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*CHAPTER II.

RIGHT OF PROTECTING CITIZENS IN FOREIGN COUNTRIES.

II. THE limitation which this Right of Protection prescribes to the foregoing Right of Jurisdiction, may be in a great measure inferred from what has been stated with respect to the extent of the latter Right.

"Prima autem maximèque necessaria cura pro subditis, sive qui familiari, sive qui civili subsunt imperio; sunt enim quasi pars rectoris;" is the language of Grotius; (a) and Vattel, (b) following in the same track, observes:-"Quiconque maltraite un citoyen, offense indirectement(c) l'Etat qui doit protéger ce citoyen."(d)

It has been said that every individual who enters a foreign territory, binds himself, by a tacit contract, to obey the laws enacted in it for the maintenance of the good order and tranquillity of the realm. The converse of the proposition is equally true.

Foreigners, whom a State has once admitted unconditionally into its territories, are entitled not only to freedom from injury,(e) but to the

execution of justice(ƒ) in respect to their transactions with the [*4] subjects of that State. No country has a right to set, as it were,

a snare for foreigners; therefore conditions hostile to their interests, or different from general usage, must be specified beforehand (g) Foreigners are not, as will be seen hereafter, strictly speaking, entitled to demand as a right the execution of justice in civil matters relating to affairs either between themselves, or between themselves and the citizens of a third State. How far the COMITY of nations extends to these last two cases will be considered hereafter.(h) It is only necessary to remark here, that the refusal on the part of a State to do justice between commorant foreigners, with respect to disputes which have arisen from transactions in that State, is, to say the least of it, a very gross violation of that Comity.(i)

III. The State, to which the foreigner belongs, may interfere for his protection when he has received positive maltreatment, or when he has been denied ordinary justice in the foreign country. The State of the

(a) Grotius, 1. ii. c. xxv. De causis belli pro aliis suscipiendi.

(b) Heffters, ss. 6, 59, 60.

Vattel, 1. ii. vi. De la part que la nation peut avoir aux actions de ses citoyens. (c) Vide ante, vol. i. p. 355.

(d) Grotius, ubi supra. Vattel, ubi supra.

(e) Correspondence respecting the Arrest of Mr. Harwood (the Vienna Correspondent of "The Morning Chronicle") by the Austrian Authorities at Vienna, 1852-3. Laid before Parliament, 1853.

(f) Debates in both Houses of Parliament on the Affairs of Greece and the Claims of Don Pacifico.-Hansard's Parl. Deb. June, 1850.

(g) "Dès qu'il les reçoit, il s'engage à les protégér comme ses propres sujets, à les faire jouir, autant qu'il dépend de lui, d'une entière sureté."-Vattel, 1. ii. c. viii. s. 104.

(h) Vattel, 1. ii. c. viii. Règles à l'égard des étrangers.

(i) Vattel, 1. ii. c. viii. sec. 103. "Les différends qui peuvent s'élever entre les étrangers, ou entre un étranger et un citoyen, doivent être terminés par le juge du lieu, et suivant les lois du lieu."

foreigner may insist upon reparation immediately in the former case. In the latter the interference is of a more delicate character. The State must be satisfied that its citizen has exhausted the means of legal redress afforded by the tribunals of the country in which he has been injured. If those tribunals are unable or unwilling to entertain and adjudicate upon his grievance, the ground for interference is fairly laid. But it behoves the interfering State to take the utmost care, first, that the commission of the wrong be clearly established; secondly, that the denial of the local tribunals to decide the question at issue be no less clearly established.

It is only after these propositions have been irrefragably *proved, that the State of a foreigner can demand reparation at [5] the hands of the Government of his country; and it is not till after the Executive as well as the Judicial Authorities have refused redress, that recourse can be had to Reprisals, () much less to War.

As a general rule, no objection to the forms of procedure, or the mode of administering justice in the courts of the country, can found any such demand; the foreigner should have considered this matter before he entered into transactions in the country. Nevertheless, a plain violation of the substance of natural justice, e. g. refusing to hear the party or to allow him to call witnesses, would amount to the same thing as an absolute denial of justice.

"Jus repressalium (says Grotius) fieri intelligitur non tantum si in sontem aut debitorem judicium intra tempus idoneum obtineri nequeat, verum etiam si in re minimè dubiâ (nam in dubiâ re præsumptio est pro his qui ad judicia publicè electi sunt) planè contra jus judicatum sit; nam auctoritas judicantis non idem in exteros quod in subditos valet . exteri autem jus habent cogendi, sed quo uti non liceat quamdiù per judicium suum possint obtineri."(?)

It is impossible to state the law more ably or more clearly than it is laid down in the reply of Great Britain, 1753, to the King of Prussia. (m) According to that statement, "The law of nations, founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage, does not allow of reprisals, except in cases of violent injuries directed or supported by the State; and justice absolutely denied in re minimè dubiâ by all the tribunals, and afterwards by the Prince."(n) *IV. The distinction between domiciled persons and visitors in or passengers through a foreign country is never to be lost sight of; [*6] because it must affect the application of the rule of law which empowers a nation to enforce the claims of its subjects in a foreign State. foreign domicil does not indeed take away this power but it renders the invocation of it less reasonable, and the execution of it more difficult.

The

A subject who has deliberately domiciled himself in another State, can have no ground of complaint, if he be subjected to many taxes and impo

(k) Vide post.

(1) Grotius, 1. iii. c. ii. s. 5.

(in) 2 Martens' Causes Célèbres, part i.

P. 57 of Memorial.—Cabinet Library of Scarce and Celebrated Tracts, vol. i. (n) Treaty between England and Holland, July 31, 1667. Reprisals not to be granted till justice has been demanded according to the ordinary course of law. OCTOBER, 1855.-3

sitions from which the simple stranger would, by the usage of nations, be exempt. Moreover he must be held to have considered the habits of the people, the laws of the country, and their mode of administration, before be established therein his household gods, and made it the principal seat of his fortunes. He cannot therefore expect, that every complaint, which he may be disposed to urge upon his native Government, with respect to these matters, will of necessity be considered as requiring national interposition. More especially, if, being permitted by the law of his domicil, he have purchased land, and thus incorporated himself, as it were, into the territory of a foreign country, he cannot require his native Government to interfere on the subject of the operation of municipal laws, or the judgment of municipal tribunals upon his rights of immovable property in this foreign land.

The case must be one of flagrant violation of Justice, which would lay the foundation of an International remonstrance in such a matter; unless, indeed, the provisions of some particular treaty, (o) or some public proclamation of the foreign Government, take the case out of the application of the general law.

Grotius takes this distinction very strongly between the actually domiciled and the merely commorant foreigner, in his discussion on the important question upon which we are now about to enter, viz., as [*7] to the liability of the nation at large for the obligations incurred. by their Government.-"Jure gentium subjacent pignorationi omnes subditi injuriam facientis, qui tales sunt ex causâ permanente, sive indigenæ, sive advenæ : non qui transeundi aut moræ exiguæ causâ alicubi sunt."(P)

A

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RIGHT OF PROTECTING CITIZENS IN FOREIGN COUNTRIES.-DEBTS OF
THE STATE.

V. THE right of interference on the part of a State, for the purpose of enforcing the performance of justice to its citizens from a foreign State, stands upon an unquestionable foundation, when the foreign state has become itself the debtor of these citizens.

It must, of course, be assumed that such State has, through the medium of its proper and legitimate organs, contracted such debt; whether that organ be the Sovereign alone, according to the constitution of Russia, or the Sovereign and Parliament, according to the constitution of England, the debt so contracted with foreign citizens, whether in an individual or a corporate capacity, constitutes an obligation of which the country of the lenders has a right to require and enforce the fulfilment. Whether it will exercise that right or not is a matter for the consideration of its private domestic policy: "Les emprunts," Vattel says, with great pre

(0) See next Chapter.

(p) Grotius, 1. iii. c. ii. sec. vii.

cision, (a) "faits pour le service de l'Etat, les dettes créées dans l'administration des affaires publiques, sont des contrats de droit étroit, obligatoires pour l'Etat et la nation entière. Rien ne peut la dispenser d'acquitter ces dettes-là. Dès qu'elles ont été contractées par une puissance légitime, le droit du créancier est inébranlable."

And he adds, anticipating a revolutionary argument of later times: "Que l'argent emprunté ait tourné au profit de l'Etat, ou qu'il ait été dissipé en folles dépenses, ce n'est pas *l'affaire de celui qui prêté. [*9] Il a confié son bien à la nation; elle doit le lui rendre. Tant pis pour elle, si elle a remis le soin de ses affaires en mauvaises mains."

It seems to have been in accordance with this important rule of International Law, that the following circular was addressed, in 1848, by Viscount Palmerston, the Secretary of State for Foreign Affairs, to the British representatives in foreign States :

"Foreign Office, January, 1848. "Her Majesty's Government have frequently had occasion to instruct her Majesty's representatives in various foreign States to make earnest and friendly, but not authoritative representations, in support of the unsatisfied claims of British subjects who are holders of public bonds and money securities of those States.

"As some misconception appears to exist in some of those States with regard to the just right of Her Majesty's Government to interfere authoritatively, if it should think fit to do so, in support of those claims, I have to inform you, as the representative of Her Majesty in one of the States against which British subjects have such claims, that it is for the British Government entirely a question of discretion, and by no means a question of International Right, whether they should or should not make this matter the subject of diplomatic negotiation. If the question is to be considered simply in its bearing upon International Right, there can be no doubt whatever of the perfect right which the Government of every country possesses to take up, as a matter of diplomatic negotiation, any well-founded complaint which any of its subjects may prefer against the Government of another country, or any wrong which from such foreign Government those subjects may have sustained; and if the Government of one country is entitled to demand redress for any one individual among its subjects who may have a just but unsatisfied pecuniary claim upon the Government of another country, the right so to require redress cannot be diminished merely because the extent

of the wrong is increased, and because instead of there being [*10] one individual claiming a comparatively small sum, there are a great number of individuals to whom a very large amount is due.

"It is therefore simply a question of discretion with the British Government whether this matter should or should not be taken up by diplomatic negotiation, and the decision of that question of discretion turns entirely upon British and domestic considerations.

"It has hitherto been thought by the successive Governments of Great

(a) Vattel, 1. ii. c. xiv. s. 216.
Cod. 1. xi. t. 29, de jure Reipublicæ.

Britain undesirable that British subjects should invest their capital in loans to foreign Governments instead of employing it in profitable undertakings at home; and with a view to discourage hazardous loans to foreign Governments, who may be either unable or unwilling to pay the stipulated interest thereupon, the British Government has hitherto thought it the best policy to abstain from taking up as International Questions the complaints made by British subjects against foreign Govenments which have failed to make good their engagements in regard to such pecuniary transactions.

"For the British Government has considered that the losses of imprudent men, who have placed mistaken confidence in the good faith of foreign Governments, would prove a salutary warning to others, and would prevent any other foreign loans from being raised in Great Britain, except by Governments of known good faith and of ascertained solvency. But nevertheless, it might happen that the loss occasioned to British subjects by the non-payment of interest upon loans made by them to foreign Governments might become so great that it would be too high a price for the nation to pay for such a warning as to the future, and in such a state of things it might become the duty of the British Government to make these matters the subject of diplomatic negotiation. "In any conversation which you may hereafter hold with the

Ministers upon this subject, you will not fail to *communicate [*11] to them the views which Her Majesty's Government entertain

thereupon, as set forth in this despatch.

"I am, &c., "PALMERSTON."(b)

In June, 1847, Lord George Bentinck brought forward a motion in the House of Commons, "That an Address be presented to Her Majesty, humbly praying that Her Majesty may be graciously pleased to take such steps as may be deemed advisable to secure for the British holders of unpaid foreign bonds redress from the respective Governments."

In replying to Lord G. Bentinck, Lord Palmerston said: "Although I entreat the House, upon grounds of public policy, not to impose at present upon Her Majesty's Government the obligation which the proposed Address would throw upon them, yet I would take this opportunity of warning foreign Governments who are debtors to British subjects, that the time may come when this House will no longer sit patient under the wrongs and injustice inflicted upon the subjects of this country. I would warn them that the time may come when the British nation will not see with tranquillity the sum of 150,000,000l. due to British subjects and the interest not paid; and I would warn them that, if they do not make proper efforts adequately to fulfil their engagements, the Government of this country, whatever men may be in office, may be compelled by the force of public opinion and by the votes of Parliament to depart from that which has hitherto been the established practice of England, and to insist upon the payment of debts due to British subjects. That we have the means of enforcing the rights of British subjects I am not prepared to dispute. It is not because we are afraid of those States,

(b) The Times, April 21, 1849.