1. No citizen of the United States residing in Spain, her adjacent islands, or her ultramarine possessions, charged with acts of sedition, treason or conspiracy against the institutions, the public security, the integrity of the territory or against the supreme Government, or any other crime whatsoever, shall be subject to trial by any exceptional tribunal, but exclusively by the ordinary jurisdiction, except in the case of being captured with arms in hand.

2. Those who, not coming within this last case, may be arrested or imprisoned, shall be deemed to have been so arrested or imprisoned by order of the civil authority for the effects of the law of April 17, 1821, even though the arrest or imprisonment shall have been effected by armed force.

3. Those who may be taken with arms in hand, and who are therefore comprehended in the exception of the first article, shall be tried by ordinary council of war, in conformity with the second article of the hereinbefore-mentioned law; but even in this case the accused shall enjoy for their defense the guarantees embodied in the aforesaid law of April 17, 1821.

4. In consequence whereof, as well in the cases mentioned in the third paragraph as in those of the second, the parties accused are allowed to name attorneys and advocates, who shall have access to them at suitable times; they shall be furnished in due season with copy of the accusation and a list of witnesses for the prosecution, which latter shall be examined before the presumed criminal, his attorney and advocate, in conformity with the provisions of articles twenty to thirty-one of the said law; they shall have right to compel the witnesses of whom they desire to avail themselves to appear and give testimony or to do it by means of depositions; they shall present such evidence as they may judge proper; and they shall be permitted to be present and to make their defense, in public trial, orally or in writing, by themselves or by means of their counsel.

5. The sentence pronounced shall be referred to the audiencia of the judicia! district, or to the Captain-General, according as the trial may have taken place before the ordinary judge or before the council of war, in conformity also with what is prescribed in the above-mentioned law.

Mr. Cushing declared as follows:

1. The Constitution of the United States provides that the trial of all crimes except in cases of impeachment shall be by jury, and such trial shall be held in the State where said crimes shall have been committed, or when not committed within any State the trial will proceed in such place as Congress may direct (Art. III, § 2); that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment of a grand jury except in cases arising in the land and naval forces or in the militia when in actual service, (Amendments to the Constitution, Art. V.) ; and that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have counsel for his defense (Amendments to the Constitution, Art. VI.).

2. The act of Congress of April 30, 1790, chap. 9, sec. 29, reenacted in the Revised Statutes, provides that every person accused of treason shall have a copy of the indictment and a list of the jury, and of the witnesses to be produced at the trial, delivered to him three days before the same, and in all other capital cases two days before that takes place; that in all such cases the accused shall be allowed to make his full defense by counsel learned in the law, who shall have free access

to him at all seasonable hours; that he shall be allowed in his defense to make any proof which he can produce by lawful witnesses, and he shall have due power to compel his witnesses to appear in court.

3. All these provisions of the Constitution and of Acts of Congress are of constant and permanent force, except on occasion of the temporary suspension of the writ of habeas corpus.

4. The provisions herein set forth apply in terms to all persons accused of the commission of treason or other capital crimes in the United States, and therefore, as well by the letter of the law as in virtue of existing treaties, the said provisions extend to and comprehend all Spaniards residing or being in the United States.

Señor Calderon y Collantes then declared as follows:

In view of the satisfactory adjustment of this question in a manner so proper for the preservation of the friendly relations between the respective Governments, and in order to afford to the Government of the United States the completest security of the sincerity and good faith of His Majesty's Government in the premises, command will be given by Royal Order for the strict observance of the terms of the present Protocol in all the dominions of Spain and specifically in the island of Cuba.

The protocol was duly "interchangeably signed" by the declarants. See United States Treaty Volume (1776-1887), 1030.

Dr. Wharton, in his International Law Digest, declared that this protocol was "to be regarded as simply an opinion by the parties as to the state of the law in this relation in the United States and Spain. As to the United States it has not the force of a law." (II. 623.) With reference to the constitutional and legal provisions recited by Mr. Cushing, see Hurtado r. California (1883), 110 U. S. 516.

As to the controversy between the United States and Spain concerning judicial procedure, see Moore, Int. Arbitrations, II. 1019-1050.

(3) EXECUTION OF FOREIGN JUDGMENTS.

$188.

Bar, in discussing the effect to be given to foreign judgments, mentions, among the theories advanced for their recognition, (1) that the refusal of such recognition would imply an invasion of the jurisdiction of the foreign state; (2) that the sentence of a foreign judge gives rise to a jus quæsitum; (3) that a judgment is to be assimilated to a contract, and (4) that comity requires such recognition. He himself propounds the theory that a judicial sentence is most accurately defined as a ler specialis, a law for the particular case which is in dispute, and that "if the law of a particular state rules some particular claim, then the judicial sentence pronounced in that state upon that claim must also be recognized as authoritative.”

Bar, Private Int. Law, 2d ed., Gillespie's translation, 1892, p. 895, citing Wharton, Confl. of Laws, § 671; v. Martens, § 82; Phillimore, § 937; Fiore, Effetti, pp. 11 and 73; Haus, Droit pub. n. 147; Olivi, Rev. gén. de droit, 1887, p. 521; Brocher, Traité Franco-Suisse, p. 6; Calvo, II. § 860.

Lachau, Charles, Project de Traité entre la France et l'Allemagne sur la Compétence judiciaire, sur l'autorité et l'exécution des décisions judiciairies, des sentences arbitrales et des actes authentiques; Paris, 1902. (Extrait du Bulletin de la Société de Législation Comparée, XXI. 328.)

In an early case in the United States it was held that a judgment of a court of the Province of New Brunswick was only prima facie evidence as between the parties to it; and a new trial was granted because the trial judge had refused to allow testimony to go to the jury impeaching the judgment for mistake and irregularity. In later decisions, not only upon the ground of comity, but also upon the ground that the judgment of a court of competent jurisdiction should bind the parties to it, it is held that such a judgment was conclusive as to the merits of the controversy, unless it can be shown that the proceeding was tainted by fraud, or unless the judgment affects a matter of local policy. But it was held by the Supreme Court of the United States, June 3, 1895, in an opinion by Mr. Justice Gray (Fuller, C. J., and Harlan, Brewer, and Jackson, J. J., dissenting), that a judgment rendered in France was not conclusive as to the merits of the case, but was only prima facie evidence of the justice of the plaintiff's claim, such being the rule in France as to the effect of foreign judgments, the rule of reciprocity being thus applied.a On the same day the court sustained a Canadian judgment, which the defendant sought to attack on the ground that, although he had appeared in the action, he did not appear at the trial, and that the judgment was entered against him in his absence, without a full examination of the merits.

As to judgments of divorce, see Dicey, Confl. of Laws, Am. Notes, 434; Atherton e. Atherton (1901), 181 U. S. 155; Bell v. Bell (1901), 181 U. S. 175; Streitwolf . Streitwolf (1901), 181 U. S. 179.

As to foreign judgments as to movables, and foreign judgments in admiralty, see Dicey, Confl. of Laws, Am. Notes, 434.

See, generally, as to the effect of foreign judgments, Dicey, Confl. of Laws, 400 et seq.; Minor, Confl. of Laws, 186 et seq.

a Burnham r. Webster, 1 Wood. & M. 172.

McMullen . Ritchie, 41 Fed. Rep. 502; Lazier v. Wescott, 26 N. Y. 146; Dunstan e. Higgins, 138 N. Y. 70; Rankin v. Goddard, 54 Me. 28, 55 Me. 389; Baker . Palmer, 83 Ill. 568; Roth r. Roth, 104 Ill. 35, 44 Am. Rep. 81; Hilton v. Guyot, 42 Fed. Rep. 249.

Hohner v. Gratz, 50 Fed. Rep. 369; De Brimont . Penniman, 10 Blatch. C. C. 436.

d Hilton r. Guyot, 159 U. S. 113, reversing Hilton r. Guyot, 42 Fed. Rep. 249. e Ritchie v. McMullen, 159 U. S. 235.

(4) LETTERS ROGATORY.

$ 189.

Law

cases.

in United

"Letters rogatory for the purpose of taking the testimony of persons residing in the United States, which may be States: Civil material in suits pending in the courts of foreign countries, are frequently sent to this Department, usually with a note from the minister for foreign affairs of the foreign country or from its diplomatic representative here, requesting that the business may be attended to. It is not, however, the province of the Department of State to dispose of matters of this kind. Frequently witnesses whose testimony is sought reside in places far from this city, rendering it impracticable to have the testimony taken within the time at which it is required in order to make it available.

"It is, therefore, deemed advisable to issue this circular, to which are appended the provisions of the Revised Statutes of the United States regulating the taking of testimony in such cases. Other information upon the subject, which will be found useful to persons interested, is contained in the following

"Directions.-Both circuit and district courts of the United States are held in each of the States at the following points:

In Alabama, at Huntsville, Birmingham, Montgomery, and Mobile; in Arkansas, at Little Rock; in California, at San Francisco and Los Angeles; in Colorado, at Denver, Pueblo, and Del Norte; in Connecticut, at New Haven and Hartford; in Delaware, at Wilmington; in Florida, at Tallahassee, Pensacola, Jacksonville, Key West, and Tampa; in Georgia, at Atlanta, Savannah, and Macon; in Illinois, at Chicago, Springfield, and Cairo; in Indiana, at New Albany, Evansville, Indianapolis, and Fort Wayne; in Iowa, at Dubuque, Fort Dodge, Sioux City, Keokuk, Council Bluffs, and Des Moines; in Kansas, at Fort Scott, Leavenworth, and Topeka; in Kentucky, at Frankfort, Covington, Louisville, and Paducah; in Louisiana, at New Orleans, Opelousas, Alexandria, Shreveport, and Monroe; in Maine, at Portland; in Maryland, at Baltimore; in Massachusetts, at Boston; in Michigan, at Port Huron, Detroit, Grand Rapids, and Marquette; in Minnesota, at St. Paul; in Mississippi, at Aberdeen, Oxford, and Jackson; in Missouri, at St. Louis, Jefferson City, and Kansas City; in Nebraska, at Lincoln and Omaha; in Nevada, at Carson City; in New Hampshire, at Portsmouth and Concord; in New Jersey, at Trenton; in New York, at Canandaigua, Albany, Syracuse, Utica, New York, and Brooklyn; in North Carolina, at Raleigh, Greensborough, Statesville, Asheville, and Charlotte; in Ohio, at Cleveland, Toledo, Cincinnati, and Columbus; in Oregon, at Portland; in Pennsylvania, at Philadelphia, Erie, Pittsburgh, Williamsport, and Scranton; in Rhode Island, at Newport and Providence; in South Carolina, at Charleston and Columbia; in Tennessee, at Knoxville, Chattanooga, Nashville, Jackson, and Memphis; in Texas, at Graham, Dallas, Waco, Galveston, Tyler, Jefferson, Austin, San Antonio, Brownsville, and El Paso; in Vermont, at Burlington, Windsor, and Rutland; in Virginia, at Richmond, Alexandria, Norfolk, Lynchburgh, Abingdon, Harrisonburgh, and Danville; in West Virginia, circuit court at Parkersburgh, district court at Wheeling, Clarksburgh, and Charleston; in Wisconsin, at Milwaukee, Oshkosh, Madison, Eau Claire, and La Crosse.

"In some of the States district courts are held at other points in addition to those above specified.

"The clerks of the courts of the United States are authorized to take depositions, and may be designated as commissioners for that purpose in letters rogatory, which, when returned, are to be used in the courts of foreign countries.

"The letters rogatory may be addressed to the judge of either the circuit court of the United States for the State of

trict court of the United States for the district of

or the dis(naming the

State), praying the judge of that court to name and appoint the commissioner; or such letters may be addressed to the commissioner directly.

"The letter or package should in all cases be directed to the clerk of the district or circuit court to which the letters rogatory are addressed. The clerk's office is at the place where the court holds its sessions."

Mr. Bayard, Sec. of State, to the dip. and cons. officers of the U. S., Circular No. 21, revised, March 25, 1887, For. Rel. 1888, I. 521.

Sections of the Revised Statutes relating to letters rogatory.

SEC. 4071. The testimony of any witness residing within the United States, to be used in any suit for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party or shall have an interest, may be obtained, to be used in such suit. If a commission or letters rogatory to take such testimony, together with specific written interrogatories, accompanying the same, and addressed to such witness, shall have been issued from the court in which such suit is pending, on producing the same before the district judge of any district where the witness resides or shall be found, and on due proof being made to such judge that the testimony of any witness is material to the party desiring the same, such judge shall issue a summons to such witness requiring him to appear before the officer or commissioner named in such commission or letters rogatory, to testify in such suit. And no witness shall be compelled to appear or to testify under this section except for the purpose of answering such interrogatories so issued and accompanying such commission or letters: Provided, That when counsel for all the parties attend the examination they may consent that questions in addition to those accompanying the commission or letters rogatory may be put to the witness, unless the commission or letters rogatory exclude such additional interrogatories. The summons shall specify the time and place at which the witness is required to attend, which place shall be within one hundred miles of the place where the witness resides or shall be served with such summons.

SEC. 4072. No witness shall be required, on such examination or any other under letters rogatory, to make any disclosure or discovery which shall tend to criminate him either under the laws of the State or Territory within which such examination as is had, or any other, or any foreign state.

SEC. 4073. If any person shall refuse or neglect to appear at the time and place mentioned in the summons issued, in accordance with section forty hundred and seventy-one, or if upon his appearance he shall refuse to testify, he