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States from that day to this. In the majority of these cases, the United States government has refused to admit liability in principle, but has granted compensation as a matter of grace and favor, or from a sense of magnanimity, sympathy, benevolence or policy. Some of our statesmen, however, admit liability in case of a failure on the part of the local authorities or courts to use due, i. e., reasonable, diligence in preventing or punishing such crimes, and this is unquestionably a rule of international law.24

On the other hand, the United States has shown commendable zeal in protecting its citizens from such attacks abroad. It has repeatedly interposed diplomatically in China, Turkey, Mexico, Panama, Chili, Brazil and other Central and South American States.25

In view of this double inconsistency—that of theory and practice on the one hand, and that of our attitude at home and abroad on the other-would it not be wise for our government frankly to admit liability in all cases of attack by mobs upon foreigners as such or upon those of a particular nationality wherever and whenever the local authorities show themselves unwilling or unable to prevent, and the courts unable or unwilling to punish such crimes? Foreigners cannot be expected to appreciate the merits (?) of our present “peculiar” national institution of lynching, and foreign states have an undoubted right to demand a better protection for their nationals against this species of violence than is afforded them by our own local authorities and courts in some parts of this country.

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23 This was notably so in the cases of the 43 Chinese killed and wounded at Rock Springs, Wyoming in 1885 and of the Italians lynched at New Orleans, in 1891. For these and numerous other cases, see Moore's Digest, vi, $1026.

24 This rule is usually stated in language ascribed to Secretary Evarts: A government is liable internationally for damages done to alien residents by a mob which by due diligence it could have repressed.” See Wharton's Digest, ii, p. 602. But the absence of quotation marks in Wharton and a reference to Evarts' dispatch in Moore's Digest (see vol. vi, pp. 817-818) shows that Mr. Evarts did not use the language ascribed to him. It is, however, a good statement of an undoubted principle of international law if we add the words “and which it fails to punish.” The fact that our Federal government has sometimes been unable to secure justice for foreigners by reason of constitutional or statutory limitations does not affect its international responsibility.

Moore, op. cit. For the diplomatic activity of the United States in China, see the extremely able communication of the Chinese minister, Cheng Tsao Ju, to Secretary Bayard, on pp. 822-826.


But it may be urged that the admission of such a rule or principle might, in some cases, give to foreigners a protection superior to that enjoyed by its own citizens. This may be true in countries where life and property is insecure from mob violence, but civilized states are supposed to grant at least a fair or average amount of such protection in ordinary times, and it is no adequate reply to a charge of denial of justice to, or an undue discrimination against, foreigners to say that nationals frequently suffer similar injustice. It would of course be different in the case of an ordinary miscarriage of justice, where the spirit as well as the forms of the law had been complied with, or in the case of one accidentally killed or injured in the course of a riot or insurrection.27

In view of the recent protest by Japan against the segregation of Japanese school children in California and the surprising ignorance of the principles governing the rights and privileges of foreigners displayed in some quarters, it seems necessary to point out that a state is under no international obligation to extend to foreigners the enjoyment of civil and private rights or to place them upon an equal footing with its own nationals in these respects. Whatever rights or privileges of this kind foreigners may enjoy, whether of an educational, economic or religious nature, are based on convention or the principle of reciprocity, or are granted as a matter of pure grace and favor.28 All that an alien, who is permitted to set foot or reside on foreign territory (and this permission is purely optional) can demand as a matter of strict right in international law is protection of life and property together with access to the local courts for that purpose.

The same principles may, in general, be said to apply to cases of injuries or losses sustained by foreigners during civil war and insurrection, except that the law of necessity or the physical inability to furnish adequate protection generally absolves governments from responsibility in such cases. The general rule is that a sovereign is not ordinarily responsible to alien residents for injuries they receive on his territory from belligerent action, or from insurgents whom he could not control.

24 On what constitutes a denial of justice, see especially, Moore vi, 8986; Wharton, ü, 8230; and Anzilotti, op. cit., pp. 21-23.

" See, e.g., the case of Bain in Moore, op. cit., $1027.

28 See especially on this head, the recent article by Anzilotti in the R. D. I. P., cited above, pp. 18-20.



They are not entitled to greater privileges or immunities than the other inhabitants of the insurrectionary district. * * * By voluntarily remaining in a country in a state of civil war they must be held to have been willing to accept the risks as well as the advantages of that domicile.“

These principles have been repeatedly enunciated by our leading statesmen,3° as well as by those of Europe, 31 and they have the almost unanimous sanction of leading authorities on international law. 32 They have invariably been applied by European states in their relations with each other, although frequently violated in their dealings with weaker states, more particularly in the cases of China, Turkey and the republics of Latin America.

There are, however, several exceptions which must be made to these general principles. Indemnity would seem to be due to foreigners by way of exception in the following cases: 1. Where the act complained of is directed against foreigners as such, or as subject to the jurisdiction of some particular state. 2. Where the injury results from an act contrary to the laws or treaties of the country in which the act was committed, and for which no redress can otherwise be obtained. 3. When there has been a serious violation of international

a law, more particularly of the rules of civilized warfare. 4. In cases of evident denial of a palpable violation of justice, or undue discrimination against foreigners on the part of the authorities. 33

20 Wharton's Digest, iii, $223. Secretary Seward to Count Wydenbruck in 1865. See Moore's Digest, vi, pp. 885–886. cf. Wharton, pp. 577-578.

30 For numerous opinions of American statesmen, see Moore's Digest, vi, $$1032– 1049. cf. Wharton, iii, $$223-226.

31 See especially the notes of Prince Schwartzenburg (Austrian) and Count Nesselrode (Russian) in reply to certain claims of the British government which were based upon injuries to British subjects during the revolutions in Tuscany and Naples in 1848. Cited by Pradier-Fodéré, i, $205, pp. 343–345 and Moore, op. cit., pp. 886-887.

52 See, e. g., Calvo, iii, $$1280 ff ; Pradier-Fodéré, Traité, i, $8202 ff., 402 ff., iii, $81363 ff.; Fiore, Droit Int. Pub. (Antoine’s trans.), i, $675; Wharton, iii, $223; Hall, Treatise (3d ed.), $65, pp. 218–219; Bluntschli, $380 bis; Funck-Brentano et Sorel, Précis, ch. 12, pp. 227–229; Taylor, $216; Oppenheim, i, p. 213; Bonfils (Fauchille), 8$326 ff.; Liszt, $24, pp. 189–190; Pillet, Les Lois de la Guerre, p. 29; Weisse, Le Droit International appliqué aux Guerres Civiles, $14; Bar in R. D. I. for 1899, t. xxix, pp. 464-482. See Brusa in Annuaire for 1898, t. xvii, pp. 96-138 for arguments in favor of responsibility.

See especially the rules adopted by the Institute of International Law in 1900. Annuaire, xviii, pp. 254–256. cf. Moore's Digest, op. cit., Pradier-Fodéré, iii, $1366, p. 237; Bar and Brusa, cited above.



In respect to the third class of claims, viz: those based upon contract, including for the most part those of bondholders and investors whose investments have been guaranteed by the defaulting government, the few authorities who discuss this question appear to be divided in their opinions, with a majority opposed to forcible collection. The right of a state to use coercive measures in the collection of debts of this nature is asserted, e. g., by Hall, Phillimore, and Rivier; but it is denied by Calvo, Pradier-Fodéré, Rolin-Jaequemyns, F. de Martens, Despagnet, Kebedgy, and Nys.34

It is argued, on the one hand, that the public faith, the so-called “honor of the prince," is particularly engaged in the case of contracts of this nature, inasmuch as a government cannot be sued without its own consent; that creditors may have no other means of redress than that of appealing to the government of the state to which they owe allegiance; that stock in the public debt held even by an enemy is exempt from seizure and its interest payable even in time of war; and that states, being in legal theory free and independent and having no common superior to control or check them in any way, each state has therefore the legal right of deciding for itself when its rights have been invaded and of determining the conditions under which it may use force for any purpose whatsoever.35

On the other hand, it is urged that hazardous loans and investments should be discouraged as much as possible; that those making them

Hall, $86, pp. 277-279; Phillimore, ii, pt. v, ch. 3, pp. 26-30; Rivier, i, liv, iv, ch. 2, 820, pp. 272-273; Calvo, i, $205, p. 350; Pradier-Fodéré, i, $405, pp. 620-623; Rolin-Jaequemyns in R. D. I., t. i (1869), pp. 145 ff.; F. de Martens in R. D. I., t. xix, p. 386 and in a recent pamphlet, entitled Par la Justice vers la Paix; Despagnet, Cours, $258; Kebedgy in R. D. I. P., t. i, p. 261, and Nys, ii, p. 225.

On April 17, 1903, the publicist Calvo, then representing the Argentine Republic at Paris, addressed a circular letter to a number of leading authorities on international law, asking for their views on the question raised by the Drago note. Of the ten opinions published in the Revue de Droit International (see R.D. I. for 1903, pp. 597– 623), six (those of Passy, Moynier, Campos, Férand-Giraud, Weiss and Olivecrona) were in substantial agreement with the principals of the Drago note. Four (those of Westlake, Holland, Charmes and Fiore) were more reserved. While apparently not in absolute disagreement with the principles of the Drago note, they held either that it needed qualification or that the question was undecided. brief analysis of these opinions, see Percy Bardwell in the Green Bag for July, 1906, pp. 378-379.

35 Such is, e.g., the argument of G. W. Scott in the North American Review for October 5, 1906, pp. 603-604.

For a a

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do so, as a rule, with a full knowledge of the risks incurred and in the hope of exceptionally large returns; that the natural penalty of a failure on the part of a state to fulfill its obligations is a loss of credit; that

a foreigners cannot expect to be preferred to native creditors; that coercive measures for the collection of bad debts are never employed except against weaker states and are likely to be used as a pretext for aggression or conquest; and that it is an inherent qualification of all sovereignty that no proceedings for the execution of a judgment may be instituted or carried out against it. 36

The views of British and American statesmen are not in complete harmony on this important subject, although the general policy of Great Britain and the United States has been substantially the same. 37 The English view, as stated by Lord Palmerston, in 1848, in a circular addressed to representatives of Great Britain in foreign countries, insists that the question as to whether such claims are to be made a subject of diplomatic negotiation is for the British government entirely a question of discretion, and by no means a question of international right. With a view, however, of discouraging the investment of British capital in hazardous loans to foreign governments and of encouraging investment in profitable undertakings at home, the British government has hitherto thought it the best policy to abstain from taking up as international questions the complaints made by British subjects against foreign governments which have failed to make good their engagements in regard to such pecuniary transactions. But he intimates that such loss might become so great as to make a change of policy on the part of the British government advisable. These views of Lord Palmerston were reaffirmed by Lord Salisbury in January, 1882, and by Premier Balfour in December, 1902.38


38 Señor Drago in note, cited above.

Except for the British intervention in Mexico, Egypt and Venezuela. But in all these cases those representing the government of Great Britain denied that they intervened primarily for the sake of the bondholders.

38 For the text of this circular, see Hall, note on pp. 278-279 (3d ed.), and Phillimore ii, t. V, ch. 3, pp. 27–28. In 1861, Lord John Russell, in a communication to Sir C. I. Wyke, stated that "it has not been the custom of Her Majesty's government, although they have always held themselves free to do so, to interfere authoritatively on behalf of those who have chosen to lend their money to foreign governments.”

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