"The terms of the law providing indemnity have not prescribed any such agency, but the Department is always prepared, upon application from the parties interested, to transmit documents relating to such claims to the representative of the United States at Brussels, with a request that he would interpose his exertions in their behalf. As it is understood that your agent will proceed to Belgium on your account, I now enclose at your request the documents you ask for, which have been on file in this Department." Mr. Webster, Sec. of State, to Messrs. Donnell & Sons, Aug. 15, 1842, 32 See, also, Mr. Legaré, Sec. of State, to Mr. Tolert, May 11, 1843, 33 MS. 2. MESSINA, AND ELSEWHERE. § 1043. During the revolution which, following the establishment of a provisional government at Palermo, broke out at Messina on January 29, 1848, against the Government of the King of Naples, the revolutionists carried by storm the Fort Real Basso, confining the royal troops to the citadel of Fort Salvador. While the Neapolitan forces were thus shut up they fired from time to time in various directions, and some of their shots set fire to the Porto Franco, in which there were goods belonging to British merchants. In a note to Prince Cariati, Neapolitan minister for foreign affairs, March 9, 1848, Lord Napier, British minister at Naples, called attention to this incident, and, alleging that the Porto Franco was "intentionally and wantonly set on fire by a bombardment directed upon it by the citadel in the absence of all provocation or necessity which could justify such a measure," reserved "the right to demand compensation for all losses and prejudice in their persons and property which British subjects may have incurred thereby." Prince Cariati replied, March 14, 1848, and, while questioning the allegation that the warehouse was set on fire "wantonly or inconsiderately," assured his lordship "that, when the facts shall have been ascertained, the King's Government, animated by sentiments of fairness and good will towards the subjects of Her Britannic Majesty, will act according to the strictest justice, and does not doubt that from the relations of friendship and good will which exist between the two Governments, every question. will be settled to the mutual satisfaction of both parties." 40 Brit. and For. State Papers, 775–777. "An hon. member asked me a question yesterday with respect to our claims on Naples, and it so happens that there has arrived, within a day or two, a despatch giving an account of the state of those claims. We have made a request to the Court of Naples to have an indemnity for certain British residents at Messina, whose goods were destroyed in the bombardment of that place. The Neapolitan minister of foreign affairs said, he was quite willing to agree to the principle which had been laid down, I suppose by the Queen's advocate, he says by the Crown lawyers of Great Britain, namely, that compensation should be awarded for the loss of such property as was destroyed without sufficient necessity, whether wantonly, designedly, or by pillage.' But it so happened that there were other representatives besides that of England at the conference. There were the ministers of Prussia, France, and Austria. What do they say? The ministers of France and of Prussia said, that they could not adopt this principle without reservation. They said that the property of foreigners placed in the warehouses of a free port had always been considered to be under the guarantee of the government to whose protection it was confided; and the compensation granted by the Belgian and Bavarian Governments for the destruction of property lodged in free ports at Antwerp and on the Rhine proved clearly that such a principle was generally recognized by European powers.' It appears, then, that the principle we proceeded upon was not only not extravagant, was not only not pushed beyond the usual law of nations, but within its range. And Count Walewski also cited a case which occurred in Paris during the insurrection of the 23rd of June, 1848, when indemnity was claimed by the Neapolitan, and conceded by the French Government for losses suffered by a Neapolitan subject upor that occasion.' It thus appears when a claim was made for losses suf fered at Paris, that the French Government, as a government that knows the law of nations and willing to do justice to foreigners, conceded that claim." Speech of Lord John Russell, House of Commons, June 25, 1850, Hansard, Parliamentary Debates, CXII. 700–702. XII. ACTS OF INSURGENTS. 1. OPINIONS OF PUBLICISTS. § 1044. "Are or are not governments responsible for losses and injuries experienced by foreigners in times of internal disturbances or of civil war? This question has been a long time discussed and is finally resolved in the negative. "To admit in this case the responsibility of governments, that is to say, the principle of indemnity, would be to create an exorbitant and pernicious privilege, essentially favorable to strong states and injurious to feebler nations, and to establish an unjustifiable inequality between nationals and foreigners. On the other hand, in sanctioning the doctrine which we combat, we should do, although indirectly, a deep injury to one of the constituent elements of the independence of nations, that of the territorial jurisdiction; just here, indeed, is the real bearing, the true significance of the recourse so frequently taken to the diplomatic channel for the purpose of resolving questions whose nature and the circumstances in which they are produced place them within the exclusive domain of the ordinary tribunals." Calvo, Droit Int. III. § 1280. Pradier-Fodéré states that the Spanish-American republics all have adopted the principle that damages caused by factions give no ground for any indemnity whatever in favor of foreigners, the governments of the two parties not being obliged to accord to foreigners a larger measure of protection than is given by their laws to citizens, either as to their persons or their goods. He states that the same principle has been introduced into their conventional law, and cites article 30 of the treaty between Peru and the Argentine Republic of March 9, 1874, that, "as a consequence of the established principle of equality, in virtue of which the citizens of each of the high contracting parties shall enjoy in the territory of the other the same rights as nationals, the damages caused by factions or by individuals, and in general by accidents of any nature whatsoever, will not give rise to any right of special indemnity, the governments of the two republics being obliged to accord to each others' nationals, only the same protection of person and property as is accorded by the laws to their own citizens." The same provision, says PradierFodéré, is found in article 28 of the treaty between Colombia and Peru of February 10, 1870; but it is added that diplomatic intervention may take place when the protection due to foreigners shall not have been given, either because their claims have not been examined, or because they were rejected with manifest injustice; and besides that, diplomatic intervention shall be admissible only when all legal remedies shall have failed. He states that article 10 of the treaty between Peru and Bolivia of November 5, 1863, stipulates that the citizens of the contracting parties shall not claim indemnities "for casual accidents occurring without the fault of the constituted authorities." Continuing, Pradier-Fodéré says: "As to states in Europe, they have always invariably repelled in analogous cases the principle of indemnity and diplomatic intervention, although they have sought to impose it on the republics of South America when they could do so. Different states have, it is true, at times seemed to admit the system of pecuniary aids in favor of the victims of internal troubles and of civil wars, but in taking this step they have generally declared that they intended to perform an act of spontaneous liberality and not to place themselves under any obligation, and that the sums given by them were accorded only on the ground of personal assistance, on the ground of misfortune and not of the right of the person, and not on the ground of indemnity. 'If the state is not subject to any legal obligation,' it is declared in the preamble of the French decree of December 24, 1851, it is conformable to the rules of equity and of sound policy to repair unmerited misfortunes and efface, as far as possible, the reminders of our civil discords.' "To sum up, the generally admitted rule, according to which in principle states need not indemnify foreigners for losses suffered during a civil war, rests on the following very serious conditions: Foreigners who settle in a country to carry on their business, submit themselves by that act to the same laws and to the same tribunals as citizens of the country, and the government can not be held responsible towards them for the consequences of an outbreak or of a civil war, without making such responsibility an unjustifiable inequality between foreigners and nationals. Every sovereign state has the right indeed to compel respect for the order established in its territory, even by the employment of arms, and it does not rest, in respect of damages which result from resorting to force, under obligations more extensive as to foreigners than as to its own nationals. To demand this would be to do injury to the territorial jurisdiction of a sovereign state; it would introduce into international relations a privilege favorable to strong states, injurious to weak states. "These considerations apply, however, only to states which are capable of fulfilling their international obligations. When, on the contrary, the state which is engaged in civil war no longer offers a guarantee of power capable of making itself obeyed, when the circumstances of the contest and the loosening of passions render impossible the performance of the duty of protection towards foreigners, when the latter are menaced with becoming the victims of the violence of an excited populace, respect for the right of sovereignty and jurisdiction ought not to prevent foreign states from caring for the safety of their citizens. The state whose subjects inhabit the territory where civil war prevails is under an obligation to protect its citizens abroad, and the dangers to which they are exposed in consequence of revolution and of civil war increase those obligations instead of diminishing them. So long as it may hope for and obtain from the state which is involved in civil war or in revolution an efficacious protection, it contents itself with diplomatic measures; when those measures become insufficient it takes such measures as may be necessary itself to protect its nationals; it masses troops on the frontier and sends its fleets to cruise along the coasts, in order to punish infractions of the law of nations or to gather up its subjects in case of need. The state which is involved in civil war is bound to permit this protection and cannot see in it an act of war, if it is incapable of discharging itself the duties of protection towards foreign subjects." Pradier-Fodéré, Traité de Droit International Public, I. 343, § 205; citing As to the intervention of the French admiral, Baudin, in the insurrection "Let us suppose that a country is agitated by revolution and by civil war, and that the government, in order to repress the disorder, employs the means of repression requisite to safeguard the interests of the state and which are not absolutely forbidden by international law. If by this act foreigners suffer an injury, the government cannot be declared responsible, nor be held to make indemnity for the damages suffered by them. If a government neglected to do everything necessary to protect the property and goods of foreigners, and if it did not endeavor to repress the violence and offences of its citizens, it would be bound to answer for the consequences of its culpable negligence; but if the injury resulted from force majeure, there would exist no legal responsibility. The action of a government could not be paralyzed by the necessity of protecting the rights of foreigners.' Fiore, Droit Int. Public, Paris (1885), C. Antoine's translation, I. § 675. "When a government is temporarily unable to control the acts of private persons within its dominions owing to insurrection or civil commotion it is not responsible for injury which may be received by foreign subjects in their person or property in the course of the struggle, either through the measures which it may be obliged to take for the recovery of its authority, or through acts done by the part of the population which has broken loose from control. When strangers enter a state they must be prepared for the risks of intestine war, because the occurrence is one over which from the nature of the case the government can have no control; and they cannot demand compensation for losses or injuries received, both because, unless it can be shown that a state is not reasonably well ordered, it is not bound to do more for foreigners than for its own subjects, and no government compensates its subjects for losses or injuries suffered in the course of civil commotions, and because the highest interests of the state are too deeply involved in the avoidance of such commotions to allow the supposition to be entertained that they |