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 JUL 1 5 ISIS 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
THE INTERNATIONAL RESPONSIBILITY OF STATES FOR 
 INJURIES SUSTAINED BY ALIENS ON ACCOUNT OF MOB 
 VIOLENCE, INSURRECTIONS AND CIVIL WARS 
 
 I 
 
 It appears to be generally accepted that International Law as we 
 know it today had its beginnings in the writings of the political theorists 
 of the latter sixteenth and early seventeenth centuries, more particularly 
 in the memorable treatise of Grotius which appeared in the year 1625. 
 The works of these writers were produced during the period of so-called 
 rationalism whence true historical view had not yet been discovered, 
 and the precedent and examples which were cited in support of the new 
 rules of international law were taken exclusively from Biblical or classical 
 antiquity. Moreover, in this same period Roman law was held in high 
 esteem, a fact which further served to focus attention upon ancient law 
 and custom. It is not surprising, therefore, to find that many principles 
 which had regulated international conduct among European states, 
 especially those of Teutonic character, during the Middle Ages, were 
 either overlooked or rejected. If we remember that these principles had 
 been enforced by an extensive system of municipal legislation, we shall 
 understand why the founders of international law may have regarded 
 them as res internee rather than as matters of international import. 
 Recently, however, the problems to which these very principles were 
 applied have become of increasing international concern and vigorous 
 attempts have been made on the one hand to preserve a sphere of munic¬ 
 ipal jurisdiction and on the other hand to inject into our international 
 jurisprudence the principles upon which they were based. It shall 
 be my purpose to show the early development of the rules which reg¬ 
 ulated the question of responsibility for aliens, how they were rejected 
 by the early publicists and what effect they had upon later developments 
 in our international law. 
 
 The responsibility of a state for aliens appears in its most rudimentary 
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 INTERNATIONAL RESPONSIBILITIES OF STATES 803 
 
 form among the early Teutonic nations; not, indeed, in the form of an 
 international responsibility, but either as an individual or a group liabil¬ 
 ity. Very clearly, in the earliest times, the alien, as a clanless individual 
 or outlaw, was without any of the existing personal rights. He had no 
 “ wergeld,” he was not entitled to the peace and protection of the locality, 
 and if by chance he enjoyed even liberty of person it was only by suf¬ 
 ferance and in amelioration of the harsh laws which gave the local lord 
 title over his person, as ferce naturce. How long these practices sur¬ 
 vived, we cannot say, but certainly the growth of a Gastrecht so common 
 among primitive peoples was not long in superseding the ancient cus¬ 
 toms. This Gastrecht , or rights of hospitality, gave a certain quantum 
 of protection to the foreigner and was exercised more particularly as a 
 form of patronage of a lord over aliens. In its operation it was narrow, 
 for it was confined usually to members of other clans and was not gen¬ 
 erally applied to the clanless individual. In so far as we may regard 
 this inter-clan relation as having any international significance, it was 
 one of purely municipal sanction. 
 
 With the growing consciousness of a political life beyond the confines 
 of the clan came a change in the status of the alien. Thus, as early as the 
 sixth century we find that among the Salic Franks and later among the 
 Ripuarians and the Chamavians there grew up an individual respon¬ 
 sibility for the murder of domiciled and transient foreigners. This ex¬ 
 tension of right, in itself of no little importance, was further strengthened 
 by the principle of royal protection which appears first among the 
 Langobardians. Indeed it was this principle which later became the 
 pivot upon which the rights of aliens were to turn. 
 
 The growth of alien rights was not, however, confined to the con¬ 
 tinent. In England, the Anglo-Saxons early developed both the individ¬ 
 ual liability for the murdered alien and the protection of royal authority 
 over such individuals. Originally “bote” appears to have been made 
 to the gildegenossen and the king in equal shares, but by the time of 
 Cnut II, the royal protection was fully developed. Again in the Dunsaete, 
 a species of international agreement between the Welsh and Saxons, 
 we have a mutual responsibility provided for in case of murder of the 
 citizens of one contracting party by the other, this responsibility to be 
 enforced by a system of reprisals. 
 
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 The relation of early law to our present problem is perhaps not quite 
 clear. Prima facie , it would seem that these matters of responsibility 
 for injury and the incident of royal protection were purely within the 
 sphere of municipal law. We must remember, however, that the munic¬ 
 ipal law of this time had in a certain degree an international significance. 
 It is true that these characteristics were essentially objective, but all 
 subjective international law predicates the objective fundament which 
 is necessary to its existence. This is distinctive of international law in 
 its primitive manifestations, for such indeed it is in all its practical 
 operations and effects. 
 
 The protection of the king over aliens was of even greater significance. 
 In its inception it was primarily the exercise of a personal prerogative 
 of the monarch, a right which was assumed to be inherent in him and 
 for which he was rewarded by the escheat of lands of deceased foreigners. 
 Later a great many of these matters of personal privilege came to be 
 regarded as belonging to the sovereignty which was inherent in the 
 royal position. This change in the conception of the source of sov¬ 
 ereignty, which may have been due, in some measure, to the influence 
 of Roman law concepts, brought with it a concomitant change in the 
 idea of protection which, like the sovereignty, was henceforth supposed 
 to rest in the people. It is to be noted, however, that this protective 
 function of the sovereignty restricted itself to the passive protection of 
 aliens and only later developed into the more active protection of its 
 subjects abroad. It is to be noted that at this time we are dealing with 
 a right and not with a duty which the protective function later developed 
 into. This was, perhaps, because it was a manifestation more of internal 
 than of external sovereignty, a condition which continued to the time 
 of the early publicists. 
 
 The second phase in the development of the law of responsibility is 
 the substitution of a group responsibility for that of the single individual. 
 This change appears to have been general on the continent and in Eng¬ 
 land. In England this was due to the legislation of both Danes and 
 Normans, who seized upon the hundred group as a convenient agency for 
 imputing the liability for murdered foreigners. The responsibility of the 
 hundred was very definitely extended in the reigns of Edward I and 
 Edward III and of succeeding monarchs, to comprehend not merely 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 805 
 
 injuries to foreigners from certain acts of felonious character, but also 
 damages arising to subjects in general from such acts as well as from 
 riotous assemblages. 
 
 On ine continent the development of group liability was more or 
 less irregular. In Spain the early introduction of Roman law appears 
 to have inhibited the growth of the Teutonic law, but it was far from 
 reversing all the existing jurisprudence, for the individual responsibility 
 of early Gothic law seems to have persisted even to the present day. 
 In the Empire, Bavaria and Brunswick retained laws of group liability, 
 and in the customary laws both of Germany and France the ancient 
 tribal laws underwent some development, but in nowise was this so well 
 defined as in England. This was not due solely to the differences in 
 political constitution, but to external factors of which the long foreign 
 wars in which the continental countries were almost incessantly en¬ 
 gaged were the most important. These wars gradually brought about 
 the old identification of alien with hoste, especially in France, which in 
 turn seems to have influenced the Teutonic countries. In the former 
 state, however, the group liability does not seem to have fallen wholly 
 into desuetude, at least in its application to domestic conditions. 
 
 With the identification of alien and enemy the time-honored custom 
 of royal protection lost its significance, and in its stead arose the onerous 
 laws of naufrage and the droit d’aubaine which placed ever-increasing 
 burdens on the alien. The foreign merchant alone appears to have 
 enjoyed protection, and, indeed, chiefly in the Empire. The legislation 
 in the form of market peace and special courts was general in nature and 
 developed independently of the customary law which, by the introduc¬ 
 tion of the civil law, was falling into disrepute. But the germs of the 
 group responsibility still existed which later grew into the existing sys¬ 
 tems of France and Germany. 
 
 Such, in brief, was the general state in which Grotius found the law. 
 He had before him on the one hand a well-developed system of juris¬ 
 prudence regulating the status of aliens in accordance with the old 
 Teutonic law; and on the other hand a system which appeared in its 
 general tendencies to be growing in harmony with the legal system for 
 which he stood. Moreover, he seems to have been of the opinion that 
 the whole question of foreign rights was more or less a local problem and 
 
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 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 one which was of little international consequence. But there were a 
 few principles in regard to responsibility in general which he laid down 
 as fundamental. These principles which Grotius introduced were based 
 on the old private law concept, that no one was responsible for acts of 
 others unless there were fault on his part. The element of fault might 
 be caused by complicity, by bad- counsel or by various other reasons, but 
 most of all by complicity in the face of some act which was not legal. 
 Thus, he says, 1 “a civil community, like any other community, is not 
 bound by the act of an individual member thereof without some act 
 of its own or some omission.” He goes on to say, however, that rulers 
 may share in service of others, “by their allowing and their receiving.” 2 
 The former is in cases where the ruler knows of the offense, has the 
 power to prevent but does not: “so that he who could have prevented is 
 held bound if he did not do so, and that the knowing here spoken of is 
 considered as combined with willing, and that knowledge is taken along 
 with purpose, for he is blameless who knows but cannot prevent.” 
 
 I have already indicated the fact that Grotius looked upon respon¬ 
 sibility as a matter of municipal law and for this reason he gave little 
 attention to the question. It is not easy to conjecture to what extent this 
 was true, but one passage may be taken as reasonable evidence in point 
 He says, “Nor if either soldiers or sailors contrary to command do any 
 damage to friends, are the kings liable, which has been proven by the 
 testimony both of France and England that anyone without fault of 
 his own, is bound by the acts of his agents, is not a part of the Law of 
 Nations by which this controversy must be decided, but a point of the 
 civil law. * * *” And again, “* * * the delicts of individuals 
 
 which regard their own community should be left to that community and 
 to its rules to be punished or passed over as they choose. * * *” 
 
 But even Grotius recognized the limits of local responsibility. For, says 
 he, “* * * there is not the same power left to them in delicts which 
 
 in any way pertain to human society in general; for these other states 
 and their rulers may be prosecuted, as in particular states there is a 
 prosecutor of certain offenses which anyone may put in motion; and 
 much less have they such a power in offenses by which another state or 
 
 1 Grotius, De Jure Belli ac Pads , Whewell ed., Lib. II, XXI, p. 342. 
 
 2 Ibid., p. 342. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 807 
 
 its ruler are especially assailed; and in which, consequently, the state or 
 the ruler, have, on account of their dignity or security a right of exacting 
 punishment as we have said. This right is not to be impeded by the 
 state in which the offender lives, or its ruler.” 
 
 I am not prepared to say that Grotius was particularly concerned 
 with the status of aliens when he wrote the above passages. But what¬ 
 ever was his intention, succeeding generations of publicists pounced 
 upon these views, and with but little change they have persisted until 
 the present day. The real significance in the Grotian theory lies not so 
 much in this, as in the fact that he was the first to draw the line of de- 
 markation between municipal and international control of these matters, 
 and thereby set in motion the great conflict between those holding for 
 municipal regulation and those who contend for international regulation 
 of responsibility. 
 
 Pufendorf was the first definitely to extend these passages to cases 
 involving injuries to aliens. Close in his footsteps followed Vattel, whose 
 views in these matters, although practically built on the writings of the 
 preceding publicists, are those which appear to have definitely formed 
 the basis of international practice in the early nineteenth century. At 
 any rate, he applied the Grotian principles to aliens even more explicitly 
 than his precursors. 
 
 According to Vattel, the sovereign, if he does not prevent injury to a 
 foreigner by his subjects, is not less guilty than if he had committed the 
 act himself. But, as it is manifestly impossible even in the best regulated 
 states for the sovereign to have absolute control over his subjects, it 
 would be unjust to impute to the state every delict committed by the 
 citizens thereof. Consequently, injury by subjects of a state are not 
 necessarily to be regarded as an offense on the part of the state. As it 
 stands, this principle contains a quantum of truth, although I believe 
 that Vattel wished to convey the idea that, prima facie, the state would 
 be liable. Advocates of non-liability, however, have extended the mean¬ 
 ing of these passages beyond their original significance. Thus Calvo and 
 his apostles have used these arguments to excess, accepting as fun¬ 
 damental truths matters which in reality are only partly true. 
 
 This indirect responsibility becomes direct as soon as the state ap¬ 
 proves or ratifies the act. Such approval makes the individual act a 
 
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 delict on the part of the state. As for reparation, Vattel, not distin¬ 
 guishing between satisfaction and compensation, believes in an in¬ 
 dividual responsibility. The state, he thinks, should compel the trans¬ 
 gressor to give compensation or should punish him. Failing to do this, 
 the state itself becomes responsible. Apart from this single contingency 
 the state is not liable. 3 
 
 The practical application of these principles was not realized until 
 after the first quarter of the nineteenth century. The reasons for this 
 are apparent. In the first place, there existed in most of the leading 
 European states some local form of group or individual liability, such 
 as the hundred responsibility in England, the communal responsibility 
 of France, or the individual liability of Spain. Such provision for cases 
 of mob violence or insurrection was generally regarded as sufficient. 
 Moreover, it was not until the beginning of the nineteenth century, when 
 the nationals of states were recognized as possessing certain rights and 
 privileges, that nations began to demand with some consistency protec¬ 
 tion for their subjects abroad. The feeling began to take root and grow, 
 that mere local reparation to the injured alien individual was not ac¬ 
 tually a settlement of the international prejudice which would be sus¬ 
 tained by the injury to the individual, that something more must be 
 forthcoming. Then, too, local justice was not always as favorable in 
 cases of injured aliens as it might be, a fault which international law 
 might remedy. But whatever the reasons were, it soon became apparent 
 that the Grotian-Vattel principles of responsibility were a two-handed 
 sword, wielded in their more extended connotation by the adherents 
 of international responsibility as represented by the claimant states, 
 and just as freely invoked in the more restricted phases by those who 
 believed in non-responsibility. Nor did the contest limit itself to the 
 mere interpretation of theoretical problems, but it became a very active 
 competition between municipal and international law regulation, a 
 contest which has persisted even up to the present day. 
 
 II 
 
 It is fundamental to our discussion that the character of responsibility 
 in the problems at hand is primarily one at public law. I realize that a 
 3 Vattel, Law of Nations (ed. Chitty), vol. II, c. VI, p. 161, et seq. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 809 
 
 private law treatment of the question dates back to the times of Grotius, 
 but this tradition is the more to be deplored when we consider that it is 
 in this very matter where lies the weakness of the Grotian theory. The 
 responsibility of a state for injuries sustained by aliens in civil commo¬ 
 tions, never assumes a real character at private law, although at times 
 it is difficult to distinguish the private from the public law aspects. 
 Wherever matters which might give rise to international responsibility 
 are settled by the application of private law rules, and such cases do 
 arise, we may safely say that there has never existed an actual respon¬ 
 sibility at international law, although the potentialities for such were 
 present. 
 
 Responsibility in its international connotation presupposes the viola¬ 
 tion of some norm of international law, and at the same time, though 
 less directly, a capacity to violate and to be injured. On the question 
 of to whom and by whom in international law responsibility is imputable 
 rests the truth or fallacy of the public law treatment of responsibility. 
 We know that international law is to be regarded as the totality of rules 
 or principles which governs the mutual relations between states, and 
 that the individual, in so far as his interests are concerned, is only the 
 object of the rights and duties of the state. So, assuming that it is the 
 international duty of a state to protect the subjects of another state, if 
 the former state fails to administer this duty properly it has violated 
 a rule of international law for which its responsibility may be engaged,, 
 not, indeed, to the injured individual, but to the state of which the 
 individual is a subject. 
 
 Apart from mere treaty stipulations, we may regard as a settled rule 
 of international law the fact that a state has the international obligation 
 to accord certain rights and privileges to the subjects of another state. 
 The international law in this regard is supplemented by the municipal 
 law which prescribes the mutual relation of aliens and nationals. From 
 this double legislation proceeds a double responsibility, one, a respon¬ 
 sibility between states, the other a responsibility between state and 
 individual. The dangers of confusing the functions of these two fields 
 of jurisdiction are apparent, and from here proceeds much of the dis¬ 
 order which appears to surround the question of responsibility. But 
 there is yet another great source of confusion arising from the character 
 
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 of the injury which is the result of the illegal act for which the state is 
 responsible. 4 
 
 The injury occasioned by the illegal act consists more in the character 
 of the act per se, than in the result of the act. This is due to the peculiar 
 nature of international law, the fact that its force is potential rather than 
 positive, and, again, from the fact that the injury is usually more a 
 moral than a material injury. The injury itself may be a two-fold 
 violation of right. That is to say, it may be a subjective or an objective 
 violation of right. In the latter case it is a matter of municipal cog¬ 
 nizance, in the former of international jurisdiction. States have thought 
 that in satisfying the injury by their own law the other injury, from 
 whence proceeds the violation of international law, has been fully re¬ 
 paired. But this is manifestly impossible. International delicts are 
 not of such a nature that they may be satisfied by local remedies. 5 
 
 From the obligation of responsibility which arises from the injury 
 proceeds the duty of reparation. This duty may be either one of satis¬ 
 faction or one of compensation. The former is very distinctly a repara¬ 
 tion to the injured state, and usually consists in a formal apology or the 
 salutary punishment of offenders or some similar act. Compensation 
 on the other hand is always a money payment. In theory it is an indem¬ 
 nity to the injured state, not to the individual, although in actual prac¬ 
 tice either method is followed. It is important to note that reparation, 
 no matter in what form it is made, is always to be regarded as the con¬ 
 crete expression of an assumption of liability and can exist only when 
 such liability has been acknowledged. Although the making of repara¬ 
 tion may be prima facie evidence that responsibility has been acknowl¬ 
 edged, there is no excuse for the statements that “aliens shall receive 
 
 4 Space does not permit a discussion of the illegal act, and its relation to the deter¬ 
 minate subjects. These are two elements which responsibility presupposes. The 
 third element is the injury resulting from the illegal act. 
 
 6 It is worth while indicating the peculiar nature of the infraction of an international 
 norm. The violation proceeds primarily from the injury, as I have indicated, and not 
 from the illegal act itself. This explains in some measure the fact that, although the 
 injury which gives rise to a violation is in reality objective in character, it is treated 
 as if it were a purely subjective violation of right. This subjective character arises 
 from the dual character of any injury which gives rise to an international obligation. 
 Similarly in municipal law we may have an act which gives rise on the one hand to a 
 civil liability and on the other to a criminal responsibility. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 811 
 
 indemnity under such and such circumstances.” This is mistaking 
 cause for effect in a way not particularly creditable to the publicist who 
 makes it. Payment of indemnity to the injured individual is res internee, 
 that is, it is a matter which the injured state settles with its injured sub¬ 
 ject as it sees fit. The mere fact that the parent state is not obligated 
 by any rule of international law to turn over indemnity to its injured 
 subjects would indicate that such obligation can exist only by virtue 
 of its own laws. The distinction between reparation and responsibility 
 is a vital one, and one upon which we must insist if we are to discuss 
 the problem adequately. 
 
 So much for the general theory of responsibility. Let us next ascer¬ 
 tain to what extent these principles are applicable to cases where re¬ 
 sponsibility arises in cases of civil commotion. In the first place, we must 
 recognize the fact that there are obligations imposed on a state by inter¬ 
 national law in regard to the rights and privileges of aliens, apart from 
 their purely conventional status. These rights are of two sorts, absolute 
 rights and personal rights. The personal rights are matters regulated 
 by municipal law. The absolute rights of aliens are regulated by inter¬ 
 national law, and are not so much rights of the alien per se, as they are 
 rights of the state of which the alien is a subject. In their narrowest 
 sense these rights are merely those of being protected in person and 
 property, but the growth of treaty regulation of these matters has greatly 
 extended the privileges of aliens. For our purposes, however, it is suffi¬ 
 cient to assume these limited rights. 
 
 In so far as the absolute rights of aliens are really an extension of 
 right to the state, we may regard them as being in some measure a 
 recognition, or, perhaps, an expression, of the right which the state has 
 of protecting its subjects abroad. This right is the converse of the duty 
 of protecting aliens, and is as distinctly a manifestation of sovereignty, 
 as the duty of protection is a surrender of these rights. It is for this 
 reason that I am not inclined to regard either one of these rights or 
 duties as an incursion into the fundamental principle of the independence 
 of states. As a general rule, we rarely find a sovereign right abridged 
 that there is not some concurrent extension of sovereignty. 6 
 
 6 The right of protection abroad depends in a large measure on the intimacy of the 
 relation existing between the state and subject. This relation is regulated by munic- 
 
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 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 From its very nature, the right of protection must express itself 
 through the diplomatic channels. Many writers are, therefore, inclined 
 to regard this right as one which should be invoked only in cases of 
 dire necessity, when all ordinary means of obtaining justice have been 
 exhausted, or in exceptional cases which do not admit of municipal 
 settlement. Such an attitude betokens an ignorance of the fundamental 
 character of the contingencies which give rise to responsibility and the 
 invocation of right of protection. We must once more point out that 
 in cases of injury in civil war or insurrection, the violation is not of 
 individual right, but of state right. Obviously situations of this sort 
 are not to be settled by local remedies. 
 
 Leaving for the moment the consideration of these questions of 
 obligations and duties, we may consider the question of responsibility 
 of the state for mob injuries as distinguished from injuries the result 
 of insurrection or civil war. Mob injuries to aliens are almost always 
 a distinct injury to the state itself. That is to say, mob outbreaks 
 against aliens are usually motivated by anti-foreign sentiment which 
 is to be regarded as an attack upon the state of which the alien is sub¬ 
 ject. Such, for example, was the general character of the anti-Italian 
 outbreaks in the United States. The responsibility of the state is en¬ 
 gaged more for this reason than for any other, although there is a large 
 class of writers which seeks to attribute to the fault of the government 
 injuries resulting from acts of mobs. This view is not generally main¬ 
 tainable. The most perfect police system is neither omniscient nor 
 omnipotent. Mob violence is from its very nature swift and unexpected, 
 and for this reason, admitting the propriety of a private law concept, it is 
 wrong to impute a fault when one never existed. 7 
 
 But if we admit that, as a general rule, liability is created by injuries 
 to aliens in mob outbreaks, and yet that there is no fault on the part of 
 the state, we are led to the conclusion that there may be a responsibility 
 without fault. It is clear there may be injuries done to aliens without 
 the knowledge of the state and hence without the possibility of the latter 
 preventing such injuries. May we say that under these circumstances 
 
 ipal law. From this point of view we may regard the right of protection as a duty 
 as well. 
 
 7 The error has its roots in the Grotian misconception of responsibility. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 813 
 
 the state has actually committed a fault? If we accept the view that 
 when the state has used due diligence it is not to be held at fault, there 
 seems to be no reason whatever for imputing such fault to the state, 
 although there still exists the situation where responsibility may be 
 claimed. The Aigues Mortes affair and the Fortune Bay case are ex¬ 
 amples in point. In both of these cases there was no possibility of claim¬ 
 ing that the government was at fault, yet in both instances responsibility 
 was acknowledged and indemnity paid. Responsibility, therefore, in 
 cases of mob violence cannot be said to depend upon the fault or degree 
 of fault of the state, but it proceeds from the nature of the facts in the 
 case. 
 
 The problem of responsibility in cases of civil war or insurrection are 
 of infinitely greater difficulty, not only because liability is not always 
 clearly defined, but on account of the many important points of juris¬ 
 diction and of sovereignty which are involved. 
 
 As a general rule, the stock argument against the presumption of 
 liability is that a state is not bound to accord greater rights to aliens 
 than it would grant to its own subjects. This is the view held by Pradier- 
 Fodere, Calvo and others. Thus, says the latter publicist, “To admit 
 in this case [internal strife] the responsibility of governments, that is to 
 say, the principle of indemnity, would create an exorbitant and perni¬ 
 cious privilege essentially favorable to powerful states and prejudicial to 
 weaker nations, and to establish an unjustifiable inequality between 
 nationals and foreigners. * * *” 8 To his aid he invokes the prin¬ 
 
 ciples of independence and sovereignty. 
 
 A second ground for non-responsibility is found in the idea that the 
 state is not responsible when the outbreak is the result of vis major. 
 This is essentially the view of Fiore, who also adheres to the due diligence 
 view. 9 The concept of vis major is a doctrine of municipal law which 
 has been transferred to international jurisprudence to enable a state 
 to escape liability where it otherwise would be responsible. 
 
 Hall 10 is the chief exponent of the third view in regard to non-liability. 
 It is his idea that the state is not liable on the ground that when an alien 
 
 8 Calvo, Le droit international , Vol. Ill, p. 142. 
 
 9 Fiore, Le Droit international Codifie (Antoine ed. 1911), p. 326, et seq. 
 
 10 Hall, International Law, p. 231. 
 
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 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 settles in a country, he does so at his own risk. He must be prepared to 
 accept the results of civil war, “ because the occurrence is one over which, 
 from the very nature of the case, the government can have no control.” 
 He is also of the idea that a state is not bound to do more for aliens than 
 for its own subjects. This same theory of risk has been ingeniously 
 converted by the adherents of responsibility in the shape of the so-called 
 risque etatif. This is intended to supplant the theory of fault, and on the 
 theory ubi emolumentum ibi onus esse debet the state is responsible for the 
 injured alien. It may extricate itself from this responsibility by proving 
 the fault or negligence of the victim. 11 
 
 Such, in brief, are the three chief arguments against responsibility. 
 Our next inquiry shall be in regard to their actual value as arguments 
 against non-liability. 
 
 No nation would be inclined to demand from another nation greater 
 privileges for its subjects residing in the latter state than the nationals of 
 such state themselves enjoy. Nor has it the right, apart from treaty stip¬ 
 ulations, so to do. All that it car demand is that its subjects be treated 
 in accordance with the norms of international law. What these rights 
 consist in we have already seen and that a violation of them is an injury 
 to the state, for which the responsibility of the offending state may be 
 engaged, the concrete expression of which is in reparation. This duty, 
 we repeat, is to the injured state, and not to the injured individual. 
 In fact, as we have seen, the injured individual may not receive any 
 part of the indemnity. If he receives indemnity and the nationals do 
 not, this is merely an incidental inequality, which cannot be said to have 
 any effect in international law, for, in principle, the aliens injured re¬ 
 ceive the money from their own state and not from the state where they 
 were injured. The indemnity is part of a relation between state and 
 state and the individual rights are merely objective. This fact would 
 seem to add weight to the view that reclamations should be made 
 through diplomatic channels and that the aliens need not be compelled 
 to settle the matter of reparation themselves by local judicial process. 
 
 11 Apart from these three main arguments against responsibility there are some 
 writers, who, adhering to the theory of fault, believe that it must be met by a civil 
 responsibility. These writers have been led astray by the existence of municipal law 
 regulation of responsibility. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 815 
 
 Should they do so, it would appear that they would thereby extinguish 
 any rights which they would enjoy under the protection of their own 
 state. In short, as far as regards the alien individual, a new status is 
 created, but local settlement can in nowise affect the international in¬ 
 jury. On the contrary; for the relation between the states would not 
 be affected by a private action in a municipal court, no more than would 
 a civil action in a municipal court bar the right of the state to prosecute 
 criminally. 
 
 A civil war as vis major is primarily a question of fact. As a rule it is 
 looked upon as the interposition of violence proceeding from human 
 agency of such a character as to be uncontrollable by the entity against 
 whom it is directed. Sometimes it is held to be synonymous with “Act 
 of God.” It is in general difficult to look upon civil wars and insurrec¬ 
 tions as cases of vis major , for these are matters from which it is obviously 
 impossible to exclude absolutely the element of will. This doctrine is 
 one to be invoked only in exceptional cases depending upon the circum¬ 
 stances of the case, but these circumstances must be grave and over¬ 
 whelming. Thus the War of Secession in the United States is a good 
 example of a civil conflict which was generally regarded as a case of 
 vis major. Of course, the fact that the civil war itself is not a case of 
 vis major, does not preclude certain incidents during the insurrection 
 from being so regarded. 
 
 In spite of the certain quantum of truth which exists in the theory 
 of risk both in its individual aspect and in that of the risque &tatif, the 
 basic assumption in both cases is wrong, in that it is founded on the 
 question to whom the advantage of an alien settling in a given state 
 accrues, which is not in itself a particularly tenable ground. The alien 
 settling in a country, unless it is known to be in a state of fomentation, 
 assumes no risk. International law has given him the right of protection 
 in person and property by the states in which he is settled, and just as 
 far as this right extends he cannot be said to have assumed a risk. 
 
 The risque btatif, on the other hand, is based on the somewhat dubious 
 grounds that an alien settling in a country is a direct benefit to the state. 
 At any rate, we have here the exact condition of discrimination between 
 aliens and nationals, against which so many writers have fulminated. 
 Apart from these considerations, however, a further objection exists in 
 
816 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 the fact that its private law character is with difficulty translated into 
 one of public law. This is likewise true of this theory in its individual 
 aspect. 
 
 This completes the discussion of the three main arguments against 
 non-liability which I have endeavored to show are dependent upon cir¬ 
 cumstances. Other theories have been advanced, namely, that the state 
 is not bound to the impossible. Nemo tenetur ad impossible. This theory 
 is based on the fiction that in revolutions and insurrections injuries are 
 not to be prevented and that hence the state should not be held liable. 
 This is the old theory of fault in a new coat, which we have already dis¬ 
 posed of. It may be mentioned in passing, however, that the problem 
 of responsibility is not to be settled by the mere application of some 
 time-honored legal maxims. Despite the fundamental truth inherent 
 in these principles, to apply them with axiomatic rigidity is a matter 
 requiring great caution. 
 
 When and why is the state responsible, and what exceptions are 
 there to these rules? There are two cases in which the liability of a 
 state is practically absolute: first, for its own direct acts, and secondly, 
 for the acts of its agents. The state, as any person at law, is responsible 
 for its own acts. This is a proposition which no one would deny. The 
 responsibility for acts of its functionaries, be these administrative or 
 judicial, rests upon a personal basis, rather than a material one, as in 
 the case of responsibility for acts of private individuals. The relation to 
 the individual concerned rather than the act itself makes the state 
 responsible. Another distinction of importance is the question of 
 responsibility for acts done within and without the scope of an officer’s 
 agency. Acts within the scope of an officer’s agency, if in contravention 
 to the principles of international law, will be regarded as acts for which 
 the government is responsible. An exception should be made, however, 
 in cases of military commanders when responsibility will be primarily 
 a matter of circumstance, depending on the nature of the acts. The 
 enactment of statutes by which a state denies responsibility for acts of 
 its agents, are without international sanction and are an unjustifiable 
 attempt on the part of the state to extricate itself from its international 
 obligations. As regards acts without the scope of an officer’s agency, 
 these can no more give rise to an international obligation than can a 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 817 
 
 burglary or hold-up. Municipal law should provide means of recovery 
 against such individuals. International complications arise where such 
 legislation is lacking, and not from the acts themselves. 
 
 A second class of cases which may engage the responsibility of a state 
 are those for which a government is held liable by the laws of war. These 
 acts, committed by military officers with the sanction of the state, are 
 essentially acts of the state. It is important to note, however, that the 
 government will be liable only for the grosser acts of war. 
 
 Whether or not a government is responsible for the acts of rebels is 
 one of the great controverted questions of responsibility. There are 
 two contingencies in which the state is clearly not liable. First, when 
 the insurrection has reached such a serious stage of development that 
 the whole armed force of the de jure government is engaged. Thus, 
 in the United States, the great Civil War is to be cited as the best ex¬ 
 ample of this sort. The state, moreover, is not responsible when the 
 belligerency of the insurgents has been recognized. This we shall 
 presently discuss more fully. Apart from these exceptions, I do not 
 think a state may, in general, escape responsibility for acts of insurgents. 
 Certainly, if another state has not recognized the belligerence of in¬ 
 surgents, they cannot address themselves to the organs of the insurrecto 
 government, and must turn to the de jure government, which remains 
 the only body charged with the accomplishment of international duties 
 toward foreigners. I do not wish to be understood as laying down these 
 principles as absolute. Insurgents are in no way under the control of 
 the government, and it is manifestly impossible for the de jure govern¬ 
 ment to be responsible for all acts of insurgents. A cogent argument 
 for responsibility is the fact that a state may avoid liability for insur¬ 
 gents’ acts by simply recognizing their belligerency. But until this is 
 done the insurgents are yet dependents of the government which pre¬ 
 tends to exercise authority over them. As regards the acts of war of 
 insurgent forces, the responsibility, as in the case of the de jure govern¬ 
 ment, is always a question of fact, but generally speaking is respon¬ 
 sibility in the same measure and degree. 12 
 
 12 The arbitrations of the question will bear me out in this. Despite the great con¬ 
 flict of opinion even here, the general opinion is that there is no escape from liability 
 in the circumstance I have indicated. 
 
818 
 
 1HE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 The responsibility for rebels which we have discussed is based on 
 the presumption that the rebels are defeated. In case, however, the in¬ 
 surgent government should become the de jure government, the respon¬ 
 sibility for acts of rebels is clear. The new dejure government is respon¬ 
 sible not only for its own acts, heretofore the acts of rebels, but also for 
 the acts of the previous government in virtue of the fundamental prin¬ 
 ciple of political science forma regiminis mutata, non mutatur civitas ipsa. 
 A new government can never escape liability for the acts of its pred¬ 
 ecessor, for these are acts of the state which continue despite all reversal 
 in actual form of government. 
 
 To these general rules we must make certain important exceptions. 
 In the first place, the state is not responsible when an alien has lost his 
 nationality (“heimatloses” individual). Obviously an individual who 
 settles in a country sine animo revertendi is entitled to no greater pro¬ 
 tection by his former state than the nationals of the insurrected country. 
 Nor would he be entitled to protection when the act by which he was in¬ 
 jured was the result of his own imprudence or fault. Treaty stipulations 
 exempting states from responsibility will also exclude reclamations by 
 states whose subjects have suffered injury. There has been considerable 
 discussion regarding the merits and demerits of the treaties, but although 
 they may lack in international expediency, the signatories will be bound 
 to their terms. 
 
 We have already indicated that recognition of belligerence of insur¬ 
 gents relieves the parent state of obligations for acts of insurgents. 
 Finally, we may mention the fact that aliens cannot claim protection 
 of a state when they enter a part of country which is notoriously in a 
 state of upheaval or when the de jure government has expressly decreed 
 that persons entering such country do so at their peril. The presump¬ 
 tion will be when an alien enters a country so conditioned that he has 
 done so from motives of personal gain and therefore at his peril. 13 
 
 So much for the nature of the international responsibility of the state. 
 I believe that I have established the fact that the responsibility of the 
 state is the rule, and non-responsibility the exception. For a long time 
 this principle has been disregarded by states, but the growing intricacy 
 of international relations has brought with it a closer coordination of 
 13 The theory of risk enters here. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 819 
 
 theory and practice. Some states will doubtless adhere to views of 
 non-responsibility, but a change is inevitable when they come to a real¬ 
 ization of the fact that these problems cannot be adequately contem¬ 
 plated by municipal law but must be reserved for public international 
 law cognizance. 
 
 Ill 
 
 The fact has already been remarked upon that the problem of respon¬ 
 sibility for aliens injured in civil uprisings became of practical inter¬ 
 national significance only after the first quarter of the nineteenth cen¬ 
 tury. Historically, it may be regarded as an outgrowth of the whole 
 movement for individual rights which culminated in the French Revolu¬ 
 tion. When states realized that their nationals possessed domestic 
 rights and privileges, they began to insist upon a certain observance of 
 these rights by other states when their subjects ventured abroad, and, 
 vice versa , to extend these same rights to aliens within their own juris¬ 
 diction. Attempts to apply in practical cases the well developed theories 
 of the early publicists were made during the Napoleonic wars, notably 
 the French Privateer case of 1811, 14 but it was not until the revolutionary 
 disturbances of the thirties that we find cases of significance arising. 
 
 The Absolutist excesses in Portugal in the latter twenties and early 
 thirties appear to have included a number of mob outrages on British 
 subjects as presumable adherents of the Constitutionalists. 15 The 
 British Government demanded reparation; the Portuguese Government 
 attempted to equivocate, but threats of reprisal brought a speedy com¬ 
 pliance. 16 In the subsequent reconquering of Portugal by the Constitu¬ 
 tionalists, there were a number of instances of injury to British subjects, 
 but apparently no reparation was made. The French Government, 
 however, fared better. An expedition under Admiral Roussin was dis¬ 
 patched to the Tagus to demand reparation for injuries to French sub¬ 
 jects. The Portuguese were defeated in a naval engagement, and be¬ 
 sides losing their fleet were compelled to pay a considerable indemnity. 17 
 
 A more important affair which is indicative of the advanced stand 
 
 14 Moore, Digest of International Law, VI, p. 809. 
 
 16 18 British & Foreign State Papers, 43, esp. p. 103-4, Case of M'Kenna & Munro. 
 
 16 Ibid., 268. 
 
 17 Ibid., 395. 
 
820 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 which Great Britain took in matters which concerned the safety of her 
 subjects in foreign lands, was the celebrated Don Pacifico case. 18 The 
 facts are too well known to require more than brief mention. Pacifico, 
 a British subject, residing in Athens, was the victim of mob violence in 
 April 1847. An outburst of anti-Jewish sentiment resulted in an attack 
 on his dwelling by a mob, who were even aided or abetted by the 
 police, to an alleged damage of over £30,000. Pacifico, it appears, 
 presented a claim to the Greek Government, but despairing of having 
 it recognized, appealed to the British Government. A lengthy cor¬ 
 respondence ensued. The Greek Government insisted that Pacifico 
 should present his case to a local tribunal, while the British Government 
 was equally certain that it was a matter of diplomatic cognizance. The 
 Greek Government failed to make reparation and a pacific blockade of 
 the Greek coast was instituted. New complications arose as a result. 
 France offered to mediate, and after considerable dispute the matter was 
 arbitrated. Pacifico was allowed 150 pounds as damages for certain 
 claims he had against Portugal, the papers relating to which the mob 
 had destroyed. The Greek Government later paid in cash about two 
 thirds of his original claim. 
 
 The Pacifico case was prolific of opinions on the question of respon¬ 
 sibility. Palmerston, in a speech before the House of Commons, June 25, 
 1850, came out squarely in favor of responsibility, but it does not appear 
 that he based his views more upon theoretical grounds than he did on 
 the exigencies of foreign policy. At any rate, his views were those con¬ 
 sistently followed by Great Britain in all subsequent cases. 
 
 Another case of reclamations against Greece occurred in 1862. The 
 Greek Government acknowledged its liability and promised compensa¬ 
 tion. 19 The French and Austrian Governments also recovered for in¬ 
 juries to their subjects. 20 
 
 The revolutionary claims against Tuscany and Naples are so well 
 known that no discussion is necessary. For a long time, due to the in¬ 
 accuracy of M. Calvo’s statements, it was supposed that the notes of 
 Schwarzenberg and Nesselrode were the law in matters of responsibility. 
 
 18 39 Br. & For. St. Pap., 332, et seq. 
 
 19 58 Ibid., 1009. 
 
 20 Ibid., 1142. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 821 
 
 The British Government never accepted these opinions in any form and 
 has never acted on them. Nor has any other government, as far as I 
 know, except as it wished to escape liability for its transgressions. 
 
 In 1870 a claim by Great Britain 21 was repudiated by Spain on rather 
 technical grounds. One Jencken, in Lorca on professional business, was 
 attacked by a mob and was very severely injured. The pretext for the 
 outrage was some barbarous superstition. The Spanish Government 
 punished the perpetrators, but as to the British claims it pointed out 
 that Jencken had renounced indemnity in the local courts and therefore 
 could see no grounds for making compensation. 
 
 This case is interesting in that it seems to indicate that an express 
 renunciation of right in a local court is held to cancel the international 
 claim as well. On the strict grounds of principle this view is not tenable, 
 although as a practical fact it is probably true enough and affords a 
 striking instance of the inconsistency of theory and international prac¬ 
 tice. Another fact worthy of notice is that none of the cases thus far 
 cited came up squarely on the question of responsibility, but they seemed 
 to turn upon the question of compensation. This is evidence of the 
 rather undeveloped state of the new theory of responsibility which seems 
 to have taken definite shape as such only after the European adjust¬ 
 ments in 1870. 
 
 Many publicists are inclined to believe that, although the more 
 powerful states are in favor of responsibility when they themselves are 
 making reclamations, when the situation is reversed they hold entirely 
 contrary views. In some cases their views are justified, but this has not 
 been true of Great Britain. The Fortune Bay case of 1878 is evidence 
 in point. 22 
 
 A number of American fishing vessels while fishing on a Sunday in 
 Fortune Bay, Newfoundland, were attacked by native fishermen, who 
 destroyed the boats and nets and expelled them from the bay. The 
 United States demanded reparation on the grounds that they were fishing 
 within the limits and privileges granted by the Treaty of Washington 
 and that local legislation which prohibited Sunday fishing could not 
 abridge their treaty privileges. The British Government took exception 
 
 21 62 Br. & For. St. Pap., 985. 
 
 22 For. Rel. 1878-81, Correspondence with Great Britain. 
 
822 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 to this interpretation, 23 but the United States insisted that, irrespective 
 of the question of treaty interpretation, compensation was due for 
 violence suffered. The claim was finally settled on these grounds. 
 
 The German view in regard to responsibility is the same as the British, 
 although it is to be noted that no cases have arisen in which the respon¬ 
 sibility of the German Government has been claimed. The so-called 
 Salonica incident was the first case involving the German Government. 24 
 A number of officious persons had forcibly carried off a Bulgarian girl 
 to prevent her from embracing the Mohammedan religion. The populace 
 of Salonica, enraged at the proceeding, threatened to attack the Amer¬ 
 ican consulate, where the girl was hidden. 25 When the excitement was 
 at its height, the French and German consuls appeared on the scene. 
 They were surrounded and murdered. 
 
 The German and French Governments demanded reparation. The 
 Turkish Government forthwith admitted its responsibility and dis¬ 
 patched an investigatory commission to the scene. The ringleaders were 
 tried and condemned and the consuls buried with honors. An indemnity 
 was paid to the families. Apart from the fact that the injured parties 
 were both consuls, a circumstance which would not of itself entitle them 
 to any greater amount of consideration than ordinary aliens, 26 the attack 
 was palpably an attack on the consuls, not as representatives of a par¬ 
 ticular state or nationality, or as foreigners as such, but because they 
 were Christians. This would, perhaps, suggest a further basis for respon¬ 
 sibility than has heretofore been mentioned. As a general rule, however, 
 these contingencies are covered by the rules already laid down. 
 
 A recent case of some moment involving German rights was the 
 first of the so-called Casablanca incidents. In July, 1907, a number of 
 Europeans employed on a railroad at Casablanca were murdered by 
 Moorish rebels. Quiet was soon restored, but shortly thereafter a French 
 cruiser arrived and, against the wishes of the local consuls, landed a 
 small and inadequate force of marines. The fears of the consuls were 
 realized. A riot broke out and the inhabitants were joined by wild 
 
 2 3 72 Br. & For. St. Pap., 1267. 
 
 24 Staatsarchiv, 30/333, 33/108. 
 
 26 The American consul was absent at the time. For. Rel. 1876, 569. 
 
 26 Consuls do not enjoy the immunities of diplomatic officers in these matters. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 823 
 
 tribes from the hills. The French cruiser opened fire on the town, and 
 when the French and Spanish reinforcing fleets arrived the French 
 vessels continued the bombardment. There was considerable loss of 
 life and property, for the town was practically wiped out. 
 
 The German interests in Casablanca were considerable and within 
 a short time the French Government was requested to make reparation 
 for the injuries suffered. The French Cabinet issued a note (10 Septem¬ 
 ber, 1907) 27 in which they decided that the Government of Morocco 
 was to be responsible for the murder of July 30, as well as for the injuries 
 resulting from the plundering and suppression of disorders. The in¬ 
 demnities were to be fixed by a commission, and the Minister of Foreign 
 Affairs was charged with the execution of these matters. 
 
 This case illustrates what has been said before, namely, that the 
 exigencies of modern international policy are compelling a recogni¬ 
 tion of the law of responsibility. Certainly in this case it was on 
 account of the extraneous influences upon the responsible government 
 which constrained an acknowledgment of liability. It will be remem¬ 
 bered that the events just narrated followed close on the heels of the 
 Algeciras acts. It is doubtful if under different circumstances France 
 would have been as amenable to German claims. Germany’s position 
 has been further emphasized by South American and Chinese cases. 
 
 Up to the present point in the discussion we have not come to cases 
 of conflict of municipal and international law. In France, where exists 
 an elaborate system of communal responsibility, the interrelation of the 
 local and international law is much closer. The law of communal 
 responsibility in its modern form dates from the days of the French 
 Revolution, although, as I have indicated, it is probably of much greater 
 antiquity. Shortly after the July revolution in 1830, the Court of 
 Cassation declared the law of communal responsibility inapplicable to 
 cities of the size of Paris, and by its decision excluded claims of re¬ 
 sponsibility from local cognizance. In this particular case a special law 
 was passed to meet the exigencies of the situation. The sum of 2,000,000 
 francs was placed at the disposal of the government for the settlement of 
 claims arising out of the revolutionary events of that year. 28 It is im- 
 
 27 54 Journal de Droit International Prive, 1257. 
 
 28 30 Duvergier, Lois et Collection, 138. 
 
824 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 portant to note that this law was not designated as “secours” or aid in 
 the sense in which M. Calvo has understood it. 29 This characteristic of 
 aid applied only to those injured or wounded in defending the cause of 
 the republic. Persons whose property had been injured were to be in¬ 
 demnified by the state. 
 
 The indemnifications furnished by France at the close of the revolu¬ 
 tionary upheavals of 1848 were also of importance. By a presidential 
 decree of 24 December, 1851, a special fund of 5,000,000 francs was 
 created to settle claims. The decree pointed out, however, that the 
 state was not under a legal duty to do this but was acting in accordance 
 with the dictates of equity and political safety. 30 
 
 After the establishment of the third republic, a very different situation 
 presented itself. Here were losses resulting not only from the Prussian 
 war but also those which were incident to the excesses due to the Com¬ 
 munist regime. On the basis of a report by a commission of the Assem¬ 
 bly, 100,000,000 francs were voted to be distributed pro rata among the 
 departments. This sum was later supplemented by an appropriation 
 of 120 million and finally by one of 50,000 francs. It is clear that no 
 attempt was made to distinguish between the two types of losses. Nor 
 does any distinction appear to have been made between the claims of 
 aliens and nationals. The only point of interest in the whole affair is 
 that the budget commission expressed itself as having no intention of 
 creating a right to indemnity nor of sanctioning a state debt, although it 
 did distinguish the claims arising from injuries received at hands of 
 regular troops in the reconquest of Paris. 31 
 
 These three cases have been cited, not so much because they are illus¬ 
 trative of any comprehensive development in the theory of responsibility, 
 but because they laid a certain basis for the practice of France in the 
 years following, for, although the general tendency in France even as 
 early as the year 1830 appears to have been to recognize the principle 
 of responsibility, yet, as we have already noted, the question does not 
 seem to have been of any particular moment until after the second half 
 of the nineteenth century. Nor are these cases to be looked upon as 
 
 29 III Calvo, op. cit., 150. 
 
 30 51 Duvergier, op. cit., 538. 
 
 41 Calvo, op. cit., Ill, 154. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 825 
 
 expressions of republican generosity such as frequently are to be found 
 in successful revolutions. The Privateers case of 1811, 32 the Pastry War 
 claims against Mexico in 1838 and again in 1866, and the Japanese case 
 of 1868 are all evidence of the degree to which France was willing to 
 carry her convictions on the subject of responsibility. Inasmuch as the 
 other cases mentioned will be discussed further on, let us examine the 
 facts in the Japanese claims case of the year 1868. 33 
 
 Free entrance to the harbor of Osaka had been granted to France by 
 treaty. The corvette Dupleix was commissioned to make soundings 
 of the passage and for this purpose despatched its steam launch up the 
 coast. The following day came the news that the launch had been 
 attacked by a mob and everyone on board had been killed or had dis¬ 
 appeared. Only two men survived the massacre. The consuls of the 
 Powers at once withdrew from Osaka and the French Government de¬ 
 manded an acknowledgment of liability by the Japanese Government. 
 This was immediately forthcoming. “They [the Japanese Government] 
 recognized the fact that our men were exempt from all blame, that the 
 massacre was without possible excuse and that a signal punishment 
 was necessary.” 34 The Japanese Government carried out its promises. 
 The offenders were executed, an official apology was read on board the 
 Dupleix and an indemnity of 150,000 piasters was paid to the French 
 Government. 
 
 We have already seen that a no less determined stand was taken by 
 France in the celebrated Salonica case. And so, too, in the question of 
 claims against Spain for the injuries resulting from the Carlist rebellion 
 of the seventies. 35 
 
 The facts are familiar. Queen Isabella was driven from her throne 
 in 1868 and for the next five or six years Spain was the scene of the worst 
 internal strife. The party supporting Alfonso, son of the late Queen, 
 finally emerged successful. During the revolution, the adherents of 
 Don Carlos had operated in the vicinity of the French border and the 
 injuries to the French subjects in these regions were considerable. 
 
 32 Moore, Digest , VI., p. 809. 
 
 33 Staatsarchiv, 16, p. 119; Archives Diplomatiques, Ser. 1, 33-4, p. 601. 
 
 84 Staatsarchiv, 16, p. 121. 
 
 86 Cambridge Mod. Hist., XII, 258. 
 
826 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 France requested reparation for the injuries and losses. The Spanish 
 Government, in view of the law of individual liability which existed 
 there, at first refused to consider the request and indicated that the in¬ 
 jured parties might sue the perpetrators of the outrages for damages. 
 Settlement was finally made by special law in consideration of a cross¬ 
 payment by France for the injuries which Spanish subjects had sus¬ 
 tained in Algeria. 36 
 
 The Spanish claims against France are worthy of mention. 37 In 
 June, 1881, Spanish colonists settled in South Oran, Algeria, were the 
 victims of the incursions of Arabs. Spain demanded reparation, but 
 M. Barthelemy-Saint-Hilaire, Minister for Foreign Affairs, replied that, 
 although the French Government had reason to follow the events in Alge¬ 
 ria with solicitude, in cases of this sort the government had never dis¬ 
 tinguished between nationals and aliens, and that the latter enjoyed the 
 same benefits from measures of reparation as the nationals. “ Measures 
 of reparation evidently could not proceed from a legal obligation.” 
 The events in Saida were to be classed among those inevitable happen¬ 
 ings to which the inhabitants are exposed, as, for instance, the devasta¬ 
 tion of a plague, events which could not engage the responsibility of a 
 state. 38 Finally, he pointed out that the Spanish had denied their 
 responsibility for insurrection, on the basis of the same “universally 
 consecrated theory.” Nevertheless, he agreed that if Spain would 
 indemnify France the latter would make similar concessions. M. 
 Barthelemy-Saint-Hilaire neglected to mention that France’s claims 
 against Spain had not been in accordance with his “universally con¬ 
 secrated theory.” The Spanish Government did not avail itself of this 
 inconsistency, however, but, as we have seen, was amenable to the 
 French claims. 39 The present case was clearly one of an eye for an eye, 
 and, for this reason, whatever expressions of principle were made, were 
 not of great importance. In fact, when, in 1893, Brazil availed itself of 
 Berthelemy-Saint-Hilaire’s dictum, France protested vigorously and 
 finally compelled payment. 
 
 86 Archives Diplomatiques , 1882-3, p. 120; Jour. Prive, 1888, p. 293. 
 
 87 Arch. Dip., 1882-3, III, p. 57; I R. D. I. P., p. 177. 
 
 38 Arch. Dip., Ser. 2, Vol. 7, p. 59. 
 
 39 France’s share, 900,000 fr. Arch. Dip., loc. cit., p. 71. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 827 
 
 A situation similar to the previous one arose in 1893 as a result of the 
 well known “Aigues Mortes Affair.” A certain company of Aigues 
 Mortes, a small town near Marseilles, employed a number of Italians 
 in its works. On August 17, 1893, a quarrel broke out between these 
 men and the French employees, which, assuming more and more serious 
 proportions, grew into a veritable pitched battle in which most of the 
 inhabitants of the town participated. Order was restored by the arrival 
 of regular troops, but not until a number of natives had been wounded, 
 and some Italians killed, and 26 wounded. Although extensive investiga¬ 
 tions were carried on, the blame was not to be fixed on any one party, 
 but the basis of the whole trouble appears to have been that the com¬ 
 pany employed a preponderating number of Italians. 
 
 The day after the riot the Italian ambassador presented his remon¬ 
 strances to the French Government. Deep regret was expressed, but 
 nothing appears to have been said on the subject of reparation. But 
 before proceeding to discuss this problem, let me briefly review the 
 events in Italy following the riot at Aigues Mortes. 40 
 
 The disturbances in Italy were confined chiefly to hostile demon¬ 
 strations against the French in Rome, Naples and Genoa. In Rome a 
 mob collected before the French embassy and, in spite of the resistance 
 of the police, hurled stones and blazing paper through the windows of the 
 palace. In Naples and Genoa the mobs attacked the consulates and 
 French business houses and the cars of the French tram line were de¬ 
 railed and burnt. 
 
 The Italian Government was the first to claim liability. It informed 
 the French Government that reparation by France would be complete 
 when a just indemnity had been paid. Previous to this despatch, how¬ 
 ever, the French Government had of its own accord offered to indemnify 
 Italy. No mention of non-responsibility was made and the offer was 
 accepted by Italy. 41 
 
 The French claims amounted to 50,000 francs and were examined 
 first by a joint commission which, however, dissolved without coming 
 to any conclusion. The matter was finally settled through the regular 
 diplomatic channels. 42 
 
 40 Ibid., p. 173; Arch. Dip., Ser. 2, Vol. 49, p. 37 et seq. 
 
 41 Amount of 420,000 fr. 42 Archiv. Dip., loc. cit., pp. 47-8. 
 
828 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 The Aigues Mortes affair is one of the most notable cases of recent 
 years, and is especially to be remarked upon for the fact that there 
 was no talk of a “universally consecrated principle” or “spontaneous 
 liberality.” The case is not to be explained, certainly, on the grounds of 
 international equity alone, but may be said to have been in some measure 
 the result of the delicate European situation existing at the time. 
 
 Since the Aigues Mortes affair, France has been involved in a number 
 of minor cases which raised the question of responsibility. The most 
 important of these was the Barcelona riots case of 1909, which, by the 
 way, is one of the most recent cases in which the question of respon¬ 
 sibility has been raised. 
 
 It will be remembered that the riots of 1909 were brought about by 
 the popular dissatisfaction with the government’s Moroccan policy. 
 Attempts to mobilize troops resulted in strikes, riots and insurrections 
 and all the accompanying excesses of mob passion. This was most 
 particularly the case in Barcelona and Catalonia. The uprisings were 
 finally quelled, but only after considerable loss of life and property had 
 occurred. 
 
 The French losses had been especially heavy in Barcelona. A mon¬ 
 astery had been destroyed for which France claimed indemnity of 
 87,379 pesetas. A similar sum was demanded for another outrage of the 
 same sort. Besides this there were six other minor claims entered. 43 
 We have already spoken of the Spanish law of individual liability in 
 cases of this sort. As a rule this law had been supplemented by special 
 act, as in 1881, where the claimants were not otherwise to be satisfied. 
 Leaving out of consideration the question of international injury which 
 was involved in these cases, it was palpably impossible for the injured 
 parties to recover in the present case, for the Barcelona insurgents were 
 laborers or insolvents from whom nothing could possibly have been 
 collected. During an interpellation of the Minister for Foreign Affairs 
 on December 24, 1908, in this matter, M. Pichon, the Minister, said the 
 following significant words: 44 “That, as has been already shown, there 
 exists no international jurisprudence in regard to the responsibility 
 of states where events occur in civil or political trouble. The law varies 
 with the state, certain states recognize responsibility, others do not.” 
 
 43 Jour. Pr., 37, 1139. 44 Ibid., 1140. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 829 
 
 In September, 1910, the Spanish claims were still in the diplomatic 
 channels and, as yet, there has evidently been no settlement. 
 
 Let these cases of responsibility in which French interests have been 
 involved suffice for the present. Clearly, France has taken a position 
 favorable to responsibility and in only one case, the Spanish claims of 
 1881, has shown a tendency to recede therefrom. This view of the 
 French Government is, as we have seen, in accordance with that adopted 
 by both Great Britain and Germany. Other European states have like¬ 
 wise sanctioned the same principles, notably Italy and Spain. The 
 position taken by Italy in the Aigues Mortes affair has been consistently 
 maintained in most of the cases where she has claimed responsibility 
 or it has been claimed of her. In 1906 45 an Italian soldier belonging to 
 the Italian force occupying the Island of Crete was injured at some elec¬ 
 tion troubles and later died. The Italian representative ordered the 
 occupation of the region where the killing had occurred and claimed an 
 indemnity, to which end he ordered the sequestration of customs rev¬ 
 enues in the region under Italian control. The Cretan Government 
 gave way to this rather extraordinary pressure and paid an indemnity 
 of 20,000 francs. 
 
 Spain, on the other hand, has not been as decisively in favor of the 
 view as the other European states, but upon several occasions where 
 Spanish citizens have been injured in the Americas, Spain has expressed 
 herself emphatically for responsibility. 
 
 An interesting situation exists at present between Spain and some 
 of the European Powers. In 1912 England, France and Germany 
 presented claims amounting to over 100,000,000 francs for injuries sus¬ 
 tained by their respective subjects during the various Cuban insurrec¬ 
 tions. 46 Previous to this and shortly after the Hispano-American war, 
 similar claims had been presented, but Spain had declined to entertain 
 them, on the ground that no nation could be obliged to indemnify except 
 for the acts of government troops. The situation was peculiar in Cuba, 
 for most of the outrages and excesses were those of insurgents with whom 
 the regular troops had been unable to cope. Subsequently, the three 
 governments presented claims to Cuba, but at the same time insisted 
 
 45 13 R. D. /. P., p. 223. The soldier was evidently not on duty. 
 
 u 39 Jour. Pr., 675. 
 
830 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 that Spain should share the responsibility because of the impossibility 
 of distinguishing the acts of regulars and insurgents. Since then, the 
 claims have again been presented to Spain, but no action has as yet been 
 taken. 
 
 We have yet to consider two cases involving Russia which would 
 indicate that, despite the progress which has been made in the theory of 
 responsibility, there is still some basis for the contention of M. Calvo 
 that the theory favors the strong and is prejudicial to weak nations. 
 
 In 1905, Switzerland made claims of Russian responsibility for in¬ 
 juries received by a Swiss subject in the Russian disorders of that year. 
 The Russian Minister for Foreign Affairs replied as follows: 
 
 The Imperial Government cannot assume the liability for the in¬ 
 demnification of the Swiss citizen injured. In short, injuries of this sort 
 occasioned either by individuals or bodies of individuals should be reim¬ 
 bursed by the persons recognized as the guilty parties by competent 
 judicial authority. It is generally understood that this principle does 
 not exclude the responsibility of functionaries who might be convicted 
 for neglect of duty, in regard to the suppression of disorders. Conse¬ 
 quently, the aliens injured have full and entire right of instituting actions 
 against each individual or official whom they believe to be guilty, with¬ 
 out the Imperial Government as such guaranteeing indemnification to 
 injured aliens. In view of these ideas, the latter cannot pretend to enjoy 
 privileges Russian subjects themselves are not entitled to. 47 
 
 The Russian Government clearly was inclined to regard the subject 
 of responsibility as within the field of municipal cognizance rather than 
 as a matter of international law, at least as regards claims made against 
 herself. The exact opposite of this view appears to be maintained as 
 regards injuries to Russian citizens. The following quotation from the 
 Journal Prive will illustrate the point at issue. 48 
 
 The Prince Salar-ed-Daouleh, who occupied new Kermanchah, paid 
 at the request of the consul of Russia 7000 tomeins as indemnity to 
 Russian subjects for injuries sustained by them during the disorders in 
 that city. 
 
 Fortunately for the theory of responsibility, cases of this sort are de¬ 
 creasing in number. States can no longer freely repudiate liability. 
 Responsibility has become in Europe a recognized fact of international 
 
 47 1905 Rapport du Conseil Federal , p. 300. 
 
 48 39 Jour. Pr., 686. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 831 
 
 law, and states are gradually coordinating theory and practice to an 
 ever-increasing extent. During the last quarter of a century a mass of 
 precedents has been accumulating which point to a theory of respon¬ 
 sibility, and, after all, it is these precedents and the practice of states 
 which is the determining factor as to what is and what is not international 
 law, 
 
 IV 
 
 We have seen how in Europe there has been a steady progress during 
 the last half century toward a theory of absolute liability for injuries sus¬ 
 tained by aliens in civil commotions. Most of the cases we have men¬ 
 tioned, however, have been among the European nations themselves 
 and chronologically have been rather remotely separated. Turning to 
 the countries of Latin America, we are confronted by a new situation. 
 Here, uprisings and insurrections are of such common occurrence that 
 to a large school of publicists and jurists it has seemed impossible to 
 hold a state responsible for the injuries which aliens are constantly 
 subjected to. These writers have attempted therefore to develop a 
 scheme of non-responsibility which will meet the exigencies of the tur¬ 
 bulent situation in these countries, and have attempted to justify their 
 view both theoretically and on the basis of international precedent. 
 We have already examined the theoretical arguments which they ad¬ 
 vance, and it yet remains for us to inquire into the cases which have 
 arisen. 
 
 The movement, in Latin America, toward non-responsibility has not 
 been confined to publicists and jurists alone, but has been repeatedly 
 voiced by prominent statesmen of those countries. And this they have 
 had ample opportunity to do. The number of revolutionary uprisings in 
 the South and Central American states has been truly remarkable. 
 Nor are these outbreaks to be looked upon as frivolous and sporadic in 
 character. Many of them have been conflicts of great moment and have 
 affected important interests. The flagrant disregard of life and property 
 so common in these states has justified the European governments in 
 adopting vigorous measures, and confirms to some extent the view which 
 they have taken that the Latin American states have not yet such a 
 degree of political development as to trust the destinies of foreigners in 
 
832 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 their hands. At the same time, however, we must not forget that many 
 nations have abused their position, and have availed themselves of the 
 thunderbolts of diplomatic intervention when there was little or no 
 excuse for their so doing. 
 
 The claims which are most frequently made against the Latin Amer¬ 
 ican states are conveniently divided into three classes. First, claims 
 made for injuries arising from acts of oppression, unjust imprisonment 
 or mob violence. Secondly, claims for injuries sustained during civil 
 wars and insurrections. Thirdly, claims for violations of contract 
 obligations. It is with the first two classes alone with which we shall 
 have to do. 
 
 The Latin American states have shown considerable ingenuity in 
 devising schemes to avoid liability for injuries to aliens. But to all 
 appearances these have been of no avail. They have repudiated the 
 theory of responsibility not only in their diplomatic correspondence, 
 but in their statutes, their treaties, and even in their constitutions. 
 From a purely political point of view, the position of the Latin American 
 states may be regarded as a protest against indiscriminate intervention 
 by European states. It is an effort, moreover, to maintain the privileges 
 of equality of states and the inviolability of territorial sovereignty. 
 From the juridical standpoint, however, we see in this attempt at re¬ 
 pudiation of the theory of responsibility, a final effort to regulate the 
 liability of the state by municipal legislation. This in turn may be in 
 some measure understood as a heritage of the mother country which, 
 in the course of development, has taken a new direction. 
 
 Although it is the purpose of the present paper to study merely the 
 international aspects of the question of responsibility, yet the interrela¬ 
 tion of municipal law and international law is so close in these states 
 that it becomes necessary for us to consider to some degree the extent 
 and effect of these municipal measures. Let us consider, in the first place, 
 the constitutional provisions. 
 
 In general, the constitutional provisions are of three sorts: those which 
 repudiate responsibility, those which deny the right of diplomatic inter¬ 
 vention and, finally, those which insist that alien parties contracting 
 with the government shall not resort to diplomatic intervention. Taken 
 up in their existing chronological order, the earliest of these constitu- 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 833 
 
 tional provisions is in the Costa Rican Constitution of 1871 which pro¬ 
 vides merely, that aliens and nationals shall seek redress for injuries or 
 damages before the courts. 49 This provision was rather general in 
 nature and was evidently not aimed at diplomatic intervention alone. 
 In contrast to it, however, we have the provision from the Guatemalan 
 Constitution of 1875 which provides that 50 “neither Guatemalans nor 
 foreigners shall have indemnification for damages arising out of injuries 
 done to their persons or property by revolutionists.” This is evidently 
 the first constitutional denial of the right of aliens to claim responsibility 
 for injuries. It was followed in 1886 by the Salvadorean Constitution, 
 which has a similar provision, and further stipulates that no compact 
 shall be entered into modifying the constitutional provision. 51 
 
 The Haitean Constitution of 1889 52 likewise limits the right of rec¬ 
 lamation and gives the victims of revolutions the right to sue at law 
 for damages. The Honduras Constitution of 1904 53 also is positive on 
 the matter and even goes to the extent of providing for the expulsion of 
 individuals who fail to observe the provisions of the Constitution. The 
 Honduras Constitution was closely followed by the Nicaraguan funda¬ 
 mental law of 1905 which has in effect identical provisions. 54 Finally, 
 the Venezuelan Constitution of 190 9 55 has incorporated similar provi¬ 
 sions, provisions which it has embodied in its Constitution for the last 
 generation. 56 
 
 Another type of constitutional limitations may be found in the Con¬ 
 stitutions of Ecuador, 57 Colombia, 58 Paraguay, 59 Cuba, 60 and Panama. 61 
 These take the form of stipulations that aliens shall enjoy the same civil 
 
 49 Rodriguez, American Constitutions , Vol. I, p. 332, Art. 46. 
 
 60 Ibid., p. 238. 
 
 31 Ibid., Art. 46, p. 268. 
 
 ™Ibid., Art. 185, Vol. II, p. 85. 
 
 93 Ibid., Art. 14 & 15 Vol. I, p. 362; Art. 142, p. 388. 
 
 64 Ibid., I, pp. 301-2. 
 
 65 Mss. kindly furnished me by Pan American Union. 
 
 66 So 1904 and 1901 and 1891. 
 
 37 Art. 37, Ibid., Vol. II, p. 283. 
 
 68 Art. 11, Ibid., Vol. II, p. 321. 
 
 69 Art. 33, Ibid., Vol. II, p. 388. 
 
 60 Art. 10, Ibid., Vol. II, pp. 144-5 
 
 • l Art. 9, Ibid., Vol. I, p. 394. 
 
834 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 rights and constitutional guarantees as nationals. The Constitution, 
 while apparently granting rights to aliens, at the same time by the doc¬ 
 trine of implied powers denies them other rights, for clearly, if nationals 
 have no right to make reclamations, certainly aliens have not either. 
 
 In connection with this discussion of constitutional provisions, it is a 
 fact worth noting that these constitutional limitations are to be found 
 in those countries which more than any others have been subjected to 
 almost continuous reclamations by foreign states. None of the Latin 
 American countries which we generally consider as maintaining a more 
 settled political life, have embodied rules of this sort into their Consti¬ 
 tutions. It is true, however, that some of these nations have had recourse 
 to other methods, notably statutory and treaty stipulations. Let us 
 briefly consider some of the more important of these laws and decrees. 
 
 A great number of statutory provisions has been the direct result of 
 some civil war. More particularly has this been true of Venezuela and 
 Colombia. The former state was one of the first to resort to this modus 
 operandi. In 1873, at the close of the memorable revolution in Ven¬ 
 ezuela, the reclamations of injured aliens were so numerous, that in a 
 vain attempt to deny its responsibility the Venezuelan Government 
 issued a decree that: 62 
 
 neither domiciled foreigners nor wayfarers have the right to resort to 
 diplomatic channels, unless when, having exhausted legal resources 
 before the competent authorities, it may clearly appear there has been a 
 denial of justice or notorious injustice. 
 
 Foreigners do not possess the right to demand indemnification from 
 the government for the losses or injuries proceeding from the war, except 
 in such cases as Venezuelans possess it. 
 
 It must be noted, however, that a further decree modified the manifest 
 severity of this law and gave to claimants a fairly wide latitude of rec¬ 
 lamation. But, despite this fact, the Venezuelan decree is a landmark 
 in the history of responsibility, for, as I have said, it is one of the first 
 forceful and outspoken repudiations of responsibility in statutory form. 
 Four years after the issuance of this decree, the Colombian Government 
 passed a law regulating the same question. 63 It is true that it was slightly 
 
 62 74 Br. and For. Stat. Pap., 1065. 
 
 f 68 Ibid., 776. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 835 
 
 more liberal, in that it recognized certain claims proceeding from in¬ 
 juries by revolutionists, but made these claims cognizable only by local 
 courts. Foreigners’ claims were not to be treated as claims of foreigners 
 as such, except in respect to deprivation of property. 64 The British 
 Government made a vigorous protest against this law in a note addressed 
 to the Colombian Government on January 3, 1878 65 and as a result a 
 new law was passed, July 1878, giving administrative authorities the 
 jurisdiction. 66 This law was further amplified by decree. 67 
 
 Another important series of statutes was enacted in Colombia in 1885, 
 following another uprising. Strangely enough, the first decree recognized 
 the fact that the problems arising out of this civil war were ones which 
 gave rise to international responsibility. The claims of foreigners were 
 given into the hands of a mixed commission. 68 A supplementary decree 69 
 of 1886 stipulated, however, that the government was not necessarily 
 responsible for losses sustained by aliens at the hands of rebels. In the 
 following year came another amendment which apparently sought to 
 limit the responsibility of the government for the acts of the officers of the 
 dejure government as well. This decree enumerated the acts of officials 
 for which the republic would hold itself liable, but denied responsibility 
 for the same acts when committed by the rebels, except where respon¬ 
 sibility was found to be recognized by international principle or was 
 found to be the practice of the civilized world. 70 In view of the cases 
 which we studied, it would appear that this latter phrase completely 
 nullified the preceding provisions. 
 
 During these years other states, notably Salvador, Costa Rica, Mexico 
 and Ecuador, enacted comprehensive legislation regulating the status 
 of aliens. In the main, these provisions were very similar to the consti¬ 
 tutional provisions which we have already examined. The Salvadorean 
 law, 71 which put aliens on a footing with nationals and denied the right 
 
 64 68 Br. and For. Stat. Pap., p. 778. 
 
 66 Ibid., p. 776. 
 
 86 69 Ibid., p. 376. 
 
 67 Ibid. 
 
 68 76 Ibid., p. 566. 
 
 69 77 Ibid., p. 807. 
 
 70 78 Ibid., p. 53. 
 
 71 77 Br. & For. Stat. Pap., p. 121. 
 
836 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 of diplomatic intervention, was protested by both Great Britain and 
 the United States. 72 The United States insisted that the question was 
 one of international law, and that furthermore decisions of national 
 tribunals did not bar international remedy. The Salvadorean authorities 
 did not attempt to maintain the position aimed at, but declared that 
 the law referred “only to claims which have their origin in acts of the 
 judicial authorities and not to claims that are founded upon an anterior 
 act of the gubernative authority.” 73 
 
 A not dissimilar controversy arose over a Costa Rican law promulgated 
 in the same year. The law, which was in its essentials the same as the 
 Salvadorean, was again protested by the United States. It was pointed 
 out, that “a municipal law excluding foreigners from having recourse to 
 their own sovereign to obtain for them redress for injuries inflicted by 
 the sovereign making the law, has in itself no international effect.” 74 
 The United States insisted, moreover, that it had a right to claim when 
 it saw fit to do so. 
 
 The Mexican law of this year had identical provisions to those of the 
 other countries whose laws we have considered. No protest was made 
 against these provisions. 75 
 
 The law in Ecuador, at first fairly liberal, in that it vested the govern¬ 
 ment with discretion to recognize certain claims for equitable reasons, 76 
 was stringently amended in the year 1888, following a civil war. The 
 government refused to be responsible either for acts of insurgents, or for 
 the military operations or acts of repression and measures of security 
 resorted to by the government. 77 This decree aroused considerable 
 disapproval in the diplomatic circles. The diplomatic corps protested 
 in a collective note to the Minister for Foreign Affairs on August 29, 
 1888, informing him that pending instructions they would act on the 
 principle that the international law of a state could not alter the prin¬ 
 ciple of international law to the prejudice of aliens. 78 When the Presi- 
 
 72 77 Br. & For. Stat. Pap., p. 116. 
 
 73 For. Rel., 1887, p. 114. 
 
 74 Ibid., 1887, p. 99. 
 
 76 77 Br. & For. Stat. Pap., p. 1270 et seq. 
 
 76 Ibid., p. 728. 
 
 77 79 Ibid., p. 731. 
 
 78 Ibid., p. 166. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 837 
 
 dent communicated this note to the Chambers, they refused to modify 
 or amend it in any way. The President resigned but his resignation was 
 not accepted. 79 Four years later, the Ecuadorean law was changed. 80 
 The new law did not attempt to deny the responsibility of the govern¬ 
 ment for official acts but it limited liability to such cases alone. Dip¬ 
 lomatic recourse was not expressly denied, but aliens were forbidden to 
 resort to methods not open to nationals. 
 
 In 1893, a comprehensive law was enacted by the Guatemalan Con¬ 
 gress, 81 one whole section of which (Sec. VI) was devoted entirely to the 
 question of diplomatic intervention. Liability was limited to acts of 
 officials and diplomatic recourse was to be allowed only in cases of denial 
 or of delay of justice. A similar law slightly more attenuated was passed 
 in 1895 by the Honduranean Legislature. 82 But neither this nor the 
 previous laws were protested. In fact, experience proved that most of 
 these laws were impracticable in operation. At best they were to be 
 looked upon as an expression of governmental policy which would be 
 carried through if possible, but, if not, the administration would be 
 willing to recede. 
 
 A situation of this sort existed in 1903 when Venezuela attempted 
 a statutory regulation of the matter. 83 This law was merely an incident 
 in the existing movement to escape liability for the civil war of the 
 previous years, which culminated in the pacific blockade. The right of 
 reclamation was limited as in the other statutes which we have examined. 
 The article relating to diplomatic intervention is interesting, and is 
 worth quoting. 84 It provided: 
 
 That neither domiciled foreigners nor those in transit have the right 
 to have recourse to diplomatic intervention, except when legal means 
 having been exhausted before competent authorities it is clear that there 
 has been a denial of justice or a notorious injustice has been done, or 
 that there has been an evident violation of the principles of international 
 law. 
 
 It is evident that the apparent rigidity of this law is qualified by the 
 
 79 For. Rel., 1888, p. 491. Nothing further is noted. 
 
 80 84 Br. & For. Stat. Pap., p. 644. 
 
 81 86 Ibid., p. 1281. 
 
 82 87 Ibid., p. 703. 
 
 33 96 Ibid., p. 647. 
 
 * 4 Art. 11, Ibid., p. 648. 
 
838 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 last phrase. For, what is a violation of international law, if injuries to 
 aliens in civil war are not? And who, indeed, are the judges in this mat¬ 
 ter? Certainly not the officials of the country making the law. This 
 was perhaps the feeling of the diplomatic corps at Caracas, which met 
 to discuss the question of remonstrating. No decision was reached by 
 them and apparently the matter was dropped. 85 
 
 A new type of statute appeared in the year 1908 86 which, although 
 it does not expressly deny liability or the right of diplomatic interven¬ 
 tion, insists that no treaty shall be signed which seeks to place foreigners 
 in a better position than the nationals themselves enjoy. Moreover, it 
 directs that treaties shall limit the right of diplomatic intervention by 
 describing the bounds in which diplomatic officers may act, and that 
 endeavor shall be made to introduce into such treaties the principle 
 of non-responsibility. 
 
 Apart from any argument as to the merits of treaty stipulation of 
 this sort, it seems strange, that, in the face of general international 
 opposition, Salvador should have passed a law of this sort. If, however, 
 we regard this statute as a final stand of the theory of non-responsibility, 
 we can at least explain if we cannot justify its existence. 
 
 These laws must suffice us for our study of statutory regulation of 
 the question of responsibility. As I have said before, these statutes 
 have been purposeless as far as any practical effect has been concerned. 
 Both the European states and the United States have expressed grave 
 disapproval of these acts, a disapproval which on various occasions has 
 taken the shape of formal remonstrance. To such the Latin American 
 states have invariably been amenable, but they stand as a man by the 
 right which they declare they possess, namely, to regulate as they see 
 fit the question of responsibility. This leads us to the mention of the 
 movement for a so-called American international law, especially as it 
 has found expression in the acts and minutes of the various Pan-American 
 Congresses. 
 
 At the first Pan-American Congress held in the year 1890, 87 the com¬ 
 mittee on claims and diplomatic intervention recommended that resolu- 
 
 86 For. Rel. 1903, p. 806. 
 
 86 Ibid., 1908, p. 706. This is the first statute of the kind which I have found. It is 
 possible that similar ones preceded it. 
 
 87 International American Conference Repts. of Committees, Vol. II, p. 233 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 839 
 
 tions be adopted to the effect that foreigners were entitled to equal 
 rights with nationals, but that beyond this no nation had any obligations 
 or responsibilities. This is the familiar equality doctrine which we have 
 already examined and found wanting. The projected resolutions re¬ 
 ceived the unanimous support of the delegates with the exception of 
 those of the United States. Mr. Trescot, the United States representa¬ 
 tive, pointed out that to adopt these principles would be to exclude 
 absolutely diplomatic reclamations and that cases of this sort were better 
 handled by tribunals unaffected by the partialities and prejudices of 
 municipal courts. 
 
 At the second conference, 88 the question came up and found expression 
 in a number of resolutions. A convention was finally adopted which, 
 predicating the doctrine of equality, came out squarely for a system of 
 non-responsibility except where officials failed to comply with their 
 duties. Alien claims were to be presented to the local courts alone, and 
 diplomatic recourse was to be had only in case of denial or delay of jus¬ 
 tice, or when there had been a manifest violation of the principles of 
 international law. 89 At present, all the states represented, except the 
 United States, have become signatories to this convention. 
 
 Prima facie , it would appear that these rules would put an end to 
 all diplomatic recourse, but this is not in reality the case. It will be 
 observed that a reservation was made of all manifest violations of inter¬ 
 national law. This convenient phrase will permit of almost any latitude 
 of interpretation as, for instance, was the case in Salvador in 1887. It is 
 difficult to comprehend how these conventions will alter in any material 
 way the practice even of the signatories. 
 
 The problem of pecuniary claims was further settled by a convention 
 which provided that they were to be submitted to arbitration when of 
 sufficient importance and when they could not be amicably adjusted 
 through diplomatic channels. As was pointed out in the third congress 
 held at Rio de Janeiro, this stipulation precluded all but the claims of 
 major importance from being settled in the way suggested. 90 The United 
 States ratified this convention. 
 
 88 Adas y Documentos de la Segunda Conferencia, p. 830. 
 
 89 Ibid., p. 854. 
 
 90 Third Int. Am. Conf. Minutes, etc., p. 181. 
 
840 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 A criticism of this movement may not be out of place at this point. 
 Although from many points of view an attempt to formulate more 
 definitely an “American” international law is highly laudable, yet it is 
 to be condemned if it has as its mission the subversion of principles 
 which have repeatedly received the sanction of the great Powers. To 
 build up a legal system which is in direct conflict with the existing cus¬ 
 toms and precedents may prove in its consequences a destructive in¬ 
 stead of the constructive force which it pretends to be. 
 
 A point which may have been noted and which is of some importance 
 is the fact that the movement among the Latin American states in so far 
 as it affects the problem which we are studying has been essentially 
 objective in character, that is to say, efforts have been directed more 
 against the method of presentation of claims than against the problem 
 of responsibility itself. I think this is due in large measure to the way 
 in which most states have comprehended the whole question, a fact 
 which leads to no little confusion and inaccuracy. This stands out even 
 more clearly in the treaties which Latin American states have concluded 
 in their attempt to divest themselves of responsibility. 
 
 The earliest treaty may be traced to the year 1863 (Bolivia and Peru). 91 
 This treaty, although it antedates the efforts at constitutional limitation 
 of liability, was not the first attempt at regulation. In 1852 the Ven¬ 
 ezuelan Government, in connection with a proposed modification of 
 American public law, had included a provision by which claims of 
 foreign governments for injured individuals would not be received. To 
 pave the way for an entente on this subject Senor Guzman was sent to 
 various capitals, but apparently the proposal did not materialize. 92 
 
 Other treaties soon followed the treaty noted above. It is not my 
 purpose to discuss or to enumerate these provisions inasmuch as this 
 was ably done by Mr. Harmodio Arias in an article in this Journal for 
 October, 1913, page 724. The list which is there given is complete but 
 for the addition of a treaty between Italy and Paraguay, August 22, 
 1893, Article 3, 93 and Bolivia and Chile, May 18, 1895, Article 5. 94 
 
 91 55 Br. & For. St. Pap., p. 837. 
 
 92 4 R. D. I. P., note, p. 227. 
 
 93 Martens, Nouveau Recueil General de Traites, ser. II, Vol. XXII, p. 50. 
 
 94 Ibid., Vol. XXIV, p. 396. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 841 
 
 We have already seen that the Institute of International Law in its 
 1900 meeting expressly condemned this sort of treaty-making and in the 
 rules which it drew up it recommended that states refrain from such 
 practices. This was a very serious condemnation of the Latin American 
 movement, and, coming as it does from foremost publicists, indicates 
 that there is a total lack of international precedent upon which such 
 treaties might be based. We do not, however, condemn the latter solely 
 for this reason, but because they are aimed at the subversion of an im¬ 
 portant international principle. It is true that they affect primarily 
 only the contracting parties, but the moral influence which such treaties 
 may exert is certainly considerable. For example, two states might 
 agree between one another not to prosecute acts of piracy which sub¬ 
 jects of one state might inflict on the other. Certainly, the fact that such 
 an agreement was limited to the signatories would not neutralize the 
 demoralizing effect which the treaty might have not only uoon interna¬ 
 tional jurisprudence but upon the whole civilized world. So it is with 
 the theory of responsibility. It is true that these treaties have in many 
 instances proven of no practical effect, but the tendency is none the less 
 dangerous and might pave the way to a discreditable practice among 
 states. 
 
 We turn next to the international practice of the Latin American 
 states as it has been illustrated in the almost overwhelming number of 
 cases which have arisen. We must perforce confine ourselves to the 
 leading cases which have been of distinct constructive value, keeping 
 in mind the points which have already been noted. 
 
 With the exception of the celebrated “Pastry War” between France 
 and Mexico, none of the cases prior to 1850 are of any value to us, for 
 it is only with the second half of the nineteenth century that the ques¬ 
 tions of responsibility reached the dignity of international conflicts, and 
 it is only then, moreover, that the Latin American states began a more 
 concerted and purposeful resistance to the theory of international 
 responsibility. Let us briefly examine the Pastry War case. 95 
 
 Like other Latin American countries, Mexico since her independence 
 had been prey to continuous insurrection during which considerable 
 losses had been sustained by foreigners, more particularly by French 
 98 27 Br. & For. St. Pap., p. 1178; H. H. Bancroft, Works, Vol. 13, p. 187. 
 
842 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 subjects. The basis of the relations between France and Mexico was a 
 provisional treaty which had never been signed by Mexico, and for this 
 reason no attention was paid to French demands. France finally made 
 a peremptory demand for an indemnity of 600,000 francs, 96 but this was 
 refused and accordingly diplomatic relations were severed and Mexican 
 ports declared to be under blockade. This procedure did not bring 
 Mexico to terms. Reinforcements were sent and, following an unsuccess¬ 
 ful conference, Vera Cruz was bombarded and abandoned by the in¬ 
 habitants. At this point Great Britain offered to mediate, and the two 
 contendants agreeing, a new conference was held. France did not, 
 however, follow up her advantage but accepted practically the same 
 conditions which had been previously offered her by the Mexican Gov¬ 
 ernment. 97 
 
 During the course of the dispute, an interesting doctrine was aired by 
 the Mexicans. They declared that 98 “ We are a nation always agitated 
 by revolutions; as such we suffer all the consequences of a state of rev¬ 
 olution, popular tumult, robberies, plunderings, assassinations, unjust 
 decrees, and since we are obliged to suffer all these evils, we consider that 
 the foreigners who may be in our country must suffer like ourselves, 
 without a chance of redress or compensation.” However anarchistic 
 this confession of faith may appear, it is not an isolated expression of 
 opinion. It stands as the most candid and concise statement of the 
 principle which the Latin American states are forever reiterating. 
 
 In the year 1856 an important case known as the “Panama Riot 
 Case” arose between the United States and the Republic of New 
 Granada. 99 The outbreak arose as the result of a quarrel between a 
 railroad passenger and a negro vender. The negro’s companion shot 
 among the passengers, a mob collected and attacked the travellers and 
 they were even joined by the police. The mob was dispersed only after 
 many passengers had been killed. 
 
 The case was finally decided by arbitration, which was provided for 
 in a convention signed September 10, 1867, in which the Government 
 
 96 27 Br. & For. St. Pap., p. 1178; H. H. Bancroft, Works, Vol. 13, p. 187. 
 
 97 27 Br. & For. St. Pap., p. 1186 ff. 
 
 98 Ibid., p. 1176. 
 
 99 Moore, History and Digest of International Arbitrations, Vol. II, p. 1362. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 843 
 
 of New Granada acknowledged “its liability arising out of its privileges 
 and obligations to preserve peace and good order along the transit 
 route.” 100 The case was not settled, as is generally supposed, 101 on the 
 basis solely of the treaty stipulation. General Herran, the envoy of 
 New Granada, pointed out that this was an extraordinary liability of 
 his government based not alone on treaty stipulation between the coun¬ 
 tries but on a principle of international law as well. 102 
 
 It is interesting to note that in the next dispute over the rights of 
 foreigners, Mexico was again involved. This was the celebrated triple 
 intervention of the years 1861-2. The facts of the case are familiar. 
 British claims were based not only upon demands of indemnity for in¬ 
 juries sustained by some of her citizens during long series of disorders, 
 but also included important claims for funded debt and a large sum of 
 money stolen from the legation. 103 Spanish claims were based mainly 
 upon recognition of claims by a previous convention, whereas French 
 intervention was solely to recover for bonded indebtedness of Mexico. 104 
 The existing government refused to recognize the acts of its predecessors 
 and, after protracted diplomatic wrangling, relations were severed and a 
 joint intervention was decided upon. A convention was signed Octo¬ 
 ber 31,1861 by the three Powers in question and to this the United States 
 was invited to give adherence. Mr. Seward declined, 105 but indicated 
 that the United States would not interfere as long as the provisions of the 
 convention were observed. 
 
 In the latter months of the year 1861 the squadrons of the three 
 Powers sailed to Vera Cruz and seized that port, but before any fur¬ 
 ther definite operations were entered upon both the English and Spanish 
 forces withdrew. 106 The intention of the French had become apparent, 
 and the other governments refused to identify themselves with this 
 policy. A treaty was made between Great Britain and Mexico but was 
 
 100 Malloy, Treaties, etc., of U. S., Vol. I, p. 302. 
 
 101 So Mr. Arias in this Journal for October, 191»3. 
 
 102 Moore, Arbitrations, Vol. II, p. 1369. 
 
 103 52 Br. & For. St. Pap., pp. 272-87. 
 
 104 Ibid., 392. 
 
 106 51 Br. & For. St. Pap., p. 63. 
 
 106 House Doc., 100, 37 Cong. 2 sess., p. 1187. 
 
844 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 not ratified. 107 A convention of 1866 finally settled the question in 
 favor of Great Britain. 108 
 
 Such, in brief, are the outlines of the intervention in Mexico as far 
 as it affected the problem with which we are concerned. The French 
 claims were not for injuries to aliens, so we shall not discuss the period 
 of French dominance in that country. It may be said, however, that 
 although these claims of responsibility differed in kind and had perhaps 
 a more forceful legal sanction than those which we are considering, yet 
 at bottom many of the same principles are involved, and from this point 
 of view the French intervention may be said to have had some effect upon 
 the law of responsibility. At the same time we must remember that a 
 great many other elements, especially political ones, were also involved 
 in this dispute which in turn rob the incident of some of its international 
 significance. 
 
 Another point which we may well consider at this point is the question 
 of the influence of the Monroe Doctrine upon the attitude of the Latin 
 American states. I know that there has been a general feeling that much 
 of the indifference and even defiance of these states is based upon the 
 idea that the Monroe Doctrine will afford them protection. Whatever, 
 are the virtues or defects of this doctrine, it is certainly true that on no 
 occasion has the United States invoked it to protect the turbulent 
 southern republics from being coerced into paying their debts. It is 
 really inconceivable that the Latin American states could hope for a 
 protection which has never been offered them. Of course, there may be 
 some mystic moral force to the doctrine which has led European states 
 to keep hands off when otherwise they would have intervened. But if 
 this is so it has been incommensurable. 
 
 There is a single case recorded in which we have the interesting situa¬ 
 tion of a Latin American state claiming the responsibility of a great 
 Power. This is the case of Alleghanian, an American ship loaded with 
 guano belonging to the Peruvian Government. The ship was burned by 
 Confederate forces in Chesapeake Bay. In a note of January 9, 1863, 
 Mr. Seward rejected the claim on the ground that it was an act of treason 
 and piracy which the United States had been unable to suppress al- 
 
 107 53 Br. & For. St. Pap., p. 573. 
 
 108 56 Ibid., p. 7. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 845 
 
 though it had been extraordinarily vigilant. There was no fault on the 
 part of the United States. The claim was later brought before a joint 
 claims commission but was rejected on the ground that it was a govern¬ 
 ment claim and not that of a private citizen. 109 
 
 The same commission which settled the Alleghanian claim also decided 
 a number of claims in favor of the United States, against Peru, for in¬ 
 juries to its citizens in various revolutions. Again in 1871 110 another 
 .settlement was made by the Peruvian Government for damages caused 
 by the sacking of Callao in 1865 by the Pradist insurrectos. Two United 
 States citizens were indemnified by this decree. 111 
 
 In this same year the United States was also pressing a claim against 
 Colombia for the seizure of the steamer Montijo, an American vessel, 
 by a party of revolutionists in the State of Panama. 112 The Colombian 
 Government denied its responsibility for losses to aliens through “com¬ 
 mon crimes. ” It prosecuted the offenders, but ineffectually. Finally, 
 arbitration was resorted to in 1874 and the case was decided for the 
 United States. 
 
 Two points of interest were raised in this dispute. First of all the 
 Colombian Government asserted that it would not be held responsible 
 for debts of the State of Panama because they were in this case private 
 debts. The umpire refused to agree with this. He insisted that the 
 debts were those of the federal government, not only because a violation 
 of treaty privileges was involved, but also because they were clearly 
 public in character. In a federal system, he said, constituent states 
 were non-existent so far as foreign relations were concerned. The second 
 point involved the fixing of liability. The officers of the Union had 
 failed in their treaty and international law obligation to protect United 
 States citizens. Clearly it was the duty of the President of Panama as 
 agent of the government to recover the Montijo. “It is true,” he said, 
 “that they did not have the means of doing so. * * * but this 
 
 absence of power does not remove the obligation. The first duty of 
 every government is to make itself respected both at home and abroad. 
 
 109 For facts cf. Moore, Arb., Vol. II, p. 1615 et seq. 
 
 110 Moore, Arb., Vol. II, pp. 1629, 1652-7. 
 
 111 VI Moore, Digest, p. 973. 
 
 “2 Moore, Arb., Vol. II, p. 1421; For. Rel. 1871, p. 230. 
 
846 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 If it promises protection to whom it consents to admit into its territory 
 it must find the means of making it effective. If it does not do so, even 
 if by no fault of its own, it must make the amends in its power, viz., 
 compensate the sufferer/’ 
 
 Another case based on very similar facts was that of the Venezuelan 
 Transportation Company. 113 This was an American corporation op¬ 
 erating in Venezuela. Steamers of the company were seized during the 
 course of an insurrection and serious losses incurred. The diplomatic 
 correspondence in this case dragged on for some twenty years, and at 
 one time war seemed imminent. In June, 1890, the President of the 
 United States was empowered by joint resolution of Congress to take 
 such measures as were necessary. Fortunately these measures were the 
 entering into arbitration in favor of the United States. It may be noted 
 that the Venezuelan Government strenuously combatted the claims of 
 the United States, alleging that they were contrary to the principles 
 of responsibility which the United States herself was at that time 
 avowing. 
 
 In 1885 the United States and several other countries had occasion 
 to claim the responsibility of Colombia. 114 We have seen that this state 
 attempted to regulate the matter by decree. This was unsuccessful, 
 and although almost thirty years have since passed no results have been 
 reached. 
 
 We turn next to a series of important revolutions, beginning with 
 the year 1891, which gave considerable impetus to the growth 
 of international responsibility. In Chile a usurping president was de¬ 
 posed by the party supporting the Congress, but not without some 
 rioting and bloodshed. 115 On August 8, 1892, the United States con¬ 
 cluded a convention with Chile whereby claims were submitted to an 
 arbitral tribunal. The claims were decided in favor of the United 
 States. So, too, with the claims of England, France, Norway-Sweden 
 and Italy. German claims were settled through diplomatic channels. 
 The conclusion of these conventions would indicate that the Chilean 
 Government did not refuse to regard itself as responsible and this was 
 
 113 Moore, Arb., Vol. II, p. 1693 et seq. 
 
 114 Sen. Doc. 264, 57th Cong. 1 sess.; 76 Br. & For. St. Pap., p. 566. 
 
 113 Moore, Arb., Vol. II, p. 2117 R. D. /. P. XIX, p. 268. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 847 
 
 in fact very clearly shown by the correspondence with the United 
 States. 116 
 
 A serious dispute arose between Venezuela and certain European 
 Powers as a result of claims of responsibility following the civil war 
 of 1892. The Venezuelan Government had established a special claims 
 commission for payment of all requisitions of the de jure government. 
 All claims were cognizable only by the high federal court, a plan 
 which left to the Venezuelans the final determination of the same. A 
 proposal to form an international commission was repudiated with such 
 vigor that the diplomatic corps decided to bring pressure to bear, and 
 to this end drew up a memorandum to which most of the interested 
 parties became signatories. A change in the personnel of the corps 
 overthrew these plans, and the entente was never formed. Italy, which 
 opposed the plan, managed to effect a settlement on a basis of from five 
 to thirty per cent. 117 The French claims were settled by a convention 
 in 1902. 118 It is important to note that despite the settlement which 
 was made with Italy, the Italian Government expressed itself very 
 firmly as opposed to diplomatic intervention in affairs of this sort. 
 
 The following year occurred the revolution in Brazil which over¬ 
 threw the empire. 119 The Brazilian Congress instituted a court of claims 
 to take cognizance of claims of aliens, denying, at the same time, the 
 right to resort to diplomatic intervention to effect these ends. Never¬ 
 theless, France, Spain, Germany, Austria-Hungary, Russia, Belgium 
 and Denmark all secured recognition of their rights through regular 
 diplomatic channels. 
 
 The claims of Italy were the most numerous of all. But, unfor¬ 
 tunately for her cause, the Green Book, recently issued, in which she 
 had so thoroughly disapproved of the use of diplomatic intervention, 
 was seized upon by the Brazilian Government and used as ammunition 
 against its author. The claims of Italy were presented on March 11, 
 1885, to the Brazilian Government, but the latter repudiated respon¬ 
 se For. Rel. 1892, p. 54. 
 
 117 ii r . D. I. P., p. 45. 
 
 118 Sen. Doc. 533, 59th Cong. 1st Sess. The Italian Government published com¬ 
 promising papers in a Green Book which led to recall of Venezuelan ministers in 
 France and Belgium. France retaliated in kind. 
 
 119 4 R. D. /. P., p. 403. 
 
848 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 sibility for injuries resulting from acts of insurrectos, and, furthermore, 
 what it was pleased to call vis major. A counter-proposition of the 
 Brazilian Government was rejected, but after negotiation, the Italian 
 and Brazilian ministers signed two protocols, one by which a mixed local 
 commission was to settle certain claims; the other protocol submitted 
 certain questions to arbitration by the President of the United States. 
 
 The protocols were submitted to the Brazilian Congress and while 
 still in the stage of debate popular excitement broke forth in riotous 
 anti-Italian manifestations and in the Sao Paolo some 65 persons were 
 killed and wounded. The Italian Government, very much excited over 
 these events, dispatched a flying squadron to Brazil and all emigration 
 was forbidden. Despite these warlike manifestations, however, the 
 whole matter was settled peacefully and the sum of 4,900,000 francs 
 was granted in settlement of claims not otherwise regulated. 
 
 During the same civil war three French citizens were killed, and 
 reparation was demanded by the French Government. Brazil replied 
 with the much quoted note of October 9, 1893, 120 denying all liability 
 but two years later 900,000 francs were paid the French Government by 
 way of indemnity. 
 
 These cases, occurring in the years most fruitful of mob outbreaks, 
 although they present many points of difference, notably in the acknowl¬ 
 edgment of the right of diplomatic intervention, in result they have been 
 the same. The indemnity has been paid and another acknowledgment 
 of liability effected. We now turn to the celebrated Venezuelan inter¬ 
 vention of 1902. 
 
 Most of the important European states had claims of responsibility 
 against Venezuela, but those of Great Britain, Germany and Italy were 
 the most numerous. The British claims included demands of reparation 
 for the seizure of certain vessels as well as for injuries to its citizens in 
 the recent uprisings. The Italian and German claims were similar in 
 nature and included certain contract claims. The conflict was inau¬ 
 gurated by the presentation of a promemoria by the German Ambassador 
 to the United States in which it was proposed to present an ultimatum 
 and then resort to a blockade of Venezuelan ports. 121 It was not until 
 
 120 Archives Diplomatiques , Vol. 48, ser. 2, p. 215. 
 
 121 For. Rel. 1901, p. 193. 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 849 
 
 a year later that these proposals were carried into effect. Great Britain 
 and Italy joined with Germany in the presentation of an ultimatum, 
 December 7, 1902, and the following day diplomatic relations were 
 severed. The events which followed are familiar. The Venezuelan 
 gunboats were seized and a blockade of the Venezuelan coast was entered 
 into, with the result that President Castro finally capitulated and in a 
 note sent by the American Minister to the State Department, Decem¬ 
 ber 31, 1902, declared that he recognized in principle the claims of the 
 allied Powers. 122 His proposal to arbitrate was accepted with certain 
 reservations, and by February 16, 1903 the blockade was raised. Mixed 
 commissions settled all questions but that of preferential payment, 
 which was submitted to The Hague. 123 
 
 Since the Venezuelan case, we have had two minor cases arising, that 
 of Deebs against Colombia, which resulted in payment of indemnity for 
 injuries sustained by him in a revolution, and again the final decision 
 against Colombia in the Cerutti affair. 124 Doubtlessly, the recent 
 Nicaraguan, Venezuelan and Mexican imbroglios will give rise to im¬ 
 portant claims of responsibility. 
 
 It remains for us to review the Latin American situation. On the 
 whole, despite the monotonous reiteration of opinions of non¬ 
 responsibility, the development has been steadily toward increasing 
 liability. Statutory and constitutional provisions have alike proven 
 unavailing to stem the tide of international progress and opinion, and 
 the unusual number of cases resulting in an assumption of liability have 
 furnished the law with tremendous precedent. It is difficult to prophesy 
 what will be the future development in Latin America. It is not 
 impossible that the increasing tendency to arbitrate will bring an ad¬ 
 justment of many former difficulties. Certainly, in view of the present 
 attitude of the Powers, this method presents itself as the most satisfac¬ 
 tory solution of an embarrassing situation. But whatever course the 
 Latin American states may in the future pursue, they can hardly con¬ 
 tinue to repudiate the theory of responsibility, which is now an integral 
 part of international law, without reflecting on their international 
 prestige. 
 
 122 For. Rel. 1903, p. 803. 123 Ibid., p. 823. 
 
 124 The question of responsibility was not important in this case. 
 
850 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 y 
 
 In conclusion, I should like to say something about the development 
 of the law of international responsibility in the practice of China and of 
 the United States. My study of the cases involving these states is, 
 unfortunately, not yet completed, but I may be able to indicate some 
 of the general tendencies. 
 
 In China, outrages against aliens have been confined largely to mob 
 violence based on a deep-seated anti-foreign sentiment. This feeling 
 expressed itself originally in various forms of government oppression, 
 especially during the eighteenth century, when the spoliations of Anglo- 
 Saxon adventurers brought a reversal of the early pro-foreign policy of 
 the government. The hostility of the ruling classes communicated itself 
 to the populace, and mob outbreaks against foreigners began to occur 
 with some regularity in the latter twenties of the nineteenth century, 
 when European operations in China were still confined to the activities 
 of the great mercantile companies. The growth of commercial relations 
 with China seems rather to have enhanced than to have diminished the 
 prejudices against aliens. And events like the Opium War of 1840, and 
 again the campaigns which culminated in the treaties of Tientsin, cannot 
 have increased the liking of the Chinese people for the alien intruders. 
 Up to the time of the last mentioned treaties, the outbreaks were sporadic 
 and acknowledgments of responsibility were invariable. The Chinese 
 authorities, however, insisted that rules of international law were not 
 for them. On the other hand, the European states were equally certain 
 that only thus were the relations between Orient and Occident to be 
 amicably adjusted. This was, of course, an unwarranted assumption, 
 and the international law which was administered was much at variance 
 with the principles which governed the relations among European 
 states. 
 
 After the treaties of Tientsin the Europeanization of China proceeded 
 more rapidly, but at the same time the anti-foreign sentiment, under 
 the tutelage of secret political clubs, grew more aggressive, and, begin¬ 
 ning with the fearful Tientsin massacre of 1870, we have a long series 
 of almost annual outrages which culminated finally in the European 
 intervention in the Boxer troubles. Next to the Venezuelan affair of 
 
INTERNATIONAL RESPONSIBILITIES OF STATES 
 
 851 
 
 1903, there has been a no more pronounced and spectacular vindication 
 of the international responsibility of states. Since 1900, however, there 
 have been further instances of outrages upon aliens and it does not 
 appear that any change is imminent. 
 
 I have already remarked upon the peculiar character of the inter¬ 
 national law which was administered in China in the early nineteenth 
 century. This was due not only to the singular policy of aloofness in¬ 
 sisted upon by the imperial government, but also to the fact that ex¬ 
 tended extraterritorial jurisdiction was exercised in China by all the 
 important Powers. After the year 1858, these influences became of less 
 importance, at least as regards the present problem, and the law of 
 responsibility appears to have followed the same line of development as 
 in other parts of the world. Indeed, the Chinese Government appears 
 to have expressly recognized these principles when, on various occasions, 
 it had reason to demand the responsibility of the United States for in¬ 
 juries sustained by its subjects, the result of mob outbreaks. We may, 
 therefore, say that in general the principle of responsibility is firmly es¬ 
 tablished in the international law which has developed from Chinese 
 precedents. 
 
 We have already had occasion to observe in some detail the practice 
 of the United States. Two facts stand out with some prominence; the 
 United States has always been ready to press claims for injuries to its 
 own citizens abroad, and has been uniformly successful in obtaining 
 acknowledgments of liability; on the other hand, this same government 
 has invariably repudiated the principle of responsibility when similar 
 claims have been made upon it and in most instances an indemnity has 
 been granted. 
 
 This same tendency we have noted elsewhere but in no state has it 
 been so conspicuous as in our own country. This is due, perhaps, to the 
 traditional belief that responsibility must first be denied before an indem¬ 
 nity may be paid. Most of the indemnities paid by the United States 
 have been paid in this fashion and have been carefully classified as ex¬ 
 pressions of spontaneous liberality. Thus, the Spanish claims in 1850, 
 the Italian lynching cases and the Chinese cases were all of this sort. 
 
 There is little excuse for the inconsistencies practiced by the United 
 States. We have seen that indemnities once paid have invariably had 
 
852 
 
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 
 
 the effect of an expression of responsibility, no matter how they may 
 have been limited or designated. This has also been the case in this 
 country, and many of the cases which were settled on the spontaneous 
 liberality principle have since been cited in support of the principle of 
 absolute liability. The continuance of the policy of the United States 
 does not reflect a great deal of credit on the statesmen who insist upon 
 it and its only effect is to obscure the real international law. 
 
 Julius Goebel, Jr.