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." 40 Methods of exercising the right of expulsion.-In France, Italy, Russia and Switzerland, expulsion is carried out by administrative order of the minister of interior or other executive officer, the exercise of the power being discretionary, while in Great Britain the secretary of state issues the order, but only on recommendation of a court. The concurrence of the minister of justice is required in Brazil and the action of a council of ministers in Belgium and Roumania. In France and the United States the order is subject to judicial review by administrative courts or special boards, while in Brazil and the Netherlands it is left to the ordinary civil courts. A resort to judicial review is becoming more frequent.11 Expulsion, in the recent developments in the exercise of the power, is used as a supplementary penalty for important crimes, against the socially or politically obnoxious, but rarely now as a preventive measure. There are certain categories of aliens who are exempted from the exercise of the power. "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, 40 Ibid., 61, 62. "Ibid., 54. 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. In one case at least (Morphy v. France), an indemnity was granted to an illegally expelled person 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. . . . 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." 42 It is being assumed by governments that they have a right to pass upon the justification and sufficiency of the supporting evidence for an expulsion, and that such an extreme measure as this can be used only when it is clearly shown that the alien's presence is detrimental to the welfare of the state.43 42 Ibid., 55, 56. 43 Ibid., 56-57. "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 is to be used with due regard to the interests of the person expelled. Mr. Olney, Sec. of State in the Venezuelan Arbitrations of 1903. [Bouvé, 13-14.] CHAPTER XIII THE RELATION OF SOVEREIGN AND SUBJECT Introductory-We come now to the most interesting, and at the same time, the most difficult part of any treatise on citizenship, viz: the institution of sovereignty and the relation of sovereign and subject. What gives to sovereignty its peculiar interest is the fact that it is the most fundamental concept of political science. Unfortunately, however, writers have transmitted a mass of irreconcilable doctrine. There are almost as many conceptions of sovereignty as there are political theorists. Roughly speaking, the many variations may be gathered around a few widely variant propositions. Conflicting Old World doctrines.-Bodin, writing with a pre-revolutionary perspective, that of a Frenchman, thought in terms of a personal sovereign; as conceived by him sovereignty was an attribute of a prince or potentate. Bentham, whose background was English, thought of sovereignty in terms of the powers exercised by a representative body. Austin located sovereignty in the King and Parliament. Rousseau, who based much of his political theory on English experience, did not, however, agree with Austin; and Sir Henry Maine characterized the Austinian idea as absurd. Dicey accepted Austin's view as properly descriptive of what he called “legal sovereignty." As he saw it, sovereignty presented quite another aspect, however: He thought of it as having two parts, one legal and the other political; he put forth the notion that "political sovereignty" was located in, and was an attribute of, the electorate. John Chapman Gray insists that Dicey's notion of divided sovereignty is inconceivable. |