ance with the strict law, but with the equities which might be shown, it seemed most desirable that opportunity be given to present the track of war claims to the commission without the prejudice which would have resulted from withholding from the commission all claims legally sound."

In the first place I take the position that no claim arising within American dominion can be classed as a track-of-war claim. As I said before, these people who were injured and the Mexican Government did not owe each other any duty except the duty of respecting each other's rights. Though prosecuting a war, both the Mexican federal and insurgent troops were bound to respect the rights and safety of Americans on American soil, and to the extent they did not do so were unlawful invaders and naked trespassers. No authority can be found holding that the necessities of war can justify either the invasion of the dominion of a neutral power or the wronging and killing of the citizens of a neutral power. If the rights of residents must give way to the necessities of a war being carried on by a government under which they live, that is another matter. And I say that the Secretary of State fails utterly to state any good reason why the well-founded claims of resident Americans should be tied up with claims of residents of Mexico, which may not be well founded. Why should resident Americans hazard their claims in Mexican tribunals just because such course might aid in collecting other claims with which they absolutely have no connection? Finally, the Secretary says that "where an armed insurrection has gone beyond control of the parent government, such government is not, as a general rule, responsible for damages done to foreigners by the insurgents, and that a government is not responsible for the acts of its own soldiers resulting in such injuries as are due to the misfortunes of war, either internal strife or conflict between nations; nor responsible for the acts of soldiers committed in their private capacity-acts of pillage without the order or presence of a commanding officer; and that the department felt that these principles might be found to operate unfavorably toward some American claims if they should be presented diplomatically or be submitted to an international claims commission."

I want to say the Secretary need not have any apprehension that either of these principles could be invoked against any of the claims we are dealing with. It matters not whether the injuries were inflicted by the Federal or insurgent troops. If by the former, of course the Mexican Government would be liable, and if by the latter the Government would be liable because the insurrection was successful, and under wellestablished rules of international law the Government in the hands of the insurrectionists would be liable. (Moore's Digest of International Law, Vol. VI, p. 991.)

As I have already shown, the "misfortunes-of-war" doctrine can not properly apply to nonresident foreign neutrals. And certainly it can not be claimed that in injuring our people the Mexican troops were acting in their private capacity, without the order or presence of a commanding officer. They were in the immediate command of their officers, and engaged in a struggle for the control of the Mexican Government. At El Paso the insurgent forces were under the personal command of Madero, who is now the President of Mexico.

With regard to the suggestion that the Mexican Government has changed its position so far as to now say it would authorize the Mexican consuls at El Paso and Douglas to make investigations of all the claims of American citizens at those places and endeavor to make direct settlement with claimants, I desire to say that such suggestion is entirely unsatisfactory to claimants. It will be noted that as a part of the proposal it is stated that in the event of failure to reach settlement the cases would be remanded to the Mexican consultative claims commission. The claimants believe this change in attitude on the part of the Mexican Government is only a ruse in line with its past conduct to bring about delay and the ultimate defeat of the claims.

Moreover, in this change of attitude the Mexican Government still adheres to its claim of right to try these cases before its own tribunals a proposition so contrary to international law and all sense of justice that claimants can not assent to it.

I want to remind the committee that there is involved in this matter not alone the question of making compensation to a few American claimants. It presents for solution a great question of international law which concerns every American citizen, and unless settled right, may in the future subject many American citizens to outrages and injuries for which they would be unable to obtain any redress.

I also cite the following authorities in support of the rights of aliens in the United States:

"Aliens coming within our territory are entitled to the same protection in their personal rights as our own citizens and no more." (Moore's Digest of International Law, Vol. IV, p. 2.).

"There is no principle of the law of nations more firmly established than that which entitles the property of strangers within the jurisdiction of a country in friendship

with their own to the protection of its sovereign by all the efforts in his power. This common rule of intercourse between all civilized nations has between the United States and Spain the further and solemn sanction of all express stipulation by treaty. In violation both of the common usage of nations and of the express promise of Spain in the treaty, nearly two hundred vessels and their cargoes, belonging to citizens of the United States, were seized, many of them within the territorial limits of Spain and under the cannon of her fortresses, by French cruisers, and all of them were condemned within Spanish jurisdiction. Spain was required to pay indemnity." (Moore's Digest of International Law, Vol. IV, p. 5.)

"The policy of the United States in all cases of complaints made by foreigners is to extend to them the same means of redress as is enjoyed by our own citizens." (Moore's Digest of International Law, Vol. IV, p. 7.)

In the courts of the United States alien friends are entitled to claim the same protection of their rights as citizens." (Moore's Digest of International Law, Vol. IV, p. 7.)

"Aliens domiciled in the United States owe to the Government a local and temporary allegiance, which continues during the period of their residence, and for the violation of which they may become liable to prosecution for treason, just as a citizen.” (Moore's Digest of International Law, Vol. IV, p. 10.)

"The authority which every sovereign has over the conduct of aliens within his territorial jurisdiction makes him responsible to others for their conduct as much and for the same reason as he is responsible for the conduct of permanent citizens or subjects." (Moore's Digest of International Law, Vol. IV, p. 11.)

It would seem to me that according to the authority I have cited with reference to the seizure of American ships by France in Spanish waters, the United States would be liable for damages for injury to aliens within our dominion by Mexico, and therefore it would follow that the United States would be entitled, in turn, to recover the damages from Mexico.

See Koszta case, Moore's Digest of International Law, Volume III, page 820, for elaborate discussion of the rights and duties of the United States with regard to aliens domiciled within its territory.

Also, see letter of B. Bryan to Mr. Huntington Wilson, Acting Secretary of State, on same subject, which follows:

Mr. HUNTINGTON WILSON,

Acting Secretary of State, Washington, D. C.

SEPTEMBER 11, 1911.

DEAR SIR: I am in receipt of your letter of date August 26, 1911, to Hon. W. R. Smith, Member of Congress from Texas, in regard to claims against Mexico of Richard Brown, Virginia Moorhead, and Francisco Portillo, which letter has been transmitted to me by Mr. Smith. In said letter you used the following language: "The Department of State would not be warranted in making any representations in regard to the claim of Francisco Portillo, as it appears from his memorial that he is not an American citizen." I respectfully differ from you in the conclusion that the memorial of Francisco Portillo does not show that he is an American citizen and entitled to protection as such. My authority, I refer you to Moore on International Arbitrations, Digest, volume 3, and the case of Jarr and Hearst, pages 2707, 2708, 2710, 2711, 2712, 2713. In these cases continuous domicile in the United States along with the declaration of intention to become a citizen permitted the claimants to appear before the commissioner and claim damages. After full discussion, Mr. Palacio, the Mexican commissioner, who at first denied the right, ultimately conceded that such persons were citizens of the United States. Also, I cite you, same authority, Moore's Digest International Arbitration, volume 3, page 2722, to the argument of Mr. Hale, counsel for the United States, in which he goes exhaustively into the question of domicile and intention to become a citizen and the protection flowing therefrom. In same case I cite you also to the argument of Judge E. R. Hoar, in which argument Judge Hoar exhaustively discusses the rights of one permanently domiciled in the country, as is shown to be the case in the case of Francisco Portillo.

Also, I cite you to the distinction between national character of property and the nationality of persons, to wit, act of Congress, 1868; and Phillimore, International Law, part 5, cap. 1.

In the above cases the commission between Mexico and the United States allowed the parties to appear as complainants for damage and allowed damages.

I respectfully ask what is the difference between the case made out in Francisco Portillo's memorial and the parties above referred to? Portillo's memorial shows that he came to reside in the city of El Paso, State of Texas, United States of America, in the year 1893, and that he has continuously since that date resided in the city of El Paso State of Texas, United States of America; second, that he made his declaration of

becoming a citizen in the year 1896; third, that acting upon said declaration he has been exercising his right as a voter in the city of El Paso, State of Texas, United States of America, in all elections, local, district, State and National; fourth, that he has acquired property in the city of El Paso, Tex., and is a taxpayer and as such is a merchant engaged in business; fifth, that his children have been educated in the public schools of El Paso, Tex.; sixth, he is a man of family and has continuously resided in El Paso, Tex., never returning to Mexico; seventh, that he has taken all necessary steps to take out his final paper of citizenship.

As said by Mr. Ashton in his argument, Moore's Digest, volume 3, page 2703 (and his argument was sustained by the commission and the claimant allowed damages), that the naturalization of an alien relates back in the first step and constitutes him a citizen from the date of declaration of intention; "that persons who have duly declared their intention to become citizens of and bona fide domicile of the United States are subject to the protection of the United States against injuries by the territory of Mexico within and without the territory of the United States."

I repeat that this theory of Mr. Ashton was adopted by the commission on Mexican claims. It has been adopted as I understand from the books on international law, Moore's Digest, in the matter of adjustment of claims between Great Britain and the United States.

Also, I respectfully call your attention to the laws of Mexico on the subject of expatriation of Mexican citizens, to wit: In substance, that where a Mexican shall remove from Mexico to the United States or other foreign country and shall not make his declaration of remaining a citizen of Mexico within three years after his "domicile in said foreign country, that said Mexican citizen shall be considered a citizen of said country where he is domiciled." Francisco Portillo, memorialist, shows that he has been continuously a citizen of El Paso, Tex., United States of America.

I respectfully submit, in view of the facts stated in the memorial of Francisco Portillo and of the foregoing authorities quoted, that the memorial of said Portillo should be by the Department of State duly received and presented to the Mexican Government.

The foregoing letter of B. Bryan and the authorities cited by Mr. Smith upon the rights of aliens domiciled in a foreign country are for the purpose of establishing the right of the United States to demand compensation for aliens domiciled in the United States and who were injured within the United States by Mexican troops firing across the international boundary line.

Answering the foregoing argument of Representative Smith, it is contended in behalf of the State Department

That there would appear to be few, if any, of the essential points of this matter which have not already been covered by the department. However, for the purpose of recalling distinctly the precise circumstances of this case, it may be well to recapitulate them, as follows:

In two contests between the forces of the established Government of Mexico and the insurrectionists at and around points lying on the Mexican side of our southern border, shots were fired into American territory with a result that a number of persons were injured and some killed, most of whom were American citizens. It will be at once perceived that this action by the Mexican forces constituted a violation of our territory, as well as an injury to our citizens. While this department has not yet reached a definite conclusion regarding the first element named-that is, the violation of territory-it is probable that inasmuch as there is the strongest reason to believe that no affront to this Government or its people was intended by the action of the Mexican forces, no action will be taken with reference to this matter, since, if the situation were reversed, it is probable that this Government might consider itself under the necessity of doing just as the Mexican Government did, even though such action might result in injury on the Mexican side of the border.

With reference to the injury inflicted upon persons within our own territory the department has called these claims to the attention of the Mexican Government and has insisted that they should be settled. The Mexican Government, having established an administrative body known as the Consultative Claims Commission, for the examination of all claims against the Mexican Government arising out of the revolution, the claimants were referred to this commission. Since this reference the department has again taken the matter up with the Mexican Government and has secured from that Government the promise that it will attempt at an early date to reach a

direct settlement with the claimants through the Mexican consuls located at El Paso, Tex., and Douglas, Ariz. While it would appear that as yet the consuls have not settled these claims, the conditions existing in Mexico are such as entirely to account for this delay, so that it need not be charged to a mere disposition to put off settlement. The department has received every assurance and has the strongest reason to believe that the Mexican Government will settle the claims as soon as practicable.

In presenting the claims to the Mexican Government, this Government has in each case reserved the right to take them up diplomatically should the offer of settlement made by the Mexican Government appear to this Government inadequate. This course has appeared to it the due and proper one considering all the principles involved, and in following this procedure the department has extended only such courtesies and has recognized only such rights as in a reciprocal case it would expect and demand upon its own part. The course thus far pursued has followed the usual amenities and courtesies observed between sovereign powers. The course thus far followed has not only protected the ultimate rights of the injured persons, but that it has perfected their rights by giving to the Government of Mexico every opportunity itself to adjust these claims. This is a matter of most vital importance if Mexico should fail to make or offer such a settlement of the cases as would accord with this Government's view of the equities involved, and we should later be forced to go to arbitration. Mr. Smith appears to complain of this course and to desire that this Government, at its own expense, investigate these cases, prepare them, and in the first instance present them diplomatically and formally with a demand for payment. The course to be followed after the making of this demand in case Mexico did not, as it probably would not, at once accede to the same, Mr. Smith does not appear to outline. It is probable, however, that he would grant to Mexico the right to make an investigation and a counter offer should that Government not consider the American demand as just and equitable. It will be observed that this would merely bring the negotiations to the same point in which they will be when Mexico has made an offer of settlement, as a result of its initial investigations, and this Government has passed upon the adequacy of such offer. Waiving for the present all legal considerations in the matter of preference between the course followed by the department and the course which Mr. Smith desires, it is quite clear that, as a matter of policy and consideration, the course adopted by this department is calculated to arouse less hostility toward these claims, and therefore probably secure for them a more generous treatment than would result from the unusual procedure advocated by Mr. Smith.

With reference to the contentions of Mr. Smith as to the legal principles involved in this case, it should be observed that even assuming the rules for which he contends are well founded, it is quite clear that the department has as yet taken no action which sacrifices American citizens or their rights or which surrenders on the part of the Government itself any right or principle. This department being charged with the conduct of our foreign affairs, including the protection of American citizens with reference to injuries inflicted upon them by other Governments, is, quite as zealous as any individual could be in exercising all and every care that our rights are fully and amply recognized and protected, and this department has to consider, in the exercise of these functions of protection, not only the injuries inflicted upon any particular individual or set of individuals, but upon American citizens generally, and the department would be open to the gravest censure did it sacrifice the interests of the many for the benefit of any given few. However, the discussion between this Government and Mexico regarding these claims has not yet reached the stage where it would appear the legal questions raised by Mr. Smith have become involved. The discussion will have reached that stage when the Government of Mexico has investigated, not judicially, but administratively as it is now doing, and has made an offer; when this Government has considered and declined (if this shall be the course followed) the offer made by Mexico; and when Mexico has then attempted (if it shall so do) to refer these claimants to the Mexican courts. Then the question as to what law shall control and in what forum the extent of liability shall be determined will arise. But at the present time these questions are not involved, since the Mexican Government is now making, as it has a right to do, an administrative investigation into the facts and circumstances of the cases with a view to making a settlement directly with the claimants. It is difficult to see how Mexico could do more or upon what grounds we could ask more than this.

In this connection Mr. Smith, in the brief which he filed before your committee (a copy of which he was good enough to leave informally with the solicitor for this department), has placed great and indeed seemingly sole reliance for his position upon the case of the Daylight against Mexico, and particularly upon an instruction sent by Mr. Frelinghuysen, Secretary of State for President Arthur, to the American minister at Mexico City under date of May 17, 1884. (Foreign Relations, 1884,

p. 358.) It may be of interest to you to observe that in that case, notwithstanding Mr. Frelinghuysen's statement arguendo in the instruction above cited, the Mexican Government persisted in its contention and referred the matter for investigation to the Mexican department of war and marine, which reported adversely upon the case, and Mexico declined to pay an indemnity. The position of the Mexican Government seems to have been accepted by Mr. Bayard, Secretary of State for President Cleveland, and apparently nothing ever came of the matter.

Without wishing to be regarded as expressing or as indicating at this time a definite opinion upon the arguments advanced by Mr. Smith on this matter concerning as they do questions which in the judgment of the department are not now before the department-it may be permitted, in connection with the reliance which he places upon the arguments of Mr. Frelinghuysen for the department, to call to your attention the statement by Mr. Moore in his preface to his International Law Digest that in considering questions of international import "two points of capital importance" must ever be borne in mind. He says:

"One is that mere extracts from state papers or judicial decisions can not be safely relied on as guides to the law. They may indeed be positively misleading. Especially is this true of state papers, in which arguments are often contentiously put forth which by no means represent the eventual view of the Government in whose behalf they were employed. Instead, therefore, of merely quoting extracts from particular documents, it has been my aim to give the history of the cases in which they were issued, and, by showing what was finally done, to disclose the opinion that in the end prevailed."

In this connection the department may refer to the notation made by Mr. Moore regarding this case in volume 6 (p. 679) of his digest, in which he states, after quoting the very language upon which Mr. Smith relies, that "the Mexican Government adhered to its position.'

The department wishes, however, to assure you that in thus putting this matter before you, it has no other thought than to indicate to you that there appears to be no present necessity for any such action as is proposed. The department desires also that you should be firmly convinced that this department has done and will continue to do everything in its power to protect American citizens and to secure redress for those who suffer injuries, including the very unfortunate sufferers at El Paso and Douglas. As a matter of fact it appears that the only practical result which would follow the enactment of the joint resolution proposed would be that this Government would be charged with the responsibility and the expense of the initial preparation of the claims of the injured persons at El Paso, Tex., and Douglas, Ariz., instead of having these persons prepare their own claims and meet the expense thereof as is the uniform and invariable rule, so far as the department is advised, in such cases. No reason is perceived why these claims should not in this particular respect take the course usual in such cases.

While the following considerations are not immediately before the department for its comment at this time, it calls them to your attention in the thought that perhaps in view of them and entirely aside from the discussion which has preceded you may think it unwise to attempt the passage of the present resolution.

In the first place, the resolution purports to direct the Secretary of State in the performance of a purely executive function, and in the exercise of a purely executive discretion, a course which in the past has not been found to affect the obligations of the Executive in the premises, as was seen in the case of the Venezuela Steam Transportation Co.

In the next place, the resolution purports to give to a commission certain judicial powers in the matter of compelling the attendance of witnesses, etc. In view of decisions of the Supreme Court on this point you will doubtless consider it a matter of very grave doubt as to whether or not the powers which the resolution would seek to confer would actually be enjoyed by the commission contemplated.

Finally, while the Secretary is thus "authorized and directed" to make certain investigations, the resolution carries no appropriation to meet the expenses of such investigation. In view of the circumstances of this case it is my judgment that there is no fund at its disposition which the department would regard as appropriately expendable for this purpose.

The department ventures to suggest that as the department is already doing in this matter all that it properly may as between this Government and Mexico, the continued exercise by those who are suggesting this legislation of the patience which they have hitherto shown will not only result in no prejudice to the interests which they represent, but will really facilitate the department's disposition of the cases.

The committee, after very careful consideration, is of the opinion that there is no principle of international law requiring, and that it