matter of civil rights, when within the territory of a State other than his own, is again strictly a matter of municipal law. But in general aliens are allowed to hold personal property, and in many States real property also, although some States still forbid this (c). They are allowed to intermarry, to engage in trade or commerce, to enter into contracts, and to have recourse to the Courts as regards claims within their competence. But they are usually debarred from the exercise of public rights; and also from being registered as owners of vessels entitled to the national character; and sometimes also from following certain professions. As they owe a temporary allegiance to the local law, so they are entitled to its protection, and the State to which they belong is entitled to require from the State in which they reside that the latter shall ensure that laws for their protection are adequately enforced (d). At the same time they are not entitled to greater protection than native residents, and cannot, in general, complain if they suffer only in common with other inhabitants of the country. So, injury or damage suffered in the course of civil war or foreign invasion in common with native residents will not afford any cause of complaint against the territorial Power. On this ground Great Britain refused to demand compensation for injuries inflicted on the property of British residents in the course of the American Civil War in 1863, or in the course of the German invasion of France in 1870 (e). By the Peace Treaties, Germany and Austria undertook not to subject the property rights or interests of the nationals of the Allied or Associated Powers to any measures in derogation which are not applied equally to the property rights or interests of German or Austrian nationals respectively, and in the event of any such derogation to pay adequate compensation (ƒ).

Responsibility of the Territorial Power. Nevertheless a resident alien occupies in some respects a better position than a native resident, for the reason that under certain conditions he will be entitled to fall back on the international responsibility of the State in which he resides, and for this purpose to appeal for protection to the State to which he belongs. And this right applies not only as against the territorial Power, but also as against a third Power. So, in time of war a belligerent invader who has inflicted injuries on the citizens of a neutral State resident within the invaded territory, in violation of the laws of war, may be held internationally responsible to the State to which such persons belong (g). The responsibility of the territorial Power in relation to nationals of other States present or resident within its limits may perhaps be summarised as follows: (1) Primâ facie, the nationals of one State who voluntarily enter or take up their residence within the territory of another State will be deemed to accept both its laws and its system of administration as they find them, and also to accept any risks arising out of peculiar local conditions. (2) Nevertheless, the territorial Power, if it allows such persons to enter and

(c) This was the case in England formerly, and is still the case in some of the States, as well as in the territories of the United States.

(d) As to cases where the local law is defective, and the case of Rahming, see Hall, 287; and infra, p. 230.

(e) Taylor, 262.

(f) Treaty of Versailles, 1919, Art. 276. Treaty of St. Germain, 1920, Art. 250.

(g) Secus if the injury arose out of acts of legitimate warfare; see Wharton, Dig. ii. 582.

reside within its limits, and exercises jurisdiction over them, is required to treat them with reasonable consideration; to see that the existing law is adequately enforced on their behalf; and to see that they are not denied justice, or discriminated against in matters necessary to ordinary life. (3) The territorial Power, moreover, is bound, not merely to see that its laws are fairly administered, but also to provide laws and a system of administration that are not glaringly deficient according to civilised standards, together with a reasonable measure of protection, having regard to the standards of an average well-ordered community and the existing local conditions (h). On this principle every State is bound to provide reasonable means for preventing injury to other States and their subjects, including an honest judiciary and an adequate police (i). These may vary according to local conditions and the character of the national institutions; but they must not fall short of such means as may be considered essential to an average well-ordered community. (4) At the same time a State is not bound to provide absolute protection; and to establish a case of international responsibility there must be some proof of international delinquency, in the shape of a failure on the part of the territorial Power to fulfil the obligations already indicated (k).

Possible Cases of Injury.-In a case where the injury arises from some wrongful act or omission on the part of its officials, the local Power will be deemed responsible, unless such acts are disavowed and adequate reparation made (kk). In a case where the injury arises out of a wrong alleged to have been sustained by the defective administration of justice, a State will not, of course, incur any liability for decisions that are merely erroneous; but a State will be internationally responsible if it can be shown that the law unjustly discriminates against aliens, or that the ordinary administration of justice has been manifestly perverted or distorted to the detriment of some particular individual, without hope of judicial redress (1). In a case where the injury arises out of the acts of private persons, as happened in M. Pacifico's case, in order to establish any international delinquency it must be shown, either that the local Power could by reasonable diligence have prevented the outrage complained of; or, if this was impracticable, then that it failed to exercise reasonable diligence in prosecuting the offenders and in affording such other reparation as was warranted by the local law; or, finally, that the law was so defective or the Courts so corrupt as virtually to afford no adequate protection to foreigners within its limits (m). Nor, in general, can defects of the

infra; Taylor, 260; Hall, 218; and as to contractual claims especially against a foreign Government, p. 181, supra.

(m) See the judgment in Hubbell v. U.S. (15 Ct. Cl. 546; Scott, p. 462 n). For the New Orleans lynching of Italians in 1891, see Scott, p. 328 n; and Wharton, Dig. i. p. 473 et seq., and ii. p. 600. For the Cadenhead Case, see Amer. J. I. L. vol. viii. 663-5.

local constitution or of the existing municipal law be set up as an excuse for the non-fulfilment of international obligations of the character previously described. This question was raised both in Cutting's Case and virtually also in the Newfoundland fishery dispute between Great Britain and the United States. A general answer is attempted at p. 230, infra. It arose again in 1907, when complaint was made by Japan to the United States Government with respect to the treatment of its subjects in California, and the unjust discrimination against them shown in their exclusion from the local schools; this being really a matter for the State Legislature, which the federal authorities appeared to have no power to remedy. In the result, however, and at the request of the federal authorities, the obnoxious regulations were withdrawn. And a similar fate has, so far, overtaken other obnoxious legislation proposed in the State Legislature; although the anti-Japanese feeling has by no means subsided. In September, 1907, similar demonstrations and disturbances occurred in British Columbia.

DOMICILE.

THE "INDIAN CHIEF."

[1800; 3 C. Rob. 12.]

Case.] IN 1795, during war between Great Britain and Holland, the Indian Chief," a vessel belonging to one Johnson, but sailing as an American ship, with American papers, proceeded on a voyage from London to Madeira, and thence to Madras, Tranquebar, and Batavia. In 1797, on the return voyage, with a cargo shipped at Batavia, the master put into an English port for orders; whereupon the vessel was arrested, on the ground that she was the pro perty of a British subject, and had been engaged in an illegal trade with the enemy. It appeared that Johnson had been born in America before the War of Independence; that on the outbreak of hostilities he went to France; and that in 1783 he came to England, and was resident and engaged in trade in that country until 1797. It appeared, however, that in 1797, before the arrest of the vessel, he had left England and returned to the United States. It was held that although between 1783 and 1797 he must undoubtedly be taken to have acquired an English domicile, and to have been subject to English municipal law, yet that on his return to the United States in 1797 his American character must be

deemed to have reverted; and that the vessel was not therefore liable to condemnation. In the same case a question also arose as to the nationality and consequent liability of the owner of the cargo. This belonged to one Millar, who was engaged in trade in Calcutta, but also acted as American consul at that place. After some discussion as to the nature of the British authority in India, it was held, in effect, that as the credentials of consuls there were addressed to the British Government, Millar must be regarded, in view of the fact that he resided and carried on trade in British territory, as a British merchant, and that the cargo belonging to him, having been taken in trade with the enemy, was subject to confiscation.

Judgment.]. Sir W. Scott (Lord Stowell), in giving judgment, stated that although the vessel sailed as an American ship and with American papers, yet if the owner really resided in England and the voyage were such as an English merchant could not engage in, then the fact of his being an American citizen, and the fact of his furnishing the ship with American papers, would not protect the vessel, for the reason that liability depended on the actual character of the owner. On a review of the facts the learned judge held that Johnson must be regarded as an American by birth, as having been adopted as an American subject by the act of the American Government, and as retaining the benefit of his native American character. Nevertheless, between 1783 and 1797, during which time he resided in England and engaged in trade there, he was undoubtedly to be considered as an English trader; for no position was better established than this--that "if a person goes to another country and engages in trade and resides there, he is by the law of nations to be considered as a merchant of that country." If Johnson had continued to reside in England, the transaction would have been considered as a British transaction, and therefore as a criminal transaction, on the common principle that it is illegal in any person owing an allegiance, even though temporary, to trade with the public enemy. But there was evidence that Johnson had for some time formed an intention of leaving England, which had been prevented by various obstacles; and it was clearly shown that in September, 1797, he did actually return to America, and that this occurred some weeks before the

arrest of the vessel. Inasmuch as the character of Johnson as a British merchant was only acquired by residence, and founded on residence, it must be held that from the moment he turned his back on the country where he resided, on his way to his own country, he resumed his original character, and was to be considered as an American. The character gained by residence was an adventitious character, which no longer attached from the moment he put himself in motion, bonâ fide, to quit the country, sine animo revertendi.

This case serves to illustrate the nature of what is sometimes called "commercial domicile" (n); although it may perhaps be doubted whether there is any substantial distinction between this and the "civil domicile" referred to hereafter (o). Commercial domicile denotes a settled residence in a particular country, for the purposes of trade, by virtue of which a person, even though politically a member of another State, is deemed to be so far identified with the State in which he resides and trades as to share its national character, whether as belligerent or neutral, in time of war. So, from the point of view of the British Courts and of those of the United States and Japan, if, in time of war, a person, whatever his national character, is found to be domiciled in the territory of one belligerent, his ships and property on the sea will be deemed to be liable to capture by the other (p). Moreover, if his domicile is British, he will be debarred from engaging in trade with the enemy, under pain of forfeiting the property involved (q). Finally, if domiciled in the enemy territory, he will also be debarred from suing in British Courts during the continuance of the war (r). But, inasmuch as these consequences are founded only on residence, they will cease to apply so soon as such residence has been brought to an end bona fide and sine animo revertendi; more especially in a case where the withdrawal is to the country of origin. Conversely, if, in time of war, a person is found to be domiciled in a neutral country, he will, from the point of view of the British Courts, even though a subject of either belligerent, be freed from such of these consequences as would otherwise attach to him (s). Commercial domicile, however, which depends on residence, and confers, generally, an enemy character, must be distinguished from the possession of a house of trade, or an interest in a house of trade, in the enemy country, which, independently of residence and even though accompanied by a neutral domicile, will affect with an

(n) Dicey, Conflict of Laws, p. 735 et seq.

(0) Infra, p. 217.

(p) The Harmony (2 C. Rob. 322); The Venus (8 Cranch, 253); infra, p. 217 n (u).

(q) The Indian Chief (supra).

(r) Albrecht v. Sussmann (2 Ves. & B. 323).

(s) Hence, even though a British subject, he will not be debarred from engaging in trade with the enemy; see The Danous (4 C. Rob. 255 n).