¹ Heilborn, System des Völkerrechts, p. 64 et seq.

² Hall, , Foreign Powere and Jurisdiction of the British Crown, Oxford, 1894, p. 4.Google Scholar

³ Pillet, , Recherches sur les Droits fondamentaux des Etats, Paris, 1899, p. 19 Google Scholar et seq., particularly at p. 28.

⁴ Vattel, Droit des Gens, Pradier-Fodéré’s ed. 1863, Bk. 2, Oh. 6, Sec. 71, Vol. 2, p. 45 et seq.

Vattel is of the opinion that “whoever ill treats a citizen indirectly offends the state, which ought to protect its citizen. The sovereign of the latter must avenge his injury, compel the aggressor to accord reparation or punish him, since otherwise the citizen would not obtain the great end of civil association which is security.” Fiore differs from this opinion; he believes that it is against good politics and governmental prudence to make the complaint of an individuai a national issue, excepting where it is of a nature to engage the safety or honor of the state. Nouveau droit international public, Antoine’s translation, Sec. 646, Vol. 1, p. 560. Several Latin-American states have given official sanction to Fiore’s view in their legislation and. their treaties.

⁵ Pradier-Fodéré, , Traité de Droit international public, Vol. 1, Secs. 204-5Google Scholar; Calvo, , Le droit international, Vol. 1, Secs. 204-5 Google Scholar; Despagnet, , Cours de Droit international public, 2d ed., 1899, p. 197 Google Scholar; Revue générale du droit international public, Vol. 2 (1895), p. 341.

As early as 1852 the Venezuelan Government had endeavored to obtain an agreement among the Latin-American states not to recognize any of the claims presented by foreign governments in matters of private interest. Mr. Leocardio Guzman was charged at Lima and other capitals with a mission whose object was, it was said, to prepare an entente of the American states on this point. Annuaire des deux mondes, Vol. 3, 1852-3, p. 749, cited in Revue générale de droit international public, 1897, pp. 227-8.

⁶ See letter of Secretary of State Gresham to Mr. Ryan, Minister to Mexico, April 26, 1893, cited in Moore’s Digest of International Law, Vol. VI, pp. 270-1, to the effect that only “where complete international equality is recognized,” must a country “ admit the competency and the disposition of the courts of the other to do complete justice to all litigants . . . regardless of nationality.”

See also opinion of M. Thiers cited in the Project presented to the Pan-American Conference of 1901 at Mexico by a delegation of several Latin-American states, session of December 4, 1901. Second International American Conference, English text, Mexico, Government Printing Office, 1902, Vol. 2, pp. 273-4. See also Moore’s Digest, Vol. VI, p. 267.

⁷ Op. cit., Secs. 204-5. See also on the Calvo doctrine articles by Hershey, Amos S., American Journal of International Law, Vol. I, pp. 26-34 Google Scholar; Bordwell, Percy in Green Bag, Vol. 18 (1906), pp. 377-82 Google Scholar; Edgington, , The Monroe Doctrine, 1905, pp. 218-260 Google Scholar; Crichfield, , American Supremacy, 1908, Vol. II, p. 39 Google Scholar et seq.

⁸ Calvo, op cit., Sec. 1280 et seq.; Pradier-Fodérë, op cit., Sec. 402 et seq.; Bluntschli, Le droit international codifié, Sec. 380; Seijas, , El derecho international, Vol. 3, p. 308 Google Scholar et seq.; Vol. 4, pp. 507-14, and authorities there cited; Fiore, op. cit., Secs. 648-657.

Fiore believes that protection is unjustifiable when its object is to obtain for subjects abroad a privileged position. He holds that individuals settling abroad are subject to the local law (Sec. 648). He justifies protection of the interests of an individual cnly where the foreign government acts arbitrarily towards the alien in violating a principle of law, i. e., only when it deprives aliens of the enjoyment of civil rights, etc. (Sec. 649).

Antoine, Fiore’s translator, believes that when a state treats aliens in a prejudicial manner by laws which are in derogation of the usage of civilized countries of our epoch, intervention is legitimate. He thus justifies the intervention of France in 1838 in Buenos Ayres and Mexico.

⁹ Calvo, op. cit., Sec. 1297, and authorities there cited; Pradier-Fodéré, op. cit., Secs. 204-5, 1224. Claims arising out of injuries sustained by mob violence are placed upon the same footing. Calvo, Sec. 1271 ; Vol. 6, Sec. 256.

¹⁰ After the civil war in Chile in 1891, Rev. gen. dr. int. pub., 1896, p. 478; 1897, pp. 416-18. At the end of the civil war in Venezuela in 1892, Rev. gen., Vol. 2, 1895, p. 344; at the end of the civil war of 1893-4 in Brazil, Rev. gen., Vol. 4, 1897, p. 403 et seq.; Seijas, op. cit., Vol. V, pp. 544-51; and on other occasions, Rev. gen., Vol. 2, p. 338.

¹¹ The clause usually reads: “Neither [citizens] nor foreigners shall have in any case the power to claim from the government indemnification for damages arising out of injuries done to their persons or property by revolutionists.” See constitution of Guatemala, Art. 14, Rodriguez, , American Constitutions, Vol. 1, p. 238 Google Scholar; Salvador, , Art. 46, Rodriguez, Vol. I, p. 268 Google Scholar; Venezuela, , Art. 15, Rodriguez, Vol. I, p. 201 Google Scholar; Haiti, Art. 185, Rodriguez, Vol. I, p. 85; Honduras, , Art. 142, Rodriguez, Vol. I, p. 388 Google Scholar; Ecuador, law of August 25, 1892, Art. 12 (British and Foreign State Papers, Vol. 84, p. 645); Venezuela, law of April 16, 1903, Art. 17 (State Papers, 96, p. 647).

¹² The convention on the rights of aliens adopted at the Second Pan-American Conference at Mexico in 1901 to which the United States did not subscribe reads the states are not responsible for damages sustained by aliens through acts of rebels or individuals and in general for damages originating from fortuitous causes of any kind, considering as such the acts of war whether civil or national, except in the case of failure on the part of the constituted authorities to comply with their duties.” Sen. Doc. 330, 57th Cong., 1st Sess., p. 228.

The treaties that have been concluded between European and American states providing for exemption from responsibility in eases of civil war also deny the exemption where the state authorities have been negligent. See Alvarez, Le droit international americain, 1910, p. 122, and the following treaties:

¹³ Hall, , International Law, 5th ed., 1904, p. 223 Google Scholar. See also Fiore, op. cit., See. 673 et seq.; Pillet, Les Lois de la Guerre, p. 29; Wiesse, Le Droit international appliqué aux Guerre civil, Sec. 14; Levai, La Protection diplomatique, See. 103; Pittard, Protection des Nationaux, 1996, pp. 281-2.

¹⁴ The law of Venezuela, April 16, 1903, which is typical of many of these provisions, reads, Art. 11 (State Papers, Vol. 96, p. 647): “Neither domiciled aliens nor those in transit have the right to have recourse to diplomatic intervention except when legal means having been exhausted before the competent authorities, it is clear that there has been a denial of justice or a notorious injustice has been done or that there has been an evident violation of the principles of international law.” See also Costa Rica, law of December 20, 1886, Moore’s Digest, Vol. VI, pp. 269-70; Salvador, law of September 27, 1886, Art. 39, Moore’s Digest, Vol. VI, p. 267, Foreign Relations, 1887, p. 69; Ecuador, law of August 26, 1892, Art. 10, State Papers, 84, p. 645; Mexico, law of May 28, 1886, Art. 35, Legislacion Mexicana, Vol. 17, p. 474 et seq., For. Rel., 1895, pt. 2, p. 1012; Guatemala, Constitution, Art. 23, Rodriguez, Vol. I, 239; Nicaragua, Constitution, Art. 11, Rodriguez, Vol. I, p. 362.

See Project presented to the Second International American Conference, op. cit., pp. 274-77. Article 3 of the convention on the rights of aliens adopted at the Conference reads: “Wherever an alien shall have claims or complaints either civil, criminal or administrative, whether against a state or its citizens, he shall present his claims to a competent court of the country and such claims shall not be made through diplomatic channels except in the cases where there shall have been on the part of the court a manifest denial of justice or unusual delay, or evident violation of the principles of international law.”

A provision similar to this convention has been embodied in the following treaties concluded between European and American states. Mexico appears to have had little difficulty in negotiating such treaties:

Germany and Mexico, Dec. 5, 1882, Art. 18, Martens’, , Recueil des traités, Vol. 59, p. 474 Google Scholar.

Sweden and Norway and Mexico, July 29, 1885, Art. 21, ibid, Vol. 63, p. 690.

France and Mexico, Nov. 27, 1886, Art. 11, ibid, Vol. 65, p. 843.

Holland and Mexico, Sept. 22, 1897, Art. 16, ibid, Vol. 83, p. 188.

Germany and Colombia, July 23, 1892, Art. 20, ibid, Vol. 69, p. 842.

Italy and Colombia, Oct. 27, 1892, Art. 21, ibid, Vol. 72, p. 313.

Spain and Peru, July 16, 1897, Art. 6, Olivart’s, Coleccion de tratados de España, Vol. 12, pp. 348-9 Google Scholar; Revue générale de droit int. pub., 1897, p. 795.

Spain and Colombia, April 28, 1894, Art. 6, Olivart, op. cit., Vol. 11, p. 63.

France and Venezuela, Nov. 26, 1885, Art. 5, Martens, Recueil, Vol. 62, p. 684.

United States and Peru, Sept. 6, 1870, Art. 37, Martens, op. cit., Vol. 51, p. 107; Pradier-Fodéré, op. cit., Vol. III, p. 236.

An exemption from diplomatic interposition except in cases of manifest denial of justice in some treaties, has reference only to the case of aliens taking part in civil struggles and provides that these shall be treated as nationals without right to diplomatic interposition except in cases of denial of justice.

Spain and Ecuador, May 23, 1888, Art. 3, Olivart’s, Colección de tratados de España, Vol. 9, p. 27 Google Scholar.

Spain and Honduras, Nov. 17, 1894, Art. 3, Olivart, op. cit., Vol. 11, p. 156.

Belgium and Ecuador, March 5, 1887, Art. 3, Martens, Recueil, Vol. 65, p. 741.

¹⁵ Articles 1 and 2 of the convention on the rights of aliens adopted at the Second Pan-American Conference at Mexico, 1901-2, have been reincorporated into the constitutions and laws of the majority of the Latin-American republics. This convention provides (1) “Aliens shall enjoy all civil rights pertaining to citizens and may make use thereof in the substance form or procedure and in the recourses which result therefrom, under exactly the same terms as the said citizens except as may be otherwise provided by the constitution of each country.” The reserve embodied in this article “except as may be otherwise provided by the constitution of each country” may leave the effect of the convention in some doubt. Article 2 provides, “The states do not owe to, nor recognize in favor of, foreigners, any obligations or responsibilities other than those established by their constitutions and laws in favor of their citizens.” Sen. Doc. 330, 57th Cong., 1st Sess., p. 228.

See also Alvarez, op. cit., pp. 234-5; Calvo, op. cit., Vol. 6, Sec. 256, p. 331; For. Rel., 1893, pp. 731-4.

The Third Pan-American Conference at Rio de Janeiro, 1906, did not renew the convention on the right of aliens adopted at the Mexican Conference in 1901, but seems to have left the matter to be governed by the principles of international law. Alvarez, op. cit., p. 235.

The following constitutions embody this provision:

The following laws contain a similar provision:

Guatemala, Law of Feb. 21, 1894, Art. 47, State Papers, Vol. 86, p. 1281 et seq.

Mexico, Law of May 28, 1886, Art. 30, Foreign Relations, 1895, pt. II, p. 1012; Legislacion Mexicana, Vol. 17, p. 474 et seq.

¹⁶ Report on the Uniform Code of International Law at the First Pan-American Conference, Sen. Ex. Doc. 224, 51st Cong., 1st Sess., pp. 28, 29; Mr. Fish, Secretary of State, to Mr. Foster, Minister to Mexico, July 15, 1875, Moore’s Digest, Vol. VI, p. 310. See Mr. Bayard’s statement with reference to the Venezuelan law of February 14, 1873, Moore’s Digest, Vol. VI, p. 745; see also Foreign Relations, 1887, p. 99; 1888, p. 491; 1893, pp. 731-2.

¹⁷ Salvador, Constitution, Art. 45, Rodriguez, Vol. I, p. 268 ; Cuba, Constitution, Art. 10, Rodriguez, Vol. II, p. 115; Salvador, Law of September 29, 1886, Art. 38, State Papers, Vol. 77, p. 116; Colombia, Laws of November 28, 1888, Art. 9, State Papers, Vol. 79, p. 167 et seq.

¹⁸ Honduras, decree of April 10, 1895, Art. 27, State Papers, Vol. 87, pp. 703-4. Salvador, law of September 29, 1886, Art. 29, State Papers, Vol. 77, pp. 116-18. Guatemala, decree of February 21, 1894, art. 42, State Papers, Vol. 86, p. 1281 et seq.

¹⁹ The clause reads (Honduras, decree of April 10, 1895, State Papers, Vol. 87, pp. 705-6, Art. 34) : “Aliens may not have recourse to diplomatic intervention except in case of denial of justice, and after having in vain appealed to the ordinary means provided by the laws of the Republic.”

Article 35 provides: “Denial of justice is understood when the judicial authority refuses to make a formal declaration concerning the principal matter or any of the incidents of the case. * * *

“Consequently, by the mere act of the judge giving a decision or sentence, in any sense, denial of justice cannot be alleged, although it may be alleged that the decision is iniquitous or contrary to law.”

See also, Salvador, law of September 29, 1886, Arts. 39 and 40, State Papers, Vol. 77, pp. 116-18; Guatemala, decree of February 21, 1894, Art. 42, State Papers, Vol. 86, p. 1281 et seq.

Brief of Mr. Penfield in case of Salvador Commercial Co. U. S.) v. Salvador, For. Rel., 1902, p. 845.

²⁰ Treaty between United States and Peru, September 6, 1870, Art. 37, Pradier-Fodéré, op. cit., Vol. III, p. 236; Martens, op. cit., Vol. 51, p. 107.

²¹ Great Britain and the United States, while upholding the duty of their injured subject abroad to appeal to the local court for redress, have never hesitated to interpose in his behalf when they deemed a foreign court in any way unworthy of confidence. Lord Palmerston in the House of Commons, June 25, 1850; Ackerman, Attorney-General, 1871, 13 Atty.-Gen. Op., p. 547, cited in Moore’s Digest, Vol. VI, pp. 681-2.

In some cases of oppression resort to the judicial remedy may be dispensed with, diplomatic interposition being immediate. Mr. Bayard, Minister to Mexico, July 20, 1885; 2 Wharton’s Digest, p. 685, and other cases there cited.

For attitude of Germany, see Foreign Relations, 1902, p. 844, Moore’s Digest, Vol. VI, p. 300.

For United States protest, see Foreign Relations, 1887, pp. 78, 99, Moore’s Digest, Vol. VI, pp. 267, 271; for Great Britain’s protest, December 7, 1887, and April 17, 1888, against the law of Salvador of September 29, 1886, see State Papers, Vol. 77, p. 116.

²² The constitution of Hayti of October 9, 1889, Art. 185, Rodriguez, op. cit., Vol. II, p. 85, reads: “The injured parties, however, shall have the right if they choose to prosecute before the courts according to law the individuals recognized as authors of the wrongs perpetrated and seek in this way the proper legal reparation.” See also Ecuador, , constitution, Art. 39, Rodriguez, Vol. II, p. 284 Google Scholar; Salvador, , constitution, Art. 38, Rodriguez, Vol. I, p. 294 Google Scholar; Bolivia, constitution, Art. 111, Rodriguez, Vol. II, pp. 441-2; Venezuela, decree of February 14, 1873, Art. 3. See also Tchernoff, Protection des Nationaux, 1899, p. 292; Calvo, op. cit., Sec. 1263.

²³ Recopilacion de leyes de Ecuador (Noboa), Vol. 2, pp. 124-5.

²⁴ State Papers, Vol. 79, pp. 1667 ; Alvarez, op. cit., p. 121. The United States in a series of notes declared that they could “ never acquiesce in any attempt on the part of [Ecuador] to use such a statute as an answer to a claim which this government had presented.” For Rel., 1881, pt. 1, pp. 490-2.

²⁵ Venezuela, decree of February 14, 1873, Recopilacion de leyes, Vol. 5 (1870-3), pp. 241-3; State Papers, Vol. 74, pp. 1065-67. Aroa Mines (Gt. Brit.) v. Venezuela, February 13, 1903, Ralston, Vol. I, p. 350 et seq. The Venezuelan decree of 1873 provides that if the claim appears to have been exaggerated the claimant shall forfeit the entire claim and is in addition liable to a fine and to imprisonment from three to twelve months; if the claim appears to he ill-founded the claimant is liable to a still heavier fine or to imprisonment of from six to twenty-four months (Art. 8). The law of April 16, 1903, Art. 12 (St. Pap., Vol. 96, p. 647 et seq.) compels the alien to subscribe a declaration binding himself to abide by the provisions of the decree of 1873 under penalty of expulsion. See also Rev. gen. dr. int. pub., Vol. 2 (1895), p. 344 et seq., and article by Daguin, , “Les étrangers au Venezuela,” Rev. du dr. int. privé, Vol. 1 (1905), p. 277 et seq. Google Scholar

It is to be noted that occasionally Latin-American governments have established courts to consider claims arising out of injuries inflicted upon foreigners which are apparently free from these hazardous limitations. Thus Colombia, by a law of August 31 and October 11, 1886, State Papers, Vol. 77, p. 810, as amended February 15, 1887 (State Papers, Vol. 78, p. 53), provided that loans, supplies, expropriations or other losses even when under circumstances caused by rebels shall be compensated for. See decree of Colombia, July 30, 1878, State Papers, Vol. 69, p. 376; Guatemala, , law of February 21, 1894, Art. 81, State Papers, Vol. 86, p. 1281 Google Scholar et seq.

As in most state systems founded upon Roman law, the state generally in Latin-America can be sued. It is expressly provided for in the following constitutions and laws:

²⁶ Nicaragua, , constitution, Art. 11, Rodriguez, Vol. I, p. 302 Google Scholar; Honduras, constitution, Art. 15, ibid, Vol. I, p. 362; Honduras, law of April 10, 1895, Art. 37, State Papers, Vol. 87, p. 707.

²⁷ Ecuador, constitution, Art. 38, Rodriguez, Vol. II, p. 283, Rev. gen. dr. int. pub., Vol. 4, 1897, p. 228. See also Ecuador, law of August 25, 1892, Art. 14, State Papers, Vol. 84, p. 646; Venezuela, constitution, Art. 124, Rodriguez, Vol. I, pp. 230-1 ; Colombia, law of November 26, 1888, Art. 15, State Papers, Vol. 79, p. 167 et seq.

See letter of Secretary of State Bayard to Mr. Straus, Minister to Turkey, June 28, 1888, Foreign Relations, 1888, pt. 2, p. 1599, Moore’s Digest, Vol. VI, pp. 296-7, with reference to a law of Turkey of January 10, 1888, Art. 5, providing that foreigners shall not be permitted to set up printing offices in Turkey unless by formal declaration they renounce the privileges and immunities of foreigners.

²⁸ Moore’s Digest, Vol. VI, pp. 296-7.

²⁹ For the policy of Italy see Rev. gen. dr. int. pub., Vol. 4 (1897), pp. 405-6, citing notes of Italian Minister of Foreign Affairs.

³⁰ Moore’s Digest, Vol. VI, p. 705 et seq. Statement of Mr. Hay, Secretary of State, in the case of Salvador Commercial Company (U. S.) v. Salvador, , Moore’s Digest, Vol. VI, pp. 731-2 Google Scholar, For. Relations, 1902, pp. 839, 871; Mr. Olney, Secretary of State, in claim of North and South American Construction Company v. Chile, , Moore’s Digest, Vol. VI, pp. 728-9 Google Scholar, For. Relations, 1895, pt. 1, p. 83; Calvo, op. cit., Vol. VI, Sec. 366, p. 351; McMurdo’s case (U. S.) v. Portugal, , Moore’s Arbitrations, Vol. II, pp. 1865-99 Google Scholar, Moore’s Digest, Vol. VI, pp. 727-8, 297.

³¹ Moore’s Digest, Vol. VI, p. 295, and cases there cited. See also Milligan (U. S.) v. Peru, December 4, 1868, Moore’s Arbitrations, Vol. II, pp. 1643-4.

³² Moore’s Digest, Vol. VI, p. 718, and authorities there cited.

³³ Foreign Relations, 1902, p. 844; Wharton’s Digest, Vol. II, Sec. 242, p. 695; Moore’s Digest, Vol. VI, p. 294; Martini (Italy) v. Venezuela, February 13 and May 7, 1903, Ralston, Vol. I, p. 819; other cases cited in Moore’s Digest, Vol. VI, p. 307.

The decisions, however, are by no means uniform. See opinion of Plumley, Umpire, in French Company of Venezuela Railroad (France) v. Venezuela, February 19, 1902, Sen. Doc. 533, 59th Cong., 1st Sess., p. 445; Day & Garrison (U. S.) v. Venezuela, December 5, 1885, Moore’s Arbitrations, Vol. IV, p. 3548; Orinoco Steamship Company (U. S.) v. Venezuela, February 13, 1903, Barge, Umpire, Ralston, Vol. I, pp. 90-91.

³⁴ Rudloff (U. S.) v. Venezuela, February 13, 1903, Ralston, Vol. I, pp. 180-187.

³⁵ United States v. Venezuela, December 5, 1885, opinions of the Commission, Washington, 1890, p. 451.

³⁶ Constitution of February 21, 1901, Art. 13, Rodriguez, Vol. II, p. 115.

³⁷ Constitution of February 13, 1904, Art. 30, ibid, Vol. I, p. 398.

³⁸ Rodriguez, Vol. I, p. 158.

³⁹ Salvador’s constitution, Art. 48, Rodriguez, Vol. I, p. 268, provides that the alien who accepts office with salary becomes a citizen, rt is also generally provided that a person accepting public office becomes thereby a citizen.

The American republics generally reserve the right of treating aliens who take part in their civil struggles as their own nationals. See treaties of Germany and Colombia, July 23, 1892, Art. 20, Martens, Vol. 69, p. 842; Spain and Honduras, November 17, 1894, Art. 3, Olivart’s Coleccion, Vol. 11, p. 156; Spain and Colombia, April 28, 1894, Art. 4, Olivart, ibid, Vol. 11, p. 63; Italy and Colombia, October 27, 1892, Art. 5, Martens, Vol. 72, p. 310. See also debate in German Reichstag, January 21, 1894, cited in Rev. gen. dr. int. pub., Vol. 2 (1905), pp. 343-4.

Corporations doing business in the state are often regarded as national corporations. Colombia, constitution, Art. 14, Rodriguez, Vol. II, p. 321; Venezuela, constitution, Art. 124, Rodriguez, Vol. I, p. 231 ; Salvador, law of September 29, 1886, Art. 5, State Papers, Vol. 77, p. 116.

⁴⁰ Decree of February 15, 1896, Moore’s Digest, Vol. VI, pp. 316-17 ; Vol. Ill, pp. 794-95.

⁴¹ Decree of March 16, 1861, Legislacion Mexicana, Vol. 9, p. 123 ; decree of December 6, 1866, ibid, Vol. 9, p. 748; decree of July 28, 1871, ibid, Vol. 11, p. 540; decree of April 6, 1872, ibid. Vol. 12, p. 173. These decrees were repealed by the law of May 28, 1886, ibid, Vol. 17, p. 474, by which optional registration was substituted for compulsory matriculation. See Moore’s Digest, Vol. VI, pp. 309-14, and authorities there cited.

⁴² Law of September 29, 1886, Arts. 21-28, State Papers, Vol. 77, pp. 116-22; Moore’s Digest, Vol. VI, pp. 314-5, Vol. Ill, pp. 791-3.

⁴³ Honduras, decree of April 10, 1895, Arts. 23-26, State Papers, Vol. 87, pp. 703-4. Guatemala, decree of February 21, 1894, Arts. 35-41, State Papers, Vol. 86, p. 1281 et seq.; Venezuela, law of April 16, 1903, Art. 12, State Papers, Vol. 96, p. 647 et seq.

⁴⁴ Moore’s Digest, Vol. VI, pp. 316-17.

⁴⁵ Journal du droit international privé, 1890, pp. 76-77.