States does not inquire into the religious views of its citizens and seeks to protect all equally without regard to their opinions on such matters, is hardly indicative of the absence of a right of foreign States to proceed on a different principle.1 The tendency of enlightened States is, however, favorable to much toleration.

It cannot be said that as yet the law of nations forbids a State, in the absence of treaty, to expel from its domain aliens on account of their belonging to particular races.2

It may be observed that the deportation of an alien who enters a State in violation of its immigration or exclusion laws, is merely to be regarded as incidental to their enforcement.3

case of expulsion of Mormon missionaries from Germany in 1908, For. Rel. 1908, 366-371. Contra Mr. Uhl, Asst. Secy. of State, to Mr. Doty, U. S. Consul at Tahiti, June 25, 1895, For. Rel. 1897, 124, Moore, Dig., IV, 133.

1 The protracted controversy between the United States and Russia concerning the treatment of American Jews in Russian territory, related chiefly to the interpretation of the treaty of December 18, 1832. Malloy's Treaties, II, 1514. Cf. in this connection Moore, Dig., IV, 111-129, and documents there cited, and in particular, communication of Mr. Blaine, Secy. of State, to Mr. Foster, Minister to Russia, No. 87, July 29, 1881, For. Rel. 1881, 1030, Moore, Dig., IV, 119. See, also, Termination of the Treaty of 1832 between the United States and Russia, Hearing before Committee on Foreign Affairs, House of Representatives, Dec. 11, 1911, revised edition, 1911; Treaty of 1832 with Russia, Hearing before Committee on Foreign Relations, United States Senate, 62 Cong., on S. J. Res. 60, Dec. 13, 1911, Washington, 1911; President Taft, message to the Senate, Dec. 18, 1911, transmitting copy of notice forwarded by the Secretary of State to the American Ambassador at St. Petersburg, relative to the termination of the treaty of 1832, Senate Doc. No. 161, 62 Cong., 2 Sess. Concerning treatment by Turkish authorities of American Jews in Palestine, cf. Moore, Dig., IV, 130–132.

"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, Juarès case; for promoting and organizing a strike, Ben Tillett's case; for practicing the art of healing without a license, Edwards' case; for writings or speeches derogatory to the government or the army, case of Father Forbes in France; Hottmann case in Switzerland; Kennan case in Russia; for anarchy, Kropotchine case in Switzerland; for preaching polygamy, Mormon missionaries in Germany; for spying or suspicion thereof, Hofmann and Richtofen cases in Switzerland; 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." E. M. Borchard, Diplomatic Protection, § 28. In connection with the last clause of the foregoing statement see, for example, Mr. Bacon, Acting Secy. of State, to Mr. Francis, American Ambassador at Vienna, April 13, 1907, concerning the case of Selig Fink, a naturalized American citizen of Austrian origin, For. Rel. 1908, 20.

2 Cf. communication of Mr. Frelinghuysen, Secy. of State, to Mr. Hamlin, No. 74, June 19, 1882, MS. Inst. Spain, XIX, 139, Moore, Dig., IV, 109; also Sir J. Pauncefote, British Minister at Washington, to Mr. Blaine, Secy. of State, Nov. 25, 1891, For. Rel. 1892, 255, Moore, Dig., IV, 229.

See provisions of §§ 19 and 20 of the Immigration Act of Feb. 5, 1917, 39 Stat. 874, 889-891; also Act of Oct. 16, 1918, to exclude and expel from the

EXPULSION AS A WAR MEASURE

[§ 64

Obviously a State which, in expelling an alien, has recourse to methods which violate its own constitution, is to be deemed guilty of a denial of justice, and is so regarded by the United States.1

(iv)

§ 64. Expulsion as a War Measure.

The exigencies of war may justify the action of a belligerent in expelling from its territory aliens whose presence there might not, under normal circumstances, be regarded as dangerous to the safety of the State or gravely detrimental to its welfare. The bare fact of war suffices to excuse the expulsion of aliens who are nationals of the enemy should the territorial sovereign deem it expedient to take such a step. The United States has availed itself of such a right,2 which it has also necessarily acknowledged to be possessed by other belligerents. It has had occasion, however, to complain of the harsh methods by which other States when engaged in war have had recourse to expulsion.3

It may be observed that the United States, while a belligerent in the course of The World War, did not expel alien enemies en masse, but sought to protect itself against them by other means.

United States aliens who are members of the anarchistic and similar classes, 40 Stat. 1012; Act of May 10, 1920, to deport certain undesirable aliens and to deny re-admission to those deported.

1 See, for example, Mr. Root, Secy. of State, to Mr. Russell, Minister to Venezuela, Feb. 28, 1907, concerning the case of A. F. Jaurett, For. Rel. 1908, 774, 777.

See statement in Moore, Dig., IV, 138, paraphrasing early legislation of the United States, embraced in the acts of July 6, 1798, 1 Stat. 577, and July 6, 1812, 2 Stat. 781.

See, for example, Mr. Olney, Secy. of State, to Mr. Dupuy de Lôme, Spanish Minister, Sept. 27, 1895, For. Rel. 1895, II, 1229, Moore, Dig., IV, 139; also Mr. Hay, Secy. of State, to Mr. Choate, American Ambassador at London, No. 494, Nov. 14, 1900, MS. Inst. Great Britain, XXXIII, 505, Moore, Dig., IV, 141.

After the conclusion of the armistice Nov. 11, 1918, and prior to the establishment of peace with Germany, the United States caused the deportation of numerous alien enemies whose conduct had previously been such as to necessitate their internment during the period of hostilities. Thus a number of such individuals who had not complied with the immigration regulations were deported. "Furthermore, in accordance with an agreement entered into with the German Government, most of the interned civilians of German birth, as well as subjects of other nations, who formed part of the crews of German merchant ships, were repatriated during the summer of 1919." Mr. Adee, Second Assist. Secy. of State, to the author, Nov. 6, 1919.

See, also, Act of April 16, 1918, 40 Stat. 531, amending Rev. Statutes, sec. 4067, and authorizing the President, in the event of war, to direct the conduct to be observed by the United States toward its alien enemies. Also proclamations of President Wilson, No. 1364, April 6, 1917, No. 1408, Nov. 16, 1917, No. 1417, Dec. 11, 1917, No. 1443, April 19, 1918, and No. 1506, Dec. 23, 1918; also broad provisions of Act of May 10, 1920, "to deport certain undesirable aliens, and to deny re-admission to those deported."

A belligerent may not unreasonably expel from its territory neutral nationals who, although domiciled therein, endeavor to escape the common burdens of military service.1

5

CERTAIN NON-POLITICAL ACTS OF SELF-DEFENSE

§ 65. In General.

a

An act of self-defense is that form of self-protection which is directed against an aggressor or contemplated aggressor. No act can be so described which is not occasioned by attack or fear of attack. When acts of self-preservation on the part of a State are strictly acts of self-defense, they are permitted by the law of nations, and are justified on principle, even though they may conflict with the normal rights of other States.2

Within the foregoing limits, the steps which a State may take in order to defend itself, within its own domain, are generally regarded as the mere exercise of the right of political independence. Military and naval forces may be established, and fortifications erected. Such instrumentalities may, however, by reason of their magnitude or location, be out of proportion to the legitimate defensive requirements of the State; and in such case, the circumstance that they are developed or established within places under the control of the territorial sovereign does not lessen their threatening aspect, or diminish the menace to the general peace. The international society may, therefore, not unjustly endeavor to restrain that sovereign from acquiring a military power obviously designed to enable the possessor to fulfill aggressive ambitions rather than safeguard its territories from attack.3

1 Cf. Neutral Persons and Property in Belligerent Territory, Military. Service, Theory of the Belligerent Right, infra, § 625.

2 "The first interest of a society, national or international, is justice; and justice is violated when any State which has not failed in its duty is subjected to aggression intended for the preservation or perfection of another." Westlake, 2 ed., I, 312. Compare Rivier, I, 277.

3 Hall, Higgins' 7 ed., 45, where it is said: "If a country offers an indirect menace through a threatening disposition of its military force, and still more through clear indications of dangerous ambition or of aggressive intentions, and if at the same time its armaments are brought up to a pitch evidently in excess of the requirements of self-defence, so that it would be in a position to give effect to its intentions, if it were allowed to choose its opportunity, the State or States which find themselves threatened may demand securities, or the abandonment of the measures which excite their fear, and if reasonable satisfaction be not given they may protect themselves by force of arms." The soundness of this statement has been illustrated by the treatment applied to Germany through the military, naval and aërial clauses of the Treaty of Versailles, of June 28, 1919. Cf. Part V thereof.

THE CASE OF THE CAROLINE

[§ 66

The terms of the Covenant of the League of Nations announce the recognition by the members thereof of the principle that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with the national safety and the enforcement by common action of international obligations. While the Council of the League is empowered merely to formulate plans for reduction, subject to adoption by the members, the latter, after the adoption of them, agree not to exceed the limits fixed by those plans without the concurrence of the Council. This arrangement is significant proof of the international interest already evinced in the military activities of the individual State. On grounds of self-defense a State may, as will be seen, deem itself justified in interfering with the political independence of another. On similar grounds a State may employ force outside of its own domain, as in the territory of a neighboring country, or upon the high seas in restraint of a foreign vessel, without, however, contemplating such interference and frankly disclaiming any design to effect it. As such acts are, in times of peace, normally regarded as unlawful because in derogation of the rights of the State whose territory is invaded or whose ships are subjected to control, there is general unwillingness to recognize any excuse as justifying what is commonly forbidden, save under special if not extraordinary circumstances. These may arise. They are to be observed in certain enlightening cases affecting the United States. These cases illustrate what has been and what may be done without betokening interference with rights of political independence or without impairment of the territorial integrity of a State whose domain is invaded.3

b

Invasion of Territory
(1)

66. The Case of The Caroline.

During an insurrection in Canada in 1837, the insurgents secured recruits and supplies from the American side of the border. There was an encampment of one thousand armed men organized

1 Art. VIII. It is there also provided that the plans formulated by the Council shall be subject to reconsideration and revision at least every ten

years.

* Intervention, Self-Defense, infra, § 70.

* Intervention, In General, infra, § 69.

at Buffalo, and located at Navy Island in Upper Canada; there was another encampment of insurgents at Black Rock, also a Canadian point. The Caroline was a small steamer employed by these encampments. On December 29, 1837, while moored at Schlosser, on the American side of the Niagara River, and while occupied by some thirty-three American citizens, the steamer was boarded by an armed body of men from the Canadian side, who attacked the occupants. The latter merely endeavored to escape. Several were wounded; one was killed on the dock; only twentyone were afterwards accounted for. The attacking party fired the steamer and set her adrift over Niagara Falls. In 1841, upon the arrest and detention of one Alexander McLeod, in New York, on account of his alleged participation in the destruction of the vessel, Lord Palmerston avowed responsibility for the destruction of the Caroline as a public act of force in self-defense, by persons in the British service. He therefore demanded McLeod's release. McLeod was, however, tried in New York, and acquitted.1 In 1842 the two Governments agreed on principle that the requirements of self-defense might necessitate the use of force. Mr. Webster, Secretary of State, denied, however, that the necessity existed in this particular case, while Lord Ashburton, the British Minister, apologized for the invasion of American territory.2 Said Mr. Webster in the course of a communication to the British Minister, August 6, 1842:

Undoubtedly it is just, that, while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to cases in which the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.3

The facts in the case of the Caroline seem to have satisfied these requirements. There was a threatened attack on British territory which the sovereign thereof possessed the right to prevent and resist. In this respect that which required protection differed sharply from a mere national interest or policy.5

1 Infra, § 249.

2 The statement of facts concerning the Caroline is based on a fuller statement contained in Moore, Dig., II, 409-411. See, also, Lord Ashburton, British Minister, to Mr. Webster, Secy. of State, July 28, 1842, Moore, Dig., II, 411; Mr. Webster, Secy. of State, to Lord Ashburton, Aug. 6, 1842, id., II,

412.

3 Webster's Works, VI, 301, 302, Moore, Dig., II, 412.

4 Hall, Higgins' 7 ed., 279-280; Westlake, 2 ed., I, 313-314; Autobiography of Lord Campbell, 2 ed., 1881, 19, quoted in Moore, Dig., II, 414.

In the Case of the Fur Seal Arbitration, between the United States and