between nations should, in the interest of humanity and fraternity, be adjusted, if possible, by international arbitration.' It was therefore 'Resolved, That the people of the United States, being devoted to the policy of peace with all mankind, enjoying its blessings and hoping for its permanence and its universal adoption, hereby through their Representatives in Congress recommend such arbitration as a rational substitute for war.'

"The President, in his last message to the Congress of the United States, on December 7, 1903, stated:

"There seems ground for the belief that there has been a real growth among the civilized nations of a sentiment which will permit a gradual substitution of other methods than the method of war in the settlement of disputes. It is not pretended that as yet we are near a position in which it will be possible wholly to prevent war, or that a just regard for national interest and honor will in all cases permit of the settlement of international disputes by arbitration; but by a mixture of prudence and firmness with wisdom we think it is possible to do away with much of the provocation and excuse for war, and at least in many cases to substitute some other and more rational method for the settlement of disputes. The Hague court offers so good an example of what can be done in the direction of such settlement that it should be encouraged in every way.'

"Moved by these views, the President has charged me to instruct you to ascertain whether the Government to which you are accredited, which he has reason to believe is equally desirous of advancing the principle of international arbitration, is willing to conclude with the Government of the United States an arbitration treaty of like tenor to the arrangement concluded between France and Great Britain, on October 14, 1903.

"I inclose herewith a copy of both the English and French texts of that arrangement. Should the response to your inquiry be favorable, you will request the government to authorize its minister at Washington to sign the treaty with such plenipotentiary on the part of the United States as the President may be pleased to empower for the purpose."

Mr. Hay, Sec. of State, to American diplomatic officers accredited to the
signatories of The Hague convention, Oct. 20, 1904, For. Rel. 1904, 8.
The substance of the inclosed convention between Great Britain and
France was embraced in the first and second articles, which read:
"ARTICLE I. Differences which may arise of a legal nature, or relating to
the interpretation of treaties existing between the two contracting
parties, and which it may not have been possible to settle by diplo
macy, shall be referred to the permanent court of arbitration
established at The Hague by the convention of the 29th July, 1899.
provided, nevertheless, that they do not affect the vital interests, the
independence, or the honour of the two contracting states, and do
not concern the interests of third parties.

"ARTICLE II. In each individual case the high contracting parties, before appealing to the permanent court of arbitration, shall conclude a special agreement defining clearly the matter in dispute, the scope of the powers of the arbitrators, and the periods to be fixed for the formation of the arbitral tribunal and the several stages of the procedure.” (For. Rel. 1904, 9.)

Treaties in precisely similar terms were concluded by the United States with the following countries: France, Switzerland, Germany, Portugal, Great Britain, Italy, Spain, Austria-Hungary, Mexico, Sweden and Norway, and Japan.

66

The Senate of the United States, Feb. 11, 1904, amended these treaties by substituting for the word agreement," in Article II., the word "treaty," so as to require, in every case of arbitration under the general treaty, the making of a new special treaty, by and with the advice and consent of the Senate. Mr. Hay subsequently announced that the President would not submit this amendment to the other governments.

"Spain has concluded arbitration treaties with Argentina, Bolivia, Colombia, Guatemala, Mexico, Paraguay, Salvador, San Domingo, and Uruguay." (London Times, weekly, Mar. 21, 1902, p. 181, col. 4, "Spain.") For a general arbitration treaty between the Argentine Republic and Cruguay, June 8, 1899, see For. Rel. 1899, 8-10.

II. NONAMICABLE, SHOrt of war.

1. WITHDRAWAL OF DIPLOMATIC RELATIONS.

§ 1089.

"At their last session Congress were informed that some of the naval officers of that Empire [Brazil] had advanced and practiced upon principles in relation to blockade and to neutral navigation which we could not sanction, and which our commanders found it necessary to resist. It appears that they have not been sustained by the Government of Brazil itself. Some of the vessels captured under the assumed authority of these erroneous principles have been restored, and we trust that our just expectations will be realized that adequate indemnity will be made to all the citizens of the United States who have suffered by the unwarranted captures which the Brazilian tribunals themselves have pronounced unlawful.

In the diplomatic discussions at Rio de Janeiro of these wrongs sustained by citizens of the United States and of others which seemed as if emanating immediately from that Government itself the charge d'affaires of the United States, under an impression that his representations in behalf of the rights and interests of his countrymen were totally disregarded and useless, deemed it his duty, without waiting for instructions, to terminate his official functions, to demand his passports, and return to the United States. This movement, dictated by an honest zeal for the honor and interest of his country-motives which

H. Doc. 551-vol 7- -8

operated exclusively on the mind of the officer who resorted to ithas not been disapproved by me. The Brazilian Government, however, complained of it as a measure for which no adequate intentional cause had been given by them, and upon an explicit assurance through their chargé d'affaires residing here that a successor to the late representative of the United States near that Government, the appointment of whom they desired, should be received and treated with the respect due to his character, and that indemnity should be promptly made for all injuries inflicted on citizens of the United States or their property contrary to the laws of nations, a temporary commission as chargé d'affaires to that country has been issued, which it is hoped will entirely restore the ordinary diplomatic intercourse between the two Governments and the friendly relations between their respective nations."

President J. Q. Adams, annual message, Dec. 4, 1827, Richardson's Messages, II. 385.

"This state of affairs was brought to a crisis in May last by the promulgation of a decree levying a contribution pro rata upon all the capital in the Republic between certain specified amounts, whether held by Mexicans or foreigners. Mr. Forsyth, regarding this decree in the light of a 'forced loan,' formally protested against its application to his countrymen and advised them not to pay the contribution, but to suffer it to be forcibly exacted. Acting upon this advice, an American citizen refused to pay the contribution, and his property was seized by armed men to satisfy the amount. Not content with this, the Government proceeded still further and issued a decree banishing him from the country. Our minister immediately notified them that if this decree should be carried into execution he would feel it to be his duty to adopt the most decided measures that belong to the powers and obligations of the representative office.' Notwithstanding this warning, the banishment was enforced, and Mr. Forsyth promptly announced to the Government the suspension of the political relations of his legation with them until the pleasure of his own Government should be ascertained.

"This Government did not regard the contribution imposed by the decree of the 15th May last to be in strictness a 'forced loan,' and as such prohibited by the 10th article of the treaty of 1826 between Great Britain and Mexico, to the benefits of which American citizens are entitled by treaty; yet the imposition of the contribution upon foreigners was considered an unjust and oppressive measure. sides, internal factions in other parts of the Republic were at the same time levying similar exactions upon the property of our citizens and interrupting their commerce. There had been an entire failure on the part of our minister to secure redress for the wrongs which

our citizens had endured, notwithstanding his persevering efforts. And from the temper manifested by the Mexican Government he had repeatedly assured us that no favorable change could be expected until the United States should give striking evidence of their will and power to protect their citizens,' and that severe chastening is the only earthly remedy for our grievances.' From this statement of facts it would have been worse than idle to direct Mr. Forsyth to retrace his steps and resume diplomatic relations with that Government, and it was therefore deemed proper to sanction his withdrawal of the legation from the City of Mexico."

President Buchanan, annual message, Dec. 6, 1858, Richardson's Messages, V. 513.

A refusal to accept an ultimatum as to a claim for damages due a citizen of the United States may be followed by a withdrawal of our diplomatic representative at the country by which the demand is refused.

Mr. Cass, Sec. of State, to Mr. Dana, Oct. 31, 1860, 53 MS. Dom. Let. 224.

2. RETORSION OR RETALIATION.

§ 1090.

"Retorsion is the appropriate answer to acts which it is within the strict right of a state to do, as being general acts of state organisation, but which are evidence of unfriendliness, or which place the subjects of a foreign state under special disabilities as compared with other strangers, and result in injury to them. It consists in treating the subjects of the state giving provocation in an identical or closely analogous manner with that in which the subjects of the state using retorsion are treated. Thus if the productions of a particular state are discouraged or kept out of a country by differential import duties, or if its subjects are put at a disadvantage as compared with other foreigners, the state affected may retaliate upon its neighbors by like laws and tariffs."

Hall, Int. Law (5th ed.), 367, citing De Martens, Précis, § 254; Phillimore,
III. § vii.; Bluntschli, § 505.

See, further, as to retorsion, Rivier, Principes du Droit des Gens, II. 189.

Retorsion and reprisal bear about the same relation to arbitration and war, as the personally abating a nuisance does to a suit for its removal. States as well as individuals have a right to protect themselves when injustice is done them by removing the cause of offence; and that in disputes between nations this right is more largely extended than in disputes between individuals, is to be explained by the fact that in disputes between nations there are not the modes of

redress by litigation which exist in suits between individuals. Retorsion and reprisal' are often used convertibly; though the difference is that 'retorsion is retaliation in kind, while reprisal' is seizing or arresting the goods or trade of subjects of such state as set-off for the injuries received. Under this head fall embargoes, and what are called pacific blockades (blocus pacifique), by the former of which trade is forbidden with the offending state; by the latter of which a port belonging to the offending state is closed to foreign trade. These acts approach in character to war, to which they generally lead; yet technically they are not war, and there are cases where the remedy has been applied without war resulting.”

Wharton, Com. Am. Law, § 206.

Reciprocating to the subjects of a nation, or retaliating on them its unjust proceedings towards our citizens, is a political and not a legal measure. It is for the consideration of the Government not of its courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights, and not to avenge them at all. It is not for its courts to interfere with the proceedings of the nation and to thwart its views.

If it be the will of the Government to apply to Spain any rule respecting captures which Spain is supposed to apply to us, the Government will manifest that will by passing an act for the purpose. Till such an act be passed, the court is bound by the law of nations which is a part of the law of the land."

Marshall, C. J., The Nereide. 9 Cranch, 388, 422.

By the act of April 18, 1818, the ports of the United States were closed, after September 30, 1818, against British vessels arriving from a British colony which, by the ordinary laws, was closed against American vessels.

3 Stat. 432.

A British ship, coming from a foreign port, not British, to a port of the United States, did not become liable to forfeiture under this act by touching at an intermediate British closed port from necessity, in order to procure provisions, and without trading there. (The Frances and Eliza, 8 Wheat. 398.) Nor did the act prohibit the coming of British vessels from a British closed port, through a foreign port, not British, where the continuity of the voyage was actually and fairly broken. (The Pitt, 8 Wheat. 371.)

The Chinese Government having persistently refused to pay a claim for personal injuries to a citizen of the United States which it admitted to be due, the United States minister at China was, in 1855, instructed, at his discretion, "to resort to the measure of withholding duties to the amount thereof.”