While these states have invoked their sovereignty and independence as a legal justification for insisting on the duty of aliens to exhaust. local remedies and to refrain from calling upon the diplomatic protection of their own governments until a denial of justice in the courts is shown, they have not succeeded in securing a definite acceptance of this principle by the states of Europe. The European countries and the United States, invoking the right to protect their subjects abroad, upon which right the municipal law of Latin-America, they assert, can place no limitation, pass upon each case as it arises and determine for themselves whether it appears probable that a resort to local courts will afford an adequate remedy. Their unwillingness to remit their citizens unreservedly to the local courts of the more backward states of Latin-America seems to arise out of a lack of confidence in the impartiality of those courts and in their disposition to accord justice to the foreigner. This attitude of Europe is especially noticeable in cases where the Latin-American government is a party to the litigation. In a recent agreement between France and Venezeula for the settlement of certain claims of French citizens against Venezuela, it has been expressly provided, that after the adjudication of the Venezuelan courts upon a claim, France shall have the right to object to the decision and submit the claim to an arbitral commission. It is quite probable that with the growth of the weaker Latin-American countries in political stability, and, incidental thereto, an increasing confidence on the part of foreign countries in the impartiality and independence of the judiciary, foreign countries will give evidence of a greater willingness to submit the rights of their citizens and subjects to the decisions of the local courts, and to decline diplomatic interposition until local remedies have been exhausted.

2

§ 383. Qualifications of the Rule. When Unnecessary to Exhaust Local Remedies.

The rule that local remedies must be exhausted before diplomatic interposition is proper is in its application subject to the important condition that the local remedy sought is obtainable and is effect

1 Infra, §§ 390 et seq., 396.

2 Protocol between France and Venezuela, Feb. 11, 1913, art. II, Journal Officiel, June 17, 1913, p. 5198, printed in 7 A. J. I. L. (supplement), 218.

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tive in securing redress. If this condition is absent, it would be futile and an empty form to require the injured individual to resort to local remedies. As Secretary of State Fish tersely remarked: "A claimant in a foreign state is not required to exhaust justice in such state when there is no justice to exhaust." So, where the local tribunals are of such a nature that no confidence may be placed in them and no hope may be entertained of obtaining justice from them, or where there are no duly established courts to which resort is "open and practically available," 3 it is unnecessary to exhaust local remedies.

It is not easy to determine when a citizen injured abroad is to be remitted to his local remedies and when the government may make his case the subject of immediate diplomatic action. In a general way, this may be said to depend upon whether he has an effective remedy in the local courts, and upon whether the injury is of a nature sufficiently flagrant to warrant immediate diplomatic action without requiring a preliminary resort to or exhaustion of local remedies. The difficulty of stating any general rule arises from the fact that the claimant's government determines in its discretion which method of procedure is under the circumstances proper. In cases of wrongful arrest and false imprisonment by local authorities, the absence of any uniform rule is particularly apparent.5

4

1 Mr. Fish, Sec'y of State, to Mr. Pile, May 29, 1873, Moore's Dig. VI, 677.

2 Lord Palmerston on the Don Pacifico case v. Greece, Hansard, Parl. Deb. cxii, 381-383, 387; Mr. Everett, Sec'y of State, to Mr. Marsh, Feb. 5, 1853, in case of Dr. King v. Greece, Moore's Dig. VI, 262–264.

3 Mr. Bayard, Sec'y of State, to Mr. Buck, Min. to Peru, Nov. 1, 1886, Moore's Dig. VII, 267; Mr. Fish, Sec'y of State, to Mr. Foster, Aug. 15, 1873, ibid. 678; Gray v. U. S., 21 Ct. Cl. 340.

Mr. Bayard, Sec'y of State, to Mr. Morgan, April 27, 1886, H. Ex. Doc. 328, 51st Cong., 1st sess., p. 47; Mr. Blaine, Sec'y of State, to Mr. Shannon, Apr. 6, 1892, For. Rel., 1892, p. 34 et seq.; Lord Salisbury to Mr. St. John, Aug. 21, 1885, 77 St. Pap. 1212. Cases of illegal capture of vessels often dispense with requirement of exhausting local remedies. Cushing v. U. S., 22 Ct. Cl. 1, 44.

Resort to local remedies was apparently considered unnecessary in Mevs case v. Haiti, Moore's Dig. VI, 768; in case of Angell, Thomas and Pardee v. Guatemala; Master of Russian bark Hans v. U. S.; Hale's case v. Argentina; and Lillywhite case v. Great Britain, ibid. 768-769. It was insisted upon, however, in Warren's case in Ireland (ibid. 661) and in other cases in England, France and Honduras (ibid. 670-671).

The requirement of exhausting local remedies has been dispensed with as unnecessary by the Department of State when the action of the higher officials or authorities of the foreign government causing the injury has been arbitrary and unjust, and there appeared to be no adequate ground for believing that a sufficient remedy was afforded by judicial proceedings.1 The same principle has been applied by international arbitral commissions.2

3

Where recourse to or the prosecution of an appeal before the local courts appears useless or impracticable in affording a claimant relief, he has been excused from appealing to or exhausting his local remedies. This has been held in cases where the local courts were prohibited from entertaining jurisdiction of suits against the state; where the judges were menaced and controlled by a hostile mob; where the payment of a possible judgment was entirely a matter of discretion with the defendant government; 5 or where an appeal to the highest court from the circumstances of the case appeared impracticable.6 In these cases the resort to local courts would not have resulted in an effective remedy. In a few prize cases, it has been held that in face of a uniform course of decisions in the highest courts, a reversal

1 Mr. Hay, Sec'y of State, Oct. 25, 1901 in Venezuela, Asuntos Internacionales, 1903, 177; Mr. Frelinghuysen, Sec'y of State, to Mr. Morgan, May 19, 1884, and Mr. Bayard, Sec'y of State, to Mr. Jackson, July 20, 1885, Moore's Dig. VI, 679; Same to same, Sept. 7, 1886, ibid. 680; Mr. Cadwalader to Mr. Foster, Sept. 22, 1874, ibid. 678. See also 77 St. Pap. 1212 and 1225 and Akerman, Atty. Gen., in 13 Op. Atty. Gen. 547, 550.

2 Moses (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3127; Grannan (U. S.) v. Peru, Dec. 4, 1868, ibid. 1652; Johnson (U. S.) v. Peru, ibid. 1656; Davy (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 410.

3 Ruden (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1653, 1655; Grannan (U. S.) v. Peru, ibid. 1652; Johnson (U. S.) v. Peru, ibid. 1656; dictum in Fretz (U. S.) v. Colombia, Feb. 10, 1864, ibid. 2560; North and South Amer. Construction Co. (U. S.) v. Chile, Aug. 7, 1892, ibid. 2318 (arbitrary suppression of local remedy). See also supra, p. 339.

4 Grannan (U. S.) v. Peru, ibid. 1652, Johnson, ibid. 1656.

5 The Neptune (U. S.) v. Great Britain, Nov. 19, 1794, Moore's Arb. 3076-3100. This ruling has been made on several occasions in prize cases. Ship Governor Bowdoin v. U. S. (French Spoliations Act of Jan. 20, 1885, 36 Ct. Cl. 338; appeal court 9,000 miles distant); Ship Tom v. U. S., 29 Ct. Cl. 68; Carmalt (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 90, Moore's Arb. 3157; McLennan (Gt. Brit.) v. U. S., ibid. 3158. See also the Peggy, 1 Cranch, 103, 107.

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of the condemnation being hopeless, an appeal was excused; 1 but this rule was most strictly construed, and if a substantial right of appeal existed, failure to prosecute an appeal operated as a bar to relief.2 Where the question is presented as to whether the government of a country has discharged its duty in rendering local protection to the citizens of another nation, the United States has contended. that that government cannot be the final judge of its own conduct.3

A palpable denial of justice in the lower courts has on several occasions been held by the Department of State and by arbitral tribunals 5 to relieve a claimant from the necessity of exhausting his local remedies. A claimant is not, however, relieved from exhausting his local remedies by alleging his inability, through poverty, to meet the expenses involved; his ignorance of his right of appeal;7 the fact that he acted on the advice of counsel; or a pretended impossibility or uselessness of action before the local courts.9

6

8

We have already adverted to the attempts of the states of LatinAmerican to restrict aliens to their recourse to the local courts. When foreign governments deem the conditions of such recourse too onerous,

1 Kane's notes on commission of July 4, 1831 between U. S. and France, Moore's Arb. 4472; Bark Jones (U. S.) v. Great Britain, Feb. 8, 1853, ibid. 3046.

2 Schooner Peggy, 1 Cranch, 103, 107; Ship Tom, 39 Ct. Cl. 290; Brig Freemason, 45 Ct. Cl. 555, 560.

3 Mr. Blaine, Sec'y of State, to Mr. Dougherty, Jan. 5, 1891, Moore's Dig. VI, 805. 4 Mr. Bayard, Sec'y of State, to the President, Feb. 26, 1887, Moore's Dig. VI, 667; Mr. Bayard, to Mr. Copeland, Feb. 23, 1886 (dictum), ibid. 699; Mr. Marcy, Sec'y of State, to Mr. Clay, May 24, 1855, ibid. 659; Mr. Fish, Sec'y of State, to Mr. Pratt, March 20, 1875, ibid. 661.

5 Glenn (U.S.) v. Mexico, July 4, 1868, Moore's Arb. 3138 ("general unsympathetic attitude of the lower court"); Prize cases (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3152, 3159 (misfeasance or default of capturing government in preventing appeal, dictum by Frazer, commissioner); Montano (Peru) v. U. S., Jan. 12, 1863, ibid. 1630, 1634.

Mr. Adee, Act'g Sec'y of State, to Signor Carignani, Oct. 10, 1901, For. Rel., 1901, 310; Mr. Olney, Sec'y of State, to Mr. Dessaw, Nov. 19, 1896, Moore's Dig. VI, 670; Gravely (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3158; McLeod, ibid. 3158; Horton, ibid. 3158; Napier (U. S.) v. Great Britain, ibid. 3152.

7 Carson (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3157; Creighton, ibid. 3158.

8 Heycock (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3157.

'Diaz v. Guatemala, Central American Court of Justice, 39 Clunet (1912), 274.

e. g., as in the case of the Venezuelan law of Feb. 14, 1873, or consider the local remedy provided as insufficient to afford the necessary relief or redress, they will not regard their citizens as bound to resort to or exhaust their local remedies, but will in their discretion make the claim a subject of diplomatic negotiation.1

When the two governments have by agreement made a pecuniary claim the subject of diplomatic negotiation the claimant is considered as relieved of the necessity of having recourse to the local courts, unless his own government so consents and directs.2 It has already been observed that an agreement to arbitrate has been construed as having the same effect.3 The agreement is deemed to withdraw the case from the courts, the local remedy being superseded by the international remedy. Even apart from any agreement, when a citizen has appealed to his government for protection and the government has undertaken to support his claim diplomatically, recourse to the local courts is no longer necessary, unless required by his own government.*

LACHES, LIMITATION AND PRESCRIPTION

§ 384. Effect of Delay in Presenting Claim.

Closely related to the failure to exhaust local remedies is the unnecessary delay in resorting to a remedy. The claimant who permits too long a time to elapse before making known his claim, loses his remedy and therefore his legal right in all systems of jurisprudence. Domat well said: "The indolence of those who are dilatory in recovering their property and claiming what is due them, should be punished, and those who are indolent shall impute to themselves the punishment." 195 This principle has been denominated as a loss of right by prescription, a term which requires explanation for the lawyer of

1 Wharton, II, § 242, Moore's Dig. VI, § 990.

2 Moore's Dig. VI, § 989. See also U. S. v. Diekelman, 92 U. S. 520, 524, where the Court of Claims was designated as the appropriate forum with consent of Prussian government.

3 Day, Arbitrator, in Metzger (U. S.) v. Haiti, Oct. 18, 1899, For. Rel., 1901, 262 and supra, p. 819, note 2.

Mr. Hill, Act'g Sec'y of State, to Mr. Merry, Sept. 29, 1900, For. Rel., 1900, 809, Moore's Dig. VI, 685–686.

5 Domat, Civil and public law (Strahan's ed., 1732), Lib. 8, t. 7, § 4.