States and such foreign country and constituting a crime under the laws of the State or Territory, shall constitute a like crime against the United States, and be cognizable in the federal courts. Congress, however, failed to make the bill a law.

§ 476. President McKinley's recommendation.-President McKinley, in his message of December 5, 1889, asked that the subject be taken up anew, and stated that the necessity for some such provision was apparent. "Precedent for constituting a Federal jurisdiction in criminal cases," said he, "where aliens are sufferers, is rationally deducible from the existing statute, which gives to the district and circuit courts of the United States jurisdiction of civil suits brought by aliens where the amount involved exceeds a certain sum. If such jealous solicitude be shown for alien rights in cases of merely civil and pecuniary import, how much greater should be the public duty to take cognizance of matters affecting the life and rights of aliens under the settled principles of international law no less than under treaty stipulation, in cases of such transcendent wrongdoing as mob murder, especially when experience has shown that local justice is too often helpless to punish the offenders."

§ 477. Renewal of recommendation. In his annual message of December 3, 1900, President McKinley renewed the recommendations that he had made in the preceding year for the extension to the federal courts of jurisdiction in this class of cases, where the ultimate responsibility of the federal government may be involved, and declared: "It is incumbent upon us to remedy the statutory omission which has led, and may again lead, to such untoward results. I have pointed out the necessity and the precedent for legislation of this character. Its enactment is a simple measure of previsory justice toward the nations with which we as a sovereign equal make treaties requiring reciprocal observance." 7

§ 478. President Roosevelt's recommendation.-In his annual message of December, 1906, President Roosevelt spoke of the necessity of international morality, and declared that it should • For Rel. 1889, XXII. For. Rel. 1900, XXII.

be our steady aim to raise the ethical standard of national action, to the same extent as we strive to raise the ethical standard of individual actions, and that it was our duty not only to treat all nations fairly, but also to treat with justice and goodwill all immigrants who came to the United States under the law. He said: "Whether they are Catholic or Protestant, Jew or Gentile; whether they come from England or Germany, Russia, Japan or Italy, matters nothing. All we have a right to question is the man's conduct. If he is honest and upright in his dealings with his neighbor and with the State, then he is entitled to respect and good treatment. Especially do we need to remember our duty to the stranger within our gates. It is the sure mark of a low civilization, a low morality, to abuse or discriminate against or in any way humiliate such stranger who has come here lawfully and who is conducting himself properly. To remember this is incumbent on every American citizen, and it is of course peculiarly incumbent on every Government official, whether of the nation or of the several states.

§ 479. Hostility toward Japanese.-The President stated that he was prompted to say this on account of the attitude of hostility assumed here and there toward the Japanese in this country. He spoke of our international obligations, and asserted that one of the great embarrassments attending their performance was the inadequacy of the statutes of the United States, and proceeded: "They fail to give to the National Government sufficiently ample power, thru United States courts and by the use of the Army and Navy, to protect aliens in the rights secured to them under solemn treaties which are the law of the land. I therefore earnestly recommend that the criminal and civil statutes of the United States be so amended and added to as to enable the President, acting for the United States Government, which is responsible in our international relations, to enforce the rights of aliens under treaties. Even as the law now is something can be done by the Federal Government toward this end, and in the matter now before me affecting the Japanese, everything that it is in my power to do will be done, and all the forces, military and civil, of the United States which

Cong. Record, Vol. 41, No. 2, Dec. 4, 1906, p. 32.

I may lawfully employ will be so employed. There should, however, be no particle of doubt as to the power of the National Government completely to perform and enforce its own obligations to other nations. The mob of a single city may at any time perform acts of lawless violence against some class of foreigners which would plunge us into war. That city by itself would be powerless to make defense against the foreign power thus assaulted, and if independent of this Government it would never venture to perform or permit the performance of the acts complained of. The entire power and the whole duty to protect the offending city or the offending community lies in the hands of the United States Government. It is unthinkable that we should continue a policy under which a given locality may be allowed. to commit a crime against a friendly nation, and the United States Government limited, not to preventing the commission of the crime, but, in the last resort, to defending the people who have committed it against the consequences of their own wrongdoing. "9

§ 480. Claims made by the United States.-The United States has in many instances made demands upon foreign governments for redress and indemnity for outrages committed on American citizens. Mr. Everett, as Secretary of State, maintained in 1853 that the government of Chile was responsible to the United States for the spoliation of property, by officers of Chile, belonging to citizens of the United States.10

Mr. Adee, Acting Secretary of State, in a letter to the Italian Ambassador, declared: "The general rule of international law observed by the United States is that sovereigns are not liable in diplomatic procedure for damages occasioned by the misconduct of petty officials, and agents acting out of the range not only of their real, but of their apparent authority."' 11

§ 481. Official interference limited to tortious acts.-It has been the practice of the United States to limit its official interference for the recovery of indemnity from foreign governments to

Cong. Record, vol. 41, No. 2,

Dec. 4, 1906, p. 32.

10 Mr. Everett, Secretary of State,

to Mr. Carcallo, February 23, 1853, MS. Notes to Chile, VI, 65.

11 Notes to Italian Leg. IX, 451, 452, No. 602, August 14, 1900.

tortious acts committed under their authority against the persons and property of its citizens. In the case of contracts, a different rule is observed. Where it is claimed that a contract has been violated, the practice has been not to interfere, unless the circumstances are extremely peculiar. Even then restrictions are confined to instructing the diplomatic agents of this country to use their good offices in behalf of the American citizens concerned. Mr. Marcy, Secretary of State, writing to Mr. Clay, Minister to Peru, in 1855 asserted that without specific instructions no diplomatic agent of the United States ought to take part officially in alleged breaches by a foreign government of contracts with citizens of the United States, and stated that the reason for the course was obvious. "It does not comport with the dignity of any government to make a demand upon another which might not ultimately, on its face, warrant a resort to force for the purpose of compelling a compliance with it. Such a course cannot, under this Government, be adopted without authority from Congress, and it is almost impossible to imagine any contract or any circumstances attending the infraction of one by a foreign government which would induce Congress to confer such an authority upon the President.

12

And Mr. Buchanan, Secretary of State, said: "Our citizens go abroad over the whole world and enter into contracts with all foreign governments. In doing this they must estimate the character of those with whom they contract and assume the risk of their ability and will to execute their contracts. Upon a different principle, it would become the duty of the Government of our country to enforce the payment of loans made by its citizens and subjects to the government of another country. This might prove exceedingly inconvenient to some of the States. of this Union, as well as to other sovereign States.

12 MS. Inst. Peru, XV, 159, May 24, 1855; 6 Moore Int. L. D. 709.

13 Mr. Buchanan to Mr. Ten Eyck, Commissioner to Hawaii August 28, 1848, MS. Inst. Hawaii, II, 1; 6 Moore Int. L. D. 709. Mr. Fish, Secretary of State, said: "Our longsettled policy and practice has been to decline the formal intervention of the Government except in cases

13

of wrong and injury to persons and property, such as the common law denominates torts and regards as inflicted by force, and not the result of voluntary engagements or contracts.

"In cases founded upon contract, the practice of this Government is to confine itself to allowing its minister to exert his friendly good offices in

§ 482. Rules of Department of State.-Mr. Bayard, while Secretary of State, declared that an appeal by one sovereign on behalf of a subject to secure from another sovereign the payment of a debt claimed as due to such subject was the exercise of a very delicate and peculiar prerogative, "which, by principles definitely settled in this Department, is placed under the following limitations:

"1. All that our Government undertakes, when the claim is merely contractual, is to interpose its good offices; in other words, to ask the attention of the foreign sovereign to the claim; and this is only done when the claim is one suspectible of strong and clear proof.

"2. If the sovereign appealed to denies the validity of the claim or refuses its payment, the matter drops, since it is not consistent with the dignity of the United States to press, after such a refusal or denial, a contractual claim for the repudiation of which, by the law of nations, there is no redress. .

"3. When the alleged debtor sovereign declares that his courts are open to the pursuit of the claim, this by itself is a ground

commending the claim to the equitable consideration of the debtor without committing his own Government to any ulterior proceedings. Letter to Mr. Miller, May 16, 1871, MS. Dom. Let. 348. And again he said: "It is not the policy or the practice of this Department to interpose, as a matter of right, to press upon foreign governments claims of its citizens growing out of the nonfillment of private contracts. It does not, however, withheld the exercise of the good offices of its representatives in countries where such claims originate, in manifest instances of injustice to citizens deserving its aid; and you are directed, therefore, in that sense, to bring the matter before the minister for foreign affairs of Japan, with an expression of the strong hope on the part of this Government that ample justice may be done to the claimant.

"There is one consideration which inspires this Government with a deeper interest in cases of this deseription occurring in Japan than would be entertained concerning similar cases in some other countries, and that is that those foreigners whose services have been engaged by that judicious Government to impart to its officers and people a knowledge of the arts and sciences as a means of perfecting that development which has been so auspiciously begun, may receive such prompt and ample fulfillment of the engagements made by the authorities employing them as will serve as an encouragement to others so employed or to be employed, and that thus they may labor with zeal and confidence, and that the national progress may be thereby accelerated and assured.'' To Mr. Shepard, March 19, 1872, MS. Inst. Japan, I, 502.