onerous penalties which the law visits on the claimant if he fails wholly or even in part in establishing his right to the amount claimed are quite sufficient to deter any foreign claimant, and especially a citizen of the United States, from seeking a remedy under it." Mr. Frelinghuysen, Sec. of State, to Mr. Baker, min. to Venezuela, No. 292, April 18, 1884, S. Ex. Doc. 143, 50 Cong. 1 sess. 81, 85. "A foreigner's right to ask and receive the protection of his government does not depend upon the local law, but upon the law of his own country. His citizenship goes with him into whatever country he may visit, and the duty of his government to protect him so long as he does nothing to forfeit his citizenship accompanies him everywhere. This duty his government must discharge, and it could not, if it would, be relieved therefrom by the fact that the municipal law of the country where its citizen may happen to be has seen fit to provide under what circumstances he may be permitted to appear before the authorities of that country. Such a law can not control the action or duty of his government, for governments are bound among themselves only by treaties or by the recognized law of nations, and there is nothing in the existing treaties between the two countries or in the law of nations which recognizes as pertaining to Venezuela the right by the enactment of a municipal law to say how, or where, or under what circumstances the government of the United States may or may not ask justice in behalf of one of its own citizens. "It may, perhaps, be broadly admitted that when the courts of a country afford adequate remedy to foreigners and natives alike in case of wrongful treatment, resort thereto in the first instance by the aggrieved party may be proper; but even in such a case the right of the sufferer's government to watch over the proceedings from the outset is inalienable. It is its duty to see at every stage that justice is done, to urge full and speedy compliance with the laws, and by its counsel and remonstrance, its moral and material support, to advance the interest of its wronged citizen. "Mr. Wheelock's case has, however, passed far beyond the initial stage to which President Guzman's letter would now seek to recommit it. It has reached the higher plane of an apparent denial of justice. "The correspondence lately published shows that the departmental and State courts of Venezuela successively decided that no grounds existed for continuing the process or ordering the arrest of the commissary, Sotillo, who inflicted the illegal torture upon Mr. Wheelock. On his excellency's own showing, this would have sufficed to dismiss the complaint forever, without recourse or appeal. "Conceding the right of this government to ask justice for its injured citizen, the federal government of Venezuela ordered the State government to reopen the examination. This was done and the H. Doc. 551-vol 6--21 result was the same. Here, then, we have three failures of justice, any one of which, if President Guzman's argument be admitted as well founded, was necessarily final. "But two years afterwards the Venezuelan government discovered that the result of the proceedings involves civil responsibilities,' and a fourth investigation was held, the result of which amply bore out the allegations of Mr. Wheelock's complaint. Warrants were issued for the arrest of Sotillo, who had meanwhile left the country, and orders were issued to confiscate Sotillo's property, which he had before this placed out of reach of judicial embargo. "Now, after more than four years have passed, it is claimed that the responsibility of Venezuela to punish the offender is met by these tardy and ineffectual proceedings; and, further, that the sufferer is wholly without civil recourse for material reparation, save such as the federal court may find due to him from the commissary, Sotillo. "I may be permitted to pass over, as not meriting serious consideration or argument, the allegation which your note implies, that the government of Venezuela is not liable on account of occurrences over which it had absolutely no control and of which it had no knowledge.' It is not claimed that the federal government directed, or was cognizant of, or consented to, the outrage perpetrated by its public servant in the execution of his public functions. "The simple complaint of this government is, that an officer of justice of Venezuela, in the exercise of his official functions, subjected an American citizen, whom he had arrested on suspicion, to grievous bodily torture to extort from him a confession of guilt. For this act this government asks the punishment of the offender, and expects that Venezuela will tender an equitable indemnity to the victim. "The President is surprised at the tardy proposal of Venezuela, now for the first time heard of in connection with the case, that Mr. Wheelock shall seek redress at the hands of the high federal court. Even if he had been disposed to consent to such a disposition of the matter in the interest of friendship and harmony between the two countries, a casual examination of the provisional decrees of 14th February, 1873, concerning the rights and indemnification of foreigners, which prescribe the procedure to which the complaint would be subjected, leads the President to withhold his acceptance of such a resort. "This government can not waive the right of its citizens to claim. diplomatic protection as those decrees require. It can not admit that if the court shall deem the claim for indemnity exaggerated, the American claimant shall forfeit all rights and incur heavy fine or prolonged imprisonment. It can not consent to allow the court power to dismiss the claim because more than two years have passed since the commission of the injury. It can not, in a word, regard those decrees as controlling the equitable or moral rights of an injured American citizen. “I have remarked that more than two years elapsed before any judicial resort of Venezuela admitted that Sotillo was even liable to process. Permit me to ask, in no captious spirit, how it is supposed Mr. Wheelock would have fared had he submitted to those provisional decrees in the face of the solemn adjudication of three judicial tribunals of Venezuela that no grounds existed for subjecting the commissary, Sotillo, to legal process? Would fine and imprisonment have been added to the wrong under which he already lay? If so, would it not have been alleged that diplomatic redress was effectually barred to him by reason of his voluntary submission to the operation of those decrees? "A copy of the present correspondence will be sent to the United States minister at Caracas with instructions to say that this government does not accept the reply made to its representations, and that it renews its demand for the punishment of the offender, and repeats its expectation that the government of Venezuela will tender to Mr. Wheelock a just indemnification." Mr. Frelinghuysen, Sec. of State, to Mr. Soteldo, Venez. min., Apr. 4, 1884, See, as enforcing the same claim, Mr. Bayard, Sec. of State, to Mr. Soteldo, This claim was compromised for $6,000, payable in two installments, The Institute of International Law, at its session in 1900, when considering the question of the responsibility of states Resolution of Insti- for damages suffered by aliens in riots, insurrections, tute of Interna- or civil war, adopted unanimously the following tional Law. resolution: “L'Institut de Droit international exprime le vœu que les États évitent d'insérer dans les traités des clauses d'irresponsabilité réciproque. Il estime que ces clauses ont le tort de dispenser les États de l'accomplissement de leur devoir de protection sur leurs nationaux à l'étranger et de leur devoir de protection des étrangers sur leur territoires. Il estime que les États qui, par suite de circonstances extraordinaires, ne se sentent point en mesure d'assurer de manière suffisamment efficace la protection des étrangers sur leur territoire, ne peuvent se soustraire aux conséquences de cet état de choses qu'en interdisant temporairement aux éxtrangers l'accès de ce territoire. Annuaire de l'Institut de Droit International, XVIII. 253, session of ity. It thinks that such clauses are wrong in excusing states from the performance of their duty to protect their nationals abroad and their duty to protect foreigners within their own territory. It thinks that states which, by reason of extraordinary circumstances, do not feel able to assure in a manner sufficiently efficacious the protection of foreigners on their territory, can escape the consequences of such a state of things only by temporarily denying to foreigners access to their territory." 7. GOOD OFFICES. (1) MATTERS OF BUSINESS. § 920. It is not within the province of the Department of State to make inquiries abroad as to matters of purely private business of citizens of the United States, nor is it the practice of the Department to call upon American ministers abroad to make such inquiries. Mr. Buchanan, Sec. of State, to Mr. Hough, March 13, 1846, 35 MS. Dom. "Under any circumstances, this [a question of succession to property], in the first instance, would be a question for the Swiss courts; but under the special provision of our treaty with Switzerland, it is a question for those courts finally. The 6th article [of the treaty of Nov. 25, 1850] declares that any controversy that may arise among the claimants of the same succession as to whom the property shall belong shall be decided according to the laws, and by the judges of the country in which the property is situated. I think it to be a just construction of this section that it takes the question altogeher out of the domain of diplomacy." Mr. Seward, Sec. of State, to Mr. Harrington, min. to Switzerland, March 21, 1868, Dip. Cor. 1868, II. 192. In the case, however, to which the foregoing instruction relates, no civil suit having been instituted by anyone in Switzerland to contest the right of the American claimant, the Federal Council directed the communal council of Entfelden, Canton of Aargau, in whose custody the property lay, to recognize the rights of that claimant. (Dip. Cor. 1868, II. 197.) "It is not, however, within the province or the usage of this Government to interfere in behalf of private citizens in their assertion of rights of private property situated in foreign nations. Such rights must be regulated and determined according to the laws of the country where the property may be situated. The consul of the United States at Warsaw is Mr. Charles de Hofman. Mr. Kulinski is at liberty to address him, requesting his good offices in his behalf, or whatever unofficial services he may be able and willing to render. By inclosing this present letter in the original to the consul, that officer will perceive the view which is taken by the Department of the case; but the Department can have no responsibility in the premises, nor can the consul be expected to incur charges or fees other than such which he may be provided with funds to meet. Any letter to the consul, if desired, may be sent to this Department for transmission to him." Mr. Hale, Assist. Sec. of State, to Mr. Kalussowski, May 8, 1872, 94 MS. "To a minister of your experience I need not point out the proper distinction between diplomatic good offices and personal advocacy. To extend all proper protection to American citizens, and to secure for them in any interests they may have a respectful hearing before the tribunals of the country to which you are accredited, and generally to aid them with information and advice, are among the imperative and grateful duties of a minister, duties which increase his usefulness and add to his respect, and duties which, I have no doubt, you will faithfully perform. "To go beyond and assume the tone of advocacy, with its inevitable inference of personal interest and its possible suspicion of improper interest, will at once impair, if it does not utterly destroy, the acceptability and efficiency of a diplomatic representative.” Mr. Blaine, Sec. of State, to Mr. Hurlbut, min. to Peru, No. 18, Nov. 19, See, in this relation, the Chile-Peruvian investigation, H. Report 1790, 47 In a case where a man claimed to have been injured on the Metropolitan Railway in London, the Department of State said: "It is not part of the minister's regular or official duties to assist American citizens in the conduct of their private law suits unless some discrimination against them or some denial of justice makes diplomatic intervention necessary." Mr. Rives, Assistant Secretary, to Mr. Coakley, April 11, 1888, 168 MS. With reference to a request for the intervention of the United States, through its diplomatic representative in Vienna, to present a petition addressed to the Emperor, praying that the legal guardian of His Highness, Prince Benjamin Rolan, jr., and the superior orphan's court at Pressburg be ordered to settle a claim for money alleged to be |