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licensed occupations, and the right of religious worship and of CHAP. freedom of speech. The earlier droit d'aubaine, a relic of feudal times, in accordance with which the sovereign confiscated to the use of the state the movable and immovable property of deceased foreigners, had largely disappeared by the end of the eighteenth century.1 Several states, however, still impose restrictions upon aliens. China has conceded only limited privileges of trade, based upon treaty stipulations. Japan denies to aliens the right to own property in land. Rumania places Jews under legal disabilities." Under the common law of Great Britain and of the United States an alien could take lands by purchase, i.e., by will or by deed, but not by descent, i.e., not by intestate succession. These restrictions have been largely removed by statute, but it should be noted as a point of American constitutional law, as distinct from international law, that while certain States of the United States still prohibit aliens from holding or succeeding to real estate, the restrictions are largely inoperative in consequence of the overruling force of treaties entered into by the United States conceding such privileges to the citizens of the contracting powers.*

tion against

aliens

Special international problems are presented when a state Discriminadeparts from a general rule with respect to the privileges granted particular to aliens and undertakes to discriminate against the citizens of a particular state. As in the case of discriminations in connection with admission to the state, the basis of complaint on the part of the foreign state in this instance is not an abstract right to particular privileges, but a specific right arising by inference from the principle of the equality of states. In 1906 Japan protested against the denial to its citizens of school privileges similar, not merely equal, to those accorded by the City of San Francisco to alien residents of other nationality. In reply the United States urged, on behalf of the State of California, that there existed a reasonable basis for the alleged discrimination, so that the action did not necessarily reflect upon the character of the Japanese citizen and by inference upon the national honor of Japan. In 1913 a more acute issue arose in connection with the protest of Japan against the discriminatory character of California laws

5

The practice was vigorously condemned by Vattel, Droit des Gens (Eng. trans.), Bk. II, § 112.

2 As did Russia before the revolution of 1917.

See Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 619 (1813).
For instances, see Moore, Digest, IV, §§ 544-5.

* Am. Journal, I (1907), 273 ff.

CHAP.

ΧΙ

Domiciled aliens

prohibiting aliens who were not "eligible to citizenship" from owning and transmitting real property, except in so far as the right was secured to them by treaty. Since Japanese citizens were unable to become naturalized, they were thus limited to the rights granted by a treaty of 1911, which fell short of the privileges enjoyed by other aliens. The United States urged in defense of the law that it was the result rather of local economic conditions than of direct racial discrimination; but Japan refused to acquiesce in the justice of the explanation. Additional legislation was enacted by California in 1920, with fresh protest from Japan.2 International law recognizes a distinction between the status of those aliens who are merely transient visitors in a foreign country and those who have established a permanent residence there with apparent intention of remaining indefinitely. The latter domiciled aliens not only enjoy the privileges referred to above, but are in many respects burdened with the obligations of citizenship, although not regarded as citizens from the point of view of national character. Domicile thus creates a sort of qualified or temporary allegiance. Not only must domiciled aliens obey the local laws and pay the normal taxes, whether upon person or upon property, imposed by the state; but should the necessity arise they may be called upon by the state to perform such public duties as police and militia service, as distinct from military service, as well as to submit to special measures, such as quarantine regulations, restricting their personal liberty and the enjoyment of their property in the interest of the public welfare. A delicate question is presented when the state in which the alien is domiciled goes to war with the state of which he is a citizen. In such a case, while the alien may not be drafted into military service, he is at the same time bound not to contribute by any overt act to the success of the state of his allegiance; and while he may not be punished for high treason, he may be subjected to other penalties imposed by state law upon such offenses.*

3

By custom, which may now be said to have obtained a semi1See Am. Journal, VIII (1914), 571. For the text of the California law, ibid., Supp. 177.

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See Am. Journal, XV (1921), 55; XVI, 420.

See Carlisle v. United States, 16 Wallace, 147 (1873), where the court held certain domiciled aliens who had given aid and comfort to the Confederacy were guilty of high treason.

In the case of De Jager v. Attorney-General of Natal, L. R. App. Cas., 326 (1907), a British court held guilty of high treason a resident of Natal who during the occupation of that country by the Boer army served in its ranks. Scott, Cases, 136; Evans, 113.

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matters of

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legal validity, many states have adopted into their judicial sys- CHAP. tems a body of rules in accordance with which the laws and judicial decrees of foreign countries are applied to the decision of cases Comity in involving acts done in a foreign country or property located jurisdiction therein. Such cases may arise between two citizens of the state, or between a citizen of the state and a domiciled alien. This body of rules is known as "international private law," or the "conflict of laws," and its precise content is a matter of domestic law laid down by the judicial tribunals or the legislatures of the respective states. The element of international law present is not to be found in the specific rules applied to these cases, which are strictly national in their authority, and relate to the acts of individuals, not of states, but is to be found in the general practice of the nations in giving a greater or less degree of validity to the legislation of other states under the particular circumstances. In the case of Hilton v. Guyot, decided in 1895, the Supreme Court went so far as to say that international law in its widest and most comprehensive sense-including not only questions of right between nations, . . . but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation-is part of our law" and must be administered by the courts of justice in cases duly presented to them. The basis of these rules is the "comity of nations,' not the extraterritorial validity of the law of the foreign state. Comity, as explained by the Supreme Court in the same case, is in the legal sense "neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its terri tory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." 3 The practice of nations varies, however, in the matter, and it is doubtful whether many states push the idea of comity to the same extent as was done in the case just cited.

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The detailed rules which make up the body of international

159 U. S.,

113.

1 See above, p. 36. For the broader sense given to "comity" as a general rule of courtesy falling short of legal obligation, see above, p. 35.

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2

private law are outside the scope of a volume on international law. In general, however, they embrace questions relating to marriages contracted or divorces granted under the laws of a foreign state,' title to real or personal property located in a foreign state, or the transfer of such property by devise or descent, the validity of wills made in a foreign state, the legal capacity of parties contracting under the laws of a foreign state, the enforcement of foreign judgments, and related questions. It must be noted that as a condition of the enforcement of foreign judgments national courts require the fulfilment of certain conditions as to the jurisdiction of the foreign tribunal over the parties and the subject-matter of the case, as well as to the substantial justice of the proceedings. In addition, some states require a reciprocal recognition of their own judgments on the part of the foreign state. In the case of Hilton v. Guyot above cited, the Supreme Court refused to give full credit and conclusive effect to the judgment of the French court, on the ground that judgments of American courts were reviewable upon their merits in the French courts.3

The desirability of obtaining a greater degree of uniformity in their mutual recognition of foreign laws and judgments has influenced the leading states of Europe on several occasions to enter into international conventions dealing with the conflict of laws. On November 14, 1896, a general treaty was entered into regulating the conflict of laws in respect to procedure in civil. cases. Three other conventions were signed on June 12, 1902, regulating the conflict of laws in respect to marriage, divorce, and guardianship. On July 17, 1905, a new treaty was entered into

1

The refusal of the French tribunals, under the influence of political pressure from the chief executive, to recognize the validity of the marriage of Jerome Bonaparte to Miss Patterson, contracted under the laws of the United States but without observing the forms required by French law, has obtained a place in history by reason of the parties to the case, not by reason of its otherwise exceptional character. Dana, note 55 to Wheaton, Elements of International Law, ed. 1866, § 93.

For a bibliography of the subject and a survey of its nature and history, see Beale, A Treatise on the Conflict of Laws, Vol. I, Part I, 1916; Westlake, A Treatise on Private International Law, with principal reference to its practice in England, 6th ed., 1922; Dicey and Keith, A Digest of the Law of England with Reference to the Conflict of Laws, 3rd ed., 1922.

"In holding," said the court, "such a judgment, for want of reciprocity not to be conclusive evidence of the merits of the claim we do not proceed upon any theory of retaliation upon one person by reason of injustice done to another; but upon the broad ground that international law is founded upon mutuality and reciprocity. . . .”

Martens, Nouv. Rec. Gen., 2° ser., XXXI, 706, 715, 724.

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replacing the treaty of 1896, while two new conventions were CHAP. adopted by a smaller group of states dealing with the effect of marriage upon the personal relations and property rights of husband and wife and with further questions of guardianship.1 An instructive analogy might be drawn between the efforts of the leading states to secure greater uniformity in the mutual recognition of their respective laws and the constructive action taken under more favorable conditions by the Philadelphia Convention of 1787 in introducing into the Constitution of the United States the clause stipulating that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other State." 2

d. Special

exemptions

from juris

diction:

against

states

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The principle that a state cannot be sued in the courts of a foreign country is a long-standing rule of customary international law. In earlier times, before the general establishment of demo- suits cratic states, whether republics or constitutional monarchies, the foreign principle was identified with the personal immunity of a foreign sovereign from suit; but the latter point is now a distinct issue.3 Diplomatic agents, as representatives of their state, are personally exempt from both the criminal and civil jurisdiction of the state to which they are accredited. A similar exemption holds with respect to personal and real property connected with the foreign embassy or legation. In addition to these exemptions, a foreign state may not be made a party defendant either in a suit in rem or in a suit in personam, brought against the state as such in its ✓ public corporate capacity. In the case of De Haber v. Queen of Portugal, decided in 1851, an action of debt was brought against the queen, in her public capacity, for money wrongfully paid over to the Portuguese Government. On appeal the court made an absolute rule for a prohibition of the suit, on the ground that "to cite a foreign potentate in a municipal court, for any complaint against him in his public capacity, is contrary to the law of nations, and an insult which he is entitled to resent." A similar decision was rendered by the state court of New York in vacating an attachment which had been obtained against certain personal property of the Mexican Government with the object of satisfying in that way certain claims against the Government.

'Martens, Nouv. Rec. Gen., 3o ser., II, 243.

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The scope of this immunity and the problems presented by it are discussed in a late chapter, below, pp. 361 ff.

*17 Q. B. Div., 196 (1851). Scott, Cases, 278.

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