REGULATION BY CONVENTION

[$ 60 An enlightened State may be unwilling to incorporate in a treaty of commerce a definite restriction designed to prevent the immigration of its nationals (other than persons of specially favored classes, such as officials, teachers, students, merchants or travelers for curiosity or pleasure) by the other contracting party. A discrimination based upon race or nationality may be deemed improper for formal acknowledgment in such a compact. On the other hand, with full appreciation of the right as well as the economic problem of a particular foreign country, a State may informally yet not the less positively agree so to check the emigration of its nationals destined to the territory of the former as to eliminate the danger lest large numbers of undesired classes of its nationals seek access thereto to the embarrassment of the territorial sovereign.1

States not infrequently undertake to regulate by convention matters pertaining to immigration. The United States has re

exempting from this test an alien whose admission is within five years after the enactment of the law, requested by a citizen of the United States who served in the military or naval forces of the United States during the war with the Imperial German Government, and with the approval of the Secretary of Labor, marries the alien at a United States immigration station. § 3 of the Act of Feb. 5, 1917, contains numerous provisos which serve to establish limitations in its operation, with respect, for example, to the contract-labor and reading-test provisions.

1 In view of the broad privileges accorded the nationals of Japan to enter, travel or reside in the territories of the United States by virtue of Art. I of the treaty of commerce and navigation of Nov. 22, 1894, Malloy's Treaties, I, 1028, it was not unreasonable that the treaty which superseded it, concluded Feb. 21, 1911, Charles' Treaties, 77, should contain no specific reference to any restriction to be applied to any particular class of Japanese nationals, such as laborers. It should be observed, however, that Baron Uchida, the Japanese Plenipotentiary and Ambassador at Washington, upon proceeding to the signature of the treaty, made a declaration to the effect that "the Imperial Japanese Government are fully prepared to maintain with equal effectiveness the limitation and control which they have for the past three years exercised in regulation of the emigration of laborers to the United States." Id., 82.

In 1907, the Japanese Government, pursuant to a verbal understanding between Mr. Root, Secretary of State, and Baron Takahira, Japanese Ambassador at Washington, undertook to prevent the emigration of Japanese laborers to the United States, and by that process to remove occasion for the actual exclusion by the United States of such individuals. The purport of this agreement was set forth in the Report of the Commissioner-General of Immigration for the fiscal year ending June 30, 1907, pp. 125–126. It should be observed, however, that President Roosevelt on March 14, 1907, issued an executive order declaring that passports issued by the Government of Japan to citizens of that country or Korea, and who were laborers, to go to Mexico, to Canada and to Hawaii, were being used for the purpose of enabling the holders thereof to enter the continental territory of the United States to the detriment of labor conditions therein; and he thereby ordered that such individuals, possessed of such passports, and coming from Mexico, Canada or Hawaii, be refused permission to enter the continental territory of the United States. Am. J., I, 450.

peatedly done so.1 The right of exclusion is not necessarily incapable of restriction by such process.2

The Supreme Court of the United States has declared it to be entirely settled that the authority of Congress to prohibit aliens from coming within the United States, and to regulate their coming, includes authority to impose conditions, upon the performance of which the continued liberty of the alien to reside within the bounds of the country may be made to depend; that a proceeding to enforce such regulations is not a criminal prosecution within the meaning of the Fifth and Sixth Amendments to the Constitution ; that such an inquiry may be properly placed upon an executive department or subordinate officials thereof, and that the findings of fact reached by such officials, after a fair though summary hearing, may constitutionally be made conclusive, as they are made by the provisions of the Act of Congress.3

The attempt of a foreign State to assist or compel the emigration of its criminals, paupers, incurably diseased or otherwise undesirable nationals, will always be resisted by the country to whose territory they are directed. No State is obliged or willing to bear the domestic burdens of any other. The United States, as has been observed, regards the voluntary character of the coming of aliens to its shores as essential; and hence it opposes immigra

1 Art. I of immigration treaty between the United States and China of Nov. 17, 1880, Malloy's Treaties, I, 239; also immigration treaty between same States of March 17, 1894, id., 241. See, also, Argument of Hon. John W. Foster on Treaty Rights of Chinese Subjects concerning Admission and Residence in the United States, before Senate Committee on Immigration, Jan. 23, 1902, Senate Rep. 776, 57 Cong., 1 Sess., Part 2, p. 32.

2 Mr. Everett, Secy. of State, to Mr. Mann, Dec. 13, 1852, 41 MS. Dom. Let. 138, Moore, Dig., IV, 70; Field, J., in The Chinese Exclusion Case, 130 U. S. 581, 609. See Report of Mr. Foster, Secy. of State, to the President, Jan. 7, 1893, expressing the opinion that a bill pending in the Senate for the absolute suspension of immigration for one year would not conflict with any existing treaties of the United States. Senate Ex. Doc. 25, 52 Cong., 2 Sess., Moore, Dig., IV, 153.

Zakonaite v. Wolf, 226 U. S. 272, 275, citing Fong Yue Ting v. United States, 149 U. S. 698, 730; United States v. Zucker, 161 U. S. 475, 481; Wong Wing v. United States, 163 U. S. 228, 237; Turner v. Williams, 194 U. S. 279, 289; Chin Yow v. United States, 208 U. S. 8, 11; Tang Tun v. Edsell, 223 U. S. 673, 675; Low Wah Suey v. Backus, 225 U. S. 460, 468; also Bugajewitz v. Adams, 228 U. S. 585; Tiaco v. Forbes, 228 U. S. 549, 556.

4 See correspondence between Mr. King, Minister to Great Britain, and the Duke of Portland, 1789, concerning the emigration of Irish national prisoners, 7 MS. Despatches from England, Moore, Dig., IV. 142-144; also the Duke of Portland to Lord Cornwallis, id., Moore, Dig., IV, 144; Mr. Fish, Secy. of State, to Mr. Moulding, Dec. 26, 1872, 97 MS. Dom. Let. 87, Moore, Dig., IV, 145; Mr. Blaine, Secy. of State, to Mr. Cramer, Dec. 3, 1881, MS. Inst. Switzerland, II, 124, Moore, Dig., IV, 145; Mr. J. Davis, Acting Secy. of State, to Mr. Lowell, May 25, 1883, For. Rel. 1883, 422, 423, Moore, Dig., IV, 146; President Arthur, Annual Message, Dec. 4, 1883, For. Rel. 1883, iv, Moore, Dig., IV, 147; in re Nikolaus Bader, For. Rel. 1891, 17-30.

IN GENERAL

[§ 61 tion assisted or constrained by foreign agencies.1 The existing statutory law does not, however, purport to exclude persons whose tickets or passage to the United States are paid for by another, if there be a sufficient showing that such individuals do not belong to the excluded classes, and provided also that payment is not in behalf of any organization or municipality, or foreign government.2

A State may doubtless decide for itself whether the continued presence within its territory of a particular alien is so adverse to the national interests that the country needs to rid itself of him. That right is possessed by the United States. If such be its decision, the right of expulsion must be acknowledged. Expulsion may, however, savor of an abuse of power unless the decision to expel be founded on a bona fide belief as to the evil effect upon the State of the continued presence of the individual within its domain. A conclusion in favor of expulsion need not necessarily coincide with one to which the State of which the alien is a national would, under like circumstances, assent. On the other hand, a decision to expel must not be one which no enlightened State could in good faith be reasonably expected to reach. Thus arbitrary action, either in the choice of the individual expelled,

1 Mr. Hay, Secy. of State, to Mr. Wilson, Minister to Roumania, July 17, 1902, For. Rel. 1902, 910, 912, Moore, Dig., IV, 151. See extracts from correspondence between Mr. Bayard, Secy. of State, and Sir L. West, British Minister at Washington, in 1887, Moore, Dig., IV, 148; Case of John Gibbons and family, For. Rel. 1892, 266–272, Moore, Dig., IV, 149–151.

2 §3, Act of Feb. 5, 1917, 39 Stat. 875.

8 Fong Yue Ting v. United States, 149 U. S. 698, 711-714.

"The just rule would seem to be that no nation can single out for expulsion from its territory an individual citizen of a friendly nation without special and sufficient grounds therefor. And even when such grounds exist the expulsion should be effected with as little injury to the individual and his interests as may be compatible with the safety and interest of the country which expels him." Mr. Gresham, Secy. of State, to Mr. Smythe, Minister to Haiti, Nov. 5, 1894, For. Rel. 1895, II, 801.

"The modern theory and practice of Christian nations is believed to be founded on the principle that the expulsion of a foreigner is justifiable only when his presence is detrimental to the welfare of the State, and that when expulsion is resorted to as an extreme police measure it is to be accomplished with due regard to the convenience and the personal and property interests of the person expelled." Mr. Olney, Secy. of State, to Mr. Young, Minister to Guatemala, Jan. 30, 1896, For. Rel. 1895, II, 775, Moore, Dig., IV, 102, 103. Cf., also, Mr. Ralston, Umpire in the Boffolo Case, before Italian-Venezuelan Commission, under protocol of Feb. 13, 1903, Ralston's Reports, 699–700.

or in the method of expulsion, would indicate internationally illegal action.1

The State having recourse to expulsion must be prepared to make known the reasons for its action to the State to which the alien belongs.2 The former does not appear, however, to be required to furnish evidence in justification of its conduct as a condition precedent to such action.3

§ 62. Method of Expulsion.

(ii)

Arbitrary action is frequently apparent in the method by which expulsion is effected. That applied by Guatemala in the case of one Hollander, an American citizen, is illustrative. Having been arrested February 8, 1889, on a charge of calumny and forgery, Hollander was held in custody until May 14, following, when, before the trial of the case, he was expelled from the country by executive decree, and without opportunity to see his family or make any business arrangements.*

1 Report of M. Rolin-Jacquemyns on Expulsion, to the Institute of International Law, 1888, Annuaire, X, 229; also project of declaration, adopted by the Institute Sept. 8, 1888, id., 244; also proceedings of the Institute, Hamburg Meeting, 1891, Annuaire, XI, 273-321; Rules for the Admission and Expulsion of Foreigners, adopted by the Institute, at Geneva, Sept. 9, 1892, Annuaire, XII, 218; preliminary discussion, id., 185. An English translation of the rules adopted in 1892 is contained in J. B. Scott, Resolutions of the Institute, 104. Cf., also, Prof. von Bar, in Clunet, XIII, 5; Tchernoff, La Protection des Nationaux Résidant à L'Etranger, 449-451; Borchard, Diplomatic Protection, §§ 27-32, bibliography, id., p. 869; Clement L. Bouvé, Laws Governing the Exclusion and Expulsion of Aliens in the United States, Washington, 1912.

2 Declared Mr. Ralston, Umpire, in the course of a well-considered opinion in the Boffolo Case, before the Italian-Venezuelan Commission, under protocol of Feb. 13, 1903: "The country exercising the power must, when occasion demands, state the reason of such expulsion before an international tribunal, and an insufficient reason or none being advanced, accepts the consequences." Ralston's Reports, 696, 705.

According to Art. XXX of the regulations of the Institute of International Law, of 1892: "The act decreeing expulsion shall be notified to the expelled individual. The reasons on which it is based must be stated in fact and in law." J. B. Scott, Resolutions, 109.

3 Mr. Gresham, Secy. of State, to Mr. Smythe, Minister to Haiti, Jan. 24, 1895, For. Rel. 1895, II, 809, Moore, Dig., IV, 87. Concerning the important case of A. F. Jaurett, an American citizen expelled from Venezuela in 1904, cf. Mr. Root, Secy. of State, to Mr. Russell, Minister to Venezuela, Feb. 28, 1907, For. Rel., I, 908, 774-778; Same to Same, June 21, 1907, id., 800-801; Mr. Churion, Venezuelan Minister of Foreign Affairs, to Mr. Russell, July 24, 1907, id., 806. See, also, agreement of Feb. 13, 1909, for the settlement of the claim, For. Rel. 1909, 629. See, also, Mr. Root, Secy. of State, to Mr. Furniss, Minister to Haiti, Feb. 24, 1906, For. Rel. 1906, II, 870.

In commenting on this case Mr. Olney, Secy. of State, said: "After deliberating three months and more, with Hollander absolutely in its power, the executive authority expelled him in a manner that defeated the course of

CAUSES OF EXPULSION

[§ 63

While the law. of nations does not forbid a State to expel an alien who has his domicile or residence within its territory,' the just exercise of the right in such a case calls for special care. The method and procedure employed must be designed to afford greater indulgence to the individual concerned than where he is a transient visitor.2

§ 63. Causes of Expulsion.

(iii)

States differ with respect to causes which lead them to expel aliens. It may be doubted whether any general rules of classification or limitation are acknowledged to exist. In practice widest latitude is enjoyed. Thus a State may with reason expel from its territory one who commits acts deemed unlawful by its own laws, although not so regarded by those of the State of which the alien is a national.3 It may doubtless expel the alien who persists in teaching or proselyting in behalf of a religious sect whose tenets are deemed gravely objectionable. The fact that the United

justice in the courts of the country; that violated the rules of international law and the existing provisions of the treaty, and was contrary to the practice of civilized nations." Communication to Mr. Young, Minister to Guatemala, Jan. 30, 1896, For. Rel. 1895, II, 775, Moore, Dig., IV, 102, 108.

See, also, Case of F. Scandella, For. Rel. 1898, 1137-1147, referred to in Moore, Dig., IV, 108; Mr. Gresham, Secy. of State, to Mr. Smythe, Minister to Haiti, Nov. 5, 1894, For. Rel. 1895, II, 801; Bluefields Cases, 1894, Moore, Dig., IV, 99-101, and documents there cited; Paquet Case (expulsion, before Belgian-Venezuelan Commission under protocol of Mar. 7, 1903, Ralston's Reports, Venezuelan Arbitrations, 1903, 265; Oliva Case, before Italian-Venezuelan Commission, under protocol, Feb. 13, 1903, id., 771; Boffolo Case, before same Commission, id., 696; Maal Case before Netherlands-Venezuelan Commission, under protocol, Feb. 28, 1903, id., 914. Cf., also, decision of the Umpire, M. Desjardins, Dec. 26, 1898, in the Ben Tillet Case between Great Britain and Belgium, Clunet, XXVI, 203; Cases of Expulsion considered by Mexican Claims Commission under Act of Congress of March 3, 1849, Moore, Arbitrations, IV, 3334; by American-Mexican Claims Commission, convention of 1868, id., 3347; by Spanish Claims Commission, 1871, id., 3350; by United States and Venezuelan Claims Commission, convention of 1885, id., 3354.

1 Fong Yue Ting v. United States, 149 U. S. 698, 724; also dissenting opinions of Justices Brewer and Field, and Chief Justice Fuller, respectively, id., 734, 757 and 761.

2 See communication of Mr. Olney, Secy. of State, Jan. 30, 1896, in Hollander Case, Moore, Dig., IV, 102-104; Report of M. Rolin-Jacquemyns, Annuaire, X, 229, 233; Article XLI of Rules adopted by Institute of International Law, Sept. 9, 1892, Annuaire, XII, 218, 225, J. B. Scott, Resolutions, 110. Also Borchard, Diplomatic Protection, § 29.

Case of Paul Edwards, expelled from Belgium on account of practicing in that country the art of healing without medicines, by the laying on of hands, hypnotic suggestion and personal magnetism, in violation of the Belgian law, For. Rel. 1900, 45-53, Moore, Dig., IV, 93.

Cf. case of Lewis T. Cannon and Jacob Müller, expelled from Prussia, 1900, on account of their preaching and practicing the Mormon faith. For. Rel. 1901, 165, Moore, Dig., IV, 135; also For. Rel. 1898, 347-354; also