THE ESTABLISHMENT OF A JUDICIAL SYSTEM [§ 219

and as one for solution solely through the diplomatic channel.1 Should, however, the extent of the assertion of jurisdiction of a State through the medium of its own judicial agency become with its consent the subject of adjudication before an international tribunal, the decision would necessarily rest upon the requirements of the law of nations.

Save for the general obligation to conform to the practices of civilized powers, a State is unfettered in its choice of forms of procedure or in the adoption of a particular code. No right of supervision or dictation is lodged abroad. Moreover, the action of the courts in interpreting the local law and in applying rules of procedure is not regarded as subject to revision by any external authority. Thus a State may in fact decline to permit the correctness of the decision of its own tribunals, or the reasonableness of the judicial enforcement of a particular rule to become the subject of diplomatic discussion. It must be clear, however, that

1 Cockburn, C. J., in Regina v. Keyn, 2 Ex. D. 63, 160, quoted in Holland, Studies in International Law, 199, note; Mortensen v. Peters, Am. J., I, 526; Simeon E. Baldwin: "The Part Taken by Courts of Justice in the Development of International Law", Yale Law J., X, 1; John C. Gray, The Nature and Sources of the Law, 122.

See, also, Marshall, C. J., in Foster and Elam v. Neilson, 2 Pet. 253, 307, 309; Jones v. United States, 137 U. S. 202; In re Cooper, 143 U. S. 472, 502-505; Pearcy v. Stranahan, 205 U. S. 257.

2 Mr. Webster, Secy. of State, to the President, Dec. 23, 1851, on Thrasher's case, 6 Webster's Works, 521, 528, Moore, Dig., II, 88; Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé d'Affaires, Jan. 10, 1854, MS. Inst. Austria, I, 89, Moore, Dig., II, 88; Mr. Marcy, Secy. of State, to Mr. Starkweather, Minister to Chile, Aug. 24, 1855, MS. Inst. Chile, XV, 124, Moore, Dig., II, 90; Mr. Seward, Secy. of State, to Mr. Burton, Minister to Colombia, No. 137, April 27, 1866, Dip. Cor. 1866, III, 522, 523, Moore, Dig., VI, 660; Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, April 25, 1882, For. Rel. 1882, 230, 232-234, Moore, Dig., II, 97.

3 "It cannot 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 application 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 willful denial of justice or a deliberate perversion of judicial forms for the purpose of oppression." Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé at Vienna, April 6, 1855, MS. Inst. Austria, I, 105, Moore, Dig., II, 90. See, also, Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, April 25, 1882, For. Rel. 1882, 230, 232-234, Moore, Dig., II, 97; Mr. Bayard, Secy. of State, to Mr. Brook, Jan. 7, 1887, 162 MS. Dom. Let. 508, Moore, Dig., II, 92; Mr. Olney, Secy. of State, to Mr. Chilton, M. C., June 5, 1896, 210 MS. Dom. Let. 496, Moore, Dig., II, 94.

See the position of Germany respecting the attitude of Mr. Olney, Secy. of State, in 1895, relative to the prosecution of Louis Stern at Kissingen, For. Rel., 1895, I, 454-488, especially Mr. Olney, Secy of State, to Baron Thielmann, German Ambassador, Sept. 26, 1895, id., 469, and Baron Thielmann, German Ambassador, to Mr. Olney, Secy. of State, Oct. 1, 1895, id., 479. For an abstract of the correspondence, cf. Moore, Dig., II, 93–94.

the courts may prove to be the instrumentality through which a State either denies justice or directly perpetrates injustice upon foreign powers or their nationals. Under such circumstances, the nature of what takes place is not disguised or altered by reason of the judicial agency which commits the wrong. In States where the courts are independent of the political department of the government, there is strongest reason to withhold diplomatic discussion of questions which have become the subject of judicial inquiry, until at least there has been a final adjudication resulting in a decision deemed by a foreign State to be at variance with international law or the terms of a treaty.1

Although a resident alien be prosecuted criminally according to a system possessing certain "harsh features" and deficient in many safeguards for the security of the accused,2 without trial by jury or the privilege of the writ of habeas corpus, and although the judicial proceedings be brief and summary, and instigated upon suspicion rather than upon proper cause alleged under oath, there may still be, in the particular case, no solid ground for complaint on the part of his government.4 A State must, therefore, be normally reluctant to interpose in an endeavor to interfere with the administration of justice as applied impartially to its nationals in a foreign country.5 On the other hand, a State will be quick to protest if the judicial system of another works palpable injustice to such individuals, either as a natural incident of procedure, or as a direct effect of adjudications.

Instances are frequent and varied. The application to an alien of local laws sharply at variance with treaty stipulations contracted for his benefit, will arouse complaint; likewise any discrimination

1 Mr. Adee, Acting Secy. of State, to the Italian Ambassador, No. 891, Oct. 1, 1910, For. Rel. 1910, 664, 670; Mr. Lansing, Secy. of State, to the German Ambassador, No. 2217, April 7, 1916, with reference to the case of the Appam, American White Book, European War, III, 342, 343–344.

2 Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé d'Affaires, April 6, 1855, MS. Int. Austria, I, 105, Moore, Dig., II, 89.

3 Report of Mr. Webster, Secy. of State, to the President, Dec. 23, 1851, on Thrasher's case, 6 Webster's Works, 521, 528, Moore, Dig., II, 88.

4 Mr. Marcy, Secy. of State, to Mr. Richter, Feb. 21, 1854, 42 MS. Dom. Let. 231, Moore, Dig., II, 90.

5 Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé d'Affaires, April 6, 1855, MS. Inst. Austria, I, 105, Moore, Dig., II, 89; Mr. Forsyth, Secy. of State, to Mr. Davee, Feb. 7, 1838, 29 MS. Dom. Let. 330, Moore, Dig., VI, 652.

Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, April 25, 1882, For. Rel. 1882, 230, 232-234, Moore, Dig., II, 97.

7 Mr. Marcy, Secy. of State, to Mr. Fay, Nov. 16, 1855, MS. Inst. Switzerland, I, 39, Moore, Dig., VI, 655; Case of Dr. M. A. Cheek against Siam,

THE ESTABLISHMENT OF A JUDICIAL SYSTEM [$ 219

3

against him on account of his nationality, especially if he is subjected to criminal prosecution. A perversion of the judicial system,2 manifested by the institution of criminal proceedings in order to oppress an alien, is not likely to be tolerated by the State to which he belongs. If his trial is conducted with gross injustice, if the local law be violated, if, while in custody he be accorded treatment harsh beyond measure, or if he is held or imprisoned on account of the commission of an act not forbidden as a crime by the local law, interposition is to be anticipated, unless local remedies afford a complete means of redress and are within the reach of the victim. Whenever the government of his own State has solid reason to believe from evidence before it that a denial of justice has occurred, it is justified in denying the pretension of the foreign prosecuting State that it may set up the judgment of its own tribunals as a bar to the international claim."

Moore, Arbitrations, II, 1899-1908; Mr. Bayard, Secy. of State, to Mr. Brook, Jan. 7, 1887, 162 MS. Dom. Let. 508, Moore, Dig., II, 92; Mr. Blaine, Secy. of State, to Mr. O'Connor, Nov. 25, 1881, 139 MS. Dom. Let. 663, Moore, Dig., II, 96.

I Report on Thrasher's Case by Mr. Webster, Secy. of State, to the President, Dec. 23, 1851, 6 Webster's Works, 530, Moore, Dig., VI, 698; Opinion of Dr. Francis Wharton, Solicitor of the Dept. of State, in the case of William A. Davis v. Great Britain, 1885, cited in note of Mr. Day, Acting Secy. of State, to Messrs. Lauterbach, Dittenhoefer & Limburger, April 6, 1898, 227 MS. Dom. Let. 228, Moore, Dig., VI, 699; Mr. Bayard, Secy. of State, to Mr. Copeland, Feb. 23, 1886, 159 MS. Dom. Let. 138, Moore, Dig., VI. 699; Case of C. A. Van Bokkelen, Moore, Arbitrations, II, 1807-1853, Moore, Dig., VI, 699.

Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé at Vienna, April 6, 1855, MS. Inst. Austria, I, 105, Moore, Dig., II, 90.

3 Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, April 25, 1882, For. Rel. 1882, 230, 232-234, Moore, Dig., II, 97; Mr. Marcy, Secy. of State, to Mr. Clay, Minister to Peru, No. 30, May 24, 1855, MS. Inst. Peru, XV, 159, Moore, Dig., VI, 659; Mr. Bayard, Secy. of State, to Mr. Jackson, Minister to Mexico, Sept. 7, 1886, MS. Inst. Mexico, XXI, 574, Moore, Dig., VI, 680; Mr. Evarts, Secy. of State, to Mr. Fairchild, Minister to Spain, Jan. 17, 1881, MS. Inst. Spain, XVIII, 591, Moore, Dig., VI, 656.

4 Mr. Evarts, Secy. of State, to Mr. Langston, Minister to Haiti, No. 23, April 12, 1878, MS. Inst. Hayti, II, 136, Moore, Dig., VI, 656; Mr. Evarts, Secy. of State, to Mr. Foster, Minister to Mexico, April 19, 1879, MS. Inst. Mexico, XIX, 570, Moore, Dig., VI, 696; Mr. Forsyth, Secy. of State, to Mr. Welsh, March 14, 1835, 27 MS. Dom. Let. 261, Moore, Dig., VI, 696.

Case of Dr. M. A. Cheek v. Siam, Moore, Arbitrations, II, 1899-1908, Moore, Dig., VI, 656.

See, for example, Case of C. A. Van Bokkelen, Moore, Arbitrations, II, 1807-1853, Moore, Dig., VI, 699; also Claims, Denial of Justice, infra, § 281-282.

7 Note of Dr. Francis Wharton, Wharton, Dig., II, 672, Moore, Dig., VI, 694; Report of Mr. Bayard, Secy. of State, to the President, Feb. 26, 1887, S. Ex. Doc. 109, 49 Cong., 2 Sess., Moore, Dig., VI, 667; also, Claims, Denial of Justice, infra, § 283-285.

C

The Exercise of Jurisdiction within the National Domain

$220. On Land.

(1)

On land, the territorial sovereign exercises exclusive jurisdiction throughout its domain. By no process issuing from any other authority may individuals there be lawfully held in restraint,2 save under exceptional circumstances which will be later observed. By no command emanating from a foreign power may acts which contravene the local law be rendered lawful. Thus the alien who in obedience to instructions from his own State violates that law, is not exempt from prosecution.3 The deserter from a foreign ship, as well as the fugitive from the justice of a foreign country,5 find themselves safe from the strong arm of the pursuer unless by treaty or otherwise the State consents to the exercise of foreign authority within its limits. Again, the officer or seaman of a foreign vessel is, when ashore, subject to the local law.

4

It should be observed that the courts of a State, and notably those of the United States, will not sit in judgment upon the acts of the government of another State committed within its own territory. It is declared that "redress of grievances by

1 Marshall, C. J., in Schooner Exchange v. McFaddon, 7 Cranch, 116, 136.

2 Mr. Calhoun, Secy. of State, to Mr. Everett, Aug. 7, 1844, and Sept. 25, 1844, MS. Inst. Great Britain, XV, 211 and 23, respectively, Moore, Dig., II, 225.

3 Compare dicta in Horn v. Mitchell, 223 Fed. 549, 552; also Mr. Webster, Secy. of State, to Lord Ashburton, Aug. 6, 1842, in relation to McLeod's Case, Webster's Works, VI, 301, 302-303, Moore, Dig., II, 29. But see statement of Senator Calhoun, in the Senate, June 11, 1841, Calhoun's Works, III, 618, Moore, Dig., II, 26.

Exemptions from Jurisdiction, Foreign Military Forces, infra, § 247-248. "No command of a foreign sovereign to its subject can legalize a wrong committed elsewhere." Learned Hand, J., in Earn Line S. S. Co. v. Sutherland S. S. Co., 254 Fed. 126, 130.

4 Mr. Seward, Secv. of State, to Mr. Stanton, Secy. of War, April 15, 1863, 60 MS. Dom. Let. 231, Moore, Dig., II, 370.

5 Mr. Rush, Secy. of State, to Mr. Hyde de Neuville, April 9, 1817, MS. Notes to Foreign Legations, II, 218, Moore, Dig.. IV, 245; Mr. Webster, Secy. of State, to Mr. d'Argaïz, June 21, 1842, Webster's Works, VI, 399, 405, Moore, Dig., IV, 246; Mr. Buchanan, Secy. of State, to Mr. Wise, Sept. 27, 1845, MS. Inst. Brazil, XV, 119, Moore, Dig., IV, 246; United States v. Rauscher, 119 U. S. 407, 411.

Mr. Randolph, Secy. of State, to Mr. Hammond, July 23, 1794, 7 MS. Dom. Let. 55, Moore, Dig., II, 585. See, also, United States v. Thierichens, 243 Fed. 419, where the commander of an interned German war vessel who was charged with having smuggled from the vessel property into the United States (when the United States was a neutral), and with having violated the so-called Mann Act of June 25, 1910, was held to be subject to criminal prosecution.

APPLICATION OF THE LOCAL LAW

[§ 221

reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves." 1

(2)

Ports and Bays. Foreign Merchant Vessels

(a)

§ 221. Application of the Local Law.

The exercise by a State of jurisdiction over its ports and bays becomes a matter of international concern in so far as it is applied to foreign merchant vessels. Over such ships and their occupants the territorial sovereign may assert jurisdiction.2 Local officials may go on board and arrest persons charged with the commission of offenses within the territorial limits of the State, whether on such

1 Underhill v. Hernandez, 168 U. S. 250, 252. In that case it appeared that in 1892 the defendant General Hernandez had been a commander of certain revolutionary forces in Venezuela which achieved success, and became formally recognized by the United States as the legitimate government of Venezuela. The plaintiff, an American citizen, who had been engaged in the construction of a waterworks system for the city of Bolivar, had been denied a passport to leave that city, by General Hernandez, who had assumed command thereof. This action was brought against the latter in New York to recover damages for the detention caused by reason of his refusal to grant the passport, for alleged confinement of Underhill to his own house, and for certain alleged acts by the soldiers of Hernandez' army. The Supreme Court of the United States agreed with the conclusion of the Circuit Court of Appeals that "the acts of the defendant were the acts of the Government of Venezuela, and as such are not properly the subject of adjudication in the courts of another government."

See, also, the opinion of Mr. Justice Holmes, in the case of American Banana Co. v. United Fruit Co., 213 U. S. 347, 357-358; opinion of Mr. Justice Clarke, in Oetjen v. Central Leather Co., 246 U. S. 297; Hewitt v. Speyer, 248 Fed. 590, s.c. 250 Fed. 367.

2 Mr. Buchanan, Secy. of State, to Mr. Wise, Minister to Brazil, Sept. 27, 1845, MS. Inst. Brazil, XV, 119, Moore, Dig., II, 272; Mr. Everett, Secy. of State, to Mr. Ingersoll, Feb. 17, 1853, MS. Inst. Great Britain, XVI, 192, Moore, Dig., II, 273; Mr. Marcy, Secy. of State, to Mr. Keenan, Consul at Hong Kong, April 14, 1856, 21 Disp. to Consuls, 567, Moore, Dig., II, 288; Mr. Seward, Secy. of State, to Sir F. Bruce, British Minister, March 16, 1866, Dip. Cor. 1866, I, 231, Moore, Dig., II, 292; Opinion of Mr. Taft, Atty.Gen., 15 Ops. Attys.-Gen., 178; Mr. Frelinghuysen, Secy. of State, to Mr. Randall, M. C., March 14, 1884, 150 MS. Dom. Let. 276, Moore, Dig., II, 278; Mr. Bayard, Secy. of State, to Mr. Hall, Minister to Central America, March 12, 1885, For. Rel. 1885, 82, 83, Moore, Dig., II, 278. See, also, Wildenhus's Case, 120 U. S. 1; Article VI I of Resolution of the Institute of International Law, 1894, Annuaire, XIII, 330; C. N. Gregory, "Jurisdiction over Foreign Shins in Territorial Waters", Mich. Law Rev., II, 333; P. Fedozzi, "Des délits à bord des navires marchands dans les eaux territoriales étrangères", Rev. Gén. IV, 202; Note, Harv. Law R., XXIV, 489; United States v. Bull, Am. J., V, 242 (Phil. Is. Sup. Ct. Jan. 15, 1910); A. H. Charteris, The Legal Position of Merchantmen in Foreign Ports and Waters," British Year Book of Int. Law, 1920–1921, 45.