1 82 S.P. 318, 333 et passim. 2 83 S.P. 834. 3 lb. 842.

4 lb. 855. s lb. 27.



224 ILLUSTRATION [chap, v

of questions of communication-facilities to the arbitra-
ment of a neutral body.

Colombia, in 1889, interpreted her treaty with Britain
in a curious and not very valid way. 1 Art. 16 of the
Treaty of 1867 2 grants exemption to British subjects
from '' all contributions imposed as a compensation for
personal service." Reading this in the light of Art. 14,
which exempts them from all taxation in excess of native
citizens, the Colombian Government held that the former
exemption only applied to contributions in lieu of military
service. A contribution of three days' work exacted by a
Panama law they regarded as an ancillary alternative to
the equivalent cash contribution, and not versa vice. Evi-
dently this is a strained interpretation, unless the Panama
people were in strange ignorance regarding the meaning
of their own law. Nevertheless, the British Government
acquiesced in it, as a matter of policy, reserving the
question of principle. 3

The Servian Vice-Consul at Pristina in Turkey was
assassinated in June 1890 : the Turkish authorities
making (it was alleged) no attempt to secure the culprit. 4
The Porte held that " a Government cannot be held
responsible for any act of private vengeance committed
within its territory, beyond making all reasonable effort
to discover the author, and inflicting on him adequate
penalty." 5 Servia at first asked for a march past by the
Pristina garrison in front of the Servian flag ; subsequently
she expressed content with the funeral honours spon-
taneously rendered by the Turkish authorities, though
she still pressed for an indemnity to the widow." Four
persons concerned were convicted and sentenced. 7

A Russian (Kalobkoff), implicated in Panizza's plot
to dethrone the Prince of Bulgaria, was condemned to

1 82S.P. 374. *56S.P. 13.

3 82 S.I'. 376, Wheeler to Roldan. 4 83 S.P. 1148.

G lb. 1 158, St. John to Salisbury, 24 July 1890.
■ lb. 1161. » lb. 1188.



chap, v] PERSIA 225

nine years' imprisonment in 1890. l His Government
invoked the capitulations in his favour, 2 but with what
success is unknown.

A monopoly of the tobacco trade in Persia for fifty
years was granted to a Major Talbot in 1890. Great
popular discontent was the outcome, the population
fearing the influx of a flood of European officials. Russia
also took umbrage. In fact, the agents of the monopoly,
" with one or two exceptions," were admitted to be not
the class of men successfully to perform the delicate
task entrusted to them. 3 Throughout 1891 mullahs
preached and merchants petitioned ; the former taking
up the sound individualistic doctrine that "it is against
religious law that any one should be compelled to sell to
any particular person," and that monopolist tobacco is
" unclean." For a whole week, Sir F. Lascelles says, 4
"smoking has been given up altogether in the capital."
The monopoly was abandoned in December. In the
meanwhile a large sum had been expended in organiza-
tion. Compensation to the amount of £350,000 was
spontaneously offered, plus £150,000 for assets at a
valuation, and a settlement on these lines was arrived at. 5

A Pennsylvania policeman, in 1892, took down two
French flags which a French gentleman had displayed
on his house in a lower position than the national colours.
He was dismissed from office c by the municipal officials.

British crews of vessels seized by the Russian corvette
Zabiaka, for seal-fishing off the coast of Siberia in 1892,
were alleged to have been harshly treated, left without
food and clothing, and forced to sign damaging admis-
sions. Their evidence was somewhat discredited by the
high character of de Livron, captain of the Zabiaka?
Further information was desired by Lord Rosebery, and
duly promised. 8

1 83 S.P. mi. * lb. 1 167. 3 85 S.P. 615.

4 lb. 616. c lb. 629. 8 lb. 648.

7 86 S.P. 236. 8 87 S.P. 1060.

15



226 ILLUSTRATION [chap, v

An attack on the men of the U.S.S. Baltimore in Chili
(189 1) was apparently directed against them in virtue of
their nationality. In consequence, Chili paid ^r.5,000. 1

Italians were killed in prison at New Orleans by a mob
in 1891, after a jury had acquitted them. The United
States paid compensation (£25,000). The local authorities
were clearly supine, but the riot was not directed against
Italians in general. 2 Italians, in their turn, mobbed
Frenchmen in 1893 at Naples and Genoa, 3 and Italy,
consistently, paid an indemnity of 30,000 frs.

A Swiss, in 1893, was killed in Brazil. Switzerland
maintained that this * was the work of persons who
desired to terrorize foreign colonists, and presented a
claim for indemnity.

Where Chinese were killed at Rock Springs, Mr. Bayard
only conceded $147,748.74 as an act of grace ; though
admitting " the gross and shameful failure of the police
to keep the peace, or even to attempt to keep the peace,
or to make proper efforts to uphold the law or to punish
the criminals."

An American whose property was injured by the firing
at Rio in 1893, failed to induce his Government to take
up his claim. It was certainly bad as regards damage
by the insurgents, and it was more than doubtful as
regards damage by the Government, observed the Foreign
Department.

It is said that nearly a million francs was paid by
Brazil on account of three Frenchmen, killed in the course
(jf the revolution of 1893 ; c but it is difficult to credit this.

Three Americans accused of damaging property in
Guatemala, were imprisoned in 1894 (it seems illegally),
and one of them beaten. Guatemala agreed to pay

1 Dipl. Corr. U.S. (1891, 1892), passim.

2 Clunct, 18 Journal, 1147. 3 lb. 21 Journal, 204.

4 Cf. the Argentine case, supra, p. 159; Clunet, 21 Journal, 205.

5 Moore, Digest, VI. § 1032.

Clunct, 22 Journal, 925 ; Times, 26 March 1895.



chap, v] THE COS J AFRICA PACKET 227

$1000 to the latter and $100 to each of the others. 1 A
Mr. Hollander, accused of forgery, was expelled in 1889
from that country, and a Mr. Wiener from Hayti. 2 To
the complaints addressed by the United States in the
latter case, Hayti replied that in 1890-1-2-4 British,
French and Swiss had been expelled on political grounds
without complaint arising. On her furnishing the evidence
against Wiener, the United States alike desisted.

In Aug. 1894, a British ship, the May Reed, was seized
in Hayti for smuggling. The master and two of the
crew were detained in prison 166 days, before being
finally acquitted. Meanwhile the ship had sunk. The
cell used for the three men was 12 ft. square, with
no sanitation, and contained (sometimes) twenty-two
prisoners. It was " extremely close and filthy," and
" miserably dirty." There were no beds of any sort.
Water was short, and medical attendance refused. In
this case Hayti paid compensation to an uncertain
amount. 3 The combined slenderness of the evidence
(or rather, absence of all evidence), the length of
detention, and the extremely bad conditions prevailing,
made this an entirely proper case for complaint. It was,
absurdly enough, quoted in the Costa Rica Packet case.

In this somewhat celebrated case of the Costa Rica
Packet, — in which Dr. de Martens committed himself to
the vague doctrine of a cannon-shot limit for territorial
waters, and also to that of the territorial character of
merchant vessels, — the discomforts undergone by one
Carpenter, the master of a British vessel seized by the
Dutch, were somewhat particularly detailed. 4

The reason of his detention was that he had picked up
a small derelict and jettisoned her small cargo of spirits.
He was given a high character by the testimony of his
Australian friends (which there is no need to dispute —
but it is not obvious why the Dutch were obliged to

1 Dipt. Corr. U.S. (1895), 774. 2 Ibid.

3 89 S.P. 1252, 1268. * lb. 1280.



228 ILLUSTRATION [chap, v

accept it). He was also said to be well known in all the
East Indian ports of Holland. He was arrested, three
years after the incident occurred, in 1891, and taken a
thousand miles to Macassar as a deck passenger (but
allowed to pay for a second-class passage). 1 On arrival,
he was " subjected to public and gross indignities " (not
particularized), and placed in a room with no furniture
but plank beds. An invalid prisoner occupied the same
chamber. It must be remembered that in tropical
climates a minimum of furniture is a necessity. The
main requisite is cleanliness, and the cell was washed
every day, and was probably somewhat damp. Carpenter
did not contend that he was worse treated than a
Netherlander would have been. 2 No injury to his health
was shown by medical evidence, though it was alleged in
the British brief. He was only in jail twelve days, and
the examining magistrate at that early stage decided to
dismiss the case. Instead of considering himself well out
of it, Carpenter complained loudly in Australia against
his treatment.

He said that the food was bad and that he was refused
counsel; and also visitors, except in the presenceof warders.
The Dutch declared that the cell was open all day, that
Carpenter refused the offer of an iron bed, that the food
cost two florins a day and was better than army rations,
that counsel and visitors were (perhaps improperly)
allowed him, that he walked to court in advance of the
warder, and that everything had been conducted with
expedition. He would on release have been sent back
without cost to Ternate, but had preferred to proceed to
Sydney.

It is not necessary to decide on the discrepancies
between the stories of Carpenter and of the Netherlands
authorities. Admittedly, the process was short, and in

1 See his declaration, 89 S.P. 1258. Holland denied this
allegation.

2 89 S.P. 1262.



chap, v] THE COSTA RICA PACKET 22fj

the end satisfactory, while the conditions of confinement,
if not ideal, were certainly not atrocious.

Great Britain asserted that the Dutch authorities
would never have put Carpenter on trial at all, had they
exercised reasonable care ; and, further, that even if
there had been some fair ground for thinking that his
seizure of the boat had been effected in territorial waters,
the proceedings were oppressive, considering the captain's
character and position.

This amounts to a licence to well-conducted persons
to be free of all inquiry into their conduct when abroad.
The powers of administrative authorities to institute
prosecutions cannot be hampered in this way. Want
of reasonable care is a charge very easy to make, very
vague in its scope, and very difficult to meet. In fact,
the Law Officers of the Crown at first advised the British
Government that there was no case (1894). l They
denied, with perfect propriety, " any supposed right of
H.M. Government to question in the case of British
subjects the sufficiency or expediency of the system of
criminal law adopted by a friendly nation for the govern-
ance, within its dominions, of all persons alike."

The question of fact, whether the ship was within
territorial waters, was clearly a difficult one, in the conflict
of testimony. No official could be called " unreasonable ''
for bringing it before the courts. The complicated
inquiries as to currents, geography and the like, which
the British case recommends as proper, are utterly un-
reasonable and such as no prosecutor in a case of petty
theft such as this would undertake. The fact that in
Britain the proper remedy against Carpenter would have
been a civil action, whilst in Celebes it was a criminal
process, is of course of no importance.

Dr. de Martens, besides laying down the dubious

1 Counter-case of the Netherlands, 89 S.P. 121 1. (The whole
case was not before the Law Officers, according to the British
Reply, at p. 1248.)



230 ILLUSTRATION [chap, v

propositions above mentioned, declared that it is the
" duty " 1 as well as the right of a state to protect by all
methods authorized by the law of nations, its subjects
who may be affected by wanton prosecutions or by
injuries 2 taking place to their prejudice abroad. He
declared that national sovereignty and judicial indepen-
dence cannot operate to the point of depriving foreigners
arbitrarily of the safety which should be secured by law
to everybody resident in a civilized state. He found that
the Netherlands courts had no right to pronounce on the
effects in law of a seizure effected outside their territorial
jurisdiction. He found that there was no reasonable
cause for the detention of Carpenter, and also that he
had not been detained under suitable conditions. And
he awarded Britain the enormous sum of £11,082 ys. 6d. 3
damages and interest.

It is certain that this award goes far beyond any other
decided case. In so far as it is definite, it sets up a
standard of unsustainable severity. For the rest, it
lays down a number of wide propositions, of which some
are eminently disputable, and the rest are of vaguely
humanitarian sound but of little definite meaning. Of
De Martens' wide declarations, as of such pious deliver-
ances in general, one need take little account. His
attitude towards the particular facts of the case is
more instructive. In the judgment of most impartial
persons, the Dutch Government will be held to have
acted, harshly perhaps, but strictly within its rights.
If a government must weigh with scrupulous nicety

1 To whom ?

* " Lorsqu'ils sont l'objct dc poursuitcs arbitraircs ou de
I' ions 1 ommises a leur prejudice."

3 Carpenter's present claim was cut down from /7500 (including
£500 for expenses, /2000 loss of profits, and £5000 "moral and
lntelle< tual damage") to £3150 (still, it would seem, grossly ex-
ive). The crew (for interruption of business) were given /1600
Instead oJ £8000; and tlie owners (for forced sale and loss of
profits) /3800 instead of £16,100. Sec Award, 89 S.P. 1284.



chap, v] AN IMPOSSIBLE STANDARD 23I

the grounds on which it is to proceed against offenders ;
if it must provide for foreigners prisons of the most
approved sanitary pattern ; if it must necessarily adopt
the views as to jurisdiction of some particular school of
theorists ; — then, and not otherwise, the arbitral judg-
ment may be justified.

Dr. de Martens' decision is above all regrettable, in
that it tends to cast doubts on the cardinal principle of
the independence of the judicial authorities. 1 No jurist,
however distinguished, can at one blow annihilate so
many established doctrines of international law as in
this decision the great Russian endeavours to do.

Scarcely less objectionable is the refusal to states of
all right to penalize foreigners for crimes committed out-
side their borders. In attempting to enforce upon States
a cut-and-dried theory of jurisdiction, Professor de Martens
leaves out of account important considerations. In
general, a state may be well advised to take no notice
of what has been done abroad. But it may easily be
otherwise. The unpunished presence in their midst of
a man whom they regard as a criminal, is a moral shock
to the collective conscience of the community.

The many quotations which the British case gives
from jurists, relate mainly to the forcible exercise of
jurisdiction by one state manu militari outside its terri-
torial sphere of action. They have no relation to its
unlimited right to appreciate events which take place
abroad in its own way, and to proceed within its own
territories in accordance with the result of that ap-
preciation. Phillimore/ Hall 3 and Halleck 4 seem to
be alone among Anglican authors in maintaining that a

1 Compare the case of the Lion XIII., in which a Spanish
ship-master was refused redress for imprisonment at Singapore
arising out of non-compliance with a habeas corpus, the object of
which was to inquire into the legality of his treatment of offences
said to have been committed on the high seas. Supra, p. 197.

2 Int. Law, I. 388. 3 Int. Law, I. ii. § 10.
* Int. Law (ed. Sir G. Sherston Baker), I. 206, 207.



232 ILLUSTRATION [chap, v

state cannot take cognizance of offences committed by
foreigners abroad. And it is universally admitted that
in many cases affecting its own interests, a state both
can and does so. Wheaton * says that no state can directly
affect persons or property beyond its own territory —
thereby implying that indirectly it can do so, by
proceedings or the threat of proceedings within its
jurisdiction. And so Twiss 2 says that a nation cannot
directly bind property or control persons situate or resident
abroad. Again, in the " Cutting " case, the U.S.A.
failed to obtain any satisfaction for the imprisonment
in Mexico of a Texan who had libelled a Mexican from
the safe vantage ground of the opposite bank of the Rio
Grande. Mr. Mariscal's 3 despatch (10 Febr. 1888) is
worth perusal upon this.

No one who candidly reads the details of the cases
previously recounted in this and the preceding chapter
can doubt that, in his laudable anxiety to set a high
standard of civilized comfort all over the globe, Dr.
de Martens gave a decision in this instance which went
far beyond all recognized law. 4

Fortunately, the strong doctrine of this case was soon
contradicted. Mr. Tillett, a British subject, was arrested
at Antwerp in Aug. 1898, and expelled as an agitator
from Belgium under circumstances said to amount to
indignity and hardship and to have affected his health.

He was denuded of all clothing and placed in a
prisoners' cell. This was stated to have been damp,
noisome and dirty. He was clothed in prison dress,
refused counsel and visitors, and (he alleged) ill fed.
After a full day he was released and taken to the steamer.
He contracted a severe chill, and injury to respiration ; he
sustained a nervous shock and was completely prostrate

1 Elements, If. § 78. 2 Law of Nations, x. §§ 157, 158.

8 For. Rel. U.S. (1888), 114.

1 Sec A. E. Bids, Rev. de D.I. (1896), 452, where the opinions
of authors are^wcll summed up.



chap, v] A CORRECTIVE 233

according to the official Memorandum, 1 which demanded
for him the modest sum of £3000 : not much, since the
unfortunate man had been obliged to go to Australia for
the re-establishment of his health.

The Belgian Government justified its conduct by its
apprehensions that Tillett would resume a campaign of
disorderly violence which they asserted he had com-
menced in the preceding July. The allegations of ill-
treatment were denied. And if they were true, we know
how disagreeable Charles Marvin found his London lock-up.

The question, however, was referred to arbitration, and
the result was to convince Mr. Desjardins, the arbitrator,
that the cells were perfectly healthy, that the prison
dress was not forced upon Mr. Tillett, and that no con-
nection between the imprisonment and the breakdown of
his health had been proved. He further found that the
Belgian Government had grounds of suspicion of Tillett,
and that their action in arresting and detaining him was
therefore legitimate. 2 It is possible that if Professor de
Martens had been able to inspect the Netherlands Indian
prison, as Mr. Desjardins inspected the Belgian, his
award might have been different.

It is undignified and undesirable that there should be
wrangles between Governments as to whether facts should
have looked quite as black to the one side as they did to
the other ; or as to the precise amount of accommodation
which an unconvicted prisoner ought to have. Such
matters as the appreciation of evidence are best left
entirely within the province of the territorial power.
It is only when it is palpably and flagrantly wrong, that
complaint ought to follow. Interference should be limited
to cases of " palpable injustice, such as would be obvious
to all the world," 3 as a great American statesman happily
phrases it.

1 92 S.P. 79. 2 lb. 105.

3 Forsyth (U.S. Secretary of State), apud Wharton, Digest, II.
§230.



234 ILLUSTRATION [chap, v

In 1895 1 an American policeman (Oberlander) was
arrested in Mexico, on the charge of attempting to effect
an arrest. He escaped, and was somewhat roughly
recaptured. Don V. Quesada, Argentine Minister, ar-
bitrated, and held that Oberlander's remedy (if any)
was in the Mexican courts. Consequently, neither he
nor his hostess (Messenger), from whose house he was
taken, had any valid claim.

A parallel to the Bonn case 2 occurred in 1895, when
an American (Stern) was sentenced to two weeks' jail
and a heavy fine for insulting and threatening the manager
of a state dancing-room at Kissengen. His release was
pressed for, but apparently on grounds of comity merely. 3

Three Italians were killed in Colorado in 1895, and
$10,000 paid in respect of this. 4

In 1895 France attacked San Domingo. A private
dispute between the President and a French bank was
one ground ; a private assassination (though the assassin
was arrested) was another. Mr. Hanotaux sent a high-
handed ultimatum ; relations were broken off. The
U.S. Minister at San Domingo rightly considered that
" the summary demand for the summary execution of
a criminal as well as the similar apparent disregard of the
local laws in the case of the bank," could scarcely support
a bona-fide ultimatum. The friendly offices of the States
led to an accommodation. 5 In spite of the murderer
having been killed, San Domingo paid an indemnity of
225,000 frs., and apologized : a most unheard-of result,
and one which may fairly be called unjust in the extreme.
A further sum of 1,000,000 frs. was promised on account
of the claim of the bank.

Italy's endeavour to emulate her neighbours by estab-
lishing a hold on Abyssinia, came to a tragic end in 1896.
l"i Is were set up at Massowah and other places, and the

1 Sec U.S. Dipl. Cory. (1897), 382. 2 Supra, p. 128.

' U.S. Dipl. Cory. (1895), 471 el passim. * lb. (1896).
b Dipl, Cory. U.S. (1895), 241, 401.



chap, v] ABYSSINIA 235

Abyssinian Negus, Johannes, wrote to the Queen of
England complaining of this as contrary to the Brito-
Abyssinian treaty. The Queen was advised to write,
somewhat lamely, that " the Italians were a strong nation "
— but that they meant well, and that she would do her
best to appease them. King Johannes was able to dis-
pense with British mediation after Adowa. The occasion,
however, afforded Sir G. Portal the opportunity of estab-
lishing his reputation. From the first, he considered the
Italian force insufficient. 1

' Only God knows the result of war, and victory is
Christ's gift," said Johannes : the Queen had written
to tell him that Italy was very powerful ; but he was
strong also ; the right was on the side of Abyssinia, and
the issue of the war in the hands of God. 2

On 10 Sept. 1897 a mining riot took place at
Lattimer in Pennsylvania. Austrian subjects were shot
in the course of its suppression. As the Sheriff and his
deputies were acquitted by the courts, compensation
was refused. 3

Into the history of the Transvaal we need not enter.
The claim for political rights by British subjects there
was complicated by the existence of suzerainty, which
removed the case from the ordinary category. 4 Needless
to say, no such demand could be recognized for a moment
by an independent state of any description. The con-
cession of Home Rule to the Rand would have been the
burghers' true policy. It is unnecessary to discuss the
pros and cons of a lost opportunity.

Nor need the history of the Cretan imbroglio, in which
it was not so much the interest of their compatriots, 5
as that of their co-religionists, that provoked the inter-
vention of the Greeks, be here considered.

1 79 S.P. 690. 2 lb. 697, Portal to Baring, 1 Jan. 1888.

3 91 S.P. 1260, Message of U.S. President, 5 Dec. 1899.

4 See the writer's International Law in South Africa, c. i.

5 See 90 S.P. 1312, Lascelles to Salisbury, 12 Febr. 1897.



236 ILLUSTRATION [chap, v

French and British subjects were killed by rioters in
China in 1891. Two of the rioters were tried and executed
by the Chinese, and others arrested. But the British
Minister pressed for further activity, and was answered
that considering the distances apart of the places affected,
no undue delay had occurred. Officials had been dis-
missed and reduced. 1 This seems to have been accepted
as sufficient.

It was not until 1899, however, that the missionary
riots became invested with the intense character to which
the name " Boxer ' has been popularly attached. Mr.
Brookes, of the Church of England Mission, was killed
on the last day of the year ; on this occasion special