"Americans, whether native born or naturalized, owe submission to the same laws in Great Britain as British subjects, while residing there and enjoying the protection of that government." 1

The question has frequently arisen in our international relations as to how far the United States will protect a citizen abroad who has violated the local law of the country of his residence. As will be noted, when criminal proceedings are involved, protection has not been absolutely declined, but it has in general been strictly limited to securing a fair trial and the application of the ordinary penalties or a concurrent attempt to ameliorate the harshness of arbitrary measures.

In the case of the Fenian movement in Ireland many naturalized Americans, natives of Ireland, were involved in suspicion of having incited the movement and were arrested under the suspension of the habeas corpus act in Ireland passed in February, 1866. The United States was often placed in a delicate position in extending protection. The principle generally followed may be expressed in the instructions of Mr. Adams, Minister of the United States, to Mr. West, American Consul at Dublin, namely:

"To secure a proper share of protection for innocent persons who were citizens of the United States without attempting to interfere on behalf of those who had justly subjected themselves to suspicion of complicity with treasonable practices." 2

In the case of Haggerty against Mexico a claim was made for the destruction of property of a neutral American citizen in Texas, the property being under the guaranty of the protection of Mexico under the treaty of 1831 between the United States and Mexico. On proof, however, that the property was introduced into Mexico without having paid customs duties and in disregard of a decree closing the port and without certified invoice from the Mexican consul, the Commission held that the property was introduced not under the protection of Mexico, but in defiance of it and was hence without rights under the treaty mentioned.

1 Mr. Seward, Sec'y of State, to Mr. Adams, Dipl. Cor., 1866, Pt. 1, cited from appendix to British Report on Aliens and Naturalization, 1869, pp. 47-48.

2 Cockburn on Nationality, London, 1869, p. 86.

Haggerty et al. (U. S.) v. Mexico, Domestic Commission under act of Congress, Mar. 3, 1849, Moore's Arb. 2664.

A number of cases have arisen in which the injury, to redress which protection was demanded, arose out of a breach of the local law by a foreign subject. In one such case, an officer of the U. S. S. Mohican in a Brazilian port fired his pistol at one of the boatmen trying to desert. The officer was arrested and then released with a reprimand. On complaint by the captain that this was an offense to the officer's dignity and to our flag Mr. Seward, Secretary of State, answered that the officer's act

"was a breach of the peace, offensive to the dignity of Brazil, which the Government of that country may well expect the United States to disavow and censure. . . . The United States are not looking out for causes of complaint against foreign states."

It is a general rule that an injury to an alien arising out of a breach of or failure to observe the local law or police regulations involves a complete or partial forfeiture by the alien of the protection of his own government, though the government will usually insist that his trial be fair and the punishment not unusual or disproportionate to his offense. International commissions have followed this rule. Thus, in the case of Santangelo, a naturalized American citizen, expelled from Mexico for publishing a periodical in which articles appeared tending to ridicule Mexico, the commissioners under the convention of April 11, 1839 made a large award because the expulsion was extremely harsh and disproportionate to the offense. The violation of a proclamation of Gen. Butler in New Orleans during the Civil War prohibiting the publication of articles reflecting on the United States, etc., by a certain Dubos, a French citizen, was held to have justified

1 Brand (U. S.) v. Peru, January 12, 1863, Moore's Arb. 1625-1626; Baker (U. S.) v. Peru, January 12, 1863, Moore's Arb. 1626; Case of Koenigsberger in Guatemala (attempted smuggling), For. Rel., 1901, pp. 252–260; Case of the British brigantine Hibernia, unlawfully engaged in diving operations on the coast of Peru, 35 St. Pap. 1301. See also the cases of the British ship Vixen, seized by Russia for carrying a prohibited commodity (salt) into a Russian port (26 St. Pap. 2-60) and the British schooner Araunah, seized by Russia for seal-catching without license in Russian waters, in which cases Great Britain declined to interfere with the regular course of Russian law confiscating the vessels. American-owned vessels in Turkey, in 1912, were warned that a continued violation of local navigation regulations would result in a withdrawal of protection.

his arrest, but the failure to try him by military commission in accordance with the proclamation warranted an award.1

We have seen that naturalized citizens returning to their native country are frequently called upon to do military service. Where such service had accrued and was due at the time of emigration from their native country, protection is withdrawn. Where the liability to service has not accrued previous to emigration, the United States has generally been able to relieve them from the burdens of service. However, by the local law of many countries the evasion of service is a violation of national law and is punished by expulsion should the citizen return to his native country. It has been observed that in such cases the United States limits its protection against the order of expulsion to securing either an extension of the order until business affairs can be adjusted, or a similar amelioration of the arbitrary application of the order.

§ 349. Acquittal of Criminal Charges. International Claim Unusual. Demands for protection have come before foreign offices on the part of citizens abroad who were acquitted of alleged crimes by the local courts and thereupon demanded damages from the local government. The United States in a recent case of this kind,2 in which a citizen was acquitted of the charge of counterfeiting, declined to press his claim on the ground that his acquittal did not establish his innocence of the crime charged, but that his defense was technical and successfully showed that the statutory crime of counterfeiting had not been committed.

Great Britain, in a case in which a British subject had been convicted in Haiti through gross irregularities in the trial, limited its protection to demanding his release from imprisonment, but declined to make any demand for indemnity on the ground that the circumstances showed that the Haitian government had good grounds for putting him on his trial, a jury on a first verdict having been equally divided as to his guilt.

1 Santangelo (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3333, 3334; Dubos (France) v. The United States, January 15, 1880, Moore's Arb. 3319, 3321.

2 Case of Michael J. Kouri v. Haiti, For. Rel., 1906, pp. 871-2.

1

If complete innocence of a crime for which a citizen had been convicted and imprisoned were established, it is probable that the United States would, if judicial or administrative machinery were at fault, demand an indemnity on the ground of denial of justice, as has been done in a few cases notwithstanding the fact that up to the present time the United States fails to acknowledge the principle that in convicting an innocent man, it has committed against him a grievous wrong for which the state should indemnify him. Most of the European countries, as has been noted, provide by statute for the indemnification by the state of innocent persons erroneously convicted.2

The citizen abroad, therefore, who violates the local law does not sin away completely his right to the protection of his own government. That government will, in its discretion, take his censurable conduct and the jurisdictional rights of the local state into account, and will exercise ordinarily a protective surveillance not intended to exempt him from a penalty properly incurred, but limited to securing for him a fair trial and customary treatment.

BREACH OF INTERNATIONAL LAW

§ 350. Piracy and Slave Trade.

Attention has already been called to the prevailing theory that international law, having force among states only, cannot impose duties upon individuals. Hence many publicists would consider it a misnomer to speak of a breach of international law. Rehm is one of the very few, who, reasoning from the penalties imposed upon individuals for violations of blockades and for carrying contraband, argues that international law does bind individuals to some extent. We are not without some authority, therefore, in taking the position, even in a qualified sense, that individuals may violate international law.

The offenses against international law which involve a forfeiture of national protection may be divided into two broad classes: first, those which, while punishable by municipal law, are recognized as 1 Supra, p. 196.

Borchard, State indemnity for errors of criminal justice, S. Doc. 974, 62nd Cong., 3rd sess. Wisconsin and California enacted statutes to this effect in 1913.

sufficiently heinous in character to have been made, by convention and practice, violations of international law as well and punishable by any state having jurisdiction; and secondly, those acts which, while not punishable by municipal law, are admitted by all states as being subject to a recognized penalty on the part of the state aggrieved.

The offenses of the first class which have received the most prominence in international relations are piracy and the slave trade. The commission of piracy is regarded as a clear ground for the denial of protection. A pirate has placed himself outside the protection of any law-municipal or international.1

In the early part of the nineteenth century the nations of the world agreed to stamp out the slave trade by the confiscation of vessels engaged in that obnoxious enterprise. By statute it is now illegal in practically all civilized countries. International arbitral commissions to which the United States have been a party have on two occasions dealt with such cases. The first was the case of the brig Lawrence, an American vessel which put into the British port of Freetown in Africa and was there seized and libelled on the ground that she was equipped for the African slave trade, although her papers indicated a general cargo for Havana. Bates, the umpire of the British-American commission of 1853, held that the owners of the vessel could not claim the protection of their government because at the time of the condemnation the slave trade was prohibited by all civilized nations and hence by the United States.2

Similarly, in the Pelletier case 3 Secretary of State Bayard declined to enforce against Haiti an award made by the arbitrator on the ground that the arbitrator restricted himself to deciding whether piracy by the law of nations as distinguished from the piracy of municipal law

1 Piracy, §§ 290, 303-305, of the Federal Penal Code of 1910; Slave-trade, §§ 246– 251 of the Penal Code. For cases on these sections, see Tucker & Blood's annotated Federal Penal Code, Boston, 1910. An international act analogous to the General Act of 1891 for the suppression of the slave trade, is the protocol signed at Brussels, July 22, 1908, between Great Britain and various other powers prohibiting the importation of firearms, etc., within a certain zone in West Africa. 101 St. Pap. 176. 2 Brig Lawrence (U. S.) v. Great Britain, Feb. 8, 1853, Moore's Arb. 2824-2825. 3 Pelletier (U. S.) v. Haiti, May 24, 1884, Strong, arbitrator, Moore's Arb. II, 1749 et seq.