In several cases it has been held that before the government can be rendered liable the individual must have given notice in time opportune to have prevented the injury,1 or have made a demand for punishment of the offenders,2 and prove a lack of reasonable diligence in preventing the injurious act or a refusal to bring the offenders to justice.3 These cases need not, however, be considered authoritative, inasmuch as, in practice, the government has often been held to show, particularly in cases of brigandage and acts of groups of individuals, that it has used due diligence to prevent the act or to punish the offenders, notice on the part of the victim serving simply to lay a stronger foundation for governmental liability.

The denial to the party aggrieved of a right of action against the offender or a denial of aid in the prosecution of the claimant's rights may be construed as an adoption of the act by the government, entailing the responsibility of the state. It is in effect a denial of justice. A pardon or amnesty to offenders depriving claimants of the right to try the question of liability or to secure the punishment of the guilty, has a similar effect.5

§ 88. Brigandage.

The liability of the state for acts of brigandage brings up practically the same questions as those which have just been discussed. In the absence of proof that the government has neglected to take proper steps to suppress brigandage or punish the guilty, the state is not liable.6

1 Post (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2998; Garza (U. S.) v. Mexico, ibid. 3038.

* Dickens (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3037; Poggioli (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 869.

3 Wipperman (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3039, 3041; Dickens (U.S.) v. Mexico, July 4, 1868, ibid. 3037.

4 Kane's notes on the treaty with France of July 4, 1831, pp. 31, 32; Poggioli (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 847, 869; Johnson (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1656-1657.

Supra, p. 218, note 6.

Moore's Dig. VI, 800-809; Case of Miss Ellen Stone in Turkey, For. Rel., 1902, 997-1023; 27 Law Mag. and Rev. (1901), 337; Richter's case in Turkey, 39 Clunet (1912), 998; Dambitsch in Deutsche Juristen-Zeitung, 1911, col. 1208-1210; Capture and murder of British subjects in Greece, 65 St. Pap. 667-723; Synge and Suter cases in Turkey, 1881, 72 St. Pap. 1167.

Question has often arisen as to the liability of the defendant states for ransoms demanded by and paid to brigands by claimants or their governments. The claimant state (i. e., the national state of the victim) has only in rare cases, as a matter of humanity, advanced the price of a ransom for payment to brigands.1 Reimbursement has on several occasions been demanded of the defendant state or else that state has been asked to make a direct payment to the brigands.2 Only in rare instances have such demands been successful, and then only because actual or implied complicity or negligence of the state was asserted or admitted.3

MOB VIOLENCE

§ 89. Obligations of the Government.

The principles governing the responsibility of the state for injuries sustained by aliens as a result of mob violence or riot are closely related to those governing its responsibility for injuries committed by individuals. In all parts of the world it occasionally happens that mobs in sudden outbreaks of passion sweep away all restraint and vent their fury upon aliens. These contingencies arise in well-ordered as well as in unstable governments, and the ordinary precautions against disorder often prove insufficient to avoid them. In such cases, if the authorities have used due diligence to prevent or repress the riot and punish those who may be concerned in it, the government is relieved from legal liability, unless it is under special obligations to render pro

1In 1881, after the Synge and Suter cases, when ransoms were paid by Great Britain for the release of these subjects by brigands, that government decided not to advance money in future for such purposes. 72 St. Pap. 1167 et seq. In 1907, however, the British government demanded a large sum from Turkey on account of the ransom paid for the release of Mr. Robert Abbott. The fact that he was kidnapped from his house in the heart of a large city, puts this case on different grounds than the usual case of brigandage. Several bills have been introduced in Congress to reimburse those persons who subscribed to the ransom which secured the release of Miss Ellen Stone. See infra, p. 413.

2 Great Britain v. Turkey, 1881, 72 St. Pap. 1167; Great Britain v. Greece, 65 St. Pap. 667-723.

3 Turkey and Greece in cases cited in note 2, supra. On principle, the defendant government is not liable for ransoms paid to criminals on behalf of victims of their acts. See cases cited in 27 Law Mag. and Rev. (1901), 337.

tection, either by virtue of a treaty or of the official character of the person assailed. By the fact that weak governments like China, Morocco and others in the Far and Near East are held to a high degree of responsibility for injuries due to mob violence, it may be concluded that a fundamental condition of non-liability of the government is a stable political organization normally adequate to prevent such outbreaks.

The difficulty in determining governmental liability lies in establishing what is "due diligence" in a given case. The question of burden of proof is of minor importance, inasmuch as the happening of the event usually throws upon the defendant government the duty to show that it has used its best efforts to prevent the disaster and punish the guilty. In well-ordered states evidence of due diligence will be more readily received as a bar to a claim for indemnity than in normally disturbed states like China and other countries in the Near and Far East. Nevertheless, aside from any question of delinquency upon the part of the authorities, it may be said that in most cases of injuries inflicted upon aliens during riots, indemnities have been paid as a matter of equity, either because of the fact that the fury of the mob was directed against aliens as such, or against the subjects of a certain foreign power, as in the Aigues-Mortes riots in 1893, or because such outbreaks having occurred on several occasions within the same state, a moral obligation to make amends is assumed by the state, either for its inability to prevent such disorders or for the inadequacy of redress

'The responsibility of governments for mob violence, by J. B. Moore, Columbia Law Times, May, 1892, 211-215. See also articles by James Bryce, Legal and constitutional aspects of the lynching at New Orleans, 4 New Review, May, 1891, 385397; by E. W. Huffcut, International liability for mob injuries, 2 Annals of the Amer. Acad. of Pol. & Soc. Science (1891), 69–84; by H. Arias, The non-liability of states for damages suffered by foreigners in the course of a riot, an insurrection or civil war, 7 A. J. I. L. (1913), 724-766; and see also a good article on the same general subject by Julius Goebel, Jr., in 8 A. J. I. L. (1914), 802-852 and a doctoral dissertation by Georg Muszack, Ueber die Haftung einer Regierung für Schäden welche Ausländer gelegentlich inneren Unruhen in ihren Landen erlitten haben, Strassburg, 1905, in both of which there is an interesting discussion of theory. See also Moore's Dig. VI, 809– 883, and the general works of Calvo, III, § 1280 et seq.; Bluntschli, § 380 bis; Hall, 6th ed., 215, 219; Westlake, 2nd ed., I, 329; Oppenheim, 2nd ed., I, 222; G. de Leval, Protection diplomatique des nationaux, 173.

through judicial channels1. The legal aspects of state responsibility in these cases will be considered presently.

§ 90. Special Protection Due in Certain Cases.

The obligation to indemnify arising out of a treaty guaranty of special protection, regardless of any delinquency of the authorities, is illustrated in the case of the Panama riot claims of 1856 against New Granada, which the latter country satisfied on account of having undertaken, by article 35 of the Treaty of 1846 with the United States, "to preserve peace and good order along the transit route." 2 Whereever a government obligates itself to preserve order, as weak countries frequently do, claims for injuries arising out of mob violence are usually rigorously prosecuted. China, indeed, regardless of treaties, has in innumerable cases been held to a degree of responsibility amounting actually to a guaranty of the security of persons and property of aliens.3 Turkey, Morocco and other countries where governmental control is weak and civil disorders are not an abnormal condition are held only to a slightly narrower degree of responsibility.

The United States has on several occasions resisted the attempts of foreign governments to fix liability on the federal government be

1 Aigues-Mortes riots, 1 R. G. D. I. P. (1894), 171 et seq.; Calvo, VI, § 256; Saida case in 1881, 1 R. G. D. I. P. (1894), 171, 175. Sacking of mission houses at Nictheroy, near Rio Janeiro, For. Rel., 1901, 28-30; Fortune Bay case, 1878, fisherman driven out in violation of treaty, Moore's Dig. VI, 819; 72 St. Pap. 1265. Killing of Chinese at Torreon, Mexico, 1910, for which Mexico paid a large indemnity, Convention of Dec. 16, 1911, 8 A. J. I. L. (1914), Suppl. 147. See Goebel in 8 A. J. I. L. 813, 819831, who finds, in cases of violence against certain nationalities, a legal liability, regardless of fault by the state. The payments made in numerous cases, and various statutes imposing a liability upon municipalities, regardless of fault, lend support to this view.

2 Moore's Arb. 1361-1396, at p. 1379. New Grenada assumed liability in the convention of Sept. 10, 1857, art. 1. See also, as to British claims, 65 St. Pap. 1219. In fact, so frequent have been the cases of murder of missionaries by rioters in China that a practice of the U. S. has grown up fixing the sum of $5,000 as indemnity for a human life. The British and French governments exact as heavy indemnities as possible, and exemplary damages as well, in flagrant cases. These cases in China are illustrated by the following incidents: the Boxer movement, Moore's Dig. V, 476-533; the Lienchou indemnity, For. Rel., 1906, 308-341; 1907, pt. I, 211-218; the Shanghai riots, For. Rel., 1908, 146; other cases in For. Rel. See also 35 Clunet (1908), 646; Bonfils, § 440; French claims, 51 St. Pap. 651, 668.

cause their subjects were by treaty promised "protection," on the ground that aliens were given the same protection and means of judicial redress as nationals.

The special protection due to the representatives of foreign powers explains the prompt payments of indemnities for attacks by mobs on foreign consuls or consular agents. The consul is considered as injured not alone as an individual but in his character as the representative of a foreign government.1

§ 91. Factors Imposing Liability upon the Government.

It has already been observed that on principle the government is not liable for the unlawful acts of a mob which by due diligence it was unable to quell or whose acts it was unable to prevent. On this ground the United States has, on occasion, declined to press claims against foreign governments and has successfully resisted the attempts of foreign governments to render the United States liable. It is a necessary condition, however, that judicial recourse be open to the victims of the mob. In such cases, the foreign government can on principle demand no greater reparation than the municipal law provides for nationals.3

1 Rev. Stat., § 4062 gives special protection to the diplomatic representatives of foreign governments. See also U. S. Consular Regulations, § 72. The following cases of attacks upon foreign ministers, consuls or consular agents by mobs were met by prompt indemnities: Spanish consul in New Orleans, Aug. 21, 1851, Moore's Dig. VI, 811, 813; U. S. consular agent in Mollendo, Peru, For. Rel. 1893, 509-524; French consulate in Naples, 1893, Calvo, I, § 256; German legation in Madrid, 1885, Calvo, § 1272; Spanish minister in Santiago, Chile, 1864, Wiesse, C., Le droit int. appliqué aux guerres civiles, Lausanne, 1898, p. 47. See also cases cited in Moore's Dig. V, § 704.

2 Attacks on Chinese in Denver, 1880, Moore's Dig. VI, 820; Attacks on British subjects in Texas, 1880, and on Japanese subjects in Utah, 1884, Moore's Dig. VI, 819; Attack on Protestant church at Acapulco, Mexico, 1875, Moore's Dig. VI, 815; Shann's case v. Spain (attack in Cuba, 1834), Moore's Dig. VI, 259; Derbec (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3029; Laguerene (U. S.) v. Mexico, March 3, 1849, ibid. 3027 (dictum); Underhill (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, I, 45, 50; Serra (Italy) v. Peru, Nov. 25, 1899, Descamps and Renault, Rec. des traités, etc., 1901, p. 720; Bluntschli, § 380 bis.

See speech of M. Pichon, French minister of foreign affairs, in connection with the Barcelona riots of 1909, 37 Clunet (1910), 1140. See also Russian defense against Swiss claims, 1905, Rapport du Conseil Federal (Switzerland), 1905, p. 300.