opinion they said: "We have not discussed the question of the right of the United States under international law to make reclamation for these shareholders in El Triunfo Company, a domestic corporation of Salvador, for the reason that the question of such right is fully settled by the conclusions reached in the frequently cited and well-understood Delagoa Bay Railway arbitration."

For. Rel. 1902, 859-873.

For a full exposition of the grounds on which the United States intervened in this case, see For. Rel. 1902, 838-852.

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At page 846 Judge Penfield, Solicitor of the Department of State, in a report to Mr. Hay, Secretary of State, says: While the Department does not dispute the contention that intervention by the Government of the United States would not be in entire accord with certain dicta expressed in the case of the Antioquia in respect of intervention in behalf of American stockholders in a foreign corporation, it is consistent with the actual grounds of that decision. But if all the reasons stated in that case against the right of intervention were to be accepted, even if intervention had been refused solely on the academic reasons given, the decision of this case would be controlled by the later decision of the Department in the case of the Delagoa Bay Railway."

IV. GROUNDS OF INTERVENTION.

1. DENIAL OF JUSTICE.

$986.

The ground of diplomatic intervention in behalf of individuals, for injuries in person or in property, is a denial of justice. Such a denial may proceed either from the act of the government itself or from the act of one of its agencies.

"A sovereign can not be sued in his own courts without his consent. His own dignity, as well as the dignity of the nation he represents, prevents his appearance to answer a suit against him in the courts of another sovereignty. . Hence, a citizen of one nation, wronged by the conduct of another nation, must seek redress through his own Government. His sovereign must assume the responsibility of presenting his claim, or it need not be considered."

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United States v. Diekelman, 92 U. S., 520, 524; cited by Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, No. 134, June 23, 1886, MS. Inst. France, XXI. 330.

The rule by which all governments conduct themselves in cases where injury has been done by individuals of one to individuals of the other government is to leave the injured party to seek redress in the

courts of the other. If that redress be finally denied, after due application to the courts, it then becomes a subject of national complaint.” Mr. Jefferson, Sec. of State, to Mr. King, Dec. 7, 1793, 5 MS. Dom. Let. 388. When diplomatic intervention is asked to press payment for an injury sustained by a foreigner in this country, it is first to be considered "whether the party complaining has duly pursued the ordinary remedies provided by the laws, as was incumbent on him, before he would be entitled to appeal to the nation; and if he has, whether that degree of gross and palpable negligence has been done him by the national tribunals which would render the nation itself responsible for their conduct." (Mr. Jefferson, Sec. of State, to the At. Gen., Mar. 13, 1793, 5 MS. Dom. Let. 70.)

"The courts of justice exercise the sovereignty of this country in judiciary matters; are supreme in these, and liable neither to control nor to opposition from any other branch of the government." (Mr. Jefferson, Sec. of State, to Mr. Genet, Sept. 9, 1793, 4 Jefferson's Works, 68; Am. State Papers, For. Rel. I. 175.)

A nation ought not to interfere in the causes of its citizens brought before foreign tribunals, except in a case of refusal of justice or of palpable injustice.

Bradford, At. Gen., 1794, 1 Op. 53.

See, to the same effect, Black, At. Gen., 1859, 9 Op. 374.

"It is not necessary to affirm that a government is not responsible in any case to a foreign government for an alleged erroneous judicial decision rendered to the prejudice of a subject of said foreign government. But it may be safely asserted that this responsibility can only arise in a proceeding where the foreigner, being duly notified, shall have made a full and bona fide, though unavailing, defense, and, if necessary, shall have carried his case to the tribunal of last resort. If, after having made such defense and prosecuted such appeal, he shall have been unable to obtain justice, then, and then only, can a demand be with propriety made upon the government."

Mr. Clay, Sec. of State, to Mr. Tacon, Feb. 5, 1828, MS. Notes to For. Leg.
III. 423.

"The general rule is that foreigners are bound to apply to the tribunals
of justice, if they are open, for redress of any grievance before they
appeal for it to the government of those tribuuals;" and hence
there can be no claim against the government of the United States
for injuries inflicted on the coast of Florida on two wrecked French
vessels and their crews, unless the remedy of recourse to the civil
tribunals has been exhausted. (Mr. Clay, Sec. of State, to Mr. de
Maheuil, Mar. 28, 1827, MS. Notes to For. Legs. III. 342. See, also,
Mr. Clay, Sec. of State, to Mr. Salazar, Dec. 22, 1827, MS. Notes to
For. Legs. III. 408.)

Captain George Barker, of the American ship Panther, was arrested at Halifax, Nova Scotia, about the 26th of August and kept in

jail till the 8th or 9th of November, 1837, in a judicial prosecution instituted against him by some of the passengers of his vessel, in the vice-admiralty court, for breach of marine contract and for refusing to pay for marine services, and for an alleged violation of the imperial statute 5 and 6 William IV., relating to passengers. Captain Barker was released on a writ of habeas corpus issued by the colonial supreme court, and a writ of prohibition was issued by the same tribunal forbidding the vice-admiralty court to carry the proceedings further because of a want of jurisdiction. With reference to this transaction, the Department of State said: "This Government can not admit the right of any foreign court to take cognizance of acts done on board of American vessels at sea, but the ground upon which the jurisdiction of the vice-admiralty court of Halifax in this case was denied by the counsel of Capt. Barker was, not that the contract was made or broken at sea, under the flag of the United States, but that it was made upon land, and within the body of a county, thereby impliedly admitting the right of jurisdiction of a British court of a different character. But, even if the facts were such as to exclude the judicial cognizance of any foreign tribunal, the case presented would be that of an inferior court assuming an unlawful jurisdiction in a civil suit, in which it was overruled and checked by a superior court, without any appearance of unusual vexation or delay. The detention which Capt. Barker unfortunately experienced would seem to have been such only as one of the subjects of Great Britain might have been subjected to, under the same circumstances, by the operation of the laws within the influence of which he was brought, and, however unjust it may have been, as a fair investigation appears to have been allowed, which resulted in his discharge, the injury he is represented to have sustained is not thought to constitute a proper application from this Government to that of Great Britain for redress."

Mr. Forsyth, Sec. of State, to Mr. Davee, Feb. 7, 1838, 29 MS. Dom. Let. 330.

Personal injuries inflicted on citizens of the United States when in Great Britain can be redressed only by appeal to the local courts; nor can the Government of the United States complain of failure of justice in this respect if the trials were fair and the due course of justice was pursued. (Mr. Monroe, Sec. of State, to Mr. J. Q. Adams, Nov. 16, 1815, MS. Inst. U. States Ministers, VIII. 3.)

January 5, 1851, the Peruvian barque Eliza was stranded in San Francisco Bay through the unskillfulness or carelessness, as was alleged, of a pilot, who was a member of an incorporated association of pilots under the laws of the State of California. The owners of the barque sued the association in the United States district court. and recovered judgment against it. Execution was issued and a levy made on the association's boat, but the writ was returned unsatisfied

owing to the fact that, because the judgment-creditor refused to indemnify the marshal, the latter did not sell the vessel. No further effort appears to have been made to collect the judgment. The Peruvian minister at Washington, however, solicited the aid of the United States to recover the amount of the judgment from the State of California, on the theory that the State was liable for the acts of the pilots who carried on their operations under its laws. On June 15, 1852, Mr. Webster, as Secretary of State, sent the papers to the governor of California, with a letter, in which he said: "If the Association of Pilots of San Francisco has been established under a law of the State of California, that State must be considered as responsible for those acts of negligence or ignorance of the association for which the means of its members, jointly or severally, may be inadequate to make reparation. I therefore commend this case to the favorable consideration of your excellency, and trust that provision will be made by the State of California for the payment of the claim." The governor communicated the papers, with a special message, to the legislature. The legislature repelled the theory of responsibility on the part of the State, and the Peruvian Government then preferred a claim against the United States. In 1855 the case was referred by Mr. Marcy, Secretary of State, to Mr. Cushing, who, in an opinion of May 27, 1855, held that neither the State of California nor the United States was responsible to the owners of the barque for her loss through the carelessness of the pilot. Mr. Cushing observed that foreigners sojourning in a country were subject to its laws, and that wherever this rule had been departed from it was an exceptional case. Such exceptions had, he said, grown up chiefly in Spanish America in consequence of the unsettled conditions there. Public officers, said Mr. Cushing, were of two classes, (1) those employed in the collection of the revenue and the care of the public property, who represented the proprietary interest of the Government, and (2) those who were appointed by the Government only in its capacity of parens patriae. For the acts of the former the Government in many cases held itself responsible, because their acts were performed in the interest of the Government; but for the acts of the latter the Government did not hold itself pecuniarily responsible, but provided the means to make them personally responsible or to punish them for malfeasance in office, and, in so doing, did all that was required of it.

The United States having on these grounds refused to entertain the claim, it was subsequently presented to the mixed commission under the convention between the United States and Peru of January 12, 1863. The umpire of this commission, General Herran, held that there was a valid claim against the United States, both because of the

neglect of the United States marshal properly to execute the judgment of the district court and because the government of California had failed to discharge the obligations which it had assumed under its pilotage laws. As to the contention that the foreigner must exhaust judicial remedies before soliciting diplomatic intervention, General Herran said that this rule ought to be understood in a "rational" sense, so that it would not make delusive the right of the foreigner." In this relation he said: "After Montano had obtained a definite sentence that a sum of money should be paid him, which the court determined as a just indemnification for his damages and losses which he had suffered through the fault of a pilot accredited by the laws of California, who for the payment of that sum had furnished sureties in fulfillment of a law of the State, one ought to believe that the claimant had only to put the writ in execution to pay the cost. But such was not the case. What Montano gained by the sentence was the right to bring forward another complaint; and I believe that he then found himself obliged to seek from his Government its interference in his behalf."

For the letter of Mr. Webster to the governor of California, see Mr.
Webster, Sec. of State, to Gov. Bigler, June 15, 1852, 40 MS. Dom.
Let. 190. See, also, Mr. Osma, chargé d'affaires of Peru, to Sec. of
State of United States, June 2, 1852, and enclosures, MS. Notes from
Peru.

For the opinion of Mr. Cushing, At. Gen. 1855, see 7 Op. 229, 237, 238.
For the decision of General Herran, see Moore, Int. Arbitrations, II. 1630,
1634-1638.

"Should it, however, be established to your satisfaction that Dr. Belcredi is an American citizen, the right of this Government to interfere in his case would be very questionable. As such citizen, he is subject to the laws, civil and criminal, of the country within which he is domiciled or resides, and the United States could not make the proceedings against him a ground of complaint unless those laws were contrary to treaty stipulations or were used in bad faith or oppressively to inflict injuries upon him."

Mr. Marcy, Sec. of State, to Mr. Fay, Nov. 16, 1855, MS. Inst. Switz. I. 39.
See, to the same effect, Mr. Marcy, Sec. of State, to Mr. Clay, min. to Peru,
No. 41, Feb. 8, 1856, MS. Inst. Peru, XV. 182.

"The rule of the law of nations is that the Government which refuses to repair the damage committed by its citizens or subjects, to punish the guilty parties or to give them up for that purpose, may be regarded as virtually a sharer in the injury and as responsible therefor.”

Mr. Fish, Sec. of State, to Mr. Foster, min. to Mexico, No. 21, Aug. 15, 1873, MS. Inst. Mex. XIX. 18, citing Calvo, Droit Int. II. 397.