competence or reliability of the counsel employed, nor for the financial responsibility of the employing client.

§ 168. The Backward Countries of Near and Far East.

In the case of semi-civilized or backward countries, as will be more fully observed hereafter, a greater degree of international responsibility is imposed upon the local government than in countries of normal development. For example, injuries to the person or property of American citizens in China lead to a demand for indemnity whether an official or individual was the actual wrongdoer, China being held liable practically as a guarantor of the security of foreigners. The weaker the control of the police, or the local safeguards for the protection of foreigners and the proper administration of justice, the greater and more rigorous becomes the diplomatic protection exerted by, foreign governments and the harsher the demand for prompt satisfaction for violation of the rights of person or property of an alien. Thus, for the killing of American citizens in China, Turkey or Persia demands are made which would not be thought of in the case of a similar injury in a country of higher standards of civilized administration. Again, the majority of Latin-American countries are held by various countries of Europe to a higher degree of responsibility for injuries inflicted upon aliens than are countries like the United States or Canada. The demand in case of personal violence to an alien takes various forms, as has been observed in the study of the international responsibility of the state. Besides a claim for pecuniary indemnity, the demand may include the dismissal of delinquent police, the punishment of guilty offenders, and the institution of measures considered adequate or likely to prevent a recurrence of the offense. In the Labaree claim against Persia, the demand of the United States for indemnity was joined to a condition that "the amount of the indemnity should not be recovered by special tax, or by other device or pretext exacted from the innocent inhabitants of the province." Only upon a backward country could such a condition be imposed.

1

1 For. Rel., 1905, 722, 723. See also For. Rel., 1904-1907, under Persia. See peculiarly onerous conditions imposed on China for murder of a Chinese hospital student in 1898, For. Rel., 1898, 191–200.

$169. Miscellaneous Cases.

In the case of ordinary contract claims, as has been observed,1 the government's interposition is usually confined to the use of good offices in behalf of American citizens. The circumstances under which more vigorous measures may be undertaken have been fully set forth in the study of contractual claims.

The Act of July 27, 1868 2 declared it to be the duty of the President, in case an American citizen is unjustly deprived of his liberty by the authority of a foreign government, to demand the reasons for such imprisonment, but prohibited his use of the military or naval power of the government to obtain his release. The extent to which the Department has exerted its power in behalf of American citizens imprisoned abroad will be considered presently.

The Act of 1868 also provided that naturalized citizens are entitled to equal protection abroad with native citizens. The title of naturalized citizens abroad to claim American protection is, however, largely affected by treaties and by the Act of March 2, 1907. It seems desirable to postpone for the present the study of the protection accorded to naturalized citizens.3

Under the guano acts, American citizens who discover guano are protected in the prosecution of their enterprise, which extends, however, only to the appropriation and removal of the guano.1

§ 170. Criminal Proceedings Abroad.

In cases of judicial proceedings against a citizen held under criminal charges the government, in countries where civilized justice is administered, usually confines itself to securing for the accused the guarantees of local law and the equality of treatment with natives which is generally provided for by treaty. Among other matters, the diplomatic or consular officer is instructed to see to it that accused persons are apprized of the specific offense with which they are charged, and for this

1 Supra, §§ 112, 113.

215 Stat. L. 223; For. Rel., 1873, II, 1189.

See infra, §§ 231 et seq.

4 R. S., § 5570.

purpose the officer may seek the desired information from the local Ministry of Foreign Affairs.1

When citizens are arrested on shipboard in foreign ports, American consular officers have no authority to approve or disapprove the proceeding. But in Latin-American countries a custom appears to have grown up not to cause an arrest on shipboard without first obtaining the consent of the minister or consul, and if this consent is refused, the arrest is rarely made. Where an arrest is about to be made in an arbitrary manner, not in accordance with proper action under legal process, the appropriate diplomatic or consular officer is instructed to protest with a vigor commensurate with the threatened unnecessary danger to life or property, and to report the matter to his government. Torture inflicted by an officer of justice upon an American citizen arrested on suspicion, to extort from him a confession of guilt, gave rise, in a case in Venezuela, to a demand for indemnity.2

3

The government may protest against an unduly protracted imprisonment, and request an early trial for its citizen. It may ask for his release on bail, where the cause of justice is thereby equally subserved, and may, if the quarters in which he is detained are unsanitary, request his removal to more comfortable quarters. This has occasionally been done in some of the countries of Latin-America. At the trial, notwithstanding frequent differences in criminal procedure from country to country, the government may demand that its accused citizen be confronted with the witnesses against him, and that he have the right to be heard in his own defense, personally or by counsel,-in other words, that he have a fair and impartial trial with the presumption of innocence surrounding him until his guilt is established by competent and sufficient evidence, and that the law be applied to him in a just and equitable manner. To assure the fairness of the trial, the government may send a consular or other representative to watch the proceedings. If the trial has been unjust, the government may demand a

4

1 Cases in Venezuela, 90 St. Pap. 340, For. Rel., 1898, 1137 et seq. The Venezuelan Executive Decree of Nov. 13, 1912, art. 1, provides for giving such information. 8 A. J. I. L. (1914), Suppl. 175.

4 Cases in China, 71 St. Pap. 950, Baty, op. cit., 175. Austria-Hungary sent an

suspension of sentence, or if an unjust conviction was obtained, a suspension of execution. In the cases of certain sentences imposed upon American citizens by a court-martial in Cuba, the United States believed the sentences to have been unjust, and for the purpose of enabling it to arrive at a conclusion in the matter, asked the Spanish government for the record of the proceedings of the court, the charges and the evidence, and for information as to the opportunity defendants had to defend themselves by counsel of their own choice, and by examination and summoning of witnesses. In the meantime, a suspension of execution was demanded.1 The government will also in appropriate cases insist that no cruel or unusual punishment be inflicted upon a convicted citizen. On several occasions, the Department of State has authorized the employment of the good offices of its diplomatic representative abroad in an endeavor to obtain executive clemency on behalf of a convicted American citizen.2 A petition for a pardon is not, however, officially presented.

When the rights of an American citizen in connection with criminal proceedings have been infringed, the government may present a claim for a denial of justice. The extent of the reparation demanded naturally varies with the gravity of the offense and the extent of the injury. It may involve, besides a claim for pecuniary indemnity, a request for the removal and punishment of the guilty officer, and other forms of retribution designed to serve as a warning and to prevent a recurrence of the offense.

171. Financial Relief.

The government is frequently called upon to provide financial relief or transportation to the United States to destitute or insane American citizens abroad. Except in the case of destitute seamen, however, "there is no general appropriation or authority for the relief by a diplomatic representative of a distressed citizen of the United States or attorney to watch the trial of an American sheriff, charged with complicity in causing the killing of certain Austrian subjects in the Latimer riot cases. For. Rel., 1898, 111 et seq.

1 Competitor case in Cuba, 1896, For. Rel., 1896, 711-746. See also Mr. Frelinghuysen, Sec'y of State, to Mr. Lowell, Dec. 11, 1883, For. Rel., 1883, 479.

2 Moore's Dig. VI, § 921.

for furnishing him transportation home." 1 Various governments of Europe make provision for the relief by consular officers of their indigent citizens abroad, and in 1873, President Grant urged Congress, without success, to grant authority for the extension of the same assistance to American citizens abroad.2 The United States adopts the policy of taking care of indigent aliens 3 as of indigent natives, although this is a matter within the jurisdiction of the states of the Union. The federal government, therefore, makes the same response to requests by state officials to secure the return to their native countries of aliens who have become public charges as it does to requests by foreign countries to provide for bringing back to this country destitute American citizens abroad, namely, that as there are no government funds available for bringing home destitute or insane American citizens, the United States cannot ask foreign governments to assume the expense of returning their indigent nationals in this country to their original homes. The government, however, always endeavors to communicate the needs of indigent American citizens abroad to their relatives or friends in this country, with a view to securing relief for the sufferers.

The United States cannot insist that a foreign government continue to support an indigent American citizen for any length of time, nor can it raise any objection to his being deported at the expense of the foreign government. Similarly, state officials and institutions cannot be compelled to harbor an alien who has become a public charge. The states will generally comply with the duties of humanity, but cannot be prevented from ridding themselves, at their own expense, of undesirable aliens who have become permanent public charges, by sending them to their original homes abroad. The obligation of repatriation, possibly the strongest right and duty incident to nationality, requires the state to receive its own citizen. Some foreign countries, e. g.,

1 Instructions to the diplomatic officers of the U. S., 1897, § 175. For the provisions for the relief of destitute seamen and their transportation home, see Consular Regulations, 1896, arts. xv and xvi.

2 Annual message of Dec. 2, 1873, Richardson's messages, vii, 191.

'Moore's Dig. III, § 486. An exception is, of course, to be noted in the case of aliens who become public charges within three years after their admission. Such aliens may lawfully be deported. Section 20 of the Immigration Act of 1907, Bouvé, op. cit., 699.