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officers may be appointed by the president alone or even by diplomatic or superior consular officers. According to a statute of 1906,23 only American citizens may be appointed to positions with a salary of $1,000 a year or more.

A limited application of the civil service principle in making appointments has been put into operation by executive order.24 Consuls are subject to special instructions of the department of state and the president, and may be removed at the president's discretion.

Consuls are required by statute to give bond for the faithful performance of their duties and they are subject to criminal prosecution in the United States courts for specified acts committed abroad such as accepting appointments as administrator without giving bond or account of money, exacting excessive fees, making false oath, neglecting duty toward seamen, making false certification of property, 25 etc., as well as for general misconduct in office.26

The international duties of these governmental agents are enforced largely through methods of executive control. The executive orders and instructions prescribing the conduct of such officers are specifically authorized by statute and are to be regarded as law” which may be effectively enforced through the appointment and removal power of the executive. The requireinents of bonds, the amenability of naval officers to courts martial, and of consular and diplomatic officials to the criminal jurisdiction of American courts for specified statutory offenses, add further sanction to the enforcement of these duties.

ACTS BY THE CIVIL POPULATION. Governments are not generally responsible for acts by private citizens committed abroad or on the high seas.28 Private

22 Act. Apr. 5, 1906, sec. 2, 3; Consular Regulations, 1888, sec. 8, 7; 1896; sec. 21. See U. S. vs. Eaton, 169 U. S. 331. Moore's Digest, 5; 8-9.

23 Act Apr. 5, 1906, sec. 5; Moore's Digest, 5;12.

24 Ex. Ord. June 27, 1906; Dec. 12, 1906; Apr. 20, 1907; Dec. 23, 1910. under authority Rev. Stat. sec. 1753, Act Apr. 5, 1906, and May 11, 1908. See Information Regarding Appointments and Promotions in the Consular Service of the United States, Govt. Printing Office.

25 Rev. Stat, sec. 1716, 1728, 1734-1737 ; act Dec. 21, 1898, 30 stat. 771; act June 30, 1902, 32 stat. 547.

26 Act June 22, 1860, rev. stat. sec. 4110; Moore's Digest, 2;267, note. individuals in such cases are amenable to the jurisdiction of the courts of the foreign government, or if they commit piracy on the high seas to those of any government catching them. They may be punished, but their government can not be held responsible for their acts, and no reparation may be demanded. This principle does not apply in countries where citizens are exempt from local jurisdiction by treaty, and consequently in such places the responsibility of the government of nationality continues, to a limited extent.

27 See Rev. Stat. sec. 1752. On legal status of executive orders and regulations, see J. A. Fairlie, The National Administration of the United States of America, N. Y. 1905, p. 27.

28 See Moore's Digest, 6;787.

There has been some difference of opinion as to whether a state is responsible for the acts of private citizens even within its territory, but the doctrine of responsibility appears to be established.29 A state is supposed to maintain order and protect life and property within its territory. It therefore is liable to make reparation for failure to do so if such failure results in an injury to a foreign state or its citizens.

This principle is subject to exceptions. Where insurrections are of considerable magnitude or where the country is invaded by hostile forces, incidental injury to aliens is beyond the power of the government to prevent, and the government is therefore not responsible. The general principle, however, is as stated, and clearly implies a duty on the part of the state to prevent acts injurious to foreign states or persons being committed by its civil population.

The subject may be considered under the three heads, (1) injury to foreign states, (2) injury to resident foreign public officers, (3) injury to alien private persons.

(1) International law requires a government to prevent persons within its jurisdiction doing acts directly injurious to foreign states. The supreme court of the United States has held30 that the measure of this duty is “due diligence" and that as foreign relations are exclusively in the hands of the national government, legislation punishing acts directed against foreign governments is warranted under the constitutional authority to "define and punish

offenses against the law of nations.":31 By treaty the United States has recognized its obligation to prevent injury to adjacent states by hostile bands of

29See article by Julius Goebel, Jr., The International Responsibility of states for injuries sustained by aliens on account of mob violence, insurrection and civil war. Am. Jour, of Int. Law. 8;802, Nov. 1914.

30U. S. vs. Arjona, 120 U. S. 479, (1887), Moore's Digest, 1;61. 31 Constitution, art. I, sec. 8, cl. 10.


Indians, and forcible measures have been taken to suppress such marauding bands.32 The manufacture or uttering of counterfeit foreign money or bank notes is made a crime by national statutes, 33 and the courts have declared that such acts are prohibited by international law.34 Transporting dynamite and other explosives from the United States in vessels bound to foreign countries except in the manner provided by statute is also made a crime. 35

The duty to protect foreign governments against dangerous characters entering under false passports is recognized by making the issuance of passports by unauthorized persons a crime.30 The duty of assisting the administration of justice in foreign countries and preventing frauds upon it by persons in the United States is recognized through provisions requiring certain United States officials to respond to letters rogatory from foreign governments requesting testimony in cases in which that government is interested, by issuing process to obtain such testimony from residents. The failure to respond to such summons, on the part of residents of the country, is made a penal offense. 37

82Treaties with Spain, 1795-1902, art. 5, Malloy, p. 1642; Mexico, 1831-1853, art. 33, p. 1095; 1848-1853, art. II, p. 1112. The government of Mexico protested that the United States was not fulfilling these treaty obligations, but at a mixed commission arbitration under treaty of 1868, Malloy, p. 1128, the Mexican claim was not allowed. See Moore, Int. Arb. 3;2430; Moore's Digest, 2;434. By treaty of 1853, art. 2, p. 1122, the United States was released from this obligation to Mexico. But in protocols from 1882 to 1896, reciprocal permission was given to pursue marauding Indians across the boundaries of the two countries. Correspondence has taken place in reference to the suppression of Indians on the Canadian frontier, but no treaty was negotiated. See Moore's Digest, 2;434-442.

33 Act, May 16, 1882, 23 Stat. 22; Penal Code of 1910, Act, Mch. 21, 1909, 35 Stat. 1088, in force Jan. 1, 1910, sec. 156-162. Printed with annotations, G. B. Tucker and C. W. Blood, The Federal Penal Code of 1910.

34U. S. vs. Arjona, 120 U. S. 479. Moore's Digest, 1;61 ;2, 450. A similar view was taken in an English case, Emperor of Austria vs. Day and Kossuth, 2 Giff. 628, (1861), in which an injunction was issued to restrain counterfeiting of Hungarian securities on the ground that the law of nations, which is part of the law of England, requires one nation to protect the prerogative privilege of a foreign sovereign to issue money.

35 Rev. Stat. sec. 4278, 5353; Act, May 30, 1908, 35 Stat. 554, Penal Code of 1910, sec. 232; Moore's Digest, 2;431.

36 Rev. Stat. 4078, Act of June 14, 1902, 30 Stat. 386.
37 Rev. Stat. 4071-4083, 771-875; Moore's Digest, 2;104-113.

A further recognition of this duty is found in the statute giving consular courts jurisdiction of acts by American citizens promoting insurrection against the state in which they are located. Such offenses may be punished by death provided the consul and his associates agree and the United States minister gives his approval.38 The American minister is also authorized to use the military or naval forces of the United States to prevent American citizens participating in such insurrections.39 This extension of the duty to prevent injury to foreign states by private persons—to acts committed in foreign countries—is one exception to the rule. The exemption of United States citizens from local jurisdiction in countries granting extraterritorial consular jurisdiction, however, imposes the duty of prevention upon the United States in such cases. American citizens continue under the jurisdiction of the United States even though resident abroad, so it continues to be responsible for their acts

With the doctrine that the federal courts have no common law criminal jurisdiction, acts injurious to foreign governments can not be prevented through the imposition of criminal penalties by federal courts, except in cases covered by statutes. Although congress has the power to cover completely the field of such penal legislation through its power to punish offenses against the law of nations, the offenses actually covered are comparatively few. The president undoubtedly has power to take preventive measures in matters covered by treaty, and as to duties required by international law in his general control of foreign relations, but a large part of the duty of prevention in this respect remains with the state governments. State courts may assume a jurisdiction over any act injurious to foreign governments according to the common law, and through their general police power the state governments may prevent attempts or plots with such aims in view.40

Controversy has arisen respecting the injury of water power locations in one country by depletion or diversion of the river in an adjacent country. It has been held that such acts are cognizable in state courts when proceedings are instituted by citizens of another state of the union, and probably a similar rule would apply in reference to like injuries to foreign states. 41

38 Rev. Stat. sec. 4102.
39 Act, Jan. 16, 1860, 12 Stat. 77; Rev. Stat. 4090.
40 Moore's Digest, 2;432.

41 Stillman vs. Man. Co., 3 Wood and M. 538; Foot vs. Edwards, 2 Blatch. 310; Miss, and Mo. R. R. vs. Ward, 2 Black 485; Wooster vs. Man. 42See Moore's Digest, 4;95-96: 2;432-434.


After the assassination of President McKinley, there was diplomatic agitation for the passage of uniform laws preventing anarchistic plots, and President Roosevelt, in his message of Dec. 3, 1901, recommended legislation by congress. 42 No national statutes, except those excluding anarchists from entering the United States,43 bear on the point, but state laws may prevent anarchistic agitation and also plots to commit other varieties of crime abroad. In a letter of Secretary Bayard in 1885," in reply to a communication from the British government asking whether participation in the Irish National League was not punishable under the United States laws, it was stated that no national statutes penalized such offenses against foreign governments, but “if any person in the state of Pennsylvania take measures to perpetrate a crime in a foreign land, such an attempt, coupled with prepara

a tion to effectuate it, though not cognizable in the federal courts, is cognizable in the courts of the state of Pennsylvania. It is only necessary, to obtain legal action in such prosecution, that an oath specifying the offense be made before a state magistrate, and the state prosecuting attorney having jurisdiction of the locality notified of the initiation of proceedings.”:45

(2) Certain foreign public officers are entitled to special protection by international law; consequently a special duty of prevention is incumbent upon the government in relation to them. Diplomatic agents are the most important of these privileged foreign officers.

In 1784 the court of oyer and terminer of Philadelphia in Res Publica vs. De Longchamps declared the person of a public minister “sacred and inviolable.” “Whoever," said the court, “offers any violence to him not only affronts the sovereign he represents but also hurts the common safety and well being of nations; he is guilty of a crime against the whole world.” It added that the “comites” and household of the minister are like

Co., 31 Me. 246; In re Eldred, 46 Wis. 530; Thayer vs. Brooks, 17 Ohio, 489; Armendiaz vs. Stillman, 54 Tex. 623; See Moore's Digest, 2;451.

43 Act, Mch. 3, 1903, 32 Stat. 12, 13. See Turner vs. Williams, 194, U. S. 279, (1904).

44 See Moore's Digest, 2;432.

45The prevention of acts injurious to foreign states in time of war while the United States is neutral is provided for in neutrality statutes. See infra p. 114 et seq.

461 Dall. III, (1784); Moore's Digest, 4;622.

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