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.

2

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

1 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.

Rolin-Jacquemyns in 20 R. D. I. (1888), 498; Woolsey, International law, § 63, p. 85; Heffter, op. cit., § 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.

4 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.2

§ 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.* 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.

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.

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.1 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.