(c) "It is the fact of physical entrance by the alien within the jurisdiction, irrespective of whether that purpose is for domicile or transit, which is within the power of Congress to grant. deny, or regulate." "

The question of deportation is viewed in the light of immigration laws, but the following passage has significance for our purpose:

"The procedure prescribed by Congress for the deportation of aliens under the Chinese exclusion and immigration acts * does not involve the

*

*

right to a trial by jury. It is essentially of a civil character and constitutes merely a method of enforcing the return to his own country of an alien held to be unlawfully in the United States, or found not to be qualified to enter under the exclusion laws, and deportation thereunder does not constitute a punishment for crime." 70

In regard to the payment of expenses incident to deportation, we find a pertinent statement:

"The right of the Government to enforce the return to the foreign port of embarkation, at the expense of the vessel bringing the alien, is discussed in a very recent decision of the Supreme Court, wherein it was held that the taking in Bremen of a sum sufficient to pay return fare of an alien whose admissibility was questionable and the retention of such amount after the arrival of the alien at New York constituted an offense punishable under section 19." "1 The conclusion of Bouvé, from authorities cited, is this:

*** * * while a sovereign State has an absolute right to exclude or expel any or all foreigners from its jurisdiction, either in time of peace or war, a nation which exercises either right in an arbitrary or unjust manner may render itself thereby liable to a demand for satisfaction on the part of the State whose national has been thus expelled or excluded.'

T3

99 72

2. Vattel's Law of Nations, frequently quoted in court decisions, makes definite statements on the subject:

"The sovereign may forbid the entrance of his territory [to] either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the State. There is nothing in all this that does not flow from the rights of domain and sovereignty; every one is obliged to pay respect to the prohibition; and whoever dares to violate it incurs the penalty decreed to render it effectual. But the prohibition ought to be known, as well as the penalty annexed to disobedience; those who are ignorant of it, ought to be informed of it when they approach to enter the country."

He continues the discussion:

99 74

Since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has, no doubt, a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain

*

* *.

"If the sovereign annexes any particular condition to the permission to enter his territories, he ought to have measures taken to make foreigners acquainted with it, when they present themselves on the frontier

* *

"But, even in those countries which every foreigner may freely enter, the sovereign is supposed to allow him access only upon this tacit condition, that he be subject to the laws-I mean the general laws made to maintain good order, and which have no relation to the title of citizen or of subject of the State. The public safety, the rights of the nation and of the prince, necessarily require this condition; and the foreigner tacitly submits to it, as soon as he enters the country, as he can not presume that he has access on any other footing."

76

3. Robert Phillimore's ideas accord-with those of Vattel.

46

"It is a received maxim of International Law, that the government of a state may prohibit the entrance of strangers into the country, and may therefore regulate the conditions under which they shall be allowed to remain in it, or may require and compel their departure from it."

69 Ibid., p. 137.

70 Ibid., p. 616.

Op. cit., p. 668.

72 Op. cit., p. 14.

73 Vattel, Emmerich de (Le droit des gens. Londres, 1758). The Law of Nations, 6th American edition, Philadelphia, 1844.

74 Ibid., Bk. II, Ch. VII, sec. 94.

75 Op. cit., Ch. VIII, pp. 171-172, secs. 100-101.

76 Phillimore, Robert: Commentaries upon international law. London, 1854.

"Ibid., vol. 1, Ch. X, p. 233.

As if to leave no doubt, he makes another statement of similar import: "All strangers commorant in a land, owe obedience, as subjects for the time being (subditi temporanei), to the laws of it." 78

4. Pradier-Fodéré has said that sovereignty carries with it the power of expulsion and deportation.

"It is at all events certain that the power which every state has to expel strangers from its territory is one of the complementary elements of the protection to society which is the end and purpose of the right to inflict punishment. This power to compel a stranger to leave the country by causing him, if need be, to be conducted to the frontier, is the immediate result of sovereignty."

80

5. Eugene Tyler Chamberlain, in the Trade Information Bulletin, before quoted, has presented a provision referring to the control of emigrants which might be applied to the situation under discussion. It was further stipulated at the conference he treats, that no contracting state should be bound to permit the transit or transport of passengers whose admission to the territories controlled, is forbidden.

"Each contracting State shall be entitled to take the necessary precautionary measures in respect of the transport of dangerous goods or goods of a similar character, as well as general police measures, including the control of emigrants entering or leaving the territory, it being understood that such measures must not result in any discrimination contrary to the principles of the present statute."

9 81

6. Prof. John Bassett Moore, after extensive study of official papers giving the opinions of United States officials-Secretaries of State, Attorneys General, and others, has deduced the following, which serves as a connecting link between the immigration laws and those pertaining to seamen. Since the proposed provision under discussion practically involves the application of a certain immigration regulation to the crews of foreign vessels, the passage from Moore is quoted.

"The question of the application of the immigration laws to seamen is one to be determined according to circumstances. While they are not expressly excepted from the operation of those laws, they have in practice always been so excepted, unless where there was an evident design to defeat the objects of the statutes by immigrants shipping as sailors. The question of the applicability of those statutes, as well as the question of the liability to payment of head money under the act of August 3, 1882, depends upon the individual's intention and must be dealt with according to the evidence in each particular If persons ship as seamen, as a convenient way of securing passage and of gaining entrance as immigrants, then they are to be treated not only as immigrants but also as passengers subject to the capitation tax.” 82

case.

83

7. Bonfils has been quoted by Professor Moore, as follows:

*

"A State has the right to expel from its territory aliens, individually or collectively, unless treaty provisions stand in the way * Some writers have essayed to enumerate the legitimate causes of expulsion. The effort is useless. The reasons may be summed up and condensed in a single word: The public interest of the State. Bluntschli wished to deny to States the right of expulsion, but he was obliged to acknowledge that aliens might be expelled by a simple administrative measure. (French law of December 3, 1849, arts. 7 and 8. Law of October 19, 1797, art. 7.) An arbitrary expulsion may nevertheless give rise to a diplomatic claim." 84

This opinion may be supplemented by that of Darut, who maintains "the right of expulsion is an incident of sovereignty, and is essential to the preservation of the ends for which the State exists." 85

78 Ibid., vol. 1, Ch. XVIII, p. 348-CCCXXII.

79 Pradier-Fodéré: Traité de Droit International Public, vol. III, tion used occurs in Bouvé, op. cit., p. 4.)

par. 1857. (Transla

80 Chamberlain, Eugene Tyler: The Geneva Conference and Ocean Shipping. Trade Information Bulletin, No. 202. U. S. Department of Commerce, Supplement to Commerce Reports.

81 Op. cit., p. 21. Statute on the International Régime of Maritime Ports, art. 17.

82 Moore, John Bassett: A digest of international law. Washington, 1906. Vol. IV, p. 185-6.

88 Bonfils. Henry Joseph François Xavier: Manuel de droit international public, 2d ed., Paris. 1898, sec. 442.

84 Moore, International Law Digest, IV, p. 68.

85 Darut, De l'Expulsion des Etrangers; Aix, 1902. See Moore, IV, p. 68..

8. The Institute of International Law has passed certain resolutions thoroughly indicative of their opinion concerning the attitude that should prevail among nations on the subject under discussion. One makes this provision: "ARTICLE 1. In principle, every sovereign State may regulate the admission and expulsion of aliens in such manner as it thinks best; but it is in keeping with public faith that aliens be previously advised of the general rules which the State intends to follow in the exercise of this right." 86

Other resolutions passed at a later date show more detailed regulation for the admission and expulsion of aliens.

66

87

Considering that, for each State, the right of admitting or not admitting aliens to its territory, or of admitting them only conditionally, or of expelling them, is a logical and necessary consequence of its sovereignty and its independence;

Considering, however, that humanity and justice require States not to exercise this right except with due regard, so far as is compatible with their own safety, for the right and the liberty of aliens who wish to enter their said territory or who are already there; * * *

"Proposes

* the observance of the following rules:

88

"CHAP. I. ART. 3. It is desirable that the admission and expulsion of aliens be regulated by law."

'CHAP. III. ART. 28. The following may be expelled:

"1. Aliens who have entered the country by fraud, in violation of the regulations governing the admission of aliens.90

CHAP. IV. ART. 33. An alien who has been ordered to quit the country shall be required to designate the frontier by which he intends to leave; he shall receive a route ticket, giving his itinerary and the length of his stay in each place."

9. William Edward Hall has presented a clear statement regarding the country's right of exclusion:

"For the reason also that a state may do what it chooses within its own territory so long as its conduct is not actively injurious to other states. it must be granted that in strict law a country can refuse the hospitality of its soil to any, or to all, foreigners; but the exercise of the right is necessarily tempered by the facts of modern civilization. For a state 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 favor of its subjects in cases where sufficient cause does not in its judgment exist. The limits of the power of a state to exclude foreigners are thus plain enough theoretically, and up to a certain point they can be laid down fairly well for practical purposes. If a country decides that certain classes of foreigners are dangerous to its tranquillity, or are inconvenient to it socially or economically or morally, and if it passes general laws forbidding the access of such persons, its conduct affords no ground for complaint. Its fears may be idle; its legislation may be harsh; but its action is equal."

(D) Court decisions.-The Supreme Court has rendered decisions and pronounced opinions showing the unequivocal right of the United States to exclude, expel, or deport aliens. Less conspicuous cases are found with reference to the payment of deportation expenses.

1. The Chinese exclusion case. Chae Chan Ping v. United States. Appeal from the Circuit Court of the United States for the Northern District of California.

93

There it is stated:

"The power of the legislative department of the Government to exclude aliens from the United States is an incident of sovereignty, which can not be surrendered by the treaty making power."

1994

86 Annuaire, vol. 10, p. 244. See also resolutions of the Institute of International Law dealing with the law of nations. Collected and translated under the supervision of and edited by James Brown Scott, New York, 1916, p. 89.

87 Annuaire, vol. 12, p. 184-226.

88 See Scott, op. cit., p. 104.

so Ibid., p. 105.

90 Ibid., p. 108.

91 Ibid., p. 109.

92 Hall, William Edward. A treatise on international law. 7th edition. Edited by A. Pearce Higgins. Oxford, 1917, pp. 223-224.

130 U. S. Reports, 581.

94 Ibid., p. 581.

Mr. Justice Field delivered the opinion of the court, from which these passages are quoted:

"(a) The power of the Government to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances, and never denied by the executive or legislative departments.

*

*

"(b) The power of exclusion of foreigners being an incident of sovereignty belonging to the Government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the Government, the interests of the country require it, can not be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They can not be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest."

"(c) That the Government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power."

97

"(d) To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. * * * If, therefore, the Government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.

*

*

*

"The power of the Government to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances and never denied by the executive or legislative departments."

1998

2. Fong Yue Ting v. United States; Wong Quan v. United States; Lee Joe v. United States. Argued May 10, 1893; decided May 15, 1893.00

Mr. Justice Gray delivered the opinion.

"Deportation is the removal of an alien out of the country, simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated, either under the laws of the country out of which he is sent or under those of the country to which he is taken."1 "The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the Government. "The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons. and are in truth but parts of one and the same power." 3. Nishimura Ekiu v. United States. Appeal from Circuit Court of the United States for Northern District of California. Argued and submitted December 16, 1891. Decided January 18, 1892.3

2

Act of March 3, 1891, chapter 551, forbidding certain classes of alien immigrants to land in the United States, held constitutional and valid.

Mr. Justice Gray delivered the opinion of the court, in which the following occurs:

"It is an accepted maxim of international law that every sovereign has the power, as inherent in sovereignty, and essential to self-preservation, 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. (Vattel, lib. 2, secs. 94, 100; 1 Phillimore (3d ed.), c. 10, sec. 220.) In the United States th s power is vested in the National Government, to which the Constitution has committed the entire control of international relations, in peace as well as in war.""

95 Op. cit., p. 606-7.

96 Op. cit., p. 609.

97 Op. cit., p. 603-4.

98 Op. cit., p. 606-7.

99 149 U. S. Reports, 698.

1149 U. S. Reports, 709.

2 Ibid., p. 713.

3 142 U. S. Reports, 651. Ibid., p. 659.

4. Fok Yung Yo v. United States. Argued January 7, 1902. Decided May 5, 1902.5

Regarding privilege of transport, Mr. Chief Justice Fuller in the opinion quotes from Kent, vol. 1, p. 35:

"Every Nation is bound, in time of peace to grant a passage, for lawful purposes, over their lands, rivers, and seas, to the people of other States, whenever it can be permitted without inconvenience; and burthensome conditions ought not to be annexed to the transit of persons and property. If. however, any government deems the introduction of foreigners, or their merchandise, injurious to those interests of their own people which they are bound to protect and promote, they are at liberty to withhold the indulgence. The entry of foreigners and their effects is not an absolute right, but only one of imperfect obligation, and it is subject to the discretion of the government which tolerates it."

5. United States ex rel. John Turner v. Williams. Argued April 6, 7, 1904. Decided May 16, 1904.

Mr. Chief Justice Fuller, in delivering the opinion of the court, said: "Repeated decisions of this court have determined that Congress has the power to exclude aliens from the United States; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers; that the deportation of an alien who is found to be here in violation of law is not a deprivation of liberty without due process of law."

6. United States v. Nord Deutscher Lloyd. Error to the Circuit Court of the United States for the Southern District of New York. Argued January 12, 1912. Decided February 19, 1912.

This case involved a certain provision of the immigration act of 1907, providing that "all aliens brought to this country in violation of law shall, if practicable, be immediately sent back to the country whence they respectively came on the vessels bringing them. The cost of their maintenance while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the vessels on which they respectively came.'

9910

In this instance the company had received money for the return of the immigrants should their admission to this country be denied, and had retained it. but Mr. Justice Lamar in his opinion declared the aliens had been brought to this country unlawfully, and hence, the " company at once was under the duty of taking them back at its own cost." He further said-" the statute not only required the cost of their passage to be borne by the transportation company, but prohibited the making of a charge or the taking of security for the return passage, which might be collected or enforced at the end of the journey."

99 12

Thus, it would seem from this decision that the right to charge the expense of deportation to the company unlawfully bringing the aliens was implicitly acknowledged.

7. A case of relative significance might be cited here, since it involves compelling shipowners to pay hospital expenses of alien seamen.

Franco et al. v. Seas Shipping Corporation (Inc.) (district court, district of Maryland, April 15, 1921).1 13

The case tested the constitutional validity of a seamen's act approved December 26, 1920, providing that "alien seamen found on arrival in ports of the United States to be afflicted with" certain loathsome diseases," shall be placed in a hospital designated by the immigration official in charge at the port of arrival and treated, all expenses connected therewith, including burial in the event of death, to be borne by the owner, agent, consignee, or master of the vessel, and not to be deducted from the seamen's wages, and no such vessel shall be granted clearance until such expenses are paid or their payment appropriately guaranteed." It is further provided that if it be necessary to

185 U. S. Reports, 296. 185 U. S. Reports, 302. 7194 U. S. Reports, 279.

s Ibid., pp. 289–290.

223 U. S. Reports, 512.

10 34 U. S. Statutes, p. 904 (immigration act of 1907, sec. 19).

11 223 U. S. Reports, 518.

12 Ibid., p. 517.

12 Federal Reporter, vol. 272, p. 542.

41 U. S. Statutes, pp. 1082, 1083.

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