the inability or unwillingness of the courts to entertain and adjudicate upon the grievances of a foreigner,' or the use of the courts as instruments to oppress foreigners and deprive them of their just rights 2 may each and all be regarded as equivalent to a denial of justice, excusing a resort to local remedies and warranting diplomatic interposition. Justice may also be denied by studied delays and impediments in the proceedings, which in effect are equivalent to a refusal to do justice.3 These principles apply with equal force to administrative authorities acting in a judicial or quasi-judicial capacity.4

Justice may be denied in the course of judicial proceedings in ways too diverse to recount in detail. It may be profitable, however, to mention some of the cases in which a denial of justice has been held to exist by the government of an injured individual or by an arbitral commission. For this purpose we may discuss (1) the denial of justice arising prior to the trial or hearing of a case, including a wrongful failure by the authorities to have recourse to judicial proceedings; (2) various forms of denial of justice or notorious injustice in the course of the trial or of judicial proceedings; and (3) acts occurring after the trial, including a grossly unfair decision, which have been construed as a denial of justice.

Among the first class of acts, in which the denial of justice is predicated upon wrongs inflicted by governmental authorities prior to trial, in willful disregard of due process of law, may be mentioned the arbitrary annulment of concession contracts without recourse to judicial proceedings; the seizure or confiscation of property without legal process;

5

6

1 Phillimore, II, 4, cited by Mr. Bayard, Sec'y of State, to Mr. McLane, June 23, 1886, Moore's Dig. VI, 266; Tagliaferro (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 765.

2 Mr. Marcy, Sec'y of State, to Baron de Kalb, July 20, 1855, 2 Wharton, 505; Mr. Buchanan, Sec'y of State, to Mr. Ten Eyck, Aug. 28, 1848, Moore's Dig. VI, 273; Mr. Marcy, Sec'y of State, to Mr. Clay, May 24, 1855, ibid. 659.

3 Fabiani (France) v. Venezuela, Feb. 24, 1891, Moore's Arb. 4878 at 4895, and authorities there cited.

4 Akerman, Atty. Gen., in 13 Op. Atty. Gen. 547; Poggioli (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 869.

5 Supra, p. 292.

62 Wharton, § 235, For. Rel., 1885, 525 (trespasses and evictions); Mr. Bayard, Sec'y of State, to Mr. Thompson, Mar. 9, 1886, Moore's Dig. VI, 704; Mr. Bayard,

4

2

1

unlawful arrest or detention of a person; the unduly long detention or imprisonment without trial or allegation of offense of persons accused of crime, either in violation of municipal law or of treaty; the execution of an accused person without trial; 5 the detention and confiscation of vessels without legal process; 6 inexcusable delay in investigating the circumstances of a charged offense preliminary to a criminal prosecution; 7 permitting a guilty person to escape or failure to institute proceedings against such a person; the intentional obstruction of claimant's attempt to obtain judicial redress; "

8

9

Sec'y of State, to Mr. Buck, Jan. 19, 1888, ibid. 254; Hammond (U. S.) v. Mexico, Apr. 11, 1839, Moore's Arb. 3241; Cheek (U. S.) v. Siam, Moore's Arb. 1899-1908, For. Rel., 1897, 461-480 (violation of treaty and of Siamese law).

1 Supra, p. 98.

2 Mr. Frelinghuysen, Sec'y of State, to Mr. Lowell, Apr. 25, 1882, For. Rel., 1882, 230, Moore's Dig. VI, 276; Mr. Bayard, Sec'y of State, to Mr. Jackson, July 26, 1886, ibid. 281. Cases before Spanish Treaty Claims Com., Final Report, p. 14. Supra, p. 99.

3 Driggs (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3125; Molière (U. S.) v. Spain, Feb. 12, 1871, ibid, 3252; The Jane (U. S.) v. Mexico, April 11, 1839, ibid. 3119; Kelley (U. S.) v. Mexico, Mar. 3, 1849, Opin. 312 (not in Moore). Supra, p. 99.

Mr. Buchanan, Sec'y of State, to Mr. Campbell, Dec. 11, 1848 (holding citizen "incommunicado"), Moore's Dig. VI, 274; Ingrid case, S. Rep. 824, 63d Cong., 2nd sess., H. Doc. 1172, ibid.; Sartori (U. S.) v. Peru, Jan. 12, 1863, Moore's Arb. 3120 (imprisonment without formal commitment and undue delay, 48 hours, in taking claimant's declaration); Cases before Spanish Treaty Claims Com., Final Report, p. 14. In time of war, the strict requirements of civil process are often suspended. Stetson (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3131. Supra, p. 99.

Portuondo (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 3007. The killing of Cannon and Groce by Zelaya without trial, instead of their treatment as prisoners of war, inasmuch as they were taken while fighting in the ranks of the revolutionists, constituted the basis of the U. S. claim against Nicaragua, 1909.

The Jane (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3119 (detention); Andrews (U. S.) v. Mexico, July 4, 1868, ibid. 2769; Stetson (U. S.) v. Mexico, ibid. 3131 (violation of treaty). Supra, p. 99.

7 Mr. Blaine, Sec'y of State, to Mr. Ryan, June 28, 1890, Moore's Dig. VI, 282; Renton claim v. Honduras, For. Rel., 1904, 352, 363; Bark Jones (U. S.) v. Great Britain, Feb. 8, 1853, Moore's Arb. 3054; Andrews (U. S.) v. Mexico, July 4, 1868, ibid. 2769.

8 Cases of Robert, in Spain, 1876 and of Capt. Cornwall in 1871, G. de Leval, § 99. See also supra, p. 218 and notes.

Mr. Evarts, Sec'y of State, to Mr. Fairchild, Jan. 17, 1881, Moore's Dig. VI, 656; Ballistini (France) v. Venezuela, Feb. 19, 1902, Ralston, 503,

1

unlawful change of venue; 1 fixing an unreasonably brief time in which to sue; 2 or illegal change in the personnel of the court or the use of other unlawful means to influence the court's decision.3

The methods by which justice may be denied in the course of a trial or judicial proceedings are too numerous to detail. In a general way, the conduct of a trial with palpable injustice or in violation of the settled forms of law or of those rules for the maintenance of justice which are sanctioned by international law 5 warrants diplomatic interposition. Thus, for example, a violation of the rules of municipal law or procedure or of treaties, by which injustice is perpetrated or a foreigner is unduly discriminated against,6 by the refusal to hear testimony 1 Bark Jones (U. S.) v. Great Britain, Feb. 8, 1853, Moore's Arb. 3048 (Opinion by Upham).

2 Mr. Hay, Sec'y of State, to Mr. Dudley, Mar. 28, 1899, Moore's Dig. VI, 1003. 3 Idler (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3517; Cases in Mexico, 1912-1914.

4 Mr. Evarts, Sec'y of State, to Mr. Langston, April 12, 1878, 2 Wharton, 623, Moore's Dig. VI, 623; Mr. Bayard, Sec'y of State, to Mr. Jackson, Sept. 7, 1886, Moore's Dig. VI, 680; Mr. Fish, Sec'y of State, to Mr. Cushing, Dec. 27, 1875, 2 Wharton, 621. The Rebecca, Mr. Bayard, Sec'y of State, to the President, Feb. 26, 1887, Moore's Dig. VI, 666–668 (U. S. did not press this case to successful settlement).

Vattel, Chitty-Ingraham ed., 165. Mr. Bayard, Sec'y of State, to Mr. Morrow, Feb. 17, 1886, Moore's Dig. VI, 280; Parrott (U.S.) v. Mexico, Mar. 3, 1849, Moore's Arb. 3009; Cotesworth and Powell (Gt. Brit.) v. Colombia, Dec. 14, 1872, Moore's Arb. 2050, 2081.

Mr. Marcy, Sec'y of State, to Mr. Fay, Nov. 16, 1855, Moore's Dig. VI, 655; Mr. Marcy to Baron de Kalb, July 20, 1855, 2 Wharton, 505; Mr. Bayard to Mr. Morrow, Feb. 17, 1886, Moore's Dig. VI, 280; Rozas (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 3124 (trial by military proceedings contrary to treaty); Van Bokkelen (U. S.) v. Haiti, May 24, 1888, ibid. 1812, 1845 (denial of right to make assignment, contrary to treaty); Cotesworth and Powell (Gt. Brit.) v. Colombia, Dec. 14, 1872, Moore's Arb. 2050, 2084 (absence of judge from official duties involving special damage); Garrison (U. S.) v. Mexico, July 4, 1868, ibid. 3129 (gross irregularities, and prevention of appeal by intrigue; Idler (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3517 (illegal change in personnel of court, and wrongfully invoking of obsolete remedy by government ending claimant's litigation in court); Diana, Gardner (U. S.) v. Great Britain, Nov. 19, 1794, ibid. 3073 (unjust order to pay costs under art. VII of Jay treaty); The Neptune (U. S.) v. Great Britain, Nov. 19, 1794, ibid. 3076 (arbitrary valuation and sale of captured cargo). The condemnation by a Russian prize court of the S. S. Oldhamia was considered by Sir Edward Grey as a denial of justice because against the weight of evidence. Misc. No. 1 (1912), Cd. 6011, p. 17; Pradel (U. S.) v. Mexico, July 4, 1868, ibid. 3141 (fine in course of illegal trial). See Bullis

3

on behalf of a defendant charged with crime,1 or an undue or needless delay in the trial or decision of a case,2 have all been construed as denials of justice. When feasible and where an effective remedy seems probable, all modes of appellate revision must be exhausted before diplomatic interposition becomes proper. It may be noted that irregularities in the course of judicial proceedings, not amounting technically to a denial of justice or an undue discrimination against a citizen (as an alien), have not been considered as a ground for the interference of the United States. It may not always be easy to determine when an irregularity is sufficiently gross so as to become a denial of justice. A denial of justice after trial may be said to occur when the proper authorities of a foreign country refuse to execute the laws as interpreted by the courts of the country or to give effect to the decisions of the courts; when they fail to punish guilty offenders, or mete out inadequate punishment; 5 when they grant a pardon or amnesty by which the alien plaintiff is deprived of the right to try the question of liability; when they unlawfully prevent an appeal by the claimant;7 (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 169, 170 (dictum) for criteria of denial of justice. For the position of the U. S. when an alien's treaty rights are violated by state authorities, see supra, § 45.

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1 Mr. Conrad, Acting Sec'y of State, to Mr. Peyton, Oct. 12, 1852, 2 Wharton, 613, Moore's Dig. VI, 275; Mr. Bayard to Mr. Jackson, Sept. 7, 1886, Moore's Dig. VI, 680; The Schooner Good Intent v. U. S., 36 Ct. Cl. 262.

2 Mr. Frelinghuysen, Sec'y of State, to Mr. Morgan, Mar. 5, 1884, Moore's Dig. VI, 277, 2 Wharton, 637; Protocol between France and Venezuela, Feb. 11, 1913, Suppl. to 7 A. J. I. L. (July, 1913) 218 (15 months' delay in judgment of municipal court gives international tribunal jurisdiction). See also the Sally, Hays (U. S.) v. Great Britain, Nov. 19, 1794, Moore's Arb. 3101-19. Supra, p. 99.

Mr. Marcy, Sec'y of State, to Mr. Starkweather, Aug. 24, 1855, Moore's Dig. VI, 264; Mr. Olney, Sec'y of State, to the President, Feb. 5, 1896, For. Rel., 1895, I, 257. Gross irregularities were considered a denial of justice in Garrison (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3129; Idler (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3510, 3517, 3524, and other cases cited in footnote 6, page 338.

E. g., neglect or refusal to execute judgment. Montano (Peru) v. U. S., Jan. 12, 1863, Moore's Arb. 1630, 1634; Fabiani (France) v. Venezuela, Feb. 24, 1891, ibid. 4878 at 4893, 4907 (in violation of treaty); Claim of W. R. Grace v. Peru, Mr. Neill to Mr. Hay, Sec'y of State, Nov. 19, 1903, For. Rel., 1904, p. 678.

5 Supra, p. 218, notes 2 and 3.

6 Supra, p. 218, note 6.

'Garrison (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3129.

or inflict unnecessarily harsh, cruel or arbitrary punishment upon a prisoner.1

It is also to be noted that a grossly unfair or notoriously unjust decision may be and has been considered as equivalent to a denial of justice. According to the older authorities, a judicial sentence notoriously unjust, to the prejudice of an alien, entitles his government to interfere for reparation even by reprisals. But the inference is that this doctrine is intended to apply primarily to the decisions of prize courts and not to those of municipal courts construing municipal law.1

3

§ 130. Extent to which Unjust Judgment of Municipal Court is Internationally Binding.

This brings us to one of the most difficult questions in international practice, namely, the extent to which an unjust judgment of a municipal court is internationally binding. When the court merely errs as to fact or the interpretation of its municipal law there appears to be, on principle, no ground for international reclamation, provided the court was competent and observed the regular forms of law.5 Given good faith, a fair opportunity to the alien to be heard, and the absence of discrimination between native and foreigner, it would seem that the judgment of a municipal court interpreting municipal law is internationally conclusive, even if in error. In practice, however, governments have assumed an extended right to protest diplomatically against the judgments of foreign courts affecting their citizens, when they consider the decisions grossly unjust. It may be added that the earlier

1 Supra, p. 99.

2 Mr. Evarts, Sec'y of State, to Mr. Foster, April 19, 1879, Moore's Dig. VI, 696 (collusive judgment); Bronner (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3134; Barron (Gt. Brit.) v. U. S., May 8, 1871, ibid. 2525, Hale's Rep. 164; Idler (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3491, 3510. See also Comegys v. Vasse, 1 Peters,

193.

'Dana's Wheaton, §§ 391-393, quoting Grotius, Bynkershoek and Vattel.

Dana's Wheaton, § 392.

* Grotius, Bk. III, ch. 7, § 84; Vattel, II, ch. 18, § 350; Klüber, 2nd ed., 1874, § 57; Fiore, Dr. int. pub., Antoine's trans., §§ 404-405; G. F. de Martens, Précis du droit des gens, § 94; Pradier-Fodéré, I, § 403; Pomeroy, Boston ed. (1886), by Woolsey, § 205; Baty, 1909 ed., 77 et seq.