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on its territory in pursuit of marauding Indians and the right to establish submarine cable terminals.93 The usual principle that treaties are enforceable law tends to enforce these duties, but acts of congress may always override such treaty privileges so far as municipal law and the controlling power of municipal courts are concerned.94
92 Protocols with Mexico, 1882 to 1896, by which Mexico was permitted to pursue marauding Indians in United States territory. Malloy, p. 11441177.
93Special permits with rules have generally been issued by the president to companies desiring to land cables. On the power of the president to give such permits see Richards, Acting Att. Gen., 22 op. 13, (1897) ; Griggs, Att. Gen., 22 op. 408, (1899). See Moore's Digest, 2;452-466.
94 For a recent discussion of treaty servitudes or international contracts, see Aix-la-Chappelle Maestricht R. R. Co. vs. Thewis, Dutch Govt. intervener, Apr. 21, 1914, a German case, reported Am. Jour. Int. Law., 1914, 8;858, 907. In this case a portion of Prussian territory was held to be subject to a servitude by which a Dutch Railway Company had the right to operate under Dutch law. Germany claimed that a protocol of Mch. II, 1877, with Spain created a servitude for her benefit upon the Zulu Archielago, which remained after cession of the Archipelago to the United States. The United States refused to recognize this claim. See Moore's Digest, 5;351.
CHAPTER IV. OBLIGATIONS OF PREVENTION.
INTRODUCTORY The municipal laws designed to insure the abstention of the government from illegal acts outside of its territory, and its acquiescence in recognized exemptions from its complete control of its own territory have been considered. But its duties under international law do not stop here. The government is responsible for the acts of its officers and its civil population. It is therefore under an obligation to take positive measures to prevent contraventions of international law by such persons. The duties of prevention bear a relation to duties of absten
a tion and acquiescence. The responsibility of the government for its subjects extends no further than its own duties. It need prevent nothing which it is not itself bound to abstain from authorizing. In fact it does not extend so far. There are many acts of its subjects which the government is not responsible for and which it need not prevent, but which it must itself abstain from. This is especially evident in the law of neutrality. A neutral government need not prevent the export of arms by its subjects to belligerents, but it must itself abstain from such commerce. In the law of peace the same principle applies. The government must abstain from authorizing the use of force outside of its territory or intervening in the affairs of foreign governments, but it is not responsible, if its subjects do such acts abroad, without authorization. For acts within its territory the responsibility is much greater and hence also is the duty of prevention. For acts of public officers either in its territory or abroad the responsibility of the government is much greater than in the case of private persons, and hence the duty of prevention is more arduous. We may therefore conveniently consider the subject in reference, (1) to agencies of government, and (2) to the civil population. Although the international duties imposed by treaties are considered in connection with corresponding duties of international law, the general duty of (3) preventing infractions of treaty provisions may conveniently be considered here.
1See Moore's Digest, 6;787. The United States does recognize a certain responsibility for acts of its citizens in promoting insurrection against states in which it has consular jurisdiction, even when committed abroad. The immunity of United States citizens from local jurisdiction in such cases is accountable for this exception to the general rule. See Rev. Stat. sec. 4090, 4102. Infra p. 74.
ACTS BY AGENCIES OF GOVERNMENT.
(1) The agencies of government which come in contact with foreign nations in time of peace are the navy, the diplomatic service and the consular service. International law requires that naval vessels obey local regulations on entering foreign jurisdiction, abstain from prohibited acts, and exchange salutes on meeting foreign public vessels. Special duties, when enjoying the hospitality of ports, such as refusing asylum to criminals, slaves and political refugees, are sometimes required by treaty. These duties are specified in the permanent navy regulations and naval instructions issued under authority of the president, and are enforced by the executive control exercised over the navy at all times by the president as commander-in-chief, through the navy department, and the authority of courts martial in enforcing the statutory articles for the government of the navy.3
A case involving the enforcement of navy regulations arose in 1893. During the naval revolt in Brazil, Commodore Stanton, an American naval commander, on entering the port of Rio Janeiro, exchanged visits and fired salutes in honor of the naval insurgents. The Brazilian government protested and the navy department on investigation found that Commodore Stanton had violated article 115 of the Navy Regulations of 1893, providing that “no salute shall be fired in honor of any nation not formally recognized by the government of the United States." As the offense was due to mistake rather than intent the department, although holding that Commodore Stanton had committed "a grave error of judgment,” restored him to his command."
Armed forces are forbidden passing into foreign territory without license, and on such occasions continue subject to military commissions, and army officers are required to observe certain formalities in dealing with representatives of foreign governments.5
2Navy Regulations, 1913 sec. 1502, 1633-1634, 1641-1651 under authority of Rev. Stat. sec. 1547.
3Rev. Stat. sec. 1624.
"Dig. op. Judge. Ad. Gen. 1912, C. R. Howland ed. pp. 90, 106. Army Regulations, 1913, sec. 398; 407; 889, ch. 3.
(2) Diplomatic officers are likewise subjected to duties while in foreign countries. International law requires diplomatic officers to observe diplomatic etiquette, in making visits, being admitted to audiences and in matters of precedence. It requires abstention from public addresses or expressions of opinion likely to be offensive to the state to which the minister is accredited, and it seems that modern international law requires the minister to prevent his residence being used as a place of asylum by fugitives from justice. This duty is also specified in a number of treaties. In exchange for his immunity from local jurisdiction the diplomatic officer is also required to be especially strict in his observance of local laws. These duties are specified with considerable definiteness in the Instructions to Diplomatic Officers issued by the president under authority of statute,? and a number of them are specified in the statutes themselves. Thus statutes specifically forbid ministers to correspond or give information relating to the affairs of the foreign government to which they are accredited to any but the proper United States officials, and specify a number of matters relating to costume, absention from post, correspondence, etc.
The permanent instructions and statutes as well as special instructions issued by the president or secretary of statelo are enforced by executive control of the ministers' tenure of office, requirements of bonds on acceptance of mission, and criminal liability for misconduct in office.
By the constitution the president with the advice and consent of the senate has the power of appointing diplomatic officers, 11 although special agents have been appointed by the president alone.12 By statute such appointments (or rather salaries for appointees) are limited to citizens of the United States, 13 and provision has been made to prevent the performance of diplomatic functions by unofficial representatives by making such acts criminal.14
Instructions to Diplomatic Officers, 1897, sec. 1-136.
14 Act Jan. 30, 1799; Rev. Stat. 5335. This act resulted from the efforts of Dr. Geo. Logan, who attempted on his own responsibility a
Ministers are required by statute to give bond for the faithful performance of their duties, and it has been held that the appointment is not complete until the execution of this bond.15 Diplomatic officers are subject to special orders of the president generally transmitted through the department of state, and the president may recall such officers at discretion. By statute diplomatic officers have been made responsible for negligence and misconduct in office.16 Criminal prosecution in United States courts for violation of statutory duties would therefore seem possible.
(3) International law imposes duties upon consuls while in service in foreign territory. They may not enter upon their functions until they have received an exequatur from the government to which they are assigned, and they are bound by its terms. They must observe the local law,l? although by treaty they are generally exempted from military and jury service, etc. Consulates are frequently declared immune from local jurisdiction by treaty, but it is also a rule of most of these treaties that the consul must refuse to give asylum to persons sought by local authorities. 18
These duties of consuls are specified in detail in the Consular regulations issued by the president under authority of statute, and a number of them are specified in the statutes themselves.20 These regulations and statutes are enforced through the executive control exercised over consuls by the president through the department of state, by requirements of bonds and by amenability to criminal prosecutions in the United States for acts done abroad.
Consuls are appointed by the president with the advice and consent of the senate,21 and it appears that inferior consular mission of conciliation in France in 1798. It is known as the “Logan Act.” There have been no prosecutions under it. See Moore's Digest, 4;448450. Reference is made to the act in U. S. vs. Craig, 28 Fed. Rep. 795, 801; American Banana Co., vs. United Fruit Co., 213 U. S. 347, 356.
15 Williams vs. U. S. 23 Ct. Cl. 46; Moore's Digest, 4;457. On liability of bondsman, see U. S. vs. Bee, 4 C. C. A. 219.
16 Act. June 27, 1860, Rev. Stat. 4110; See also Rev. Stat. sec. 1734; act Dec. 21, 1898, 30 Stat. 771.
17 See Moore's Digest, 5;698. 18 Supra, p. 54.
19See Consular Regulations, 1896. Duties under International law, sec. 71-76; under treaties, 77-93; under authority of Rev. Stat. sec. 1752.
20 Rev. Stat. sec. 1751-1752; 1716-1737 ; Act June 30, 1902, 32 Stat. 547. 21Constitution, art. 2, sec. 2; Cl. 2.