been accused as British subjects for acts done in America
â€” thus being deprived of the benefit of naturalization.
Lord Stanley replied that the acts charged had been
committed in Ireland.
1 79 S.P. 855. 2 U.S. Dipt. Corr. (1897), 442.
3 66 S.P. 1293.
4 lb. 1298, 1306, 1310, Gould to Matthew, 2 and 22 Aug. 1867,
10 Sept. iX<>y.
L It was also justified as a counter-stroke to the Brazilian
blockade (ib. 1337). 6 58 S.P. 1215.
chai\ iv] CLARENDON ON PENETRATION 149
We may almost pass over, as the acts of a despot
whose brain had been affected by his terrific struggles,
the imprisonment and death of foreigners at the hands of
the Abyssinian Negus. 1 There is this to be said in justi-
fication of them â€” that the Negus had some ground for
suspecting the persons in question of plotting against
him. His insecure throne was some excuse for his
drastic methods. At the same time, they were altogether
too drastic for modern nerves.
Lord Clarendon in 1868 s lays down in a veiled but
unmistakable form the principles of the gospel of penetra-
tion : â€” " H.M. Government [disclaimed] any desire or
intention to apply unfriendly pressure to China to induce
her government to advance more rapidly in her inter-
course with foreign nations than was consistent with
safety, and with due and reasonable regard to the feel-
ings of her subjects. But [they] expected from China
a faithful observance of the stipulations of existing
treaties," and the fullest amount of protection to British
subjects resorting to her dominions, whilst reserving to
themselves the right of urging further commercial con-
cessions. In the past, he observed, the Provincial govern-
ments had been accustomed to disregard the rights of
foreigners, trusting to the weakness of the Central Govern-
ment. Lord Clarendon announced a preference for
treating with the latter authority, with which alone
Great Britain had entered into treaty, and he recom-
mended the Chinese Government to assume and exercise
supreme authority over the local governments. Even
so a Japanese pundit might lecture the President of the
United States on the advisability of his controlling the
It will be seen that the Foreign Secretary implicitly
arrogates a power to make China " advance," subject to
what he vaguely styles the " due " and " reasonable "
1 54 S.P. 1 1 52; 60 1 b. 1035.
2 59 S.P. 279, Clarendon to Burlinghame, 28 Dec. 1868.
150 ILLUSTRATION [chap, iv
wishes of her people : also that he does not attempt to
define what " protection ' means. He secured from
Mr. Burlinghame, who was the intermediary between
the two governments, the admission that foreign force
might be directly interposed for the immediate protection
of life and property. 1 This, of course, is as though
Japan were to claim a right of bombarding San Francisco
in order to secure the protection which the Federal forces
might be unable to afford.
Perhaps it is hardly right to quote Chinese affairs as
of any value in the treatment of the question. However,
it may be permissible to mention the events which tran-
spired in 1868 in Formosa. A British firm leased a ware-
house at a place called Banca from a person who had no
title : they had much difficulty in obtaining possession,
and when they did, a mob attacked their agents with
guns, knives, spears and stones, half killing them. 1
The officials gave them no shelter, much less active
assistance. The warehouse was seized by partisans,
who began to levy a voluntary rate " to frighten the
English and drive them out of the place." The assigned
reason was the destruction of the camphor monopoly.
The Acting Consul at Tamsiu bitterly laments his lost
" prestige " and complains of the bad administration of
Formosa, suggesting that a supreme authority ought to
be appointed for the north end of the island ; and he
modestly nominates a candidate for the post. He sud-
denly changes front in a couple of weeks, and proclaims
that " prestige is restored." Without even the threat
of " force or violence or either of them," he had obtained
the infliction of penalties on the principal rioters, com-
pensation for lost effects, and a polite proclamation of
Another Brito-Spanish case of 1868 was that of the
Garibaldi.* This schooner was captured as a smuggler
1 59 S.P. 282, Clarendon to Alcock, 13 Jan. 1869.
8 60 S.P. 1024, Holt to Alcock, 14 Oct. 1868. 3 59 S.P. 966.
chap, iv] DAMAGES FOR NEGLIGENCE ! 151
by the Spanish Viva, after a chase which arose within
territorial waters, if indeed it was not completed there.
The British diplomatists allowed the matter to drop.
The vessel was clearly engaged in contraband traffic.
During the Cretan insurrection of 1868, a demand was
incidentally made by Turkey on Greece for satisfaction
on account of acts of violence committed on Ottoman
subjects in Greek territory. Mr. Delyannis l disclaimed
all knowledge of such cases â€” except as regarded one
Albanian, killed at Syra. His assailant had escaped
to Crete, in spite of the efforts of the local authorities.
Further complaints were made of assaults, one on a
Turkish consular official at Syra, 8 and the original com-
plaints were repeated, though without particularity, by
Photiades Bey. 5 The Conference which eventually met
in Paris in 1869 determined to leave all such matters to
the Greek tribunals : a somewhat facile course. 1
The master of a British ship having been shot by
mutineers at Fray Bentos, in the Banda Oriental, the
Consul offered to send them to England for trial (10 Aug.
1870). 5 The offer was not accepted, and the men were
allowed to volunteer for service against Argentina.
Sir E. Thornton 6 gave the United States Â£11,000 with
Â£9,000 interest (but without lucrum cessans) (n July
1870), in an arbitration arising out of the wreck of the
whaler Canada in Brazil. Imperial officers had gone on
board and interfered with the efforts of the captain to get
his ship off the reef on which she had struck. Thornton
found that the measures taken by them were impolitic,
and caused her total loss. It may be observed on this
case that the arbitrator mistook his function. He was
not sitting as a municipal judge to pronounce on the
propriety of certain nautical measures : that might have
1 59 S.P. 651, Delyannis to Photiades, 13 Dec. 1868.
2 lb. 694. 3 lb. 722, 747.
4 lb. 812, Lyons to Clarendon, 23 Feb. 1869.
6 67 S.P. 130. B 66 S.P. 204.
152 ILLUSTRATION [chap, iv
been done in Brazil. His duty was to say whether a
foreigner has any right of complaint when the local
authority takes, in its discretion, ill-judged measures for
the treatment of a stranded vessel. The local power is
not bound to have a strange vessel sticking on its reefs,
and Sir E. Thornton's exaggerated view of the powers
of the master â€” true enough as long as the vessel is on
the high seas â€” is out of place as soon as she strikes. The
award must therefore be considered to have proceeded
on a misapprehension.
We have now to deal with the deplorable acts of
Turkish brigandage in Greece which ended in the death
of well-known Italian and British subjects in 1870.
Irritation at the unsafe condition of the country made
English opinion intolerant of the attitude of the Greek
Government. Britain demanded of Greece the release
of her subjects without any regard to the necessities of
Greek police administration. Greece declined to buy
the safety of her visitors by conceding a pardon to
dangerous ruffians. The surprising offer was indeed
made by Lord Clarendon to put a British man-of-war
at the disposal of the criminals, for their safe convey-
ance to Malta, and this was actually accepted by the
Greek Minister in London. 1 The Minister put forward
the constitutional argument, that the crown had no
power of pardon. Constitutional arguments do not avail
to excuse the non-performance of international duty,
and Lord Clarendon further pointed out that the Greek
constitution had no particular validity when it suited the
Greek Government to disregard it. The universal regret
and horror aroused by the melancholy events which
supervened on the attitude of the Greek Government
have not even yet ceased to impress the popular mind,
and they obscure to some extent the real issue. There
is no natural inherent right in the human individual to
go to Marathon. If he chooses to run a known risk and
1 65 S.P. 669, Clarendon to Erskinc, 21 April 1870.
chap, iv] BRIGANDAGE 153
goes, accompanied by horse and foot, he cannot complain
if he drives off from his infantry and falls a victim to
capture. Nor can his government ask that the local
authorities shall break their own law and disable their
own administration, in order to secure his release.
The Greek Government, in the exercise of its unques-
tionable discretion, preferred to send an expedition to
observe the brigands, and a collision ensued. Thirteen
bandits were killed or taken, out of twenty-one, but four
of the foreign party were murdered by them. In the
light of this, the adherence of the Greeks to the letter of
the constitution and the law seems somewhat pedantic.
If a legal amnesty could not be granted, some assurance
might have been given which would have satisfied the
men. 1 Probably the real objection of the Greek Cabinet
lay in the unwisdom of yielding to threats. As a matter
of fact there has been little brigandage in Greece since.
And the successful Abyssinian example of Great Britain
was still fresh.
The Italian Minister and the British Minister (Erskine)
concurred in their view. " M. delle Minerva and I did
not think that we should be justified in requiring the
government to persist in the conciliatory course they
have hitherto pursued, after it had proved abortive.
M. Zaimis has assured [us] that upwards of 600 troops
are collected in the immediate neighbourhood of Oropos,
and although there is not the least intention on their
part to provoke a collision, they are fully authorized to
employ force should it unfortunately be necessary to prevent
the escape of the brigands."
The Greek Government killed five of the captured
brigands and paid the widow of one of the English
victims Â£10,000. ! The King and the Minister in London
1 They were willing to be convicted par contumacc and par-
doned. Suppose such a pardon to have been worthless in law
(as the Greeks alleged), only the brigands would have been the
sufferers. 2 65 S.P. passim.
154 ILLUSTRATION [chap, iv
expressed the utmost concern, and expressions reflecting
on the disturbed state of Greece were not officially
More fortunate were Messrs. Bonnell, who were cap-
tured the same year by brigands in Spain, near Gibraltar,
and taken to the mountains of Ronda. They were
ransomed, and the brigands were subsequently killed
with the ransom money on them. 1 There was, therefore,
no question as to who was to pay it.' The result of
their temporary success was " to awaken the cupidity
of all the bad characters in these parts."
On these brigand cases, it may be added (though out
of chronological order) that the attitude of Greece in
1870 was entirely justified by the decision of the British
Government in 1881 not to advance money in the
future for the ransom of British subjects. The occasion
of this was the capture of Colonel Synge, carried off
from Tricovaista, and Mr. H. Suter, carried off by Greek
brigands from the Turkish village of Isvor. 8 Mr.
Goschen, with the approval of Lord Granville, at first
intimated to the Turkish Government that an indemnity
would be required from Turkey, if Mr. Suter were
killed, equal in amount to any ransom that might be
asked for him. 4 This is quite absurd : the brigands
might have asked a couple of millions ; moreover, it is
to adopt a false measure of damages. It would place it
in the power of any rebel to inflict losses on the govern-
ment by committing crimes against foreigners.
Assim Pasha 5 took the view that the brigands had
come secretly by water ; their presence was not a con-
sequence of the negligence of the Turkish local officials
to keep the population in order ; it was a result of the
1 65 S.P. 849.
2 But the Spanish Cabinet had decided to do so, ib. 856,
Layard to Clarendon, 11 June 1870. 3 72 S.P. 1167.
* lb. 1 168, Granville to Goschen, 19 April 1881.
8 lb. 1 171, Goschen to Granville, 15 April 1881.
chap, iv] BRIGANDAGE 155
effervescence caused by the then dispute with Greece,
and was a fortuitous circumstance which could not have
been foreseen or guarded against. But Mr. Goschen could
refer to the constant complaints which had for long been
made to the Porte of the insecurity of the locality. He
" could allow of no excuse in palliation of the seizure by
armed bands of brigands of a British subject peacefully
residing under the protection of the Ottoman authorities."
In this he no doubt went too far. Energetic representa-
tions are possibly required in pressing demands upon
the Porte, and treaties give Great Britain some right of
complaint if it fails to provide security. But we need
only refer to the attitude of the British Government
towards the Argentine in 187 1 to see that foreign nations
have no title to complain if the frontier provinces of others
are unsafe or disturbed. And Assim promptly disclaimed
the Goschen doctrine. 1 Bands, directed, in the first in-
stance, politically against Turkey, could not in fairness
make her responsible for their incidental evil deeds.
Turkey, out of consideration for Mr. Suter's safety,
stayed her hand in taking active steps against the bands
with which the district swarmed. This could not go on
indefinitely, and the British Government paid under
protest the Â£15,000 demanded. It had paid Â£12,000 for
the release of Colonel Synge, detained from 19 Feb. to
22 March 1880, and it now 2 circularized the consuls in
Turkey, Servia, Roumania, Greece, Italy, and Spain, in-
forming them that in future, where British subjects were
captured in localities to which they ventured for their
own business or pleasure, no advance for the purpose of
ransom would be paid from the British Exchequer.
Lord Granville adopted Goschen's arguments, and con-
tinued to urge them upon the Turks.
During the Italian operations against Rome in 1870,
damage was done to vineyards at Terrione, belonging
1 72 S.P. 1172, Assim to Goschen, 21 April, 1881 ; 1173, Assim
to Musuius, 23 April 188 1. 2 22 July 1881, ib. 1183.
156 ILLUSTRATION [chap, iv
to Irish Dominicans, owing to the transit of cannon. 1
Ecclesiastical property belonging to Austrian, British,
and Irish associations was subsequently thought likely
to be legislatively confiscated. An assurance was given
that all such property belonging to British subjects would
be respected. 8 Otherwise, the difficult point would be
raised,â€” How far can a government, by the operation of
an impartial law, deprive foreigners of what they have
considered as their "property"? In what did their
rights consist ? How far can they override the eminent
domain of the territorial power ? Can it destroy them on
religious grounds ? The court of King Victor thought it
safer not to provoke such controversies. We cannot see
that its conduct in carrying through a measure of con-
fiscation could have been made the subject of international
reclamations. If the ecclesiastical property of foreigners
alone, or of one nation alone, had been attacked, there
might have been reasonable ground for complaint.
Measures were, however, taken for the expropriation
of the Orders.* This was characterized by Mr. Jervoise
(British Agent) as a modified form of that confiscation
which had been expressly disclaimed. The Queen's
Advocate did not share this view, and Lord Granville
declined to remonstrate. 4
A Mr. H. D. Jencken, being in Lorca (Murcia) on legal
business, was, in consequence of a casual remark to a
stranger with a child, savagely attacked by a mob in
consequence of some absurd superstition. Several persons
were sentenced to imprisonment, and Lord Clarendon
expressed an opinion that as Mr. Jencken had gone to
Spain in the discharge of professional duty (which might
1 62 S.P. 444, Jervoise to Cadorna, 3 Oct. 1870.
2 Ib. 450, Paget to Granville, 25 Oct. 1870 ; ib. 459, Granard
to Granville, 7 Nov. 1870 ; ib. 464, Jervoise to Granville, 5 Nov.
1870 ; ib. 472, Hammond to MacMahon, 24 Nov. 1870.
3 62 S.P. 498, 519.
* Ib. 534, Granville to Paget, 27 Jan. 1871.
CUap. iv] COLOMBIA 157
have caused ill-will against him), and being therefore
entitled to rely on the local authorities for protection,
the Spanish Government might properly be approached
with a view to compensation. The assailed person had,
however, disclaimed the idea of exacting compensation
from the members of the crowd who attacked him, and,
on this ground, Sagasta declined to pay any. 1
A gentleman named Roberts was assassinated on
2 July 1 87 1 at Cadiz, and complaints were made of the
dilatory attempts to secure the culprit, and of what was
called by the British Minister, a " scandalous denial of
justice," "the criminal's political friends being supreme
in Huelva." 2 But Lord Derby was advised that no
further steps could properly be taken. The Minister
remarked that this was one instance among many of the
difficulty and impossibility of obtaining justice from the
courts where a foreigner was concerned.
A decision s was given in 1875 by the umpire in an
arbitration arising out of an insurrection in Colombia
in 187 1. The Colombian Government was held liable to
pay the U.S Government compensation for the use of a
steamer by the rebels. The true ground of this decision
was that, by the treaty of peace with the latter, the
government bound itself to pay for the hire of the steamers,
etc., they had used. This was of course not a contract in
favour of third parties ; but it showed that the govern-
ment had adopted the acts of the insurgents. " It is
clear that ' some one ' ought to pay ; that ' some one '
could not be Herrara and Diaz, because their responsi-
bility was saved by the Treaty of Peace. We have then
to fall back on the state which granted the amnesty,
and stipulated that it would pay for the use of the
Montijo" â€” says the umpire.
This reasoning is not flawless. It is not correct to
1 62 S.P. 998, Clarendon to Layard, 7 April 1870.
2 67 S.P. 630, Layard to Derby, 15 June 1874.
3 By the British Minister (Bunch), July 26 (66 S.P. 402).
I58 ILLUSTRATION [chap, iv
assume that " some one must pay." The arbitrator goes
on to lay down much more questionable doctrine. " It
was the clear duty of the President ... to recover the
Moniijo from the revolutionists. It is true that he had
not the means of doing so, there being at hand no
naval or military force of Colombia sufficient ; but
this absence of power does not remove the obligation."
The United States would have been surprised if Great
Britain had held them liable for their " absence of power "
in the Southern Confederacy ! The arbitrator struck
out the claims of the crew (who were paid regularly) and
the claim for interest, and allowed Â£4,300.
Bahia Blanca, 300 or 400 miles south of Buenos Ayres,
was in 1 87 1 the scene of Indian inroads. Several foreigners
were killed, and much property destroyed. Complaint
was made of the Argentine Government in having invited
immigration and not having ensured safety ; also for
having wantonly provoked the natives by ill-treatment.
But it was explained that in these unsettled regions
complete security could not be expected. 1 Some of the
" California colonists " (perhaps desiring nothing better)
then suggested that they might be dispensed from the
obligation of cultivation, and armed to undertake opera-
tions against the Indians. 2 After this, the Argentine
Government intimated plainly that if Great Britain
assumed a right of interfering with the manner in which
Argentina managed her colonies, they would be compelled
to deny it categorically. 3 Nevertheless, the British
Minister declared 4 " that he must make himself heard,"
when the civilized Indians indulged what he very elegantly
terms " the vice of manslaughter " at Tandil, within
twenty-four hours' journey of Buenos Ayres. Barelya day,
he said, had passed within the preceding six months with-
1 62 S.P. 909, Tejcdor to Macdonnell, 11 Jan. 1871.
2 lb. 916.
8 lb. 915, Macdonnell to Granville, 22 Oct. 1871. s
4 lb. 923, Same to Same, 13 Jan. 1872.
chap, iv] ARGENTINA 159
out one or other of his countrymen falling a victim to the
knife of the tame gauchos or the lance of the wild Indian.
That makes a total of 180 Britons slain : â€” and we know
the names of four. The Argentine Minister refused to
admit that foreigners on settling in Argentina acquired
a privilege above that of natives. Seeing that twenty-
eight of the marauding band engaged at Tandil had been
captured, it is hard to see what more could have been
done. The colonists went on protesting : â€” " Our position
is truly critical ; for the Indians not only steal our cattle
and murder our countrymen, but they sell the skins of
the stolen beasts in the town," â€” which reminds one of the
little girl who, according to a learned magistrate, " began
by blaspheming her Maker, and ended by throwing a
stone at a goose."
A curious and interesting feature of this Tandil
affair is that it does not appear to have been committed
from motives of robbery, but was simply an anti-foreign
outbreak, 1 directed against foreigners generally. Basques
and Italians bore the brunt of it, and about forty of
them perished. The authorities shot or captured the
majority of the band.
Mr. Tejedor takes a sound line of argument * in his
note of 22 Jan. 1872,' â€” " Foreigners, as soon as they
arrive in a given country, are subject to its laws and
to its authorities. Those laws are not alike everywhere,
but they are equally binding upon him, be they favour-
able or the reverse to his condition as a foreigner. A
foreigner . . . must address himself, in common with
citizens of the country, to those authorities, must invoke
those laws, and must await and submit to their decisions.
Otherwise, the foreign body would constitute a state
within a state â€” a political monstrosity." Protection
to the foreigner is, he goes on, not only secured by treaty,
1 62 S.P. 928, Parish to Granville, 13 Jan. 1872.
2 Compare pp. 25, 62, supra, written before this despatch of
Mr. Tejedor's had come to the author's knowledge. 3 lb. 934.
l6o ILLUSTRATION [chap, iv
but by the very constitution ; but it is protection, not
privilege. Foreign countries may interfere in cases of
denial of justice, or of unjust persecution by the autho-
rities. But any doctrine of special protection can only
lead to the most deplorable errors and misunderstandings.
Finally Lord Granville ' distinguished between the
incursions of wild Indians and the outrages of the gauchos.
For the former, however laxly the frontier had been
protected, no claim could be made against the Argentine.
For the latter, she was responsible if default could be
shown in affording due protection. Mr. Macdonnell
replied petulantly, that the settlers did not want com-
pensation, but moral support. The Foreign Secretary
thereupon addressed a polite note of remonstrance to
the Argentine, and the matter dropped.
It would doubtless be impossible to hold nations
responsible for the conduct of their enemies, however
clearly they might have provoked the war. Attention
may here be called to Lord Granville's express declaration, 8
made after consultation with the Law Officers during the
Franco-Prussian War. " British subjects having property
in France are not entitled to any special exemption
for their property, or to exemption from military con-
tributions, to which they will be liable in common with
the inhabitants of the place in which they reside or in
which their property may be situated." On n Jan. 1871
Granville applied the same principle to a case of requisi-
tions made at La Ferte Imbault. This was vis-d-vis
the Germans ; but on 23 March 1871, he writes to Lord
Lyons, that after renewed J consultation with the legal
luminaries, he is advised that such matters raised no
ground for any claim against France. Writing to a Mr.
Stuart, Lord Enfield 4 was directed by the Foreign
Secretary to say that H.M. Government could not inter-
1 62 S.P. 035, Granville to Macdonnell, 26 March 1872.
â– 65 S.l'. 458, Granville to Lyons, 2 Sept. 1870.
1 lb. 4C2. Â« lb. 464.
chap. iv] CIVIL WAR IN IIAYTI l6l
fere if he received at the hands of the French Government