Mr. Wheaton, min. to Denmark, to the Danish commissioners, Nov. 24, 1829, H. Doc. 249, 22 Cong. 1 sess. 22, 26. This statement was made by Mr. Wheaton in his memorable discussion with the Danish Government concerning the claims of citizens of the United States for indemnity for the condemnation of their vessels by the Danish prize courts, particularly under the Danish privateering instructions of March 28, 1810. The Danish Government sought to maintain the finality of the decisions of its prize courts; Mr. Wheaton denied it, and successfully maintained his contention. (Moore, Int. Arbitrations, V. 4549 et seq.) "A sentence of condemnation pronounced by a court having jurisdiction is generally regarded as prima facie valid, and acts as a bar to a diplomatic claim on account of the transaction judicially determined, until it shall be shown that the court proceeded in such a manner, or was governed by such rules, as to make its action subversive of justice." (Mr. Porter, Asst. Sec. of State, to Mr. King, Feb. 27, 1886, 159 MS. Dom. Let. 184.) "It is obvious enough that when we ask redress from a government and not from their tribunals for injuries arising from flagrant violations of the law of nations, it is preposterous to refuse it because the injury has been consummated, the capture, trial, and condemnation under unlawful decrees being all parts of the same system, to which the final process and decision can give no sanction." Mr. Gallatin to Mr. Price, Feb. 11, 1824, 2 Gallatin's Writings, 275, 278. 5. UNJUST DISCRIMINATIONS. § 992. "If indeed Mr. Thrasher, in his arrest and trial, did not enjoy the benefits which native-born Spanish subjects enjoy in like cases, but was more harshly treated, or more severely punished, for the reason that he was a native-born citizen of the United States, it would be a clear case of the violation of treaty obligations, and would demand the interposition of the Government. There exists in this Department no proof of any such extraordinary treatment of Mr. Thrasher." Report on Thrasher's case by Mr. Webster, Sec. of State, to the President, Dec. 23, 1851, 6 Webster's Works, 530. For the case of Thrasher, see Moore, Int. Arbitrations, III. 2701. Unjust discrimination against a citizen of the United States in a foreign country, by which he is subjected to peculiarly harsh imprisonment and other injuries, forms a basis of a claim for damages against the government of such foreign state. Mr. Fish, Sec. of State, to Mr. White, Jan. 7, 1874, MS. Inst. Arg. Rep. Where there was a prima facie case to sustain arrest, a claim for damages See, also, Mr. Davis, Act. Sec. of State, to Messrs. N. S. Lazarus & Co., "The position accepted as a rule of international law is that where there is established in the domain of the state of the alleged offence a competent judiciary, in which the procedure is fair, and to which the same access is given to foreigners as is given to subjects, then the complaint for pecuniary redress must be made to such judiciary. It is only where there is no such judiciary, or where there is practically an undue discrimination against foreigners, that diplomatic intervention is granted." Opinion of Dr. Francis Wharton, Solicitor of the Dept. of State, in the "By the principles of international law, accepted by both Mexico and ourselves, we can no more permit ourselves to seek redress for injuries inflicted by private individuals in Mexico on one of our citizens, than we could permit Mexico to intervene to seek redress for injuries inflicted on Mexicans by private individuals in the United States. The rule is that, where the judiciary is recognized in a country coordinate with the executive, having committed to it all suits for redress of injuries inflicted on aliens as well as on citizens, then the judiciary and not the executive must be appealed to for redress. There are, it is true, two exceptions recognized to this rule: First, when there is undue discrimination against the party injured on account of his nationality; secondly, where the local tribunals are appealed to, but justice was denied in violation of those common principles of equity which are part of the law of nations." Mr. Bayard, Sec. of State, to Mr. Copeland, Feb. 23, 1886, 159 MS. Dom. Let. 138, declining to present the claim of the petitioner. for the murder of his father in Mexico. "No government can guarantee immunity from individual violence or private malice." (Mr. Bayard, Sec. of State, to Mr. Rodriguez, March 5, 1887, 163 MS. Dom. Let. 306.) Van Bokkelen's In 1872 or 1873, Charles Adrian Van Bokkelen, a citizen of the United States, went to Hayti and established himself in business at Port au Prince, where he afterwards married and became the head of a family. On February 15, 1883, having been unfortunate in business, he filed a schedule of his assets and liabilities in the civil court of Port au ness. Prince, preparatory to applying for the benefit of a judicial assignment, under which, in Hayti, where imprisonment for debt had not then been abolished, an honest but unfortunate debtor might surrender all his property for the benefit of his creditors and become entitled to discharge from imprisonment, if he had been arrested, and to freedom from arrest thereafter on account of his existing indebtedWhen Van Bokkelen filed his schedule in the civil court at Port au Prince, a judgment which he was unable to pay had been rendered against him, and other judgments were subsequently rendered, in which various terms for imprisonment were fixed. On March 5, 1884, Van Bokkelen was arrested on one of these judgments and confined in the common jail of Port au Prince. It was judicially determined that this arrest was illegal, but, before Van Bokkelen was discharged from it, other creditors took measures to have him detained in jail. Van Bokkelen thereupon, through his counsel, applied to the civil court of Port au Prince for the benefit of judicial assignment. The creditors opposed his discharge, chiefly on the strength of article 794 of the code of civil procedure and article 569 of the code of commerce, which expressly exclude foreigners from the benefit of judicial assignment. In answer to this contention, Van Bokkelen invoked Articles VI. and IX. of the treaty between the United States and Hayti of 1864. By Article VI., citizens of the contracting parties were to have free access to the tribunals of justice on the same terms as "native citizens, furnishing security in the cases required;" while by Article IX., the citizens of each party were to have, within the jurisdiction of the other, full power "to dispose of their personal property by sale, donation, testament, or otherwise." The civil court at Port au Prince denied Van Bokkelen's contention, and he then took an appeal to the court of cassation, by which the judgment of the civil court was, on February 26, 1885, almost a year from the time when Van Bokkelen was first imprisoned, affirmed. On March 21 and March 28, 1885, the American minister at Port au Prince was instructed to demand Van Bokkelen's release. The Department of State maintained not only that Van Bokkelen was, under Article VI. of the treaty of 1864, entitled to the same rights in the tribunals of justice in Hayti as native citizens of that country, but also that under Article IX. he was entitled to dispose of his goods by means of a general assignment for the benefit of his creditors. The Department of State also affirmed "that continuous imprisonment for debt, when there is no criminal offense imputed, is contrary to what are now generally recognized principles of international law." At one time Van Bokkelen was transferred, because of his feeble health, to the military hospital, but he was afterwards sent back to the common jail. The American minister at Port au Prince, acting under his instructions, continued to insist upon his release, and on May 27, 1885, Van Bokkelen was conducted to the American legation by an attorney of the Haytian Government and put at liberty. The Haytian Government, however, subsequently officially declared that his release was " due doubtless to some arrangement made with his creditors," without interference of the executive power, and that his imprisonment had been altogether legal. On October 2, 1885, the American minister at Port au Prince was instructed to present to the Haytian Government a claim for Van Bokkelen's wrongful imprisonment. Van Bokkelen died on November 1, 1888, but the claim for his wrongful imprisonment was duly entered for $113,000. By a protocol between the United States and Hayti, signed May 24, 1888, it was agreed that the questions with regard to his imprisonment should be referred to the decision of a person to be agreed upon by the two Governments. Under this agreement, Alexander Porter Morse, esq., of Washington, D. C., was chosen as arbitrator. December 4, 1888, he rendered an award in favor of the United States for the sum of $60,000. He held (1) that the imprisonment of Van Bokkelen was "in derogation of the rights to which he was entitled as a citizen of the United States under stipulations contained in the treaty between the United States and Hayti," and (2) that the record failed to disclose any extenuating circumstances or sufficient justification for the harsh treatment and protracted imprisonment of the claimant by the authorities of the Haytian Republic, in opposition to the earnest and repeated protests of the representatives of the United States. Moore, Int. Arbitrations, II. 1807-1853. For a full statement of the position of the United States, see Mr. Bayard. 6. CLAIMS TO LAND. (1) TITLES EXCLUSIVELY DETERMINABLE BY LEX REI SITÆ. $993. "The rule is universal that every question involving title to real estate, whether by descent or purchase, must be determined by the law of the country wherein such real estate is situated, and all remedies for injuries in respect thereof must be pursued by the aggrieved party before the duly constituted tribunals of such country.” Mr. Marcy, Sec. of State, to Mr. Selding, March 3, 1856, 45 MS. Dom, To the same effect, see Mr. Fish, Sec. of State, to Mr. Conkling, April 13, There is no treaty with Germany that alters this rule. (Mr. Foster, The broad distinction between movable property, which by fiction is considered as attending its owner, and immovable property, which under no circumstances can be withdrawn from the jurisdiction, has led to an equally broad discrimination between the right to intervene for redress of injuries to the one kind of property and the other. Thus, Phillimore declares that, where a person has domiciliated himself in another country and purchased land there," and thus incorporated himself as it were into the territory of a foreign country, he cannot require his native government to interfere on the subject of the operation of municipal laws or the judgment of municipal tribunals upon his rights of immovable property in this foreign land." The policy and law of the Turkish Empire in respect to the acquisition of land by foreigners, and the fact that a person who had purchased land there was at the time, rightfully or wrongfully, regarded by the Ottoman authorities as a Turkish subject, would give increased force to the application of this distinction. Mr. Fish, Sec. of State, to Mr. Cone, Oct. 10, 1871, 91 MS. Dom. Let. 88, See, also, Mr. Olney, Sec. of State, to Mr. Terrell, March 5, 1897, MS. See further, as to titles in Turkey, Mr. Bayard, Sec. of State, to Mr. Cox, A Mexican statute discriminating against citizens of the United States and other aliens in respect to the capacity to hold real estate in Mexico is in conflict with the treaty of 1831. Mr. Evarts, Sec. of State, to Mr. Foster, June 23, 1879, MS. Inst. Mex. As to rights of foreigners to real estate in Mexico, see Consular Reports A question of title to real estate, when one of law and fact, is " to be decided by the lea rei sita. The case is purely one for the Mexican |