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he is entitled to a jury of which a portion should be of a race speaking his own language. An interesting question arises when a foreigner is indicted for a political offence which he is required to commit by his own sovereign. In such a case the command of the foreign sovereign is no defence. If the defendant, in such a prosecution, is convicted in violation of the law of nations, it is the duty of the executive to interfere with a pardon. If this is impracticable, the question is one for international adjustment. A foreigner cannot say that he is not bound to obey the laws of the state where he is sojourning. But if the act for which he is convicted is one enjoined by his own sovereign, then that sovereign must be held responsible.1

See, on the above topic, Whart. Con. of Laws, §§ 819, 820; Whart. Crim. Law, 8th ed., §§ 269, 281, chap. i.; Holtzendorff, op. cit., 1215; Bonfils, De la competence des tribunaux français à l'egard des Estrangers, 1865; Ueber die Fehler des Franz. Civilrechts bezuglich der Fremden. As to compulsion by sovereign as a defence, see supra, § 144: infra, § 210; Whart. Crim. Law, 8th ed., §§ 94, 283, 310; Ford v. Surget, 97 U. S. 594, cited infra, § 210. As to conflicts of criminal jurisprudence, see infra, §§ 350 et seq.

Sir R. Phillimore (op. cit., 445), differing in this respect from Heffter (§58), holds that, "as a general proposition, a man can have only one allegiance." But I must agree with Heffter in holding that a mere resident in a state owes, for the time being, allegiance to such state, and may be guilty of treason to such state if, as a private person, he wages war against it, or renders comfort to its enemies. Cobbett, for instance, when in the United States, was never naturalized, nor did he ever restrain himself from declaring that he was and meant to continue to be a British subject; yet

no one would have pretended that Cobbett, while residing in the United States, was not liable to be indicted for all offences, political or otherwise, made indictable in the place of his residence. The same position has been repeatedly taken by the British government in respect to citizens of the United States who, when residing in Ireland, have been engaged in con-* spiracies against the British-government. The question, however, may be merely of the meaning of words, since Sir R. Phillimore, in the next page to that from which the above passage is cited, says: "All strangers commorant in a land owe obedience, as subject for the time being, to the laws of it. That the home sovereign has allegiance due him from such persons is maintained by all civilized states, there being no such state which does not maintain its right to levy taxes on such persons, and to hold them responsible for all offences committed by them against its sovereignty. Whart. Crim. Law, 8th ed., §§ 269 et seq., 281; Phill., op. cit., 455; Van Wyck, De delictis extra regni territ. commiss., Utrecht, 1839. As to commer

§ 179. It is within the constitutional power of a sovereign to exclude foreigners, either as a class or specially from his

cial domicil, see infra, § 219. That residence establishes belligerent character, see Johnson v. Falconer, 2 Paine, 601; S. C., Van Ness, 1.

It has been held in England, that where a foreigner in England is guilty of a breach of neutrality in conspiring against his native country, the English government will undertake the prosecution, and will not leave it to the representatives of the foreign state. See debate in the house of lords, March, 1853.

The following citations are from Fields's Code of Int. Law, 2d ed., p. 87:

"In 1799, certain English subjects were prosecuted for publishing a libel upon Paul I., emperor of Russia. They were convicted and punished by fine and imprisonment. State Trials (Howell), vol. xxvii. 627-630.

"In 1803, Jean Peltier, a French refugee, was prosecuted for a libel on Napoleon Bonaparte, then first consul of the French Republic. He was convicted, but the breaking out of war prevented his receiving judgment. State Trials (Howell), vol. xxviii. 530-619 (see R. v. Most, cited supra, § 138).

"Woolsey (International Law, §79) says: 'A nation has a right to harbor political refugees, and will do so, unless weakness of political sympathy lead it to a contrary course. But such persons may not, consistently with the obligation of friendship between states, be allowed to plot against the person of the sovereign, or against the institutions of their native country. Such acts are crimes, for the trial and punishment of which the laws of the land ought to provide, but do not require that the accused be remanded for trial to his native country.' See, also,

Wildman's International Law, p. 59; Law Lib., vol. lii. p. 42.

"After the attempt to assassinate the emperor of the French on the 14th of January, 1858, the French minister of foreign affairs represented that plots to assassinate the emperor had been formed in England, and asked that England should provide for the punishment of such offences. In accordance with the request, Lord Palmerston, being prime minister, on the 8th of February introduced a bill for the punishment of conspiracies formed in England to commit murder beyond her majesty's dominions; but the bill was rejected, and the ministry immediately resigned. The bill was opposed by some from an unwillingness to interfere in any way with the right of asylum; but the controlling reason evidently was a feeling that the French government had used too dictatorial a tone in demanding the passage of such a law. Annual Register, 1858, pp. 5, 33, 202; Annuaire des deux Mondes, 1857-8, pp. 32, 110, 420; cited in Lawrence's Wheaton, p. 246, note.

"The same application was made to Sardinia, and a law was passed there making it a special offence to conspire against the lives of sovereigns, although the punishment originally proposed in the bill as introduced by the ministers, was mitigated by the chambers. M. Cavour sustained the measure, both on political grounds and because he deemed it important that Sardinia, under the circumstances in which she was placed, should not act in opposition to the views of France. Annuaire de deux Mondes, 1857-8, p. 216."

As to effect of annexation on allegiance, see infra, § 433.

1

may be ex

general or

shores. This right, which is called in the books the Droit de renvoi, was exercised by England in 1792, under an act of parliament called the alien act; and a similar Foreigners act was passed by our own congress during the ad- cluded on ministration of John Adams. The constitutionality special of such a statute was at the time questioned; but grounds. there can be little doubt that as an exercise of the war power or as a means of suppressing insurrection, it may be sustained. The constitutionality of the Chinese exclusion act of 1880, may be defended on the ground of the general right of the Federal government to regulate commerce and emigration. It is proper, however, that the ground of such non-reception or expulsion should be notified to the nation whose citizens are thus repelled.2

Duties pertaining to

domicil.

§ 180. A domiciled resident, even though not naturalized, has duties laid on him greater than those imposed on transient visitors. He becomes liable to local taxation, and he is so far steeped in the jurisprudence of the country of his domicil that by it his family relations are determined, and his personal estate is distributed after his death. A modified grade of domicil, as will be hereafter seen, has been held in England to attach to persons who

1 Lorimer, Law of Nations, i. 344.

2 "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 departure from it." Phil. Int. Law, i. 407. And see supra, § 146.

According to Martens, 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. Martens's Law of Nations, Bk. 3, ch. 3, § 2.

See as to Chinese emigration, infra, §§ 264, 435; Whart. Con. of Laws, 2d ed., Introduction; and on the general topic Holtzendorff, ut sup., citing Nicot, Etude historique sur le naturalisation, 1868; Westlake, De la naturalisation et de l'expatriation, 1868; Munde, Bancroft Naturalization, 1868; Marlitz, Recht der Staatsgehörigkeit, in Hirth's Annalen, 1875; Desfontaines, De l'Emigration, 1880; De Folleville, Traité de la naturalisation, 1880. As to quarantine, see Sir S. Baker, International Rules of Quarantine, 1879. As to police exclusions under the Federal constitution, see infra, §§ 425, 486, 565.

3 See as to discussion whether domicil or nationality, impresses these characteristics, Whart. Con. of Laws, 2d ed., §§ 32 et seq.; infra, §§ 254 et seq.

sojourn in a foreign country for the purposes of trade, and who, when such country becomes a belligerent, have been viewed as impressed with its nationality.1

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§ 181. It was held by Lord Stowell, in 1817,2 and subsequently by the supreme court of the United States, that the slave trade is not piracy by the law of

Slave trade no longer allowed.

nations, nor, in itself, illegal. At that time slavery was recognized by law in the United States and in Russia, as well as in minor states, and, though the slave trade was piracy by statute law in the United States and in England, it had not been declared illegal by France, and it was tacitly sanctioned by Brazil. Since then, however, the conditions have changed. In 1818, a year after Lord Stowell's decision, the slave trade was made illegal in France, and there is no portion of the civilized world in which it is now sanctioned.5 This, taken in connection with the abolition of slavery in the United States and in Russia, leads us to the conclusion that, by the law of nations, the slave trade is no longer legal. To steal goods on the high seas is an offence against the law of nations, and so is the exportation of stolen goods. If this is the case with the stealing of goods, why not with regard to the stealing of men? Even if, as in the case of England and the United States, such an offence be not larceny, it is indictable as abduction; and, aside from this reasoning, since by all civilized states the slave trade is now a criminal offence, we may hold that, by the consent of all nations, it is now an offence internationally. If this be the case with the forcible abduction and transportation of persons of African descent, it is also the case with regard to the capturing and reduction into slavery of persons of other races. This, however, does not preclude the temporary detention and incarceration of

1 Infra, § 219; see Wildman, ii. 40; Hartmann, § 85. As to domicil generally, see infra, §§ 254 et seq.

2 The Louis, 2 Dod. Ad. 240.

3 The Antelope, 10 Wheat. 66. Infra, §§ 280-452.

5 In December, 1841, Austria, Prus

sia, and Russia, states which had previously taken no action in this relation, entered into a convention making the slave trade piracy.

6 See, to this effect, Heffter, § 32; Phillimore, op. cit., 406 et seq.

prisoners of war, provided they are treated in conformity with the conditions of military law.1

Nor slavery

§ 182. It is also settled that slaves, on reaching a nonslaveholding state, will be regarded as free, and will be released from imprisonment and discharged by the proper authorities on the making of due application.2

1 R. v. Serva, 1 Den. C. C. 104, does not necessarily conflict with the position in the text. In that case a Brazilian slaver, the Felicidada, was captured and taken possession of by officers and seamen of a British cruiser. The crew of the Felicidada rose on and killed the British officer and men having charge of the vessel. Subsequently the Felicidada was recaptured by a British vessel and the crew brought to England, where they were tried for murder. It was held by a majority of the judges that the English courts had no jurisdiction of offences committed on the Felicidada, and this can only be sustained on the ground that the slave trade is not piracy by the law of nations. But this was before the abolition of slavery in the United States and Russia, and before the stringent British statute of 1845. Brazil, also, has now by statute provided that every child born of slave parents after September 28, 1871, shall be free, and Spain has pledged itself to abolish slavery in Cuba. Phill., op. cit., 436. There is, therefore, no longer a civilized state by which slavery is avowedly tolerated.

In June, 1873, Sir Bartle Frere concluded with the sultan of Zanzibar a treaty by which the latter prohibited slavery in his territory, and Russia, in the same year, secured similar engagements from the emir of Bokhara and the khan of Khiva.

As to right of search of slaves, see infra, §§ 194 et seq.

by hon slavehold

ing states.

By the constitution of the United States, as originally adopted, power was given to congress, after the expiration of the year 1808, to prohibit the importation of slaves. By the act of congress of March 2, 1807, the importation of slaves after Jan. 1, 1808, was made a criminal offence, subject to severe penalties, which were increased, and the prohibition extended by the acts of April 20, 1818, and May 15, 1820.

The position taken by Sir W. Scott, in the Amedie, 1 Acton, P. C. 240, is that English tribunals will hold the slave trade illegal when prohibited by the municipal laws of the country to which the parties belonged, but not otherwise. And in the Diana, 1 Dods. 95, where a Swedish vessel, carrying slaves from Africa to the West Indies, Sweden not having then prohibited the slave trade, was captured by a British cruiser, she was restored to the owner on the above ground. In The Louis, 2 Dods. 210, as above stated, it was further decided that the right of visitation and search, on the African seas, did not exist in time of peace, unless as between nations authorizing by treaty such right. See Buron v. Denman, 2 Exch. 167; rev. 8 C. B., N. S., 861; Madrose v. Willes, 3 B. &. Ald. 353.

2 The Negro Case, 20 How. St. Tr. 82, and other cases cited; Phill., op. cit., 334. "The state of slavery," said Judge Story, long before the late civil war, "will not be recognized in any country whose institutions and polity

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