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discretion in these matters, than because of a harsh, arbitrary, or unnecessarily injurious exercise of the right. Even where the justice of the expulsion is not denied, as in the case of naturalized citizens of the United States who, returning to their native countries make themselves obnoxious by boasting of their successful evasion of the local conscription laws, the United States has endeavored, and often with success, to secure an amelioration of the resulting hardship by obtaining a delay in the execution of the order until business affairs could be adjusted and the loss to the individual reduced as much as possible. To minimize the harsh and arbitrary use of the power, numerous treaties between states stipulate that the subjects of the contracting parties shall not be expelled except for reasons of weight, that the person expelled shall have an opportunity to clear himself of the charges against him, and that the reasons for the expulsion shall be communicated to his state or legation with the evidence. This last provision occurs especially in the treaties between European states and the countries of Latin America, where expulsion has been frequently resorted to. Even in the absence of treaty it has been held that the alien's national government has a right to know the grounds on which the expulsion is based and to have the assurance that the reasons are valid and sustained by evidence.3

Governments of expelled subjects and international commissions have freely assumed the right to pass upon the justification for an expulsion and the sufficiency of the evidence in support of the charges

Casanova (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 3353. 2 See report of Andrew D. White to Mr. Hay, Sec'y of State, April 21, 1900, For. Rel., 1900, p. 25 et seq. and numerous military service cases between United States and Austria and Germany in the volumes of Foreign Relations.

3 Rolin-Jacquemyns in 20 R. D. I. (1888), 498; Woolsey, International law, $ 63, p. 85; Heffter, op. cit., 8 62; Spitzer's case v. Austria, For. Rel., 1892, p. 15; Boffolo (Italy) v. Venezuela, Feb 13, 1903, Ralston, 700; Foster et al. (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3349; Paquet (Belgium) v. Venezuela, March 7, 1903, Ralston, 269, in which it was held that a refusal to make explanation, on request, to the Government of the individual expelled makes such expulsion an arbitrary act.

* Secretary of State Gresham in case of Wiener v. Haiti, For. Rel., 1895, II, 800 et seq.; Sec'y of State Sherman in Loewi v. Haiti, 1898, Moore's Dig. IV, 91; Sec'y of State Olney, Jan. 30, 1896, in Hollander v. Guatemala, For. Rel., 1895, II, 775. This is one of the ablest documents on the subject. Zerman (U. S.) v. Mexico, July 4, 1868, Thornton, Umpire, Moore's Arb. 3348; Boffolo (Italy) v. Venezuela, Feb. 13, on which an order of expulsion is based, it being admitted in practice, if not in theory, that such an extreme measure as expulsion can be used only when it is shown that the individual's presence is detrimental to the welfare of the state.?

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§ 31. Grounds of International Claims.

Arbitrary expulsions either without any or on insufficient cause, or in violation of the provisions of municipal law or of a treaty, or under harsh or violent circumstances unnecessarily injurious to the person affected have given rise to diplomatic claims and to awards by arbitral commissions.

An expulsion without cause or based on insufficient evidence has been held to afford a good title to indemnity. Thus, an expulsion under circumstances of contumely founded on an unwarranted suspicion was considered by Umpire Ralston of the Italian-Venezuelan Commission of 1903 as an illegal exercise of the right of expulsion.3

In several cases against Venezuela one of the principal allegations in the successful contention of the claimant government was that the expulsion of a domiciled alien (by Venezuelan law, an alien residing there for two years or more) was in violation of her municipal law.4 1903, Ralston, 705; Atocha (U. S.) v. Mexico, Mar. 3, 1849, opin. 589, referred to in Moore's Arb. 1264, but not reported. See also 8 Ct. Cl. 427 and 17 Wall. 329, and von Bar in 13 Clunet (1886), 5 et seq.

1 France claimed the right in certain cases in Haiti, For. Rel., 1894, p. 344. Great Britain, on the expulsion of certain British subjects from Nicaragua in 1895, judged that “no adequate or reliable evidence has been produced to justify the arbitrary and violent action taken against the Queen's subjects.” The United States in Wiener's and Hollander's case, supra; Boffolo (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 705; Maal (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 914.

2 Sec'y Olney in the case of Hollander v. Guatemala, For. Rel., 1895, II, 775; Maal (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 914.

3 Oliva (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 780; for an expulsion without cause see Zerman (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3348. For expulsion on insufficient evidence, see cases cited in footnote 1, supra. See also the correspondence in the Wiener case, For. Rel., 1895, II, 800 et seq. See also protocol in Bezault (France) v. Guatemala, Apr. 25, 1904, 102 St. Pap. 604; Descamps and Renault, Recueil des traités du xx° siècle, 1904, 124. (This case does not appear to have come to trial.)

* Boffolo (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 705; Paquet (Belgium) v. Venezuela, March 7, 1903, Ralston, 265; Jaurett (U. S.) v. Venezuela, Sen. Doc. 413, 60th Cong., 1st sess., p. 20 et seq., which was settled by diplomatic agreement.

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The violation by a government of its own municipal law to the prejudice of an alien is always considered a valid ground for a claim.

The alleged infringement of treaty rights has given rise to various diplomatic claims for expulsion. Thus, numerous awards were made by the domestic commission of March 3, 1849 dealing with claims against Mexico, on proof that the claimants were expelled from Mexico during the period of the Mexican war in violation of the stipulation of art. 26 of the treaty of April 5, 1831, that in case of war “there shall be allowed the term of six months to the merchants residing on the coast, and one year to those residing in the interior ... to arrange their business, dispose of their effects,” etc.? Where they had done nothing to forfeit their immunity from expulsion, their compulsory removal before the expiration of the six months or the year, respectively, was plainly a violation of the treaty. A stipulation in a treaty to the effect that citizens of the United States shall have the right to reside and do business, or are under the protection of the laws, has reënforced the arguments of secretaries of State in protesting against the arbitrary and summary expulsion of American citizens without notification of the charges and an opportunity to refute them and without form of hearing or trial. Thus Secretary of State Gresham, in protesting against the summary expulsion of Wiener by Haiti, laid down the following rule:

“That universal sense of right and justice which suggests that no man should be condemned without a hearing would seem to require that the person singled out for expulsion should, as a general rule, first be notified of the charges against him and given an opportunity to refute them. If the case is so urgent and the presence of the foreigner so dangerous to the State that this can not with safety be done, the expelling Government is under obligation to the Government of the person expelled to explain the grounds of its action, by not only asserting, but proving, the existence of facts sufficient to justify the expulsion.” 2

1 Cases reported in Moore's Arb. 3334 et seq. In one case (Togno, Moore's Arb. 3345) it was held that a tailor “engaged in cutting and making clothes for customers was not a "merchant,” but could remain uninterruptedly so long as he conducted himself peaceably, under another stipulation in the same article of the treaty; see also Gardiner (U. S.) v. Mexico, Mar. 3, 1849, Opinions 249 (not in Moore),

2 Mr. Gresham, Sec'y of State, to Mr. Smythe, min. to Haiti, Nov. 5, 1894, For. Rel., 1895, II, 802. See also Hollander case v. Guatemala and treaty cited by Mr. So, in his correspondence in connection with the expulsion of American citizens from Nicaragua after the Bluefields troubles in 1894, Mr. Gresham defined the position of the United States as follows:

"Americans are entitled, under the treaty of 1867, to reside and do business in Nicaragua; ... they can not be deprived of that right unless it has been forfeited, and ... they are entitled to know the grounds of forfeiture. If forfeiture is claimed for causes other than political, they are entitled to an open and fair trial. If for alleged participation in an insurrectionary movement against Nicaragua, they should be informed of the charge against them and the evidence in support of it. This position will be maintained by the United States hereafter in all cases.” 1 The naturalization treaty with Austria, by which naturalized citizens of the United States are to be permitted to reside in Austria unmolested, has given support to the contention of the United States that in the absence of a charge of some wrongful act, a native Austrian who had emigrated before his eligibility to military service and, returning as a naturalized American citizen, was peaceably residing in Austria, was not subject to expulsion. In cases where by boasting or other obnoxious conduct or example the expatriated native obtrusively displays his successful evasion of military service so as to make his presence unwelcome, the United States has not denied the justification of an expulsion, its efforts in such cases being confined to securing an amelioration of the hardship to the victim. The United States has frequently endeavored to overcome the assumption, advanced in certain cases by Germany, that the naturalized citizen intended by his emigration to evade military service, and therefore was properly subject to expulsion.”

The most numerous cases arise because of the unduly oppressive exercise of the power of expulsion. It is fundamental that the measure should be confined to its direct object, getting rid of the undesirable foreigner. All unnecessary harshness, therefore, is considered a justification for a claim. Even where an expulsion is admitted to be Olney in For. Rel., 1895, II, 778. See also Santangelo (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3333; Atocha v. U.S., 8 Ct. Cl. 427.

1 Mr. Gresham, Sec'y of State, to Mr. Baker, min. to Nicaragua, October 30, 1894, For. Rel., 1894, App. I, 351-352, quoted also in Moore's Dig. IV, 100.

· Expulsion case of Gustav Wolf Louis Fischer, For. Rel., 1900, pp. 16–28. • For. Rel., 1901, p. 158; see also For. Rel., 1902, pp. 457–459.

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justifiable, it should be effected with as little injury to the individual and his property interests as is compatible with the safety and interests of the country which expels him. Secretary of State Olney expressed this principle as follows:

“The expulsion of a foreigner is justifiable only when his presence is detrimental to the welfare of the State, and . . . when expulsion is resorted to as an extreme police measure it is to be accomplished with due regard to the convenience and property interests of the person expelled."

So, the expulsion by Turkey of Armenians, naturalized citizens of the United States, was confined through diplomatic interposition by the United States to mere removal from Turkish territory, and an excessive incidental imprisonment and other oppression which had been practiced by Turkey as a punishment for their unauthorized naturalization abroad was abandoned.2

The principle that an expulsion must be carried out in a manner least injurious to the person affected has been enunciated on several occasions by international tribunals. Thus, summary expulsions, by which individuals were compelled to abandon their property, subjecting it to pillage and destruction, or by which they were forced to sell it at a sacrifice, 4 or by which they were subjected to unnecessary indignities, harshness or oppression, have all been considered by international commissions as just grounds for awards.

i Hollander case v. Guatemala, For. Rel., 1895, II, 776. This instruction of Mr. Olney to Mr. Young, Jan. 30, 1896 contains quotations from Rolin-Jacquemyns, von Bar, Bluntschli and Calvo to the effect that harsh or arbitrary expulsion affords good ground for a diplomatic claim. Hollander was summarily expelled, was not permitted to see his family or make any business arrangements. He was later permitted to return. In the Scandella case v. Venezuela in 1898 Scandella was summarily arrested, thrown into prison, denied communication with his family and friends, and placed on a steamer, leaving his family without funds, and his property subject to destruction and theft. (For. Rel., 1898, pp. 1137–1148.) See expulsions from Cuba, Mr. Olney to Mr. de Lôme, Sept. 27, 1895, II, 1229–1231; Expulsion of Loewi from Haiti, 1896, For. Rel., 1896, pp. 382-386.

2 See For. Rel., 1893, p. 683 et seq.
3 Gardiner (U. S.) v. Mexico, Mar. 3, 1849, opin. 269 (not in Moore).

4 Jobson (U. S.) v. Mexico, Mar. 3, 1849, opin. 553 (not in Moore); Gowen and Copeland (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3354–3359.

6 Maal (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 915; Boffolo (Italy) v.

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