subjects of another to be made international questions, if there is good ground for apprehension that there may have been a denial of justice through corruption on the part of the magistrates or a wilful and oppressive perversion of the ordinary forms, the government of the aggrieved party has, it is conceived, a clear right to demand and expect all such information on the subject as may serve to satisfy its reasonable doubts." Mr. Marcy, Sec. of State, to Mr. Jackson, chargé at Vienna, Nov. 6, 1854, Martin Speer, alias Martin Speerschneider, referred to above, was "If any nation has good reason to believe that justice has been denied to one of its citizens by another, and that the forms of law have been used and perverted to inflict wrong and injury upon him, it may reasonably expect that explanation when demanded will be given. The reluctance shown by Austria to give explanation in Speer's case when it was first asked, very naturally cast some suspicion upon the motives which had led to his prosecution. She has, however, at length yielded to our demand, though not to the extent desired. On the ground of comity we might reasonably expect from her a more full account of the proceedings against Speer, but whether we could claim more as a right, and treat the refusal to grant it as an international affront, is very questionable. There is, undoubtedly, a limit beyond which such an enquiry could not be pushed and might be rightfully resisted. It can not be expected that any government would go so far as to yield to a pretension of a foreign power to revise and review the proceedings of its courts, under the claim of an international right to correct errors therein, either in respect to the application of principles of law, or the appreciation of facts as evidence in cases where the citizens of such foreign power have been convicted. It certainly could not be expected that such a claim would be allowed before the party making it had first presented a clear case prima facie of wilful denial of justice or a deliberate perversion of judicial forms for the purpose of oppression." Mr. Marcy, Sec. of State, to Mr. Jackson, chargé at Vienna, April 6, 1855, Mr. Marcy in a previous instruction had stated that the United States "I do not think the United States can complain of Austria for having committed a national wrong by neglecting or refusing to notify our consuls or diplomatic agents of the arrest and prosecution of a person who claims to be or has a passport showing that he is an American citizen. It is certainly not the practice in our country to give such notices, though information applied for would not be withheld." Mr. Marcy, Sec. of State, to Mr. Jackson, chargé at Vienna, April 6, 1855, The interposition of one government in legal proceedings within the jurisdiction of another being always a matter of delicacy, it should not be conducted in such a way as to involve a marked assumption of a denial of justice or as to suggest a lack of consideration for the constituted authority, such as would be indicated by a request to the minister of foreign affairs for "copies of all the papers" and for "such other details" as might be "within his knowledge and procurement," in a case pending before the courts, in order that an opinion might be formed as to the propriety or regularity of their proceedings. Mr. Blaine, Sec. of State, to Mr. Ryan, min. to Mexico, Feb. 16, 1891, MS. "The Department is perfectly aware that the proceedings of first instance, under the general code of the countries deriving their procedure from the Roman law, are analogous in their nature to the inquest of a grand jury under the common law of Saxon nations, and that precise information in respect to and formulation of the charges against the prisoner are not communicable in the preliminary stages. But this does not preclude a respectful inquiry from a consul as to the general nature of the offense charged or as to the status of a pending case." Mr. Sherman, Sec. of State, to Mr. Sepulveda, U. S. chargé d'affaires ad interim at Mexico, May 5, 1897, For. Rel. 1897, 396. 4. DEBTS AND CONTRACTS. § 916. "It has become a common habit of governments, especially in England, to make a distinction between complaints of persons who have lost money through default of a foreign state in paying the interest or capital of loans made to it and the complaints of persons who have suffered in other ways. In the latter case, if the complaint is thought to be well founded, it is regarded as a pure question of expediency on the facts of the particular case or of the importance of the occurrence, whether the state shall interfere, and if it does interfere, whether it shall confine itself to diplomatic representations, or whether, upon refusal or neglect to give redress, it shall adopt measures of constraint falling short of war, or even resort to war itself. In the former case, on the other hand, governments are in the habit of refusing to take any steps in favour of the sufferers, partly because of the onerousness of the responsibility which a state would assume if it engaged as a general rule to recover money so lost, partly because loans to states are frequently, if not generally, made with very sufficient knowledge of the risks attendant on them, and partly because of the difficulty which a state may really have, whether from its own misconduct or otherwise, in meeting its obligations at the time when it makes default. Fundamentally however there is no difference in principle between wrongs inflicted by breach of a monetary agreement and other wrongs for which the state, as itself the wrongdoer, is immediately responsible. The difference which is made in practice is in no sense obligatory; and it is open to governments to consider each case by itself and to act as seems well to them on its merits." Hall, Int. Law, 5th ed. 280-281. "The foreign debt of Spain, according to MacGregor and McCulloch, amounted in January, 1842, to £65,000,000 sterling. The former author observes that "the expenditure of Spain exceeds her income. without paying a real towards the interest of the foreign debt;' and the latter asserts with justice that a large amount of this debt is due to the English; and the interest on it has not been paid for a lengthened period.' "Lord George Bentinck, in a debate on the subject of the Spanish debt, in the House of Commons, on the 7th July, 1847, with the best means of obtaining information, stated with confidence the amount of the debt due by Spain to British subjects, on which no interest was paid, to be £46,000,000 sterling-say, $230,000,000. In his speech Lord Bentinck attempted to prove both the right and the duty of Great Britain to go to war with Spain for the recovery of this debt, if the object could not otherwise be accomplished; and he significantly referred to the revenues of the islands of Cuba and Porto Rico as furnishing ample means not only for the payment of the interest, but for the liquidation of the principal. Lord Palmerston, in reply, admitted the right of the British Government to wage war against Spain for the recovery of this debt, but denied its expediency under the then existing circumstances. "He concluded his remarks, however, by stating: But this is a question of expediency, and not a question of power; therefore, let no foreign country who has done wrong to British subjects deceive itself by a false impression either that the British nation or the British parliament will forever remain patient under the wrong; or that, if called upon to enforce the rights of the people of England, the government of England will not have ample power and means at its command to obtain justice for them.' "Lord George Bentinck was so well satisfied with the speech of Lord Palmerston that he withdrew his motion for an address to Her Majesty to take such steps as she might deem advisable to secure for the British holders of unpaid Spanish bonds redress from the government of Spain,' observing: 'After the tone taken by my noble friend I am sure there will be nothing left to be wished for by the Spanish bondholders. In the language of my noble friend, coupled with the course he has adopted upon former occasions as regards the payment of British subjects by Portugal and the South American States, the British holders of Spanish bonds have full security that he will in other cases exercise the same energy, when the proper time arrives to have it exercised, in the case of other subjects of the Crown. Such an intimation has been given in the tone and language of my noble friend to the Spanish nation, and I doubt not they will set themselves to work with very little loss of time themselves to do justice to the foreign creditors of Spain."" Mr. Buchanan, Sec. of State, to Mr. Saunders, min. to Spain, June 17, 1848, MS. Inst. Spain, XIV. 256, The foregoing extract forms part of a passage in which Mr. Buchanan discussed, as one of the reasons why the United States should endeavor to purchase Cuba, the possibility of Great Britain's seeking to obtain possession of the island. "The opinions of the President, concerning the rights and duties of the United States connected with the protection of our citizens and their property abroad, are distinctly set forth in that letter [of July 25, 1858, to General Lamar], and have since undergone no change, as the government of Nicaragua has been informed. In laying down the principles we maintain, it is said: The United States believe it to be their duty, and they mean to execute it, to watch over the persons and property of their citizens visiting foreign countries, and to intervene for their protection when such action is justified by existing circumstances and by the law of nations.' “In addition to this general declaration, applicable in all countries, there were some peculiar principles asserted, arising out of the condition of Nicaragua and of the transit route from ocean to ocean across its territory. The right of the United States to take care that the public contracts made with our citizens for the construction and use of that route of intercommunication are faithfully observed was explained and maintained, and so far as the legal power of the Executive extends will be enforced, if necessary." Mr. Cass, Sec. of State, to Mr. Body, Mar. 3, 1860, 52 MS. Dom. Let. 11. "It is quite true, for example, that under ordinary circumstances when citizens of the United States go to a foreign country they go with an implied understanding that they are to obey its laws, and submit themselves, in good faith, to its established tribunals. When they do business with its citizens, or make private contracts there, it is not to be expected that either their own or the foreign government is to be made a party to this business or these contracts, or will undertake to determine any disputes to which they may give rise. The case, however, is very much changed when no impartial tribunals can be said to exist in a foreign country, or when they have been arbitrarily controlled by the government to the injury of our citizens. So, also, the case is widely different when the foreign government becomes itself a party to important contracts, and then not only fails to fulfill them, but capriciously annuls them, to the great loss of those who have invested their time and labor and capital from a reliance upon its own good faith and justice." Mr. Cass, Sec. of State, to Mr. Dimitry, May 3, 1860, MS. Inst. Am. |