“The right to exclude or expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, [is] an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare." 1

Nor is the right of expulsion limited by treaties which guarantee to the citizens of the contracting parties the right of residence and travel, or of trade, and other rights. Pradier-Fodéré expresses the principle as follows:

"Treaties and declarations by which a government stipulates for its citizens a right of sojourn, of acquiring real property, of carrying on an industry on foreign territory, ought not to be interpreted as involving a renunciation on the part of the other contracting power of its right to expel aliens whose conduct should make it desirable."

As will be seen, however, this right is not unqualified. It cannot be exercised indiscriminately or arbitrarily, but is limited and restricted by the obligations imposed upon the state by international law.3

In former times expulsion, collective and individual, was freely exercised. In recent times collective expulsion has been resorted to in case of war only and even then it has become an exceptional measure. Individual expulsion, while still practiced, and claimed by states to be an inherent right of sovereignty, has likewise been limited, by statute and treaty, both as to the justifying causes and the manner of exercise. While the grounds of exclusion are usually prescribed by statute, governments rarely attempt to enumerate the grounds of expulsion. Great Britain (Aliens Act of 1905, 5 Edw. 7, c. 13), 4

1 Fong Yue Ting v. U. S., 149 U. S. 698, 711.

2 Pradier-Fodéré, P., Traité de droit int. pub., Paris, 1887, III, § 1857. The right of expulsion is sometimes expressly reserved in treaties. Treaty between U. S. and Spain, July 3, 1902, art. 2, Malloy, II, 1702.

* Von Bar in 13 Clunet (1886), 5; Bluntschli, Droit int. codifié, §§ 383-384; RolinJacquemyns in 20 R. D. I. (1888), 498.

At common law the Crown has full power to expel a foreigner. The right has been greatly curtailed by statute, and is practically vested entirely in Parliament. The act of 1905 gives the Secretary of State the right to expel aliens who have been (1) convicted in the United Kingdom of serious offenses; (2) who have been certified within twelve months after their arrival to have been in receipt of parochial relief or found wandering without ostensible means of subsistence, or been living under insanitary conditions due to overcrowding; or (3) who have arrived in the United Kingdom since the passing of the Act, and been sentenced in a foreign country for

the United States (Act of February 20, 1907),1 and Brazil (Law of January 7, 1907) 2 have undertaken by statute to set forth the grounds of expulsion. The terms of the statutes are quite broad. An enumeration of specific grounds is, however, an exception to the rule, as states have not generally been willing thus to hamper their freedom of action. Nevertheless, the growth of international intercourse has tended to limit the exercise of the right of expulsion, and by municipal law and treaty many states have now limited their freedom of action by exempting from the persons liable to expulsion certain classes of aliens, by permitting judicial recourse against administrative orders, or by agreeing to notify the individual or his legation and to state the grounds of expulsion.

3

It may be useful to examine the statutes of a few states to notice the tendencies of modern legislation. France, by a law of December 3, 1849, regards expulsion as a police measure to which all aliens are subject. This appears to be also the rule in Germany, Italy, Roumania and other countries. In Belgium, Brazil and other states certain categories of aliens are exempt, particularly those who by residence or marriage have identified their interests with the state. Thus, in Belgium, an alien who has established his domicil, and, in Brazil, who has resided in the country for two years; or, in Belgium, the Netherlands and Brazil, a foreigner who has married a native

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an extraditable crime not of a political character. See § 3 of the Act, and Henriques, H. S. Q., Aliens and naturalization, London, 1906, p. 13.

1 Bouvé, op. cit., 149 et seq.

24 R. D. I. privé (1908), 855; For. Rel. 1907, I, 113-117; 34 Clunet (1907), 1217. See also Martini, A., L'expulsion des étrangers, Paris, 1909, p. 83.

3 Martini, op. cit., 42 et seq.; Pradier-Fodéré, op. cit., III, § 1858.

In some other countries, a definite period of residence acts as a bar to the right of expulsion, even where the person has entered in violation of the exclusion laws or after arrival came within their categories of undesirability. Thus, the Mexican law of Dec. 22, 1908 fixes a period of three years, and the United States act of Feb. 20, 1907 permits deportation of various classes of undesirables within one and sometimes within three years, except that alien prostitutes may by the amendment of March 26, 1910 (see 182 Fed. Rep. 894, 185 Fed. Rep. 967, and 209 Fed. Rep. 496) be deported at any time.

A collection of the statutes of various countries relating to expulsion will be found in the Appendix of the works of Martini and Bouvé, cited above, and in Fiore's Droit international pénal (Antoine's edition), chap. III.

woman and who (in Belgium and the Netherlands) has had one or more children during his residence or (in Brazil) is a widower with a native born child cannot be expelled.1 In Venezuela 2 and other Latin-American countries expulsion is often limited by the law to transient aliens. Again, Belgium and Luxemburg do not expel minors born there of foreign parents who may claim native citizenship one year after majority. The rule is becoming general that domiciled aliens shall not be expelled even as a penalty for crime.

§ 28. Grounds of Expulsion.

The legitimate causes of expulsion it is impracticable to enumerate. A general justification for the action may be summed up in the words "the public interests of the state." As the order affects the citizens of another state, it has in practice become the rule that the government exercising the right of expulsion must on demand furnish evidence that the action was based on a legitimate fear that the public interests were in danger; for while in theory an absolute right and discretion are vested in the government, an arbitrary expulsion constitutes a basis for an international claim. The grounds of expulsion are often identical with those justifying exclusion, namely, undesirablity of a moral, social or economic kind. In most statutes governing immigration, the right of expulsion or deportation is a sanction for the provisions relating to exclusion, and numerous expulsions are founded on the charge of presence in the territory in violation of its laws or the

1 Belgium, law of Feb. 12, 1897. See Halot, A., Traité de la situation légale des étrangers en Belgique, Bruxelles, 1900. Belgian decisions cited in 7 R. D. I. privé (1911), 411-417.

Netherlands. Jitta, J., Le droit d'expulsion des étrangers dans la législation des Pays-Bas, 29 Clunet (1902), 66-70.

Brazil. Instructions of May 23, 1907 in execution of the law of Jan. 7, 1907; 37 Clunet (1910), 1377-1380. See also 4 Ztschr. f. Völkerrecht, 62-64. For decisions see 5 R. D. I. privé (1909), 632; 6 ibid. (1910), 637, and 3 A. J. I. L. (1909), 500. See also Martini, op. cit., 47.

Law of April 16, 1903, art. 6, quoted in Martini, op. cit., 48; see also Jaurett (U.S.) v. Venezuela, Sen. Doc. 413, 60th Cong., 1st sess., 20 et seq. Jaurett had by five years' residence established his domicil in Venezuela; $3,000 indemnity was paid by Venezuela. For. Rel. 1909, 629.

Art. 9 of the civil code of Belgium and Luxemburg. See Martini, op. cit., 46.

regulations concerning the admission of foreigners. In most countries where the ground of undesirability is economic, a residence for a limited period will bar the use of the power of expulsion. In addition to the economic and social grounds of undesirability, political reasons, especially war, have often been the basis of expulsion orders. Perhaps the most frequent cause of expulsion is conviction for crime. All countries reserve this right, although it is resorted to usually in flagrant cases only, where the presence of the alien may compromise the public safety. Where the public necessity is sufficiently great, especially where the crime is of a political nature, expulsion may take place on executive order without a judicial conviction. Primarily, indeed, expulsion is an act of state which escapes judicial review. In the case of countries where by treaty a right of residence and access to courts is assured to citizens of the United States, the Department of State has claimed that a citizen charged with a non-political crime is entitled to a judicial trial before his expulsion. It has been held that the right to prosecute criminally and the right to deport or expel are inconsistent as concurrent rights; the proceedings must be successive.2 In some countries, e. g., in Belgium and Luxemburg, expulsion may be ordered for crimes committed abroad, presumably only when a conviction has been had. In some countries of Latin-America the bringing of an unjust diplomatic claim against the state, unless it be adjusted in a friendly manner, is a ground for expulsion. The following cases, a few among many, which have occurred in international practice, indicate a wide range of grounds for expulsion: for spreading socialistic propaganda (Jaurès case); for promoting and organizing a strike (Ben Tillett's case); 5 for practicing the art of healing without a

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3

1 Wiener's claim v. Haiti, Mr. Gresham, Sec'y of State, to Mr. Smythe, Nov. 5, 1894. For. Rel., 1895, II, 803. See also Santangelo (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3333 and Lapradelle's Recueil, I, 473.

2 U. S. v. Lavoie, 182 Fed. Rep. 943. See also the case of Mgr. Montagnini in France, 14 R. G. D. I. P. (1907), 175; J. Challamel in Journal des Débats, March 12, 1907, reprinted in 34 Clunet (1907), 331–334.

3 E. g., Constitution of Nicaragua, art. 12.

4 Jaurès (France) v. Germany, 1905, Moore's Dig. IV, 69.

5 Ben Tillett (Great Britain) v. Belgium, August 20, 1896; Desjardins, Umpire, 26 Clunet (1899), 203-210; Conflit entre l'Angleterre et la Belgique à propos de l'expulsion du sieur Ben Tillett de la Belgique, Bruxelles, 1900.

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1

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license (Edwards' case); 1 for writings or speeches derogatory to the government or the army (case of Father Forbes in France; 2 Hottmann case in Switzerland; Kennan case in Russia); for anarchy (Kropotchine case in Switzerland); 5 for preaching polygamy (Mormon missionaries in Germany); 6 for spying or suspicion thereof (Hofmann and Richtofen cases in Switzerland); 7 for giving immoral performances (Belgium); for intrigues against the state (expulsion of Spanish ambassador from England in 1584 and similar cases) or against third states (General Boulanger and Count Chambord in Belgium); and, among the cases with which the United States has had to deal, the expulsion by European countries, particularly Germany and Austria, of natives of those countries who by naturalization in the United States have evaded military service.

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10

The resolutions of the Institute of International Law at its Geneva meeting in 1892 enumerated those classes of undesirable aliens who might properly be expelled: (1) Aliens who have entered the territory fraudulently in violation of the rules governing admission, although if there is no other reason for expulsion, they should not be expelled after having resided six months in the country; (2) aliens who have established their domicil or residence within the territory in violation of an express prohibition; (3) aliens who, when they entered, were afflicted with a disease dangerous to public health; (4) paupers or vagabonds, or those subject to poor relief; (5) aliens convicted of crimes of a serious nature; (6) aliens convicted abroad of crimes made extraditable either by municipal legislation of the country of sojourn 1 Edwards (U.S.) v. Belgium, 1900, Moore's Dig. IV, 83.

59 Clunet (1882), 220; see also U. S. Act of Feb. 20, 1907 reënacting Act of March 3, 1903 and the case of U. S. ex rel. Turner v. Williams, 194 U. S. 279; Moore's Dig. IV, 95; article by N. W. Sibley, International law and the aliens act, Law Mag. and Rev., 1909, p. 432; Martini, op. cit., 69.

* For Rel., 1898, p. 347.

'Hofmann case, 20 Clunet (1893), 671; Richtofen case, 29 Clunet (1902), 973; 10 R. G. D. I. P. (1903), 106.

8 Tchernoff, J. Protection des nationaux résidant à l'étranger, Paris, 1899, p. 453. 9 Martini, op. cit. 71 and cases there cited.

10 16 Clunet (1889), 65; ibid. 73; Martini, op. cit., 72.