3. CRIMINAL PROCEEDINGS. (1) JURISDICTION AND PROCEDURE. § 914. "In regard to the jurisdiction of the courts of independent nations over American citizens resident within their limits, it became necessary for me, on the 1st of February 1848 to address a note to Mr. Osma the minister from Peru, which also received the sanction of the President and Cabinet. From it I make the following extract. Citizens of the United States whilst residing in Peru are subject to its laws and the treaties existing between the parties, and are amenable to its courts of justice for any crimes or offences which they may commit. It is the province of the judiciary to construe and administer the laws, and if this be done promptly and impartially towards American citizens and with a just regard to their rights they have no cause of complaint. In such cases they have no right to appeal for redress to the diplomatic representative of their country, nor ought he to regard their complaints. It is only where justice has been denied or unreasonably delayed by the courts of justice of foreign countries-where these are used as instruments to oppress American citizens or to deprive them of their just rights that they are warranted in appealing to their government to interpose.' All these are ancient and well established principles of public law; and the quotations are made merely to show that they have received the formal sanction of this government." Mr. Buchanan, Sec. of State, to Mr. Ten Eyck, comr. to Hawaii, Aug. 28, See, to the same effect, Mr. Buchanan, Sec. of State, to Mr. Larrabee, "I duly received your letter of 7th Nov. last, enclosing copies of your entire correspondence with the authorities of Cuba, in relation to the imprisonment and incommunication of Wm. H. Bush, stated by you to be unchanged.' The course pursued by you and zeal manifested in behalf of this unfortunate individual are highly approved. "That the authorities of Cuba possess the right to arrest and bring to trial any individual charged with crime, committed within their jurisdiction, cannot be denied. Independently of the principles of public law by which it is sustained, it is distinctly recognized in the stipulations of our treaty with Spain of 1795. The 7th article provides that 'in cases of seizure, or offences committed by any citizen or subject of the one party within the jurisdiction of the other, the same shall be made and prosecuted by order and authority of law H. Doc. 551-vol 6—18 only, and according to the regular course of proceeding usual in such cases.' So far, therefore, as the arrest' and imprisonment of Bush are concerned, if conducted according to usage in such cases, no just cause of complaint would seem to exist. Very differently, however, is the case in regard to the incommunication.' The same (7th) article of the treaty, after a general provision securing to the citizens and subjects of both parties the right to employ such advocates, solicitors, agents, &c., as they may judge proper in their affairs, expressly declares that such agents shall have free access, to be present at the proceedings in such causes, and at the taking of all examinations and evidence which may be exhibited in the said trials.' With these rights secured to American citizens within the jurisdiction of Spain, the incommunication' of Bush appears to be directly in conflict and to constitute cause of serious complaint. The history of the treaty affords the evidence that they were deliberately inserted therein as safeguards to protect our citizens from oppression abroad. In communicating the treaty to his government, Mr. Pinckney, the American negotiator, specially points to this article and significantly to the object it had in view. The first part,' says he, 'is taken from the 16th of Prussia.' The latter I added, because I considered it a good stipulation in all situations, but particularly so in Spain.' That it applies clearly to the case of Bush, I entertain no doubt; nor of the obligation of this government promptly to insist that no portion of the rights and privileges it confers be longer withheld from him. In this spirit, and to that end, you are authorized to address yourself to the captain-general, in the expression of a full conviction, on the part of your government that the 'incommunication' of Bush will be promptly so far modified as to extend to him all the protection, privilege, and favor secured to him by the existing treaty between the United States and Spain. Such other countenance and support in his difficulties as may be proper, you will doubtless with pleasure afford him. You will take care, so far as may be in your power, that he shall not be treated with injustice, harshness, or cruelty. I shall expect to hear from you without delay, because should the captain-general insist upon withholding from American citizens the rights to which they are clearly entitled under the treaty, it will become necessary to make a strong appeal to the authorities at Madrid against this violation of national faith." Mr. Buchanan, Sec. of State, to Mr. Campbell, consul at Havana, Dec. 11, 1848, 10 MS. Desp. to Consuls, 497. The refusal of a Chilean court, in 1852, on the trial for crime of an American citizen, to hear testimony on behalf of the defendant, would, if sustained by the Chilean government, be considered by the United States as "a gross outrage to an American citizen, for which it will assuredly hold Chile responsible." Mr. Conrad, Acting Sec. of State, to Mr. Peyton, chargé to Chile, Oct. 12, 1852, MS. Inst. Chile, XV. 93. "The system of proceeding in criminal cases in the Austrian government, has, undoubtedly, as is the case in most other absolute countries, many harsh features and is deficient in many safeguards which our laws provide for the security of the accused; but it is not within the competence of one independent power to reform the jurisdiction of others, nor has it the right to regard as an injury the application of the judicial system and established modes of proceedings in foreign countries to its citizens when fairly brought under their operation. All we can ask of Austria, and this we can demand as a right, is that, in her proceedings against American citizens prosecuted for offences committed within her jurisdiction, she should give them the full and fair benefit of her system, such as it is, and deal with them as she does with her own subjects or those of other foreign powers. She can not be asked to modify her mode of proceedings to suit our views, or to extend to our citizens all the advantages which her subjects would have under our better and more humane system of criminal jurisprudence." Mr. Marcy, Sec. of State, to Mr. Jackson, chargé at Vienna, April 6, 1855, In the course of this instruction, Mr. Marcy said: "That feature in the "It would be very desirable if instructions were given to military or other officers making arrests for any cause of parties claiming to be citizens of the United States, requiring such officers to cause the nearest consular officer of the United States to be promptly notified of the arrest and of the claim of the party to American citizenship." Mr. Fish, Sec. of State, to Mr. Sickles, min. to Spain, No. 97, Oct. 27, 1870, "In his note of the 6th April to Mr. West, Lord Granville quotes with approval the following extract from a note of the 14th October, 1861, from Mr. Seward to Lord Lyons: In every case subjects of Her Majesty residing in the United States and under their protec tion are treated, during the present troubles, in the same manner and with no greater or less rigor than American citizens.' "And he deduces from this the principle that "no distinction can be made in favor of aliens,' or, as stated to yourself in a note of the 28th June last, that Her Majesty's government would not admit 'any claim to exemption on behalf of any person, whether alien or citizen, from the operation of the laws which equally affect all persons residing in the domain and under the protection of the Crown.' "Mr. Seward's statement was rather an allegation of a fact than the enunciation of a principle. But if it can be taken to be the statement of a principle as broad as Lord Granville now lays down, the President can not but look upon it as an extreme position taken in the heat of conflict, to which the government of neither Great Britain nor the United States can give adhesion in time of quiet and reflection. It is certain that Her Majesty's government did not accept it as a rule of action during the civil war, and as certain that Mr. Seward did not adhere to it, but permitted exceptional inquiries, as in Carroll's case and McHugh's case and the cases of the military commission in Fort Lafayette, to be made throughout the war. Lord Lyons was constantly and diligently asking the causes of arrest and imprisonment of British subjects, and Mr. Seward was as constantly answering his inquiries, notwithstanding the fact of the suspension of the habeas corpus. "It is not the interest of either government to be drawn into an extreme position in this delicate matter. The President concedes that he has no right to expect to transfer into foreign countries the forms of law which under American institutions are so great a security to the citizen. He concedes to every sovereign power the right to prescribe its own code of crimes and its own mode of trying offenders, and if it shall choose to adopt a system which gives the citizen fewer guarantees against injustice than prevail in the United States he feels that he can not complain if it is applied to citizens of the United States who are found where it prevails. "But if, when thus applied, it works actual injustice; if it takes possession of an American citizen, and deprives him of his liberty without any allegation of offense; if it leaves him incarcerated without hope of trial or chance of release, it then becomes the duty of the President to inquire why this was done. Her Majesty's government pursued that course during the civil war. They will see that a self-respecting government must do the same now. And the President can have no doubt that when you, under these instructions, courteously, but firmly, ask to be informed why McEnery is deprived of his liberty, and why he is afforded no opportunity of defense, Her Majesty's government, instead of referring you to the municipal law of Great Britain, which authorizes such treatment of British subjects, will at once give you with frankness and fullness the information you ask for." Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, min. to England, April 25, 1882, For. Rel. 1882, 230–233. Undue and needless delay in the trial of a citizen abroad is a ground for international intervention. Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, min. to Mexico, Mar. 5, 1884, MS. Inst. Mex. XXI. 26. "Appealing to principles acknowledged in common in England and in the United States, it is, in addition, maintained that in countries subject to the English common law, where there is the opportunity given of a prompt trial by a jury of the vicinage, damages inflicted on foreigners on the soil of such countries must be redressed through the instrumentality of courts of justice, and are not the subject of diplomatic intervention by the sovereign of the injured party. There must have been many cases in which British subjects supposed that they had suffered loss through the negligence or the malice of subordinate officers of the different States and Territories composing this Union, but no record can be found, at least on the files of this Department, of cases in which, when redress could be had by appeal to local courts of justice, an attempt has been made to substitute for such redress a demand upon the government of the United States for pecuniary compensation. The same may be said of the many cases in which citizens of the United States may have suffered, or claim to have suffered, injury in Great Britain from the conduct of British officials. When such injury was inflicted upon the high seas, or in foreign uncivilized lands, and especially if inflicted by the armed military or naval power directly emanating from the sovereign exeecutive, then it was properly regarded as the subject of diplomatic intervention; but a careful search in the records of this Department discloses no diplomatic appeal for pecuniary compensation for injuries claimed to have been inflicted on American citizens when on the soil of Great Britain. "As showing the strictness with which this distinction is maintained may be mentioned the case of Mr. Henry George, a citizen of the United States, distinguished as a man of letters, and as a lecturer, who traveled in Ireland in 1882. Mr. George, as was afterwards fully shown and conceded, was in no way concerned in any seditious or other illegal proceedings against the peace of Great Britain, and there was no evidence produced, either at the time or since, which suggested the faintest prima facie case to justify arrest. He was, however, arrested at Loughrea on August 8, 1882, without |