by force exact debts due by other states to their subjects,
if they can persuade a majority of arbitrators to agree
with them as to the justice of the demand. It was felt
that the foreigner who lends his money to a foreign state
takes the risks of his action, and ought to support them.
Consequently the American view appears to be considered



86 PENETRATION [chap. lit

a retrograde one : one state ought never to be allowed
to treat the non-payment of a contractual demand of its
subject as a cause of war. This attitude of the foremost
publicists of the time goes far to prove that — in the absence
of treaty — injury to or confiscation of goods is no cause
of complaint. For a breach of contract may be as serious
in its consequences as any destruction of property. In
the case of property, however, there is the possibility of
its having for the foreigner who lays claim to it an " affec-
tions-interesse" which may render its seizure or destruction
obnoxious to our general rule.

Difficult questions arise as to what are known as " con-
cessions." These seem to be contracts : and as such to fall
under the general principle that their* execution must rest
in the discretion of the state which has entered into
contractual engagements. It is only by a metaphor that
they can be styled " property." Debts themselves are
capable of being metaphorically labelled as such. The
concessionaries will in most cases, however, have some
tangible property, — mines, railway plant, or the like, — and
if the government illegally proceeds to confiscate this,
no doubt a question of indemnity might arise. In the
" New York and Bermudez Company " case, 1 the United
States showed an inclination to go further, and to invite
Venezuela not to enforce legal forfeitures so as to inflict
disproportionate losses. Clearly, this would be to
insist that a special rule of Anglo-American chancery
law should be of universal obligation. 2 In the case
of a U.S. contractor in Guatemala, the British Minister
Jenner arbitrated in 1900, and awarded over $80,000
damages * for his arbitrary dispossession without process
of law.

1 For. Rcl. U.S. (1905), 1003, Root to Russell, 10 Nov. 1905.

* lb. 1014.

a lb. (\()0()), 648. Mr. Jenner refused to entertain evidence
which implied the imputation of a criminal offence (smuggling)
to an individual.



chap, in] HEADS OF COMPLAINT 8?

Incorporeal rights such as monopolies, administrator-
ships and the like, are with difficulty treated on the
footing of tangible goods.

Interference with family relations might form an in-
teresting subject of study, if the point were not largely
academic. The child of a British subject is not necessarily
a British subject — and even in the cases where parent
and child are British, it is difficult to see how their separa-
tion could be alleged as a complaint against a foreign
government. Suppose that a government insisted on
the stranger's child going to a national school and learning
the national language ; no state is in a position to com-
plain of that. And the step is short from that to the
assumption by the foreign state of the entire control of
the child.

Lastly, there comes interference with the liberty of
free locomotion. Probably a long and rigorous imprison-
ment might (though not causing positive pain or injury)
be capable of coming within the class of actions which
may conceivably be so capriciously cruel as to be inad-
missible. But certainly no ordinary imprisonment can
have that effect. And we must always bear in mind that
the effect of determining that a particular kind of harm is
within our principle, is not to make it wrong to inflict it
— but to let in an inquiry as to whether it was inflicted
with capricious cruelty. Some kinds of harm are outside
the limits of foreign cognizance : not because de minimis
non curat lex, but because a nation cannot be fully master
in its own house, if foreigners are to decide for it how
it shall behave. Other kinds are within those limits :
they may be justifiable, or they may not, but a state may
rightly be called on to justify them. But such cases
must be kept very rigidly limited, and we think they are
rightly limited so as to exclude all monetary and almost
all moral damage, and to include cases of bodily hurt,
injury, outrage and (in grave cases) restraint.

It will readily be seen that harm can be done to a



88 PENETRATION [chap, hi

person's character and goods almost as effectively whether
he is outside the territory or within it. Contracts with him
can be, and generally are, broken in the former posture
of affairs. But physical harm can only be done to him
if he is personally present. Therefore, when the problem
is presented as a question of the limits to which a state
may go in dealing with a foreign resident, the question
tends to centre in the treatment of his person. It is
forgotten that the treatment of his goods, his character,
his contracts, remains to be discussed, apart altogether
from his personal presence. And it may be well to assert,
lest a contrary impression should gain ground, that his
goods and his character are, quoad the territory of any
given foreign nation, as much at its absolute mercy as his
contracts. As to his person, modern tenderness imposes
a slight but real limitation.

We must now pass for a moment to the question of
the operation of treaty rights. In the usual case in which
the territorial sovereign has guaranteed to the subjects
of another protection for their persons and property, it
may be gravely doubted whether the effect is to extend
the common law principle as above outlined. It is merely
to say that foreigners within the terms of the treaty will
not be subject to gratuitous molestation. Within the
law of the land, treaty or no treaty, they must expect to
fall. Within that law, as it may be altered so as to prove
prejudicial to their interests, they must expect no less to
fall. Perhaps the main advantage of the treaty is to
make it impossible to legislate against foreigners of the
particular nation as such, so as to affect their personal
safety : an advantage which can generally be reduced
to very modest dimensions by a little ingenuity.

Do such treaties go further, in guaranteeing foreigners
in the enjoyment of their " property " ? In the absence
of a definition of property, it would be difficult to say so.
Our conclusion was, in respect to the common law as to
goods, that astate could confiscate them, as it can repudiate



chap, in] TREATY RIGHTS 89

debts, without being bound to assign a reason. Its express
agreement not to seize them cannot amount to a waiver
of all rights over the goods of foreigners within its juris-
diction. It can certainly tax them : it can certainly
requisition them for the public service — military con-
tributions apart ; and it is very unlikely that it can
be bound to state expressly why it felt obliged to take
that step. The treaty clause, therefore, means some-
thing very vague. And it seems to be this — not that
the foreigner is intended to be put in a privileged
position of inaccessibility in purse and person, but
that he is meant to be put on an equality with the native,
and his goods made no more and no less liable to seizure
than theirs. But suppose that theirs are liable to
absolute confiscation or requisition — as would be the
case in Great Britain, or in any country where a legal
absolute sovereignty exists : then it must be taken that
this sovereign right will in practice be enforced with
equality. There are very great difficulties in the way of
applying that principle.

There is the standard difficulty of deciding whether
equality means equality proportionate or absolute. Is
the adult treated equally with the child, when he gets
an equal ration ? Is the foreigner in some particular
circumstance of obligation — (say, the occurrence of a
riot in a district where he is the largest ratepayer) — treated
equally with the native when he is forced to pay the
extraordinary contribution that a native w r ould have
had to pay in his place ? — or must all the natives help
him to bear it ? for if they do not, he is paying some-
thing which in point of fact they do not pay, since
they may never be in the same special situation. And
then there is the old difficulty to which reference has
already been made, — perhaps it is ultimately the same
difficulty, — that you cannot always say how a native
would have been treated, since a native could not
have been in precisely the same position, for the simple



go PENETRATION [chap, in

reason that he is a native and not a foreigner, and has a
different history. A Colombian comes to England with
slaves. Is he to be absolutely protected in his " property " ?
If not, is he to be protected so far as an Englishman in
his place would be protected ? It is impossible to attach
any meaning to the last question. An Englishman could
not be in his place.

One further point we may mention before closing,
more as a matter of curiosity than anything else. The
question of the peculiar liabilities, if any, which a state
incurs by reason of admitting a foreign potentate within
its borders, has been treated in a special monograph
by Mr. M. Ferrigui. The true conclusion appears to be
that no such special liabilities are undertaken. Insult
to, or assault upon, such a prominent foreigner can,
however, hardly escape from coming within the denomina-
tion " anti-foreign." As such, they would require spe-
cially vigilant suppression and penalties.



CHAPTER IV

ILLUSTRATION

We now proceed to offer a detailed enumeration of the
principal cases in which the losses sustained by foreigners
have formed the subject of reclamation by their govern-
ments.

It should be premised that some of these cases, especi-
ally those of the middle and end of the last century, are
instances of a powerful state's holding a smaller state
responsible for injuries sustained within its borders. Such
cases must be handled with caution. International Law
has no immunity from being occasionally broken, and it
is oftenest broken against the weak. Its true precepts
are best to be gathered from the behaviour towards each
other of approximately equally powerful nations. None
of its principles is better established than this, that the
rights of the largest states are equally the rights of the
weakest. So that, if we find a great power behaving in
some particular towards a small power as countries of
equal resources are not accustomed to behave among
themselves, we do not conclude that no law exists in the
premises, but that the known law has been violated :
perhaps rightly violated. At the same time, few things
are more conspicuous or more gratifying, than the
scrupulous care and forbearance which, in general, im-
portant states exhibit when pressing their claims upon
their less fortunately circumstanced neighbours.

With this caution, we proceed to particulars.

Correspondence will be found at p. 958 of the British

. 91



92 ILLUSTRATION [chap, iv

State Papers, Vol. 28, regarding the efforts made on behalf
of Spanish, Greek, Mexican, Central American, Colombian,
New Granadan, Venezuelan, Ecuadorian, Peruvian,
Buenos Ayrean and Chilian bondholders. We quote the
following : —

" Mr. Secretary Canning has received your letter of
the 1st inst., requesting that H.M. Government would
make a representation to the Government of Spain, calling
upon them distinctly to acknowledge the loans contracted
for with that country by British subjects ; and I am
directed by Mr. Canning to reply to you, that he does
not consider it as any part of the duty of the Government
to interfere in any way to procure the repayment of loans
made by British subjects to foreign Powers, States or
individuals." l

Lords Palmerston and Aberdeen departed from this
clear-cut rule, to the extent of urging the propriety of
satisfying such claims as a matter of favour. Aberdeen's
view was expressed thus : —

" Although H.M. Government are not, in strictness,
called upon to interfere in operations of this kind, which
are of a purely private nature and upon which, as a
matter of right, they cannot claim to exercise any authori-
tative interference with foreign States, they are never-
theless far from viewing with indifference the interests of
the numerous individuals involved, . . .," 2 and would
instruct their envoy to use his friendly offices.

In 1 82 1, a Chilian squadron seized specie mainly
belonging to U.S. citizens on board the Macedonian.
Belgium arbitrated, and in 1863 awarded three-fifths of
the sum seized to the States, with 6 per cent, interest.

During the Portuguese disturbances of 1828, Sir J. M.
Doyle and three other British subjects were imprisoned.
Mr. Matthews, the British Minister at Lisbon, demanded

1 lb. 961, Planta to Cairncross, 4 Nov. 1824.

2 lb. 967, 25 March 1830.



chap, iv] PORTUGAL, 1828 93

their release, but Lord Aberdeen limited himself to an
expression of " deep concern " that they should have
been detained in " unhealthy and loathsome places of
confinement," ' and to an instruction to present a
" serious remonstrance." Later, he declared that the
treatment meted out had been " most arbitrary and
oppressive," and that the government would " require
full and immediate satisfaction and reparation for any
injuries contrary to the Laws of Portugal," which might
have been sustained. 3 Mr. Matthews was to secure " a
speedy and impartial administration of the Laws of
Portugal." (A field officer of police, on 9 Aug., struck
Sir Augustus West and broke his ribs, but absolutely no
notice seems to have been taken of it.) The prisoners
Doyle and Young were tried by the British Judge-
Conservator, and sentenced to exile on 6 Sept.

Other cases immediately arose. One Ascoli was
imprisoned on 14 Sept., and a youth named Noble a
few days previously. Communication with visitors was
during the first month refused them. Ascoli was condemned
to exile, 3 and the Portuguese Minister admitted irregu-
larity in the process, as he should have been delivered to
the Judge-Conservator in pursuance of treaty. The charge
against him seems to have been political freemasonry.
That against Noble (condemned to exile on 7 April 1829,
but pardoned) was corruption of the soldiery. Lord
Aberdeen, admitting that some consideration might
perhaps be due to the unsettled state of the government
and the natural apprehensions of the party in power/
asserted that the charge against Ascoli was so futile as
not to justify his detention under any circumstances. He
demanded compensation for Ascoli at the moderate
rate of $8 per day, his release within thirty days, and a

1 18 S.P. 49.

2 lb. 50, Aberdeen to Matthews, 30 July 1828.

3 lb. 70.

* lb. 77, Aberdeen to Matthews, 5 Nov. 1828.



94 ILLUSTRATION [chap, iv

censure on the police authorities, in which however he
did not wish any particular severity displayed. 1 A
Mr. Macrohon was arrested, but released after twenty-
four hours' detention (of which no complaint was
made). The Hamburg Vice-Consul (a Portuguese) was
arrested and imprisoned at St. Ubes. Ascoli's lawyer
was imprisoned. The British Vice-Consuls were dun-
geoned at Tavira and Villa Real. (The former was
released 4 Feb. 1829.)

Ascoli was still in prison in 1829, and was virtually
ruined when, on 13 Jan. 1829, his final appeal failed. Two
days later a Mr. McKenna was set upon and wounded
at Lisbon, but the military arrested his assailant. Lord
Aberdeen now declared to Portugal that " if these excesses
should continue and the Portuguese Government still be
unable or unwilling to repress them," Britain would
be compelled to send ships to the Tagus : — to land an
expedition ? Not at all ; — to carry out the much more
dignified and proper course of " enabling the British
Consul and residents to leave a country where no treaties
are sufficient to protect them from insult and aggression." *
That is the tone of the victors of Waterloo. As to Ascoli,
they did not dispute his eventual sentence. But for his
prolonged, secret, and illegal detention they insisted on
his $8 a day, 3 and Portugal was only too pleased to pay
it * and to censure the police. The moderate amount of
compensation is particularly noticeable, in view of the
swollen sums claimed in more recent times.

The main subject of complaint was the disposition of
the Portuguese to withdraw cases from the jurisdiction
of the Judge-Conservator. Two British subjects, Story
and Fregoaz, were treated in this way, later in 1829,
being detained in secret and in ignorance of the charges
against them. They were so imprisoned for three or

1 18S.P. 91.

2 lb. 105, Dunglass to Matthews, 5 Feb. 1829.

lb. 106, Matthews to Santarem, 7 Feb. * lb. 109.



chap, iv] PORTUGAL, 183I 95

four months before the procrastination of their jailers
gave way.

Throughout 1830 there appears to have been little
complaint. In 1831 a British merchant's rope factory
was roughly searched and the foreman maltreated and
imprisoned. 1 The Danish Vice-Consul was arrested. The
foreman was liberated after ten days in jail, and an official
reprimand was issued to the actors in his ill-treatment. 2
Compensation (200 milreis) was demanded and conceded.'
Palmerston pressed for the removal of the authorities
responsible in these cases, and in that of a British subject
whose house was, contrary to treaty, searched. 4 Reprisals
were threatened by H.M.SS. Briton and Childers, and
the demands were complied with. It must be remem-
bered that in all these cases there were express treaty
provisions directed against the very acts complained of.

Afterwards (15 July) a Mr. Milne was attacked, and
(18 July) a consulate officer and a Mr. Lowley : no doubt
these incidents were provoked by the French attack upon
Lisbon then proceeding. On 6 Aug., two officers of the
Briton were beaten by the peasantry and robbed, under
the idea that they were French officers. A Mr. Gravely was
mauled as a Frenchman by soldiers on 22 Aug. , receiving
five bayonet wounds. The British Minister admitted
that some of these events were due to imprudence on the
part of the assailed, 5 and it does not appear what, if any,
satisfaction was made for them. Perhaps the fall of
Miguel blotted them out.

The French difficulties with Portugal arose out of
similar events. 8 We need not go into the case of Bon-
homme. 7 Another case was that of Sauvinet, banished for
ten years to Africa. Both sentenceswere in conformity with
law ; in both there was at least some very cogent evidence.
The French demand was entirely against the principle of

1 18 S.P. 207. 2 lb. 215. s lb. 247.

4 The cases are detailed at p. 251 ib. 6 18 S.P. 395.

a H>. 395 et seq. 7 See the details, ib. 377.



96 ILLUSTRATION [chap, iv

judicial independence : so much so, that it actually ex-
tended to the dismissal of six judges without any attack
on their impartiality. It included sums of frs. 20,000
for Bonhomme and frs. 15,000 for three other Frenchmen,
detained and expelled contrary to the treaty privilege of
trial by a Conservator. 1 These demands were conceded
after the short war of 1831. 2

On the occasion (in 1829) of French subjects being
enrolled in the Argentine Unitary forces, the reply was
made that they were militia, destined for " passive
defence." Since the British had a treaty by which they
themselves were exempt from military service, the French
Consul-General tried to construct a dilemma for the
Argentines. If the service was not military, the English
should be included in it. If it was, the French should
be exempt. The Argentines then justified the measure
as necessary for all Buenos Ayres — " pour defendre,
contre les barbares, leurs vies, leurs proprietes et l'honneur
de leurs families." Finally the Consul demanded his
passport and quitted Buenos Ayres, s and the French
Admiral began to seize vessels belonging to that city.
In consequence, the French were permitted to escape the
militia duty improperly imposed upon them. 4 France
pressed for some restriction to be put upon the tone
of the newspapers in speaking of his Most Christian
Majesty (to be dethroned by herself in thirteen months),
but the Buenos Ayres Government disclaimed the power
or duty of controlling the press. 5

The seizure of the Argentine ships was mutually con-
sidered as " de facto war." 8

A convent at La Meilleraye in France was suppressed
in 1832, 7 and seventy-two British subjects expelled. They
were informed that they were entitled to protection " in

1 18 S.P. 367. 2 lb. 395. " 16 S.P. 928.

« lb. 930. 6 lb. 933.

6 lb. 936. Additional articles to Convention between Venan-
court and Gclly. 7 22 S.P. 377.



chap, iv] FOREIGNERS IMPRESSED 97

as far as such support could be given consistently with the
laws of the country in which they resided." It did not
appear that the decree of suppression was issued in con-
travention of the laws of France, " nor that the execution
of this decree was attended with any unnecessary degree of
harshness or violence." And therefore Lord Palmerston
declined to interfere.

The Hamburg British complained in this year that since
the French wars, they were compelled to perform military
service and to become burghers. They were indeed
eligible, as such, for the highest offices in the state. 1 The
extraordinary admission by Palmerston is on record, 2 that
the civil and military duties to which British merchants
were liable in Hamburg, had been voluntarily incurred by
those who, with a knowledge of the existing laws of the
state, had chosen to fix their residence there ; and that
it could not have been expected that any application by
H.M. Government for the relief of British subjects from
such liabilities would have been successful. The com-
munication which drew forth this reply from Palmerston
was resented by the Hamburg Senate. The six merchants
who made it were indicted and reprimanded. No
objection to this was taken by Great Britain : in fact the
government interceded with the Senate for leniency. 3

Belgium, in 1834, was about to pass legislation decreeing
indemnities to natives who had sustained losses during
the revolution of 1830. Foreign nations put in claims
to participate, which effectually stopped the matter from
proceeding further. 4 Intermittently, the subject was
renewed. Palmerston wrote in 1836 ° that — " as long as
the Belgian Government took no steps to indemnify its

1 22 S.P. 1163.

2 lb. 1 166, Shee to Edye, 14 April 1834. 3 23 S.P. 1239.

4 lb. 482, Adair to Wellington, 17 Feb. 1835. De Leval
states that the bill was eventually passed, in a form conferring
the right to indemnity upon residents. — Report, 24th Conference of
the International Law Association, p. 210. 5 30 S.P. 214.

7



98 ILLUSTRATION [chap, iv

own subjects for similar losses, His Majesty's Government
did not feel justified in pressing for a decision in favour
of British subjects, who could only be entitled to be placed
on the same footing as Belgian subjects." The Prussians
were making a claim as well, and by 1838 Brazil and
the United States were also in the field. 1 In a long
despatch 2 M. de Theux repels all liability for the results
of hostilities. " Les suites de la guerre flagrante sont
des evenements fortuits ou de force majeure, dont la
responsabilite n'incombe a personne." It would be
absurd to force a state to rebuild the houses which its
enemy had knocked down. No complaint was made by
foreign merchants on the occasion of the bombardment
of Copenhagen. To make either belligerent responsible
for the losses of neutrals would be to put the latter in
an extra-territorial position, and unduly to hamper the
operations of war.

These principles have prevailed, and were taken as the
basis of discussion at the Hague in 1907. The Powers
replied at the moment by saying that the bombardment
of Antwerp was an operation of mere civil war. 1 They
departed from the claim of equality, and now laid their
right to an indemnity on the ground that the bombard-
ment was wanton and irregular.

In 1842, the matter was still unsettled.

Miguel's government being overthrown in Portugal in
1833, Sir J. Campbell, one of his major-generals, was
captured on the high seas when leaving that country in a
British ship bearing Miguelist despatches. He invoked
the assistance of his government. But, Lord Wm.
Russell wrote, " when a military officer serves another
sovereign his allegiance is to that sovereign, and his rights
as an Englishman cease." Lord Palmerston concurred
that, although Sir John might in fact have given up the