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to act, and no punishment followed the outrage. Neither did the government of the United States see proper to make any pecuniary demand for the life of the murdered American citizen. A number of other cases might be cited where American citizens have lost their lives by outlaws, without any compensation being demanded or obtained. In one of those cases, Secretary Gresham, in reply to an application by relatives for an indemnity, said:
The Mexican authorities promptly apprehended the murderers, and the Department understands that they were tried, convicted, and punished. Under these circumstances it is not believed that any claim for damages could be maintained."
The case of Baldwin was of a somewhat different character. He was murdered in Mexico in 1887 by two well-known bandit leaders, who had committed other murders, including a Mexican official of the locality. Ten days after Baldwin's murder, the inhabitants of the district pursued and killed five of the bandits, including the two murderers of Baldwin. The government of the United States made a demand on behalf of the widow for pecuniary damages, on the ground that the Mexican government was negligent in not suppressing the outlawry which had become notorious and in failing to punish the bandits. The latter government cited the attitude of the United States respecting the New Orleans and Chinese riots, and insisted that American citizens in Mexico could only claim the same measure of protection that was extended to natives. The discussion continued through several years. In 1892 it was suggested that, in view of the dependent situation of the widow and of the action of the United States in similar disputed cases as to responsibility, a settlement might be reached without prejudgment on the legal aspects of the claim. Whereupon, Mexico in 1894, paid to the United States for the benefit of the widow, $20,000, the payment being made and accepted as a matter of simple equity, without implying any admission that in the case in question the Mexican government was, strictly speaking, responsible, and that it is not to constitute a precedent for the future treatment of similar cases; and President Cleveland referred to it in his message to Congress as "a gracious act" on the part of Mexico.
No case has been found where the United States has assumed the presentation of a pecuniary claim of a mission board or other corpor46 Moore's Digest, 806. 56 Moore's Digest, 801.
ation for the life of one of its employees through the neglect or want of due protection of a foreign government. The Mexican cases cited are valuable as showing that, even conceding the claim of a pecuniary interest of a mission board in its employees, there was in the Lienchou, China, affair no basis upon which the board in question could found a claim for the lives lost, because it was not shown (to use the language of Secretary Fish), “that the killing was occasioned by an act or omission of a person in authority,” and (in the language of Secretary Gresham), “the authorities promptly apprehended the murderers, and *
* they were tried, convicted and punished." More than a year after the Lienchou riot, and upon a full examination of the questions involved, the following conclusion was announced:
The board holds that whatever may be the legal technicalities involved, it has large financial interests in the missionaries whom it sends out and upon whom its work depends, that the murder of those missionaries involves the board in heavy financial loss, and that if the board should elect to demand indemnity for such loss, our government should recegnize the equity of its contention. The board voluntarily waived its claim in the case of the massacre at Lienchou, but it insists that in doing so it waived a right which it could have justly insisted upon.
Let us examine this position a little more fully. The board in question owes its legal existence to the incorporation acts of the State of New York. Under the common law the death of a human being is not the ground of an action for damages, and no compensation therefor or for any resulting loss is recoverable. This rule of law, however, has been modified in most of the states of the Union, including New York, by statutory enactments, but these acts are to be strictly construed. The Code of Civil Procedure of the State of New York authorizes a suit to be maintained for the benefit of a husband, wife or next of kin, to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused; the damages received are exclusively for the benefit of the husband, wife or next of kin; and the damages are to be awarded on a fair and just compensation for the pecuniary injuries resulting to the person for whose benefit the action is brought.?
It must be clear that a mission board or other corporate body, deriving its authority from the state of New York, cannot maintain an
• 4 Sutherland on Damages, chap. 37, ed. 1903; 2 Sedgwick on Damages, chap. 18, ed. 1891.
? New York Code of Civil Procedure, $$ 1902, 3 and 4.
action in that state for damages resulting from the death of one of its employees by the wrongful act, neglect, or default of any party or authority whatsoever. It is difficult to understand how a board or corporation, which is thus incapacitated in its own domicile, can acquire a right to maintain a claim for such damages before its own federal government.
If it possesses such right it must be found, as in this case, against China, in the rules or practice of international law. I have already stated that I have found no instance where the government of the United States has ever presented to a foreign government the claim of an American board or corporation for its own benefit based upon the wrongful death of one of its employees. Fortunately for the solution of this question, an occasion has arisen requiring its determination by an international body of no insignificant authority.
As is well known, the Boxer uprising in China of 1900 resulted in the murder of quite a number of missionaries. Several of these were employees of the board whose claim we are now examining. It would seem to be an occasion, if ever, when the church boards would be justified in setting up their own corporate claim for damages. The Chinese government had been so far in complicity with the perpetrators of those bloody deeds, that the foreign governments felt it necessary to send their armies to seize the capital and inflict exemplary punishment for the wrongs and injuries suffered by their citizens and subjects. The diplomatic representatives of eleven nations, including the United States, after determining the total amount of the indemnities to be required of China, drew up a statement of the rules which should govern the distribution of those indemnities. Under those rules societies and companies were allowed to make claims for damages, for property losses, for buildings, and the like, damaged or destroyed; but indemnities for wounds, cruel treatment, or death, were confined to private individuals, to widows and orphans.8
The demands of the foreign governments went to the extreme limit of indemnity in the Boxer outbreak, and in that instance societies or incorporated bodies were excluded from indemnities for injuries to persons or for lives lost. It is not alleged that the board in question ever presented to the Department of State a claim for the loss of its
Appendix to For. Rel., 1901, Mr. Rockhill's Report, 106.
employees in that outbreak or protested against the rules of the diplomatic body.
It is stated that the action of the board, setting forth its position, as above quoted, was submitted to the leading Protestant mission boards domiciled in New York, and that they unanimously concurred in its position. Whether such action was wise or Christlike is not a legal question, and I abstain from expressing an opinion upon it.
JOHN W. FOSTER.
INTERNATIONAL LAW: ITS PRESENT AND FUTURE
In entering upon the publication of a new journal, professedly designed not only to advance the knowledge of, but also to improve, the principles of international law, it is not inappropriate to make an estimate of the present state of the system and to consider its future needs.
There are two modes in which international law may be developed. The first is the general and gradual transformation of international opinion and practice; the second is the specific adoption of a rule of action by an act in its nature legislative. The operation of the former mode is often difficult to follow in its details, but its effects are potent and undeniable. Perhaps its clearest and most precise application may be found in the opinion of the Supreme Court of the United States in the case of the Spanish fishing-smacks, the Paquete Habana and the Lola, which were seized by American cruisers during the war between the United States and Spain, with a view to their confiscation as enemy's property. The Supreme Court, however, held that they were not subject to condemnation, on the ground that coast fishing vessels, unarmed and honestly pursuing the peaceful calling of catching and bringing in fresh fish, were exempt from capture as prize of war. In reaching this conclusion, the court considered the question whether the exemption was merely a matter of “comity," or whether it was a matter of legal right to which the court was bound to give effect. In behalf of those who sought the condemnation of the vessels, authority dating back nearly a hundred years, was cited, to the effect that the exemption was only a matter of “comity;" but the court, pointing to later practice, declared that the period of a hundred years was "amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law.” And the court quoted a statement of Sir James Mackintosh to the