judicial tribunals in the first instance, and cannot properly be taken out of their consideration by diplomatic intervention. It can only be removed from the courts by agreement between the parties." A claimant in such case "must first exhaust his rights in the higher courts, and until a decision in the court of last resort shall have been rendered, which decision shall amount to a denial of justice, there is no ground upon which to base a diplomatic complaint."

Mr. Bayard, Sec. of State, to Mr. Jackson, July 17, 1885, MS. Inst. Mex.
XX. 329.

The right to succeed to real estate is, however, often secured to aliens by a treaty removing the disability of alienage, but leaving the determination of the succession in other respects to the local law.

Mr. Foster, Sec. of State, to Mr. Tarsney, July 14, 1892, 187 MS. Dom. Let. 253, referring to Articles I. and II. of the treaty with Austria of May 8, 1848.

The Government of the United States is not bound to indemnify a British subject for losses sustained, as a claimant of real estate, by the settlement of the boundary line between New York and New Hampshire. This would be so on general principles; but, besides, by the 9th article of the treaty with Great Britain of 1794 it is expressly stipulated that British subjects who hold lands in the United States shall hold them in like manner as if they were natives.

Wirt, At. Gen., 1819, 1 Op. 320.

The laws of the State in which land is situated control exclusively its descent, alienation, and transfer, and the effect and construction of instruments intended to convey it.

Brine v. Ins. Co., 96 U. S. 627.

(2) DENIAL OF JUSTICE MAY AFFORD GROUND FOR INTERVENTION.

$994.

"That title to land is determinable exclusively by the lex rei site, see Whart. Confl. of Laws, § § 273 ff. But this does not preclude diplomatic intervention when there is undue discrimination or denial of justice by the judex rei sitæ.”

Wharton, Int. Law Digest, II. 667, editorial note.

See, also, Mr. Porter, Acting Sec. of State, to Mr. Hall, min. to Cent. Am.,
July 13, 1885, MS. Inst. Cent. Am. XVIII. 534; Mr. John Davis, Act.
Sec. of State, to Mr. Hall, Oct. 9, 1882, id. XVIII. 270.

"Trespasses and evictions, when amounting to forcible deprivation of right without recourse to law, are the subjects of diplomatic intervention."

Wharton, Int. Law Digest, II. 667, editorial note.

See, also, report of Dr. Francis Wharton, Solicitor of Department of
State, June 13, 1885, For. Rel. 1885, 525.

The Haytian Government is liable for damages wantonly inflicted, by soldiers in its employ, on real estate belonging to citizens of the United States. Nor is it a defense in such cases" that by the Haytian law foreigners can not acquire' (acquérir) real estate in Hayti, and that as they had no title to the real estate for injury to which they sue they can not now claim damages for such injury. To this the answer is threefold:

6

"1. The statute only prohibits acquiring,' which is a term convertible with purchasing.' It does not cover the case of real estate coming by descent.

6

"2. By the Roman law, in force in Hayti, an alien's title, even as to purchased' real estate, can only be contested by suit brought by the Government itself in the nature of an inquisition. If the Government undertakes to turn the possessor out by violence without a trial, this makes the Government liable for damages in proportion to the violence applied and the damage done. And for such summary outrages on an alien, as an alien, the government of such alien has, by international law, a right to interpose and claim redress.

"3. Even supposing that the prohibition extended to the house and lot of the claimants (which, for the present purpose, it did not) it did. not preclude the claimants from possessing furniture, or leading lives of quiet, secure from lawless attack. In any view, therefore, the statute before us does not prevent the claimants from recovering damages for the destruction of their furniture, their expulsion from their homes, and the peril to which their lives were subjected.”

Mr. Bayard, Sec. of State, to Mr. Thompson, Mar. 9, 1886, MS. Inst.
Hayti, II. 544.

"It has been generally accepted that aboriginal inhabitants in a savage state have not such a title to the land where they may dwell or roam as to enable them to confer it upon individuals, especially from another country. This Department is not aware that the Fiji Islands are or ought to be an exception to this rule."

Mr. Fish, Sec. of State, to Mr. Hackett, June 12, 1873, 99 MS. Dom.
Let. 205.

"The statement made by Mr. Fish, when applied to the United States, is undoubtedly correct. the aborigines of this country respects from those of Fiji. Fiji Islands by cession in 1874. cession made what was supposed to be ample provision for the pro

But it must be remembered that
differed in many very important
England acquired title to the
Article IV. of the deed of

tection of all land titles of foreigners derived from the chiefs or natives prior to the cession, Before the annexation of Fiji to the British Crown, Americans, Germans, and subjects of other countries had located there, and, according to Fijian customs, forms, and regulations, had purchased lands from the natives, and these purchases were duly attested and made a matter of record in the office of the American and German consuls at Levuka. In

the case before Mr. Fish the question of the Fijian right to sell land was not involved, and therefore his allusion to it should be viewed in the light of an obiter dictum. The fact is, England does not claim a foot of land in Fiji by right of discovery."

Memorandum accompanying instruction of Mr. Hill, Act. Sec. of State, to Mr. Choate, ambass. to England, Oct. 31, 1899, S. Doc. 140, 56 Cong., 2 sess. 52, 53, 54, 68.

7. CONTRACT CLAIMS.

(1) NOT AS A RULE OFFICIALLY PRESENTED.

§ 995.

It is not usual for the government of the United States to interfere, except by its good offices, for the prosecution of claims founded on contracts with foreign governments.

Mr. Forsyth, Sec. of State, to Mr. Hunter, chargé d'affaires to Brazil, No. 5, Sept. 15, 1834, MS. Inst. Brazil, XV. 8; Mr. Webster, Sec. of State, to Mr. Thurston, April 15, 1841, 31 MS. Dom. Let. 391 (relating to a promissory note accepted by the Mexican Government); Mr. Calhoun, Sec. of State, to Mr. Crump, May 28, 1844, MS. Inst. Chile. XV. 49; Mr. Marcy, Sec. of State, to Baron Gerolt, Prussian minister, June 15, 1854, MS. Notes to Pruss. Leg. VII. 15 (relating to an alleged breach of a contract made by the Mexican Government in regard to tobacco); Mr. Marcy, Sec. of State, to Mr. Clay, min. to Peru, No. 21, Dec. 27, 1854, MS. Inst. Peru, XV. 147 (relating to the claim of Dr. Joseph Whitmore against the Government of Peru on account of the latter's alleged breaches of contracts in respect of the construction of steamers, for which he had been recommended by Mr. Clay to the Peruvian Government as a competent person); Mr. Marcy, Sec. of State, to Mr. Crampton, Brit. min., Oct. 12, 1855, MS. Notes to Gr. Br. VII. 501; Mr. Marcy, Sec. of State, to Mr. Fowler, July 17, 1856, 45 MS. Dom. Let. 405 (relating to the claim of Messrs. Tyler, Arnold & Dennis against Peru for nonfulfillment of contract); Mr. Cass, Sec. of State, to Mr. King, M. C., Feb. 22, 1858, 48 MS. Dom. Let. 184 (relating to the claim of a Mr. Reeves against Turkey for services as a naval constructor); Mr. Trescot, Assist. Sec. of State, to Mr. Perry, Nov. 15, 1860, 53 MS. Dom. Let. 256; Mr. Seward, Sec. of State, to Messrs. Harmony & Lopez, Feb. 26, 1862, 56 MS. Dom. Let. 409 (relating to a claim against Ecuador for nonfulfillment of a contract made by claimant under its authority for the purchase of a submaH. Doc. 551-vol 645

rine telegraph cable); Mr. Seward, Sec. of State, to Mr. Culver, min. to Venezuela, Oct. 3, 1863, MS. Inst. Venezuela, I. 286; Mr. Seward, Sec. of State, to Mr. Dickinson, No. 29, Nov. 25, 1863, MS. Inst. Am. States, XVI. 389; Mr. Seward, Sec. of State, to Mr. Bond, Sept. 6, 1865, 70 MS. Dom. Let. 313; Mr. Seward, Sec. of State, to Mrs. Van Cort, Dec. 28, 1866, 75 MS. Dom. Let. 11 (relating to a claim against the Russian Government for compensation for an invention); Mr. Seward, Sec. of State, to Mr. Dwyer, Oct. 4, 1867, 77 MS. Dom. Let. 177 (relating to a claim against Venezuela for services as a soldier); Mr. Seward, Sec. of State, to Messrs. Sullivan & Brooker, Dec. 5, 1867, 77 MS. Dom. Let. 421 (relating to bills of exchange drawn and accepted by agents of Mexico); Mr. Seward, Sec. of State, to Mr. Edmunds, M. C., Jan. 13, 1868, 77 MS. Dom. Let. 573 (relating to the claim of a Mr. Hall against Austria for legal services rendered to the late Prince Maximilian); Mr. Seward, Sec. of State, to Mr. Page, governor of Vermont, May 2, 1868, 78 MS. Dom. Let. 419 (relating to the same subject as the last preceding letter); Mr. Seward, Sec. of State, to Mr. Reid, July 17, 1868, 79 MS. Dom. Let. 94; Mr. Seward, Sec. of State, to Mr. Hansen, Dec. 23, 1868, 80 MS. Dom. Let. 39 (relating to a claim against the North German Union for expenses in surveying a route for a ship canal in Holstein); Mr. Seward, Sec. of State, to Mr. Conkling, Feb. 9, 1869, 80 MS. Dom. Let. 270; Mr. Fish, Sec. of State, to Mr. Conkling, May 8, 1869, 81 MS. Dom. Let. 70; Mr. Fish, Sec. of State, to Mr. Campbell, Jan. 4, 1870, 83 MS. Dom. Let. 10; Mr. Fish, Sec. of State, to Mr. Hanks, March 16, 1870, 83 MS. Dom. Let. 506; Mr. Fish, Sec. of State, to Mr. Bassett, June 27, 1870, MS. Inst. Hayti, I. 188; Mr. Fish, Sec. of State, to Mr. Wilson, July 12, 1870, 85 MS. Dom. Let. 283; Mr. Davis, Assist. Sec. of State, to Mr. King, Dec. 9, 1870, 87 MS. Dom. Let. 219; Mr. Fish, Sec. of State, to Mr. Blow, Feb. 22, 1871, MS. Inst. Brazil, XVI. 298; Mr. Hunter, Act. Sec. of State, to Mr. Folingsby, July 5, 1871, 90 MS. Dom. Let. 96; Mr. Fish, Sec. of State, to Mr. Washburne, May 24, 1872, MS. Inst. France, XIX. 11; Mr. Fish, Sec. of State, to Mr. Helper, Dec. 11, 1872, 96 MS. Dom. Let. 491 (relating to a claim of Mr. Colton against Bolivia, for compensation for copies of a map of that Republic); Mr. Fish, Sec. of State, to Mr. Merrick, Jan. 22, 1873, 97 MS. Dom. Let. 302; Mr. Fish, Sec. of State, to Mr. Wing, min. to Ecuador, Dec. 9, 1873, MS. Inst. Ecuador, I. 339 (saying that in cases of contract where "there has been a denial or miscarriage of justice in the courts . . . the good offices of the Department may properly be invoked "); Mr. Fish, Sec. of State, to Mr. Spofford, vicepresident of the Samana Bay Co., May 23, 1874, 102 MS. Dom. Let. 321; Mr. Hunter, Second Assist. Sec. of State, to Mr. Cameron, Oct. 1, 1874, 104 MS. Dom. Let. 376; Mr. Fish, Sec. of State, to Mr. Rohan, Nov. 19, 1874, 105 MS. Dom. Let. 239; Mr. Fish, Sec. of State, to Mr. Beardsley, Nov. 21, 1874, May 18, 1875, MS. Inst. Barb. Powers, XV. 209, 237; Mr. Fish, Sec. of State, to Mr. Green, April 7, 1876, 112 MS. Dom. Let. 582; Mr. Fish, Sec. of State, to Mr. Swann, May 4, 1876, 113 MS. Dom. Let. 258; Mr. Fish, Sec. of State, to Mr. Remington, Aug. 2, 1876, 114 MS. Dom. Let. 504; Mr. Fish, Sec. of State, to Mr. Sherman, Dec. 18, 1876, 116 MS. Dom. Let. 271; Mr. Evarts, Sec. of State, to Mr. Durant, March 26, 1877, 117 MS. Dom. Let. 455; Mr. Evarts, Sec. of State, to Mr. Remington, March 22, 1878, 122 MS.

Dom. Let. 257; Mr. Evarts, Sec. of State, to Mr. Seward, May 6, 1878, MS. Inst. China, II. 550; Mr. Evarts, Sec. of State, to Mr. Thompson, Sept. 12, 1878, 124 MS. Dom. Let. 323; Mr. Evarts, Sec. of State, to Sir E. Thornton, Brit. min., May 2, 1879, MS. Notes to Gr. Br. XVIII. 44; Mr. Blaine, Sec. of State, to Mr. Amadore, March 10, 1881, 136 MS. Dom. Let. 472; Mr. Blaine, Sec. of State, to Mr. Logan, min. to Cent. Am., No. 136, March 22, 1881, MS. Inst. Cent. Am. States, XVIII. 163 (see, however, Mr. Blaine, Sec. of State, to Mr. Hurlbut, min. to Peru, Aug. 4, 1881, MS. Inst. Peru, XVI. 506); Mr. Frelinghuysen, Sec. of State, to Mr. Cuyler, June 27, 1882, 142 MS. Dom. Let. 521; Mr. Frelinghuysen, Sec. of State, to Mr. Baker, min. to Venezuela, June 27, 1882, MS. Inst. Venezuela, III. 226; Mr. Frelinghuysen, Sec. of State, to Mr. Heap, June 23, 1884, MS. Inst. Turkey, IV. 150; Mr. Frelinghuysen, Sec. of State, to Mr. Phelps, min. to Peru, Dec. 6, 1884, MS. Inst. Peru, XVII. 100; Mr. Bayard, Sec. of State, to Messrs. Remington & Sons, March 14, 1885, 154 MS. Dom. Let. 480; Mr. Bayard, Sec. of State, to Mr. Scott, min. to Venezuela, July 15, 1885, MS. Inst. Veneuzela, III. 478; Mr. Bayard, Sec. of State, to Mr. Freer, July 15, 1885, 156 MS. Dom. Let. 262; Mr. Bayard, Sec. of State, to Messrs. Sanders & Hollingsworth, July 23, 1885, 156 MS. Dom. Let. 339; Mr. Bayard, Sec. of State, to Mr. Bebell, Feb. 4, 1886, 158 MS. Dom. Let. 641; Mr. Bayard, Sec. of State, to Mr. Seay, Feb. 20, 1886, MS. Inst. Bolivia, I. 416; Mr. Bayard, Sec. of State, to Mr. Hevner, April 21, 1886, 160 MS. Dom. Let. 5; Mr. Rives, Act. Sec. of State, to Messrs. Morris & Fillette, Oct. 13, 1888, 170 MS. Dom. Let. 222; Mr. Olney, Sec. of State, to Mr. Meyer, Nov. 16, 1895, 206 MS. Dom. Let. 78; Mr. Day, Sec. of State, to Mr. Buchanan, min. to Arg. Rep. No. 362, May 31, 1898, MS. Inst. Arg. Rep. XVII. 363; Mr. Day, Sec. of State, to Mr. Ketcham, July 28, 1898, 230 MS. Dom. Let. 414; Mr. Hay, Sec. of State, to Mr. Powell, min. to Hayti, No. 338, April 12, 1899, MS. Inst. Hayti, IV. 143; Mr. Hay, Sec. of State, to Messrs. E. Becker & Co., April 12, 1899, 236 MS. Dom. Let. 298.

"How far it may be justifiable or expedient formally to press all the claims upon the French Government for immediate payment is a consideration to be distinguished from the clear opinion which is entertained of their intrinsic justice. Wherever they originated in compulsory measures practiced upon the claimants, they are entitled to a full and immediate interposition of their Government; but where the bills have been received by virtue of voluntary contracts, whether with the agents of the French Government or individuals, the receivers, having regard, as they must have had, to the degree of credit and punctuality ascribed to that Government, at the period of their speculation, any calculation and consequent disappointment ought not to be permitted to embarrass their own Government by binding it to pursue very pointed measures for their relief.”

Mr. Madison, Sec. of State, to Mr. Livingston, min. to France, Oct. 27, 1803, MS. Inst. U. States ministers, VI. 155.

In instructions given by Mr. Pickering, Secretary of State, October 22, 1799, to the American plenipotentiaries to France, the envoys were