It is a fundamental principle that the legislation of a state must be such as to enable it to fulfill its international duties. Its law must impose penalties upon the violation by individuals-natives, residents or aliens of the international obligations of the state. Thus Great Britain in the "Alabama" case could not plead the insufficiency of its legislation on neutrality to escape liability to the United States for the violation by private individuals of British neutrality.1

More uncertain questions are the measure of local protection which must be afforded and the tests of state negligence in preventing a private injury. In normally well-ordered states government liability is measured by the ability to protect the injured person in a given case. The nature of the case is all important. Thus, if the moving cause of the injury is notorious, e. g., bandits in a certain locality,3 a greater degree of protection is incumbent upon the government than in cases of sudden violence which the best organized government could not foresee. Commissioner Wadsworth in the Mills case before the United States-Mexican commission of 1868 expressed the opinion that the test of a nation's responsibility for injuries committed upon aliens in its territory by private persons is the enforcement of the laws "with reasonable vigor and promptness to prevent violence when practicable, or failing in that to punish the offenders criminally, and to indemnify

Sec'y of State, to Mrs. Robinson, Sept. 20, 1894, Moore's Dig. VI, 806; Harwood claim (Gt. Brit.) v. Austria, 1852, 44 St. Pap. 236; Assassination of Servian ViceConsul at Pristina, Turkey, 1890, Baty, 224.

A notice to aliens of special circumstances rendering it dangerous to visit certain portions of its territory, would seem to release the state from liability for the happening of the events against which they were warned. Comments on Miss Stone's capture by brigands in Turkey, 1901; 27 Law Mag. and Rev. (1901), 337.

1 Nor could the United States in the New Orleans riot case of 1891 escape liability because the Constitution gave the federal government no means to compel states to prosecute offenders against aliens. See also Baldwin (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 2863, and infra, p. 226.

2 Bowley (U. S.) v. Costa Rica, July 2, 1860, Moore's Arb. 3032; Calvo, § 1274, makes the "facilities at hand" the test of responsibility. Mr. Hay, Sec'y of State, to Mr. Dudley, min. to Peru, Sept. 5, 1899, Moore's Dig. VI, 806. But the apprehension and punishment of the guilty will be demanded.

In weaker states like China and Morocco, the rule of ability to protect as a test of liability has often been held, by strong claimant governments, not to prevail. - 3 Baldwin claim v. Mexico, 1887, Moore's Dig. VI, 802.

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the injured party by [its] remedial civil justice." A preliminary demand for adequate police protection, therefore, is considered as laying the foundation for a claim for redress of injuries in case it is not afforded.2

The general rule that in the absence of governmental complicity (the particular manifestations of which will be examined presently), the government is not responsible for the wrongful acts of private individuals which it could not prevent, has been reiterated on numerous occasions by international tribunals and by the Department of State.3

In a number of cases occurring in the more poorly organized countries like China, Turkey, Morocco and formerly Greece and a few other states, the government has been held liable for the acts of private persons even in the absence of governmental complicity, apparently regardless of principle, but presumably on the ground that an indifferent police protection and enforcement of the laws invited disorder and constituted in itself an international delinquency. In other words, liability is predicated on the failure to prevent the injury, regardless of ability to prevent it. This practice overlooks the principle that an alien visiting unstable countries assumes a certain measure of risk, and compels the weaker nations, like China and Morocco, to assume a certain degree of guaranty for the safety of aliens. By treaty, some of

1 Mills (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3034. * Mr. Bacon, Act'g Sec'y of State, to Mr. Leishman, July 2, II, 1072-1073.

See also Fiore, § 670. 1907, For. Rel., 1907,

* Thus the government has been held not liable for acts of private persons in the following cases: Wipperman (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3041 (pillage by savages); Dickens (U. S.) v. Mexico, July 4, 1868, ibid. 3037 and Garza, ibid. 3038 (raiding bands); Mills (U. S.) v. Mexico, ibid. 3034 (private assault); Poston, ibid. 2998 and Sagardia claim, Magoon's Reports, 471 (thieves); Lovett (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2990 (revolted convicts); Molière (U. S.) v. Spain, Feb. 12, 1871, ibid. 3252 (private quarrel); Sumpter (U. S.) v. Mexico, July 4, 1868, ibid. 3038 (marauding Indians); Dorris (U. S.) v. Mexico, ibid. 3003 (private scuffle between enraged soldiers); Johnson (U. S.) v. Mexico, March 3, 1849, ibid. 3031 and Duvall claim v. Mexico, Mr. Gresham to Mrs. Robinson, Sept. 20, 1894 (robbery by highwaymen); 1 Op. Atty. Gen., March 11, 1802 (unlawful captures by individuals). Mr. Hay, Sec'y of State, to Mr. Fowler, April 15, 1899, Moore's Dig. VI, 792 (piratical acts of Haitian citizens).

4 Numerous cases of private murder of aliens in China, reported in For. Rel. 1880 et seq. Japanese subjects murdered in China, 1874, Moore's Arb. 4857; Dreyfus,

the weaker states have occasionally undertaken-or been compelled to undertake the "special protection" of nationals of certain countries, which has been construed as analogous to a quasi-guaranty of the security of aliens.1

Where the offense is committed against the representative of a foreign state, either the head of the state, a public minister, or even a consul, all of whom enjoy a certain special protection, the government has on occasion been held immediately liable for the wrongful acts of private persons.2

It may be said that governments occasionally as a matter of policy and equity cause reparation to be made for the injuries committed by their subjects upon aliens.3 This is especially true in the case of riots directed against particular classes of aliens, for which acts of violence the United States has on numerous occasions granted indemnities as a matter of grace, while denying legal liability.

Arbitrage international, 176, 177; Lieut. Cooper claim (Gt. Brit.) v. Turkey, 1888, 81 St. Pap. 178; Caldera (U. S.) v. China, Nov. 8, 1858, Moore's Arb. 4629; Hubbell v. U. S., 15 Ct. Cl. 546 (based principally on treaty obligation); Russia v. Turkey, 1826 (Turkey held liable for depredations of Moorish pirates), 13 St. Pap. 899, 16 St. Pap. 647, 657. Five cases of British subjects injured in Greece, about 1850, by acts of individuals, Baty, 116-118; Marcos v. Morocco, 1900, 28 Clunet (1901), 205. Murder of Italian soldier in Crete, 1906, 1 A. J. I. L. (1907), 158; 13 R. G. D. I. P. (1906), 223; Montijo (U. S.) v. Colombia, Aug. 17, 1874, Moore's Arb. 1421 et seq. (absence of power considered equivalent to omission to use it). Turkey and Morocco held responsible for acts of pirates from their shores on three occasions, 12 R. G. D. I. P. (1905), 563-565. "Insufficiency of the protective measures afforded," an alleged ground of liability in certain cases in Turkey, For. Rel., 1897, p. 592.

1 Panama riot claims, treaty of 1846 with New Granada, Moore's Arb. 1361. Treaty of 1831 with Mexico, Baldwin (U. S.) v. Mexico, April 11, 1839, ibid. 2859, 2863; Montijo (U. S.) v. Colombia, Aug. 17, 1874, ibid. 1421, 1444; Lawrence's Wheaton, note 59.

2 Attacks on German consulate in Havre, 1888, in Messina, 1888 and in Warsaw, 1901, 16 Clunet (1889), 250. French and German consuls murdered in Salonica, 1876, 67 St. Pap. 917; Moore's Dig. V, § 704, discusses cases in Venezuela, Peru, Nicaragua, Santo Domingo and U. S. See the following authorities: Vattel, Chitty's ed., Bk. IV, ch. VI, § 75, p. 460; Phillimore, II, § 246, p. 263; Pradier-Fodéré, IV, § 2108. For. Rel., 1901, 534. See also infra, p. 223.

But see case of Servian Vice-consul assassinated in Turkey, 1890, Baty, 224 and Wipperman (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3041, which were not taken out of the general rule of non-liability.

1 Op. Atty. Gen. 106, March 11, 1802.

§ 87. Factors Imposing Liability upon the Government.

A long line of cases has established certain qualifications upon the non-liability of the government for the wrongful acts of private individuals. These consist in certain manifestations of the actual or implied complicity of the government in the act, before or after it, either by directly ratifying or approving it, or by an implied, tacit or constructive approval in the negligent failure to prevent the injury, or to investigate the case, or to punish the guilty individual, or to enable the victim to pursue his civil remedies against the offender.1 The claimant ordinarily has the burden of proving the negligence of the government.2

The direct ratification or authorization of a private wrongful act is an infrequent occurrence, yet several awards have been made on this ground.3

The failure of a government to use due diligence to prevent a private injury is a well-recognized ground of international responsibility. The state is thus responsible for every injury which by the exercise of reasonable care it could have averted. What is "due diligence" in a given 1 See particularly the cases of Mills, Dickens and Wipperman cited in footnote 3, page 215.

* Mills and Dickens cases, cited supra.

3 Wrongful seizures sanctioned by French civil, military or judicial authorities, Kane's notes on questions . . . under convention with France, July 4, 1831, Phila., 1836, p. 31. Authorization or ratification of private acts generally has a political reason, but while it usually releases the individual from liability, it imposes liability on the state. McCord v. Peru, Moore's Dig. VI, 989. See McLeod's case, Hall, 306; Moore's Dig. II, 24, 409; VI, 261. Piedras Negras claims (Mexico) v. U. S., July 4, 1868, Moore's Arb. 3035 (U. S. protected certain raiders into Mexico by its regular army).

* Grotius, liv. II, ch. 17; Hubbell et al. v. U. S., 15 Ct. Cl. 546 (Chinese Indemnity); The case of the Alabama, in which Great Britain was held liable for failing to prevent individuals from violating British neutrality, Moore's Dig. VI, 999; Evertsz (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 904 (government negligently left military prisoners without means of sustenance, and was therefore held liable for cattle they appropriated). 49 Law Times, 84. Mr. Bayard to Mr. Scruggs, May 19, 1885, For. Rel. 1885, 212; Baldwin case in Mexico, 1887 (murder by well-known outlaws); Caccavelli claim (France) v. Dominican Rep., For. Rel. 1895, I, 398, 400. Mr. Frelinghuysen, Sec'y of State, to Mr. Matthews, Jan. 16, 1883, Moore's Dig. VI, 792; Calvo, § 1274.

By reason of its territorial jurisdiction, the state is in equal measure responsible for the acts of resident aliens as of its nationals. 2 Wharton, § 205.

case is often difficult to determine. Hall protests vigorously against the doctrine advanced by the United States and supported apparently by the tribunal of arbitration in the Alabama case, that the "diligence" required must be "commensurate with the emergency or with the magnitude of the results of negligence." 1

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A more frequent basis of governmental liability is the failure, after reasonable opportunity, to bring the offenders to justice.2 Incidental to this ground of liability is the inadequate punishment of guilty individuals,3 negligently permitting them to escape, or an inexcusable delay in investigating the facts.5 Closely related to these reasons for responsibility is a pardon or amnesty to offenders, by which the plaintiff is deprived of the right to try the question of liability, or the punishment of the guilty is avoided."

We have already adverted to the fact that on several occasions, confined almost exclusively to the weaker countries, the "due diligence" rule has been disregarded, governmental liability being predicated on the mere inability to prevent the act or bring the offenders to justice.7

1 Hall, 217.

2 De Brissot (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2868 (opinion of Mr. Little); ibid. 2969 (opinion of Mr. Findlay)—offender permitted to go at large. Poggioli (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 869; Renton claim v. Honduras, For. Rel. 1904, 363 (refusal to diligently prosecute and punish); Piedras Negras Claims (Mexico) v. U. S., July 4, 1868, Moore's Arb. 3035 (failure to punish); Same in Ruden (U. S.) v. Peru, Dec. 4, 1868, ibid. 1653, 1655; Labaree claim v. Persia, For. Rel. 1904, 657 et seq.; Maninot (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 44, 70.

Willful neglect to punish may be considered an implied sanction. E. W. Huffcut in 2 Annals, Amer. Acad. of Pol. and Soc. Science (1891), 69; Fiore, §§ 669–670. Sec'y Fish in 1875 held that there was no duty to punish in the absence of information as to the offenders (murderers); Moore's Dig. VI, 789.

3 Lenz claim v. Turkey, Mr. Hay to Mr. Straus, March 25, 1899, For. Rel., 1899, 766, and Moore's Dig. VI, 792–794; Renton claim v. Honduras, For. Rel. 1895, II, 890, 934; 1897, 347; 1904, 363, and Moore's Dig. VI, 794–799 (condemnation for minor offenses of persons guilty of murder).

4 Lenz case and Renton case (For. Rel., 1904, pp. 352, 362) cited in footnote, supra. Ruden (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1653, 1655; Prince of Wales claim (Gt. Brit.) v. Brazil, 1862, 54 St. Pap. 614 et seq.

Montijo (U. S.) v. Colombia, Aug. 17, 1874, Moore's Arb. 1421, 1444; Cotesworth and Powell (Gt. Brit.) v. Colombia, Dec. 14, 1872, ibid. 2050, 2085.

As to the effect of amnesty on liability for the acts of rebels, see infra, p. 238. 7 Supra, p. 215.