WHEN LOCAL REMEDIES HAVE BEEN SUPERSEDED [§ 284

It will be seen that oftentimes when an individual has been wrongfully arrested and held in custody contrary to the local law, interposition follows, not merely for the purpose of securing redress for injuries already sustained, but also to prevent the perpetration of obvious and irreparable wrong incidental to prolonged detention, and which the prisoner, unaided by his own government, would be helpless to prevent.1

(b)

§ 284. When Local Remedies Have Been Superseded. 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. A typical case was that of an American Consul, Mr. Myers, at San Salvador. In 1890, in the course of a revolution, governmental troops violated the American Consulate, destroying property belonging both to the United States and to the Consul, and injuring the person of the latter. After having agreed to pay for the destruction of the property of the United States and of the Consul, the Salvadorean Government declared in substance that the claim could not be regarded as fixed in amount and justifying payment on demand until judicial proceedings appropriate to that end had been had in the local courts. In response, Mr. Blaine, Secretary of State, maintained that the question whether an indemnity was due had been adjusted by the agreement, that the execution of the agreement was not, therefore, a matter for the consideration of the local courts, and that the effect thereof was to render any issue as to the amount of damages a matter for diplomatic adjustment.3

1 Case of Pflaum, Moore, Dig., VI, 771, and documents there cited; Van Bokkelen's Case, under protocol between the United States and Haiti, of May 24, 1888, Moore, Arbitrations, II, 1807-1853, Moore, Dig., VI, 699 and 772.

2 The language in the text is that in Moore, Dig., VI. 682, citing opinion of Mr. Akerman, Attorney-General, Dec. 28, 1871, in the matter of the New Granadian Passenger-Tax, 13 Ops. Attys.-Gen., 547.

Although the matter of reparation for the personal injuries sustained by Mr. Myers was not covered by the agreement, it was upon general principles" regarded by Mr. Blaine "as one likewise to be determined solely by the agreement of the two governments." Mr. Blaine, Secy. of State, to Mr. Shannon, Minister to Central America, April 6, 1892, For. Rel. 1892, 34, 36, Moore, Dig., VI, 682-684. See, also, concerning the same case, For. Rel. 1892, 37-43, 49-51, and id., 1893, 174-180, 181, 182, 184.

Cf., also, award of Hon. Wm. R. Day, Arbitrator, in the matter of the Claims of John D. Metzger & Co. v. The Republic of Haiti, under protocol of Oct. 18, 1899, For. Rel. 1901, 262, Moore, Dig., VI, 689.

After a claimant has appealed to his own State for protection, and it has interposed in his behalf, there is removed from him, in a domestic sense, so far as his own government is concerned, any duty to exhaust local remedies. Nevertheless the fact of interposition is not decisive of the propriety of such action, or of the correctness of conduct on the part of the aggrieved State, in not requiring its own citizen to have recourse to the courts of the respondent.1

Where the claim is contractual, and an agreement for its adjustment has been made, either with the individual claimant, or with his government, the matter is thereafter regarded as one of an international character, justifying governmental action if the agreement is not performed.2

(c)

§ 285. When Unjust Discriminations Are Applied.

If the territorial sovereign subjects the resident alien to a discrimination believed to be unjust, interposition is to be anticipated. That a denial of justice takes this form of national delinquency does not necessarily serve, on principle, to excuse the failure to exhaust local remedies. Such a discrimination usually,

1 In connection with the Bluefields incident of 1899, Mr. Hill, Acting Secy. of State, declared in a communication to Mr. Merry, Minister to Nicaragua, Sept. 29, 1899: "The Government of the United States does not admit the competency of any Nicaraguan court or tribunal to determine the rights of American citizens in Nicaragua when they have appealed to their Government for protection, and when it has taken up and made their cause its own." For. Rel. 1900, 809, Moore, Dig., VI, 685. It should be observed that this language had reference to a situation where the Governments of Nicaragua and the United States had agreed the previous year, that the issue, which related to the second payment by American merchants of certain duties, should be adjusted if possible by the two Governments.

2 Lord John Russell, British For. Secy., to Sir C. L. Wyke, British Minister, March 30, 1861, Brit. and For. State Pap., LII, 237, 238, Moore, Dig., VI, 719; Mr. Trail, Chargé at Rio de Janeiro, to Mr. Bayard, Secy. of State, Jan. 21, 1887, For. Rel. 1887, 54, 55, Moore, Dig., VI, 720; Edwin M. Borchard, "Contractual Claims in International Law", Columbia Law, R., XIII, 457, 470, citing the foregoing authorities.

See, also, Mr Frelinghuysen, Secy. of State, to Mr. Phelps, Minister to Great Britain, March 30, 1883, MS. Inst. Great Britain, XXVI, 609, Moore, Dig., VI, 711, with relation to the position of France respecting its convention of July 29, 1864, with Venezuela, for the payment of 600,000 francs in full settlement of all claims against the latter.

Mr. Fish, Secy. of State, to Mr. White, Jan. 7, 1874, MS. Inst. Argentine Republic, XVI, 57, Moore, Dig., VI, 698; Opinion of Dr. Wharton, Solicitor of the Dept. of State, in case of W. A. Davis v. Great Britain, 1885, cited in 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.

ARREST AND IMPRISONMENT

[§ 286

however, serves either to thwart the effort to invoke judicial aid, or to shatter confidence in the local judicial system. Hence, the situation commonly resembles one where justice is deemed to be wanting.

Whenever the discrimination is considered unjust because deemed to be in violation of the terms of a treaty, special grounds for diplomatic protest arise. As the breach of the agreement is a wrong peculiarly directed against another contracting party, and is likely to be applied generally to its nationals, the claim may be fairly regarded as a public one. In so far as it is based upon the interpretation of a treaty, it raises an issue not believed to be capable of final adjustment by any domestic tribunal; for the foreign contracting party may always rightly contend that it is not bound by the opinions of judges to whom it has not consented to refer its cause.2

f

Claims Arising from Acts Primarily Attributable to the Authorities of a State

(1)

§ 286. Arrest and Imprisonment.

It has been seen that in the enactment of criminal laws, and in their application without discrimination to aliens and citizens alike, the ultimate test of the propriety of the conduct of the territorial sovereign is the international standard which civilized States have fixed.3 It has also been observed that that standard is such as to enable each State to enjoy largest freedom in the administration of criminal justice. For that reason the rigor with which the territorial sovereign applies to aliens its criminal code will rarely be looked upon as decisive of internationally illegal conduct, when it appears that the proceedings are in every

1 Report of Thrasher's Case by Mr. Webster, Secy. of State, to the President. Dec. 23, 1851, 6 Webster's Works, 530, Moore, Dig., VI, 698.

2 See Operation and Enforcement of Treaties, Province of the Courts in the United States, infra, § 526.

3 Duties of jurisdiction, supra, §§ 266–267; also Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, Minister to England, April 25, 1882, For. Rel. 1882, 230-234, Moore, Dig., VI, 275–277.

4 Mr. Gresham, Secy. of State, to Mr. Morse, May 31, 1893, 192 MS. Dom. Let. 184, Moore, Dig., VI, 282. See, also, Mr. Root, Secy. of State, to Minister Furniss, May 4, 1906, concerning claim of M. J. Kouri, For. Rel. 1906, II, 871.

way regular.1 Even when an alien prosecuted in good faith and with careful regard for his rights of defense is, nevertheless, convicted of a crime of which he is innocent, the result does not necessarily indicate a denial of justice.2 Nor does the sustaining of the conviction by an appellate court of last resort indicate conclusively that the territorial sovereign has abused its right of jurisdiction or violated any principle of international law. The reluctance in such a case on the part of the State of the accused to interpose in his behalf for the purpose of either securing his release or of obtaining an indemnity, is due to the absence of internationally illegal conduct in the matter of prosecution The case differs from that where, notwithstanding delinquency on the part of the territorial sovereign, a foreign State deems it necessary to refrain from interposition until the accused shall have endeavored to obtain redress through domestic channels.

At any stage of his prosecution the accused may, however, be subjected to what may be regarded as internationally illegal treatment. This is obvious when, for example, the provisions of the local law are disregarded, or a treaty with the State of the accused is violated,5 or any requirement of the international standard, such as that forbidding the cruel or arbitrary treatment of prisoners, or the

6

1 Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé, at Vienna, April 6, 1855, MS. Inst. Austria, I, 105, Moore, Dig., VI, 275.

"Detention of witnesses to prevent their disappearance and insure their giving testimony when called for is common in the jurisprudence of all countries, and special provisions exist in those where the principles of the civil law are in force relative to the detention au secret of an accused person; but such detention should be reasonable and not unduly prolonged or harshly enforced, and is merely a temporary measure in the administration of justice." Mr. Frelinghuysen, Secy. of State, to Mr. Langston, Minister to Haiti, No. 324, Jan. 20, 1885, For. Rel. 1885, 490, Moore, Dig., VI, 773.

2 Mr. Frelinghuysen, Secy. of State, to Baron Schaeffer, Austrian Minister, June 28. 1882, MS. Notes to Austria, VIII, 338, Moore, Dig., VI, 765. See, also, Mr. Marcy, Secy. of State, to Mr. Starkweather, Aug. 24, 1855, MS. Inst. Chile, XV, 124, Moore, Dig., VI, 264; Same to Chevalier Bertinatti, Sardinian Minister, Dec. 1, 1856, MS. Notes to Italy, VI, 178, Moore, Dig., VI, 659; Thornton, Umpire, in Benjamin Burn Case, Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, III, 3140.

3 Mr. Gresham, Secy. of State, to Mr. Hevner, June 10, 1893, 192 MS. Dom. Let. 296, Moore, Dig., VI, 282.

Mr. Foster, Secy. of State, to Mr. Terres, Chargé at Port au Prince, telegram, Dec. 2, 1892, For. Rel. 1893, 358, concerning Case of Frederick Mevs, also other documents, id., 355-382, Moore, Dig., VI, 767-768. See, also, case of the unlawful treatment of W. H. Argall by Guatemalan authorities, For. Rel. 1894, 312, id., 1895, II, 771-775, Moore, Dig., VI, 768; Case of Charles Lillywhite, subjected to false imprisonment and deportation from New Zealand to England, For. Rel. 1901, 231–236, Moore, Dig., VI, 768.

Case of C. A. Van Bokkelen imprisoned in Haiti, Moore, Arbitrations, 1807-1853.

Mr. Frelinghuysen, Secy. of State, to Mr. Soteldo, Venezuelan Minister,

ARREST AND IMPRISONMENT

[§ 286 refusal to hear testimony in their behalf, is unheeded.1 If the Department of State believes that for any of the foregoing reasons, an American citizen iş being wrongfully held in restraint of his liberty, or subjected to ill-treatment, his release will be demanded. Thus in the case of A. K. Cutting, an American citizen, held in custody in Mexico in 1886, the United States was able to show that the criminal prosecution was an abuse of the right of jurisdiction and so contrary to international law, that the judicial proceedings preliminary to imprisonment were palpably unjust, and that the prisoner "was subjected to pains and depredations which no civilized Government should permit to be inflicted on those detained in its prisons." Mr. Bayard, Secretary of State, therefore, demanded (without success, however), the "immediate release" of the prisoner.2

More recently, in the case of Mr. W. O. Jenkins, the American Consular Agent at Puebla, who, after having been kidnaped by bandits and held for ransom in October, 1919, was, after his

April 4, 1884, concerning Case of John E. Wheelock subjected to cruelty by an officer of justice of Venezuela in 1879, For. Rel. 1884, 599, Moore, Dig., VI, 321; also concerning same case, For. Rel. 1885, 932-934; Mr. Evarts, Secy. of State, to Mr. Baker, Minister to Venezuela, Oct. 15, 1880, For. Rel. 1880, 1041, 1043, Moore, Dig., VI, 769; see, also, same to Mr. Langston, Minister to Haiti, No. 23, April 12, 1878, MS. Inst. Haiti, II, 136, Moore, Dig., VI, 656.

Cf. Mr. Blaine, Secy. of State, to Mr. Dougherty, Chargé, No. 423, Dec. 29, 1890, MS. Inst. Mexico, XXII, 687, Moore, Dig., VI, 773, concerning the enforced labor of two American citizens accused but not convicted of crime in Mexico; also Mr. Root, Secy. of State, to Mr. Furniss, Minister to Haiti, Feb. 1, 1907, concerning ill-treatment of David A. Backer, For. Rel. 1907, II, 742.

1 Mr. Conrad, Acting Secy. of State, to Mr. Peyton, Chargé to Chile, Oct. 12, 1852, MS. Inst. Chile, XV, 93, Moore, Dig., VI, 274.

2 Mr. Bayard, Secy. of State, to Mr. Jackson, Minister to Mexico, telegram, July 19, 1886, For. Rel. 1886, 700, Moore, Dig., VI, 281.

Not infrequently where it has appeared that the accused was not unjustly or even unreasonably being prosecuted, the United States has encouraged its representatives to exert their influence, for light punishment if not the release of the prisoner, especially where the commission of the offense charged was marked by the absence of circumstances indicating moral turpitude on the part of the actor. Mr. Uhl, Acting Secy. of State, to Mr. Tripp, Minister to Austria-Hungary, Nov. 17, 1893, For. Rel. 1894, 26, Moore, Dig., VI, 766; Mr. Olney, Secy. of State, to Mr. Gould, June 29, 1896, 211 MS. Dom. Let. 149, Moore, Dig., VI, 766.

When an American citizen has been criminally prosecuted under circumstances creating suspicion as to the propriety or regularity of the conviction or punishment inflicted, the United States has not hesitated to request of the prosecuting State full information as to the conduct of proceedings. Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé at Vienna, April 6, 1855, MS. Inst. Austria, I, 105, Moore, Dig., VI, 283; Mr. Blaine, Secv. of State, to Mr. Ryan, Minister to Mexico, Feb. 16, 1891, MS. Inst. Mexico, XXIII, 38, Moore, Dig., VI, 284; Mr. Sherman, Secy. of State, to Mr. Sepulveda, American Chargé d'Affaires ad interim at Mexico, May 5, 1897, For. Rel. 1897, 396, Moore, Dig., VI, 285.