 1899, For. Rel., 1901, 262, 272.

whenever its laws are violated by anyone owing obedience to them, whether citizen or alien, has a right, free from the interference of other states, to inflict the penalties incurred by the transgressor if found within its jurisdiction, provided that the laws themselves, the methods of administering them, and the penalties prescribed are not in derogation of civilized codes.1

The criminal procedure of foreign countries frequently contains harsh features and is deficient in many safeguards which American law provides for the benefit of the accused. This constitutes no ground for diplomatic complaint, the right of the United States or other foreign country being confined to a demand that its citizen be given the full and fair benefit of the system which does exist, without discrimination as against natives or other aliens.2 An alien must submit to the inconvenience of proceedings that may be brought in accordance with law upon any bona fide charge that an offense has been committed, even though the charge may not be sustained.3 On this ground the claims of innocent citizens of the United States arrested in foreign countries on suspicion of having violated the local law are usually rejected. Even when a conviction by a lower court is reversed, for error, by an appellate court, there is no foundation, legally, for an international claim, although equitable considerations might lead to a moral request for indemnification on account of incidental imprison

1 Mr. Marcy, Sec'y of State, to Mr. Jackson, chargé at Vienna, Austria, Jan. 10, 1854, Moore's Dig. II, 88; Bullis (U. S.) v. Venezuela, Feb. 13, 1903, Morris' Report, Sen. Doc. 317, 58th Cong. 2nd sess., 375-376.

2 Mr. Marcy, Sec'y of State, to Mr. Jackson, chargé at Vienna, Apr. 6, 1855, Moore's Dig. II, 89; VI, 275. See state papers quoted in Moore's Dig. II, 90 et seq.; VI, 273 et seq. and Tchernoff, op. cit., 504. See also the illuminating opinions in In re Neely, 103 Fed. 626 and in Neely v. Henkel, 180 U. S. 109 (by Justice Harlan).

* Elihu Root in 4 A. J. I. L. (July, 1910), 527. See Trumbull (Chile) v. U. S., Aug. 7, 1892, Moore's Arb. 3255-3261, and the following cases before the U. S.Mexican commission of July 4, 1868: Collier (ibid. 3244), Atwood (ibid. 3249), Cramer (ibid., 3250). See also decision of Hamburg Senate in case of White (Gt. Brit.) v. Peru (1864), Moore's Arb. 4967. See also La Forte (Gr. Brit.) v. Brazil, Jan. 5, 1863, ibid. 4925, and claim of Higginson v. Peru, Baty, 164; Pittard, Protection des nationaux, 250; Martens, Traité, III, 141.

4 E. g., Mix case v. Austria, For. Rel., 1894, 23-26; Mr. Marcy to Mr. Richter, Feb. 21, 1854, Wharton's Dig. II, 515; Hannam (U. S.) v. Mexico, July 4, 1868. Moore's Arb. 3243.

ment. The judicial proceedings, however, must be regular and conducted in good faith and in accordance with the law and with the forms of civilized justice, and must not be arbitrary or unnecessarily harsh or discriminate against the alien on account of his nationality.1 No violation of law on his part will deprive the alien of this limited protection of his government, which has the right to insist that he shall be tried and punished in accordance with law. President Cleveland in his annual message of 1886 thus expressed the principle:

"When citizens of the United States voluntarily go into a foreign country they must abide by the laws there in force, and will not be protected by their own government from the consequences of an offense against those laws committed in such foreign country; but . . . if charged with crime committed in the foreign land a fair and open trial, conducted with decent regard for justice and humanity, will be demanded for them. With less than that this government will not be content when the life or liberty of its citizens is at stake." 2

The representatives of foreign governments often undertake by active attendance to watch criminal proceedings in which their countrymen are parties in interest.3 On various occasions in the diplomatic history of the United States claims have been successfully prosecuted by the Department of State or allowed by international commissions on the following grounds: Unjust or unlawful arrest or detention;

5

1 Extracts quoted in Moore's Dig. VI, 698 and 273-285. Ballenger (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3243; Van Bokkelen (U. S.) v. Haiti, May 24, 1888, ibid. 1807.

2 Annual Message, Dec. 6, 1886, For. Rel., 1886, vii.

3 Mr. Bayard, Sec'y of State, to Mr. Jackson, min. to Mexico, July 26, 1886, Moore's Dig. VI, 281.

It may be here noted that international tribunals have generally, in the absence of a prohibition in the protocol, assumed the right to pass independently upon the justifiability of an arrest and the legality of the incidental and subsequent proceedings. Shaver (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3285; Canty (Gt. Brit.) v. U. S., ibid. 3309.

' Pratt (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3280–3282; Jonan (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3251; Patrick (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3287 (charge without foundation, though released after brief detention); Underhill (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 45, 51; Shaw (Gt. Brit.) v. France, 1883, 19 Hertslet's Comm. Treaties, 201-203. Claims have often been enforced on account of the unlawful detention of vessels. See, e. g., John S. Bryan (U. S.) v. Brazil, Oct. 15, 1842, Moore's Arb. 4613; Whaling vessels (U. S.) v. Russia,