Mr. Bayard to Mr. West.
Washington, June 1, 1885.
Sir: I have had the honor to receive your note of the 28th April last, and have given due consideration to the request therein presented that the pending claim of Mr. J. P. Tunstall, a British subject, for indemnity from the Government of the United States by reason of the murder of his son, John H. Tunstall, in 1878, in the Territory of New Mexico, should have examination and decision at my hands.
The facts of the case, and the assumed merits thereof, on which Her Majesty’s Government bases its expectation that the claim of Mr. J. P. Tunstall will be recognized by the Government of the United States, are so fully set forth in the correspondence exchanged between this Department and your legation since March 9, 1878, the date of Sir Edward Thornton’s note first presenting the subject, that a very brief summary will suffice for my present purpose.
John H. Turnstall, a British subject, domiciled in Lincoln County, in the Territory of New Mexico, where he carried on business as a ranch proprietor, is alleged to have been the partner of one Alexander A. McSween, against whose property writs of attachment had issued in a local suit. The sheriff of Lincoln County, Mr. Brady, sent his deputy sheriff, Mr. Matthews, to Mr. Tunstall’s ranch to attach certain stock and horses there as coming under the decree of the court. Mr. Tunstall appears to have admitted the service of the writ, and informed the deputy sheriff that he could attach the stock and leave a person in charge thereof until the courts should adjudicate the ownership as between Mr. McSween and Mr. Tunstall. The deputy sheriff did not in fact then attach the property found at Mr. Tunstalls ranch, and departed, as would appear, for the purpose of assembling a numerous posse, with which he returned to the ranch. Mr. Tunstall meanwhile had collected the stock and horses, and with them quitted the ranch, going in the direction of the county-town, Lincoln. The deputy sheriff deputized one W. Morton, with eighteen men of the posse, to follow Mr. Tunstall, with orders to seize the horses. After a pursuit of some 30 miles, Mortonand his party overtook Mr. Tunstall and the horses. What then occurred has not been developed by judicial proofs, but it is alleged on the part of Her Majesty’s Government that Morton’s party opened lire, that Mr. Tunstall abandoned the horses and sought safety in flight, and that he fell when he had ridden about 100 yards away, shot by two bullets in the head and breast.
It is stated by a special agent of the Department of Justice who investigated the case “that Morton, Jesse Evans, and Hill were the only persons who saw the shooting, and that two of these three persons murdered him” [Tunstall]. Of these persons, Morton and Hill were afterwards killed, and there is no knowledge that the survivor, Jesse Evans, has been brought to justice for his complicity in the murder of Mr. Tunstall.
Upon this statement of facts, for which we are dependent in great part on the report of the special agent of the Department of Justice, who further alleges that the members of the pursuing party were at personal enmity with Mr. Tunstall, Her Majesty’s Government claims, in brief, that the sheriff of Lincoln County, New Mexico, acting through his deputy, and he in turn through the subdeputized leader of the pursuing [Page 451] party, Morton, is accountable for a murder committed in the execution of a process of law, and that the father of the murdered man, having a pecuniary interest in the life of his son, based on the business operations carried on by him, has a right to recover indemnity from the Government of the United States, whose agent the sheriff is asserted to have been. The actual presentment of this claim for indemnity is thus made in Sir Edward Thornton’s note of June 23, 1880:
It appears that Mr. J. P. Tunstall has it not in his power to recover damages from the Territorial Government of New Mexico by proceedings at law or otherwise. A citizen of the United States would in a similar case probably appeal to Congress; but this remedy is not open to an alien. Earl Granville has therefore instructed me to present to the Government of the United States a claim on behalf of the father, Mr. J. P. Tunstall, for such compensation as upon examination of the injury and losses sustained may be found to meet the justice of the case.
It seems unnecessary, in this review of the facts, to summarize the allegations upon which much of the correspondence hinges, that Mr. Tunstall, by his honest and fearless course in Mew Mexico during his domicile there, had incurred the enmity of Sheriff Brady and of men who were joined to the posse which pursued and murdered him, and that the sheriff, by his laxity in following up the alleged murderers, has demonstrated his sympathy, if not his connivance, with them.
These allegations, which, if judicially substantiated, might make a strong case against the guilty parties, do not modify the essential point, which is, that the writ under which the sheriff acted was issued in merely civil process, against property only, not against the body of the deceased, and that resistance to a writ of this nature could not call for or warrant the resort to such violence upon the person of the resisting party as appears to have been committed. Killing, in personal malice, by an officer, of a defendant in a civil process in such officer’s hands, such killing being subsequent to the execution of the writ, is as collateral to the official action of the officer as would be the commission of arson, against the dwelling, or rape of a member of the family, of the party by such an officer after the civil process has been served. Hence the attendant animus may be left aside in the consideration of this case; for the personal motive which may prompt an agent to do an unlawful act not within the scope of his agency, and entirely collateral to it, can in no wise affect the question of the alleged responsibility of the principal for the agent’s acts; unless, indeed, it be shown that the principal shared in the criminal motive and constituted his agent to the end of its accomplishment, which allegation I do not imagine can be made against the Territorial government of New Mexico or the Government of the United States.
With the correspondence between Sir Edward Thornton, and my predecessors in office touching the position of Her Majesty’s Government that this Government is liable for lawless acts committed by individuals charged with the execution of legal process within the United States, you are of course familiar. You will recall the suggestion made to yourself by Mr. Frelinghuysen, January 30, 1882, to refer the Tunstall claim, under authorization of Congress, to the Court of Claims or other judicial resort, and the rejection of that suggestion by Her Majesty’s Government, because the proposed adjudication would not be based on a prior admission of the liability of the United States in the premises subject to the facts being established after judicial inquiry. You will also recall your communication to Mr, Frelinghuysen, under date of June 30, 1882, of Earl Granville’s intimation of “the hope of Her Majesty’s Government that the Government of the United States will [Page 452] be able to meet their views in this long pending case, and to suggest some other mode of disposing of it.”
With that intimation discussion of the matter came to a halt, and I can readily understand the inability of my predecessor “to suggest any other mode of disposing of it.” In fact, I can quite confidently surmise Mr. Frelinghuysen’s conviction that, in suggesting the domestic submission of the merits of the case to a quasi-judicial resort, including in such submission the fundamental question of national liability, the executive had strained to the uttermost any possible conception of its discretion in the premises. For such a forum, being necessarily of domestic institution and possessing no international jurisdiction or power to enforce its conclusions, could only be properly regarded as an advisory body, entitled to respect by reason of its evident moral competency and impartiality, and the submission thereto of the point at issue could only be deemed a voluntary, and temporary delegation of a function of decision inherent in the national sovereignty.
It is not necessary, in giving a final answer to the questions presented by Her Majesty’s Government in this case, to recapitulate the positions taken by Mr. Evarts in his note to Sir Edward Thornton of March 7, 1881. Waiving, in the present discussion, the positions so taken, the first question that meets us on the examination of the claim is as to the liability of the Government of the United States for the debts or torts of officers of a Territory organized under Congressional legislation. That the United States Government is not so liable has been more than once held by courts in the United States.
The very question, however, of such liability was adjudicated by the Joint Commission appointed under the convention of February 8, 1853, for the adjustment of claims then unsettled preferred by citizens of the United States against Great Britain, and by subjects of Great Britain against the United States. The commissioners were Mr. Upham, on the part of the United States, and Mr. Hornley, on the part of Great Britain. The commissioners met in London, on September 15, 1853, and chose Mr. Bates, of London as umpire. Among the claims presented was one by British subjects, based on bonds issued by the Territory of Florida before the admission of Florida as a State.
The case was argued on behalf of the claimants by Messrs. Bolt, Cairns, and Hannen, who afterwards acquired great eminence on the bench, and by Mr. Thomas as agent and counsel for the United States. The claim was based on the assumption that, as Congress could remodel or veto Territorial legislation, the Government of the United States was liable for the conduct of Florida creating indebtedness to a subject of Great Britain. Mr. Bates, however, as umpire, dismissed this position summarily, saying:
The first ground of claim [that above stated] need hardly be treated seriously; it might as well be contended that the British Government is responsible for Canada’s debentures, because all the acts passed by the Canadian Parliament require the sanction of the home government before they become laws. (Proceedings of the Joint Commission, Washington, 1855.)
If the British contention in the present case be good, then the British Government would be liable, not only for the debts of Canada, but for the torts of all the officers of Canada.
Such a position, it is now submitted, is not merely in conflict with the political basis on which rests the colonial system of Great Britain, but, the case being reversed, is in like conflict with the Constitution of the United States. On Great Britain, in fact, the doctrine of the liability of the sovereign for the torts or debts of dependencies over which he [Page 453] has a general restrictive control would operate far more seriously than on the United States, since it would make Her Majesty’s Government liable for the misconduct of local officials, not merely in Canada, but in India, in Australia, in South Africa, and in Egypt.
But it is not desired to rest our resistance to this claim exclusively on the above position. Appealing to principles acknowledged in common in England and in the United States, it is, in addition, maintained that in countries subject to the English common law, where there is the opportunity given of a prompt trial by a jury of the vicinage, damages inflicted on foreigners on the soil of such countries must be redressed through the instrumentality of courts of justice, and are not the subject of diplomatic intervention by the sovereign of the injured party.
The position thus stated finds many illustrations in the history of the diplomatic relations of Great Britain and of the United States. Prior to the occurrences now under consideration there must have been many cases in which British subjects supposed that they had suffered loss through the negligence or the malice of subordinate officers of the different States and Territories composing this Union, but no record can be found, at least on the files of this Department, of cases in which, when redress could be had by appeal to local courts of justice, an attempt has been made to substitute for such redress a demand upon the Government of the United States for pecuniary compensation. The same may be said of the many cases in which citizens of the United States may have suffered, or claim to have suffered, injury in Great Britain from the conduct of British officials. When such injury was inflicted upon the high seas, or in foreign uncivilized lands, and especially if inflicted by the armed military or naval power directly emanating from the sovereign executive, then it was properly regarded as the subject of diplomatic intervention; but a careful search in the records of this Department discloses no diplomatic appeal for pecuniary compensation for injuries claimed to have been inflicted on American citizens when on the soil of Great Britain.
As showing the strictness with which this distinction is maintained may be mentioned the case of Mr. Henry George, a citizen of the United States, distingushed as a man of letters, and as a lecturer, who traveled in Ireland in 1882. Mr. George, as was afterwards fully shown and conceded, was in no way concerned in any seditious or other illegal proceedings against the peace of Great Britain, and there was no evidence produced, either at the time or since, which suggested the faintest prima facie case to justify arrest. He was, however, arrested at Loughrea on August 8, 1882, without warrant, by governmental subordinates, his baggage searched, his letters and papers ransacked, and his person treated with indignity. He was discharged, on the ground that there was no case against him, and proceeded on his journey, occupied in part in visiting the antiquities and other interesting features of the country. Two days afterwards at Athenry, a few miles distant from Loughrea, when about entering on the train for Gal way he was again arrested, his baggage again searched, his papers again inspected, while he was kept until midnight a close prisoner by the same magistrate who had examined and discharged him at Loughrea. He was again discharged for the same reason that no case existed against him, although this should have been as fully known by the magistrate at the time of the second imprisonment as at the time of the first discharge.
The question of the amount of pecuniary compensation to which Mr. George would have been entitled in a court of justice is not now material. So far as concerns the principle, it makes no matter whether [Page 454] the injury inflicted on him touched his life, or merely his liberty and the sanctity of his property for a few hours. And, so far as concerns this principle, it is worthy of notice, in this relation, how clearly the question of liability is defined by Mr. Frelinghuysen in his instruction to Mr. Lowell of October 3, 1882.
While citizens of the United States traveling or resident abroad are subject to the reasonable laws of the country in which they may be sojourning, it is, nevertheless, their right to be spared such indignity and mortification as the conduct of the officers at Loughrea and Athenry seems to have visited upon Mr. George.* * * As you have already addressed a note to Lord Granville on this subject, a reply will probably soon be received by you. It is trusted that the tenor of that reply may prove satisfactory to this Government, and also relieve Mr. George from any reproach the arrests are calculated unjustly to cast upon him.
It will be observed that there is here no claim whatever for pecuniary compensation to Mr. George. That claim, it is tacitly assumed, is to be remitted to British courts of justice. The request is for explanation to the Government of the United States and exoneration of Mr. George from “reproach.” Yet the arrest of Mr. George, and that of other “suspects” under the recent crimes act, was not, it must be remembered, in the course of the English common law. There was apparently no responsible prosecutor, there was no hearing in which witnesses could be met face to face, and consequently, under the cover of a legislative enactment for the time being, the sufferer was denied all opportunity to establish the possible malice of the allegation which led to his arrest, or to identify the secret accuser who could therefore with impunity wound his sensibilities and subject him to serious distress and suffering. Had there been a commitment, it would not have been in view of a speedy jury trial. Under these circumstances, the case would not have fallen under the rule announced above, that where a foreigner claiming to be injured has redress by an appeal to the courts in the processes of the English common law, a diplomatic demand for indemnity will not be granted by the Government of the country in which the injury is claimed to have been received, yet, even in the case of Mr. George and other citizens of the United States put recently without probable cause under summary arrest in Ireland, we hear of no demand made by the Government of the United States for pecuniary compensation.
The reason why, in countries subject to the English common law, the question of compensation to foreigners for injuries received on the soil of such countries is exclusively committed to the courts of justice in the place of the injury, is to be found in two conditions:
The first is, that, as has been already noticed, the party injured has the advantage by that law, of a prompt trial by an impartial jury drawn from the vicinage, under the supervision of judges whose integrity, whether it be in England or in the United States, has, viewing them as a body, never been impeached, and who are subject to established and impartial rules of law. The second condition is, that, by the English common law, foreigners, when appealing to courts of justice, have equal rights with subjects. It is not so in other systems of jurisprudence; and it is natural, therefore, that under such other systems of jurisprudence the appeal of a foreigner for compensation should lie, not to the courts which impose upon him unjust discriminations, but through his own sovereign to the sovereign of the country in which the injury has been received. But in countries subject to the English common law, every facility which is given to a subject when approaching a court of justice is given to a foreigner making such approach.[Page 455]
It is impossible to study, in particular, the annals of English jurisprudence without being struck with the delicate and honorable conscientiousness with which the rights of foreigners in this relation have been maintained. If, in such cases before the English tribunals, there has been any appeal to generosity and sympathy, this has not been in favor of the subject against the foreigner. Nor has it made any difference that the party sued by the foreigner was an officer of the Government.
Numerous cases of this kind where the plaintiff was a foreigner and the defendant an officer by whom he was assaulted, or falsely imprisoned, or maliciously prosecuted, are reported in the English books, and in no one of these cases can it be alleged that justice was not meted to the foreign plaintiff as freely as if he had been a British subject. It is with some pride, also, that it may be declared by this Department that throughout the United States the same impartial justice is administered. Even beyond this, in its scrupulous protection of the rights of foreigners, has our peculiar jurisprudence gone. A citizen of one of our States, injured in such State by a person resident therein, is, in ordinary cases, limited to the State courts for redress. A foreigner suing in such State is given the election between the State courts and the district courts of the United States.
The practical result of this fair dealing is even more marked in this country than in England. There are reported in our books multitudes of cases in which local officers of justice have been sued by foreigners in our courts for false imprisonment or for malicious prosecution or for assault, and this must needs be the case in communities like ours, in which a large proportion of the population consists of foreigners unfamiliar with our laws.
In not one of these cases, however, has it ever been maintained that the foreign plaintiff had not at least the same privileges awarded to him as he would have had if he had been a native citizen, nor can the most jealous scrutiny of the proceedings show in a single case any misstatement of law to his disfavor. The first instance, in fact, in which, instead of an appeal to the courts thus open, diplomatic intervention through a sovereign is urged, is that which we now have to discuss.
Sir Edward Thornton, in his note to Mr. Blaine, of June 16, 1881, took exception to the position attributed to Mr. Evarts that the laws of the Territories, like the laws of the States of the Union, are to be administered by the respective tribunals and officers, free from any control or interference of the Federal Government; but those exceptions were advanced equally on the hypothesis that the acts charged might have been committed in a State of the Union, in which case, as I understand Sir Edward’s presentation of Lord Granville’s argument, Her Majesty’s Government would have claimed that the Federal responsibility still accrued. Without recapitulating the position set up by Mr. Evarts, in technical bar of this claim, and without in any degree waiving the position with which this note sets out, that the Government of the United States is not and cannot be liable for the torts or contracts of the Territories, it must be remembered that New Mexico possesses a duly perfected political organization, which, under the Federal Government, includes the executive and judicial departments existing side by side as co-ordinate yet independent powers, and that, in the courts of New Mexico, foreigners have the same rights of redress as citizens.
The fact that the authority of those departments emanates equally as to both from the Federal Government, is no reason why either should not be regarded as sole and supreme in its particular functions, or why matters belonging to the judicial department of the Territory should be [Page 456] taken under control and determined upon by the Federal Executive acting either directly or through the Territorial governor. For the Federal Executive to take the case out of the control of the judicial branch would at once be to abrogate the constitutional distinction between the Executive and the judiciary, and be manifestly an usurpation by the Executive of a jurisdiction distinctively judicial, by so arrogating to itself a function exclusively delegated to the courts. It is impossible to see how this could be done in the present case, for the avowed purpose of creating in favor of a foreigner a resort other than and different from that which he possesses in common with native citizens, without violating essential constitutional distinctions and at the same time throwing unmerited discredit on our local judicial system and departing from an unbroken line of precedents, which by themselves have become a law.
That when the courts of justice are open to a foreigner in a State, the Federal Executive will not take cognizance of his complaint, was maintained by Mr. Evarts and Mr. Blaine, on December 30, 1880, and March 25, 1881, when declining to accept for the Executive jurisdiction over a claim for damages to certain Chinese inflicted by a mob in Colorado in November, 1880. (United States Foreign Relations, 1881, pp. 319, 335.) The same position was taken by Mr. Webster in his note of November 13, 1851, to Mr. Calderon de la Barca, who made claim for damages sustained by the Spanish consul and Spanish citizens from a mob in New Orleans, in the preceding month. It was agreeed that reparation should be made to the consul, on the ground of his public character. It was otherwise, Mr. Webster maintained, as to Spanish citizens. “Private individuals,” he said, “subjects of Her Catholic Majesty coming voluntarily to reside in the United States, have certainly no cause of complaint, if they are protected by the same law and the same administration of the law as native-born citizens of this country.” And, resting in like manner on the position that the Executive cannot, within its constitutional function, invade the functions of the judiciary, this conclusion applies as fully to a Territory as it does to a State, and was reached by Mr. Butler, Attorney General during Mr. Yan Buren’s administration, in a letter to the President, dated July 5, 1837. (Opinions of the Attorneys-General, III, 253.)
The principle is therefore to be regarded as adjudicated and established by the highest international and domestic authority in accordance with the enunciation above given.
It is interesting to observe that in England the same demarkation between executive and judicial functions has been preserved under circumstances not unlike the deplorable case now brought before us. In 1780, in a riot directed, in a large measure, against foreigners of the Roman Catholic faith, the property and persons of such foreigners were subjected to atrocious outrages, yet no instance is reported of appeals by the sovereigns of these foreigners to the British Crown for remuneration. The various riots which, during Lord Liverpool’s administration, were incited for the purpose of driving off foreign citizens and destroying their machinery, were not followed, as far as we can learn, by any diplomatic action for the pecuniary remuneration of the parties injured; though we are informed, from the records of the courts, of prosecutions by which, in the ordinary course of justice, the perpetrators of those wrongs were punished.
And in 1850, the distinction before us was enunciated by the British Government under circumstances of peculiar interest. On September 4 of that year, General Haynau, an Austrian officer, who, whatever may [Page 457] have been his severity as a commander in the civil war in which Austria had been engaged, was nevertheless a distinguished representative of a country with which Great Britain was then at peace, visited, with two of his aids, the brewery of Messrs. Barclay, Perkins & Co., then one of the famous objects in London, which strangers were accustomed to inspect. General Haynau was charged with no indecorum in his visit. It became known, however, to the porters and other workmen, who he was, and he was subjected to what Lord Palmerston, in his note in reply to Baron Roller’s demand of investigation, admits to have been “outrageous violence and insult.” (Viscount Palmerston to Baron Roller, September 14, 1850, British and Foreign State Papers, XLII, 389.)
To the demand of the Austrian minister for executive intervention, however, the answer was, “that no proceedings can be taken in this case which are not in accordance with the ordinary administration of law.” If a civil suit was to be brought, it was intimated General Haynau must bring it; if a criminal prosecution for assault was to be instituted General Haynau must appear as prosecutor; and as General Haynau did not desire to take such a responsibility, no redress at all was given. The case was an extreme one. The attack had no color of excuse. The party attacked was an aged man, at the time defenseless, an eminent servant of the Austrian Crown, who, if any person not a foreign ambassador could properly appeal for diplomatic intervention, could make such an appeal. The outrage was offered in such a shape as to make it an offense against the Austrian sovereign under whose orders General Haynau had acted in the matters which had provoked the indignation of the workmen at the brewery. Yet, even in this extreme case, the British Government laid down, and laid down properly, the rule that for injuries inflicted on a foreigner on English soil, redress must be sought, not from the executive, but from the courts. And this rule is not affected by the circumstance that it does not appear that any agents of the civil authority, whether in the exercise at the time of civil functions or not, were participants in the acts of outrage complained of, for those acts could not have been deemed in any case to have fallen within the scope of their agency.
Undoubtedly, as is stated by Sir Edward Thornton, “the citizens of the different States of the Union would be entitled to recover compensation for lawless acts committed under the like circumstances to those that have occurred in New Mexico.” (Sir Edward Thornton to Mr. Blaine, June 16, 1881.) But this must be by an appeal, not to the Executive, but to the courts; and the precedent just noticed is made still more impressive from the fact that the outrage was committed, not in a wild, remote, and newly-settled country, but in the metropolis of the realm, at the center of the executive and judicial systems of Great Britain, and under the supervision of an ample and well-disciplined police.
To accept the position of the British Government in this matter would, moreover, lead to utter confusion in the constituted arrangements of our system, which, like that of England, sedulously maintains the executive, judicial, and legislative departments distinct from each other.
The claim now put forward, if allowed, would usurp judicial functions by the executive and legislative branches, and would substitute a government of will for a government of law. Private loss and injury ensue from temporary disorders and breaches of the peace under any government. To cite a recent instance near at hand, in 1878 three thousand loaded railway cars were destroyed by a mob at Pittsburgh, in Pennsylvania. For this loss, suits were brought in the courts of law against the municipality of Pittsburgh and judgment recovered. The city applied to the State by petition, and the legislature passed an act to reimburse [Page 458] the city. Whether any of the litigants against the municipality were British subjects does not appear, but if there had been such, their claims would have been heard and decided the same as if they had been citizens of the United States. No person who lost his property, nor the relatives of any who lost his life—and many lives were lost—ever pretended to hold the United States Government responsible.
Under no aspect of the case is there any right under our law to redress such injuries as Mr. Tunstall suffered, which is not as open to a foreigner lawfully within the United States as to any one of our own citizens. There is no discrimination between them in the forum in which all such claims are to be heard and decided, and that sole forum is provided in the courts of justice.
The injury complained of is a personal tort, founded as would appear from the allegations contained in the statements submitted on behalf of your Government, on personal motives of malice and vindictiveness in the breasts of the aggressors. For such a tort the guilty party may properly pursued and punished. But it was not an act of the Government. It was executed neither by its orders, nor in any way for its benefit, but, on the contrary, in opposition to its laws and in violation of its peace. Aside from other considerations, the doctrine of agency would wholly refute such a claim, for the rule of respondeat superior does not include acts of disobedience to the superior and wholly outside the scope of the agency.
The propositions hereinbefore stated are abundantly sustained by an eminent English publicist, as highly esteemed in this country as in England, whose recent decease is so greatly mourned. “The state,” says Sir R. Phillimore (International Law, II, 4), “must be satisfied that its citizen has exhausted the means of legal redress offered by the tribunals of the country in which he has been injured. If these tribunals are unable or unwilling to entertain and adjudicate upon his grievance the ground for interference is fairly laid.
“But it behooves the interfering state to take the utmost care, first, that the commission of the wrong be clearly established; secondly, that the denial of the local tribunals to decide the question at issue be no less clearly established. It is only after these propositions have been irrefragably proved, that the state of a foreigner can demand reparation at the hands of the Government of his country.”
This position is thus affirmed by Chief Justice Waite in the case of New Hampshire vs. Louisiana (108 U. S. Reports, 90):
There is no principle of international law which makes it the duty of one nation to assume the collection of the claims of its citizens against another nation, if the citizens themselves have ample means of redress without the intervention of their Government. Indeed, Sir Robert Phillimore says, in his Commentaries on International Law, Vol. II, 2d ed., page 12: “As a general rule, the proposition of Martens seems to be correct, that the foreigner can only claim to be put on the same footing as the native creditor of the state.”
It is often profitable in the discussion of international questions of this character to step aside and to consider the results which would flow, in practice, from the mutual admission of the point in contention. So it may be permissible to notice, although it is unnecessary to do more than merely notice, the great inconvenience which would follow the adoption of a precedent such as that now sought to be established by Her Majesty’s Government, and which must be presumed to be intended as mutual in the relations of the two countries. Aside from the question of the constitutional barrier between the judicial and the executive branches, it must be remembered that in the executive department there is no machinery provided for examining witnesses or obtaining a juridical verdict on disputed facts.[Page 459]
Were the proposed precedent established, ail suits or claims whatever in which foreigners are plaintiffs or prosecutors would be poured into this Department. Not only would the office in charge of the foreign intercourse be in consequence compelled to assume control over a mass of litigation which it has no means of satisfactorily managing, but the dangers of complications with foreign powers would be infinitely increased. Nor could such an access of business be productive of less inconvenience and embarrassment to the British foreign office, and to ourselves in dealing with that office. Heretofore the complaints made by us to that office for the release of American citizens who were imprisoned as “suspects” have been satisfactorily adjusted, since all that we have asked has been a release, which was the subject of ready determination. The issues would be far different, and could not fail to be accompanied by much irritation, if, in such cases, by adopting the suggested precedent, Her Majesty’s Government should invite demands in its executive capacity to pay the damages sustained by the parties imprisoned. And the irritation in such a case would not be lessened by the fact, already adverted to, that those arrests were made, not in subjection to English common law precedent, but in defiance of such precedent, taking the case out of the rule announced at the beginning of this note, which gives the judiciary exclusive jurisdiction when acting according to the practice of the English common law.
In this relation, also, it may be proper briefly to advert to the bearing on this case of the position lately taken by the British foreign office, that an American citizen, even when passing transiently through the British dominions, is bound by British allegiance, and required to submit himself to all the conditions of British law.
But Mr. Tunstall, in the present case, was not, at the time of the lamentable occurrence complained of, transiently passing through the United States. He had entered upon what appears to have been a permanent residence in New Mexico, and had engaged in a business conditioned on such permanency. If, as we must infer from this, when there is no evidence to the contrary, he was then domiciled in New Mexico, he was not even, as far as concerns the administration of the judicial function there, a foreigner, and, on this issue alone, his representatives cannot appeal to the Government of his established domicile through a foreign sovereign for redress. Their rights are cognizable only because they may be proved to flow from the personal status of the decedent, and are therefore dependent upon the judicial proceedings of the country of the decedent’s domicile.
This is doubly clear when we recall the statements made by your predecessors in support of the demand for pecuniary indemnification, that the father of the decedent was a party in interest in his son’s enterprise, and had advanced sums to aid in the establishment of the business set up in New Mexico. If Mr. Tunstall died intestate, and left any personal property in New Mexico, it would pass under the laws of that Territory and be distributed in accordance therewith. And such being the law, based on Mr. Tunstall’s domicile in New Mexico, his representatives have, under the law of nations, no title to the intervention of a foreign sovereign.
After a full review of all the facts and circumstances of the case, I am constrained to inform you that this Government cannot admit any liability as attaching to it in the premises, either directly toward the representatives of the murdered man or internationally toward Her Majesty’s Government demanding in their behalf.
I have, &c.,