§ 25. Matters of Private Law.

In private law, the maximum limit of action has been fixed by the obligation to respect the "personal statute" of the alien. As affecting alienage, this limitation is more important in Europe, where nationality usually controls capacity and status, than in the United States and Great Britain, where domicil is the criterion of the personal statute. A state frequently declines to give effect to acts done by the alien to escape the penalties of his national law. So in some states a marriage or divorce in fraud of the alien's national law is not recognized. In general, it may be said that the clause of equality between national and alien, incorporated either in treaty or statute, operates simply as a limitation upon the arbitrary power of the local legislature and relieves the alien from the inferior position in which the municipal law might have placed him. It does not relieve him from those exceptions to equal treatment which the public interest in many countries is believed to dictate, e. g., limitations upon his right to own real property, or to own shares in national vessels. Likewise, the effect and force of many acts of the alien may be different from those of the national. He may be required to register his alienage, to comply with various matters of form, as, e. g., in case of marriage, and in other respects accept rules different from those applying to nationals. So long as his position is not one of inferiority, the clause of equality is not considered as having been violated.

Before it is possible to establish the obligations of a state toward aliens, which must be done before the responsibility of the state can be determined, it is necessary to examine in somewhat greater detail the relations between the state and the alien, the rights and obligations of the state, and the rights, duties and disabilities of the alien.

ADMISSION AND EXCLUSION

§ 26. State's Right of Exclusion.

The first point of contact between a state and an alien is at the frontier or port where he presents himself for admission. The first inquiry, therefore, before examining the rights of the alien within the country, will be directed toward the right of the state to exclude and expel the alien. The vast extent of immigration within the last

half century and the growth of commercial intercourse, accompanied by a general recognition of the right of emigration and expatriation, have lent considerable importance to this inquiry.1

Publicists have disagreed as to the governing principles and governments as to the expedient policy. Those writers who base their conclusions upon the assumption that there is a fundamental right of international intercourse between states, maintain that no state can absolutely forbid entrance to aliens, although it may exclude those whose presence is a menace to the welfare of the state. On the other hand, taking the sovereignty of the state and its right of self-preservation as the point of departure, other publicists, by far the more numerous, agree that there is an inherent right of the state to exclude aliens at its pleasure. As Hall justly remarks, however:

"The exercise of the right is necessarily tempered by the facts of modern civilization. For a state to exclude all aliens would be to withdraw from the brotherhood of civilized peoples; to exclude any without reasonable or at least plausible cause is regarded as so vexatious and oppressive, that a government is thought to have the right of interfering in favour of its subjects in cases where sufficient cause does not in its judgment exist." 4

Courts in the United States and Great Britain which have had to pass upon the question, on writs of habeas corpus or in actions against administrative officers for preventing a landing or for the enforcement of an order of deportation, have affirmed the right of the state

1 See the Resolutions on emigration of the Institute of International Law, Annuaire, XVI, 242 et seq.

* Bluntschli, Dr. int. codifié, § 381; Pözl and Mohl, cited by Stoerk in Holtzendorff's Handbuch, II, 637; Liszt, Völkerrecht, 9th ed., 1912, § 25, p. 187.

The Institute of International Law adopted the following resolution: "The free entrance of aliens on the territory can only be prohibited in a general and permanent manner for reasons of public interest and extremely grave motives, e. g., by reason of a fundamental difference of morals or civilization, or by reason of an organization or dangerous accumulation of aliens who appear en masse. Annuaire, XII, 192, 220. See Oppenheim, I, 390 and bibliography there cited. See also von Overbeck, A., Niederlassungsfreiheit u. Ausweisungsrecht, Karlsruhe, 1907; Jeancourt-Galignani, A., L'immigration en droit international, Paris, 1908; Bouvé, C. L., Exclusion and expulsion of aliens in the United States, Washington, 1912; Regulations and resolutions of the Institute of International Law, Annuaire, XI, 277, 41, 273; XVI, 262 and 276. See also § VI, Control of immigration, in Moore's Dig. IV, 142 et seq. 4 * Hall, 6th ed., 211.

1

to exclude those whom it will. The Supreme Court of the United States has stated what is believed to be a general principle:

"It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe."

3

2

Diplomatic papers have uniformly upheld the sovereign right of exclusion. In England, it has been held that an alien has no legal right enforceable by action to enter British territory.4

International intercourse, however, is so essential to the existence of the society of states that in practice the right of admission is freely accorded, subject to specific exceptions fully announced in advance and recognized as reasonable by international public opinion. The network of commercial treaties by which the states, of the white race at least, are bound together, has practically established the rule of freedom of international intercourse. A government that would seek to-day to take advantage of its right to exclude all aliens would violate the spirit of international law and endanger its membership in the international community.

Yet it is upon this ultimate power that is based the right of the state to exclude undesirable aliens and fix the conditions of admission. The power of exclusion is admitted in the passport system 5 which was at one time universal and still exists to a limited extent. The grounds of exclusion are fixed by the public interests of each state, and governments claim the right to determine for themselves what aliens or classes of aliens are dangerous or undesirable. For political, social

1 Musgrove v. Chun Teeong Toy, L. R. 1891, App. Cas. 272; The Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U. S. 581, 606; Nishimura Ekiu v. United States, 142 U. S. 651, 659; U. S. v. Greenawalt, 213 Fed. 901. See also address of Mr. Mastier before the International Law Association, 19th Report, p. 48.

2 Nishimura Ekiu v. United States, 142 U. S. 659. See also papers of Charles Earl and C. L. Bouvé before the 1911 meeting of the American Society of International Law, Proceedings, 66, 95.

See extracts quoted in Wharton's Dig., § 206. Agreement between U. S. and Venezuela for settlement of Jaurett claim, For. Rel. 1909, 629.

◄ Musgrove v. Chun Teeong Toy, L. R. 1891, App. Cas. 272, 282.

' Westlake, I, 216.

and economic reasons various classes of aliens are excluded.1 They may usually be brought within one or more of the following classes, which comprise those persons who by existing law are excluded from the United States: (1) aliens who are physically or morally defective; (2) aliens contagiously diseased; (3) alien paupers or beggars and aliens generally who are incapable of maintaining themselves, or are likely to become a public charge; (4) aliens deemed morally, socially, or politically unfit, as prostitutes, procurers, criminals, anarchists and polygamists; (5) contract laborers, or aliens induced or solicited to migrate by offer or promise of employment; (6) assisted aliens, or those whose passage is provided by any corporation, society, or foreign government; (7) alien races considered inferior or not capable of assimilation, e. g. Chinese and certain Japanese laborers in the United States and many of the British colonies, the gypsies in many European countries, and Turks in Panama.2

The stipulations of commercial treaties, providing for general freedom of intercourse, do not prevent the exclusion of these undesirable classes. International claims because of exclusion are rare. Nevertheless, the United States has on numerous occasions protested against discriminations against certain classes of American citizens excluded because of race, profession or creed, especially where, by treaty, rights of residence and travel were assured to all citizens of the United States. The most prominent of this type of cases was the long continued protest against the exclusion by Russia of American citizens of Jewish faith, which ultimately culminated in the abrogation by the United States of the treaty of 1832 with Russia. While

1 Frisch, op. cit., 91 et seq. The Institute of International Law has declared that the protection of national labor is not alone a sufficient reason for exclusion. (Annuaire, XII, 220.)

2 Charles Earl in Proceedings of the American Society of Int. Law, 1911, 67–68. See also Moore's Dig. IV, 142 et seq., and 31 Clunet (1904), 977. By a law of August 13, 1903 Haiti excluded all Syrians from that country and fixed a time for those then in the country to leave. For. Rel. 1904, p. 394. But the statute is not enforced against Syrians who became naturalized Americans prior to the law of 1903, and were resident in Haiti before 1903. For the Panama regulations see 11 R. G. D. I. P. (1904), 565–567.

*Cases of such special discrimination, with extracts from the diplomatic correspondence will be found in Moore's Dig. IV, 109 et seq. But the U. S. did not deny

the enforcement of an order of exclusion against all the subjects of one state might be considered an unfriendly act and warrant reprisals and perhaps war, states have generally, in the absence of treaty, refrained from contesting the practice of excluding their individual subjects considered undesirable by other states. An arbitrary or unjust exclusion would give rise rather to a political than to a legal pecuniary claim, unless in violation of local law.

Closely connected with the right of exclusion or admission on conditions is the right of asylum on what is in fact national territory. This is the right of a state by virtue of its territorial supremacy to admit to its territory fugitive aliens from other states and to accord them such hospitality as in its discretion it desires to extend. It is not, as is often erroneously assumed, a right of the individual to claim admission, but by international practice it has been conceded to be a right of the state. It is granted usually to political offenders, whose surrender is generally excepted from the stipulations of extradition treaties. The duty which every state by comity owes to other states warrants it in using repressive measures to prevent the received alien from becoming a source of danger to the safety of another state.1

EXPULSION

§ 27. State's Power to Expel.

The power to expel aliens rests upon the same foundation and is justified by the same reasons as the power to exclude, namely: the sovereignty of the state, its right of self-preservation, and its public interests. The Supreme Court has said:

the right of Haiti to exclude all Syrians, even naturalized Americans (except those above mentioned), in view of the fact that the U. S. excluded Chinese, regardless of their acquired nationality. (Act of July 5, 1884, ch. 220, § 15; 20 Op. Atty. Gen. 729.) While admitting Haiti's right, the U. S. insisted that there be no discrimination between Americans and other nationals of Syrian origin. Great Britain insisted that those already established in business be not disturbed.

1 Oppenheim, op. cit., 392; Hall, 6th ed., 211. From the state's right of asylum is derived the practice of legations and consulates in granting asylum to political refugees. An abuse of the right has occasionally resulted in its extension to other classes of offenders, which has given rise to diplomatic remonstrance. See article by Barry Gilbert, The practice of asylum in legations and consulates of the United States, 3 A. J. I. L. (1909), 562–595. The practice is discouraged by the United States.