§ 121. Status of Aliens in the United States.

In the preceding section it has been shown that a State has absolute legal authority over all persons within its territorial jurisdiction, and over its own citizens wherever they may be. In the exercise, however, of this authority over persons within its territorial limits who are claimed as citizens by other States, that is, over resident aliens, or naturalized citizens whose native States do not recognize the right of expatriation, this legal power, though not subject to legal limitation, is actually subject to certain limitations which international custom has created. Thus each State demands that its subjects, when abroad, shall receive protection in life and property, and in their private rights be not unduly discriminated against by the foreign State in which they may happen to be. Also States do not permit the foreign States to require from their subjects the performance of duties that properly may be required only of citizens, as, for example, service in its army. Resident aliens may indeed be required to lend their assistance, by service in the militia and police forces, or in a posse comitatus, to put down domestic disorder; for; enjoying the protection of the local law, they may fairly be required to aid in overcoming resistance to its enforcement. But they may not be compelled to serve in the national military forces in cases of public

war.

During the Civil War, Great Britain did not object to the enrollment in the local militia of her citizens domiciled in the United States; and in the case of one Scott, who had declared his intention of becoming an American citizen, refused to take any steps to prevent his enrollment in the army in the field. Great Britain, however, emphatically protested to the government of the Southern Confederacy against the conscription of her subjects in the Southern States. Several of the leading European powers protested against the attempt on the part of the United States to conscript into its armies domiciled aliens who had declared their intention of becoming American citizens, whereupon the United States granted to such aliens sixty-five days in which to leave the country, upon failure to do which they were held liable

to conscription; and this arrangement was acquiesced in by the Powers concerned, though not without complaint that the principles of international comity were being violated. When, in 1873, the State of Nicaragua attempted by an amendment to her Constitution to make foreigners liable to military and other public services, protests from the American Minister were made, in consequence of which the project was abandoned.

§ 122. Domiciled Aliens.

A distinction is made in practically all countries between domiciled and non-domiciled aliens, with reference to the legal burdens that may be imposed and the civil and political rights that may be enjoyed.

An alien becomes domiciled in a particular place when he takes up residence there with an intention to remain for an indefinite time (animo manendi). When so domiciled, all matters other than political, which relate to his personal status, are regulated by the lex domicilii. Thus the local law governs his power to enter into contracts, regulates succession to personal property, and the validity of wills with reference thereto, and, in the United States, England, and many of her dependencies, determines the validity of marriages. In France, and some other countries, however, this last subject is held regulated by the individual's national law wherever he may be domiciled. Thus, while the marriage in the United States of a Frenchman domiciled in the United States is held valid by the United States law if its provisions governing marriages are satisfied, it would not be held valid in France, unless the requirements of the French law were also satisfied.

Domicile is immediately fixed when residence is taken up with the intent to remain for an indefinite length of time. Thus, for example, in 1781 when the English captured from the Dutch the island of St. Eustatius, a native-born English citizen who had arrived at the island but a few hours before with the intention of residing there for an indefinite length of time, was held to be domiciled there and his property subject to the same liabilities as those of the other residents of the place. The same doctrine.

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was applied by the Supreme Court of the United States in the case of The Venus. In this case with reference to the status of such a domiciled alien in time of war the court said: "The next question is, what are the consequences to which this acquired domicile may legally expose the person entitled to it, in the event of a war taking place between the government under which he resides and that to which he owes a permanent allegiance? A neutral in his situation, if he should engage in open hostilities with the other belligerent, would be considered and treated as an enemy. A citizen of the other belligerent could not be so considered, because he could not, by any act of hostility, render himself, strictly speaking, an enemy, in the strict sense of the word, yet he is deemed such with reference to the seizure of so much of his property concerned in the trade of the enemy, as is connected with his residence. It is found adhering to the enemy. He is himself adhering to the enemy, although not criminally so, unless he engages in acts of hostility against his native country, or, probably refuses, when required by his country, to return. The same rule as to property engaged in the commerce of the enemy applies to neutrals; and for the same reason. The converse of this rule inevitably applies to the subject of a belligerent State domiciled in a neutral country; he is deemed a neutral by both belligerents, with reference to the trade which he carries on with the adverse belligerent, and with all the rest of the world.

"But this national character which a man acquires by residence, may be thrown off at pleasure, by a return to his native country, or even by turning his back on the country in which he resided, on his way to another. To use the language of Sir W. Scott, it is an adventitious character gained by residence and which ceases by non-residence. It no longer adheres to the party from the moment he puts himself in motion, bona fide, to quit the country sine animo revertendi."

§ 123. Aliens not Domiciled.

An alien passing through the United States, or for any purpose only temporarily in the country, is held fully subject to local

68 Cr. 253; 3 L. ed. 553.

criminal law. He is also able to enter into civil contracts which may be enforced against him to the extent of any property that he may have within the United States.

§ 124. Exclusion and Expulsion of Aliens.

All countries have, according to the principles of international law, the right to determine for themselves whether or not they will admit aliens within their borders, or whether they will admit some and not others. Furthermore, after admission, aliens, whether domiciled or not, may remain only so long as the State where they are sees fit to permit them to do so. These rights exercised arbitrarily, oppressively, or opprobriously may give rise to just grounds of complaint upon the part of States whose subjects are thereby injured or discriminated against. But the existence of the right of an independent State to determine for itself whom it will receive or allow to remain within its borders, cannot be questioned.

§ 125. The Chinese.

The right of the United States, from both the international and constitutional viewpoints, to prohibit entrance within its borders to such aliens as it may deem undesirable additions to its population, has been examined and upheld in numerous cases, most of them dealing with the exclusion of the Chinese.

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In the Chinese Exclusion Case, decided in 1887, the Supreme Court said: "To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination, so far as the

7 Sub nom. Chae Chan Ping v. United States, 130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068.

subjects affected are concerned, are necessarily conclusive upon all its departments and officers. If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity of the proceeding more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other. In both cases, its determination is conclusive upon the judiciary. If the government of the country of which the foreigners excluded are subjects is dissatisfied with this action, it can make complaint to the executive head of our government, or resort to any other measure which, in its judg ment, its interest or dignity may demand; and there lies its only remedy."

In this case the court held that so essential to a State is this right of excluding undesired aliens, the State may not be prevented, even by treaty, from exercising it at its own discretion. Thus, in holding valid an act of Congress the terms of which were in violation of a treaty previously entered into by this country with China, the court said: "The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract. Whatever license, therefore, Chinese laborers may have obtained previous