« AnteriorContinuar »
On a smaller scale, armed forces have often been landed from menof-war for the protection of the life and property of their national citizens during revolutionary disturbances, as, for example, in Central America and the West Indies. Such a course is undoubtedly often necessary, but it is always an impeachment of the effective sovereignty of the government in whose territory the armed demonstration occurs, and it can be justified only by unquestionable facts which leave no practical doubt of the incapacity of the government of the country to perform its international duty of protection. It leads to many abuses, especially in the conduct of those nationals who, feeling that they are backed up by a navy, act as if they were superior to the laws of the country in which they are residing and permit their sense of immunity to betray them into arrogant and offensive disrespect.
Similar in principle to the method of direct protection which I have mentioned is the practice of exercising extraterritorial jurisdiction, under convention arrangements, in countries whose methods of administering justice are very greatly at variance with the methods to which the people of the great body of civilized states are accustomed, such, for example, as China and Turkey.
As between countries which maintain effective government for the maintenance of order within their territories, the protection of one country for its nationals in foreign territory can be exercised only by calling upon the government of the other country for the performance of its international duty, and the measure of one country's international obligation is the measure of the other country's right. The rule of obligation is perfectly distinct and settled. Each country is bound to give to the nationals of another country in its territory the benefit of the same laws, the same administration, the same protection, and the same redress for injury which it gives to its own citizens, and neither more nor less: provided the protection which the country gives to its own citizens conforms to the established standard of civilization.
There is a standard of justice, very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world. The condition upon
which any country is entitled to measure the justice due from it to an alien by the justice which it accords to its own citizens is that its system of law and administration shall conform to this general standard. If any country's system of law and administration does not conform to that standard, although the people of the country may be content or compelled to live under it, no other country can be compelled to accept it as furnishing a satisfactory measure of treatment to its citizens. In the famous Don Pacifico case, Lord Palmerston said, in the House of Commons:
If our subjects abroad have complaints against individuals, or against the government of a foreign country, if the courts of law of that country can afford them redress, then, no doubt, to those courts of justice the British subject ought in the first instance to apply; and it is only on a denial of justice, or upon decisions manifestly unjust, that the British Government should be called upon to interfere. But there may be cases in which no confidence can be placed in the tribunals, those tribunals being, from their composition and nature, not of a character to inspire any hope of obtaining justice from them. It has been said: “We do not apply this rule to countries whose governments are arbitrary or despotic, because there the tribunals are under the control of the government, and justice can not be had; and, moreover, it is not meant to be applied to nominally constitutional governments, where the tribunals are corrupt.”
I say, then, that our doctrine is, that, in the first instance, redress should be sought from the law courts of the country; but that in cases where redress can not be so had — and those cases are many - to confine a British subject to that remedy only, would be to deprive him of the protection which he is entitled to receive.
We shall be told, perhaps, as we have already been told, that if the people of the country are liable to have heavy stones placed upon their breasts, and police officers to dance upon them; if they are liable to have their heads tied to their knees, and to be left for hours in that state; or to be swung like a pendulum, and to be bastinadoed as they swing, foreigners have no right to be better treated than the natives, and have no business to complain if the same things are practiced upon them. We may be told this, but that is not my opinion, nor do I believe it is the opinion of any reasonable man.
Nations to which such observations apply must be content to stand in an intermediate position between those incapable of maintaining order, and those which conform fully to the international standard. With this understanding there are no exceptions to the rule and no variations from it. There may be circumstances at particular times and places such that the application of the rule calls for action regarding foreign citizens quite unlike the action ordinarily taken for the benefit of native citizens, but it is always action which would be equally required in case a native citizen were placed under the same circumstances of exigency. It is plain that no other rule is practicable. Upon any other basis every country would be obliged to have two systems of law and administration and police regulations, and the existence of great numbers of foreigners in a country would be an intolerable burden. The standard to which the rule appeals is a standard of right, and not necessarily of actual performance. The foreigner is entitled to have the protection and redress which the citizen is entitled to have, and the fact that the citizen may not have insisted upon his rights, and may be content with lax administration which fails to secure them to him, furnishes no reason why the foreigner should not insist upon them and no excuse for denying them to him. It is a practical standard and has regard always to the possibilities of government under existing conditions. The rights of the foreigner vary as the rights of the citizen vary between ordinary and peaceful times and times of disturbance and tumult; between settled and ordinary communities and frontier regions and mining camps.
The diplomatic history of this country presents a long and painful series of outrages on foreigners by mob violence. These have uniformly been the subject of diplomatic claims and long-continued discussion, and ultimately of the payment of indemnity. An examination of these discussions will show that in every case the indemnity was in fact paid because the United States had not done in the particular case what it would have done for its own citizens if our laws had been administered as our citizens were entitled to have them administered. Of course, no government can guarantee all the inhabitants of its terrritory against injury inflicted by individual crime, and no government can guarantee the certain punishment of crime; but every citizen is entitled to have police protection accorded to him commensurate with the exigency under which he may be placed. If he is able to give notice to the government of intended violence against him he is entitled to have due measures taken for its prevention, and he is entitled always to have such vigorous prosecution and punishment of those who are guilty oz criminal violation of his rights that it will be apparent to all the world that he cannot be misused with impunity and that he will have the benefit of the deterrent effect of punishment.
It is a distressing fact that in one important respect the Governa ment of the United States fails to comply with its international obligation in giving the same degree of protection and opportunity for redress of wrong to foreigners that it gives to its own citizens. The difficulties which beset aliens in a strange land are ordinarily local difficulties. The government and the people of the foreign country are usually quite ready, in a broad and abstract way, to accord to foreigners the fullest toleration, equality before the law, and protection. But the people of the particular community with whom the alien comes in contact too often fail of understanding and sympathy. They misunderstand and resent the foreign customs with which they are unfamiliar. They are aroused to anger by the competition to which the foreigner subjects them. Immediate contact is too apt at first to breed dislike and intolerance towards what Bret Harte describes as the “ defective moral quality of being a foreigner." Our Constitution recognizes this natural and often inevitable prejudice by giving to our national courts jurisdiction over all civil suits between aliens and citizens of the United States. We fail to recognize the same conditions, however, in respect of the security of the persons and property of aliens. The Revised Statutes of the United States aim to protect citizens of the United States against local prejudice and injury by providing in section 5508:
If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years; and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.
This provision, however, does not apply to aliens, and no similar provision applies to them. Accordingly, defenseless Chinamen were mobbed at Denver in 1880, and at Rock Springs, Wyoming, in 1885; Italians were lynched in New Orleans in 1891, and again at Rouse, Colorado, in 1895; and Mexicans were lynched at Yreka, California, in 1895; and Italians at Tallulah, Louisiana, in 1899, and again at Erwin, Mississippi, in 1901. Our Government was practically defenseless against claims for indemnity because of our failure to extend over these aliens the same protection that we extend over our own citizens, and the final result of long diplomatic correspondence in each case was the payment of indemnity for the real reason that we had not performed our international duty. In these discussions our State Department from time to time undertook to shelter itself behind the distribution of power in our constitutional system, and the fact that there was no law of the United States providing for any redress except at the hands of the State officials in the very locality where prejudice led to the injury. Yet when an American citizen was injured by a mob in Brazil in 1875, the dispatch of Secretary Fish to the American Minister at Rio said:
You represent that the facts as set forth in the memorial of the claimant are admitted by that Government, which, however, denies its accountability and says that the province where the injury to Mr. Smyth took place is alone answerable. Supposing, however, the case to be a proper one for the interposition of this Government, the reference of the claimant to the authorities of the province for redress will not be acquiesced in. Those authorities can not be officially known to this Government. It is the Imperial Government at Rio de Janeiro only which is accountable to this Government for any injury to the person or property of a citizen of the United States committed by the authorities of a province. It is with that Government alone that we hold diplomatic intercourse. The same rule would be applicable to the case of a Brazilian subject who, in this country, might be wronged by the authorities of a State.
And President Harrison, in his message to Congress of December 9, 1891, relating to the lynching of Italians at New Orleans in that year, said
Some suggestions growing out of this unhappy incident are worthy the attention of Congress. It would, I believe, be entirely competent for