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.2 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.3

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.

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." 1

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,3 or by which they were forced to sell it at a sacrifice, or by which they were subjected to unnecessary indignities, harshness or oppression,5 have all been considered by international commissions as just grounds for awards.

4

1 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.

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

An expulsion founded upon a special discrimination against an alien, on account of his nationality, race or creed may be and has often been considered an unfriendly act to his national government, and has given rise to diplomatic claims.1

§ 32. In Time of War.

3

The outbreak of war makes alien enemies of the respective subjects of the belligerents. International law authorizes the state to expel from its territory all or any of the subjects of its enemy.2 No other reason than the existence of the war need be given. Municipal statutes in Great Britain and the United States have confirmed this right of expulsion in time of war, and give the President or Parliament the power to declare the conditions under which it shall be exercised. While formerly such expulsions en masse were common, they have been but rarely resorted to in recent times. Thus, in the Crimean War in 1854, Russia permitted French and British subjects to continue peaceably to reside; Italy similarly extended this privilege to Austrian subjects in the Italian War of Liberation of 1859 and to Turkish subjects in the Turko-Italian war of 1912; China and Japan extended it respectively in the Chino-Japanese War of 1894, as did the United States and Spain respectively in the Spanish-American War of 1898, and Japan again in the Russo-Japanese War of 1904. In the present European War, alien enemies have in general been permitted to remain, under various measures of surveillance.

On the other hand, France considered it necessary to expel German subjects during the Franco-Prussian War of 1870, Turkey, to expel

Netherlands, Feb. 13, 1903, Ralston, 702. See also Jaurett (U. S.) v. Venezuela, Sen. Doc. 413, 60th Cong. 1st sess., 20 et seq., 559 et seq. (settled by agreement of Feb. 13, 1909, For. Rel., 1909, 629).

1 See Mr. Uhl, Act'g Sec'y of State, to Mr. Terrell, Dec. 7, 1893, For. Rel., 1893, p. 707. See also the diplomatic correspondence quoted in Moore's Dig. IV, 109.

2 Hall, op. cit., 6th ed., 383-388. The right of expulsion en masse is supported by Diena (Principi, 468), Nys (III, 105) and Catellani (Condizioni e effetti giuridica dello stato di guerra. Venice, 1906, p. 61). Fiore considers the measure as opposed

to modern principles of international law. Dir. int. cod. (4th ed.), § 1142.

* De Rijon (Mexico) v. U. S., July 4, 1868, Moore's Arb. 3348.

See Revised Statutes of the United States, §§ 4067-4070. See also Moore's Dig.

IV, 138; Brown v. U. S., 8 Cranch, 110, 127.

Greek subjects in the War of 1897 and Italian subjects in the war of 1912, the Boers, to expel British subjects from the Transvaal in 1900, and the Russians, to expel the Japanese from certain provinces in 1904.1 In the present European War, it seems that Russia has ordered the expulsion of all Turks, and Germans and Austrians have been expelled from French Morocco. A limited time is usually granted for the departure of enemy individuals in the territory and of enemy merchant vessels in the ports of a belligerent.2 The permission to remain or the order of expulsion, with the accompanying conditions, are usually published in the form of a proclamation.

With the progress of civilization, there is an increasing tendency to confine the effects of an armed conflict within as narrow limits as possible and to mitigate the rigorous maintenance of the principle that subjects of an enemy state may be treated as enemies, in favor of the unarmed civilian alien, whose person and property are respected, with certain variously stated exceptions, as before the war. This rule is now largely confirmed by treaties by which merchants and traders are allowed a limited period to wind up their affairs and depart, and those engaged in innocent occupations are permitted to remain. 3

§ 33. Extradition.

Extradition is closely connected with expulsion. Independently of treaty stipulations, there is no duty incumbent upon a state within whose territory the fugitive may be found to deliver him to a state in whose territory the alleged crime has been committed. In the interests of modern civilization, however, states have voluntarily limited their right of asylum by agreeing by treaty to deliver up such individuals as have offended the criminal law of another state. The 1 See discussion in Martini, op. cit., 87 et seq., and G. Tambaro in 1 Jahrbuch des Völkerrechts, 740–741.

2 Higgins, A. Pearce, The Hague peace conferences, 1909, pp. 294-307. In the absence of treaty or proclamation, a belligerent has a technical right to seize enemy ships in his ports on the outbreak of war. See Russell T. Mount's account of recent practice in 15 Columbia L. Rev. (1915), 318-323.

See, e. g., the typical provisions of Art. XXI of the treaty between the United States and Italy, Feb. 26, 1871, Malloy, Treaties, etc., 1910, I, 975, quoted infra, p. 109.

subject is also largely regulated by municipal extradition laws. The categories of crimes for which extradition will lie are expressly laid down in the treaties.1

POLITICAL RIGHTS AND DUTIES

§ 34. These not usually ascribed to Aliens.

The rights and disabilities of aliens are usually discussed from the point of view of their political or their civil character. Political rights are such as involve a share in the control and an active participation in the life and operation of the state. As has already been seen, they are usually denied to aliens. In the United States, exceptions have been made, based on residence, and this tendency appears to be growing. Domiciled aliens in a number of the South American states are granted limited political rights, and an extension of this policy would be only a measure of self-defense, inasmuch as the failure to grant domiciled aliens political rights has given foreign countries some ostensible, if not actual, title to diplomatic interposition, for the alien's inability to exercise political rights deprives him of an important remedy against maladministration.

There is some difference of opinion as to what is included among political rights; for example, Liszt 2 considers the right of association, freedom of the press, and even the right of residence, as political rights. The tendency, however, is to narrow the term to include merely the right to vote and hold office and the rights (or obligations) incident to citizenship, such as military service, jury service, and the competency to fill certain public offices, for example, in some of the European states, to act as judges, notaries public, advocates, and in similar offices.3

In certain countries, particularly some of those on the American continent, aliens are excluded only from the most important public offices. The acceptance by an alien of a public office in these states without the consent of his national state often involves the loss of

1 Oppenheim, op. cit. I, 403 et seq.; Bonfils-Fauchille, Manuel de droit int. pub., 6th ed., Paris, 1912, p. 282 et seq.

* Liszt, Völkerrecht, Berlin, 1912 (9th ed.), 193.

Cockburn, Nationality, London, 1869, pp. 158, 159, 163.