"Those who resort to foreign countries are bound to submit to their laws. The exception to the rule, however, is that when palpable injustice — that is to say, such as would be obvious to all the world is committed toward a foreigner for alleged infractions of municipal law, of treaties, or of the law of nations, the government of such foreigner has a clear right to hold the country whose authorities have been guilty of the wrong accountable therefor.' (Wharton's Dig., Vol. II, sec. 230, p. 612.)

"It is the right and duty of a government to judge whether its citizens have received the protection due to them pursuant to public law and treaties. 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 seek it by judicial process, as if it were denied after being so sought."" (Wharton's Dig., Vol. II, sec. 230, pp. 617-618; U. S. For. Rel., 1902, p. 848.)

In the Rudloff case (U. S. Venezuelan Arbitrations, 1903, pp. 182, 187) Hon. William E. Bainbridge, American Commissioner, referring to a no-reclamation clause in the Rudloff contract with the Venezuelan government, says:

"In regard to that portion of Article 12 of the contract inhibiting international reclamation, it is perfectly obvious that under established principles of the law of nations such a clause is wholly invalid. A contract between a sovereign and a citizen of a foreign country not to make matters of differences or disputes arising out of an agreement between them or out of anything else the subject of an international claim, is not consonant with sound public policy and is not within their competence. In the case of Flanagan, Bradley, Clark & Co., v. Venezuela, before the United States and Venezuela Commission of 1890, Mr. Commissioner Little said: 'It [i. e., such a contract] would involve, pro tanto, a modification or suspension of the public law, and enable the sovereign in that instance to disregard his duty toward the citizen's own government. If a State may do so in a single instance, it may in all cases. By this means it could easily avoid a most important part of its international obligations. It would only have to provide by law that all contracts made within its jurisdiction should be subject to such inhibitory condition. For such a law, if valid, would form the part of every contract therein made as if fully expressed in terms upon its face. Thus, we should have the spectacle of a State modifying the international law relative to itself. The statement

of the proposition is its own refutation. The consent of the foreign citizens concerned can, in my belief, make no difference — confer no such authority. Such language as is employed in Article 20 contemplates the potential doing of that by the sovereign toward the foreign citizen for which an international reclamation may rightfully be made under ordinary circumstances. Whenever that situation arises - that is, whenever a wrong occurs of such a character as to justify diplomatic interference- the government of the citizen at once becomes a party concerned. Its rights and obligations in the premises cannot be affected by any precedent agreement to which it is not a party, its obligation to protect its own citizen is inalienable.'

"The contingency suggested by Commissioner Little appears to have happened in the case of Venezuela, since Article 139 of the Constitution of 1901 provides that the inhibitory condition against international reclamation

shall be considered as incorporated, whether expressed or not, in every contract relating to public interest, and essentially the same provision was embodied in Article 149 of the Constitution of 1893. These constitutional provisions and legislative enactments of like nature are, however, clearly in contravention of the law of nations; they are pro tanto modifications or suspensions of the public law, and beyond the competence of any single power. For every member of the great family of nations must respect in others the right with which it is itself invested. And the right of a State to intervene for the protection of its citizens whenever by the public law a proper case arises cannot be limited or denied by the legislation of another nation.

"Mr. Justice Story says: "The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction. And however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction to places and persons upon whom the legislature have authority and jurisdiction.' (The Apollon, 9 Wheaton, 362.)

"The subject of international reclamation is by its very terms outside the legislative jurisdiction of any one nation. And it is, furthermore, an utter fallacy to assert that this principle is an encroachment upon national sovereignty. That nation is most truly sovereign and independent which most scrupulously respects the independence and sovereignty of other powers.

"Neither is it within the power of a citizen to make a contract limiting in any manner the exercise by his own government of its rights or the performance of its duties. A State possesses the right and owes the duty of protection to its citizens at home and abroad. The exercise of this right and the performance of this duty are as important to the State itself as the protection afforded may be to the individual."

It would seem that the State Department of the United States ought to declare in plain terms that the no-reclamation clause is invalid and void as contravening international law, and opposed to national public policy; and thus prevent any more such shameful miscarriages of justice as that which occurred in the Orinoco Steamship Company case, decided by Umpire Harry Barge. Such a declaration would also have a salutary effect upon these Latin-American dictatorships in lessening their practices of extortion from foreigners.

V. ARRAIGO

Foreigners often suffer much from the abuse of a process called arraigo, a writ prohibiting the person served upon from leaving the locality. The commonest purpose of this writ is extortion. In a civil suit, however frivolous and unfounded it may be, the person against whom this writ is issued is often held virtually a prisoner for months, until he "settles up."

Often the first intimation that the foreigner has of impending trouble is the service upon him of a writ of arraigo. If the Judge of the First Instance is in league with the plaintiff, as is frequently the case,

this writ becomes a powerful weapon against the victim. To obtain a change of venue, under Latin-American procedure, is always difficult, and quite impossible after the judge has obtained jurisdiction, - which he claims to have obtained by merely issuing the writ. Appeals are extremely slow. It may thus happen that a man is held by arraigo for six months or a year on the most absurd pretext, exposed to every humiliation and to the hardships and sufferings inevitable under such conditions.

CHAPTER XII

CONTROVERSIES BETWEEN AMERICAN CITIZENS AND LATIN-AMERICAN EXECUTIVES REGARDING CON

CESSIONS

T is an elementary principle of the common law that no man can be a judge in his own cause.

"The learned wisdom of enlightened nations and the unlettered ideas of ruder society are in full accordance upon this point." (Washington Ins. Co. v. Price, 1 Hopk. Ch. (N. Y.) 1.)

Judge Cooley, in his "Constitutional Limitations," at page 412, says: "To empower one party to a controversy to decide it for himself is not within the legislative authority, because it is not the establishment of any rule of action or decision."

The "American and English Encyclopedia of Law," 1st ed., Vol. XII, p. 41, lays down the doctrine that this principle of disqualification is to have no technical or strict construction, but is to be broadly applied to all classes of cases in which one is called upon to decide the rights of his fellow-citizens.

Thus a judge is disqualified to grant an injunction which would protect his own as well as plaintiff's property. (North Bloomfield, etc. Min. Co. v. Keyser, 58 Col. 315.) There are a vast number of decisions that the acts of a judge are not merely voidable, but void, when he is within the prohibition of self-interest.

"The effect of disqualifying interest is not confined to the judge interested; for if he take part, the action of the whole court is wrong, even though a majority be left without his vote. The word 'interest,' in a disqualifying statute, was construed by the court to mean pecuniary interest. . . . The most minute interest is sufficient to disqualify, unless the objection be removed by some positive provision of law to that effect. Accordingly, at common law, citizens who were taxpayers were incompetent to sit as judges in cases in which their own town or municipality was a party at interest.

"In the absence of statute any interest is enough to disqualify. And as has been indicated, the legislature would no doubt be unable to empower a judge to act in a case in which he had a direct, immediate, substantial interest. (Am. and Eng. Encyclopedia of Law, 1st ed., Vol. XII, pp. 46-47.)

I

This elementary principle of common law, relevant though it is, is yet wholly ignored by our State Department in passing on the rights and interests of American citizens and corporations in the LatinAmerican dictatorships.

The judiciary in Central or South America is not a co-ordinate part of the government; even the State Department at Washington would admit this. In a Latin-American country the executive, with the army at its back, is, in fact and theory, the supreme power. The judicial tribunals of Latin America have no army with which to enforce their decisions; the judges of the courts are appointed by the military executive and are entirely controlled by the appointing power, and, as is well known, are merely superior clerks to the supreme military chief.

Elsewhere in this work it is shown that almost every business in a Latin-American country is founded upon a concession from the executive. This concession is in the nature of a contract between the executive power of the country and the private individual, corporation, or partnership wishing to transact business there; and it is under the terms of this contract that the individual, corporation, or partnership in question is enabled to proceed.

The controversies arising between foreign citizens and the LatinAmerican dictatorships generally relate to these concessions. In the overwhelming majority of cases the so-called President of the Republic seeks to destroy the concession, or to disregard its principal provisions, after the foreigner has in good faith invested his money in the country, in the mistaken notion that he could rely upon the integrity of the executive power, the other party to the compact.

As soon as the supreme military chief has concluded that the funds of the foreigner are invested so "hard and fast" that it would be difficult if not impossible for him to extricate them, the period of spoliation and extortion begins. Usually the concession is declared null and void by the executive, or by some of his henchmen styled judges, or changes are forced upon it so vital as to render it entirely different from and far less valuable than the instrument on the strength of which the money had been invested.

It may be that the exasperated foreign investor, tired of paying endless levies, has stood firm in his resolution not to yield to further extortion, and that in consequence his property has been confiscated by or forfeited to the so-called government. When the case has reached this stage (most of them do reach it sooner or later), the quandary of the investor or the investor's manager, in the effort to preserve or retrieve the property, has become serious. To appeal to the local "courts" would be to appeal from the Dictator to his