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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 instruc tion, see infra, § 1046.

"Mr. Lafragua

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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,
Sept. 22, 1874, MS. Inst. Mexico, XIX. 121.

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,
May 17, 1884, For. Rel. 1884, 358.

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,
1884, No. 574, MS. Inst. Mexico, XXI. 82.

To the effect that the oppression of a citizen of the United States by a
Mexican custom officer is a subject for diplomatic intervention, and
that such citizen is not restricted to a judicial remedy, see, also,
Mr. Bayard, Sec. of State, to Mr. Jackson, min. to Mexico, No. 25,
July 20, 1885, MS. Inst. Mexico, XXI. 337.

"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."

Mr. Bayard, Sec. of State, to Mr. Jackson, min. to Mexico, Sept. 7, 1886,
MS. Inst. Mexico, XXI. 574.

As to the case of the American schr. Rebecca, see H. Ex. Doc. 328, 51
Cong. 1 sess., and supra, § 987.

"If our subjects abroad have complaints against individuals, or against the government of a foreign country, if the courts of law of that country can offord them redress, then, no doubt, to those courts of justice the British subject ought in the first instance to apply; and it is only on a denial of justice, or upon decisions manifestly unjust, that the British Government should be called upon to interfere. But there may be cases in which no confidence can be placed in the tribunals, those tribunals being, from their composition and nature, not of a character to inspire any hope of obtaining justice from them. It has been said, 'We do not apply this rule to countries whose governments are arbitrary or despotic, because there the tribunals are under the control of the government, and justice can not be had; and, moreover, it is not meant to be applied to nominally constitutional governments, where the tribunals are corrupt.' But who is to be the judge in such a case, whether the tribunals are corrupt or not? The British Government, or the government of the state from which you demand justice? . . . I will take a case which happened in Sicily, where not long ago a decree was passed, that any man who was found with concealed arms in his possession should be brought before a court-martial, and, if found guilty, should be shot. Now, this happened. An innkeeper of Catania was brought before a court-martial, accused under this law by some police officers, who stated that they had discovered in an open bin, in an open stable in his inn-yard, a knife, which they denounced as a concealed weapon. Witnesses having been examined, the counsel for the prosecution stated that he gave up the case, as it was evident there was no proof that the knife belonged to the man, or that he was aware it was in the place where it was found. The counsel for the defendant said, that such being the opinion of the counsel for the prosecution, it was unnecessary for him to go into the defense, and he left his client in the hands of the court. The court, however, nevertheless pronounced the man guilty of the charge brought against him, and the next morning the man was shot. "Now, what would the English people have said if this had been done to a British subject? And yet everything done was the result of the law, and the man was found guilty of an offense by a tribunal of the country.

"I say, then, that our doctrine is, that, in the first instance, redress should be sought from the law courts of the country; but that in cases where redress can not be so had-and those cases are many-to confine a British subject to that remedy only, would be to deprive him of the protection which he is entitled to receive.

"We shall be told, perhaps, as we have already been told, that if the people of the country are liable to have heavy stones placed upon their breasts, and police officers to dance upon them; if they are liable to have their heads tied to their knees, and to be left for hours in that state; or to be swung like a pendulum, and to be bastinadoed as they swing, foreigners have no right to be better treated than the natives, and have no business to complain if the same things are practiced upon them. We may be told this, but that is not my opinion, nor do I believe it is the opinion of any reasonable man.”

Lord Palmerston, in the House of Commons, June 25, 1850, on the case of
Don Pacifico. (Hansard, Parl. Debates, CXII. 382–387.)

(2) WHERE THEY HAVE BEEN SUPERSEDED.

$ 989.

The rule that an alien must, before seeking the aid of his government, endeavor to obtain redress in the courts, does not apply where the offending government has, by the acts of its proper organ, relieved the party complaining from appealing to the courts.

Akerman, At. Gen., 1871, 13 Op. 547.

San Salvador.

During the revolutionary disturbances at San Salvador in July, 1890, the consulate of the United States was violated Case of Consul at by Government troops and the flag torn down and insulted, while the property and archives of the United States and the personal property of Mr. Myers, the consul, were destroyed or carried away and the consul himself subjected to personal indignities and hardships. The Salvadorean authorities immediately agreed to pay an indemnity for the destruction of the property of the United States and of the consul; and a claim was in due time also preferred for reparation for the consul's personal injuries. In the course of the subsequent discussions Señor Gallegos, the Salvadorean minister for foreign affairs, said:

"My Government believes that the claim presented by Mr. Myers for the indemnization of the losses which he declares were suffered in his property and in that of the American Government, as a result of the events of July, 1890, can not be limited for the present to the mere fixing of a sum of money so as to demand its simple reimbursement without there being first held in due form those proceedings which the laws of the country prescribe and require as indispensable, before the tribunals established by the laws for proving and appraising of damages sustained, which indemnization, in like manner, is to be regulated according to general provisions."

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