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THE PARTICIPATION OF THE ALIEN IN

THE POLITICAL LIFE OF THE

COMMUNITY

Address delivered at the Annual Meeting of the American Society of

International Law, held at Washington, April 27-29, 1911. Reprinted from the Proceedings of the Society for the year 1911.

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N discussing this subject, it is necessary, first of all, to distinguish between the political rights of the indi

vidual—whether he be a citizen or an alien-and his civil rights. By political rights we mean his rights to exercise the power of voting and of governing.

By civil rights we mean his social and economic rightshis rights of life, liberty, and property. It is settled by the consensus of the civilized world that political rights are not universal, like the rights of life, liberty, and property, but that they are special rights, or privileges, to which some persons in every community are justly entitled and others are not. The rights of life, liberty and property correspond to the three attributes of life, motion and prehension, with which every human being is endowed by his Creator, and the exercise of which, under proper conditions and limitations, is essential to the existence of every human being. Accordingly they are universal, and civilized nations recognize a rule of supreme law securing these civil rights. On the other hand, the right to vote and to govern corresponds to the attribute of judgment, which is not common to all, and is possessed only by sane civilized adults, who have been educated in judgment. Each nation, within reasonable limits, determines for itself who have the requisite judgment to be able, with advantage to the community, to exercise the power of voting and governing. The decision of the Supreme Court of the United States, in 1874, in the case of Minor v. Happersett (21 Wallace, 162), in which it was held that participation in the political life of a State of the Union was not a right of life, liberty or property, nor a necessary incident to citizenship of the United States, was but an application of the established customary law of the society of nations.

Considering now the various ways in which the resident alien may participate in the political life of the community, we take up first, his participation in its abnormal political life. Naturally, participation in proceedings designed to produced anarchy comes first. Here it makes no difference whether the alien is a resident or a mere visitor in the country. The offence of preaching anarchy or acting in accordance with anarchistic principles, is an offence against all nations individually and against the society of nations. The interposition of the nation of which such a resident alien is a citizen, would be confined to seeing that the offence was fairly proved and that cruel or unusual punishment was not applied. Anarchists are international outlaws and are to be treated as such.

Participation by resident aliens in open revolutionary movements raises an entirely different set of questions. A revolutionary movement may be morally right and necessary as the only means of preventing oppression by a government which is persistently acting contrary to the ends of its institution and violating the rights of the individual to his life, liberty or property. The movement is not for the overthrow of all government, but for the deposition of certain persons claiming to be a particular government. If a revolutionary movement succeeds, the revolutionists form the government of the nation. Participation by resident aliens in revolutionary movements may, however, bring upon them the vengeance of the government, or be a cause for complaint, by the government, against the nation of which the aliens are residents, or may be invoked as justification for revoking concessions made to resident aliens; and if the resident aliens appeal to their nation, the nation has to determine its course according to the needs of the situation as viewed from its own standpoint and from the standpoint of the society of nations. Considering the danger, to the peace of the world from revolutionary movements and the desirability of having political evils corrected by orderly and systematic methods, nations are very slow to give their protection to their citizens who engage in revolutionary movements in foreign countries. They will, indeed, take into consideration the fact whether or not the alien acted under compulsion in participating in the revolutionary movement, and whether or not his participation was rather for the purpose of protecting life or property than for the purpose of rendering the revolutionary movement successful. In other words, they will consider his intent, as well as his acts.

The general rule seems to be that if a resident alien participates in the revolutionary movements, he does so at his own risk, and if the nation of his citizenship interferes to protect him, it will be because, looking at the question both from the national standpoint and the standpoint of the society of nations, it is willing to countenance or excuse the revolutionary movement as the only reasonable means of combating intolerable oppression. The protection of the alien would in such case be an incident of national policy. The principle was thus expressed in a letter from the Secretary of State of this country to our minister to Corea, in 1897. (Moore's Digest, Vol. IV, p. 15.)

It behooves loyal citizens of the United States in any foreign country whatsoever, to observe the same scrupulous abstention from participating in the domestic concerns thereof, which is internationally incumbent upon his Government. They should strictly refrain from any expression of opinion or from giving advice concerning the internal management of the country, or from

any

intermeddling in its political questions. If they do so, it is at their own risk and peril. Neither the representative of this Government in the country of their sojourn, nor the Government of the United States itself, can approve of any such action on their part, and should they disregard this advice, it may perhaps not be found practicable to adequately protect them from their own consequences.

Participation by an alien in revolutionary action, therefore, is not a complete bar to his own nation extending him its protection; but if it does extend him its protection, it will be because of its views of national and international policy and of abstract right and wrong as bearing on the revolution in question.

The next question which arises is as to the effect which voluntary participation by the alien in the normal political life of the community, with its consent, has upon the right and duty of his own nation to protect him. Such an action on his part is analogous to becoming a citizen of the nation of his residence, and if carried sufficiently far, the nation of which he is a citizen may, it would seem, properly refuse him protection on the ground that his actions amount to a renunciation of his citizenship. It seems that the exercise of the franchise by the alien, or even his holding office in the nation of his residence, or participating in the military service of that nation, does not of itself operate to prevent his nation from extending to him its protection; but that, as bearing upon the question whether the alien has expatriated himself and forfeited his right to protection, such action on his part will be considered as important evidence tending to prove expatriation. (Moore's Digest, Vol. III, pp. 730–735, 783, 785.)

The right of expulsion as respects civilized aliens is now rarely exercised by civilized nations except as against aliens who have participated in the abnormal political life of the community; but it may be exercised on this ground without giving cause for international complaint. The Alien and Sedition Acts adopted by the Congress of the United States in 1798 were entirely consistent with international law, being directed against alien political agitators who were trying to engage this nation in a foreign war and probably also in a civil war. Another class of questions which has arisen is, as to the extent of the protection which a nation gives its citizens who are residents in a foreign nation which has a military conscription system, against the claim of that nation to compel them to participate in its political life as soldiers or to pay a military exemption tax. The law on this subject is so uncertain, that the question is usually settled between particular nations by treaty. One point seems, however, to be settled, namely, that in case of emergency and necessity-as, for instance, where there is danger of invasion, or of attack by savagesthe military or constabulary service of aliens, whether residents or sojourners, may be compelled. The strong tendency seems to be for nations to regard as an unfriendly act compulsion to perform military service exercised against their citizens by other nations in

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