stumbled upon a consul, we will say of Venezuela, traveling for his health in some of the secluded by-paths of Arizona or New Mexico, and then and there, without respect to the dignity of the consular office and the law of nations, had divested him of all his valuables and then proceeded suo more to take his scalp. Could it be pretended that the United States could be held responsible for an act of violence of this kind, although committed by persons actually within her jurisdiction and nominally subject to her authority? It is notorious throughout the world that outrages of this kind on the western frontier of the United States are more or less frequent, and that the whole military force of that country, out of garrison, has not been sufficient to prevent the occasional robbery or murder of innocent persons, whether aliens or citizens. Unless a government can be held to be an insurer of the lives and property of persons domiciled within its jurisdiction, there is no principle of sound law which can fasten upon it the responsibility for indemnity in cases of sudden and unexpected deeds of violence, which reasonable foresight and the use of ordinary precautions cannot prevent. Of course, if a government should show indifference with reference to the punishment of the guilty authors of such outrages, another question would arise, but as long as reasonable diligence is used in attempting to prevent the occurrence or recurrence of such wrongs, and an honest and serious purpose is manifested to punish the perpetrators, the best evidence of which, of course, will be the actual infliction of punishment, we fail to recognize any dereliction in the performance of international obligations, as measured by any practical standard which the good sense of nations will permit to be enforced.

Nor do we perceive that there is anything in this ruling at variance with the propositions contended for by the United States and supported by an elaborate citation of authority by its counsel. The very language used in argument, by Mr. Cushing, in behalf of the United States, before

the Geneva Commission and now quoted by the counsel of the United States in his brief, is strikingly applicable to the facts in this case.

"The general allegation," said Mr. Cushing, "that acts committed furtively in remote and unfrequented coasts, against the wishes of a government and in spite of well intended, active efforts to prevent them, are not acts over which the government could reasonably be expected to exert a control, commands the assent of the United States. They would not themselves consent to be held responsible for such acts." The italicized part of the concession seems to be regarded as destructive of any value it might have in determining the rights of the claimant, which are sought to be founded on the assumption that there was no well intended, active effort on the part of Venezuela to prevent the foray of the savages.

But there is nothing in the record to show that the government had any notice of the incursion or any cause to expect that such a raid was threatened, and while it may be true that governments are prima facie responsible for the acts of their subjects and aliens commorant within their jurisdiction, this is a presumption which is always rebuttable by any facts which will afford a reasonable excuse for the dereliction against which the complaint is aimed. A different rule of responsibility applies where the act complained of is only one in a series of similar acts, the repetition, as well as the open and notorious character of which raise a presumption in favor of knowledge being brought home to the authorities and with it corresponding accountability. It is in such a case that Sir Robert Phillimore says that it is to be "presumed that a sovereign knows what his subjects openly and frequently commit, and as to his power of hindering the evil this likewise is always presumed, unless the want of it be clearly proved." (Phill. Int. Law, p. 23.) The present case stands upon a different footing entirely. The tort committed proceeded from the wanton

depredation of a lawless band of savages on a vessel unhappily stranded at a point where she could be made the easy prey of such marauders, before notice could be received by the government, and under circumstances which satisfy us that notice is not imputable to the government, and that the raid was one of those occasional and unexpected outbreaks against which ordinary and reasonable foresight could not provide. As soon as the facts were reported, immediate steps were taken for the relief of the vessel, and the savages were opened on with grape and cannon balls and dispersed. The claim is rejected.

This case, because of its importance and complications of controverted fact and law, is treated with unusual and, perhaps, unnecessary fulness.

STATEMENT OF FACTS.

In 1817 Venezuela, then engaged in war for independence, through her chief magistrate-military and civil—Simon Bolivar, issued what was denominated a "diploma," addressed "To all those who may see these presents," from which the following extracts are taken :

We do hereby authorize Brigadier-General Lino de Clemente, and, in case of his death or absence, Señor Pedro Gual, both of them residents of Philadelphia, in the United States of North America, to enter into all the political and commercial stipulations and agreements herein to be explained, to the faithful fulfilment of which we do pledge beforehand, in the most sacred manner, the faith of the Republic."

"And give them authority to execute validly and juridically, in the name of the Republic, subject to the instructions given them separately, all kind of deeds and instruments of obligation, which they may have agreed upon with other parties, in the form and on the terms and conditions which may have seemed to them to be the best, it being understood that we shall abide literally by whatever they may have agreed to, without entering into any inquiry or examination, or making any remarks or objections on or to the contracts made by them. All of the said contracts which the said agents or commissioners may make, or enter into, are beforehand approved of by us, as made and entered into in use of the full unrestricted powers and faculties given them by us, faculties and powers which authorize them to deal and stipulate in the name and in behalf of the Republic, and to mortgage her property and her revenue and resources. The said property, revenue, and resources shall be pledged with absolute preference to the payments of the debts contracted by virtue of this authority and in use thereof by the said Brigadier-General Lino de Clemente, or by Señor Pedro Gual, as the case may be, if the former is absent or dead."