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THE EXECUTION OF CANNON AND GROCE IN NICARAGUA
The note of the Secretary of State dated December 1, 1909, to the Nicaraguan chargé d'affaires (reprinted in the Supplement, p. 219) terminating diplomatic relations between that country and the United States has been variously regarded. A section of the press expressed the opinion that the growing feelings of confidence and good will on the part of Latin-American countries toward the United States had thereby been endangered, while certain criticisms in England were calculated ta throw doubt upon some principles of international law which the note seems to have taken for granted.
We are not here concerned with the question of diplomatic policy involved in the action taken. The language of the note was perhaps more direct than may have been essential, but few will venture to assert that the provocation was overestimated.
What interests us most, however, are the questions of international law involved in the execution of the two American citizens, Cannon and Groce, who, we assume, were duly commissioned officers in the service of the revolutionary party.
It is often asserted that when a citizen takes up arms against a nation with which his own state is at peace, he completely forfeits his allegiance and his right to protection. Certain proclamations issued by our Presidents during the Cuban revolutions of the forties and fifties warned all citizens that when aiding the insurgents they must not expect “interference of this Government in any form on their behalf, no matter to what extremities they may be reduced.” That formula has since been abandoned. The relation of the individual to his native state is a status created by public law, and his temporary allegiance to another government or de facto political body will not so ipso divest him either of citizenship or the right to protection. Furthermore, a nation owes no duty to a foreign state to take affirmative steps to prevent its citizens, quâ individuals, from enlisting in a hostile army. It may well be that the citizen becomes thus guilty of disloyalty to his native state, but if his noxious acts have been repressed with undue severity by the foreign state, it lies with the native state alone to judge how far its subject has lost the right to protection.
The tendency of established government is to treat all rebels as outlaws, but though the Hague rules do not apply to bodies without belligerent character, there has been a gradually crystallizing body of precedents in favor of according the rights of war to individuals constituting part
of an organized force representing the popular will of at least a definite portion of the territory of the state. Hall
that siderable population is arrayed in arms with the professed object of attaining political ends, it resembles a state too nearly for it to be possible to treat individuals belonging to such population as criminals.” Our Supreme Court has reached a similar result in the case of the Three Friends, by recognizing war in the material as well as in the legal sense and distinguishing the former from mere lawlessness. In the present case, President Taft, in his last annual message, referred to the revolution as being“ in control of about half of the Republic.”
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Of the right to inflict penalties and imprisonment upon persons captured in the forces of an armed uprising there would seem to be no doubt. But the claim to exercise harsher measures against aliens than against natives on the ground that they have no legitimate interest in the conflict is more than compensated by the fact that, owing no allegiance. their conduct cannot be denominated treasonable. To execute them after barbarous cruelties (as appears from the note to have been reported to the Secretary of State in the present instance) and without trial, or after a trial constituting a bare formality, is in derogation of those rights which the United States Government has, on past occasions, successfully made the subject of international claims, notably under the convention with Mexico of 1868.
It has been broadly recognized that privateersmen in the service of an insurrectionary force may not be dealt with as pirates. It would appear to be a logical extension to apply a similar rule to distinguish revolutionary from bandit forces in hostilities upon land.
THE UNITED STATES AT THE HAGUE COURT OF ARBITRATION
The North Atlantic Coast Fisheries Arbitration
As the JOURNAL goes to press the long standing dispute between Great Britain and the United States concerning the correct interpretation of the Treaty of 1818 is being submitted by American and British counsel to the definitive determination of the Permanent Court of Arbitration, composed of M. Henri Lammasch of Austria, president, M. Luis M. Drago of Argentine, Mr. George Gray of the United States, Sir Charles Fitzpatrick of Great Britain, and M. A. F. de Savornin Lohman of Holland. The court thus constituted met at The Hague, June 1, 1910.
The JOURNAL has in previous numbers devoted editorial space to the controversy (see Vol. I, pp. 144 and 963, and Vol. III, p. 461) and the reader is referred to them for comment upon it. Article I of the Treaty of 1818, which is to be interpreted by the Tribunal, and the seven questions submitted to the Tribunal for decision are contained in the Special Agreement concluded between the United States and Great Britain January 29, 1909, pursuant to the provisions of Article II of the General Arbitration Treaty between the two countries of April 4, 1908. The Special Agreement has also been printed previously in the JOURNAL (see SUPPPLEMENT, Vol. III, p. 168) and the reader is referred to it for an adequate statement of the issues involved. The purpose of the present note is merely to call attention to the arbitration while in progress, but a subsequent issue will contain a leading article on the subject and the text of the award of the Tribunal as soon as the case is decided.
The Orinoco Steamship Company Arbitration On September 20th next, the Permanent Court at The Hague, composed of M. Henri Lammasch, president, M. Auguste Beernaert of Belgium, and Senor Gonzalo de Quesada of Cuba, will meet to hear arguments, consider and decide the case of the United States against Venezuela concerning the Orinoco Steamship Company. As in the case of the North Atlantic Fisheries Arbitration, the JOURNAL refrains at present from expressing an opinion upon the merits of the questions involved, preferring to record the judgment of the Permanent Court at The Hague than to suggest to the august tribunal what its judgment should be.
The various cases of the United States against Venezuela have been discussed at length in previous editorial comments to which reference is made. (See Vol. III, pp. 436 and 985.) It is sufficient to state that this case is the only one of the five pending at the departure of President Castro from Venezuela which has not been settled by direct negotiation and is, therefore, to be submitted to arbitration in accordance with the provisions of the protocol of February 13, 1909, between the United States and Venezuela. This protocol is printed in the SUPPLEMENT (Vol. III, p. 224) and the reader is referred to it for the terms of submission. The various periods mentioned in the protocol for the submission of the cases, counter-cases, arguments and the date for the meeting of the arbitral tribunal have been extended by exchanges of notes to the present arrangement under which the tribunal meets September 20 next instead of within twelve months from the date of the protocol. Upon the decision of the case, the JOURNAL will publish a leading article concerning it, and the text of the award will be printed in the SUPPLE
WILLIAM L. PENFIELD
The passing away of a member of the American Society of International Law so eminent, both for learning and for practical service, in the domain of international affairs, as was the late Judge Penfield, is an event that obviously deserves to be commemorated in the Society's records.
William L. Penfield was born in the State of Michigan on the 2nd of April, 1846. His parents, who were natives of New England, were of English extraction. During his boyhood, which was spent on a farm, he attended the neighboring public schools; but he early became desirous of larger opportunities, and, after he had taken a course at Adrian College, he was entered as a student at the University of Michigan. Here, besides pursuing the regular classical curriculum, he devoted himself to studies in modern languages; and in 1870 he was graduated with high honors. Immediately afterwards, he was invited to become an instructor in Latin and in German at Adrian College. Accepting this offer, he held the position for two years; and during this time, in pursuance of a resolution long cherished, he fitted himself for the practice of the law. He was admitted to the bar, at Adrian, in 1872. In the following year, as the result of causes somewhat personal and accidental, he removed to Auburn, in Indiana ; and there he remained, marrying and making the place his home, till he was called to Washington.
Judge Penfield's advancement in his profession was steady and sure. He soon secured a large clientage in the State and the Federal Courts. He also discharged various public functions, official and unofficial, such as those of city attorney, member of the Republican State Committee, presidental elector and electoral messenger, and delegate (in 1892) to the National Republican Convention. In 1894 he was nominated by the Republicans as their candidate for judge of the thirty-fifth judicial circuit of Indiana, and he had the satisfaction of being elected by the largest majority ever given to a judicial candidate in that circuit. In a memorial lately spread upon the records of the court in which he presided, his brethren at the bar have borne testimony to his unfailing courtesy, his “unswerving correctness of attitude,” his “studiousness,
his industry, and his profound knowledge of the law," at the same time declaring that “as a lawyer he always measured up to every requirement of the profession, and as a judge was actuated by a deep sense of right and a devotion to impartial justice.”
In the spring of 1897, Judge Penfield resigned his judicial position in Indiana in order to accept the post of Solicitor of the Department of State of the l'nited States, to which he was appointed by President McKinley He entered upon the discharge of his new duties at a moment when many delicate and important questions were pending; and he was destined within the next few years, as an officer of the Department of State, to bear his part in dealing with various important crises in international affairs. In a year there came the war with Spain; then followed the troubles in China; and still later the war between Japan and Russia broke out. Meanwhile, difficult situations had been created in the western Lemisphere by the blockade of Venezuelan ports by certain European powers, and by chronic disturbances, resulting in the prostration of governmental authority, in Santo Domingo. It is needless to say that by reason of these events, the labors and responsibilities of Judge Penfield's office were greatly enhanced; nor will there be any doubt, on the part of those who are acquainted with the facts, that his own individual labors and responsibilities, which were by no means confined to the ordinary work of his office, were exceptionally increased as the result of the special confidence which his official superiors felt in his abilities and his personal character.
In no part of his work did Judge Penfield exhibit a more absorbing interest than in that which related to the settlement of international disputes by arbitration. His record is in reality distinguished by his achievements in this direction. While others talked of arbitration, he made it a reality; and he had the happiness to appear as counsel for the United States in the first case that of the “ Pious Fund” of the Californias before the Permanent Court at The Hague. This was. however, only one of the many arbitral proceedings in which he acted as the representative of his Government. He appeared again before The Hague Tribunal in the Venezuelan Arbitration in 1903-4; and at other times and before other tribunals, he represented demands against Peru, Haiti, Nicaragua, Guatemala, Salvador and Mexico. The judgments which he obtained for the United States aggregated more than two million dollars; but to his mind, while the award of substantial damages attested the validity of the demand, the greatest satisfaction, no doubt,