the weaker states have occasionally undertaken-or been compelled to undertake the "special protection" of nationals of certain countries, which has been construed as analogous to a quasi-guaranty of the security of aliens.1

Where the offense is committed against the representative of a foreign state, either the head of the state, a public minister, or even a consul, all of whom enjoy a certain special protection, the government has on occasion been held immediately liable for the wrongful acts of private persons.2

It may be said that governments occasionally as a matter of policy and equity cause reparation to be made for the injuries committed by their subjects upon aliens. This is especially true in the case of riots directed against particular classes of aliens, for which acts of violence the United States has on numerous occasions granted indemnities as a matter of grace, while denying legal liability.

Arbitrage international, 176, 177; Lieut. Cooper claim (Gt. Brit.) v. Turkey, 1888, 81 St. Pap. 178; Caldera (U. S.) v. China, Nov. 8, 1858, Moore's Arb. 4629; Hubbell v. U. S., 15 Ct. Cl. 546 (based principally on treaty obligation); Russia v. Turkey, 1826 (Turkey held liable for depredations of Moorish pirates), 13 St. Pap. 899, 16 St. Pap. 647, 657. Five cases of British subjects injured in Greece, about 1850, by acts of individuals, Baty, 116-118; Marcos v. Morocco, 1900, 28 Clunet (1901), 205. Murder of Italian soldier in Crete, 1906, 1 A. J. I. L. (1907), 158; 13 R. G. D. I. P. (1906), 223; Montijo (U. S.) v. Colombia, Aug. 17, 1874, Moore's Arb. 1421 et seq. (absence of power considered equivalent to omission to use it). Turkey and Morocco held responsible for acts of pirates from their shores on three occasions, 12 R. G. D. I. P. (1905), 563-565. "Insufficiency of the protective measures afforded," an alleged ground of liability in certain cases in Turkey, For. Rel., 1897, p. 592.

1 Panama riot claims, treaty of 1846 with New Granada, Moore's Arb. 1361. Treaty of 1831 with Mexico, Baldwin (U. S.) v. Mexico, April 11, 1839, ibid. 2859, 2863; Montijo (U. S.) v. Colombia, Aug. 17, 1874, ibid. 1421, 1444; Lawrence's Wheaton, note 59.

2 Attacks on German consulate in Havre, 1888, in Messina, 1888 and in Warsaw, 1901, 16 Clunet (1889), 250. French and German consuls murdered in Salonica, 1876, 67 St. Pap. 917; Moore's Dig. V, § 704, discusses cases in Venezuela, Peru, Nicaragua, Santo Domingo and U. S. See the following authorities: Vattel, Chitty's ed., Bk. IV, ch. VI, § 75, p. 460; Phillimore, II, § 246, p. 263; Pradier-Fodéré, IV, § 2108. For. Rel., 1901, 534. See also infra, p. 223.

But see case of Servian Vice-consul assassinated in Turkey, 1890, Baty, 224 and Wipperman (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3041, which were not taken out of the general rule of non-liability.

1 Op. Atty. Gen. 106, March 11, 1802.

§ 87. Factors Imposing Liability upon the Government.

A long line of cases has established certain qualifications upon the non-liability of the government for the wrongful acts of private individuals. These consist in certain manifestations of the actual or implied complicity of the government in the act, before or after it, either by directly ratifying or approving it, or by an implied, tacit or constructive approval in the negligent failure to prevent the injury, or to investigate the case, or to punish the guilty individual, or to enable the victim to pursue his civil remedies against the offender.1 The claimant ordinarily has the burden of proving the negligence of the government.2

The direct ratification or authorization of a private wrongful act is an infrequent occurrence, yet several awards have been made on this ground.3

4

The failure of a government to use due diligence to prevent a private injury is a well-recognized ground of international responsibility. The state is thus responsible for every injury which by the exercise of reasonable care it could have averted. What is "due diligence" in a given

1 See particularly the cases of Mills, Dickens and Wipperman cited in footnote 3, page 215.

2 Mills and Dickens cases, cited supra.

3 Wrongful seizures sanctioned by French civil, military or judicial authorities, Kane's notes on questions . . . under convention with France, July 4, 1831, Phila., 1836, p. 31. Authorization or ratification of private acts generally has a political reason, but while it usually releases the individual from liability, it imposes liability on the state. McCord v. Peru, Moore's Dig. VI, 989. See McLeod's case, Hall, 306; Moore's Dig. II, 24, 409; VI, 261. Piedras Negras claims (Mexico) v. U. S., July 4, 1868, Moore's Arb. 3035 (U. S. protected certain raiders into Mexico by its regular army).

Grotius, liv. II, ch. 17; Hubbell et al. v. U. S., 15 Ct. Cl. 546 (Chinese Indemnity); The case of the Alabama, in which Great Britain was held liable for failing to prevent individuals from violating British neutrality, Moore's Dig. VI, 999; Evertsz (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 904 (government negligently left military prisoners without means of sustenance, and was therefore held liable for cattle they appropriated). 49 Law Times, 84. Mr. Bayard to Mr. Scruggs, May 19, 1885, For. Rel. 1885, 212; Baldwin case in Mexico, 1887 (murder by well-known outlaws); Caccavelli claim (France) v. Dominican Rep., For. Rel. 1895, I, 398, 400. Mr. Frelinghuysen, Sec'y of State, to Mr. Matthews, Jan. 16, 1883, Moore's Dig. VI, 792; Calvo, § 1274.

By reason of its territorial jurisdiction, the state is in equal measure responsible for the acts of resident aliens as of its nationals. 2 Wharton, § 205.

case is often difficult to determine. Hall protests vigorously against the doctrine advanced by the United States and supported apparently by the tribunal of arbitration in the Alabama case, that the "diligence" required must be "commensurate with the emergency or with the magnitude of the results of negligence." 1

4

A more frequent basis of governmental liability is the failure, after reasonable opportunity, to bring the offenders to justice.2 Incidental to this ground of liability is the inadequate punishment of guilty individuals,3 negligently permitting them to escape, or an inexcusable delay in investigating the facts.5 Closely related to these reasons for responsibility is a pardon or amnesty to offenders, by which the plaintiff is deprived of the right to try the question of liability, or the punishment of the guilty is avoided."

We have already adverted to the fact that on several occasions, confined almost exclusively to the weaker countries, the "due diligence” rule has been disregarded, governmental liability being predicated on the mere inability to prevent the act or bring the offenders to justice.7

1 Hall, 217.

2 De Brissot (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2868 (opinion of Mr. Little); ibid. 2969 (opinion of Mr. Findlay)—offender permitted to go at large. Poggioli (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 869; Renton claim v. Honduras, For. Rel. 1904, 363 (refusal to diligently prosecute and punish); Piedras Negras Claims (Mexico) v. U. S., July 4, 1868, Moore's Arb. 3035 (failure to punish); Same in Ruden (U.S.) v. Peru, Dec. 4, 1868, ibid. 1653, 1655; Labaree claim v. Persia, For. Rel. 1904, 657 et seq.; Maninot (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 44, 70.

Willful neglect to punish may be considered an implied sanction. E. W. Huffcut in 2 Annals, Amer. Acad. of Pol. and Soc. Science (1891), 69; Fiore, §§ 669–670. Sec'y Fish in 1875 held that there was no duty to punish in the absence of information as to the offenders (murderers); Moore's Dig. VI, 789.

3 Lenz claim v. Turkey, Mr. Hay to Mr. Straus, March 25, 1899, For. Rel., 1899, 766, and Moore's Dig. VI, 792-794; Renton claim v. Honduras, For. Rel. 1895, II, 890, 934; 1897, 347; 1904, 363, and Moore's Dig. VI, 794-799 (condemnation for minor offenses of persons guilty of murder).

4 Lenz case and Renton case (For. Rel., 1904, pp. 352, 362) cited in footnote, supra. 1 Ruden (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1653, 1655; Prince of Wales claim (Gt. Brit.) v. Brazil, 1862, 54 St. Pap. 614 et seq.

• Montijo (U. S.) v. Colombia, Aug. 17, 1874, Moore's Arb. 1421, 1444; Cotes

worth and Powell (Gt. Brit.) v. Colombia, Dec. 14, 1872, ibid. 2050, 2085.

As to the effect of amnesty on liability for the acts of rebels, see infra, p. 238. 7 Supra, p. 215.

In several cases it has been held that before the government can be rendered liable the individual must have given notice in time opportune to have prevented the injury, or have made a demand for punishment of the offenders,2 and prove a lack of reasonable diligence in preventing the injurious act or a refusal to bring the offenders to justice.3 These cases need not, however, be considered authoritative, inasmuch as, in practice, the government has often been held to show, particularly in cases of brigandage and acts of groups of individuals, that it has used due diligence to prevent the act or to punish the offenders, notice on the part of the victim serving simply to lay a stronger foundation for governmental liability.

The denial to the party aggrieved of a right of action against the offender or a denial of aid in the prosecution of the claimant's rights may be construed as an adoption of the act by the government, entailing the responsibility of the state. It is in effect a denial of justice. A pardon or amnesty to offenders depriving claimants of the right to try the question of liability or to secure the punishment of the guilty, has a similar effect. 5

§ 88. Brigandage.

The liability of the state for acts of brigandage brings up practically the same questions as those which have just been discussed. In the absence of proof that the government has neglected to take proper steps to suppress brigandage or punish the guilty, the state is not liable.6

1 Post (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2998; Garza (U. S.) v. Mexico, ibid. 3038.

2 Dickens (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3037; Poggioli (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 869.

3 Wipperman (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3039, 3041; Dickens (U. S.) v. Mexico, July 4, 1868, ibid. 3037.

4 Kane's notes on the treaty with France of July 4, 1831, pp. 31, 32; Poggioli (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 847, 869; Johnson (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1656-1657.

5 Supra, p. 218, note 6.

Moore's Dig. VI, 800-809; Case of Miss Ellen Stone in Turkey, For. Rel., 1902, 997-1023; 27 Law Mag. and Rev. (1901), 337; Richter's case in Turkey, 39 Clunet (1912), 998; Dambitsch in Deutsche Juristen-Zeitung, 1911, col. 1208-1210; Capture and murder of British subjects in Greece, 65 St. Pap. 667-723; Synge and Suter cases in Turkey, 1881, 72 St. Pap. 1167.

Question has often arisen as to the liability of the defendant states for ransoms demanded by and paid to brigands by claimants or their governments. The claimant state (i. e., the national state of the victim) has only in rare cases, as a matter of humanity, advanced the price of a ransom for payment to brigands. Reimbursement has on several occasions been demanded of the defendant state or else that state has been asked to make a direct payment to the brigands. Only in rare instances have such demands been successful, and then only because actual or implied complicity or negligence of the state was asserted or admitted.3

MOB VIOLENCE

§ 89. Obligations of the Government.

The principles governing the responsibility of the state for injuries sustained by aliens as a result of mob violence or riot are closely related to those governing its responsibility for injuries committed by individuals. In all parts of the world it occasionally happens that mobs in sudden outbreaks of passion sweep away all restraint and vent their fury upon aliens. These contingencies arise in well-ordered as well as in unstable governments, and the ordinary precautions against disorder often prove insufficient to avoid them. In such cases, if the authorities have used due diligence to prevent or repress the riot and punish those who may be concerned in it, the government is relieved from legal liability, unless it is under special obligations to render pro

1In 1881, after the Synge and Suter cases, when ransoms were paid by Great Britain for the release of these subjects by brigands, that government decided not to advance money in future for such purposes. 72 St. Pap. 1167 et seq. In 1907, however, the British government demanded a large sum from Turkey on account of the ransom paid for the release of Mr. Robert Abbott. The fact that he was kidnapped from his house in the heart of a large city, puts this case on different grounds than the usual case of brigandage. Several bills have been introduced in Congress to reimburse those persons who subscribed to the ransom which secured the release of Miss Ellen Stone. See infra, p. 413.

2 Great Britain v. Turkey, 1881, 72 St. Pap. 1167; Great Britain v. Greece, 65 St. Pap. 667-723.

Turkey and Greece in cases cited in note 2, supra. On principle, the defendant government is not liable for ransoms paid to criminals on behalf of victims of their acts. See cases cited in 27 Law Mag. and Rev. (1901), 337.