tested. The Portuguese Government, however, took the ground that it could deal only with the Portuguese company, through which the rights of the American and British investors must be asserted. With reference to this contention, the Marquis of Salisbury, in an instruction to the British minister at Lisbon, September 10, 1889, said: "Her Majesty's Government are of opinion that the Portuguese Government had no right to cancel the concession, nor to forfeit the line already constructed. "They hold the action of the Portuguese Government to have been wrongful, and to have violated the clear rights and injured the interests of the British [construction] company, which was powerless to prevent it, and which, as the Portuguese company is practically defunct, has no remedy except through the intervention of its own Government. "In their judgment, the British investors have suffered a grievous wrong in consequence of the forcible confiscation by the Portuguese Government of the line and the materials belonging to the British company, and of the security on which the debentures of the British company had been advanced; and that for that wrong Her Majesty's Government are bound to ask for compensation from the Government of Portugal." a Mr. Blaine, in instructions to Mr. Loring, American minister at Lisbon, November 8, 1889, said: "Upon full consideration of the circumstances of the case, this Government is forced to the conclusion that the violent seizure of the railway by the Portuguese Government was an act of confiscation which renders it the duty of the Government of the United States to ask that compensation should be made to such citizens of this country as may be involved. With respect to the case of Colonel MacMurdo, who is now represented by his widow, Katherine A. MacMurdo, his sole executrix and legatee, it is to be observed that by the terms of the concession the company which he was required to form was to include himself and that his personal liability was not merged in that of the company. But in any case, the Portuguese company, being without remedy and having now practically ceased to exist, the only recourse of those whose property has been conficated is the intervention of their respective governments. "In this relation it is proper to advert to the note of Senhor Barros Gomes of the 22d of June last, above referred to, in which he stated that there were two ways in which an arrangement could then be made with the Portuguese company which would protect the interests of the share and bondholders. One of these ways was the acceptance by the company of the tariff of rates proposed by the Government of the Transvaal; the other, a radical alteration of the concession, which a Parl. Pap., Cd. 5903, p. 58. would produce the same result. These statements have the effect of admitting the rights of the company, and of admitting at the same time that the reason for sacrificing them was the desire of the Portuguese Government to effect certain arrangements with the Government of the Transvaal. No offer was made to arbitrate with the company, as the concession required. No proposition of arrangement was held out, except such as involved a virtual annulment of the concession. And it was in fact annulled and the property acquired under it confiscated, because the company which Colonel MacMurdo organized under the concession was unable to perform an impossible condition subsequently imposed without the consent and against the protests of that company." By a protocol between the Governments of the United States, Great Britain, and Portugual, signed at Berne June 13, 1891, the three governments agreed to refer to a tribunal of arbitration, composed of three Swiss jurists, the determination of "the amount of the compensation due by the Portuguese Government to the claimants of the other two countries, in consequence of the rescission of the concession of the Lourenço Marques Railroad and the taking possession of that railroad by the Portuguese Government." An award of damages was made by the tribunal in 1899, and was duly paid by the Portuguese Government. Moore, Int. Arbitrations, II. 1865-1899. See, also, For. Rel. 1902, 848-852. In 1894 two contesting petitions were presented to the Government of Salvador for a concession for a term of years of the exclusive right to establish steam navigation in the port of El Triunfo, in Salvador. One of the petitions was presented by three citizens of Salvador; the other, by two citizens of the United States and two citizens of Salvador. The concession was granted on the latter petition, with the requirement that the grantees should form a corporation to take and operate it. October 25, 1894, a corporation was formed for that purpose under the laws of Salvador, called El Triunfo Company, Limited. The president and secretary of this company were citizens of the United States, and a majority of its shares was owned by the Salvador Commercial Company, a corporation under the laws of the State of California, which corporation was the moving projector and spirit in the enterprise of developing the port of El Triunfo under the concession. El Triunfo Company proceeded to the execution of the concession, and the port was duly opened and the development of traffic soon exceeded what had been expected. At the annual meeting of the shareholders of El Triunfo Company, in June 1898, a full board of directors was as usual elected. This board included, however, one of the competitors for the concession in 1894, who was at the same time elected vice-president of the company. At a subsequent meeting of the shareholders one of the Salvadorean directors resigned as director and secretary, and his place was filled by the other competitor of 1894. In September, 1898, while the president of the company was away on business, the vice-president usurped the office of president and called a meeting of directors at his own house. This meeting was attended by the vice-president and two other Salvadorean directors, who adopted a resolution removing the president and certain other officials and appointing themselves, respectively, president, secretary, and treasurer. Subsequently they had the company declared bankrupt and had a receiver appointed, who possessed himself of the books and papers of the company and withheld them from the American investors and their representatives. The Salvador Commercial Company and other American investors endeavored to have the bankruptcy proceedings against El Triunfo Company set aside and the former lawfully elected directorate reinstated in the management. To this end they called a meeting of the shareholders, but on the day following the call the President of Salvador issued a decree closing the port of El Triunfo against all importations. The Salvador Commercial Company presented to the Salvadorean Government a protest against this decree; but the Government disregarded it and granted to other persons, citizens of Salvador, a concession of the franchise covered by the concession of 1894. The owners of the American interests again protested, but their protest was not heeded, and they then appealed to the Government of the United States for protection. The Government of the United States intervened and demanded that the claim be submitted to arbitration. In reply to the Salvadorean contention that the case, as one affecting a Salvadorean corporation, was exclusively for the Salvadorean courts, the United States took the ground that the American citizens, who were the substantial owners of the enterprise, were proceeding by judicial methods when the President of Salvador issued his decree, and that this act of the President, whatever its motive, was indefensible from the standpoint of justice and private right, as well as of international law; and justified and would require, if the controversy was not otherwise satisfactorily adjusted between the parties, the intervention of the United States "and the payment of an adequate indemnity to the American stockholders." By a protocol concluded at Washington, December 19, 1901, the case was submitted to arbitration. A majority of the arbitrators, consisting of Sir Henry Strong, Chief Justice of Canada, and the Honorable Don M. Dickinson, concurred in an award of damages. In an accompanying opinion they declared that the bankruptcy proceedings were the result of a conspiracy, and were fraudulent. In the same opinion they said: "We have not discussed the question of the right of the United States under international law to make reclamation for these shareholders in El Triunfo Company, a domestic corporation of Salvador, for the reason that the question of such right is fully settled by the conclusions reached in the frequently cited and well-understood Delagoa Bay Railway arbitration." For. Rel. 1902, 859-873. For a full exposition of the grounds on which the United States intervened in this case, see For. Rel. 1902, 838-852. At page 846 Judge Penfield, Solicitor of the Department of State, in a report to Mr. Hay, Secretary of State, says: "While the Department does not dispute the contention that intervention by the Government of the United States would not be in entire accord with certain dicta expressed in the case of the Antioquia in respect of intervention in behalf of American stockholders in a foreign corporation, it is consistent with the actual grounds of that decision. But if all the reasons stated in that case against the right of intervention were to be accepted, even if intervention had been refused solely on the academic reasons given, the decision of this case would be controlled by the later decision of the Department in the case of the Delagoa Bay Railway." IV. GROUNDS OF INTERVENTION. 1. DENIAL OF JUSTICE. § 986. The ground of diplomatic intervention in behalf of individuals, for injuries in person or in property, is a denial of justice. Such a denial may proceed either from the act of the government itself or from the act of one of its agencies. “A sovereign can not be sued in his own courts without his consent. His own dignity, as well as the dignity of the nation he represents, prevents his appearance to answer a suit against him in the courts of another sovereignty. . Hence, a citizen of one nation, wronged by the conduct of another nation, must seek redress through his own Government. His sovereign must assume the responsibility of presenting his claim, or it need not be considered." United States v. Diekelman, 92 U. S., 520, 524; cited by Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, No. 134, June 23, 1886, MS. Inst. France, XXI. 330. "The rule by which all governments conduct themselves in cases where injury has been done by individuals of one to individuals of the other government is to leave the injured party to seek redress in the courts of the other. If that redress be finally denied, after due application to the courts, it then becomes a subject of national complaint." Mr. Jefferson, Sec. of State, to Mr. King, Dec. 7, 1793, 5 MS. Dom. Let. 388. When diplomatic intervention is asked to press payment for an injury sustained by a foreigner in this country, it is first to be considered “whether the party complaining has duly pursued the ordinary remedies provided by the laws, as was incumbent on him, before he would be entitled to appeal to the nation; and if he has, whether that degree of gross and palpable negligence has been done him by the national tribunals which would render the nation itself responsible for their conduct." (Mr. Jefferson, Sec. of State, to the At. Gen., Mar. 13, 1793, 5 MS. Dom. Let. 70.) "The courts of justice exercise the sovereignty of this country in judiciary matters; are supreme in these, and liable neither to control nor to opposition from any other branch of the government." (Mr. Jefferson, Sec. of State, to Mr. Genet, Sept. 9, 1793, 4 Jefferson's Works, 68; Am. State Papers, For. Rel. I. 175.) A nation ought not to interfere in the causes of its citizens brought before foreign tribunals, except in a case of refusal of justice or of palpable injustice. Bradford, At. Gen., 1794, 1 Op. 53. See, to the same effect, Black, At. Gen., 1859, 9 Op. 374. “It is not necessary to affirm that a government is not responsible in any case to a foreign government for an alleged erroneous judicial decision rendered to the prejudice of a subject of said foreign government. But it may be safely asserted that this responsibility can only arise in a proceeding where the foreigner, being duly notified, shall have made a full and bona fide, though unavailing, defense, and, if necessary, shall have carried his case to the tribunal of last resort. If, after having made such defense and prosecuted such appeal, he shall have been unable to obtain justice, then, and then only, can a demand be with propriety made upon the government." Mr. Clay, Sec. of State, to Mr. Tacon, Feb. 5, 1828, MS. Notes to For. Leg. "The general rule is that foreigners are bound to apply to the tribunals Captain George Barker, of the American ship Panther, was arrested at Halifax, Nova Scotia, about the 26th of August and kept in |