" Ita tamen, ut utriusque regis summa potestas in
eorum respective regnis, ditionibus, dominiis atque
portubus ; vectigalia, et alia qurevis pro re nata statuendi
vel immutandi salva et illaesa maneat, modi memorata
sequalitas ab utraque parte praedicto modo stricte obser-
vetur." Both parties agree to suppress pirates ' " quantum
fieri possit, et in suis fuerit viribus."
New clauses (17, 27), in the subsequent treaty of 1670
granted permission to merchants to reside and trade
without restriction of time, 2 and to carry arms (provided
they do not incur suspicions by doing so).
By the Spanish treaty with Britain of 1667 3 it was
provided, perhaps for the first time, " que les marchands
des deux nations, et leurs facteurs, serviteurs et families,
commis, on autres personnes par eux employes — comme
aussi les maitres de navires, pilots et mariniers —
pourront demeurer librement et seurement dans lesdits
etats, royaumes et territoires de Tun et l'autre desdits
roys, comme aussi dans leurs ports et rivieres ; et que
les peuples et sujets d'un roi pourront avoir, et en toute
liberte et seurite jouir sur les terres et etats de l'autre
de leurs propres maisons pour y demeurer ; de leurs
magasins et celiers pour leurs denr6es et marchandises
1 Art. 19.
2 Hertslet, loc. cit. I. 186.
3 Hertslet, loc. cit. II. 153; Dumont, loc. cit. VII. (1) 27.
chap, n] EARLY TREATIES 49
qu'ils possederont, 1 durant le terns qu'ils les auront
pris, et qu'ils en devront jouir, et qu'ils en seront
convenus, sans aucune empechement." And by Art. 31
(also a novelty) :
' Les sujets et habitans desdits pays alliez, pourront
se servir et employer tels advocats, procureurs, escrivains,
agens et soliciteurs, qu'ils adviseront bon etre dans toutes
les terres et lieux de l'obeissance de l'autre, ce qui sera
laisse a leur choix, et a quoi les juges ordinaires consen-
tiront toutes fois et quantes qu'il sera besoin."
The Swedo-British treaty of 1654 2 is peculiar as not
relating so entirely to trade as the Portuguese treaty of
the same year. Liberty of entry is first secured, and
then freedom of trade is appended. 3 Justice without long
and needless delays is promised. 4 A right of passage is
conceded to merchants. 5
The treaties of the eighteenth century did not carry
the matter much further. In the Dano-Sicilian treaty of
1748/ indeed, there now occurs a clause (27) providing
that — " ... la condition des etrangers et des sujets
naturels, sera egale et pareille, tellement que dans toutes
les occurrences, la justice leur sera administree d'une
maniere prompte et impartiale ; particulierement dans
les douanes et bureaux Us seront traites avec douceur et
fiolitcsse . . . ." As to whether this was due to previous
experience of Baltic bluntness or of Southern arbitrari-
ness, history is silent.
In the Austro-Spanish treaty of 1725, 7 by Art. 21
(exceptionally well drawn), " le roi catholique permet aux
sujets de ses royaumes d'Andalousie, Murcie, Arragon,
Valence et Catalogne, comme aussi dans les provinces de
Biscaye et de Guipuscoa, d'y louer des maisons pour y
1 Qu., where this comma ought to come : according to Hertslet,
after " marchandises."
2 Hertslet, loc. cit., II. 310. 3 Art. 2.
4 Art. 8. 5 Art IO#
6 Hauterive et Cussy, Traites, IV. 406. 7 lb. 75.
50 PENETRATION [chap. II
demeurer, et des magasins propres a conserver leurs mar-
chandises. . . ." By Art. 23, merchants were not to be
bound to produce their accounts or to keep them in any
particular language. This provision seems to have been
found of great value, and is often repeated up to quite
A remarkable convention exists of the date 1700 ' by
which the city of Santander agrees to give certain privi-
leges to English merchants. It " concedes and grants, in
so far as depends on its part, that they shall enjoy the
same conveniences, emoluments and immunities which
are enjoyed and possessed by the people, inhabitants
and natives thereof, without any difference, tax or burden
being imposed, or any other annual charge, in what-
ever may depend on its political government.
" Also it concedes and grants to those who are or
may become Roman Catholics, and who, with their
wives, household and family, have completed five years
of residence therein, that they may have liberty to enjoy
and obtain the honourable offices thereof, and a voice
and active and passive vote, in conformity with the
custom and charter of election which it possesses to enable
it to distribute the said offices among its inhabitants."
And even in time of war (Art. 7) : " This town, in so
far as it can consistently with the faith and loyalty which
it owes to its king and natural lord, will assist the said
merchants and give them every facility and good treat-
ment which may be in its power . . . protecting their
effects and business in so far as it is possible and per-
mitted. . . ."
Also (Art. 8), " It shall be conceded and allowed them
to build private houses in the town, in conformity with
the power which is accorded to it by the laws of these
kingdoms ; and the magistracy [etc.] will give and mark
out lands and estates, whereon they may construct in
their own fashion the dwellings and gardens which are
1 Eiertslet, loc cit. V. 456.
chap, n] MUNICIPAL CONCESSIONS 51
necessary, and to which their power extends ; and it is
moreover granted that they may purchase manufactories,
and reside in them or in dwelling-houses, inns or hired
houses, without their being obliged to live with the
inhabitants, or to incur charges for lodging, guards or
other things. . . ."
This convention is important for two reasons, (i) It
indicates clearly that the purpose of the grant of liberty
in ordinary treaties of commerce to have, or to build,
houses, is not meant as a guarantee in any shape or form
by the government that there will be houses and lands
available. It is merely a promise to relax the anti-social
system under which strangers were often regarded as a
prey, and forced to live in the most expensive style. Just
as, in modern days, a government will occasionally find
means to ensure that travellers shall stay at hotels and
spend money, in transit, so, in less enlightened times, it
boldly deprived them of the power of living cheaply in
their own hired houses, and forced them into lodgings
with, perhaps, a hired guard to protect them. The
liberty to build and buy houses means no more than this.
It does not encroach on any municipal or provincial
privilege. And (2) the convention reinforces to demon-
stration this last statement. The convention was thirty-
three years subsequent to the Brito-Spanish treaty '
of 1667. Yet the municipal powers remain unimpaired,
just as the provincial powers of California remained
unimpaired by the Japanese treaty with the United
States. And it is not a unique misapprehension by the
city magnates of their powers. Seville, Cadiz, Malaga
and the ports of Andalusia had acted in a similar way.
By the time of the Austro-Russian treaty of 1783,
the " most favoured nation " clause had become the
leading stipulation. And the various specific provisions
had been disentangled and clearly distinguished. By
mutual declarations, these Powers granted toleration ;
1 Supra, p. 48.
52 PENETRATION [chap, n
import, export and transport (at permitted ports) ; prompt
judicial enforcement of contracts ; liberty to keep business
books secret, and in any language ; and free exit (but no
right of entry, except perhaps by implication). Ity
Arts. 24 (Russian), 26 (Austrian), the powers agree that
each other's subjects may, if established in their territory :
' . . . y batir, acheter, vendre et louer des maisons dans
toutes les villes qui n'ont pas des droits de bourgeoisie
et privileges contraires a ces acquisitions. ..."
This expressly provides for local rights : it is curious
that the saving has not been imitated more frequently.
The British treaty with Russia of 1734 l gives the liberty
to build, buy or let houses, and to sell or dispose of them ;
which seems curious, considering the common-law disa-
bilities of aliens ; and also exempts Russians in England
from quartiers, or billetting (Art. 16). In 1766 s the
saving of local privileges was added, and this was con-
firmed in 1797. 3
As a typical sample of the commercial treaty of the
early nineteenth century with South American states and
others which were willing to concede wide and specific
privileges, may be cited that between Great Britain and
Peru of 1837. 4 Art. 2 grants to the subjects and citizens
of the two countries respectively — " liberty freely and
securely to come with their ships and cargoes to all places,
ports and rivers in the territories aforesaid B to which
other foreigners are or may be permitted to come, to
enter into the same, and to remain and reside in any
part of the said territories respectively ; also to hire 6
and occupy houses and warehouses for the purpose
of their commerce ; and generally, the merchants and
1 Hauterive et Cussy, loc. at. VII. 191. 2 lb. 205.
3 lb. 224. By mistake, England and Ireland are named in
this treaty instead of Great Britain and Ireland, in this particular
clause. 1 Hertslet, loc. cit. V. 383.
n Including Ihc British territories in Europe.
6 5c.—" if they can."
chap, ii] TREATIES — TRANSITION PERIOD 53
traders of each nation respectively shall enjoy the most
complete protection and security for their commerce ;
subject always to the laws and statutes of the two
countries respectively." The coasting trade is excepted.
By Art. 4, extra-European trade is conceded to Peru on
the footing of the most favoured nation. By Art. 8,
" all merchants, commanders of ships and others, the
subjects of H.B.M., shall have full liberty in all the
territories of the Peru-Bolivian Confederation, to manage
their own [business] affairs themselves, or to commit
them to the management of whomsoever they please as
broker, factor, agent or interpreter ; nor shall they be
obliged to employ any other persons for those purposes
than those employed by Peru-Bolivians, nor to pay them
any other salary or remuneration than such as is paid
in like cases by Peru-Bolivian citizens : and absolute
freedom shall be allowed in all cases to the buyer and
seller, to bargain and fix the price of any goods, wares
or merchandise, imported into, or exported from, the
Peru-Bolivian Confederation, as they shall see good,
observing the laws and established customs of the
Reciprocal privileges (set out in full in the Spanish
version) are granted to Peru : and it is added — " The
citizens and subjects of the contracting parties, in the
territories of each other, shall receive and enjoy full and
perfect protection for their persons and property, and
shall have free and open access to the courts of justice
in the said countries respectively, for the prosecution
and defence of their just rights; and they shall be ai
liberty to employ, in all causes, the advocates, attorneys
or agents, of whatever description, whom they may
think proper ; and they shall enjoy in this respect the
same rights and privileges therein as native citizens."
Art. 9 adds that — " In whatever relates to the police
of the ports, the lading and unlading of ships, the safety
of merchandise, goods and effects, the succession to
54 PENETRATION [chap, h
personal estates ' by will or otherwise, and the disposal
of personal property J of every sort and denomination,
by sale, donation, exchange or testament, or in any
other manner whatsoever, as also the administration of
justice, the subjects and citizens of the two contracting
parties shall enjoy in their respective dominions and
territories, the same privileges, liberties and rights as
native subjects ; and shall not be charged in any of
these respects with any higher imports or duties than
those which are paid, or may be paid, by the native
subjects or citizens of the power in whose dominions or
territories they may be resident ; subject of course to
the local laws and regulations of such dominions or
By Art. 10, a general exemption from military service,
from " forced loans or military exactions and requisi-
tions," and from ordinary taxes in excess of natives is
conceded. Liberty of conscience is secured by Art. 13.
It thus appears that the liberty of leasing and acquiring
houses has been definitely attached to the liberty of
trade and the express liberty of residence which now
accompanies it. But the whole scope of the document
is directed to traders and their rights. It is proble-
matical whether, under its terms, foreigners could have
insisted on setting up a manufactory.
It appears, however, that within the limits of Europe,
treaties had for long a much narrower scope. The old
treaties, e.g. those of Great Britain with Portugal, Spain
and Denmark, were renewed : but fresh ones give as a
rule no express rights of residence. They however
secure, in some cases, " full and entire protection for
persons and property," " free and easy access to the
courts of justice in the prosecution and defence of their
rights," equal liberty with natives to choose their own
1 " Propie lad* \ pet wnales " in the Spanish. It may be doubted
whether it is a term of art in Spanish law.
3 " Propicdad personal."
chap, ii] RESIDENCE APART FROM COMMERCE 55
legal representative and advisers, and freedom from
extra taxation. 1 But in others, even as late as 1847,
they carefully refrain from any but financial matters. 1
By 1856, we find the treaty of Great Britain with
Honduras securing the liberty to engage in manufactures
and mining abroad, 3 and also complete liberty of residence.
The Russo-British treaty of 1859 4 is remarkable as being
couched on the same broad lines (though it did not
embody the unusual provision as to manufactures and
mines), granting to the subjects of either nation (con-
forming themselves to the territorial law) — " full liberty
with their families to enter, travel or reside in 5 any part
of the dominions and possessions of the other contracting
party." And this is now the usual formula."
It was perhaps Switzerland — the country which is
sometimes ironically said to " earn its living by taking in
lodgers " — that brought this feature of residence, apart
from trade, into prominence. In the Brito-Swiss treaty
of 1855, 7 the first article, departing altogether from
previous models, begins in limine : —
" The subjects of H.B.M. shall be admitted to reside
in each of the Swiss cantons on the same conditions and
on the same footing as citizens of the other Swiss cantons.
In the same manner, Swiss citizens shall be admitted
to reside in all the territories of the United Kingdom on
the same conditions and on the same footing as Britsh
subjects. Consequently, the subjects and citizens of
1 See, e.g., the Greco-British treaty of 1837, Hertslet, loc. cit.
2 See the treaty of Tuscany with Britain, ib. VIII. 921.
3 Hertslet, loc. cit. X. 872. 4 lb. 1058.
8 The syntax of this common form leaves something to be
8 Since the treaty gives the right to acquire anil dispose of all
kinds of property, but no right to engage in manufacturing or
mining, what is to happen if a foreigner buys or succeeds to a
manufactory in the other country ? Can he work it ? — or must
he lease it ? 7 Hertslet, loc. cit. X. 594.
56 PENETRATION [chap, ii
either of the two contracting parties shall, provided they
conform to the laws of the country, be at liberty, with
their families, to enter, establish themselves, reside, and
remain in any part of the territories of the other. They
may hire and occupy houses for the purposes of residence
and commerce, and may exercise (conformably to the
law of the country) any profession or business."
Apparently the Aliens Act, giving a power of expulsion
from the United Kingdom, cannot apply to Swiss, since
it would be in contravention of the treaty. Art. 2 pro-
vides for expulsions, but apparently not such as are
directed against aliens as such. The Russo-British
treaty of 1859, though it did not put residence in the
forefront, yet liberally admitted it, even as between
two powerful nations negotiating " at arms-length," and
initiated a new era.
Yet practice was by no means uniform. The treaty
between Belgium and Britain of 1862 l grants a mere
liberty of commerce and equality of treatment in matters
of commerce and navigation : but the Italian treaty of
1863 is framed on the same lines as the Russian, 2 and
so is the Colombian of 1867. 3 The Prussian treaties of
1865 grant a mere exemption from extra taxes of persons
who are in fact resident, 4 and secure that British ships
and their cargoes shall be treated in Prussia as national.
But in general, the new form is established as the
The Netherlands-Austrian treaty of 1856 5 resembles
the Belgian one above cited. The contemporary Austrian
treaty with Belgium is distinctly more specific in its con-
cessions, 6 and the Austrian treaty with Brazil of 1827 is
as full and particular as the British ones with South
American powers. 7
1 Hertslet, loc.cit.Xl. 66. a lb. XI. 1112, 1115.
3 lb. XII. 365. * lb. XII. 7 (._>, 764.
D Ncuman, Traitds Conclus /uiy I' Autyichc, VI. 255.
6 lb. VI. 174. 7 lb. IV. i2i ; Martens, Rccucil, VII. 225.
chap, ii] MODERN TREATIES 57
For an instance of a quite modern treaty conceding no
general liberty of residence, one may refer to the British
treaty with Paraguay of 1884. 1 Equality of duties, and
treatment of foreign ships and cargoes as national is
admitted, and foreigners who in fact reside are permitted
' to exercise all rights, and therefore to acquire, hold and
dispose of all kinds of property, whether movable or
immovable." They must have free 2 access to the courts,
and freedom from military service. And, while resident
in the foreign territory, they are to have equal protection
with citizens in respect of their houses, persons and
property — a sufficiently pleonastic declaration. See also
the Serbo-British treaty of 1880, 3 and compare the
Uruguay treaty of 1884, 4 which concedes only that — " the
subjects or citizens of each of the contracting parties
shall be permitted to reside temporarily or permanently
in the dominions or possessions of the other ; and to
occupy and hire houses and warehouses for purposes of
commerce, . . ." (Art. 4).
Of the wider type of treaty are the treaties which in
1894 Japan negotiated with various countries, including
the United States. The contracting parties agreed
' The citizens or subjects of each of the high con-
tracting parties shall have full liberty to enter, travel or
reside, in any part of the territories of the other contract-
ing party, and shall enjoy full and perfect protection for
their persons and property. They shall have free access
to the courts of justice in pursuit and defence of their
rights ; they shall be at liberty equally with native citi-
zens or subjects to choose and employ lawyers, advocates
and representatives to pursue and defend their interests
before such courts ; and in all other matters connected
with the administration of justice they shall enjoy all
interests and privileges enjoyed by native citizens and
1 Hertslet, he. cit. XVII. S51. 3 Not "easy."
3 Hertslet, he. cit, XV. 343, « lb. XVII. 1086,
58 PENETRATION [chap, ii
" In whatever relates to rights of residence and
travel, to the possession of goods and effects of any kind,
to the succession to personal estate by will or otherwise,
and the disposal of property of any sort and in any
manner whatever which they may lawfully acquire, the
citizens and subjects of each contracting party shall
enjoy in the territories of the other the same privileges,
liberties and rights [as], and shall be subject to no higher
imposts or charges in these respects than native citizens
and subjects, or citizens and subjects of the most
" The citizens or subjects of each of the contracting
parties shall enjoy in the territories of the other entire
liberty of commerce, and subject to the laws, ordinances
and regulations, shall enjoy the right of private or public
exercise of their worship, and also the right of burying
their respective countrymen according to their religious
customs in such suitable and convenient places as may
be established and maintained for that purpose.
" They shall not be compelled, under any pretext
whatever, to pay any charges or taxes other or higher
than those that are or may be paid by native citizens
or subjects or citizens of the most favoured nation. The
citizens or subjects of either of the contracting powers
residing in the territories of the other shall be exempted
from all compulsory military service whatsoever, whether
in the army, navy, national guard or militia ; from all
contributions imposed in lieu of personal service ; and
from all forced loans or military exactions or contribu-
Art. 2. " The stipulations contained in the preceding
article do not in any way affect the laws, ordinances
and regulations with regard to trade, the immigration of
labourers, police and public security, which are in force
or which may hereafter be enacted in either of the two
This probably represents the high-water mark, for the
present, of treaties of this kind. In the present temper
of nations, the unrestricted rights conceded by such an
1 86 S.P. 40, 524, ; Hertslet, loc. cit. XIX. 691.
chap, ii] CALIFORNIA SCHOOLS QUESTION 59
engagement are too wide. The rights conceded by the
first paragraph as above set out are so complete, that it
is difficult at first to imagine what more could be desired.
The second paragraph, nevertheless, goes on to concede
equal treatment in " all that relates to rights of residence
and travel." These words are exceedingly vague, and
they have already occasioned at least two sharp conflicts.
The first of these was in 1900. ' Quarantine was imposed
by local regulations in various places (particularly in
Colorado) upon Chinese and Japanese. This was repre-
sented as a hygienic measure necessitated by their sup-
posed susceptibility (along with Asiatics generally) to
plague : but it could not be denied that discrimination
had been exercised.
" The Imperial Government," observes Mr. Nabeshima, 2
" has no intention of demanding any privilege for Japanese
subjects which will endanger the safety of the citizens
of Colorado, and asks for them no other or more favourable
treatment than is accorded to citizens of the United
States and to aliens generally. But the Imperial Govern-
ment will unquestionably consider that through the
action taken by the Colorado Board of Health a right
guaranteed to Japanese subjects has been rendered tem-
porarily inoperative for unsatisfactory reasons and upon
insufficient authority." Mr. Hay 3 referred the Japanese
to the Federal courts, which were bound to take cogni-
zance of treaty rights.
But no such reference was possible in the other case ;
that of the Californian schools. For, there, it was a
question of what the treaty meant — of how far it meant
to deprive localities of their quasi-private rights, in
favour of Japanese. California had established state
schools. Could it fairly be said that the treaty gave all
Japanese a right to use them ? It might as reasonably
1 For. Relations U.S. (1900), 737 et seq. ; (1901), 375 et seq. ;
103 Fed. Rep. 1.
2 For. Relations U.S. (1900), 755. 3 lb. (1901), 378.
60 PENETRATION [chap, ii
be said that it gave Japanese a right to be present at every
private person's dinner-parties. It was in no sense a
right " relating to rights of residence or travel." Unless
we distort those words so as to include every possible
benefit which a resident or a traveller may enjoy, they
must clearly be restricted to the rights which are directly
involved in travel or residence.
Otherwise there is no point at all in their employment.
The central government, in guaranteeing free access and
travel, cannot possibly be supposed to grant free access
to, and travel over, private persons' land. It may be
conceded that it guarantees access and travelling rights
over the public ways of its subordinate provinces. But
it may be seriously doubted whether it confers any right
of access, for instance, to a public park maintained by
a subordinate state or a municipality. There is no guar-
antee in the treaty that subjects shall not discriminate,
and in the nature of things there could not be. Equally,