СНАР. XI The Act Status of children istration at a United States consulate.1 The position thus taken by Great Britain and the United States had long been held by the majority of continental and Latin-American countries, the latter apparently influenced by the Code Napoléon. The act of Congress known as the Cabell Act, approved September 22, 1922, marks a departure from both the late policy of the United States and the general practice of other states.2 Adopted, it would appear, with the object of regulating the admission of women to suffrage by putting married women upon a footing independent of their husbands, it provides (a) that a woman shall not acquire citizenship by marriage to a citizen of the United States or by the naturalization of her husband, but, if eligible to citizenship, must be personally naturalized under the conditions prescribed; (b) that a woman citizen of the United States shall not cease to be a citizen by reason of marriage unless she makes a formal renunciation of citizenship, or unless she marries an alien ineligible to citizenship. Women who have lost their citizenship by reason of marriage prior to the passage of the act may acquire citizenship by naturalization, unless their husbands are ineligible. Apart from the advisability of the new law as a domestic question, it would appear that the isolated action of the United States in the matter will entail serious hardship to married women who are denied citizenship by American law and at the same time lose the citizenship of their native country. Further, when American women married to alien husbands reside abroad problems of dual nationality will arise until such time as the provision of the law of 1907 will operate to expatriate them." Minor children, while retaining the nationality of their birth jure soli, generally acquire the new nationality of their parents when the latter become naturalized abroad. In the United States the acquisition of citizenship by minor children is dependent upon permanent residence in the country, if begun during minority.1 The constitutionality of the law was upheld in Mackensie v. Hare, 239 U. S., 299 (1915), where the court referred to the identity of husband and wife as "an ancient principle of our jurisprudence" and as having "purpose, if not necessity, in purely domestic policy" and "greater purpose and, it may be, necessity, in international policy. For the same case before the Supreme Court of California, see Scott, Cases, 161. Stat. at Large, 67th Congress, Vol. 42, No. 346. See also Am. Journal, XVII (1923), 52. Numerous complications in the administration of the law have already arisen, principally in consequence of immigration restrictions and passport regulations. Law of March 2, 1907, § 5. For the provisions and interpretation of earlier laws, see Moore, Digest, III, § 413. XI allegiance: of inter construction The inconvenience and friction attending the conflicting claims CHAP. of states in respect to their native-born and naturalized subjects present a forcible argument for the conclusion of a general inter- Double national convention reducing the divergent policies to a uniform a problem rule. One of the chief difficulties in the way of such an agreement national rein the past has been the obligation of military service exacted by the states of continental Europe, both in respect to the period of compulsory training and in respect to the duty of the citizen to respond to the call of the mother-country in time of war. The conflict between allegiance based upon jus soli and allegiance based upon jus sanguinis might yield fairly easily to a common agreement; that between allegiance based upon birth and allegiance based upon naturalization is more complicated. Even were the contention of the United States generally accepted, that naturalization in one country automatically dissolves the bond of allegiance to another country, there still remains the international right of every state as territorial sovereign to deny to its citizens the right under domestic law to emigrate from the country except under prescribed conditions, and the consequent right of the state to punish such persons, upon their return to their native jurisdiction, for an offense committed while subject to its jurisdiction.1 tion over The obligation of a state to afford protection to the lives and c. Jurisdicproperty of aliens within its jurisdiction exists by inference from aliens the right of other states to demand such protection as an incident to their right of national self-protection. Beyond that obligation each state is left free to determine its own policies with respect to both the admission of aliens into its jurisdiction and the special privileges which it may concede to them when once admitted. It must be noted, however, first, that general principles governing the right of a state over aliens within its jurisdiction do not always correspond with customary practice, and secondly, that while states may be free to adopt their own individual policies concerning the status to be accorded aliens, they are not free to discriminate in favor of the nationals of one state as against those of another except upon urgent grounds, the validity of which is not at present determined by any general rule. By inference from the sovereignty of states it is a well established general principle that a state may forbid the entrance of The prospect of a willingness on the part of certain states to abandon such indirect control over their citizens is apparently closely connected with the problems of disarmament and the abandonment of compulsory military service. 'See above, p. 156. The admission of aliens CHAP. Discrimination against particular countries aliens into its territory, or admit them only in such cases as commend themselves to its judgment. The right of total exclusion is, however, more theoretical than real. As a practical issue, no state can be assumed to be desirous of cutting itself off from all intercourse with the outside world; and should it do so it might reasonably be held to have forfeited its position as a member of the international community. When it is asserted by publicists that there is a legal "right of intercourse" as between states, all that can be meant, consistent with the law, is that by custom some degree of commercial and social intercourse has come to be regarded as a normal condition of modern international life. This is quite a different matter from an obligation on the part of a particular state to admit all or any of those who only come with. the intention of becoming permanent residents. The partial exclusion of alien immigrants by the United States has been acquiesced in by other states without question as to the legal rights of the United States in the matter. Total exclusion of immigrants may at any time become a necessity for those states of the Western hemisphere which feel that the number of immigrants to their territories has exceeded the capacity for beneficial assimilation. Under such circumstances there would seem to be no doubt that the general principle of the right of exclusion might be given practical application without giving rise to legal grounds of protest from other states. The present issue, however, is rather one in which discrimination is shown against the citizens of particular states. Partial exclusion, such as is put into effect by the United States law of May 19, 1921, being directed against the citizens of all states indiscriminately, presents no international issue. Likewise the exclusion of certain types of immigrants, such as idiots and paupers, 3 The rule was stated clearly by Vattel in 1758, Droit des Gens (Eng. trans.), Bk. II, §§ 94, 100. The dictum in the case of Nashimura Ekiu v. United States, 142 U. S., 651 (1892), is often quoted: "It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe." 2 See below. For the earlier laws, see Moore, Digest, IV, § 562. The act of June 5, 1920, excludes designated groups of whatever national origin; the act of May 19, 1921, restricts immigration according to quotas based upon past immigra tion. The degree of discrimination resulting from the application of an equal law to unequal conditions, namely, the relative disparity between the numbers admitted from the several countries before and after the passage of the law, does not present a ground of legal complaint. 3 XI when put into effect impartially, remains a purely domestic ques- CHAP. tion. The United States, however, has undertaken by successive acts of Congress, beginning in 1882, wholly to exclude Chinese immigrants, as well as the natives of other specified sections of the continent of Asia.2 By a treaty of 1880 China had agreed to the regulation or temporary suspension by the United States. of Chinese immigration, but it was not until 1894 that China, by treaty, acquiesced in the absolute prohibition of the entrance of Chinese laborers into the United States for a period of ten years. from the ratification of the treaty. At the expiration of the ten year period the United States continued its policy of exclusion without considering it necessary to have the support of treaty sanction, and the several acts passed by Congress would doubtless have been more vigorously contested had China been in a position to do so effectively. Agitation in the United States for the exclusion of Japanese immigrants resulted in the conclusion in 1907 of the Root-Takahira Agreement, by which Japan undertook itself to prevent the immigration of Japanese laborers to the United States. The delicate question whether the United States had a right to discriminate against the citizens of a particular state was thus settled in the case of Japan by conclusion of a "gentleman's agreement" which contemplated the removal of the occasion for the obnoxious legislation. It should be observed that in both these cases the right of entry into the United States which the two states might have claimed for their citizens was merely an inferential right following from the principle of the equality of states. To exclude all aliens impartially raises no issue of discrimination; the exclusion of the citizens of a particular state denies to that state a right accorded to others. International law has as yet developed no formal rule by which the circumstances of a particular case can be shown to justify discrimination without raising an inference derogatory to the principle of equality." For the provisions of the several Acts, see Treaty, Laws, and Rules Governing the Admission of Chinese, Department of Labor, Bureau of Immigration, 1917. *Act of February 5, 1917; 39 Stat. at Large, 875. * Malloy, Treaties, I, 237. 'Ibid., I, 241. It is interesting to note that while the subsequent treaty of February 22, 1911, contained no reference to restrictions upon Japanese immigration, the signature of the Japanese ambassador was accompanied by a declaration of intention to observe the earlier agreement. Charles, Treaties, 82. The distinction between inferiority and difference has obvious practical application, although difficult of legal formulation. See statement of Secretary Bryan, July 16, 1913, Am. Journal, VIII (1914), 573. CHAP. XI The expulsion of aliens Rights conceded to resident aliens The right of a state to expel aliens from its territories for reasons bearing upon the public welfare of the state is well established; but in the exercise of this right there must be, as in the case of the admission of aliens, no discrimination against the citizens of a particular foreign state as such. It would appear that the foreign government has a right to inquire into the reason for the expulsion of its citizen.1 Precedents exist, chiefly in the relations between the Great Powers and small and unstable states, showing the exaction by foreign governments of an indemnity for the arbitrary expulsion of their subjects. Great Britain obtained from Nicaragua in 1865 an indemnity for the expulsion of twelve British subjects who had been arrested and expelled for alleged participation in the Mosquito rebellion. In the same Bluefields Case the United States, relying chiefly upon the treaty of 1867, demanded that the two American prisoners be informed of the charges against them and of the evidence in support of the charges, admitting, however, the right of Nicaragua to expel them if the charges were true.2 In 1888 the United States demanded an indemnity of Guatemala for the expulsion by executive decree, before the completion of judicial process, of an American citizen, Hollander, who had been arrested on a charge of malicious libel and forgery. A recent instance of the exercise of the right of expulsion is to be seen in the action of the United States in 1920 in deporting to Russia, on the ship Buford, a group of anarchists and radical socialists who had emigrated from that country to the United States and whose activities on behalf of their political principles were considered detrimental to the welfare of the United States.* By international law, as has been seen, each state is left free to concede to aliens resident within its territory such measure of rights, apart from the protection of life and property, as it may see fit to confer upon them. As a matter of fact, most states have in modern times voluntarily conceded to resident aliens substantially the same civil privileges, as distinct from political rights, which are enjoyed by citizens of the state. These privileges include the right to hold, inherit, and transmit real property, the right to contract, the right to practise the professions and other 1See cases in Moore, Digest, IV, § 551. Ibid., loc. cit. Ibid., loc. cit. See, further, the decision in the Boffolo case before the Italian-Venezuelan Commission in 1903. Ralston, Venezuelan Arbitrations, 699. The deportations were in accordance with an act of May 10, 1920. |