accordingly adjudged that the charge of disrespect was not established; and this sentence was affirmed by the supreme court at Granada in 1892 without an additional statement of reasons. The case is interesting as showing how national legislation was interpreted and enforced in the light of what was understood by the court to be the rule of international law.1

A question much discussed in the American countries is that of the nature and limits of diplomatic intervention, particularly in behalf of private aliens. Ths question has been discussed chiefly with reference to the attitude of individual Governments toward the employment by the alien's Government of the diplomatic processes recognized by international law.*

In a few instances express provisions on the subject are found. In the national constitution of Guatemala it is provided that "foreigners shall not resort to diplomatic action except in case of a denial of justice," and that "final decisions adverse to the claimant shall not be understood as denials of justice." Substantially the same rule is found in the constitution of Honduras, which provides (art. 15) that "foreigners shall not resort to diplomatic intervention except in case of manifest denial of justice, abnormal delays, or self-evident violation of the principles of international law," and that "the fact that a final decision is not favorable to the claimant shall not be construed as a denial of justice." Likewise, the constitution of Nicaragua declares that "foreigners shall not resort to diplomatic interposition." Except that the constitutions of Honduras and Nicaragua impose as a penalty for any violation of the inhibition the loss of the right to reside in the country, these provisions may be regarded as declaratory of an established principle of international law.

The subject of diplomatic intervention in behalf of private aliens was discussed in connection with the phrase "denial of justice," at the Third International American Conference at Rio de Janeiro in 1906, on the occasion of the renewal of the treaty concluded at the Second International American Conference at Mexico in 1902, for the arbitration of pecuniary claims. This treaty required the high contracting parties to submit to arbitration all claims for pecuniary loss or damage," presented by their respective citizens, which could not be "amicably adjusted through diplomatic channels," when the claims were important enough to justify the expense. In the report adopted at Rio de Janeiro, on the renewal of this treaty, it was assumed that the cases intended to be covered were those in which diplomatic intervention was justified, it being the sovereign right of each independent power to regulate by its laws and to judge by its tribunals the juridical acts consummated in its territory, "except in cases where, for special reasons, of which the law of nations takes account, the question is converted into one of an international character." This thought was most admirably elucidated by one of the delegates of Brazil, Dr. Gastao da Cunha, who, after expressing his concurrence. in the view above stated, remarked that the phrase “denial of justice" should, subject to the above qualification, receive the most liberal construction, so as to embrace all cases where a State should fail to furnish the guaranties which it ought to assure to all individual rights. The failure of guaranties did not, he declared, "arise solely from the judicial acts of a State. It results," he continued, "also from the act or omission of other public authorities, legislative and administrative. When a State legislates

1 A fuller statement of the case may be found in Moore's Digest of International Law, II, 868-870.

See, generally, Borchard's Diplomatic Protection of Citizens Abroad, or the Law of International Claims, and, particularly, Chapter VII, pp. 836-860, on "Limitations Arising out of Municipal Legislation of the Defendant State."

in disregard of rights, or when, although they are recognized in its legislation, the administrative or judicial authorities fail to make them effective, in either of these cases the international responsibility of the State arises. In all those cases, inasmuch as it is understood that the laws and the authorities do not assure to the foreigner the necessary protection, there arises contempt for the human personality and disrespect for the sovereign personality of the other state, and, in consequence, a violation of duty of an international character, all of which constitutes for nations a denial of justice."

At the Fourth International American Conference, at Buenos Aires, it was proposed in committee to supplement the treaty of Mexico, not only with an unexceptionable provision obligating the arbitral tribunal to decide in accordance with the principles of international law, but also with a stipulation that, If a question should arise between the high contracting parties as to whether a case covered by international law and justifying diplomatic intervention had arisen, this difference should be submitted to the arbitral tribunal as a "previous" or preliminary question, the solution of which might or might not authorize the tribunal to take cognizance of the merits of the case. In support of this proposal, a passage was quoted from an official note of the Argentine plenipotentiaries to the representative of the Italian Government, as to the interpretation of the Argentine-Italian treaty of arbitration. This passage, by which it was declared that a foreign state was not obliged to accept the Judgment of the local tribunals if it believed that they were not competent, or if they had decided contrary to the principles of international law, but that, as between civilized states, the territorial judges should be presumed to act justly, at least to the extent that diplomatic action should not be initiated till they had rendered their sentence, and then only when the sentence was contrary to international law, may be treated as a statement of a general principle. But it did not seem completely to support the proposal that the question of the right or propriety of diplomatic intervention might, if raised, be treated as a preliminary question to be determined apart from the merits of the case. One of the members of the committee, therefore, took the ground that it was not practicable to lay down in advance precise and unyielding formulas by which the question of a denial of Justice might in every instance be determined, or to treat it as a preliminary question which might be decided apart from the merits of the case; that, in the multitude of cases that had, during the preceding 120 years, been disposed of by international arbitration, the question of a denial of justice had arisen in many and in various forms that could not have been foreseen; that human intelligence could not forecast the forms in which it might arise again, but that in the future, as in the past, it would be disposed of by the amicable methods of diplomacy and arbitration, and in a spirit of mutual respect and conciliation. The other members of the committee declared that they accepted these declarations, since they considered that they were in no way inconsistent with what had been set forth in the report.

The question of the liability of a government for the acts of insurgents has often been treated as presenting a special phase of the right of diplomatic intervention under international law. Calvo, the great protagonist of the limitation of the right of intervention in such cases, declared that, to admit the principle of responsibility and indemnity "would be to create an exorbitant and pernicious privilege, essentially favorable to strong states and injurious to feebler nations, and to establish an unjustifiable inequality between nationals and foreigners." (Droit Int., III, p. 1280.)

Clauses designed to give effect to this view may be found in the constitution of Guatemala, which provides (art. 14) that "neither Guatemalans nor 68436-17-VOL VII-10

foreigners shall in any case have the power to claim from the Government indemnification for damages arising out of injuries done to their persons or property by revolutionists"; in the constitution of Haiti, which provides (art. 185) that no Haitian or foreigner shall be entitled to claim indemnity for "losses sustained by virtue of civil and political trouble," but that the injured party shall have the right to seek reparation by prosecuting the authors of the wrongs in the courts; in the constitution of Salvador, which contains a clause (art. 46) to the same effect, coupled, however, with the singular provision (art. 68, par. 29) that no treaty or convention shall be made "which in any way restricts or affects the exercise of the right of insurrection"; and in the constitution of Venezuela, which declares (art. 17) that no indemnity shall be claimed by any one for losses "not caused by lawful authorities acting in their public capacity," and forbids (art. 18) any treaty to the contrary to be made. The principle enunciated by Calvo was accepted by Wharton, in his Digest of International Law (II, 576, p. 223), to the extent of declaring that “a sovereign is not ordinarily responsible to alien residents for injuries they receive on his territory * * ** from insurgents whom he could not control"; and from this source it has passed, to the extent indicated, into various subsequent utterances of the Department of State of the United States. To the same extent it was adopted by the late Spanish Treaty Claims Commission, at Washington, which, moreover, took "judicial notice" of the fact that the Cuban insurrection of 1895 at once passed beyond the general control of the Spanish authorities, and therefore required claimants, in order to obtain an award, affirmatively to show that those authorities had in the particular instance the power actually to prevent the wrong, but refused or failed to exercise it. Beyond this, the assertion of exemption from liability has not been sanctioned, and probably would not be permitted in any case to be maintained. There yet remains to be considered an effort that has been made to guard against diplomatic interposition in respect of claims growing out of alleged breaches of contract. In the constitution of Ecuador of 1897 it was provided (art. 38) that every contract of an alien with the Government or with a private Ecuadorean "shall carry with it implicitly the condition that all diplomatic claims are thereby waived"; but, by the subsequent amendatory act of June 13 of the same year, it was declared that this "shall not cover cases in which the enforcement of judicial decisions or of arbitral awards in favor of foreign contractors has been refused," the parties injured thereby having "the right to resort to diplomatic intervention, according to the principles of public law." By this amendment the attempted safeguard was materially modified; but the provisions of the act of June 13, 1897, are not included in the Ecuadorean constitution of 1906, which renews (art. 23) the terms of article 38 of the constitution of 1897.

It is chiefly in Venezuela, however, that the question has been put to a practical test. The successive constitutions of the country have made ample acknowledgement of the obligatory force of international law. By the constitution of 1904 the supreme federal court was invested with power to take cognizance of "civil or criminal prosecutions against diplomatic agents, in the cases allowed by the public law of nations," as well as to hear and determine prize cases. (Art. 95, pars. 3 and 7.) The constitution further provided that in all international treaties a clause should be inserted to the effect that "all differences between the contracting parties shall be decided by arbitration without appeal to war." (Art. 120.) The constitution also contained the explicit declaration that "the law of nations forms part of the

laws of the country," but this was qualified by the further declaration that the provisions of the laws of nations “shall not be invoked when they are opposed to the constitution and the laws of the republic." (Art. 125.)

Interpreted in one sense, this qualification might be regarded as a denial of the obligatory force of international law, and as having been intended to assert the position that a country can fix the measure of its international obligations, not only by its constitution, but also by the laws which its leglslature may from time to time prescribe. I am not, however, inclined to give to the qualification this sweeping interpretation which, if admitted, would destroy the foundations of international law. I am, on the contrary, disposed to interpret it in the following senses:

1. Although it may not be so in all countries, yet it is no doubt the case in many countries, including the United States, that an act of the supreme legislative power violative of the law of nations will be enforced by the public authorities, judicial and administrative, the foreign government being left to assert its rights through the diplomatic channel. In this respect the clause of the Venezuelan constitution is not exceptional.

2. Apart from what is set forth in the preceding paragraph, it is probable that the clause in question was intended to give a special sanction, among other things, to article 124, which declared that no contract of public interest entered into by the Federal Government or by any public authority should be assignable to any foreign government, and that in all contracts there should be included, and if omitted, should be considered as included, the following clause: "The doubts and controversies of any nature that may arise in regard to this contract, and which can not be amicably settled by the contracting parties, shall be decided by the competent tribunals of Venezuela, according to the Venezuelan laws, and shall not in any case be made a subject of international claims."

Provisions similar to those just quoted are included in the Venezuelan constitution of April 19, 1914, except article 125, supra.1

Clauses such as this, when actually embodied in contracts, have on several occasions been discussed by international commissions, with results not entirely harmonious. In some cases they have been regarded merely as devices to curtail or exclude the right of diplomatic intervention, and as such have been pronounced invalid. In other cases they have been treated as effective, to the extent of making the attempt to obtain redress by local remedies absolutely prerequisite to the resort to international action. Only in one or two doubtful instances does the view seem to have been entertained that they should be permitted to exclude diplomatic interposition altogether."

On the whole, the principle has been well maintained that the limits of diplomatic action are to be finally determined, not by local regulations, but by the generally accepted rules of international law.

The CHAIRMAN. I have now great pleasure in introducing to you Mr. George G. Wilson, professor of international law in Harvard University, who will address us upon the same subject.

1 Art. 95, pars. 3 and 7, of the constitution of 1904, become art. 98, pars. 3 and 7, of the constitution of 1914; art. 124 of the constitution of 1904 is art. 121 of the constitution of 1914. For art. 120 of the constitution of 1904, supra, there is substituted, with the same number, in the constitution of 1914, the following: "In international treaties there shall be inserted the clause that All differences between the contracting parties, relative to the interpretation or execution of this treaty, shall be decided by arbitration.' Moore, Digest of International Law, VI, 301–308.

THE RELATION OF INTERNATIONAL LAW TO NATIONAL LAW IN AMERICAN STATES.

By GEORGE GRAFTON WILSON,

Professor of International Law in Harvard University.

International law presupposes the existence of States. In the early days the idea of a State was somewhat vague and often varied. The modern idea of a State as a sovereign political unity carries with it certain presumptions which were not admitted in Europe till after the peace of Westphalia in 1648.

It was but natural that the proximity and consequent intercourse of States upon the European Continent should make necessary a system of reasonable action in their mutual relations. In its beginnings international law looked to this system of conduct for its principles. The States following this common system gradually formed a circle or family of nations assuming that others, if admitted to the family, should accept the system adopted by the family. The standards adopted by the family of nations, though not clearly established at the beginning, gradually became well defined. The standards were naturally European because determined by European conditions and thought. The family was for a time spoken of as the family of Christian nations, but this test was set aside and the political basis became the ground of admittance to the international circle.

When the plan of the family of nations was developing, one of the prime objects was the maintenance of the balance of power in Europe. The Treaty of Utrecht in 1713 is a little broader in extending its aims to the establishment of peace and tranquility in Christendom through a just equilibrium of powers. European congresses were frequently held for this purpose. The disturbance of the status quo came in Europe to be regarded as a violation of international law. The status quo had been established after many and long struggles. The status quo seemed to have historically justifiable foundations, such as the grant of privileges by kings or emperors, the union of crowns by marriage or inheritance or by acts of those who had the right to rule. Revolution would therefore be regarded as one of the most doubtful foundations upon which a claim to membership in the family of nations could be based.

The recognition of the United States as equal, by France in the treaty of 1778 was therefore a recognition of a political unity based upon revolution as well as the recognition of a State outside of the geographical area of Europe. This precedent, set by France and soon followed by other European States, gave to the right of revolution a sanction which later some of these States would gladly have recalled, as Metternich thought when he described political revolution as something which should be suppressed by common measures and should “be treated as hostile to all lawful constitutions and governments." Revolution, however, became the source of the right to existence among American States, forming a marked contrast to the accepted doctrines of the European family of nations. Thus the basis of national law was for America in the recognition of the right of revolution, for revolution is at the beginning of nearly all the American States.

In America, not merely was the basis of the right of the State to be recognized by international law different from the generally accepted European doctrines, but the residence of political power was different. The concept of the "paramount authority of the public will" had already been set forth in doctrinaire treatises, but its practical embodiment in a political unity was not thought reasonable. Metternich characterized "the idea of emancipation of the