"In the opinion of the Department the case, in its present stage, is not one for diplomatic intervention, for the reason that the plaintif has not exhausted her judicial remedy. It frequently happens that litigants are denied rights by the decisions of inferior courts and are obliged, in order to establish such rights, to carry the case to the courts of last resort. "The plaintiff in the present case should pursue the judicial remedy afforded by our laws, perfecting her appeal to the court of appeals (the supreme court) of Colorado, and, if necessary thereafter, by appropriate proceedings, bring the case before the Supreme Court of the United States. "Furthermore, under the laws of the United States, the circuit courts of the United States have original jurisdiction of civil suits like the present one to which an alien is a party. It is suggested for the consideration of the attorneys of the plaintiff whether an original suit should not be brought in the circuit court of the United States for the district of Colorado. "Until the remedy of recourse to the civil tribunals has been exhausted by the plaintiff and justice is finally denied her, there appears to be no ground for the presentation of a diplomatic claim." Mr. Hay, Sec. of State, to Signor Carignani, Italian chargé, Aug. 24, 1901, 1 "I have the honor to acknowledge the receipt of your note of the 3d instant, with inclosed letter from M. J. Galligan, attorney for Mrs. Fenice Ferrara, relative to her complaint that she had been denied justice in the district court of Pueblo, Colo. "The Department has given careful consideration both to your note and its inclosure, but without being led thereby to alter the conclusion expressed in its note of August 24 that Mrs. Ferrara had not exhausted her judicial remedies and hence that there was no ground for the presentation of a diplomatic claim in her behalf. "Mr. Galligan states that when Mrs. Ferrara was denied the right to prosecute her action in the district court of the State her judicial remedy was practically exhausted; and he asserts, also, that she was, by her poverty, practically prevented from taking further proceedings. "The Department's note of August 24 points out the particulars in which the plaintiff failed to avail herself of the judicial remedy afforded her when the district court denied the motion for a new trial. "The poverty of the plaintiff, which, it is alleged, prevented her from taking the necessary legal proceedings to establish her rights, affords no basis for a claim of a denial of justice. "It is a rule practiced not only by many American courts, but also by those of other civilized states, that the plaintiff shall, as a condition to the prosecution of his case, give a bond to secure the costs (caution judicatum solvi) he may thereby occasion. Such requirement can not be treated as a denial of free access to the courts, nor as a denial of justice giving ground for diplomatic intervention. Nor in any case could this Government be expected to perform the function of parens patriæ by providing even a meritorious foreign claimant with pecuniary aid which his own government might decline to afford. Much less could the United States be expected to pay outright this claim, considering that the Government was not in the remotest degree connected with the transaction out of which the claim arose, and that justice has not been judicially denied. "The stranger, in all countries, is subject to the local law, as respects either the prosecution or defense of his case. In both aspects, he stands upon the same footing as the natives, save la caution judicatum solvi, very frequently imposed upon the alien plaintiff.' (2 Calvo, Int. Law, sec. 865.) "Though the plaintiff foreigner be thus allowed to bring his suit, he is, by the laws of the States, compelled to give bail (fournir caution) for costs and damages.' (4 Phillimore, Int. Law, p. 643.) "While the Department has before enunciated its views in this case, it has been at pains to set forth fully in this note the grounds of its decision, which is so fully sustained by reason and authority, that it should be considered as final." Mr. Adee, Acting Sec. of State, to Signor Carignani, Italian chargé, Oct. 10, 1901, For. Rel. 1901, 310. By a note of July 6, 1901, the Chinese minister at Washington presented the claims of several hundred Chinese Case of a boycott. subjects, resident at Butte, State of Montana, for $500,000 damages for injuries suffered since 1886 by reason of a boycott against them by various labor organizations of that city. It appeared that the Federal courts, on being applied to, had issued a decree enjoining the defendants from the commission of the acts complained of; but it was alleged that the conspirators were still seeking to execute their design by clandestine means, that the persons who inflicted the damages were insolvent, and that no remedy could be obtained by proceedings against the city or county authorities. "Neither of these allegations," said the Department of State, "seems to the Department to warrant the exercise of diplomatic intervention. "The damages suffered could have been averted by a prompt appeal to the court; and the facts that the complainants have suffered damages through their laches in making the appeal does not justify a departure for the ordinary rule that diplomatic intervention is improper in any case where ample judicial remedies exist. If the complainants had promptly availed themselves of their remedial rights, the injuries complained of could have been prevented. Their failure and neglect to do so does not make the United States culpable and responsible for the damages resulting. "The statement that the conspirators are still seeking to execute their conspiracy by clandestine means is one which, to justify action. should be sustained by proofs, on the submission of which to the court it is not doubted that the penalties for disobeying the injunction will be applied. “The statement that no remedy could be found against the unlawful action of the city or county authorities in aid of the conspirators. the Department is unable to accept as correct in point of law. "The Department is glad to be able to assure you that while the action of the Federal court is sufficient proof that the rights of the subjects of the Empire of China domiciled in the city of Butte will be protected and enforced by the judiciary, it may yet add that the Executive will not fail, should the case arise justifying its interposition, to use all its power to secure to them all the rights, privileges, immunities, and exemptions guaranteed by the United States Constitution and by treaty between the Governments of the United States and China." Mr. Hay, Sec. of State, to Mr. Wu, Chinese min., Dec. 4, 1901, For. Rel 1901, 127. See, for another case of boycott, infra, § 1019 By section 1068 of the Revised Statutes (being part of the statute organizing the Court of Claims) "aliens, who are citizens or subjects of any Government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their subject-matter and character, might take jurisdiction." Under the act of 27th July, 1868, from which this section is taken, there being proof of provision in Turkey for the prosecution of suits against the Government by citizens of the United States, the remedy of a Turkish subject for injuries alleged to have been inflicted on him by Government officials in Texas is in the Court of Claims. Mr. Fish, Sec. of State, to Baltazzi Effendi, Feb. 8, 1871, MS. Notes to British subjects may sue in the Court of Claims of the United States. In the Russian empire foreigners enjoy the same rights at law, whether as plaintiffs or defendants, as Russian subjects; and as Russian subjects have the right to bring suits against their Government, personally or through an attorney, it follows that foreigners have the same privilege. The foreigner, however, is required to make a deposit as a guarantee for the payment of costs, and, in the absence of such a deposit, judgment may be taken by default. Mr. Smith, min. to Russia, to Mr. Blaine, No. 71, Jan. 19, 1891, MS. Desp. from Russia, transmitting the opinion of Mr. S. V. Lewies, an attorney of St. Petersburg, with citations of the Russian law. 3. LOCAL REMEDIES NEED NOT BE EXHAUSTED. (1) WHERE JUSTICE IS WANTING. § 988. "It may be said that the claimants, according to the ordinary practice of the British courts, had a right of appeal to the lords of appeal, and that as they did not avail themselves of that right they must be presumed to have acquiesced in the decision of the admiralty court." [To this] "it may be answered that the claimants had incurred great expense in the prosecution of their rights before the admiralty court and had not the means for carrying the case further in the form in which it was there presented." Mr. Webster, Sec. of State, to Mr. Lawrence, Jan. 13, 1851, MS. Inst. Gr. Nor does this limitation apply when the point in issue has already been The treaties between the United States and Mexico stipulate "for the protection of the property and persons of the citizens of the two countries. This, however, is to be done through the courts of law. A stipulation of this character is notoriously inoperative in quarters remote from the seat of government, where the latter is virtually without authority. Any pecuniary compensation which you may claim from the Mexican Government for injuries by persons in the service of that Government may be presented to a future commission, which, socner or later, must be organized for the consideration of such cases." Mr. Fish, Sec. of State, to Mr. Halpin, March 13, 1873, 98 MS. Dom. A claimant in a foreign state is not required to exhaust justice in such state when there is no justice to exhaust. Mr. Fish, Sec. of State, to Mr. Pile, min. to Venezuela, May 29, 1873, MS. See Mr. F. W. Seward, Act. Sec. of State, to Mr. Gibbs, min. to Peru, The stipulation of Article XIV. of the treaty between the United States and Mexico of 1831 for the protection of the persons and property of the citizens of the one country within the jurisdiction of the other, is "unreserved, except that, as may be supposed, redress is to be sought through the courts. This may be sufficient in time of peace, but when the courts themselves are closed by arms, and, even when peace may be restored, the authors of the injuries are notoriously incapable of making amends, even if sought through the judicial channel, the Government itself must be held to be directly accountable." Mr. Fish, Sec. of State, to Mr. Foster, min. to Mexico, No. 21, Aug. 15, 1873, MS. Inst. Mexico, XIX. 18. The foregoing instruction related to the case of Messrs. Ulrich and Langstroth, who made a claim against the Mexican Government for losses inflicted and forced loans imposed by insurgents at Monterey. In a subsequent instruction in the same case Mr. Fish said: "It can not be acknowledged, as Mr. Lafragua maintains, that diplomatic interference in such cases necessarily annihilates or trenches upon the peculiar functions of the judiciary of a country. In cases of a denial of justice the right of intervention through the diplomatic channel is allowed, and justice may as much be denied when, as in this case, it would be absurd to attempt to seek it by judicial process, as if it were denied after having been so sought." Mr. Fish, Sec. of State, to Mr. Foster, min. to Mexico, No. 54, Dec. 16, 1873, MS. Inst. Mexico, XIX. 48. For the full text of this instruetion, see infra, § 1046. "Mr. Lafragua seems to be confident that, as the victims of the forced loans have made no application to the judicial authori ties for relief, as is required by the treaty, the Government here is not warranted in asking compensation for them. It is not denied that, if the loan had been a voluntary one, the lenders should not have expected diplomatic interposition in their behalf, at least until they had exhausted all means of obtaining redress through the courts. When, however, money is wrested by threats or violence from a confiding foreigner by an insurgent chieftain, the victim cannot be expected to look for redress to the ordinary tribunals. It never could have been the intention of the treaty that, in such a case, he must seek reparation by such means. If so, justice and indemnity to the injured would so certainly be denied, that a recourse to diplomatic intervention, which according to public law would then be regular, might as well be adopted at once. No party would have any substantial interest put in jeopardy by such a step." Mr. Cadwalader, Act. Sec. of State, to Mr. Foster, min. to Mexico, No. 141, |