although this privilege is granted to all other resident aliens.

It is not surprising that the States whose nationals are thus selected out and denied the rights or privileges which are granted to the nationals of other States should feel aggrieved, and seek to have this inequality of treatment corrected. But, unless they are able to point to undertakings, in treaty form or otherwise, upon the part of the discriminating State, that such discrimination will not be made, the protesting States have no legal basis for complaint. There may, indeed, be a question whether they have even an ethical or economic ground of grievance. In other words, Constitutional Law recognizes the right of every sovereign State to determine not only who shall be deemed or permitted to become its own citizens, but to decide as a matter of discretionary policy what aliens, if any, shall cross its borders, and what legal rights, if any, shall be conceded to those who are tolerated within its territorial limits. And this unlimited constitutional right is reflected in the international doctrines that have been described. Publicists are therefore pretty well agreed that, prior to the Boer War, Great Britain had no legal ground of complaint against the Transvaal because of the severe restrictions laid by that Republic upon the right of British and other aliens to obtain naturalization as its citizens. Whatever other ground for complaint Great Britain may have had, she had a legal case only insofar as she could point to pertinent provisions of subsisting treaties between herself and the Transvaal.

In those countries which have not developed bodies of law and systems of courts which command the confidence of the other Powers, those other Powers, when possible, obtain by treaties the right to maintain their own courts for the trial of cases in which their own nationals are

parties defendant. Where this extraterritorial jurisdiction does not exist, all States assert the right to take action, through their political departments, in cases in which they believe that their nationals have not been given full and fair hearing of their cases in foreign tribunals or have not had their rights determined in accordance with the lex fori, or where, as in the Cutting Case, later to be referred to, it is held that the foreign courts have improperly asserted a jurisdiction over the nationals of the complaining State."

It does not need to be said that the Government of one State will not, through its foreign office, make complaint to another State in all cases in which its nationals assert that the courts of that State have not properly weighed the evidence in the cases in which they have been parties, or have not correctly construed their own municipal law. It is only when it appears that there has been a gross miscarriage of justice, due to what strongly appears to be the incompetence, dishonesty, or partiality of the courts, that the Governments of the aggrieved nationals feel themselves warranted in making protest to foreign Governments because of action which their courts have taken.

"The regularity and legality of a court's practice and procedure are to be judged by the local law, which need

Post, p. 413.

'Daniel Webster, Secretary of State, writing to the Minister of Spain, in 1843, said: "Nations are bound to maintain respectable tribunals to which the subjects of States at peace may have recourse for the redress of injuries and the maintenance of their rights. If the character of these tribunals be respectable, impartial, and independent, their decisions are to be regarded as conclusive. If the tribunal be competent, if it be free from unjust influence, if it be impartial and independent, and if it have heard the case fully and fairly, its judgment is to stand as decisive of the matters before it. This principle governs in regard to the decisions of courts of common law, courts of equity, and especially courts of admiralty, whose proceedings so often affect the rights and interests of citizens of foreign States and Governments." Quoted by Moore, Digest of International Law, vol. II, p. 5. See also the statements of the American Secretary of the State in the Cutting Case, later to be quoted, p. 414.

not, however, manifest the liberal principles of AngloAmerican law. For example, in countries in which the inquisitorial system of criminal law prevails, a fair application of the law to aliens and citizens alike removes all ground of complaint on the part of foreign countries, even of those adopting the accusatory system. Provided the system of law conforms to a reasonable standard of civilized justice and provided it is fairly administered, aliens have no cause for complaint.

"The personal acts of judges either in their private capacity or so grossly violative of their judicial functions that they may be held to be personal acts, do not entail any liability of the Government. For their private acts they are liable as other individuals." 8

Some writers attempt to make a distinction between judgments of municipal courts which, though deemed unjust, have been reached without violation or misapplication of municipal or international law, and those which have involved violations or misapplication of law with a result that there has been a substantial denial of justice. This distinction would seem to be of value as a guiding principle, and to suggest that, as a rule, governments should confine their protests to the latter class of cases, but practically all Governments have, upon occasion, asserted the right to interpose in behalf of their nationals in extreme cases of the former class. Upon this general point, Borchard says:

"While, on principle, the erroneous or merely unjust decision of a court involving no unlawfulness or irregularity in procedure should not involve the State in respon

Borchard, Diplomatic Protection of Citizens Abroad, p. 198. If the Government in question should accept the responsibility for such acts of its judges, or if there are not available to the aggrieved parties adequate judicial proceedings against judges, the matter becomes one which the Governments of the aggrieved parties can properly take cognizance of.

Diplomatic Protection of Citizens Abroad, p. 197.

sibility, the failure of the higher courts to disapprove violations of national or international law by minor officials or other authorities fixes an international responsibility upon the State, and a flagrant or notorious injustice is not easily distinguishable from a denial of justice. Similarly, the judgment of a court in violation of a treaty or of international law serves to render the State responsible.

"It is a fundamental principle that the acts of inferior judges or courts do not render the State internationally liable when the claimant has failed to exhaust his local means of redress by judicial appeal or otherwise, for only the highest court to which a case is appealable may be considered an authority involving the responsibility of the State."

Effect of Military Occupation upon Allegiance. To what extent mere military occupation of a territory by the forces of a State, which does not claim to have permanently annexed such area to its own territory, operates to bring the persons within such occupied area under allegiance to the occupying State, deserves, perhaps, a word of discussion.

It is a doctrine of American constitutional law that mere conquest or military occupation of a territory of another State does not operate to annex such territory to the occupying State, but that the inhabitants of the occupied district, no longer receiving the protection of their native State, for the time being owe no allegiance to it, and, being under the control and protection of the victorious power, owe to that power fealty and obedience. As Chancellor Kent observes:

If a portion of the country be taken and held by conquest in war, the conqueror acquires the right of the conquered as to its dominion and government, and children born in the armies of a state, while abroad, and occupying a foreign country, are deemed to be born

in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that during such hostile occupation of a territory, and the parents adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered. And he adds that there is no reason why the same principle should not apply to the United States.10

In the quite early case of United States v. Rice 11 the effect of military possession was discussed with reference to the port of Castine, in Maine, which, for a time during the War of 1812, was in the possession of the British military forces, but, after the restoration of peace, was restored to the United States. In that case the court said:

It appears, by the pleadings, that on the first day of September, 1814, Castine was captured by the enemy, and remained in his exclusive possession, under the command and control of his military and naval forces, until after the ratification of the treaty of peace in February, 1815. . . . By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance, to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them for where there is no protection or allegiance or sovereignty, there can be no claim to obedience. Castine was, therefore, during this period, so far as respected our revenue laws, to be deemed a foreign port; and goods imported into it by the inhabitants, were subject to such duties only as the British government chose to require. Such goods were in no correct sense imported into the United States. The subsequent evacuation by the enemy, and resumption of authority by the United States, did not, and could not, change the character of the previous transactions.

In Fleming v. Page 12 the question arose whether duties

10 Commentaries on American Law, 6th ed., vol. II, p. 42. 14 Wheaton 246.

12 9 Howard 603.