another chapter. At this place it will be sufficient to quote the opinion in United States v. Rice2 in which, with reference to the status of the port of Castine, Maine, at the time it was in the possession of the British authorities during the War of 1812, the Supreme Court, speaking through Justice Story, said: "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 over the territory was, of course, suspended, and the laws 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."

Upon this same point, Chancellor Kent in his Commentaries says: "If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights 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, there is no reason why the same principles should not apply to the United States.3

§ 119. Status of Aliens.

As regards the status of aliens, that is, subjects of other States, who are temporarily or permanently domiciled in a State, it may

24 Wh. 246; 4 L. ed. 562.

2 6th ed. II, 42.

be said that the fact that they are within the territorial limits makes them, in a broad constitutional sense, members of that State and, therefore, subject to the authority of its laws, though they still remain the subjects or citizens of their native States. In fact, being under the protection of the State where they are, they owe an allegiance to it according to the maxim protectio trahit subjectionem, et subjectio protectionem. Webster, when Secretary of State, in his report on Thrasher's Case in 1851, declared: "Independently of a residence with intention to continue such residence, independently of the taking of any oath of allegiance, or of renouncing any former allegiance, it is well known, that by the public law an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be, unless his case is varied by some treaty speculations."4 This principle thus stated by Webster has been several times quoted and approved by the Supreme Court.5

§ 120. Double Allegiance.

There is no objection to predicating the existence of this double allegiance, for, despite the fact that modern sovereignty is generally spoken of as territorial, it is, in fact, personal, and imports a personal relationship between the sovereign political person – the State and its political inferiors, its subjects. Sovereignty in truth is a purely legal concept and exists only within the field of constitutional law. International relations, the relations between States, are not legal in character, and international laws, so-called, are not laws at all in a strict positive sense. They are not commands from a legal superior to a legal inferior, but are regulations governing the conduct of political equals. Within this general international field the authority or jurisdiction of governments is strictly territorial-over each territorial district there

4 Webster's Works, VI, 526.

5 United States v. Carlisle, 16 Wall. 147; 21 L. ed. 426; United States v. Wong Kim Ark, 169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.

is a particular de facto government recognized by the various States to have a right based upon actual power, to exercise political control, and, correspondingly, is held by them responsible for whatever occurs within such districts. Internationally speaking, therefore, jurisdiction is territorial and exclusive. Over any given territory, one, and only one, governing body is recognized to have legitimate authority. But sovereignty, denoting, as said, legal supremacy, a personal relationship, as predicated upon a legal subjection or allegiance of individuals to a legal superior, is not territorial; and there is thus no inherent difficulty in a sovereign claiming legal authority over individuals located outside of the limits of the territory conceded by other nations to belong to it; or of two or more States claiming at the same time, under the operation of their respective municipal laws, the allegiance of the same individual, as for instance, as we shall presently see, when one State naturalizes the subject of a State whose municipal law does not recognize the right of expatriation.

From the viewpoint of international relations, as we have just seen, the law of one State is not permitted by other States to operate outside of the territorial limits of the State which promulgates it, and, therefore, though claiming a legal authority over an individual outside of such limits, a State will not be permitted by other States to exercise it against the consent of the State within whose limits the individual is situated. But that does not render impossible the existence of or invalidate such a claim, for when, if ever, such an individual is apprehended within the territory of the State claiming authority over him he may be held responsible for acts committed while abroad. And also, as still more plainly showing the personal and non-territorial character of allegiance and sovereignty is the principle universally recognized both in municipal and international law, that a citizen of a State is in many cases entitled to the protection of that State while abroad. Thus he does not in any way lose his citizenship by departing from the territorial limits of the State of which he is a member, nor does he escape from beneath its law or cease to be entitled to its protection.

§ 121. Status of Aliens in the United States.

In the preceding section it has been shown that a State has absolute legal authority over all persons within its territorial jurisdiction, and over its own citizens wherever they may be. In the exercise, however, of this authority over persons within its territorial limits who are claimed as citizens by other States, that is, over resident aliens, or naturalized citizens whose native States do not recognize the right of expatriation, this legal power, though not subject to legal limitation, is actually subject to certain limitations which international custom has created. Thus each State demands that its subjects, when abroad, shall receive protection in life and property, and in their private rights be not unduly discriminated against by the foreign State in which they may happen to be. Also States do not permit the foreign States to require from their subjects the performance of duties that properly may be required only of citizens, as, for example, service in its army. Resident aliens may indeed be required to lend their assistance, by service in the militia and police forces, or in a posse comitatus, to put down domestic disorder; for, enjoying the protection of the local law, they may fairly be required to aid in overcoming resistance to its enforcement. But they may not be compelled to serve in the national military forces in cases of public

war.

During the Civil War, Great Britain did not object to the enrollment in the local militia of her citizens domiciled in the United States; and in the case of one Scott, who had declared his intention of becoming an American citizen, refused to take any steps to prevent his enrollment in the army in the field. Great Britain, however, emphatically protested to the government of the Southern Confederacy against the conscription of her subjects in the Southern States. Several of the leading European powers protested against the attempt on the part of the United States to conscript into its armies domiciled aliens who had declared their intention of becoming American citizens, whereupon the United States granted to such aliens sixty-five days in which to leave the country, upon failure to do which they were held liable

to conscription; and this arrangement was acquiesced in by the Powers concerned, though not without complaint that the principles of international comity were being violated. When, in 1873, the State of Nicaragua attempted by an amendment to her Constitution to make foreigners liable to military and other public services, protests from the American Minister were made, in consequence of which the project was abandoned.

§ 122. Domiciled Aliens.

A distinction is made in practically all countries between domiciled and non-domiciled aliens, with reference to the legal burdens that may be imposed and the civil and political rights that may be enjoyed.

An alien becomes domiciled in a particular place when he takes up residence there with an intention to remain for an indefinite time (animo manendi). When so domiciled, all matters other than political, which relate to his personal status, are regulated by the lex domicilii. Thus the local law governs his power to enter into contracts, regulates succession to personal property, and the validity of wills with reference thereto, and, in the United States, England, and many of her dependencies, determines the validity of marriages. In France, and some other countries, however, this last subject is held regulated by the individual's national law wherever he may be domiciled. Thus, while the marriage in the United States of a Frenchman domiciled in the United States is held valid by the United States law if its provisions governing marriages are satisfied, it would not be held valid in France, unless the requirements of the French law were also satisfied.

Domicile is immediately fixed when residence is taken up with the intent to remain for an indefinite length of time. Thus, for example, in 1781 when the English captured from the Dutch the island of St. Eustatius, a native-born English citizen who had arrived at the island but a few hours before with the intention of residing there for an indefinite length of time, was held to be domiciled there and his property subject to the same liabilities as those of the other residents of the place. The same doctrine