had promptly availed themselves of their remedial rights, the injuries complained of could have been prevented. Their failure and neglect to do so does not make the United States culpable and responsible for the damages resulting. "The statement that the conspirators are still seeking to execute their conspiracy by clandestine means is one which, to justify action, should be sustained by proofs, on the submission of which to the court it is not doubted that the penalties for disobeying the injunction will be applied. "The statement that no remedy could be found against the unlawful action of the city or county authorities in aid of the conspirators, the Department is unable to accept as correct in point of law. "The Department is glad to be able to assure you that while the action of the Federal court is sufficient proof that the rights of the subjects of the Empire of China domiciled in the city of Butte will be protected and enforced by the judiciary, it may yet add that the Executive will not fail, should the case arise justifying its interposition, to use all its power to secure to them all the rights, privileges, immunities, and exemptions guaranteed by the United States Constitution and by treaty between the Governments of the United States and China." Mr. Hay, Sec. of State, to Mr. Wu, Chinese min., Dec. 4, 1901, For. Rel. 1901, 127. See, for another case of boycott, infra, § 1019 By section 1068 of the Revised Statutes (being part of the statute organizing the Court of Claims)" aliens, who are citizens or subjects of any Government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their subject-matter and character, might take jurisdiction." Under the act of 27th July, 1868, from which this section is taken, there being proof of provision in Turkey for the prosecution of suits against the Government by citizens of the United States, the remedy of a Turkish subject for injuries alleged to have been inflicted on him by Government officials in Texas is in the Court of Claims. Mr. Fish, Sec. of State, to Baltazzi Effendi, Feb. 8, 1871, MS. Notes to British subjects may sue in the Court of Claims of the United States. In the Russian empire foreigners enjoy the same rights at law, whether as plaintiffs or defendants, as Russian subjects; and as Russian subjects have the right to bring suits against their Government, personally or through an attorney, it follows that foreigners have the same privilege. The foreigner, however, is required to make a deposit as a guarantee for the payment of costs, and, in the absence of such a deposit, judgment may be taken by default. Mr. Smith, min. to Russia, to Mr. Blaine, No. 71, Jan. 19, 1891, MS. Desp. from Russia, transmitting the opinion of Mr. S. V. Lewies, an attorney of St. Petersburg, with citations of the Russian law. 3. LOCAL REMEDIES NEED NOT BE EXHAUSTED. (1) WHERE JUSTICE IS WANTING. § 988. "It may be said that the claimants, according to the ordinary practice of the British courts, had a right of appeal to the lords of appeal, and that as they did not avail themselves of that right they must be presumed to have acquiesced in the decision of the admiralty court." [To this] "it may be answered that the claimants had incurred great expense in the prosecution of their rights before the admiralty court and had not the means for carrying the case further in the form in which it was there presented." Mr. Webster, Sec. of State, to Mr. Lawrence, Jan. 13, 1851, MS. Inst. Gr. Nor does this limitation apply when the point in issue has already been The treaties between the United States and Mexico stipulate "for the protection of the property and persons of the citizens of the two countries. This, however, is to be done through the courts of law. A stipulation of this character is notoriously inoperative in quarters remote from the seat of government, where the latter is virtually without authority. Any pecuniary compensation which you may claim from the Mexican Government for injuries by persons in the service of that Government may be presented to a future commission, which, socner or later, must be organized for the consideration of such cases." Mr. Fish, Sec. of State, to Mr. Halpin, March 13, 1873, 98 MS. Dom. A claimant in a foreign state is not required to exhaust justice in such state when there is no justice to exhaust. Mr. Fish, Sec. of State, to Mr. Pile, min. to Venezuela, May 29, 1873, MS. See Mr. F. W. Seward, Act. Sec. of State, to Mr. Gibbs, min. to Peru, The stipulation of Article XIV. of the treaty between the United States and Mexico of 1831 for the protection of the persons and property of the citizens of the one country within the jurisdiction of the other, is "unreserved, except that, as may be supposed, redress is to be sought through the courts. This may be sufficient in time of peace, but when the courts themselves are closed by arms, and, even when peace may be restored, the authors of the injuries are notoriously incapable of making amends, even if sought through the judicial channel, the Government itself must be held to be directly accountable." Mr. Fish, Sec. of State, to Mr. Foster, min. to Mexico, No. 21, Aug. 15, 1873, MS. Inst. Mexico, XIX. 18. The foregoing instruction related to the case of Messrs. Ulrich and Langstroth, who made a claim against the Mexican Government for losses inflicted and forced loans imposed by insurgents at Monterey. In a subsequent instruction in the same case Mr. Fish said: “It can not be acknowledged, as Mr. Lafragua maintains, that diplomatic interference in such cases necessarily annihilates or trenches upon the peculiar functions of the judiciary of a country. In- cases of a denial of justice the right of intervention through the diplomatic channel is allowed, and justice may as much be denied when, as in this case, it would be absurd to attempt to seek it by judicial process, as if it were denied after having been so sought." Mr. Fish, Sec. of State, to Mr. Foster, min. to Mexico, No. 54, Dec. 16, 1873, MS. Inst. Mexico, XIX. 48. For the full text of this instruction, see infra, § 1046. "Mr. Lafragua seems to be confident that, as the victims of the forced loans have made no application to the judicial authorities for relief, as is required by the treaty, the Government here is not warranted in asking compensation for them. It is not denied that, if the loan had been a voluntary one, the lenders should not have expected diplomatic interposition in their behalf, at least until they had exhausted all means of obtaining redress through the courts. When, however, money is wrested by threats or violence from a confiding foreigner by an insurgent chieftain, the victim cannot be expected to look for redress to the ordinary tribunals. It never could have been the intention of the treaty that, in such a case, he must seek reparation by such means. If so, justice and indemnity to the injured would so certainly be denied, that a recourse to diplomatic intervention, which according to public law would then be regular, might as well be adopted at once. No party would have any substantial interest put in jeopardy by such a step." Mr. Cadwalader, Act. Sec. of State, to Mr. Foster, min. to Mexico, No. 141, In respect of the sinking of the American schooner Daylight near Tampico, Mexico, by the Mexican gunboat Independencia, in 1882, the Mexican Government took the ground that a diplomatic claim would not lie because the owners of the vessel had not submitted the case to the Department of War and Marine, and, if need be, referred it to the courts. The United States repelled this contention, saying: "The owners of the Daylight were never residents of Mexico, either permanent or temporary. They are not known to have ever been in that country. The master of the vessel was not a resident of Mexico, either permanent or temporary, and was never in the country beyond the port at which his vessel might touch. At the time of the occurrence which gave rise to the claim the vessel could scarcely be said, with strict propriety, to have been in Mexican waters. She was anchored outside the bar, near the harbor of Tampico, in an exceptionally rough sea, at the close of a severe storm, which rendered it unsafe for her to attempt to cross the bar or enter the harbor. To insist that those claimants shall go from Maine to Tampico to seek redress in the Mexican tribunals for a grievous wrong suffered at the hand of a high officer of the navy of that Republic would, in the estimation of this Government, be a practical denial of justice." The Mexican Government adhered to its position. Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, min. to Mexico, No. 570, See, also, For. Rel. 1884, 340, 343, 345, 362, 370. A claim was made by the United States against the Government of Mexico for the detention of the American schooner E. D. Sidbury, at Tampico, in 1883. It appeared that the vessel when ready to sail was seized, and after a trial of forty days before the judicial authorities was ordered to be released, the court declaring that even if all the facts alleged were true they afforded no ground whatever for the seizure and detention of the vessel. The collector of customs refused to obey the order of restoration, as well as a second order to the same effect, and it was necessary to obtain a third order from the court, containing an intimation that if it were not complied with force would be used, before the vessel was released. The Mexican Government took the ground that any claim for damages in the case should be prosecuted through the local tribunals and not through diplomatic channels. The United States, however, endeavored to press the claim diplomatically. Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, min. to Mexico, May 19, To the effect that the oppression of a citizen of the United States by a "The position that a sovereign is internationally liable for rulings of his courts, in violation of international law, was taken by us early in the wars growing out of the French Revolution, and was finally acceded to by the British Government against whom it was advanced. It was also accepted by us, as respondents, after the late civil war, when, the relations of the parties being reversed, we agreed that we could not set up as a bar to a British claim for damages for illegal seizure, a decision of our courts that the seizure was legal. It is impossible for us to yield to Mexico a principle that we successfully maintained against Great Britain when she was belligerent and which we yielded to her when she was neutral. "The question, then, in the present case, is whether the ruling of the Mexican court sustaining the seizure in question was right by international law. And I have no hesitation in instructing you that the seizure was wrong by that law, since it was virtually an execution issued in a suit in which not only was a hearing refused to the defendant, but in which an offer on his part to produce testimony which would have exculpated him was followed by an order of court directing his arrest. Such action was in itself a gross violation of those rules of justice which, in order to give judgments international validity, require that the parties should have full opportunity to be heard. If so, such judicial action is no more a defense to the Government of Mexico than would be an order for the same seizure if issued wrongfully by the executive department of that Government. As a foreign sovereignty we can not inquire by what municipal agency of Mexico the wrong was done. To us the Government of Mexico is a unit, and responsible for whatever wrongs either of its several departments may inflict upon us. "It may be said that the position here taken is inconsistent with the rule frequently declared by this Department, that when a Government opens its courts to alien suitors in claims against itself or its officers, the judicial remedy must be exhausted by aliens who feel themselves aggrieved before they can rightfully apply to their own sovereigns to intervene. But the two positions are not only consistent, but one supplements the other. In the present case, for instance, it was the duty of the claimant, if possible, to exhaust his remedy in the Mexican courts before he came to this Department for its intervention. But when he was precluded from so doing by the adverse proceedings instituted against him by the Mexican authorities, by which he was prevented from making out his case, we must hold that justice was not only denied him, but denied in violation of settled principles of international law. It then becomes the duty of this Department to intervene in his behalf and to press his claim on Mexico as a debt which Mexico is bound to pay." |