exempt the respective importers of the goods which have already paid duties to the insurgents from their obligations to the national treasury, but will be a reason for adding to such obligations 50 per cent of the amount of duties illegally paid, if immediate payment is refused, and the collectors are further instructed to proceed immediately to a collection of such dues, as also of the extra 50 per cent in case of delay, and are required to make a report to the treasurer of all such importers as have paid duties to the rebels.

"Our consul at Barranquilla informs me that on the 17th April the foreign consuls in Barranquilla protested collectively to the military commander of the city against the decree in question. The reply of the general is herewith inclosed. It does not appear from the consul's dispatch whether this decree has been enforced and the duty been actually collected, but it is probable that now that the rebellion is partially overcome all means of raising revenue have been adopted, and I desire, in anticipation of the protests of our merchants, to express the views of this Government on the subject.

"The question as to how far a government is responsible to its citizens and foreigners within its borders for losses occasioned by insurgents may perhaps be open to argument, but there can be no question that no government has the right to inflict a punishment (for this double tax, with superadded penalty, amounts to a punishment) on neutral and peaceful merchants who have been compelled by military force to contribute against their will to the revolutionary funds or supplies, as if such merchants were voluntarily aiding and abetting the rebellion.

"A government is bound to use all proper measures to protect the denizens within its borders from revolutionary acts, and in case it fails to insure such protection, it can not with any justice hold the citizens of foreign nations responsible for its own weakness and failure to protect them, by imposing on them a penalty or fine for the very occurrences which the government itself was bound to avert. Such a course of action as is authorized by the decree of the 10th February would be especially objectionable as being a retroactive revenue measure at ports admitted to have been beyond the control of the Government at the time the rebel dues were paid. Should an attempt be made to justify it on the ground of being in effect a fine for illicit trading with ports assumed to be embargoed, as mentioned in the President of Colombia's decree of the 9th April, I must again use the arguments in my note of the 24th ultimo to those decrees, and contend that a blockade must be efficient to be recognized, and that executive measures relative to ports over which the Government has no control can only be considered as nugatory."

Mr. Bayard, Sec. of State, to Mr. Becerra, Colombian min., June 1, 1885,
For. Rel. 1885, 269.

A remonstrance against the decree of Feb. 10 was also made by Mr. Scruggs, United States minister at Bogota. The Colombian minister of foreign affairs, adverting to the circumstance that no American names were on the list of persons fined under the decree, intimated that it never was intended to be enforced against neutral foreigners, and he afterwards stated that it would be revoked. (For. Rel. 1885, 221-222, 229-230.)

The reply of the Colombian general, Señor Acevedo, of April 20, 1885, to
the consul's protest of the 17th of the same month, intimated that
payment under compulsion would be considered as an excuse. (For.
Rel. 1885, 272.)

Dec. 3, 1885, Mr. Becerra, the Colombian minister at Washington,
informed the Department of State "that the Colombian Government
by a decree issued ad hoc has declared that only the importers who
freely and voluntarily paid the imposts levied on their imports to
the rebels who succeeded in getting possession of some of the said
ports of entry, are obliged to make the payment over again, together
with a penalty; bona fide importers, who were compelled to pay
under duress, are in consequence free from all responsibility." (For.
Rel. 1885, 280.)
The Department of State, replying to this note, said: "The present decree
limits the above liability, restricting it to cases where the importers
freely and voluntarily paid duties to the rebels.

"Referring to the terms of my note of June 1, respecting the first de-
cree, the Government of the United States assumes, in respect of this
supplementary decree, that no unreasonable proof will be required of
the involuntary character of the payments to the insurgent agents.
It is well known that in times of armed insurrection, when forced
loans and arbitrary extortion are resorted to, the usual forms of
protest are not permitted, and the parties levied upon are almost in-
variably constrained to submit, rather than run the danger of incur-
ring by a show of resistance double burdens and greater loss.
"Even under the normal operation of Colombian laws a protest against
such levies may entail a penalty. This was the case with the decree
against which my note of June 1 last remonstrated, for it assumed to
add 50 per cent in the case of those merchants who should refuse
payment to the agents of the constitutional Government of duties
already paid by them to the insurgents when in sole control.

66

In the disorganized and unprotected condition of society at the Colombian ports in question during the period referred to, it would be indeed surprising to learn that any American importer there had been permitted to make or file formal protest against the payment of customs duties to the rebel authorities. Under such circumstances the rational and necessary presumption is that they yielded to vis major and paid under duress, unless the contrary be distinctly shown. "We trust that the manifest justice and reasonableness of this will be borne in mind, in executing the Colombian decree now announced by you, which, regardless of all rational presumption, seems to throw upon the sufferers the burden of proof that positive coercion was resorted to against them." (Mr. Bayard, Sec. of State, to Mr. Becerra, Colombian min., Dec. 11, 1885, For. Rel. 1885, 281.)

The titular government has no right to collect taxes on property which have already been paid to a revolutionary government which

had gained control over the portion of the national territory wherein the property is located, and taxes so collected must be returned.

Plumley, umpire, case of the Santa Clara Estates Company, British-
Venezuelan mixed commission, protocol of Feb. 13, 1903, Ralston's
Report, 397.

See, also, opinion of Ralston, umpire, case of Guastini, Italian-Venezuelan
mixed commission, protocol of Feb. 13, 1903, Ralston's Report, 730.

XIII. NEUTRAL RIGHTS AND duties.

1. VIOLATION OF NEUTRAL RIGHTS.

§ 1049.

In numerous cases damages have been obtained from belligerents for spoliations, in violation of the rights of neutrals.

"I have it in charge from the President to assure the merchants of the United States concerned in foreign commerce or navigation, that due attention will be paid to any injuries they may suffer on the high seas or in foreign countries, contrary to the law of nations or to existing treaties, and that on the forwarding hither of well-authenticated evidence of the same, proper proceedings will be adopted for their relief."

Mr. Jefferson, Sec. of State, to Messrs. Duke & Co., Aug. 21, 1793, 4 Jefferson's Works, 51.

It is estimated that under Art. VII. of the Jay treaty, citizens of the United States recovered $11,650,000 from the British Government on account of violations of the rights of neutral American commerce.

Moore, Int. Arbitrations, I. 344.

Under the claims convention with France of April 30, 1803, indemnity for French spoliations was made to a large amount; while, under the convention of July 4, 1831, indemnity was obtained for later spoliations to the amount of 25,000,000 francs.

Moore, Int. Arbitrations, V. 4434, 4460; as to the Spanish indemnities of 1819 and 1834, see id. 4496, 4533; as to the Danish indemnity of 1830, see id. 4549; as to the Neapolitan indemnity of 1832, see id. 4575.

2. FAILURE TO PERFORM NEUTRAL DUTIES.

§ 1050.

By Art. VII. of the treaty with Great Britain of Nov. 19, 1794, commonly called the " Jay treaty," the United States set the example of undertaking to make pecuniary indemnity for the failure to perform the duties of neutrality, by agreeing to refer to a mixed commis

sion the claims of British subjects for "loss and damage by reason of the capture of their vessels and merchandise, taken within the limits and jurisdiction of the States and brought into the ports of the same, or taken by vessels originally armed in ports of the said States." Under this stipulation awards were made against the United States to the amount of $143,428.14.

The example thus set was followed at Geneva, in the proceedings of the tribunal of arbitration under the treaty of May 8, 1871, which awarded to the United States the sum of $15,500,000 on account of the depredations of the Alabama and certain other Confederate cruisers fitted out in British jurisdiction. The United States demanded compensation for the following classes of losses and expenditures, so far as they grew out of the acts of the cruisers, viz: 1. “Direct losses growing out of the destruction of vessels and their cargoes." 2. "The national expenditures in the pursuit of those cruizers." 3. "The loss in the transfer of the American Commercial Marine to the British flag." 4. "The enhanced payments of insurance." 5. “The prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion." It was denied by Great Britain that a submission of all the claims to arbitration carried with it the right of the arbitrators to take into consideration all the elements of loss, and it was insisted that the tribunal had no right, under the terms of the treaty, to take classes three, four, and five into consideration in its estimate of damages. The United States denied this proposition, and contended that the tribunal was invested with power to decide the question of the extent of its jurisdiction. The tribunal, without deciding that question, held that "these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations, and should, upon such principles, be wholly excluded from the consideration of the Tribunal, in making its award, even if there were no disagreement between the two Governments as to the competency of the Tribunal to decide thereon." And in regard to the second of the above items of loss, the Tribunal, in its award, decided thus: "Whereas, so far as relates to the particulars of the indemnity claimed by the United States, the costs of pursuit of the Confederate cruizers are not, in the judgment of the Tribunal, properly distinguishable from the general expenses of the war, carried on by the United States: The Tribunal is therefore of opinion, by a majority of three to two voices, that there is no ground for awarding to the United States any sum by way of indemnity under this head."

Moore, Int. Arbitrations, I. 315, 343; J. C. B. Davis, Notes, Treaty Vol. (1776-1887), 1334; Moore, American Diplomacy, 49, 50.

For the Geneva award, see infra, § 1330.

It is maintained by Sir W. Harcourt (Historicus, 161, 162) that when
neutral rights have been invaded by one belligerent to the injury of
another, the latter, "who, though he may have sustained injury, has
suffered the violation of no right, has no definite or lawful claim
upon the neutral for reparation. He may urge upon the neutral, by
way of remonstrance, the duty of obtaining redress for him at the
hands of the offender; this, however, is only a duty of imperfect obli-
gation. He can not demand at the hands of the neutral, as of right,
compensation for the injury he may have sustained, nor can he impose
upon the neutral the duty of obtaining for him any remedy beyond
that which may be had over persons or things which may be infra
præsidia, and consequently within the neutral jurisdiction." To this
effect is cited The Anne, 3 Wheat. 435; Story, J.; 1 Kent Com. 116,
119, 121. But Judge Holmes (in his note to 1 Kent Com. 117) says:
"The text does not seem to bear out the conclusion just stated. In the
well-known case of the General Armstrong, the United States made a
claim against Portugal for not preventing the destruction of a United
States privateer by British vessels, when lying in a Portuguese
harbor, during the war of 1812. The case was submitted to Louis
Napoleon, then President of the French Republic, who held that
Portugal was excused, even admitting the principle that a neutral
might be liable under such circumstances, by the alleged facts that
the garrison was feeble, and that the American commander had not
applied in proper time to the local officers for protection, but had
resisted the attack with arms, thus himself violating the neutrality
of the territory. Wheaton, Lawrence's note, 217; Wheaton, Dana's
note, 208. In 1 Pistoye et Duverdy, Traité des Prises Maritimes,
107, a contrary doctrine to that of Historicus is laid down."
On general principles, as is above shown, a neutral may, by failure to
perform the duties of neutrality, make himself liable to a belligerent
who suffers from such failure.

In 1779 Captain Landais, of the Alliance, of the squadron under John Paul Jones, captured three British vessels and carried them into Bergen, Norway, then under the Danish crown. On demand of the British minister they were seized by the Danish Government and restored to their owners on the ground that, as Denmark had not acknowledged the independence of the United States, the prizes could not be considered lawful. In a note to M. Bernstorf, Danish minister of foreign affairs, December 22, 1779, Franklin asked that the order of restoration be repealed, or that, if it had been executed, the value of the prizes, which was estimated at £50,000, should be paid by Denmark to the United States. M. Bernstorf answered evasively, though in substance he pleaded duress as an excuse for the order, which had been carried into effect. The United States continued to press the claim for indemnity, but without success. By the act of March 28, 1806 (6 Stat. 61), Congress appropriated $4,000 to be paid to Landais as prize money on account of the captures. The settlement of claims against Denmark, made by the convention of March 28, 1830, was construed by the United States as not embracing the claim on account of the Bergen prizes. By the act of