or construed to apply to, or affect any free and 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.❜ 1 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 departure 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 objects of international law, as now established. 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. 2 This qualification is suggested by the treaty of friendship, &c., tween France and San Salvador, Jan. 2, 1858, 7 De Clercq, 362. be 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 nor 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, and the documents which establish them, should be at a proper day communicated to the diplomatic or consular agents of their nation 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 judgment 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 De Clercq, 10. San Salvador, Jan. 2, 1858, V., 7 Id., 362. 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 suggested that that should not 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. 2 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. Effect of passport. 324. A passport is a certificate that the holder is a member of the nation by which it is given. It must, until revoked, be taken in every other nation as conclusive evidence of such membership, subject to the local regulations for verification; and also subject, in the administration of justice in civil cases, to the rules of evidence applicable in the tribunals. See a somewhat different provision as to effect of passports of ships, in Article 279. The United States have treaties with several Powers regulating the rights of naturalized citizens of the United States, on their return to their native lands. The protection which the passport gives is regulated in each such case by the terms of the treaty. Copies of these several treaties are given in Appendix No. 2, of U. S. Consular Regulations, 1870. Certificates of citizenship have heretofore been issued by diplomatic and consular agents of the United States to persons residing in foreign lands, and claiming to be American citizens. But the issue of such certificates, except in the form of passports, is now expressly prohibited. U. S. Cons. Reg., ¶ 109. Passports not to be required. 325. No nation, unless engaged in war, shall require passports from members of the other nations. This rule, already practically adopted by several nations, is proposed as a reasonable and convenient one for all the nations uniting in the Code. Some of the treaties, however, sanction the requirement of passports; for instance, that of the United States with the Swiss Confederation, Nov. 25, 1850. Art. IV., 11 U. S. Stat. at L., 589. During the Franco-Prussian war of 1870, France required passports duly certified by the French authorities, from all persons landing in France, without respect to age, sex, or nationality. Those not thus provided were liable to be turned back or detained. Armed expeditions. 326. The liberty of entry into a nation extends only to individuals and peaceful companies. Armed foreigners are not entitled to admission into the territory of a nation, without express permission first obtained. Marten's Law of Nations, Bk. 3, ch. 3, § 2; Bluntschli, Droit Intern. Codifié, 383. Searches and seizures. 327. The right of foreigners to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, must not be violated, and domiciliary visits cannot be made in respect to them, without legal warrant. This provision is from the treaty between Great Britain and Accounts and Papers, 1867, vol. LXXIV., (36.) Colombia, Feb. 16, 1866, Art. XVIII., Italy, Aug. 6, 1863, " XVII., {Accounts and Papers, 1864, vol. LXVI., (35.)]. Constitution of the United States, 4th Amendment. Treaty between the United States and Hayti, Nov. 3, 1864, Art. VIII., 13 U. S. Stat. at L., 711. The latter provides, that "there shall be no examination or inspection of the books, papers, or accounts of the citizens of either country residing within the jurisdiction of the other, without the legal order of a competent tribunal or judge." The treaty between the United States and Peru, July 26, 1851, Art. XIX., (10 U. S. Stat. at L., 934,) provides, that citizens of one nation within the other shall not be liable to imprisonment without formal commitment under a warrant signed by a legal authority, except in cases flagrantis delicti, and shall in all cases be brought up for examination within twentyfour hours after arrest, and if not so examined shall be discharged. Unusual burdens not to be imposed. 328. No other or more burdensome conditions can be imposed on foreigners, or on their enjoyment of the rights mentioned in this Code, than on the members of the nation where they reside. But this provision does not extend to the exercise of political rights, nor to a participation in the property of communities, corporations, or institutions of which such foreigners shall not have become members or coproprietors. This provision is from the treaty between the United States and the Swiss Confederation, Nov. 25, 1850, Art. I., 11 U. S., Stat. at L., 588. Many other treaties contain a provision to the same general effect. A clause securing equality of taxes and imposts is contained in most of the other treaties of the United States; but that subject is more specifically regulated by Chapter XXX., entitled TAXATION. The uniformity of charges upon vessels is more specifically treated in the Title on IMPOSTS, in Part III., entitled UNIFORM REGULATIONS FOR MUTUAL CONVENIENCE. The treaty between France and Switzerland, concerning the establishment of members of either nation within the other nation, June 30, 1864, (9 De Clercq, 91,) subsequently extended to the French colonies, (9 Id., 372,) provides, that Frenchmen, without distinction of faith, shall be received and treated in each canton of Switzerland in the same manner as shall be those of Christian faith who come from the other cantons of Switzerland, and shall not be subjected to any other burdens than are such members of other cantons, and declares the rule for the Swiss in France to be reciprocal. Removal. 329. Foreigners have the right at all times freely to quit the territory. Bluntschli, Droit Intern. Codifié, § 392. Removal in case of war is provided for in Book Second, on WAR. SECTION II. RIGHTS OF OCCUPATION. ARTICLE 330. Commercial occupations. 331. Vocations generally. Commercial occupations. 330. Members of any nation are at liberty, subject to the provisions of this Code, freely to come with their ships and other property to all resorts of commerce in the territory of the other nations; to acquire real and personal property for any lawful occupation; to manage their own affairs themselves or by such agencies as they please; and to carry on trade lawfully in the country. This article is suggested by the following treaties, by which its substance is to a greater or less degree already adopted between the nations specified. Treaty between Great Britain and Salvador, Oct. 24, 1862, Accounts & Papers, 1863, vol. LXXV., (47.) Nicaragua, Feb. 11, 1860, Id., 1860, vol. LXVIII., (30.) Mexico, Feb. 26, 1826, 3 Hertell, 251. Colombia, Feb. 16, 1866, Accounts & Papers, 1867, vol. LXXIV., (36.) |