§ 489. Courts open for redress.-Intervention through diplomatic channels will not be made when the courts of a country are open for the redress of claims to property.23 The United States will not consider, as grounds of interference, irregularities in the prosecution of an American citizen in Chile, not amounting to a denial of justice, or an undue discrimination against him as an alien.24 But should a Chilean court refuse to hear testimony on behalf of an American citizen on trial for crime, and such refusal should be sustained by the Chilean government, the United States would consider such refusal as "a gross outrage to an American citizen, for which it will assuredly hold Chile responsible." 25 23 Mr. Foster, Secretary of State, to Mr. Mulcahy, February 21, 1893, 190 MS. Dom. Let. 406. 24 Mr. Marcy, Secretary of State, to Mr. Starkevedther, August 24, 1855, MS. Inst. Chile, XV, 124. 25 Mr. Conrad, Acting Secretary of State, to Mr. Peyton, chargé to Chile, October 12, 1852, MS. Inst. Mr. Gresham, SecreChile, XV, 93. tary of State, in an instruction to Mr. Ryan, Minister to Mexico, April 26, 1893 (MS. Inst. Mex. XXIII, 359), said: "Where complete reciprocal international equality is recognized, as it is fully recognized between the United States and Mex. ico, a necessary consequence thereof is that each country must as a rule admit the competency and the disposition of the courts of the other country to do complete justice to all litigants properly subject to their jurisdiction, regardless of nationality. This presumption in favor of the competency and the integrity of the courts is very strong and is not to be lightly ignored upon the application of disappointed litigants, seeking for diplomatic intervention. It is not meant to say that a palpable denial of justice to citizens of one country in the courts of the ment, un which may sanction diplomatic intervention as a matter of right in such cases, must be very cogent in order to overcome the presumption above referred to. This Departmoreover, entertains the opinion that something of an usual character must have occurred to warrant even the use of the good offices or mere unofficial requests of our diplomatic representatives with foreign governments in behalf of American citizens, litigants in their courts. The bare fact of an adverse decision will not warrant it, and in all cases judicial remedies must be exhausted by appeal or otherwise, before executive interference is asked. The difficulties which would exist in the way of any executive action in this country, for the correction of alleged delinquencies in the conduct of the judicial tribunals should always be borne in mind." In a note to Mr. Ten Eyck, Commissioner to Hawaii, August 28, 1848, MS. Inst. Hawaii, II, 1, Mr. § 490. Montijo controversy.-While the steamer "Montijo," which was owned by citizens of the United States, was on a voyage to Panama, she was, on April 6, 1871, seized and attacked by certain persons engaged in a revolution. The claims of the owners for reparation were referred to arbitration, and among other defenses urged was, that the act was committed by the state of Panama, and not by the United States of Colombia. Buchanan, Secretary of the State, said: "In regard to the jurisdiction of the courts of independent nations over American citizens resident within their limits, it became necessary for me, on the 1st of February, 1848, to address a note to Mr. Osma the minister from Peru, which also received the sanction of the President and Cabinet. From it I make the following extract. 'Citizens of the United States whilst residing in Peru are subject to its laws and the treaties existing between the parties, and are amenable to its courts of justice for any crimes or offenses which they may commit. It is the province of the judiciary to construe and administer the laws, and if this be done promptly and impartially towards American citizens and with a just regard to their rights they have no cause of complaint. In such cases they have no right to appeal for redress to the diplomatic representative of their country, nor ought he to regard their complaints. It is only where justice has been denied or unreasonably delayed by the courts of justice of foreign countries where these are used as instruments to oppress American citizens or to deprive them of their just rights-that they are warranted in appealing to their government to interpose.' All these are ancient and well-established principles of public law; and the quota tions are made merely to show that they have received the formal senction of this government.' Mr. Marcy, Secretary of State, speaking of the criminal procedure of Austria (MS. Inst. Austria, I, 105), said: "The system of proceeding in criminal cases in the Austrian government has, undoubtedly, as is the case in most other absolute countries, many harsh features, and is deficient in many safeguards which our laws provide for the security of the accused; but it is not within the competence of one independent power to reform the jurisdiction of others, nor has it the right to regard as an injury the application of the judicial system and established modes of proceedings in foreign countries to its citizens when fairly brought under their operation. All we can ask of Austria, and this we can demand as a right, is that, in her proceedings against American citizens prosecuted for offenses committed within her jurisdiction, she should give them the full and fair benefit of her system, such as it is, and deal with them as she does with her own subjects or those of other foreign powers. She cannot be asked to modify her mode of proceedings to suit our views, or to extend to our citizens all the advantages which her subjects would have under our better and more humane system of criminal jurisprudence."' Mr. Fish, Secretary of State, in a note to the American Minister, said that the seizure was a piratical act, "for which it is expected that the authors will be held to be judicially accountable. The treaty stipulates that no such seizure shall be made, even by the Colombian authorities, without just compensation to the aggrieved parties. When, therefore, such an act is committed in the waters of that republic by unauthorized persons, the obligation of that government to make amends therefor may be regarded as unquestionable. You will accordingly apply for reparation in this case. The controversy was finally submitted to arbitration. There was a disagreement as to liability between the arbitrators, and the final decision was rendered by the umpire, who, on July 25, 1875, rendered an award in favor of the claimants for $33,401.27 26 § 491. Federal government of Colombia responsible for acts of states. One of the reasons advanced by Colombia to escape liability was that the government of the Union could not be held answerable for the failure of the state of Panama to compensate the owners, because the Colombian government had no connection with private debts, especially with those having a vicious origin. To this contention the umpire replied that in his opinion the government of the Union had "a very clear and decided connection with the debts incurred by the states of the Union toward foreigners whose treaty rights have been invaded or attacked; and, secondly, that the debts so incurred by the separate states are in no way private, but, on the contrary, entirely public in their character.' He said that it was true that treaties authorizing the residence of foreigners in Colombia, and defining and assuring their rights during such residence, were made with the general government, and not with the separate states of which the Union is composed. § 492. Same practice in the United States. The same practice, he said, prevailed in the United States, in Switzerland, and in all countries in which the federal system is adopted. He held that if a treaty stipulation were violated, "it is evident that a recourse must be had to the entity with which the international engagements were made. There is no one else to whom appli"For. Rel. 1871, 230. 22 Moore's Int. Arb., 1427. cation can be directed. For treaty purposes the separate states are nonexistent; they have parted with a certain defined portion of their inherent sovereignty, and can only be dealt with through their accredited representative or delegate, the federal or general government." He stated, however, that admitting that this is the theory and the practice of the federal system, "it is equally clear that the duty of addressing the general government carries with it the right to claim from that government, and from it alone, the fulfillment of the international pact. If a manifest wrong be committed by a separate state, no diplomatic remonstrance can be addressed to it. It is true that in such a case the resident consular officer of a foreign power may call the attention of the transgressing state to the consequences of its action, and may endeavor by timely and friendly intervention on the spot to avoid the necessity of an ultimate application to the general government through the customary diplomatic channel; but should this overture fail, there remains no remedy but the interference of the federal power, which is bound to redress the wrong, and, if necessary, compensate the injured foreigner." He concluded by remarking that if this rule be correctly laid down, "It follows that in every case of international wrong the general government of this republic has a very close connection with the proceedings of the separate States of the Union. As it, and it alone, is responsible to foreign nations, it is bound to show in every case that it has done its best to obtain satisfaction from the aggressor. to § 493. Constitution of Colombia prohibiting interference with states. The argument was made in that controversy that by the Constitution of Colombia, the federal power was prohibited from interfering in the domestic disturbances of the states, and that it could not justly be made accountable for acts for which it had not the power, under the fundamental powers of that country, prevent or punish. To this contention the umpire replied "that in such a case a treaty is superior to the Constitution, which latter must give way. The legislation of the republic must be adapted to the treaty, not the treaty to the laws. This constantly happens in engagements between separate and independent nations. For the purposes of carrying out the stipulations of a treaty, special laws are required. They are made ad hoc, even though they may extend to foreigners' privileges and immunities. which the subjects or citizens of one or both of the treaty-making powers do not enjoy at home. "That under such a rule apparent injustice may occasionally be committed is probably true. But it is more apparent than real It may seem at first sight unfair to make the federal power, and through it the taxpayers of the country, responsible, morally and pecuniarily, for events over which they have no control, and which they probably disapprove or disavow, but the injustice disappears when this inconvenience is found to be inseparable from the federal system. If a nation deliberately adopts that form of administering its public affairs, it does so with the full knowledge of the consequences it entails. It calculates the advantages and the drawbacks, and cannot complain if the latter now and then make themselves felt.'' 28 § 494. An embarrassing precedent. The United States has consistently disavowed responsibility for acts committed against foreigners by the inhabitants of a state, claiming that it has no power to prevent such acts, and they are purely matters of state cognizance. Nations, however, whose subjects have been the victims of such attacks can look to none but the national government for redress, and have insisted that it was the duty of the federal government to make reparation. It may be that the decision in the Montijo case will be regarded at some time as an embarrassing precedent, when the contention is made that the federal government is liable in no sense for an act committed within a state against foreigners possessing treaty rights. § 495. Department of State not a court of error.-Errors in the legal proceedings not amounting to a denial of justice are not a ground for diplomatic intervention. As stated in 1886 by Mr. Bayard, Secretary of State, in a letter addressed to Mr. Morrow, member of Congress: "When application is made to this department for redress for the supposed injurious actions of a foreign judicial tribunal, such application can only be sustained on one of two grounds: (1) Undue discrimination against the petitioner as a citizen of the United States in breach of treaty 28 2 Moore's Int. Arb., 1439. |