to pay special taxes, for sojourn, for license to do business or for other reasons. If the taxes are reasonable and apply uniformly to all aliens, foreign governments recognize the legality of the practice. It may be justified as compensation for an escape from certain political burdens. A discrimination against the nationals of one or more countries alone would be an unfriendly act, and give rise to diplomatic or more forceful measures.

The matter of double taxation, while largely adjusted by statute or treaty, occasionally presents interesting problems. Thus, France taxes stocks and bonds in France, regardless of who owns them, whereas Switzerland taxes the income of residents from whatever source derived. Cases of double taxation are becoming less frequent, as municipal legislation recognizes the injustice of the practice.2 If the tax is exorbitant, so that it necessarily will result in driving aliens out of business, foreign governments will protest. A successful protest was rasied against the proposed enforcement of a Haitian law of 1876 which would have had this effect.3

§ 42. Criminal Proceedings.

It is a general principle of international law that every nation,

which Belgian and Swiss companies were in a more favorable position than others. The United States answered a British protest by referring the British companies to the courts if they considered a treaty to have been violated, but declined to conclude a treaty by which the freedom of state legislation might be hampered. For. Rel., 1899, 345-348. See also H. T. Kingsbury in 1911 Proceeding of the Amer. Soc. of Int. Law, 215-218.

1 In Maine, statutes prescribing pedler's licenses for aliens were held unconstitutional as a discrimination between aliens and citizens. State v. Montgomery, 94 Me. 192; State v. Mitchell, 97 Me. 66.

2 Lehr in 12 R. D. I. (1880), 108 and 28 Clunet (1901), 722; 14 to 22 Annuaire of the Institute, and supra, p. 22, note 3.

Haiti at various times has imposed discriminatory taxes and other conditions upon foreigners. The United States on numerous occasion (1876, 1893, 1897, 1903 and others) has protested against these discriminations (which were usually directed against foreign business), particularly as the treaty of Nov. 3, 1864 provided for equality in taxation. For. Rel., 1904, 371-384; For. Rel., 1907, 728-742. The last protest was made after the abrogation of the treaty. It appears to have been successful. A small license fee on foreigners engaged in business was apparently not objected to. See also decision of Day, arbitrator, in Metzger (U. S.) v. Haiti, Oct. 18, 1899, For. Rel., 1901, 262, 272.

whenever its laws are violated by anyone owing obedience to them, whether citizen or alien, has a right, free from the interference of other states, to inflict the penalties incurred by the transgressor if found within its jurisdiction, provided that the laws themselves, the methods of administering them, and the penalties prescribed are not in derogation of civilized codes.1 1

The criminal procedure of foreign countries frequently contains harsh features and is deficient in many safeguards which American law provides for the benefit of the accused. This constitutes no ground for diplomatic complaint, the right of the United States or other foreign country being confined to a demand that its citizen be given the full and fair benefit of the system which does exist, without discrimination as against natives or other aliens.2 An alien must submit to the inconvenience of proceedings that may be brought in accordance with law upon any bona fide charge that an offense has been committed, even though the charge may not be sustained. On this ground the claims of innocent citizens of the United States arrested in foreign countries on suspicion of having violated the local law are usually rejected. Even when a conviction by a lower court is reversed, for error, by an appellate court, there is no foundation, legally, for an international claim, although equitable considerations might lead to a moral request for indemnification on account of incidental imprison

'Mr. Marcy, Sec'y of State, to Mr. Jackson, chargé at Vienna, Austria, Jan. 10, 1854, Moore's Dig. II, 88; Bullis (U. S.) v. Venezuela, Feb. 13, 1903, Morris' Report, Sen. Doc. 317, 58th Cong. 2nd sess., 375-376.

Mr. Marcy, Sec'y of State, to Mr. Jackson, chargé at Vienna, Apr. 6, 1855, Moore's Dig. II, 89; VI, 275. See state papers quoted in Moore's Dig. II, 90 et seq.; VI, 273 et seq. and Tchernoff, op. cit., 504. See also the illuminating opinions in In re Neely, 103 Fed. 626 and in Neely v. Henkel, 180 U. S. 109 (by Justice Harlan).

Elihu Root in 4 A. J. I. L. (July, 1910), 527. See Trumbull (Chile) v. U. S., Aug. 7, 1892, Moore's Arb. 3255-3261, and the following cases before the U. S.Mexican commission of July 4, 1868: Collier (ibid. 3244), Atwood (ibid. 3249), Cramer (ibid., 3250). See also decision of Hamburg Senate in case of White (Gt. Brit.) v. Peru (1864), Moore's Arb. 4967. See also La Forte (Gr. Brit.) v. Brazil, Jan. 5, 1863, ibid. 4925, and claim of Higginson v. Peru, Baty, 164; Pittard, Protection des nationaux, 250; Martens, Traité, III, 141.

E. g., Mix case v. Austria, For. Rel., 1894, 23-26; Mr. Marcy to Mr. Richter, Feb. 21, 1854, Wharton's Dig. II, 515; Hannam (U. S.) v. Mexico, July 4, 1868 Moore's Arb. 3243.

ment. The judicial proceedings, however, must be regular and conducted in good faith and in accordance with the law and with the forms of civilized justice, and must not be arbitrary or unnecessarily harsh or discriminate against the alien on account of his nationality.1 No violation of law on his part will deprive the alien of this limited protection of his government, which has the right to insist that he shall be tried and punished in accordance with law. President Cleveland in his annual message of 1886 thus expressed the principle:

"When citizens of the United States voluntarily go into a foreign country they must abide by the laws there in force, and will not be protected by their own government from the consequences of an offense against those laws committed in such foreign country; but . . . if charged with crime committed in the foreign land a fair and open trial, conducted with decent regard for justice and humanity, will be demanded for them. With less than that this government will not be content when the life or liberty of its citizens is at stake."2

The representatives of foreign governments often undertake by active attendance to watch criminal proceedings in which their countrymen are parties in interest.3 On various occasions in the diplomatic history of the United States claims have been successfully prosecuted by the Department of State or allowed by international commissions on the following grounds: Unjust or unlawful arrest or detention; 5

4

1 Extracts quoted in Moore's Dig. VI, 698 and 273-285. Ballenger (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3243; Van Bokkelen (U. S.) v. Haiti, May 24, 1888, ibid. 1807.

2 Annual Message, Dec. 6, 1886, For. Rel., 1886, vii.

Mr. Bayard, Sec'y of State, to Mr. Jackson, min. to Mexico, July 26, 1886, Moore's Dig. VI, 281.

4 It may be here noted that international tribunals have generally, in the absence of a prohibition in the protocol, assumed the right to pass independently upon the justifiability of an arrest and the legality of the incidental and subsequent proceedings. Shaver (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3285; Canty (Gt. Brit.) v. U. S., ibid. 3309.

5 Pratt (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3280–3282; Jonan (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3251; Patrick (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3287 (charge without foundation, though released after brief detention); Underhill (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 45, 51; Shaw (Gt. Brit.) v. France, 1883, 19 Hertslet's Comm. Treaties, 201-203. Claims have often been enforced on account of the unlawful detention of vessels. See, e. g., John S. Bryan (U. S.) v. Brazil, Oct. 15, 1842, Moore's Arb. 4613; Whaling vessels (U. S.) v. Russia,

1

unduly harsh or oppressive or unjust treatment during arrest, detention, trial or imprisonment, whether the accused was guilty or not; 1 unnecessarily long detention or undue or needless delay in trial;2 a punishment disproportionate in severity to the offense charged; a violation of municipal law or treaty; lack of jurisdiction on the

Aug. 26, 1900, For. Rel., 1902, App. I; Col. Lloyd Aspinwall (U. S.) v. Spain, 1870, Moore's Arb. 1007, 1014; Good Return (U. S.) v. Chile, Dec. 6, 1873, ibid. 1466 (note); Phare (France) v. Nicaragua, Oct. 15, 1879, ibid. 4870; Lottie May (Gt. Brit.) v. Honduras, March 20, 1899, For. Rel., 1899, 371; Masonic (U. S.) v. Spain, Feb. 28, 1885, Moore's Arb. 1055, 1062. See also Moore's Dig. VI, §§ 1011-1012.

3

But an arrest or detention, even though charge is not proved, gives rise to no claim unless there is evidence of malice or lack of probable cause or disregard of due process of law. Borden (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 3261-3265; Horatio (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3026.

1 Baldwin (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3235-3240; Gahagan (U.S.) v. Mexico, ibid. 3240; Bolles & Christian (U. S.) v. Mex., Mar. 3, 1849, ibid. 3242; Barnes (U. S.) v. Mexico, July 4, 1868, ibid. 3247; Nautilus, etc., Co. (U. S.) v. Mexico, ibid. 3251; Griffin (U. S.) v. Spain, Feb. 12, 1871, ibid. 3252; Cabias, ibid. 3253; Edwards, ibid. 3268; Strong, ibid. 3269; McKeown, ibid. 3311; Powers, ibid. 3274; Van Bokkelen (U. S.) v. Haiti, May 24, 1888, ibid. 1807. Cases before Spanish Treaty Claims Com., Final Report, May 2, 1910, p. 14.

Mr. Buchanan, Sec'y of State, to Mr. Campbell, Dec. 11, 1848, Moore's Dig. VI, 274 (holding U. S. citizen "incommunicado" in Cuba); Mr. Conrad, Acting Sec'y of State, to Mr. Peyton, Oct. 12, 1852, Moore's Dig. VI, 275 (refusal to hear testimony on behalf of defendant). Cases of U. S. citizens arrested in Guatemala, For. Rel., 1894, 302-315 (not served with warrants or informed of charges against them; not permitted to see consul's messenger; gross irregularities in procedure). Sol. Gen. Richards, Feb. 7, 1898 in case of Culleton (U. S.) v. Colombia, 22 Op. Atty. Gen. 32; Baty, op. cit., 118-122, and Moore's Dig. VI, § 1012.

2 Rahming, Eneas and Binney (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3282; Nautilus, etc., Co. (U. S.) v. Mexico, July 4, 1868, ibid. 3251; Barnes (U. S.) v. Mexico, ibid. 3247; Mr. Bayard, Sec'y of State, to Mr. Ryan, min. to Mexico, June 28, 1890, Moore's Dig. VI, 281.

* Baldwin (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3235–3240; Halstead (U. S.) v. Mexico, July 4, 1868, ibid. 3243; Montgomery (U. S.) v. Spain, Feb. 12, 1871, ibid. 3272; Le More (France) v. United States, Jan. 15, 1880, ibid. 3313.

'Molière (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 3252; Reading (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3283, 3285; Brito (U. S.) v. Spain, Feb. 12, 1871, ibid. 3252; Jones (U. S.) v. Spain, ibid. 3253 (excessive bail); De Luna (U. S.) v. Spain, ibid. 3276; Lowe (U. S.) v. Spain, ibid. 3270; Montejo (U. S.) v. Spain, ibid. 3277; Mevs case v. Haiti, For. Rel., 1893, pp. 358, 378, 381; Master of Russian bark Hans v. U. S., President's message, Dec. 5, 1898, For. Rel., 1898, lxxxi, 31 Stat. L. 1010; Van Bokkelen v. Haiti (imprisonment in violation of treaty) Moore's Dig. VI, § 1013. Cases before Spanish Treaty Claims Commission, Final Report, 14.

3

part of the trial court,' or in general a denial of justice. A detention and discharge without trial throws the burden on the government to show due process of law, and in the absence of such proof, international tribunals have allowed damages. While military law, operating in time of war only, gives military officers and courts a greater discretion in the matter of arrest, detention and imprisonment than is accorded to civil authorities in time of peace, they must nevertheless comply with the requirements of due process of law. Treaties usually provide for due process of law in the litigation, civil or criminal, to which the respective citizens of the contracting states are parties, by stipulating for free access to courts, formal charges, an opportunity to be heard, to employ counsel, to examine witnesses and evidence, and a guaranty of essential safeguards against a denial of justice. In the absence of unduly harsh or arbitrary treatment by an authority of the state, claimants are expected to resort to their local remedies against the persons, often minor police officers, who have been guilty of the wrongful arrest or false imprisonment.5

The decision of a foreign tribunal against a citizen of the United States on criminal charges will only be protested against on the following broad grounds:

"(1) Undue discrimination against the petitioner as a citizen of the United States in breach of treaty obligations, or

"(2) Violation of those rules for the maintenance of justice in judicial enquiries which are sanctioned by international law."

1 Carmody (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3287; Le More (France) v. U. S., Jan. 15, 1880, ibid. 3313; and other cases in Moore's Arb. 3280 et seq. 2 Infra, § 129.

Stovin (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3283; Canty (Gt. Brit.) v. U. S., ibid. 3309; Barnes (U. S.) v. Mexico, July 4, 1868, ibid. 3247.

* See cases reported in Moore's Arb. 3265 et seq.; see especially the elaborate dissenting opinion of Aldis, commissioner, in the French-United States commission of January 15, 1880, in Dubos' case, Moore's Arb. 3323 et seq. The same rule prevails in cases of martial law. Moore's Dig. II, § 196; VI, §§ 1016-1017; Howland's Digest of Opinions of Judge Advocates General, 1078-1081.

Oberlander & Messenger (U. S.) v. Mexico, March 2, 1897, For. Rel. 1897, 382, 388. Warren's case, Moore's Dig. VI, 661; case in England, ibid., 670; Waller's case, ibid., 670; cases in Honolulu, ibid., 671, and other cases, ibid., § 987.

Mr. Bayard, Sec'y of State, to Mr. Morrow, February 17, 1886, Moore's Dig. VI, 280; II, 92.