PURSUITS AND OCCUPATIONS

[§ 204 It should be borne in mind, however, that the extensive area of American territory, both within and without the limits of the several States of the Union, and open and increasingly subjected to use and acquisition by residents of foreign origin and nationality, requires special safeguarding in order to prevent the natural transfer, by inheritance or otherwise, of important interests to aliens not residing in the United States. The continued ownership by such individuals of large and numerous tracts of land within American territory might be fairly regarded as essentially detrimental to the welfare of the nation.

(b)

§ 204. Pursuits and Occupations. Practice of Learned Professions.

A State may lawfully exercise a large control over the pursuits, occupations and modes of living of the inhabitants of its domain. In so doing it may doubtless subject resident aliens to discrimination without necessarily violating any principle of international law.

In the United States, local legislative enactments have not infrequently manifested such a purpose. Thus in 1909 a statute of Pennsylvania rendered it unlawful for unnaturalized foreignborn residents to kill wild game except in defense of their persons or property.1 The United States Supreme Court has repeatedly held within recent years that such discriminatory legislation is not necessarily unconstitutional, and it has not intimated that constitutional discriminatory legislation was at variance with the principles of international law. It should be observed, however, that discriminatory legislation may in fact assume a form which violates the Fourteenth Amendment affording the inhabitants of every State equal protection of its laws. In such case the resident alien may invoke this constitutional provision which is judicially applied for his benefit as well as for that of every other

of Oct. 8, 1903, Malloy's Treaties, I, 263 and 268, respectively, in relation to the rights of American merchants and missionaries, respectively, to acquire interests in land in China. See, also, Mr. Root, Secy. of State, to Mr. Rockhill, American Minister to China, March 2, 1906, For. Rel. 1906, I, 277.

Patsone v. Pennsylvania, 232 U. S. 138.

See, for example, Patsone v. Pennsylvania, supra; also Heim v. McCall, 239 U. S. 175; Crane v. New York, 239 U. S. 195, where it was held that a State statute regarding the employment of laborers, otherwise valid, was not unconstitutional under the equal provision clause of the Fourteenth Amendment because it made distinctions between aliens and citizens.

aggrieved inhabitant of the State concerned. If it adjudges a local discriminatory enactment to be unconstitutional, the Supreme Court of the United States appears to be indisposed to determine also whether the law is violative of any treaty rights invoked by the alien litigant.2

The United States has not infrequently undertaken by treaty to accord the nationals of other States residing within its territories the same measure of protection for their persons and property, and the same rights and privileges for their commerce and navigation, as are possessed by the "natives."3 In consequence, there have been numerous adjudications involving the inquiry

1 Truax v. Raich, 239 U. S. 33, where it was held that a statute of Arizona, of 1914, requiring that employers should only employ a specified percentage of alien employees, denied to alien inhabitants of that State the rights accorded them under the Fourteenth Amendment to the equal protection of its laws. In the course of the opinion of the court, Mr. Justice Hughes declared, pp. 39-40, 41-42, 43: "The discrimination defined by the act does not pertain to the regulation or distribution of the public domain, or of the common property or resources of the people of the State, the enjoyment of which may be limited to its citizens as against both aliens and the citizens of other States. Thus in McCready v. Virginia, 94 U. S. 391, 396, the restriction to the citizens of Virginia of the right to plant oysters in one of its rivers was sustained upon the ground that the regulation related to the common property of the citizens of the State, and an analogous principle was involved in Patsone v. Pennsylvania, 232 U. S. 138, 145, 146, where the discrimination against aliens upheld by the court had for its object the protection of wild game within the States with respect to which it was said that the State could exercise its preserving power for the benefit of its own citizens if it pleased. The case now presented is not within these decisions, or within those relating to the devolution of real property (Hauenstein v. Lynham, 100 U. S. 483; Blythe v. Hinckley, 180 U. S. 333, 341, 342); and it should be added that the act is not limited to persons who are engaged on public work or receive the benefit of public moneys. The discrimination here involved is imposed upon the conduct of ordinary private enterprise.. The discrimination against aliens in the wide range of employment to which the act relates is made an end in itself and thus the authority to deny to aliens, upon the mere fact of their alienage, the right to obtain support in the ordinary fields of labor is necessarily involved. The discrimination is against aliens as such in competition with citizens in the described range of enterprises and in our opinion it clearly falls under the condemnation of the fundamental law."

Mr. Justice McReynolds rendered a dissenting opinion.

2 Id., 43.

3 See, for example, Art. III of the treaty with Italy of Feb. 26, 1871, Malloy's Treaties, I, 970, where it was provided that "the citizens of each of the high contracting parties shall receive, in the States and Territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives.' See, also, Art. I of the same treaty, where it was provided that such individuals "shall enjoy, respectively, within the States and possessions of each party, the same rights, privileges, favors, immunities, and exemptions for their commerce and navigation as the natives of the country wherein they reside, without paying other or higher duties or charges than are paid by the natives, on condition of their submitting to the laws and ordinances there prevailing." See, also, Art. I of treaty with Japan of Feb. 21, 1911, Charles' Treaties, 77.

PURSUITS AND OCCUPATIONS

[$ 204 whether a particular local law, discriminatory in design or effect, was in conflict with such requirements. The resulting interpretations which, when expressed by the Supreme Court, have been deemed to bind the executive department of the Government,2 have revealed the fact that the treaty provisions of the nineteenth century were wholly inadequate to shield from practical discrimination important interests of numerous resident aliens engaged in industrial occupations.3 Those interests were, for example, affected adversely by statutes confining the benefits of laws creating a right of action in case of death caused by the negligence of an employer, or limiting the benefits of so-called workmen's compensation acts, to the resident heirs of individuals killed in the course of employment. In view of these circumstances, the United States and Italy sought, by a convention concluded February 23, 1913, to broaden the scope of the existing treaty of commerce and navigation of 1871, so as to cover this situation.5 The attempt was fairly successful.6

See, for example, Maiorano v. Baltimore & Ohio R. R. Co., 213 U. S. 175; Patsone v. Pennsylvania, 232 U. S. 138; Heim v. McCall, 239 U. S. 175.

* In this connection, see Mr. Adee, Acting Secy. of State, to the Italian Ambassador at Washington, No. 891, Oct. 1, 1910, For. Rel. 1910, 664, 670.

See, for example, Maiorano v. Baltimore & Ohio R. R. Co., 213 U. S. 175, where it was correctly held that the provisions of the treaty with Italy, of 1871, did not confer upon the non-resident alien relatives of a national of Italy a right of action for damages for his death in Pennsylvania, although such an action was afforded by a statute of that State to native resident relatives, when the statute as construed by the highest court of that State did not give to non-resident alien relatives such a right.

See discussion between the Department of State and the Italian Embassy at Washington, respecting the Maiorano case in For. Rel. 1909, 391393, and id., 1910, 657-673.

See convention with Italy, of Feb. 25, 1913, Charles' Treaties, 442, to the effect that "The citizens of each of the High Contracting Parties shall receive in the States and Territories of the other the most constant security and protection for their persons and property and for their rights, including that form of protection granted by any State or national law which establishes a civil responsibility for injuries or for death caused by negligence or fault and gives to relatives or heirs of the injured party a right of action, which right shall not be restricted on account of the nationality of said relatives or heirs; and shall enjoy in this respect the same rights and privileges as are or shall be granted to nationals, provided that they submit themselves to the conditions imposed on the latter.'

It may be observed that within recent years a marked tendency in both Federal and State legislation to refrain from discriminations adverse to nonresident alien beneficiaries has manifested itself. See, for example, the provisions of the Federal Act imposing liability on common carriers by railroads engaged in interstate or foreign commerce, for injuries to employees from negligence, as set forth in Act of April 22, 1908, 35 Stat. 65-66, and § 9, added April 5, 1910, 36 Stat. 291. See McGovern v. Philadelphia & Reading Ry. Co., 235 U. S. 389, where it was held that this Act should be interpreted as applicable to non-resident alien relatives of a decedent.

In certain State legislation, as a means of removing obstacles in the way of

It is believed that, in general, the existing treaties of commerce concluded by the United States with European powers in the course of the nineteenth century have in certain respects ceased to be responsive to the legitimate needs of the nationals of the latter residing in American territory. Nor have the requirements of international law imposed restraints sufficient in fact to protect such individuals from essentially harsh treatment, either resulting from, or in spite of, technically flawless enactments.

A State may reasonably exercise a rigid control over the practice of learned professions within its territory. Thus, it may prescribe tests of the fitness of persons to be permitted to practice, and that regardless of their nationality. Unless restrained by treaty, it may not unlawfully discriminate against aliens. Nor is it under any obligation to accept as assurances of fitness the degrees issued by foreign institutions of learning, and especially certificates emanating from those not operating under governmental supervision or enjoying local official recognition. The territorial sovereign must be free to establish for itself the extent and mode of recognizing the attainments of persons trained in foreign countries. The United States has necessarily acknowledged the propriety of the application of this principle with respect to Americans seeking to practice a learned profession in a foreign State. It has demanded, however, that governmental regulations be applied impartially to American residents, and without discrimination favorable to those of other alien nationalities.1

judicial interpretation, it has been expressly declared that non-resident alien relatives should not be excluded from benefits provided. See, for example, Wisconsin Statutes, 1915 ed., Chap. 178, Section 4256, where it is declared that "a nonresident alien surviving wife and minor children shall be entitled to the benefits" of the section.

1 Mr. John Davis, Acting Secy. of State, to Mr. Matthews, Consul at Tangier, Aug. 11, 1883, 108 MS. Inst. Consuls, 82, Moore, Dig., II, 182; Mr. Frelinghuysen, Secy. of State, to Mr. Wallace, Minister to Turkey, March 27, 1884, For. Rel. 1884, 553, Moore, Dig., II, 183; Mr. Bayard, Secy. of State, to Mr. Chase, Aug. 3, 1886, 161 MS. Dom. Let. 134, Moore, Dig., II, 181; also case of expulsion of Paul Edwards from Belgium in 1900, For. Rel. 1900, 45–53, Moore, Dig., IV, 93–94.

Concerning the requirements of certain foreign States respecting the practice of medicine within their respective territories, see documents cited in Moore, Dig., II, 181-184. For the laws of the Argentine Republic, For. Rel., 1905, 35-38; id., 1906, I, 11.

The convention relating to the practice of the liberal professions, signed at the Second Pan-American Conference at Mexico, Jan. 28, 1902, Moore, Dig., II, 184, was the subject of a resolution of approval and confirmation at the Third Pan-American Conference at Rio de Janeiro, Aug. 22, 1906. For. Rel. 1906, II, 1609-1610.

§ 205. Taxation.

TAXATION

(c)

[§ 205

In levying taxes to defray the expenses of government, no duty is imposed upon a State to leave unburdened either property owned by aliens, or persons who may themselves be aliens.1 Nor does any principle of international law forbid the territorial sovereign to impose, in some instances, a heavier burden upon the interests of such individuals than is placed upon those of its own nationals.2 The existing practice of enlightened States in so far as it is manifested by conventional arrangements tends, however, to place aliens generally upon an equal footing with nationals. Save in cases indicating a marked abuse of power, or a disregard of the terms of a treaty, the United States does not appear to find in the taxation of its nationals or of their property abroad reasons for diplomatic remonstrance or interposition.*

A State may doubtless wrongly determine that persons or property within its territory is subject to taxation. Thus, it may, for example, attempt to impose a tax on the person of an alien who is in no sense a permanent resident within its domain. Or it may endeavor to tax tangible property as such which happens to be merely temporarily therein and which belongs elsewhere.5

1 Mr. F. W. Seward, Acting Secy. of State, to Mr. Acosta y Foster, April 8, 1878, 122 MS. Dom. Let. 403, Moore, Dig., II, 56; Mr. Cadwalader, Asst. Secy. of State, to Mr. Melizet, Mar. 16, 1875, 107 MS. Dom. Let. 172, Moore, Dig., IV, 20; Mr. Fish, Secy. of State, to Mr. Cushing, Minister to Spain, Jan. 12, 1876, MS. Inst. Spain, XVII, 432, Moore, Dig., IV, 21; Mr. Evarts, Secy. of State, to Mr. Kasson, Minister to Austria-Hungary, Jan. 17, 1880, MS. Inst. Austria-Hungary, III, 80, Moore, Dig., II, 56. See, also, Frantz's Appeal 52, Pa. St. 367. With respect to Forced Loans and War Taxes, cf. Neutral Persons and Property within Belligerent Territory, infra, §§ 630, 631.

2 See, for example, Act 130 of the Louisiana law of July 11, 1894, imposing an inheritance tax of ten per cent. on the value of all successions passing to non-resident aliens. Acts passed by the General Assembly of the State of Louisiana, regular session, 1894, p. 165. See, also, E. M. Borchard, Diplomatic Protection, 95-96, § 41.

3 The following Articles of treaties of the United States may be noted: Art. X treaty with the Argentine Republic (Confederation), July 27, 1853, Malloy's Treaties, I, 23; Art. VII convention with France, Feb. 23, 1853, id., 531; Art. I treaty with Japan, Feb. 21, 1911, Charles' Treaties, 77; Art. II treaty with Spain, July 3, 1902, Malloy's Treaties, II, 1701; Art. II treaty with Serbia, Oct. 14, 1881, id., 1614. See, also, provisions contained in Art. IV of the treaty with China of Oct. 8, 1903, Malloy's Treaties, I, 263; award of Hon. Wm. R. Day, Arbitrator in the matter of the claims of John D. Metzger & Co., against the Republic of Haiti, For. Rel. 1901, 264, 272-276.

Mr. Fish, Secy. of State, to Mr. Cushing, Minister to Spain, Jan. 12, 1876, MS. Inst. Spain, XVII, 432, Moore, Dig., II, 63, 64; see, also, Mr. Evarts, Secy. of State, to Mr. Langston, Minister to Haiti, No. 25, April 12, 1878, MS. Inst. Haiti, II. 143, Moore, Dig., IV, 23.

See, in this connection, an illuminating paper by Joseph H. Beale, entitled "Jurisdiction to Tax", Harv. Law Rev., XXXII, 587.