No state can treat with cruelty, or deprive of their property, the subjects of another, whom some calamity, such as the distress or stranding of a vessel, throws within its borders, without wrong and just claim of redress.

§ 64.

Within these limits, intercourse, whether through travelers or merchants, is regulated by the free sovereign act what a state of each state. Whether it will have a passport may do. system, a protective tariff, special supervision of strangers; whether it will give superior commercial privileges to one nation over another; in short, whether it will be fair and liberal, or selfish and monopolizing, it must decide, like any private tradesman or master of a family, for itself. The law of nations does not interfere at this point with the will of the individual state.1

It deserves to be remarked, however, that non-intercourse and restriction are fast disappearing from the commercial arrangements of the world, and that jealousy of foreigners is vanishing from the minds of all the more civilized nations, in

1 There is a difficulty in the theory of international law, arising from the weakness of the claim which one state has to intercourse with another, compared with the immense and fundamental importance of intercourse itself. There can be no law of nations, no civilization, no world, without it, but only separate atoms; and yet we cannot punish, it is held, the refusal of intercourse, as a wrong done to us, by force of arms, but can only retaliate by similar conduct. I have, in § 25, endeavored to meet this by a parallel case, — marriage is all important, yet for commencing it entire consent of the parties is necessary. And yet, to put intercourse on the ground of comity or even of duty, fails to satisfy me. Practically, we may say that nations will have intercourse by trade and otherwise, whenever they find it to be for their interest; but the case of half-civilized or long secluded nations, which satisfy their own wants, and rather avoid than desire foreign articles, shows that ages may elapse before views suggested by self-interest or suspicion are abandoned. Shall we then force them into intercourse? Perhaps we may, if we get a just occasion of war with them; but not because they take a position which, though disastrous for the interests of mankind, is yet an exercise of sovereignty. But apart from this theoretical view, there are many duties, duties of mutual help, incumbent on nations who hold intercourse with one another, which serve to facilitate such intercourse. Such are, aid to travelers, use of courts, and the like, which ought to be regarded as the necessary means of promoting admitted intercourse, and therefore as obligatory, when intercourse is once allowed.

the East as well as in the West. The feeling that there is a certain right for lawful commerce to go every where is in advance of the doctrine of strict right which the law of nations lays down. The Christian states, having tolerably free intercourse with one another, and perceiving the vast benefits which flow from it, as well as being persuaded that in the divine arrangements of the world, intercourse is the normal condition of mankind, have of late, sometimes under pretext of wrongs committed by states less advanced in civilization, forced them into the adoption of the same rules of intercourse, as though this were a right which could not be withheld. Recent treaties with China and Japan have opened these formerly secluded countries to commercial enterprise, and even to travel; and the novel sight of an ambassador from Japan visiting our country will not be so strange as the concessions of trade which this shy people has already granted. It is conceded, moreover, that the great roads of transit shall be open to all nations, not monopolized by one; and the newer commercial provisions quite generally place the parties to them on the footing of the most favored nations. This freedom and spread of intercourse is, in fact, one of the most hopeful signs in the present history of the world.

Individual

tled to pro

§ 65.

There could be no intercourse between nations if aliens and their property were not safe from violence, and even aliens enti- if they could not demand the protection of the state tection. where they reside. This protection, be it observed, is territorial in its character, that is, it is due to them only within the territory of a state, on its vessels, and when they are with its ambassadors; while the protection of citizens or subjects, as being parts or members of the state, ceases at no time and in no place. The obligation to treat foreigners with humanity, and to protect them when once admitted into a

1 Since this was written, in 1859, a Japanese delegation has become a matter of fact (2d ed.), and now, in 1878, our intercourse with Japan seems to be on as firm a basis as that with any country of Europe.

country, depends not on their belonging to a certain political community which has a function to defend its members, nor wholly on treaty, but on the essential rights of human nature. Hence,

1. It has been claimed with apparent justice, that aliens have a right of asylum. To refuse to distressed foreigners, as shipwrecked crews, a temporary home, or to treat them with cruelty, is a crime. As for the exile who has no country, international law cannot insure his protection; but most nations, in ancient and modern times, that have passed beyond the inferior stages of civilization, have opened the door to such unfortunate persons; and to shut them out, when national safety does not require it has been generally esteemed a flagitious and even an irreligious act. The case of aliens who have fled from their native country on account of crime, will be considered in the sequel.

2. The right of innocent passage has already been considered. It may be claimed on stronger grounds than the right of entering and settling in a country, for the refusal may not only injure the aliens desirous of transit, but also the country into which they propose to go. The right of transit of armies, and of entrance of armed ships into harbors, will be considered by themselves. As their presence may be dangerous, to refuse transit or admission in these cases rests on grounds of its own.

3. The right of emigration. Formerly it was doubted whether an individual had a right to quit his country and settle elsewhere, without leave from his government; and in some countries he who did go had to sacrifice a part of his property. At present such a right is very generally conceded, under certain limitations. "The right of emigration," says Heffter, "is inalienable: only self-imposed or unfulfilled obligations can restrict it." The relation of the subject to the

1 By the jus detractûs, droit de detraction, property to which strangers out of the country succeeded was taxed. By an analogous tax, as the gabelle d'emigration, those who left a country were amerced in part of their goods, immovable or movable. Such odious rights, says De Martens (i., § 90), although existing still, are very generally abolished.

sovereign is a voluntary one, to be terminated by emigration. But a state is not bound to allow the departure of its subjects, until all preexisting lawful obligations to the state have been satisfied. Notice, therefore, may be required of an intent to emigrate, and security be demanded for the satisfaction of back-standing obligations, before the person in question is allowed to leave the country.1 De Martens writes to this effect.2 "It belongs to universal and positive public law to determine how far the state is authorized to restrict or prevent the emigration of the natives of a country. Although the bond which attaches a subject to the state of his birth or his adoption be not indissoluble, every state has a right to be informed beforehand of the design of one of its subjects to expatriate himself, and to examine whether by reason of crime or debt, or of his engagements not yet fulfilled towards the state, it is authorized to retain him longer. These cases excepted, it is no more justified in prohibiting him from emigrating, than it would be in prohibiting foreign sojourners from doing the same. These principles have always been followed in Germany. They have been sanctioned even by the federal pact of the German confederation, as far as relates to emigration from the territory of one member of the confederation to that of another."

Relation of

laws, and

their coudition.

§ 66.

Foreigners admitted into a country are subject to its laws, unless the laws themselves give them, in a greater aliens to the or less degree, exemption. This is rarely done, and the general practice of all Christian states treats foreigners except some especial classes of them— as transient subjects of the state where they reside, or on whose ships they sail over the high sea. They are held to obedience to its laws, and punished for disobeying them, nor is it usual to mitigate their punishment on account of their ignorance of the law of the land. They are again, as we have seen, entitled to protection, and failure to secure this, or any 1 Heffter, §§ 15, 33.

2 Precis, etc., Paris ed. of 1858, § 91.

act of oppression may be a ground of complaint, of retorsion, or even of war, on the part of their native country. On the other hand, the law of the land may without injustice place them in an inferior position to the native-born subject. Thus they may be obliged to pay a residence tax, may be restricted as to the power of holding land, may have no political rights, may be obliged to give security in suits where the native is not, may be forbidden to enter into certain callings, may be subjected to special police regulations, without any ground for complaint that they are oppressed. But most restrictions upon foreigners have disappeared with the advance of humane feeling and the increasing frequency of intercourse between nations; until they are in almost all Christian countries, in all rights excepting political, nearly on a level with native-born persons. In fact, if foreigners are admitted to establish themselves in a country, it is but justice that all private rights should be accorded to them. Thus the courts of their domicil ought to be as open to them as to the native-born citizen, for collecting debts and redressing injuries.

§ 67.

Progress of

humanity comity toaliens, illus.

and of

wards

trated.

The progress of humanity in the treatment of foreigners, may be shown by the following brief sketch, including only Greece and Rome, and the Christian states. In Greece different policies prevailed. Aristocratic and agricultural states were in general jealous of strangers, democratic and commercial ones viewed them with favor. Sparta was called expóέevos, as excluding them and watching them while in the territory. At Athens, where the policy was humane and liberal, domiciled strangers, -metoeci, were subject to a small stranger's tax, had heavier pecuniary burdens than the native citizen, were required to serve in the army and navy, and needed a patron for the transaction of legal business. Their great numbers, equal to one half of the citizens, show that they prospered under this policy, which was extended to barbarians as well as to Greeks. Sometimes they attained, by vote of the community,