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The federal government must content itself with a courteous request upon the governor of the state to secure punishment of the guilty, or to make appropriate amends. The offense being considered as one against state law, there is no legal power to bring the offenders to justice in the federal courts. The United States, on its own part, can show a consistent effort to bring about punishment, and on this ground has sometimes denied its liability for the injuries. Indemnities have been paid in such cases without the admission of legal liability. The inability through constitutional defects to enforce treaty rights of aliens is not, however, a sufficient answer to an assertion of international liability for violation of aliens' treaty rights, and where state officials are delinquent, either in preventing the riot or punishing the rioters, and decline to pay indemnities to the victims, the federal government must, by reason of the very defectiveness of its internal machinery, undertake this international liability. The recommendations of Presidents Harrison, McKinley, Roosevelt and Taft to bring within the jurisdiction of the federal courts offenses against the treaty rights of aliens, have not resulted in remedial legislation. The United States, moreover, has resisted the attempts of foreign governments to plead constitutional defenses as a bar to international obligations.?

§ 92. Statutory Compensation by Municipalities.

By the municipal law of some jurisdictions, cities and counties are

1 Senate Rep. 392, 54th Cong., 1st sess., to accompany S. 1580. Several bills have been introduced to bring about this result. For President Harrison's recommendation see message of 1891, For. Rel., 1891, vi; for President McKinley's recommendations, see messages of 1899 and 1900, For. Rel., 1899, xxiii, 1900, xxii; for President Roosevelt's, see For. Rel., 1906, xliii. See also 3 Op. Atty. Gen. 253. The federal government, as is the case in Switzerland (Constitution, art. 82, 112, 113), should have the exclusive right to legislate concerning aliens, just as it has the power to conclude treaties. It should at least have the power to prevent states from discriminating between aliens of different nationalities. Burr, Treaty-making power, 1912, p. 377 et seq. This constitutional conflict in the United States has on several occasions led to diplomatic difficulties with foreign governments. See Resolutions of the Institute of Int. Law, Sept. 10, 1900, Paragraph 4; 18 Annuaire, 255; Speech of Senator Edmunds, June 3, 1886, Cong. Record, v. 17, part 5, p. 5186; and a good discussion by Robert Lansing in 1908 Proceedings of the Amer. Soc. of Int. Law, v. 2, pp. 44-60. See also supra, p. 202, note 1.

2 Smyth case in Brazil, 1875, Moore's Dig. VI, 815.

compelled to indemnify the victims of mob violence. A law of 1795 to this effect in France, and another in Belgium, is still in force and has been invoked on many occasions.1 A similar system prevails in some of the states of Germany and in Austria. Several states of this country have enacted statutes making cities and counties liable for injuries inflicted upon private property and individuals by mobs.2 The theory underlying these statutes is that in a well-ordered community the citizens should prevent such injuries, and that the innocent victims of such a disaster should not alone bear a loss, which should be distributed among the members of the community at large. The theory is closely related to that justifying workmen's compensation, indemnity for errors of criminal justice, and social insurance generally.

The Institute of International Law considered that independently of the right of aliens to indemnity by municipal law, they have the right to compensation when injured in person or property during mob

1 The French decree of 1795 (10 vendémiaire an IV), which also applied to Belgium, has been somewhat amended by the law of April 5, 1884, arts. 106-109 and by the recent amending law of April 16, 1914 which governs the distribution of liability between state and commune. See 31 Rev. du. Dr. Pub. (1914), 445-448. The original French law is set out briefly in Calvo, III, § 1291. The law of 1884 imputes liability to the commune whether citizens or aliens caused the damage, whereas the law of 1795 excluded liability if caused by aliens. By both laws (§ 108 of the law of 1884) the commune is released from liability if it can prove that all measures within its power were taken to prevent the riot. The statute applies alike to aliens and to nationals, 24 Clunet (1897), 786. See De Groote, H., De la responsabilité des communes en cas d'émeute et de grève, Paris, 1906; Duvivier, Paul, Etude sur le décret du 10. vendémiaire an IV, Bruxelles, 1904. See also supra, p. 141 and works by Poissonier and Beaudouin, cited in note 2; G. de Leval in 24th Rep. of the Int. Law Asso. (1907), 207. See also 23 Journal du Dr. Administratif (1875), 526.

Statutes making communities liable for depredations committed by lawless persons have long existed in England. Ratcliffe v. Eden, 2 Cowp. 485; see also 4 Law Mag. and Rev. (1875), 552–562.

2 Statutes to this effect, varying in detail, have been enacted in the following states: California, Illinois, Kansas, Maine, New Hampshire, New York, Pennsylvania. Dillon, Municipal corporations, 5th ed., IV, §§ 1637-1638.

The constitutionality of these statutes has been upheld by the Supreme Court in Louisiana v. New Orleans, 109 U. S. 285; see also Pennsylvania Co. v. Chicago, 81 Fed. 317, and the extensive note in 6 Amer. & Eng. Ann. Cases, 268. It is, under most of the statutes, immaterial whether defendant could or ought to have prevented the destruction of plaintiff's property.

3 See Darlington v. New York, 31 N. Y. 164.

violence where the fury of the mob is directed against aliens as such or as subjects of a certain state.1 This was considered by Prof. von Bar as an acknowledgment of the principle that the state does not guarantee aliens any greater security than nationals. When the injured person has provoked the violence against himself, the obligation of the state ceases.3

2

The fact that indemnities are so frequently paid in mob violence cases has led some writers to conclude that the distinction between equitable compensation and indemnity for legal fault is specious only, and that the mere happening of the event entails liability. It is not advisable, however, to eradicate the distinction or to impose upon the government a presumption of absolute guaranty for the security of aliens, notwithstanding the fact that in most of the cases, equitable considerations, if not law, dictate the justice of indemnity.

CIVIL WAR INJURIES

§ 93. General Principles and Theory.

The principles governing the responsibility of the state for injuries sustained by aliens during civil war bear close relation to those governing its responsibility in the case of mob violence, but embrace so many distinctively characteristic features that the subject warrants separate treatment. It is not without many difficulties. These arise principally from the fact that the practice of states has varied greatly in the application of such rules as may be considered to govern the subject.

The question of terminology need not detain us long. Publicists have distinguished between sedition, insurrection and civil war; but for present purposes these may be regarded as different degrees of a political uprising of part of a civilized society against the lawfully constituted authorities.1

1 18 Annuaire, 254–256. This excludes the theory of fault of the government, and there is much to be said in its support. Goebel in 8 A. J. I. L. (1914), 812.

218 Annuaire, 237.

3 18 Annuaire, 255, paragraph 3. The complete resolutions of the Institute of Sept. 10, 1900 on this subject are reprinted in Oppenheim, I, 224–225.

The distinctions are discussed in some detail in Lawrence's Wheaton, pp. 522–523, note 171.

Different theories have prevailed as to the liability of the state for injuries sustained by aliens in civil war. One doctrine, supported by Brusa, Bar and other distinguished publicists, holds that the state is responsible on principle for all such damage sustained by aliens.1 This doctrine of responsibility, briefly, is based on one of several theories: (1) the fault of the state in permitting a revolution to arise; 2 (2) the theory of expropriation,3 according to which the state at the sacrifice of individual property derives a public benefit from the suppression of a revolution; (3) the theory of risk, according to which the state assumes the risk of maintaining order, or, in other words, the state becomes a guarantor of safety; or (4) the theory of social insurance,5 by which the state fulfills its highest mission in preserving its integrity and should compensate those individuals who suffer accidental sacrifices in the attainment of this end."

4

These theories, however interesting, have all been abandoned and the doctrine which has now received general support is that on principle the state is not responsible for the injuries sustained by aliens at the hands of insurgents in civil war unless there is proven fault or a want of due diligence on the part of the authorities in preventing the injury or in suppressing the revolution."

1 Brusa in 17 Annuaire, 132; Von Bar in 31 R. D. I. (1899), 464–481. The various theories were fully discussed by the Institute of International Law. 17 Annuaire, 96-137, 18 Annuaire, 47-49, 233-256, 20 Annuaire, 312-319. See also Daniel Antokoletz in 28 Rev. de Derecho Hist. y Let. (1907), 307-332; and Rougier, A., Les guerres civiles et le droit des gens, Paris, 1903, 466 et seq.

2 Wiesse, Le droit international appliqué aux guerres civiles, Lausanne, 1898, 52. Brusa in 17 Annuaire, 135.

Fauchille, 18 Annuaire, 233 et seq.

517 Annuaire, 96. This theory, although criticized by Brusa, bears an intimate relation to his own theory of expropriation.

Brusa also criticizes the doctrine of non-liability based on the theory of force majeure on the ground that the element of will enters into civil war. He also criticizes the theory of fault, which he considers too difficult to prove in the case of the state.

7 This doctrine is supported by the overwhelming weight of authority, on the part of writers, of arbitral commissions, and of foreign offices. See Hall, 219; Oppenheim, 223; Bonfils, 6th ed., 195; Fiore, Nouveau dr. int., § 675; Pradier-Fodéré, §§ 204, 205, 1224; Despagnet, 4th ed., § 333, p. 471; Bluntschli, § 380 bis; Calvo, §§ 1280 et seq. Calvo's frequently quoted illustration of the British demands for injuries sustained in the disturbances at Tuscany and Naples, in 1849, is based on a

This doctrine is predicated on the assumption that the government is reasonably well ordered,1 and that revolution and disorder are abnormal conditions. "Where a state has fallen into anarchy, or the misconception of the facts. See Moore's Dig. VI, 978. See also Calvo in 1 R. D. I. (1869), 417; Anzilotti in 13 R. G. D. I. P. (1906), 305, and the following special works: Wiesse, op. cit., 42 et seq.; Rougier, op. cit., 448 et seq.; Sadoul, Paul, De la guerre civile en droit des gens, Nancy, 1905, 177 et seq.; Breton, Responsabilité des états en matière de guerre civile touchant les dommages causés à des ressortissants étrangers, Nancy, 1906. El extranjers en la guerra civil, by Luis A. Podesta Costa, 42 Rev. de derecho hist. y let. (1912), 356-387, 500-524; 43 ibid. 238-242, published also in book form, Buenos Aires, 1913; Non-liability of states for damages suffered by foreigners in the course of a riot, an insurrection, or a civil war by H. Arias in 7 A. J. I. L. (1913), 724-766, and an article on the same subject by Julius Goebel, Jr., in 8 A. J. I. L. (1914), 802, 813-852; Pennetti, V., Responsabilità internazionale in caso di revolte o di guerre civile, Napoli, 1899, 24 p.

The very few writers who support the contrary doctrine of state responsibility qualify their rule considerably. Bar, in 31 R. D. I. (1899), 464; Brusa in 17 Annuaire, 96; Rivier, II, 43.

The general rule has been almost uniformly applied by international commissions, unless by the protocol their jurisdiction was specially limited. See the following decisions in support of the general rule: Prats (Mex.) v. U. S., July 4, 1868, Moore's Arb. 2886–2900 (an exhaustive discussion of principles), and other cases cited on page 2900; Pope (U. S.) v. Mexico, Mar. 3, 1849, ibid. 2972; Schultz (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2973; Cummings (ibid. 2977, opinion by Thornton; Wadsworth, American commissioner, considered Mexico liable for the failure to use reasonable efforts to suppress the disorders); Wyman (ibid. 2978); Silva (ibid. 2979); Divine (ibid. 2980); McGrady (U. S.) v. Spain, Feb. 12, 1871, ibid. 2981; Zaldivar (ibid. 2982); Hanna (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2982-2987; Laurie (ibid. 2987); Stewart (ibid. 2989); Puerto Cabello Railway (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 458; Aroa Mines (Gt. Brit.) v. Venezuela, ibid. 381-2; Crossman (Gt. Brit.) v. Venezuela, ibid. 298; Bolivar Ry. (Gt. Brit.) v. Venezuela, ibid. 388; Cobham (Gt. Brit.) v. Venezuela, ibid. 409; Van Dissel (Germany) v. Venezuela, Feb. 13, 1903, ibid. 565; Sambiaggio (Italy) v. Venezuela, ibid. 680; Guastini (Italy) v. Venezuela, ibid. 730; Revesno et al. (Italy) v. Venezuela, ibid. 753; Guerrieri (Italy) v. Venezuela, ibid. 753; De Caro (Italy) v. Venezuela, ibid. 810; Henriquez (Netherlands) v. Venezuela, Feb. 28, 1903, ibid. 899; Salas (Netherlands) v. Venezuela, ibid. 903. See cases collected in Ralston's International arbitral law, p. 233 et seq. Ralston, umpire in the Sambiaggio case, and Plumley, umpire in the Aroa Mines and Henriquez cases, supra, entered into extensive and illuminating discussions of the subject. See also Strong, arbitrator in Gelbtrunk (U. S.) v. Salvador, For. Rel. 1902, 876. The principle was upheld by the Anglo-Chilean Tribunal of 1894 (For. Rel. 1896, 35), and by the Spanish Treaty Claims Commission, Final Report, Sen. Doc. 550, 61st Cong., 2nd sess., pp. 4, 7. This last commission examined the question exhaustively, and many learned briefs were submitted. See particularly, 1 Hall, p. 219.

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