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jail till the 8th or 9th of November, 1837, in a judicial prosecution instituted against him by some of the passengers of his vessel, in the vice-admiralty court, for breach of marine contract and for refusing to pay for marine services, and for an alleged violation of the imperial statute 5 and 6 William IV., relating to passengers. Captain Barker was released on a writ of habeas corpus issued by the colonial supreme court, and a writ of prohibition was issued by the same tribunal forbidding the vice-admiralty court to carry the proceedings further because of a want of jurisdiction. With reference to this transaction, the Department of State said: "This Government can not admit the right of any foreign court to take cognizance of acts done on board of American vessels at sea, but the ground upon which the jurisdiction of the vice-admiralty court of Halifax in this case was denied by the counsel of Capt. Barker was, not that the contract was made or broken at sea, under the flag of the United States, but that it was made upon land, and within the body of a county, thereby impliedly admitting the right of jurisdiction of a British court of a different character. But, even if the facts were such as to exclude the judicial cognizance of any foreign tribunal, the case presented would be that of an inferior court assuming an unlawful jurisdiction in a civil suit, in which it was overruled and checked by a superior court, without any appearance of unusual vexation or delay. The detention which Capt. Barker unfortunately experienced would seem to have been such only as one of the subjects of Great Britain might have been subjected to, under the same circumstances, by the operation of the laws within the influence of which he was brought, and, however unjust it may have been, as a fair investigation appears to have been allowed, which resulted in his discharge, the injury he is represented to have sustained is not thought to constitute a proper application from this Government to that of Great Britain for redress."

Mr. Forsyth, Sec. of State, to Mr. Davee, Feb. 7, 1838, 29 MS. Dom. Let. 330.

Personal injuries inflicted on citizens of the United States when in Great Britain can be redressed only by appeal to the local courts; nor can the Government of the United States complain of failure of justice in this respect if the trials were fair and the due course of justice was pursued. (Mr. Monroe, Sec. of State, to Mr. J. Q. Adams, Nov. 16, 1815, MS. Inst. U. States Ministers, VIII. 3.)

January 5, 1851, the Peruvian barque Eliza was stranded in San Francisco Bay through the unskillfulness or carelessness, as was alleged, of a pilot, who was a member of an incorporated association of pilots under the laws of the State of California. The owners of the barque sued the association in the United States district court and recovered judgment against it. Execution was issued and a levy made on the association's boat, but the writ was returned unsatisfied

owing to the fact that, because the judgment-creditor refused to indemnify the marshal, the latter did not sell the vessel. No further effort appears to have been made to collect the judgment. The Peruvian minister at Washington, however, solicited the aid of the United States to recover the amount of the judgment from the State of California, on the theory that the State was liable for the acts of the pilots who carried on their operations under its laws. On June 15, 1852, Mr. Webster, as Secretary of State, sent the papers to the governor of California, with a letter, in which he said: "If . . the Association of Pilots of San Francisco has been established under a law of the State of California, that State must be considered as responsible for those acts of negligence or ignorance of the association for which the means of its members, jointly or severally, may be inadequate to make reparation. I therefore commend this case to the favorable consideration of your excellency, and trust that provision will be made by the State of California for the payment of the claim." The governor communicated the papers, with a special message, to the legislature. The legislature repelled the theory of responsibility on the part of the State, and the Peruvian Government then preferred a claim against the United States. In 1855 the case was referred by Mr. Marcy, Secretary of State, to Mr. Cushing, who, in an opinion of May 27, 1855, held that neither the State of California nor the United States was responsible to the owners of the barque for her loss through the carelessness of the pilot. Mr. Cushing observed that foreigners sojourning in a country were subject to its laws, and that wherever this rule had been departed from it was an exceptional case. Such exceptions had, he said, grown up chiefly in Spanish America in consequence of the unsettled conditions there. Public officers, said Mr. Cushing, were of two classes, (1) those employed in the collection of the revenue and the care of the public property, who represented the proprietary interest of the Government, and (2) those who were appointed by the Government only in its capacity of parens patriae. For the acts of the former the Government in many cases held itself responsible, because their acts were performed in the interest of the Government; but for the acts of the latter the Government did not hold itself pecuniarily responsible, but provided the means to make them personally responsible or to punish them for malfeasance in office, and, in so doing, did all that was required of it.

The United States having on these grounds refused to entertain the claim, it was subsequently presented to the mixed commission under the convention between the United States and Peru of January 12, 1863. The umpire of this commission, General Herran, held that there was a valid claim against the United States, both because of the

neglect of the United States marshal properly to execute the judgment of the district court and because the government of California had failed to discharge the obligations which it had assumed under its pilotage laws. As to the contention that the foreigner must exhaust judicial remedies before soliciting diplomatic intervention, General Herran said that this rule ought to be understood in a "rational" sense, so that it would "not make delusive the right of the foreigner." In this relation he said: "After Montano had obtained a definite sentence that a sum of money should be paid him, which the court determined as a just indemnification for his damages and losses which he had suffered through the fault of a pilot accredited by the laws of California, who for the payment of that sum had furnished sureties in fulfillment of a law of the State, one ought to believe that the claimant had only to put the writ in execution to pay the cost. But such was not the case. What Montano gained by the sentence was the right to bring forward another complaint; and I believe that he then found himself obliged to seek from his Government its interference in his behalf."

For the letter of Mr. Webster to the governor of California, see Mr.
Webster, Sec. of State, to Gov. Bigler, June 15, 1852, 40 MS. Dom.
Let. 190. See, also, Mr. Osma, chargé d'affaires of Peru, to Sec. of
State of United States, June 2, 1852, and enclosures, MS. Notes from
Peru.

For the opinion of Mr. Cushing, At. Gen. 1855, see 7 Op. 229, 237, 238.
For the decision of General Herran, see Moore, Int. Arbitrations, II. 1630,
1634-1638.

"Should it, however, be established to your satisfaction that Dr. Belcredi is an American citizen, the right of this Government to interfere in his case would be very questionable. As such citizen, he is subject to the laws, civil and criminal, of the country within which he is domiciled or resides, and the United States could not make the proceedings against him a ground of complaint unless those laws were contrary to treaty stipulations or were used in bad faith or oppressively to inflict injuries upon him."

Mr. Marcy, Sec. of State, to Mr. Fay, Nov. 16, 1855, MS. Inst. Switz. I. 39.
See, to the same effect, Mr. Marcy, Sec. of State, to Mr. Clay, min. to Peru,
No. 41, Feb. 8, 1856, MS. Inst. Peru, XV. 182.

"The rule of the law of nations is that the Government which refuses to repair the damage committed by its citizens or subjects, to punish the guilty parties or to give them up for that purpose, may be regarded as virtually a sharer in the injury and as responsible therefor."

Mr. Fish, Sec. of State, to Mr. Foster, min. to Mexico, No. 21, Aug. 15, 1873, MS. Inst. Mex. XIX. 18, citing Calvo, Droit Int. II. 397.

Conviction and punishment of a citizen of the United States in a foreign country, in a trial conducted with palpable injustice and in violation of settled principles of law, will be the basis of a claim for redress from such country by the Government of the United States.

Mr. Evarts, Sec. of State, to Mr. Langston, min. to Hayti, No. 23, April 12, 1878, MS. Inst. Hayti, II. 136; same to same, No. 50, Dec. 23, 1878, id. 160; Mr. Davis, Act. Sec. of State, to Mr. Langston, No. 187, Aug. 27, 1882, id. 299.

Obstruction by Spanish officials of a citizen of the United States in Spain in his attempts to obtain judicial redress for injuries there inflicted on him is the subject of international complaint.

Mr. Evarts, Sec. of State, to Mr. Fairchild, min. to Spain, Jan. 17, 1881,
MS. Inst. Spain, XVIII. 591.

In 1889 Dr. M. A. Cheek, a citizen of the United States residing in Siam, entered into a contract with the Siamese Government for the working of the teak forests. Subsequently differences arose between the parties, and the Siamese Government laid an embargo on Cheek's property, destroyed his business, and ruined him financially. It was contended by Cheek that this was done in violation of Siamese law and also of the treaty between the United States and Siam. It was eventually agreed to refer the case to Sir Nicholas Hannen, governor of the Straits Settlement, as arbitrator. The arbitrator found that the seizure of Cheek's property was not warranted by the laws of Siam, and also constituted a violation of the treaty, and awarded theTM claimant 706,721 ticals, the equivalent of $187,987.78 in gold, with release of the Cheek estate from mortgage claims.

Moore, Int. Arbitrations, II. 1899-1908; For. Rel. 1897, 461-480; S. Doc. 180, 54 Cong., 2 sess.; President McKinley, annual message, Dec. 5, 1898.

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"I have endeavored in every way to assure our sister republics of Central and South America that the United States Government and its people have only the most friendly disposition toward them all. . . I have believed, however, while holding these sentiments in the greatest sincerity, that we must insist upon a just responsibility for any injuries inflicted upon our official representatives or upon our citizens. This insistence, kindly and justly but firmly made, will, I believe, promote peace and mutual respect."

President Harrison, annual message, Dec. 6, 1892, For. Rel. 1892, XIV.

2. LOCAL REMEDIES MUST, AS A RULE, BE EXHAUSTED.

§ 987.

"There is no principle of international law which makes it the duty of one nation to assume the collection of the claims of its citi

zens against another nation if the citizens themselves have ample means of redress without the intervention of their government."

Ch. Jus. Waite, in New Hampshire v. Louisiana, 108 U. S. 76, 90, citing Phillimore, Int. Law, 2 ed., vol. 2, p. 12. Cited in Mr. Bayard, Sec. of State, to Mr. West, Brit. min., June 1, 1885, For. Rel. 1885, 458.

Sovereigns do not interfere with the regular course of the administration of justice where a foreigner is a party, until he shall have gone to the court of last resort with his case.

Randolph, At. Gen., 1792, 1 Op. 25.

For the recovery of their property in Florida and for redress of injuries done them, our citizens must apply to the tribunals of that province.

Lee, At. Gen., 1797, 1 Op. 68.

The United States are not bound to make compensation to parties who have neglected to prosecute their cases in the courts having jurisdiction of their complaints.

Lincoln, At. Gen., 1803, 5 Op. (App.) 692.

See, to the same effect, Akerman, At. Gen., 1871, 13 Op. 547.

The courts of the United States in every State are at all times open to the subjects of a friendly foreign power.

Rush, At. Gen., 1816, 1 Op. 192.

The Executive will not interfere with the judiciary while it is in the regular course of giving construction to the acts of Congress by directing a nolle prosequi of a proceeding against British vessels for a breach of the navigation act of April 18, 1818, after the district court has condemned her to forfeiture.

Wirt, At. Gen., 1820, 1 Op. 366.

Where aliens suffer violence from citizens of the United States in their persons or property, they must appeal to the courts for redress; to the State courts if the offense be a criminal one, and to the State or Federal courts for redress by a civil action.

Butler, At. Gen., 1837, 3 Op. 254.

An American steamer was seized in the port of Granada by a party or armed men, under an order of a judicial officer of the port, and after a detention of a few hours was released, pursuant to an order of the same judge. The seizure seemed to have been made at the instance of the consignees of the vessel, as a mode of enforcing a supposed legal right. Advised, that, as the tribunals of Nicaragua H. Doc. 551-vol 6-42

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