suspension of sentence, or if an unjust conviction was obtained, a suspension of execution. In the cases of certain sentences imposed upon American citizens by a court-martial in Cuba, the United States believed the sentences to have been unjust, and for the purpose of enabling it to arrive at a conclusion in the matter, asked the Spanish government for the record of the proceedings of the court, the charges and the evidence, and for information as to the opportunity defendants had to defend themselves by counsel of their own choice, and by examination and summoning of witnesses. In the meantime, a suspension of execution was demanded.1 The government will also in appropriate cases insist that no cruel or unusual punishment be inflicted upon a convicted citizen. On several occasions, the Department of State has authorized the employment of the good offices of its diplomatic representative abroad in an endeavor to obtain executive clemency on behalf of a convicted American citizen.2 A petition for a pardon is not, however, officially presented.

When the rights of an American citizen in connection with criminal proceedings have been infringed, the government may present a claim for a denial of justice. The extent of the reparation demanded naturally varies with the gravity of the offense and the extent of the injury. It may involve, besides a claim for pecuniary indemnity, a request for the removal and punishment of the guilty officer, and other forms of retribution designed to serve as a warning and to prevent a recurrence of the offense.

§171. Financial Relief.

The government is frequently called upon to provide financial relief or transportation to the United States to destitute or insane American citizens abroad. Except in the case of destitute seamen, however, "there is no general appropriation or authority for the relief by a diplomatic representative of a distressed citizen of the United States or attorney to watch the trial of an American sheriff, charged with complicity in causing the killing of certain Austrian subjects in the Latimer riot cases. For. Rel., 1898, 111 et seq.

1 Competitor case in Cuba, 1896, For. Rel., 1896, 711-746. See also Mr. Frelinghuysen, Sec'y of State, to Mr. Lowell, Dec. 11, 1883, For. Rel., 1883, 479.

2 Moore's Dig. VI, § 921.

for furnishing him transportation home." 1 Various governments of Europe make provision for the relief by consular officers of their indigent citizens abroad, and in 1873, President Grant urged Congress, without success, to grant authority for the extension of the same assistance to American citizens abroad.2 The United States adopts the policy of taking care of indigent aliens 3 as of indigent natives, although this is a matter within the jurisdiction of the states of the Union. The federal government, therefore, makes the same response to requests by state officials to secure the return to their native countries of aliens who have become public charges as it does to requests by foreign countries to provide for bringing back to this country destitute American citizens abroad, namely, that as there are no government funds available for bringing home destitute or insane American citizens, the United States cannot ask foreign governments to assume the expense of returning their indigent nationals in this country to their original homes. The government, however, always endeavors to communicate the needs of indigent American citizens abroad to their relatives or friends in this country, with a view to securing relief for the sufferers.

The United States cannot insist that a foreign government continue to support an indigent American citizen for any length of time, nor can it raise any objection to his being deported at the expense of the foreign government. Similarly, state officials and institutions cannot be compelled to harbor an alien who has become a public charge. The states will generally comply with the duties of humanity, but cannot be prevented from ridding themselves, at their own expense, of undesirable aliens who have become permanent public charges, by sending them to their original homes abroad. The obligation of repatriation, possibly the strongest right and duty incident to nationality, requires the state to receive its own citizen. Some foreign countries, e. g.,

1 Instructions to the diplomatic officers of the U. S., 1897, § 175. For the provisions for the relief of destitute seamen and their transportation home, see Consular Regulations, 1896, arts. xv and xvi.

2 Annual message of Dec. 2, 1873, Richardson's messages, vii, 191.

3 Moore's Dig. III, § 486. An exception is, of course, to be noted in the case of aliens who become public charges within three years after their admission. Such aliens may lawfully be deported. Section 20 of the Immigration Act of 1907, Bouvé, op. cit., 699.

Russia and Luxemburg, provide by legislation for the return at public expense of their destitute nationals abroad.

In the matter of providing for insane persons, the states of the Union provide for the care of native and alien insane. The United States has no funds to reimburse foreign governments for the expense of maintaining American insane persons abroad, and the states of which these persons were residents, when called upon, have usually declined to undertake the burden. If confined in an asylum abroad, the federal government might be considered, under a liberal construction of the word "prisoner" as entitled to use the fund for the maintenance of prisoners, pending their return, for the care of incarcerated insane persons, pending their deportation to the United States. Up to the present time, however, it is not believed that the fund has been so employed. The practice of foreign governments in regard to the maintenance and protection of their destitute or insane citizens abroad varies greatly. By treaty, they often provide for the reciprocal care of their respective pauper citizens or for their repatriation and the reimbursement to the other country of the expense of the temporary maintenance of indigent citizens. These treaties often enter into details concerning the expense of hospital treatment, poor relief, accident insurance, and similar matters. By municipal legislation, various degrees of protection are extended to their own indigent citizens abroad and to destitute aliens at home. In the case of their insane nationals, Russia and Luxemburg appear to provide for repatriation and reimburse the foreign country for the expense of their maintenance; Baden pays a per diem and repatriates within three months; Austria pays the expenses, but only if the family of the insane person is in a position to make reimbursement; Germany, Belgium and Italy repatriate their insane subjects but do not pay the expenses of their maintenance abroad; whereas Great Britain and the Netherlands follow the example of the United States. by neither repatriating nor paying expenses.1

In special emergencies the government, usually by Act of Congress, has provided for the relief and transportation to the United States

1 The practice of the countries mentioned is that followed in their relations with France. Weiss, 2nd ed., II, 157; Tchernoff, 358–360. It may be that treaties with other countries modify this practice.

of destitute American citizens abroad. For example, Congress appropriated $50,000 in 1897 for the relief of destitute Americans in Cuba,1 to be expended at the discretion of the President "in the purchase and furnishing of food, clothing and medicines to such citizens, and for transporting to the United States such of them as so desire and who are without means to transport themselves." These appropriations are made in cases where considerable numbers of citizens are in want, rather than on behalf of specific individuals. In the latter cases, the Congress or the Department of State very rarely extends financial relief. On occasion, when an American citizen is on trial in foreign courts, and when the case seems meritorious, the Department has authorized the expenditure of small sums for counsel to defend him.2 Similarly, where an outrage has been committed upon an American citizen abroad, the Department has authorized the American consul to spend a small amount to aid in finding the guilty offenders. Without special instructions from the Department, a diplomatic or consular officer has no authority to advance sums for the relief of American citizens abroad.4

3

1 J. Res. 11, May 24, 1897, 30 Stat. L. 220. See also For. Rel., 1898, 998-1000. For relief to destitute Americans in Panama, 1889, see Moore's Dig. III, 809. See also J. Res. 342, Aug. 12, 1912, $100,000, for transporting citizens fleeing from threatened danger in Mexico, 37 Stat. L. 641; J. Res. 47, Aug. 21, 1912, $20,000, for subsistence of fleeing citizens, 37 Stat. L. 643; J. Res. 10, Sept. 16, 1913, $100,000 for relief and transportation of destitute Americans in Mexico, 38 Stat. L. 238. Act of June 23, 1913, 38 Stat. L. 30, reimbursing Mexican Northwestern Ry. for transportation expenses. J. Res. 30 and 31, Aug. 3 and Aug. 5, 1914, appropriating $250,000 and $2,500,000, respectively for relief, protection and transportation of American citizens in European war area, 38 Stat. L. 776, with a proviso for reimbursement, if financially able. See Dept. of State circulars on relief, August, 1914, and executive order of August 5, 1914, No. 2012.

2 E. g., Gendrot's case, For. Rel., 1899, 271.

3 Gourd case in Mexico, October, 1913. In the Waller case in France, in 1896, the Ambassador was instructed to furnish security for costs in case Waller desired to bring an action against France or an individual in the French courts. The U. S. also. furnished Waller and his family with subsistence and transportation. H. Doc. 225, 54th Cong., 1st sess., For. Rel., 1895, I, 251 et seq. The U. S. has no funds to pay expenses of sending witnesses abroad to testify in proceedings against assailants of American citizens. Balano case, 1913. A bill was introduced in the Senate by Sen. Weeks to have the U. S. refund expenses incurred in sending witnesses to Martinique.

4 Consular Regulations, 1896, § 360.

The inability of the government to pay the ransom demanded by the brigands who captured Miss Ellen M. Stone in Turkey in 1901 induced the Department to persuade private persons to raise the money by popular subscription, under a promise to endeavor to obtain reimbursement from a foreign government, if one could be held responsible, and if not, to urge Congress to make an appropriation reimbursing the subscribers. As it was decided that no foreign government could be held responsible, the President recommended a Congressional appropriation, but up to the present time the moral obligation of the government to make reimbursement has not been fulfilled.1 In the cases of Col. Synge and Mr. Suter captured in Turkey in 1881 by brigands, and held for ransom, the British government paid a large ransom in each case, but demanded reimbursement from Turkey because of Turkey's neglect in taking proper steps to suppress brigandage. In paying these sums, the British government decided not to advance money in the future for the ransom of British subjects.2

MEASURE OF DAMAGES

§ 172. Direct and Indirect Damage.

In systems of private law, the measure of damages is usually the whole amount of the loss which is the natural result of the injury inflicted, including, therefore, both damnum emergens and lucrum cessans. International law, however, has provided no fixed measure by which damages may be assessed, but in this respect has followed the Roman and the civil law in vesting wide discretionary powers in the judge or arbitrator. The examination of a large number of arbitral decisions leads to the conclusion that the state is not charged with responsibility for indirect damages to the same extent as private individuals, the criterion of allowance depending largely upon whether they are proximate or remote, reasonably certain or speculative and consequential. The subject may best be considered in its relation to various types of cases.

The first great case in which the distinction between direct and in

1 Sen. Doc. 29, 63rd Cong., 1st sess., President's message, March 26, 1908. See Congressional Record, 62nd Cong., 2nd sess., v. 48, No. 218, Aug. 23, 1912. 272 St. Pap. 1167, 1175. See, however, supra, p. 220, note 1.