new treaties are concluded or a particular provision of a treaty has not been enforced by the states, the Department sometimes informs the governors of the various states of the terms of the treaty provision in question, and requests its enforcement.1 The Instructions to Diplomatic Officers provide that diplomatic representatives of the United States should "protect [American citizens] before the authorities of the country in all cases in which they may be injured or oppressed, but their efforts should not be extended. to those who have been willfully guilty of an infraction of the local laws. It is their [diplomatic officers'] duty to endeavor, on all occasions, to maintain and promote all rightful interests and to protect all privileges that are provided for by treaty or are conceded by usage.' $166. Consular Administration of Decedents' Estates. 3 Specific and detailed instructions are given as to the duties of consuls in caring for the estates of their deceased nationals dying intestate within their jurisdiction. The extent of their right to interfere, however, depends upon the applicable treaties and upon the local law.* Foreign consuls in the United States, it seems, have not the right of consular administration as against a public or other administrator appointed under a state law by a probate court.5 This is believed to be the case even under the treaty of 1910 with Sweden, which gives extensive rights to consuls in the care of the estates of deceased nationals. When there is no conflict with local law, consuls have been held, under various treaties, to be entitled to appointment as administrators." 1 E. g., Request for observance of art. XVI of the consular convention with AustriaHungary, June 11, 1870, For. Rel., 1907, I, 52–55. 2 Instructions to diplomatic officers, 1897, § 173. 3 R. S., § 1709. Consular regulations, 1896, parag. 385-416. Instructions to diplomatic officers, 1897, §§ 184-185. 5 Rocca v. Thompson, 223 U. S. 317. See also Matter of D Adamo (1914), 212 N. Y. 214, reversing 144 N. Y. Suppl. 429. See also Ludwig, Ernest, Consular treaty rights and comments on the "most favored nation" clause, Akron, 1913. This book, while crude, presents most of the American decisions in point. "Treaty of June 1, 1910, art. XIV, Malloy's Treaties, III (Charles), 112, 117. Matter of D'Adamo, 212 N. Y. 214; Justice Day's dictum in Rocca v. Thompson considered inapplicable. 7 Austro-Hungarian Consul v. Westphal, 120 Minn. 122, 139; Matter of D'Adamo, 212 N. Y. 214, 225 (dictum); Matter of Holmberg's Estate, 193 Fed. 260. $167. Degree of Assistance in Certain Cases. Unfair treatment to American concessionaires, whether under the guise of legality or not, will result in a protest from the Department of State. If merely a threatened infringement of American interests, good offices will be employed to prevent actual damage. If the violation of rights has occurred, the diplomatic action will assume more vigorous form, depending upon the flagrancy of the offense and all the circumstances of the case.1 When the responsibility of a foreign government is moral, and not necessarily legal, the United States will nevertheless endeavor by all amicable means to obtain justice for its citizens. Thus, the accidental killing of an American naval officer by stray bullets from a French warship engaged in rifle practice induced the United States to appeal to the sense of justice of the French government to make reparation for the injury to the bereaved family.2 During the European war of 1914, numerous vessels carrying cargo belonging to American citizens were instructed to present their claims before the prize court by private counsel, with proof of ownership and the non-contraband character of the goods. The Department of State does not ordinarily intervene diplomatically to present the claims of individuals to prize, or indeed to any other courts; but it may, if requested, instruct the nearest consular officer to investigate and report upon the case to the Department, and informally to give notice of the claim to the court, or select some attorney to represent the owners before the prize court. It may be said that in all cases where American citizens are engaged in litigation abroad under circumstances rendering them subject to the local law and disentitled to demand diplomatic protection, the Department's assistance is confined to suggesting counsel, or, on request, engaging the services of an attorney. Obviously, however, the government assumes no responsibility for the integrity, 1 See N. Y. and Bermudez Co. claim v. Venezuela; efforts of the Dept. of State to obtain justice for the company during the sequestration proceedings, Sen. Doc. 413, 60th Cong., 1st sess., 139, 140; Guayaquil and Quito Ry. Co. v. Ecuador, For. Rel., 1907, I, 385. * Mr. Root, Sec'y of State, to Mr. McCormick, Nov. 13, 1906, For. Rel., 1907, I, 398, citing several cases in which the U. S. had voluntarily paid compensation to foreigners for injuries sustained through the carelessness of American officers. competence or reliability of the counsel employed, nor for the financial responsibility of the employing client. 168. The Backward Countries of Near and Far East. In the case of semi-civilized or backward countries, as will be more fully observed hereafter, a greater degree of international responsibility is imposed upon the local government than in countries of normal development. For example, injuries to the person or property of American citizens in China lead to a demand for indemnity whether an official or individual was the actual wrongdoer, China being held liable practically as a guarantor of the security of foreigners. The weaker the control of the police, or the local safeguards for the protection of foreigners and the proper administration of justice, the greater and more rigorous becomes the diplomatic protection exerted by foreign governments and the harsher the demand for prompt satisfaction for violation of the rights of person or property of an alien. Thus, for the killing of American citizens in China, Turkey or Persia demands are made which would not be thought of in the case of a similar injury in a country of higher standards of civilized administration. Again, the majority of Latin-American countries are held by various countries. of Europe to a higher degree of responsibility for injuries inflicted upon aliens than are countries like the United States or Canada. The demand in case of personal violence to an alien takes various forms, as has been observed in the study of the international responsibility of the state. Besides a claim for pecuniary indemnity, the demand may include the dismissal of delinquent police, the punishment of guilty offenders, and the institution of measures considered adequate or likely to prevent a recurrence of the offense. In the Labaree claim against Persia, the demand of the United States for indemnity was joined to a condition that "the amount of the indemnity should not be recovered by special tax, or by other device or pretext exacted from the innocent inhabitants of the province." Only upon a backward country could such a condition be imposed. 1 For. Rel., 1905, 722, 723. See also For. Rel., 1904-1907, under Persia. See peculiarly onerous conditions imposed on China for murder of a Chinese hospital student in 1898, For. Rel., 1898, 191–200. $169. Miscellaneous Cases. In the case of ordinary contract claims, as has been observed,1 the government's interposition is usually confined to the use of good offices in behalf of American citizens. The circumstances under which more vigorous measures may be undertaken have been fully set forth in the study of contractual claims. The Act of July 27, 1868 2 declared it to be the duty of the President, in case an American citizen is unjustly deprived of his liberty by the authority of a foreign government, to demand the reasons for such imprisonment, but prohibited his use of the military or naval power of the government to obtain his release. The extent to which the Department has exerted its power in behalf of American citizens imprisoned abroad will be considered presently. The Act of 1868 also provided that naturalized citizens are entitled to equal protection abroad with native citizens. The title of naturalized citizens abroad to claim American protection is, however, largely affected by treaties and by the Act of March 2, 1907. It seems desirable to postpone for the present the study of the protection accorded to naturalized citizens.3 Under the guano acts, American citizens who discover guano are protected in the prosecution of their enterprise, which extends, however, only to the appropriation and removal of the guano.4 § 170. Criminal Proceedings Abroad. In cases of judicial proceedings against a citizen held under criminal charges the government, in countries where civilized justice is administered, usually confines itself to securing for the accused the guarantees of local law and the equality of treatment with natives which is generally provided for by treaty. Among other matters, the diplomatic or consular officer is instructed to see to it that accused persons are apprized of the specific offense with which they are charged, and for this 1 Supra, §§ 112, 113. 215 Stat. L. 223; For. Rel., 1873, II, 1189. * See infra, §§ 231 et seq. R. S., § 5570. purpose the officer may seek the desired information from the local Ministry of Foreign Affairs.1 When citizens are arrested on shipboard in foreign ports, American consular officers have no authority to approve or disapprove the proceeding. But in Latin-American countries a custom appears to have grown up not to cause an arrest on shipboard without first obtaining the consent of the minister or consul, and if this consent is refused, the arrest is rarely made. Where an arrest is about to be made in an arbitrary manner, not in accordance with proper action under legal process, the appropriate diplomatic or consular officer is instructed to protest with a vigor commensurate with the threatened unnecessary danger to life or property, and to report the matter to his government. Torture inflicted by an officer of justice upon an American citizen arrested on suspicion, to extort from him a confession of guilt, gave rise, in a case in Venezuela, to a demand for indemnity.2 3 The government may protest against an unduly protracted imprisonment, and request an early trial for its citizen. It may ask for his release on bail, where the cause of justice is thereby equally subserved, and may, if the quarters in which he is detained are unsanitary, request his removal to more comfortable quarters. This has occasionally been done in some of the countries of Latin-America. At the trial, notwithstanding frequent differences in criminal procedure from country to country, the government may demand that its accused citizen be confronted with the witnesses against him, and that he have the right to be heard in his own defense, personally or by counsel,-in other words, that he have a fair and impartial trial with the presumption of innocence surrounding him until his guilt is established by competent and sufficient evidence, and that the law be applied to him in a just. and equitable manner. To assure the fairness of the trial, the government may send a consular or other representative to watch the proceedings. If the trial has been unjust, the government may demand a 4 1 Cases in Venezuela, 90 St. Pap. 340, For. Rel., 1898, 1137 et seq. The Venezuelan Executive Decree of Nov. 13, 1912, art. 1, provides for giving such information. 8 A. J. I. L. (1914), Suppl. 175. 2 For. Rel., 1884, 601. 3 Ibid., 1901, 407-415. * Cases in China, 71 St. Pap. 950, Baty, op. cit., 175. Austria-Hungary sent an |