TITLE IX. DUTIES OF A NATION TO FOREIGNERS. CHAPTER XXIV. Personal condition of foreigners. XXVI. Rights of property. This title is restricted to those rights of foreigners which are secured by the Code only to members of nations uniting in it. The numerous rights and obligations which are applicable to all nations whatever, and all foreigners, of whatever nationality, are among the subjects treated under Division Second, concerning PRIVATE INTERNATIONAL LAW. CHAPTER XXIV. PERSONAL CONDITION OF FOREIGNERS. ARTICLE 315. Who are foreigners. 316. Laws of a nation are applicable to foreigners. 317. Duty to administer justice. Who are foreigners. 315. The national character of persons as foreigners or members of the nation, and the domicil of foreigners, are defined in Titles VI. and VII. Laws of a nation are applicable to foreigners. 316. Except as is herein otherwise expressly provided, foreigners, while within the places subject to the jurisdiction of a nation, are, equally with the members of the nation, subject to its laws, and entitled to the protection thereof, for their persons and their property. Ferguson on Marriage and Divorce, 57; Reeding v. Smith, 2 Haggard's Consistory Rep., pp. 371, 384-386, by Lord STOWELL; 1 Kent's Commen taries, 36; Woolsey's International Law, 96; Bluntschli, Droit International Codifié, § 386. The right of resort to the tribuuals is defined by the Chapter concerning JUDICIAL POWER IN CIVIL CASES, in Part VI., entitled ADMINISTRATION OF JUSTICE. Duty to administer justice. 317. It is the duty of a nation to administer justice, where foreigners or other nations are concerned, in the cases specified in Part VI., entitled ADMINISTRATION OF JUSTICE. CHAPTER XXV. PERSONAL RIGHTS OF FOREIGNERS. SECTION I. Rights of residence. II. Of occupation. III. Of religion. SECTION I. RIGHTS OF RESIDENCE. ARTICLE 318. Commercial intercourse. 319. Free entry of foreigners. 320. Traffic in laborers. 321. Exclusion. 322. Passports and safe conducts. 323. Effect of safe conduct. 324. Effect of passport. 325. Passports not to be required. 326. Armed expeditions. 327. Searches and seizures. 328. Unusual burdens not to be imposed. 329. Removal. Commercial intercourse. 318. No nation has the right to interdict absolutely, the entrance of foreigners into its territory, or to close the country to general commerce. Bluntschli, Droit Intern. Codifié, § 381. The original doctrines of international law would not sustain this position, but whatever doubts may have been raised on the point are now practically settled by many treaties of friendship and commerce which have established among Christian nations the rule stated in the article. Free entry of foreigners. 319. Members of any nation, with their families and property, may freely enter, reside and become domiciled in any other nation, subject to the provisions of this Code, and of special compacts, and subject to the revenue, sanitary, police and other laws of the country, so far as the same are applicable to foreigners. This is according to the rule stated by Kent, (1 Commentaries, 35), as the one which is now generally settled in commercial treaties. Vattel, (Law of Nations, Bk. 2, ch. 8, §§ 100, 101,) after speaking of the right of the lord of the territory to impose conditions, says: but in Europe the access is everywhere free to every person who is not an enemy of the State, except in some countries to vagabonds and outcasts, upon the tacit condition, however, of obedience to the laws. The exceptions of paupers, criminals, enemies, &c., are provided for in Chapter XVII., concerning ASYLUM, and in Book Second, on War. Traffic in laborers. 320. Engaging, transporting, or employing laborers taken from any country whatever, and bound to service, whether for a fixed term or otherwise, excepting emigrants removing by their own free and intelligent consent, is a public offense; and all agreements for service entered into with reference to such traffic are void. Suggested by the act of Congress of the United States, Feb. 19, 1862, (12 U. S. Stat. at L., 340,) to prohibit the "Coolie trade," which provides, that no citizen of the United States, or foreigner coming into or residing within the same, shall, for himself, or for any other person whomsoever, either as master, factor, owner, or otherwise, build, equip, load, or other wise prepare, or send to sea, or navigate any ship, for the purpose of procuring from China, or from any port or place therein, or from any other port or place, the inhabitants or subjects of China, known as "Coolies," to be transported to any foreign country, port or place whatever, to be disposed of, or sold, or transferred for any term of years, or for any time whatever, as servants or apprentices, or to be held to service or labor; or take on board of any ship, or receive, or transport any such persons, for the purpose of so disposing of them; or knowingly be engaged in any wise aiding or abetting therein. But nothing in the act is to be deemed or construed to apply to, or affect any free or voluntary emigration of any Chinese subject. Exclusion. 321. No nation can expel the members of another nation without special cause, which must be explained to the nation the members of which are expelled.' But this and the last article do not affect the right of a nation to punish crime by transportation or banishment. This is the rule stated by Heffter, Droit International, § 33, cited in Woolsey, Intern. Law, p. 94, ¶ 6. It is proposed as a more reasonable and liberal rule than that laid down by Phillimore, Intern. Law. vol. I., p. 407. Phillimore says, that "it is a received maxim of international law that the government of a State may prohibit the entrance of strangers into the country, and may therefore regulate the conditions under which they shall be allowed to remain in it, or may require and compel their departture from it." Id., p. 233. Martens says, that the sovereign has a right to forbid foreigners to enter his dominions, without express permission first obtained, even if such entry be not prejudicial to the State; but no European power now refuses in time of peace, to grant permission; nor is it even necessary for such subject to ask permission. Marten's Law of Nations, Bk. 3, ch. 3, § 2. These restrictive rules, however, are founded upon the old doctrine that one of the functions of government was to suppress the free movements of populations, and that the subjects of a State had no right to leave it without the assent of the government. See Marten's Law of Nations, Bk. 3, ch. 3, § 6. Those rules are not in harmony with the general spirit of international law, as now manifested. From Vattel's reasoning it should seem that a nation is authorized, and indeed bound to open its doors, and give protection to all strangers who come to it, except those who, by the quality and frequency of their crimes are entitled to a home nowhere, but who, being enemies of the whole human family, are subject to punishment wherever they go. 1 Opinions of U. S. Attorneys-General, 514. Subject to the restrictions rendered necessary by criminal justice, "the right of protecting all who may come within the bounds of an independent community has been always held one of the most valuable prerogatives of sovereignty, and any invasion of it has ever been strenuously contested." Ward's Law of Nations, vol. 2, p. 319. And the object of protection seems sufficiently attained by allowing the exclusion upon definite reasons assigned, as in the foregoing article. This qualification is suggested by the treaty of friendship, &c., between France and San Salvador, Jan. 2, 1858, 7 De Clercq, 362. and The treaty of friendship, commerce and navigation between France and Peru, March 9, 1861, Art. III., (8 De Clercq, 193,) provides, that the members of one nation cannot be arrested or expelled from the other country, nor transported from one place to another within it, without sufficient reason, nor without the observance of the legal formalities and requirements; also, that the causes that render necessary such measures, the documents which establish them, should be at a proper day communicated to the diplomatic or consular agents of their nations respectively; and in all cases, sufficient time should be accorded to persons concerned to present their defense, and to take, with the diplomatic or consular agents, the necessary measures for the protection of their property, and the property of others in their possession. These provisions, however, are not to hinder the execution of judgments according to the laws of the country. To somewhat similar effect are the treaties of friendship, commerce and navigation between France and Honduras, Feb. 22, 1856, Art. IV., 7 DeClercq, 10. San Salvador, Jan. 2, 1858, 66 V., 7 Id., 365. Passports and safe-conducts. 322. A nation may, in its discretion, give passports to any of its members,' and safe-conducts to any persons whomsoever. Safe-conducts may be issued by the executive government of the nation. Passports may be issued by the executive government at home, or by its authorized public agents abroad,' as provided in articles 123 and 173. 1 Dana says, that perhaps a passport might be issued to a person in the employ of the government, though not a member of the nation; but it is doubtful whether that should be allowed. By the United States Consular Regulations, ¶ 102, persons who have merely declared their intention to become citizens are not citizens of the United States, within the meaning of the law giving to consuls power to issue passports, for such declaration has not the effect of naturalization. The issue in time of war is further provided for in Book Second, on WAR. Effect of safe-conduct. 323. A safe-conduct must be everywhere respected as a protection to the person to whom it is issued, except from liability to punishment for crime committed after its issue. |