this writ becomes a powerful weapon against the victim. To obtain a change of venue, under Latin-American procedure, is always difficult, and quite impossible after the judge has obtained jurisdiction, - which he claims to have obtained by merely issuing the writ. Appeals are extremely slow. It may thus happen that a man is held by arraigo for six months or a year on the most absurd pretext, exposed to every humiliation and to the hardships and sufferings inevitable under such conditions.

CHAPTER XII

CONTROVERSIES BETWEEN AMERICAN CITIZENS AND LATIN-AMERICAN EXECUTIVES REGARDING CON

I'

CESSIONS

T is an elementary principle of the common law that no man can be a judge in his own cause.

"The learned wisdom of enlightened nations and the unlettered ideas of ruder society are in full accordance upon this point." (Washington Ins. Co. v. Price, 1 Hopk. Ch. (N. Y.) 1.)

Judge Cooley, in his "Constitutional Limitations," at page 412, says: "To empower one party to a controversy to decide it for himself is not within the legislative authority, because it is not the establishment of any rule of action or decision."

The "American and English Encyclopedia of Law," 1st ed., Vol. XII, p. 41, lays down the doctrine that this principle of disqualification is to have no technical or strict construction, but is to be broadly applied to all classes of cases in which one is called upon to decide the rights of his fellow-citizens.

Thus a judge is disqualified to grant an injunction which would protect his own as well as plaintiff's property. (North Bloomfield, etc. Min. Co. v. Keyser, 58 Col. 315.) There are a vast number of decisions that the acts of a judge are not merely voidable, but void, when he is within the prohibition of self-interest.

"The effect of disqualifying interest is not confined to the judge interested; for if he take part, the action of the whole court is wrong, even though a majority be left without his vote. The word 'interest,' in a disqualifying statute, was construed by the court to mean pecuniary interest. . . . The most minute interest is sufficient to disqualify, unless the objection be removed by some positive provision of law to that effect. Accordingly, at common law, citizens who were taxpayers were incompetent to sit as judges in cases in which their own town or municipality was a party at interest.

"In the absence of statute any interest is enough to disqualify. And as has been indicated, the legislature would no doubt be unable to empower a judge to act in a case in which he had a direct, immediate, substantial interest. (Am. and Eng. Encyclopedia of Law, 1st ed., Vol. XII, pp. 46-47.)

I

This elementary principle of common law, relevant though it is, is yet wholly ignored by our State Department in passing on the rights and interests of American citizens and corporations in the LatinAmerican dictatorships.

The judiciary in Central or South America is not a co-ordinate part of the government; even the State Department at Washington would admit this. In a Latin-American country the executive, with the army at its back, is, in fact and theory, the supreme power. The judicial tribunals of Latin America have no army with which to enforce their decisions; the judges of the courts are appointed by the military executive and are entirely controlled by the appointing power, and, as is well known, are merely superior clerks to the supreme military chief.

Elsewhere in this work it is shown that almost every business in a Latin-American country is founded upon a concession from the executive. This concession is in the nature of a contract between the executive power of the country and the private individual, corporation, or partnership wishing to transact business there; and it is under the terms of this contract that the individual, corporation, or partnership in question is enabled to proceed.

The controversies arising between foreign citizens and the LatinAmerican dictatorships generally relate to these concessions. In the overwhelming majority of cases the so-called President of the Republic seeks to destroy the concession, or to disregard its principal provisions, after the foreigner has in good faith invested his money in the country, in the mistaken notion that he could rely upon the integrity of the executive power, the other party to the compact.

As soon as the supreme military chief has concluded that the funds of the foreigner are invested so "hard and fast" that it would be difficult if not impossible for him to extricate them, the period of spoliation and extortion begins. Usually the concession is declared null and void by the executive, or by some of his henchmen styled judges, or changes are forced upon it so vital as to render it entirely different from and far less valuable than the instrument on the strength of which the money had been invested.

It may be that the exasperated foreign investor, tired of paying endless levies, has stood firm in his resolution not to yield to further extortion, and that in consequence his property has been confiscated by or forfeited to the so-called government. When the case has reached this stage (most of them do reach it sooner or later), the quandary of the investor or the investor's manager, in the effort to preserve or retrieve the property, has become serious. To appeal to the local "courts" would be to appeal from the Dictator to his

clerks. This bald statement of the proposition suffices to expose its futility and absurdity.

If the foreign investor be a citizen of the United States, he will probably appeal to our State Department. There he will usually be informed that the "sovereign rights" of the country of his investment are on a parity with those of the United States, and that its socalled tribunals are entitled to as full credit as are the courts of England or France. To the country of his investment he must return; there must he sue for his rights.

What cruel irony, what shallow mockery of law and equity, is this? Our citizen is told to place his head in the lion's mouth, to play a game against his opponent's loaded dice; he is told to lay his case before a so-called tribunal whereof his antagonist is also juror, secretary, bailiff, janitor, and judge!

II

Let us now consider the matter as if the judiciary of this LatinAmerican dictatorship were in fact as distinct and co-ordinate a department of the government as is the judiciary in the United States. Let us consider if even under those circumstances our citizen should be relegated to this judiciary.

When the supreme executive of a nation is a party to a contract which he afterward refuses to abide by or repudiates, what steps can be taken legally to force him to live up to his obligations? Under the Civil Law the aggrieved party would have to bring an action in amparo (i. e., asking the protection of the court against the wrong). Amparo is of the nature of injunction and mandamus combined; it commences with a petition for a mandamus to compel the chief executive to respect the provisions of his contract, and for an injunction to restrain him from unlawful interference with the property of the complainant.

In the United States, though here the judiciary is of course absolutely independent, a distinct and co-ordinate part of the government, the problem would still be one of surpassing difficulty. Would a Circuit Court of the United States, or would even our Supreme Court, issue an injunction or a mandamus against the President of the United States? No such extraordinary authority has ever been assumed by our courts. Various attempts have been made to invoke the writ of mandamus against the President of the United States, but our Supreme Court has in every instance declined to entertain such a proceeding; even in the case of subordinate executive officers our courts proceed with extreme reluctance, and then only in those cases in which the act complained of is ministerial and not executive. As early as 1803 the United States Supreme Court had to consider, in the case of Marbury v. Madison, the question as to the power of the

judiciary to coerce the Executive Department of the government. In that case Marbury claimed to have been appointed justice of the peace of the county of Washington. The appointment had been approved by the Senate, and the commission, having been signed by the President, had been delivered to the Secretary of State merely to receive the official seal. Marbury claimed that Secretary Madison refused to deliver up the commission. The Supreme Court, holding that Mr. Madison's duties were wholly ministerial, said that the proper remedy was a writ of mandamus, but added: "The intimate political relation subsisting between the President of the United States and the heads of departments necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate, and excites some hesitation with respect to the propriety of entering into such investigation.'

In this particular case the court mentioned other duties which it would construe to be similarly of a ministerial character, such as "to record a commission, or a patent for land, which has received all the legal solemnities, or give a copy of such record"; but the court also expressly declared: "Where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, it is again repeated that any application to a court to control in any respect his conduct would be rejected without hesitation."

The Supreme Court of the United States has never issued a mandamus against the President, and but once has that writ been issued against the head of a department. The Judiciary has refused to interfere to compel the Secretary of the Treasury to pay an officer of the United States his salary for the unexpired term of his office, from which he had been removed by the President; or to compel the Secretary of the Navy to pay pensions and arrears under a special act to one who had already claimed them under a general act; or to compel the Secretary of State to pay over the interest that had accumulated on a fund while it remained in his hands for final distribution; or to compel the Secretary of the Treasury to allow the defendants a credit in a case where the United States had brought suit against the defendant and in that suit had been adjudged indebted to said defendant; or to compel the Commissioner of Patents to examine into an application for the reissue of a patent when he had already decided that the applicant did not have such interest as would entitle him to reissue; or to compel the Secretary of the Interior and the Commissioner of the Land Office to cancel an entry for land or issue patents therefor. (See American and English Encyclopedia of Law, 1st ed., Vol. XII, pp. 254-255, and cases cited.)

"The principles established by the Supreme Court of the United States have determined the action of the respective State tribunals. Here also the cases are few wherein the right has been exercised. As regards the governor