GENERALLY ILLUSTRATIVE INSTANCES

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[$ 200

Acts in Derogation of the Supremacy of the Territorial Sovereign

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8 200. Generally Illustrative Instances.

Any act committed within the territory of a State in obedience to the command of a foreign power and contrary to the will of the territorial sovereign marks contempt for its supremacy therein.1 A few instances may be noted as illustrative.

The operations or movements of a foreign military or naval force within the territory of a State are of such a character and constitute a serious invasion of its rights. The United States has always so regarded the acts of such foreign agencies within its own domain,2 and has likewise deplored their commission under normal circumstances by its own forces abroad.3 For the same

1 Mr. Jefferson, Secy. of State, to Mr. Ternant, French Minister, May 15, 1793, denouncing as contrary to the law of nations the condemnation by the French Consul at Charleston of a British vessel captured by a French-frigate. Am. State Pap., For. Rel., I, 147-148. See, also, The Apollon, 9 Wheat.

362.

2 Mr. Clay, Secy. of State, to Mr. Vaughan, British Minister, Feb. 18, 1828, MS. Notes For. Leg., III, 430, Moore, Dig., II, 4; Mr. Buchanan, Secy. of State, to Mr. Wise, Minister to Brazil, Sept. 27, 1845, MS. Inst. Brazil, XV, 119, Moore, Dig., II, 4; Mr. Forsyth, Secy. of State, to Mr. La Branche, Chargé d'Affaires to Texas, Jan. 8, 1839, MS. Inst. Texas, I, 15, Moore, Dig., II, 363; Mr. Wilson, Acting Secy. of State, to the Mexican Ambassador, March 9, 1911, For. Rel. 1911, 419; Mr. Knox, Secy. of State, to the Mexican Chargé d'Affaires, April 10, 1911, id., 453.

“Indeed, as you know, I have already declined, without Mexican consent, to order a troop of Cavalry to protect the breakwater we are constructing just across the border in Mexico at the mouth of the Colorado River to save the Imperial Valley, although the insurrectos had scattered the Mexican troops and were taking our horses and supplies and frightening our workmen away." President Taft, Annual Message, Dec. 7, 1911, id., XII. President Taft announced the purpose, however, to be in such a position that when danger to American lives and property in Mexico threatened, and the existing government was rendered helpless by the insurrection, he could "promptly execute congressional orders to protect them, with effect."

3 Mr. Monroe, Secy. of State, to the Chevalier de Onis, Spanish Minister, Feb. 7, 1816, MS. Notes to For. Leg., II, 128, Moore, Dig., II, 362; Mr. Seward, Secy. of State, to Mr. Welles, Secy. of the Navy, Aug. 4, 1862, 58 MS. Dom. Let. 15, Moore, Dig., II, 363.

Concerning certain general orders in 1864, of Major-General Dix, U. S. A., relative to the pursuit into Canada of a band of persons which had raided St. Albans, Vermont, see Moore, Dig., II, 367–368.

In cases of the accidental killing or injury by public vessels of the United States within the territorial waters of foreign States, of citizens of such States, ample indemnities have been paid and full apologies expressed. See President Jackson, special message to Congress, June 18, 1834, H. Ex. Doc. 492, 23 Cong., 1 Sess., Moore, Dig., II, 369. See, also, For. Rel. 1889, 547-549, relative to consequences of target practice in 1887, of the U. S. S. Omaha, while in Japanese waters, Moore, Dig., II, 369

reason, the pursuit and arrest of deserters by foreign expeditions without the consent of the local authorities is necessarily looked upon with disapproval.1

Foreign civil officials are bound to respect the same principle. Thus they cannot lawfully, without the consent of the territorial sovereign, make an arrest within its domain,2 or rescue any one from the custody of its officials,3 or take to, or detain therein, any person however lawfully arrested within the territory of their own State. Private citizens are under the same obligations and cannot, for example, lawfully enter and take from the territory of a foreign State, without its consent, the person of any individual found therein.5

The exercise of certain administrative functions by foreign civil agents is regarded as likewise inconsistent with the lodgment of supreme control in the territorial sovereign. The practice of Russian consuls in the United States of subjecting to certain invidious discriminations American citizens of Jewish faith, by refusing to visé their passports, was described by President Cleveland in 1895, as "an obnoxious invasion of our territorial jurisdiction." It may be noted that Germany, in 1895, regarded with disapproval the authorization by the United States of its own officials to inspect or order the disinfection in German ports of foreign vessels bound for the United States.7

1 Mr. Monroe, Secy. of State, to Mr. Baker, Dec. 6, 1815, MS. Notes For. Leg., II, 113, Moore, Dig., II, 362; Mr. Seward, Secy. of State, to Mr. Stanton, Secy. of War, April 15, 1853, 60 MS. Dom. Let. 231, Moore, Dig., II, 370; Case of incursion in 1888, from Mexico into Texas of armed force to arrest Ántanicio Luis, an alleged deserter, described in Moore, Dig., II, 371, and documents there cited.

2 Mr. Bayard, Secy. of State, to Mr. Manning, Minister to Mexico, Feb. 26, 1887, MS. Inst. Mexico, XXI, 646, Moore, Dig., II, 373; Nogales Case, 1893, For. Rel. 1893, 457, 471, id., 1896, 439-454, Moore, Dig., II, 380; Mr. Hay, Secy. of State, to Sir Julian Pauncefote, British Ambassador, Jan. 21, 1899, MS. Notes to British Legation, XXIV, 427, Moore, Dig., II, 381. See, also, Mr. Wilson, Acting Secy. of State, to the Mexican Ambassador at Washington, March 14, 1911, concerning the cases of Edward M. Blatt and Lawrence F. Converse, For. Rel. 1911, 606.

3 Nogales Case, 1887, described in Moore, Dig., II, 376–379, and documents there cited from For. Rel. 1887 and 1888, part. II.

Case of Peter Martin, For. Rel. 1877, 266, Brit. and For. State Pap., LXVIII, 1223, Moore, Dig., II, 371–373.

Case of Madeline His, For. Rel. 1894, 646-675, Moore, Dig., II, 384–389, and documents there cited.

• President Cleveland, Annual Message, Dec. 2, 1895, For. Rel. 1895, I, xxxii, Moore, Dig., II, 10. See, also, correspondence between the United States and Russia, 1893, For. Rel. 1893, 547 and 548; and in 1895, For. Rel. 1895, II, 1056–1074, especially Mr. Adee, Acting Secy. of State, to Mr. Breckinridge, Minister to Russia, Aug. 22, 1895, For. Rel. 1895, II, 1067. The more important of the foregoing documents are contained in Moore, Dig., II, 8-13. Declared Mr. Gresham, Secy. of State, to Baron Saurma, German Am

THE LANDING OF FOREIGN FORCES

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§201. The Passage of Foreign Forces.

[§ 202

When, in times of peace, a passage through the territory of a particular State is sought for reasons of convenience in behalf of a foreign military force, the permission of the territorial sovereign is requested and oftentimes granted. The presence of such forces at international exhibitions or on social occasions within American territory has been a frequent occurrence.2 Consent by the United States to the entering of a foreign force into the territory of any State of the Union is commonly conditioned upon that also of the particular Commonwealth concerned.3

(c)

202. The Landing of Foreign Forces.

Respect for the inviolability of the territory of a State rests on the theory that it possesses the power and will to exercise control therein, and to a degree sufficient to assure the administration of justice, in a broad sense, throughout the national domain. Even countries not dealt with as full members of the family of nations,

bassador, Jan. 26, 1895: "This Government does not claim that under any treaty or the rules of international law it can authorize its officers to inspect foreign vessels or order their disinfection in German ports, or to administer oaths to officers of foreign ships within the jurisdiction of the German Empire." For. Rel. 1895, I, 513, 514; Moore, Dig., II, 13-14.

See, also, For. Rel. 1904, 519-521, concerning the unwillingness of the Netherlands to permit the United States to station officers at certain ports to conduct medical examinations under the Act of Congress of March 3, 1903. Concerning the attitude of Austria-Hungary, id., 1904, 92-94.

See, for example, Mr. Seward, Secy. of State, to Governor Washburne, of Maine, Jan. 17, 1862, 56 Dom. Let. 211, Moore, Dig., II, 390; Mr. Cadwalader, Acting Secy. of State, to Mr. Cameron, Secy. of War, Oct. 20, 1876, 115 MS. Dom. Let. 502, Moore, Dig., II, 392; Mr. Bayard, Secy. of State, to the Secy. of War, April 16, 1885, 155 MS. Dom. Let. 120, Moore, Dig., II, 393; correspondence in For. Rel. 1897, 325-326; id., 1898, 358-363, relative to passage of Alaskan Relief Expedition through Canadian territory, Moore, Dig., II, 393-395.

See, in this connection, refusal of the United States while a neutral, to permit, in 1915, the passage of certain Canadian troops through the State of Maine. Correspondence in American White Book, European War, IV, 81. Mr. Foster, Secy. of State, to Mr. Patenôtre, French Minister, Dec. 17, 1892, MS. Notes to France, X, 263, Moore, Dig., II, 395.

Mr. Seward, Secy. of State, to Governor Washburne, of Maine, Jan. 17, 1862, 56 Dom. Let. 211, Moore, Dig., II, 390; Mr. Foster, Secy. of State, to the Governor of Illinois, July 5, 1892, 187 MS. Dom. Let. 142, Moore, Dig., II, 395; Mr. Hill, Asst. Secy. of State, to Mr. Buchanan, President of the Pan-American Exposition, Jan. 14, 1901, 250, MS. Dom. Let. 217, Moore, Dig., II, 396; Mr. Knox, Secy. of State, to the Mexican Ambassador, June 7, 1911, For. Rel. 1911, 503.

Concerning the jurisdiction of a State over foreign forces permitted to enter its territory, infra, § 247.

are held accountable for the possession of such power and disposition. When States are not found wanting in this regard, the United States is not disposed to sanction the use within their borders of its own public forces for the advancement or benefit of American interests. When, however, in any country, the safety of foreigners in their persons and property is jeopardized by the impotence or indisposition of the territorial sovereign to afford adequate protection, the landing or entrance of a foreign public force of the State to which such nationals belong, is to be anticipated.2 Justification is to be found in the circumstance that such conduct is designed primarily to assure the performance of certain functions of government, the continued non-performance of which would produce an irreparable injury to persons entitled to demand as of right protection from the local authorities.3

The United States has not hesitated to act upon this principle.4 A notable instance occurred in China in 1900. That country was then at peace with the several foreign powers, including the United States. In the Northern Provinces of the Empire, in the course

1 Mr. Adee, Acting Secy. of State, to Mr. Sill, Minister to Korea, July 8, 1895, MS. Inst. Korea, I, 537, Moore, Dig., II, 401; Mr. Hay, Secy. of State, to the Chinese Minister, June 22, 1900, For. Rel. 1900, 274, Moore, Dig., V, 479, in reply to the memorandum of the Chinese Minister of June 22, 1900, For. Rel. 1900, 273.

2 It has been observed that on grounds of self-defense, and with no political design foreign forces may, under certain circumstances, not unlawfully penetrate the territory of a State. Certain Non-Political Acts of SelfDefense, supra, §§ 65-68. The situations here considered are those which are not only non-political and not savoring of intervention, but which are also not illustrative of attempts to defend the safety of the territory of a State from foreign activities injurious to it. The instances described in the text are rather cases where the object of the foreign force entering the national domain is to safeguard persons or property found or established therein. Thus the forcible according of protection is to defend persons or things regarded as foreign to the territorial sovereign, but which have for the time being no immediate connection with the territory of the State whose force is employed to shield them. The activities which are observed illustrate the strength of the connection between a State and its nationals and their property in a foreign land, when abnormal conditions prevail therein.

3 See memorandum on the Right to Protect Citizens in Foreign Countries by Landing Forces, by J. R. Clark, Jr., Solicitor of Department of State, 1912; especially 22-23, and 30-31, also Appendix giving chronological list of occasions on which the Government of the United States had taken action by force for the protection of American interests; including certain instances in which similar action had been taken by other governments in behalf of their nationals.

Mr. Toucey, Secy. of Navy, to Captain Jarvis, U. S. S. Savannah, March 13, 1860, S. Ex. Doc. 29, 36 Cong., 1 Sess., Moore, Dig., II, 400; President McKinley, Annual Message, Dec. 5, 1899, For. Rel. 1899, XVIII, Moore, Dig., II, 401; Mr. Hill, Acting Secy. of State to the Secy. of the Navy, Sept. 11, 1900, 247 MS. Dom. Let. 597, Moore, Dig., II, 401. Compare Mr. Hay, Secy. of State, to Mr. Merry, Minister to Central America, March 3, 1899, For. Rel. 1899, 554.

THE LANDING OF FOREIGN FORCES

[§ 202

of the so-called "Boxer" movement, there occurred unprecedented disturbances against foreign life and property. As early as May 26, the American Minister had been authorized to arrange with the American Admiral for legation guards. On May 31, some 350 guards - American, English, Russian, French, Japanese and Italian arrived at Peking. On June 11, Mr. Sugiyama, Chancellor of the Japanese Legation,, was killed by regular Chinese troops. On June 20, Baron von Ketteler, the German Minister, was murdered by soldiers of the Imperial Chinese Army in pursuance of orders of their superiors. From that day until August 14, the several foreign legations were constantly attacked and besieged by forces comprising in part regular troops, under orders from the Imperial authority. In several provinces foreigners were murdered, tortured or attacked. In Peking the foreign cemeteries were desecrated, in some cases the graves being opened and the remains scattered abroad. An international expedition composed of troops of the several Powers was duly sent to raise the siege of that city. This was accomplished after overcoming the constant resistance of the Chinese forces.1

For numerous other kindred purposes American forces have been landed on foreign territory which, in most instances, has been that of a country not familiar with European civilization, and not,

1 President McKinley, Annual Message, Dec. 3, 1900, For. Rel. 1900, XI-XVI; edicts and decrees of the Empress Dowager, id., 1900, 85, 168, 169, 170, 172; communications of Mr. Conger, American Minister, to Mr. Hay, Secy. of State, id., 1900, 144, 151, 159, 161-169, 190; joint note of the Allied Powers, Dec. 22, 1900, id., 244; id., 132. An abstract of the more important American documents relative to the disturbances in China during the "Boxer" movement is contained in Moore, Dig., V, 476-493.

The position of the United States in acting concurrently with the other Powers was set forth in a notable circular despatch of Mr. Hay, Secy. of State, July 3, 1900, in which he said in part: "The purpose of the President is, as it has been heretofore, to act concurrently with the other powers; first, in opening up communication with Peking and rescuing the American officials, missionaries, and other Americans who are in danger; secondly, in affording all possible protection everywhere in China to American life and property; thirdly, in guarding and protecting all legitimate American interests; and, fourthly, in aiding to prevent a spread of the disorders to the other provinces of the Empire and a recurrence of such disasters. It is, of course, too early to forecast the means of attaining this last result; but the policy of the government of the United States is to seek a solution which may bring about permanent safety and peace to China, preserve Chinese territorial and administrative entity, protect all rights guaranteed to friendly powers by treaty and international law, and safeguard for the world the principle of equal and impartial trade with all parts of the Chinese Empire." For. Rel. 1900, 299, Moore, Dig., V, 481, 482.

The text of the final protocol of Sept. 7, 1901, between the Allied Powers, on the one hand, and China, on the other, is contained in Malloy's Treaties, II, 2006. See Intervention, The Conduct of the United States, supra, § 83; William Roscoe Thayer, Life and Letters of John Hay, Boston, 1915, II, Chap. XXVI.