however, serves either to thwart the effort to invoke judicial aid, or to shatter confidence in the local judicial system. Hence, the situation commonly resembles one where justice is deemed to be wanting.

Whenever the discrimination is considered unjust because deemed to be in violation of the terms of a treaty, special grounds for diplomatic protest arise.1 As the breach of the agreement is a wrong peculiarly directed against another contracting party, and is likely to be applied generally to its nationals, the claim may be fairly regarded as a public one. In so far as it is based upon the interpretation of a treaty, it raises an issue not believed to be capable of final adjustment by any domestic tribunal; for the foreign contracting party may always rightly contend that it is not bound by the opinions of judges to whom it has not consented to refer its cause.2

Claims Arising from Acts Primarily Attributable to the Authorities of a State

(1)

§ 286. Arrest and Imprisonment.

It has been seen that in the enactment of criminal laws, and in their application without discrimination to aliens and citizens alike, the ultimate test of the propriety of the conduct of the territorial sovereign is the international standard which civilized States have fixed. It has also been observed that that standard is such as to enable each State to enjoy largest freedom in the administration of criminal justice. For that reason the rigor with which the territorial sovereign applies to aliens its criminal code will rarely be looked upon as decisive of internationally illegal conduct, when it appears that the proceedings are in every

1 Report of Thrasher's Case by Mr. Webster, Secy. of State, to the President, Dec. 23, 1851, 6 Webster's Works, 530, Moore, Dig., VI, 698.

2 See Operation and Enforcement of Treaties, Province of the Courts in the United States, infra, § 526.

3 Duties of jurisdiction, supra, §§ 266-267; also Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, Minister to England, April 25, 1882, For. Rel. 1882, 230-234, Moore, Dig., VI, 275–277.

Mr. Gresham, Secy. of State, to Mr. Morse, May 31, 1893, 192 MS. Dom. Let. 184, Moore, Dig., VI, 282. See, also, Mr. Root, Secy. of State, to Minister Furniss, May 4, 1906, concerning claim of M. J. Kouri, For. Rel. 1906, II, 871.

way regular.1 Even when an alien prosecuted in good faith and with careful regard for his rights of defense is, nevertheless, convicted of a crime of which he is innocent, the result does not necessarily indicate a denial of justice. Nor does the sustaining of the conviction by an appellate court of last resort indicate conclusively that the territorial sovereign has abused its right of jurisdiction or violated any principle of international law. The reluctance in such a case on the part of the State of the accused to interpose in his behalf for the purpose of either securing his release or of obtaining an indemnity, is due to the absence of internationally illegal conduct in the matter of prosecution The case differs from that where, notwithstanding delinquency on the part of the territorial sovereign, a foreign State deems it necessary to refrain from interposition until the accused shall have endeavored to obtain redress through domestic channels.

At any stage of his prosecution the accused may, however, be subjected to what may be regarded as internationally illegal treatment. This is obvious when, for example, the provisions of the local law are disregarded, or a treaty with the State of the accused is violated," or any requirement of the international standard, such as that forbidding the cruel or arbitrary treatment of prisoners, or the

1 Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé, at Vienna, April 6, 1855, MS. Inst. Austria, I, 105, Moore, Dig., VI, 275.

"Detention of witnesses to prevent their disappearance and insure their giving testimony when called for is common in the jurisprudence of all countries, and special provisions exist in those where the principles of the civil law are in force relative to the detention au secret of an accused person; but such detention should be reasonable and not unduly prolonged or harshly enforced, and is merely a temporary measure in the administration of justice." Mr. Frelinghuysen, Secy. of State, to Mr. Langston, Minister to Haiti, No. 324, Jan. 20, 1885, For. Rel. 1885, 490, Moore, Dig., VI, 773.

2 Mr. Frelinghuysen, Secy. of State, to Baron Schaeffer, Austrian Minister, June 28. 1882, MS. Notes to Austria, VIII, 338, Moore, Dig., VI, 765. See, also, Mr. Marcy, Secy. of State, to Mr. Starkweather, Aug. 24, 1855, MS. Inst. Chile, XV, 124, Moore, Dig., VI, 264; Same to Chevalier Bertinatti, Sardinian Minister, Dec. 1, 1856, MS. Notes to Italy, VI, 178, Moore, Dig., VI, 659; Thornton, Umpire, in Benjamin Burn Case, Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, III, 3140.

3 Mr. Gresham, Secy. of State, to Mr. Hevner, June 10, 1893, 192 MS. Dom. Let. 296, Moore, Dig., VI, 282.

4 Mr. Foster, Secy. of State, to Mr. Terres, Chargé at Port au Prince, telegram, Dec. 2, 1892, For. Rel. 1893, 358, concerning Case of Frederick Mevs, also other documents, id., 355-382, Moore, Dig., VI, 767-768. See, also, case of the unlawful treatment of W. H. Argall by Guatemalan authorities, For. Rel. 1894, 312, id., 1895, II, 771-775, Moore, Dig., VI, 768; Case of Charles Lillywhite, subjected to false imprisonment and deportation from New Zealand to England, For. Rel. 1901, 231-236, Moore, Dig., VI, 768.

Case of C. A. Van Bokkelen imprisoned in Haiti, Moore, Arbitrations, 1807-1853. Mr. Frelinghuysen, Secy. of State, to Mr. Soteldo, Venezuelan Minister,

refusal to hear testimony in their behalf, is unheeded.1 If the Department of State believes that for any of the foregoing reasons, an American citizen is being wrongfully held in restraint of his liberty, or subjected to ill-treatment, his release will be demanded. Thus in the case of A. K. Cutting, an American citizen, held in custody in Mexico in 1886, the United States was able to show that the criminal prosecution was an abuse of the right of jurisdiction and so contrary to international law, that the judicial proceedings preliminary to imprisonment were palpably unjust, and that the prisoner "was subjected to pains and depredations which no civilized Government should permit to be inflicted on those detained in its prisons." Mr. Bayard, Secretary of State, therefore, demanded (without success, however), the "immediate release" of the prisoner.2

More recently, in the case of Mr. W. O. Jenkins, the American Consular Agent at Puebla, who, after having been kidnaped by bandits and held for ransom in October, 1919, was, after his

April 4, 1884, concerning Case of John E. Wheelock subjected to cruelty by an officer of justice of Venezuela in 1879, For. Rel. 1884, 599, Moore, Dig., VI, 321; also concerning same case, For. Rel. 1885, 932-934; Mr. Evarts, Secy. of State, to Mr. Baker, Minister to Venezuela, Oct. 15, 1880, For. Rel. 1880, 1041, 1043, Moore, Dig., VI, 769; see, also, same to Mr. Langston, Minister to Haiti, No. 23, April 12, 1878, MS. Inst. Haiti, II, 136, Moore, Dig., VI, 656.

Cf. Mr. Blaine, Secy. of State, to Mr. Dougherty, Chargé, No. 423, Dec. 29, 1890, MS. Inst. Mexico, XXII, 687, Moore, Dig., VI, 773, concerning the enforced labor of two American citizens accused but not convicted of crime in Mexico; also Mr. Root, Secy. of State, to Mr. Furniss, Minister to Haiti, Feb. 1, 1907, concerning ill-treatment of David A. Backer, For. Rel. 1907, II, 742.

Mr. Conrad, Acting Secy. of State, to Mr. Peyton, Chargé to Chile, Oct. 12, 1852, MS. Inst. Chile, XV, 93, Moore, Dig., VI, 274.

2 Mr. Bayard, Secy. of State, to Mr. Jackson, Minister to Mexico, telegram, July 19, 1886, For. Rel. 1886, 700, Moore, Dig., VI, 281.

Not infrequently where it has appeared that the accused was not unjustly or even unreasonably being prosecuted, the United States has encouraged its representatives to exert their influence, for light punishment if not the release of the prisoner, especially where the commission of the offense charged was marked by the absence of circumstances indicating moral turpitude on the part of the actor. Mr. Uhl, Acting Secy. of State, to Mr. Tripp, Minister to Austria-Hungary, Nov. 17, 1893, For. Rel. 1894, 26, Moore, Dig.. VI, 766; Mr. Olney, Secy. of State, to Mr. Gould, June 29, 1896, 211 MS. Dom. Let. 149, Moore, Dig., VI, 766.

When an American citizen has been criminally prosecuted under circumstances creating suspicion as to the propriety or regularity of the conviction or punishment inflicted, the United States has not hesitated to request of the prosecuting State full information as to the conduct of proceedings. Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé at Vienna, April 6, 1855, MS. Inst. Austria, I, 105, Moore, Dig., VI, 283; Mr. Blaine, Secv. of State, to Mr. Ryan, Minister to Mexico, Feb. 16, 1891, MS. Inst. Mexico, XXIII, 38, Moore, Dig., VI, 284; Mr. Sherman, Secy. of State, to Mr. Sepulveda, American Chargé d'Affaires ad interim at Mexico, May 5, 1897, For. Rel. 1897, 396, Moore, Dig., VI, 285.

release, arrested and prosecuted by Mexican authorities on a charge of perjury in a judicial declaration, the Department of State demanded the release of the accused on the ground that Mexico was perverting its judicial system in prosecuting the victim instead of the perpetrators of the crime of abduction.1

Again, if the Department of State believes that from the nature of the offense charged or from the proceedings already instituted,

1 Mr. Jenkins was taken by bandits in the city of Puebla on Oct. 19, 1919, and held for ransom until Oct. 26, following, when he was released after having undergone physical suffering, his captors obtaining cash payments for a part of the sum demanded and security for the balance. In November, he was arrested by Mexican authorities on a charge of having made a false oath in a judicial declaration. On Nov. 20, 1919, the Department of State, through the Embassy at Mexico City, made peremptory demand for Mr. Jenkins's release, declaring that according to evidence in hand, the arrest was deemed "entirely unjustified and an arbitrary exercise of public authority." In a note of Nov. 26, 1909, Mexico declined to yield to this demand, declaring that the imprisonment was not unjust or arbitrary, and that there was evidence justifying the charge made. It challenged the propriety of diplomatic interposition in the case, and adverted to constitutional difficulties preventing the Executive from compelling a judge of a Mexican State court to release an offender. In this connection attention was called to the practice in the United States. In a reply communicated through the American Embassy at Mexico City, under date of Nov. 30, 1919, Secretary Lansing declared in substance that the Mexican arguments were mere excuses for the harassing of an American Consular Officer entitled to fair treatment. He contended that there had been a denial of justice, and noted the impropriety of the assertion of jurisdiction by a Mexican State court, in view of the constitutional requirement conferring jurisdiction in such cases on the Mexican Federal tribunals. He said: "Stripped of extraneous matter, with which the Mexican note of Nov. 26, endeavors to clothe it, the naked case of Jenkins stands forth: Jenkins, a United States Consular Agent, accredited to the Government of Mexico, is imprisoned for 'rendering false judicial testimony,' in connection with the abduction of which he was the victim." He contended in substance that the prosecution was allied with the abduction, in the sense that the abduction and what it entailed was the real cause of the prosecution which was undertaken for the purpose of harassing Mr. Jenkins, and that, therefore, no technical ground for demanding that the United States refrain from interposition was entitled to respect. On Dec. 4, 1919, Mr. Jenkins was released on bail furnished by another person. Somewhat later in December, the Mexican Government, in response to Mr. Lansing's note, declared that the release under bail should remove any motive for misunderstanding between the Governments concerned, and reiterated its contention that the criminal charge against Mr. Jenkins was not unfounded. The Mexican Government, it was said, could not admit that American citizens could be "tried and absolved on simple reports from the State Department, nor on recommendations or suggestions from the United States, instead of trying them by Mexican courts and according to Mexican laws." There appeared to be no disposition to abandon the prosecution. The Department of State was not, however, satisfied with the situation resulting from the release of the accused on bail.

On June 30, 1920, the Department of State reported the receipt of information indicating the confession by a number of peons before the criminal court at Puebla at a re-trial of Mr. Jenkins, that their previous testimony against him had been false, and that they had been forced to give such testimony under threats of death. It was also reported that one Cordova, later a general, had admitted to the court that he alone was responsible for the abduction of Mr. Jenkins. Dept. of State, statement for the Press, June 30,

the prisoner is exposed to improper treatment, it may demand assurance of his adequate protection at trial.1 Where, however, after his release from custody, the victim seeks pecuniary redress for irregular imprisonment, or on account of improper treatment accorded him during his restraint, the United States is not disposed to intervene when it appears that he can obtain redress by any local process, directed either against the territorial sovereign or the officials made by the local law responsible for the injuries. sustained. The exhaustion of the local remedy is thus made a

1920, No. 1. In December, 1920, it was reported that all charges against Mr. Jenkins had been dismissed by a Mexican court which had decreed his freedom and directed the return of bail. See New York World, Dec. 6, 1920. The case illustrates well how a territorial sovereign may pervert or permit the perversion of its judicial system for the purpose of persecuting an alien who, by reason of his official relation to his own State, as well as the treatment to which he has been subjected by criminal offenders, is entitled to special consideration. Under such circumstances the nature of the denial of justice is such as to sweep aside as unworthy of respect the claim that the State of the victim should refrain from interposition, and should await passively the progress and termination of the criminal prosecution. The practice which has developed the rule favoring a withholding of interposition in criminal cases until, at least, the accused has exhausted every local judicial remedy, is based on the principle that justice is within the reach of the aggrieved alien. Because it is commonly within the reach of such an individual prosecuted in the territory of an enlightened State, the principle has found abundant room for application. Whenever, however, a territorial sovereign, by reason of the abuse of those very agencies which should be devoted to a different purpose, applies them as an instrument of oppression, its action is likely to be seen in its true light and dealt with accordingly. No technical argument opposing interposition will in such event be regarded as other than a pretext to disguise the real purposes of prosecution, and as a means of escaping the consequences of it.

1 Mr. Bayard, Secy. of State, to Mr. Jackson, Minister to Mexico, No. 226, July 26, 1886, MS. Inst. Mexico, XXI, 535, Moore, Dig., VI, 281.

2 Mr. Bayard, Secy. of State, to Mr. West, British Minister, June 1, 1885, For. Rel. 1885, 450, 453-454, Moore, Dig., VI, 277-279; Same to Mr. Gebbard, Sept. 9, 1885, 157 MS. Dom. Let. 88, Moore, Dig., VI, 279; Mr. Buchanan, Secy. of State, to Mr. Pakenham, British Minister, Dec. 26, 1846, MS. Notes to Great Britain, VII, 149, Moore, Dig., VI, 659; Mr. Fish, Secy. of State, to Mr. Warren, Feb. 26, 1875, 107 MS. Dom. Let. 7, Moore, Dig. VI, 661; Mr. Day, Acting Secy. of State, to Messrs. Lauterbach, Dittenhoefer & Limburger, April 6, 1898, 227 MS. Dom. Let. 228, Moore, Dig., VI, 670; Mr. Hay, Secy. of State, to Mr. Lombard, Oct. 3, 1898, 232 MS. Dom. Let. 56, Moore, Dig., VI, 671.

See Award of Señor Quesada, Nov. 19, 1897, in Oberlander and Messenger Case, protocol between the United States and Mexico, March 2, 1897, For. Rel. 1897, 382, 387, 388, Moore, Dig., VI, 670.

In the J. R. Pierce Case, Mexican-American Commission, July 4, 1868, Thornton, Umpire, was of opinion that the reprimanding and dismissal of an official who had arbitrarily arrested an American citizen, freed the respondent State from the obligation to pay an indemnity. Moore, Arbitrations, IV, 3252.

In the Case of Tunstall, a British subject, killed in New Mexico in 1878 while pursued by a sheriff's posse, Mr. Bayard, Secy. of State, in denying the duty of the United States to pay an indemnity, asserted, first, that the killing, in personal malice, by an officer, of a defendant in a civil process in the officer's hand, and after the execution of the writ, was to be considered as col