article also provided that the citizens of the one country should not be liable within the territory of the other to imprisonment without formal commitment under a legal warrant, except in cases flagrantis delicti, and that when detained in prison they should be treated with humanity and without unnecessary severity. By Article II. of the same treaty it was further stipulated that they should not be called on for any forced loan or extraordinary contribution for any military expedition without being indemnified in advance. "For the treatment to which Mr. Fowks was subjected, in violation of express provisions of treaty and of the principles of international law, the Peruvian Government is," said the Department of State, "responsible." The Department referred to the correspondence in the MacCord case, and demanded for Mr. Fowks reimbursement of the money extorted from him, with interest at the rate of six per cent per annum, and an indemnity for his imprisonment and ill treatment, for which $5,000 was suggested as a reasonable amount. The Department held that a claim which Mr. Fowks sought to make for reimbursement of himself and his partners for the alleged enforced abandonment of their business in Tumbez was not valid. In 1901 the Peruvian Government, "without entering into any discussion as to the bases of said claim, or performing any act which might serve to establish a precedent either for or against analogous cases, offered to pay the sum of 3,000 soles silver in full settlement of the claim, embracing the forced loan and damages for imprisonment. This offer was accepted and the claim thus adjusted.

Mr. Hay, Sec. of State, to Mr. Dudley, min. to Peru, Nov. 21, 1898, For. Rel. 1901, 430; Mr. Dudley to Mr. Hay, No. 466, April 8, 1901, id. 432-434.

As the revolution in Venezuela of 1899, led by General Cipriano Castro, proved to be successful, its acts, under a well-established principle of international law, are to be regarded as the acts of a de facto government.

Bainbridge, commissioner, delivering the opinion of the commission in
Dix's Case, United States & Venezuelan Mixed Commission, protocol
of Feb. 17, 1903, Ralston's Report, 7, 8, citing Shrigley v. Chile, United
States & Chilean Mixed Commission, 1892, Moore, Int. Arbitrations,
IV. 3712. This view was affirmed by Mr. Barge, umpire of the com-
mission, in Heny's Case, Ralston's Report, 22.

It was also followed by Plumley, umpire, case of the Bolivar Railway
Co., British-Venezuelan Mixed Commission, protocol of Feb. 13, 1903,
Ralston's Report, 388, where it is stated that the responsibility dates
from the time the revolution began; and in the case of the Puerto
Cabello & Valencia Railway Co., Ralston's Report, 455, 458.
Also, by Gaytande Ayala, umpire, in the cases of Bovallins and Hedlund,
Swedish-Venezuelan Commission, protocol of March 10, 1903, Ral-
ston's Report, 952,

"

5. PAYMENT OF DUTIES TO INSURGENTS.

§ 1048.

See, also, supra, §§ 21, 989.

In reply to an inquiry made by the British minister on the 31st of December, 1860, as to what position the United States proposed to take with regard to the action of the authorities of South Carolina in assuming to regulate foreign commerce and exact duties on imports at Charleston, the Department of State said that the payment of duties to a person who was not an officer of the United States and authorized by its laws to receive them would be a mispayment, and that the clearance which might be obtained contrary to those laws could not be regarded as valid by the Federal authorities, but that the question whether the state of things existing at Charleston would or would not be regarded as a sufficient reason for not exacting the penalties which might be incurred by British subjects was a question which must be reserved till it arose practically. Each case, said the Department, would no doubt have its own peculiarities, and no general assurance could be given concerning the intentions of the President. "Any uncertainty on such a subject is in itself," said the Department," an evil which ought to be removed if it could be. But the reliance which your lordship can not but feel on the justice of this Government will no doubt quiet all apprehension of ultimate wrong to British subjects, if such wrong can possibly be avoided."

Mr. Black, Sec. of State, to Lord Lyons, British min., Jan. 10, 1861, MS.
Notes to Great Britain, VIII. 383.

It may be superfluous to say that no claim for the repayment of duties
thus exacted was ever made by the United States.

"If customs duties are demanded of merchants by the insurgents, and they should be compelled to pay them, this should be done under protest. The Colombian Government must understand that in no instance of such compulsory payment will this Government acquiesce in another payment of the same duties to the regular authorities.”

Mr. Hunter, Act. Sec. of State, to Mr. Scruggs, min. to Colombia, Sept. 11, 1875, MS. Inst. Colombia, XVII. 2.

"I have the honor to call your attention to the inclosed copy of a decree of the President of the United States of Colombia, which I am informed by our consul at Barranquilla, under date of the 24th April, was published in the Official Gazette of the 12th February last, and is dated the 10th of the same month.

"By Article I. of this decree the payment of custom-house dues in any place incidentally occupied by rebel forces not only does not

exempt the respective importers of the goods which have already paid duties to the insurgents from their obligations to the national treas ury, 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.

66

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.
"In the disorganized and unprotected condition of society at the Colom-
bian ports in question during the period referred to, it would be in-
deed surprising to learn that any American importer there had been
permitted to make or file formal protest against the payment of cus-
toms 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