The early publicists seem to have justified reprisals by a government for default of obligations due its citizens on the part of another government. Grotius appears to have sanctioned reprisals for the collection of debts due to subjects from a foreign power, notwithstanding the fact that the claim to be thus satisfied had been submitted to the courts of the government in default and by them pronounced unfounded.1 Vattel similarly justified hostile action to enforce contracts concluded between a citizen and a foreign government. But Vattel admits that before the claimant nation proceeds to such extremities (reprisals) it must be able to show that it

"has ineffectually demanded justice, or at least that [the claimant] has every reason to think it would be vain . . . to demand it." 2

From that time on, the conviction has gained ground that an attempt to exhaust local justice must be shown before diplomatic pressure or hostile action is warranted. Modern writers generally agree that where the citizen has at his disposal the legal means of asserting his rights and obtaining reparation of his injury by judicial proceedings, the interposition of his government is unjustified, for

"to secure by diplomacy what the individual might secure judicially is to be deemed highly reprehensible." "

As will be noted, contractual claims are among the first causes of complaint now largely removed from the field of armed conflict, through the adoption by the Second Hague Conference and the general ratification of the convention for the limitation-better, postponement-of the use of force to recover contract debts.

Coming now to the practice of governments, it cannot be said that the countries of continental Europe make any substantial distinction between claims arising out of contract and those arising out of other acts. The United States, however, and at times Great Britain, have

1 Grotius, De jure belli ac pacis, 3, 2, 5; cf. 1, 5, 2 and 2, 25, 1.

2 Vattel, Law of nations (Chitty-Ingraham edition, Phila., 1855), Bk. II, ch. 18, §§ 343, 347, 354; ch. 14, §§ 214–216. See also Wheaton (Lawrence's edition, 1863), 510.

Fiore, P., Nouveau droit international public (Antoine's trans.), I, § 651. Martens, Traité de droit international, 446.

Germany, Italy and France have at times intervened diplomatically in favor of

limited their protection considerably in the case of ordinary contract claims. The fact that the citizen entered voluntarily into the contract seems to have been a determining factor in the policy of the United States not to interpose diplomatically in behalf of its citizens prejudiced through breach of a contract concluded by them with a foreign government. John Quincy Adams' declaration as Secretary of State has been quoted frequently by his successors in the Department of State. Adams' ruling was as follows:

"With regard to the contracts of an individual born in one country with the government of another, most especially when the individual contracting is domiciliated in the country with whose government he contracts, and formed the contract voluntarily, for his own private emolument and without the privity of the nation under whose protection he has been born, he has no claim whatsoever to call upon the government of his nativity to espouse his claim, this government having no right to compel that with which he voluntarily contracted to the performance of that contract." 1

Mr. Marcy in 1856 made the following apt statement of the rule of the Department of State:

"The government of the United States is not bound to interfere to secure the fulfillment of contracts made between their citizens and foreign governments, it being presumed that before entering into such contracts the disposition and ability of the foreign power to perform its obligations was examined, and the risk of failure taken into consideration." a

their subjects in cases arising out of contract, without any question as to the propriety of such action. Germany's and Italy's attitude was shown in the action against Venezuela in 1902, although claims, other than contractual, were included in the causes of complaint. See Dulon in 38 Amer. Law Rev. 650, and Brook in 30 Law Mag. & Rev. 165. See also case of Kronsberg, a German engineer, against Roumania in 1871, Tchernoff, Protection des nationaux à l'étranger, 188; Martens' Traité, I, 70. See the French action against the Dominican Republic, 1894, For. Rel., 1895, I, 235-243, 397-402.

John Quincy Adams, Secretary of State, to Mr. Salmon, April 29, 1823, Am. St. Pap., For. Rel., Vol. 5, 403, quoted in Wharton, II, 654, Moore's Dig. VI, 708, and notes there cited. See also the Landreau case, Sec'y of State Bayard to Mr. Cowie, June 15, 1885, Moore's Dig. VI, 715; and the Fiedler case, Mr. Bayard, Sec'y of State, to Mr. Jarvis, Mar. 22, 1886, Moore's Dig. VI, 715.

Mr. Marcy, Sec'y of State, to Mr. Fowler, July 17, 1856, Wharton, II, 655. To the effect that the government is not a collecting agency for claims for services rendered to foreign governments, see Seely's case (services as legal counsel), 6 Op. Atty. Gen.

$113. Use of Good Offices Authorized.

While diplomatic interposition or pressure is declined, the use of friendly good offices by the diplomatic representatives of the United States abroad is authorized. Secretary Fish expressed as follows the practice of the Department in this respect:

"Our long-settled policy and practice has been to decline the formal intervention of the government except in cases of wrong and injury to persons and property, such as the common law denominated torts and regards as inflicted by force, and not the results of voluntary engage

ments or contracts.

"In cases founded upon contract the practice of this government is to confine itself to allowing its minister to exert his friendly good offices in recommending the claim to the equitable consideration of the debtor without committing his own government to any ulterior proceedings." 1

What is meant by "good offices" and the extent to which they may be exerted has on several occasions been construed by secretaries of State. Mr. Fish defined the use of "good offices" as a direction to a diplomatic agent

"to investigate the subject, and if [he] shall find the facts as represented [he] will seek an interview with the minister for foreign affairs and request such explanations as it may be in his power to afford.” 2

Good offices are in the nature of unofficial personal recommendations and are not tendered officially, although apparently the government may authorize or direct a diplomatic representative to extend them. Perhaps the best statement of the practice of the United States in the matter of contract claims was made by Secretary Bayard in 1885:

"It is not necessary to remind you that an appeal by one sovereign on behalf of a subject to obtain from another sovereign the payment

386 (March 17, 1854). See also dictum in 108 U. S. 90. Contrary to an almost absolute rule, the Department of State allowed the claim of General Frederick Ward for military services rendered to China, out of the Boxer Indemnity, although various administrations had declined to press the claim (For. Rel., 1888, I, 199).

1 Mr. Fish, Sec'y of State, to Mr. Muller, May 16, 1871, Wharton, II, 656, Moore's Dig. VI, 710. See the long list of cases cited by Wharton, II, 655, and by Moore, VI, 705-707, in support of the rule that it is not usual for the Government of the United States to interfere, except by its good offices, for the prosecution of claims founded on contracts with foreign governments."

2 Mr. Fish, Sec'y of State, to Mr. Osborn, Mar. 4, 1876, Wharton, II, 658; Moore's Dig. VI, 711.

of a debt alleged to be due such subject is the exercise of a very delicate and peculiar prerogative, which, by principles definitely settled in this Department, is placed under the following limitations:

"1. All that our government undertakes, when the claim is merely contractual, is to interpose its good offices; in other words, to ask the attention of the foreign sovereign to the claim; and this is only done when the claim is one susceptible of strong and clear proof.

"2. If the sovereign appealed to denies the validity of the claim or refuses its payment, the matter drops, since it is not consistent with the dignity of the United States to press, after such a refusal or denial, a contractual claim for the repudiation of which there is by the law of nations no redress.

"3. When the alleged debtor sovereign declares that his courts are open to the pursuit of the claim, this by itself is a ground for a refusal to interpose. Since the establishment of the Court of Claims, for instance, the government of the United States remands all claims held abroad, as well as at home, to the action of that court, and declines to accept for its executive department cognizance of matters which by its own system it assigns to the judiciary.

"4. When this Department has been appealed to for diplomatic intervention of this class, and this intervention is refused, this refusal is regarded as final unless after-discovered evidence be presented which, under the ordinary rules applied by the courts in motions for a new trial, ought to change the result or unless fraud be shown in the concoction of the decision." 1

Even good offices will, however, be refused

"when the debt was of a speculative character, or when it was incurred to aid the debtor government to make war on a country with which the United States was at peace." 2

From this it may be inferred that the Department of State takes some official interest in the extension of good offices.

The United States will not promise protection in advance to secure the execution of a contract between a citizen and a foreign government. The American-China Development Company in entering upon contracts with China requested such advance protection and alleged that the English investors in their enterprise would receive such guaranty from the British Foreign Office. Secretary of State Day gave as the reason for his unwillingness to extend such a guaranty as the British 1 Mr. Bayard, Sec'y of State, to Mr. Bispham, June 24, 1885, Wharton, II, 656; Moore's Dig. VI, 716.

2 Mr. Seward, Sec'y of State, to Messrs. Leavitt & Co., May 6, 1868, Wharton, II, 656; Moore's Dig. VI, 710.

government was said to have extended, that the British Crown, exercising the executive power in Great Britain, possesses both the warmaking and the treaty-making power, and is therefore authorized, in international relations, to give guarantees and enter into engagements which the Executive of the United States would not alone be competent to assume.1

Secretary Marcy in 1855 gave a somewhat similar explanation for the unwillingness of the United States to interfere officially in a case of alleged breach by a foreign government of a contract with citizens of the United States.2 The possibility of Congress declining to support the action of the Executive does not, however, appear to have been as prominently in the minds of other secretaries of State in dealing with international claims. While the Department of State will rarely protest in advance against a proposed law of a foreign country interfering merely with contractual rights of American citizens, there have been occasions where such action was taken.3

The general belief that Great Britain does not in practice interfere in claims arising out of contract, is erroneously based upon the frequently quoted circular of Lord Palmerston, Secretary of State for Foreign Affairs, directed in 1848 to the British representatives in foreign states.4 Palmerston declared that while the government had the right to intervene, it was merely a question of discretion with the British government whether the pecuniary claims of subjects should be taken up or not by diplomatic negotiation, and "the decision of that question of discretion turns entirely upon British and domestic considerations.” 5 This language is broad enough, indeed, to cover any class of claim, but 1 Sec'y of State Day to Messrs. Cary & Whitridge, Aug. 24, 1898, in the case of the American-China Development Co., Moore's Dig. VI, 288.

2 Mr. Marcy, Sec'y of State, to Mr. Clay, Minister to Peru, May 24, 1855, Moore's Dig. VI, 709.

Mr. Webster, Sec'y of State, to Mr. Letcher, Aug. 24, 1850, protesting against any violation, by decree, of the Tehuantepec concession, adding that this would be regarded as a national grievance. Sen. Doc. 97, 32nd Cong., 1st sess.

4 The instruction in full is printed in Phillimore, 3rd ed., London, 1882, II, 9-11. In fact, Great Britain has often interposed to redress breaches of private contract. See, for example, the intervention in Bolivia in 1853, Lord Clarendon to Mr. Lloyd, 56 St. Pap. 1003, and the criticism of Great Britain's action by Baty, Int. law, 127. Great Britain freely extends good offices. See, for example, case of Dixon v. Portugal, 75 St. Pap. 1196.