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.' 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

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.1 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.3 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

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.

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.

8

3

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.

9

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.

219 Clunet (1892), 405.

21 Clunet (1894), 672; see also ibid. 982.

4 Moore's Dig. IV, 94.

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.

or by treaty; (7) aliens guilty of inciting infractions of public security, although the acts as such may not be punishable according to territorial law and are only consummated abroad; (8) aliens guilty of attacking by the press or otherwise a foreign state or sovereign or its institutions, provided the acts are punishable according to the law of the expelling state, if they had been committed abroad by subjects and directed against that state; (9) aliens who are guilty of attacks or outrages against the state, nation, or sovereign, published in the foreign press; (10) aliens who in time of war or imminence of war compromise by their conduct the security of the state.1

§ 29. Method of Exercising Right of Expulsion.

In many countries expulsion is carried out by administrative order of the minister of interior or other executive officer, the exercise of the power being discretionary. This is the case in France, Italy, Russia and Switzerland. In Great Britain the secretary of state issues the order, but only on the recommendation of a court; in Brazil it requires the concurrence of the minister of justice; in Belgium and Roumania, the action of a council of ministers is necessary, and this amendment was proposed in the French bill of March 14, 1882, which was not enacted into law. The order is in a few countries subject to judicial review, either by administrative courts or special boards, as in France and the United States, or by the ordinary civil courts, as in Brazil and the Netherlands. The motives or grounds of the expulsion cannot usually be reviewed judicially (e. g., in France, Germany, Luxemburg, Spain, Great Britain and even in Brazil), but only the question of alienage and jurisdiction.2 In one case at least (Morphy v. France), an indemnity was granted to an illegally expelled person.3 1 12 Annuaire (1892), 223, art. 28; see also 11 Annuaire (1891), 310.

2 See the decision of Court of Appeals of Paris, Nov. 9, 1911, Andreu v. Public Minister, 8 R. D. I. privé, 1912, p. 382; Martini, op. cit., 167 et seq. In the United States, a court will order a rehearing if the methods used by the administrative board have been unfair. See T. R. Powell, Judicial review of administrative action in immigration proceedings, 22 Harvard Law Rev. 360-366, Bouvé, op. cit., 149 et seq. and White v. Gregory, 213 Fed. 768. See also Brazilian decision in 3 A. J. I. L. (1909), 500 note.

3 Conseil d'Etat, March 14, 1884. See decision quoted in Martini, 177 and also 190 et seq.

The following features of recent developments in the exercise of the power of expulsion may be noted: It is used as a supplementary penalty against the alien for the more important crimes; or because the alien has become socially or politically obnoxious; it is now rarely used as a preventive measure; certain categories of aliens are exempted from the exercise of the power of expulsion; and resort to judicial review is becoming more frequent.

The Institute of International Law drew up at its 1888 and 1892 sessions a set of rules which in large part confirm existing practice and appear reasonable. In the discussions upon these rules three classes of expulsion were considered: First, where despatch is urgent, as in time of war or serious riots, which may affect individuals or entire classes. The peril being immediate and the necessity for haste pressing, it was recommended that this power be given to one police officer without recourse to judicial or administrative review. Such a provision should be merely temporary. Secondly, extraordinary measures of expulsion, directed against whole classes and not against individuals. Such a measure, used as a last resort to safeguard the state against obnoxious foreign elements, should be carried out only after an ordinance, published in advance. Thirdly, ordinary expulsion of undesirable individuals, among whom a distinction was made between domiciled and transient aliens, only the latter, in the opinion of the Institute, being properly subject to expulsion.

30. International Phases of Expulsion.

It is now desirable to take up the more directly international phases of expulsion. It being presumed that the alien has overcome the obstacles to admission and has secured the right of residence, it is reasonable to assume that stronger reasons should operate to justify an expulsion than an initial refusal of admission.1

International cases arise less frequently because of a dispute as to the expediency of or necessity for expulsion, states having a wide 1 Westlake, op. cit., 217. The often quoted statement of Vattel is in point here: "The sovereign cannot grant admission to the state in order to draw aliens into a snare." Vattel, Droit des gens (Pradier-Fodéré's edition, 1863), Bk. 2, ch. 8, § 104, v. II, 85. Compare the action of Haiti in expelling resident Syrians, For. Rel., 1904, 393 et seq.