The liability of a government for acts of violence and oppression must depend upon the circumstances of each case. A state is of course directly responsible for acts of its agents and must bear the full consequences of any violation of the laws of nations committed by these. Such acts should be promptly disavowed and, if of sufficient importance, their authors punished and reparation made.15

In ordinary times a state is also indirectly responsible for the orderly conduct of all those residing or domiciled within its territory and subject to its jurisdiction, and is bound, not indeed to prevent all acts of violence against foreigners, but to furnish the same degree and kind of protection and, generally speaking, provide the same means of redress or measure of justice that is granted to its own nationals.18

In attempting to secure redress or justice, foreigners must in the first instance have recourse to the local or territorial tribunals of the district in which they are domiciled, or, as Vattel" puts it, to the "judge of the place." Judicial remedies should, as a rule, be exhausted before resorting to diplomatic interposition for means of obtaining redress.18 But this rule does not apply in case of a gross or palpable denial of justice, where local remedies are wanting or insufficient, where judicial action is waived, where the act complained of is in itself in violation of international law, or where there is undue discrimination against foreigners on the part of the authorities.19

14 This responsibility is to states rather than to indviduals. The individual, as such, has neither rights nor duties in international law other than those belonging to him as a citizen or subject to an international entity. On the theory of International Responsibility of States for Injuries Suffered by Foreigners, see two recent articles by M. Anzilotti in the Revue Générale de Droit International Public for 1906, pp. 5-29 and 285-309.

15 This does not apply to the judicial functionaries who are more or less independent of the executive in all modern well-regulated states. "All therefore that can be expected of a government in the case of wrongs inflicted by the courts is that compensation shall be made, and if the wrong has been caused by an imperfection in the law of such kind as to prevent a foreigner from getting equal justice with a native of the country, that a recurrence of the wrong shall be presented by legislation." (Hall, Treatise (3d ed.) §65, p. 214.)

16 This is the general rule, but it is not, as we shall see, wholly without exception. 17 Bk. II, ch. 8., §103; cf. Bk. II, ch. 6, §§ 72 and 73.

18 Moore, Digest of International Law, vi, §987. Wharton, ii, §241.

19 For examples of such exceptions, see Moore, §§913-914, 986–993, 1021, and Wharton, §§230 and 242.

It

does not apply to countries of imperfect civilization, or to cases in which prior proceedings show gross perversion of justice.20

The question of the liability of a state for injuries to the persons or property of foreigners resulting from mob violence is one in which the people and government of the United States as well as those of Latin America, should be deeply interested. Whether due to the intensity of feeling engendered by race and labor problems or to a lax enforcement of the law resulting from cumbrous and antiquated legal methods, the American custom of lynching for certain crimes and under certain conditions shows little sign of abatement and is not likely to disappear until the causes which lead to it are removed.

The rule which has generally been verbally maintained by American statesmen seems first to have been laid down by Daniel Webster in connection with the riots at New Orleans, and Key West in 1851, which resulted from the summary execution of a number of American filibusters in Cuba. While admitting that the Spanish consul (whose office had been attacked and furniture destroyed)" was entitled to indemnity, Mr. Webster maintained that those Spanish subjects who had been injured in person or property (there seems to have been no one killed) were not entitled to compensation, inasmuch as "many American citizens suffered equal losses from the same cause," and foreigners are merely

entitled to such protection as is afforded to our own citizens. *** These private individuals, subjects of Her Catholic Majesty, coming voluntarily to reside in the United States, have certainly no cause of complaint, if they are protected by the same law and the same administration of law, as native born citizens of this country."

As a mark of courtesy and out of respect to the magnanimity of the queen of Spain (in liberating American prisoners), Congress nevertheless granted compensation to Spanish subjects as well as to the Spanish consul for losses sustained during these riots.

History has repeated itself in the case of a number of claims made by foreigners for injuries resulting from mob violence in the United

20 Mr. Evarts, Secretary of State, to Mr. Marsh. Wharton's Digest, iii, p. 695. "The archives of the consulate had also been thrown into the street, the portrait of the queen of Spain defaced, and the Spanish flag torn to pieces.

"Wharton's Digest, ii. §226, p. 601; cf. Moore, vi, §1023, pp. 812–813.

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.23 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.

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." 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.

"On what constitutes a denial of justice, see especially, Moore vi, §986; Wharton, ii, §230; and Anzilotti, op. cit., pp. 21-23.

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

"See especially on this head, the recent article by Anzilotti in the R. D. I. P., rited 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,30 as well as by those of Europe," and they have the almost unanimous sanction of leading authorities on international law.3 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 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

"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.

"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. See, e. g., Calvo, iii, §§1280 ff; Pradier-Fodéré, Traité, i, §§202 ff., 402 ff., iii, §§1363 f.; 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), §§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.

33 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.