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sovereign, to exercise justice in all the places under her jurisdiction, to take cognizance of the crimes committed, and the differences that arise in the country.
"Other nations ought to respect this right. And, as the administration of justice necessarily requires that every definitive sentence, regularly pronounced, be esteemed just, and executed as such-when once a cause in which foreigners are interested has been decided in form, the sovereign of the defendants can not hear their complaints. To undertake to examine the justice of a definitive sentence is an attack on the jurisdiction of him who has passed it. The prince, therefore, ought not to interfere in the causes of his subjects in foreign countries, and grant them his protection, excepting in cases where justice is refused, or palpable and evident injustice done, or rules and forms openly violated, or, finally, an odious distinction made to the prejudice of his subjects, or of foreigners in general." Law of Nations, Chitty's edition, 1869, Book II, pp. 165–166.
As I have indicated before, it may be observed from a practical standpoint that a failure to adhere to these general principles might easily at times result in a tendency on the part of a tribunal to stultify itself by dogmatic attempts to reconstruct past events in the light of inadequate evidence or on the basis of insufficient information respecting domestic laws, practices or institutions. However, it of course often becomes the duty of an international tribunal to deal with questions of domestic law, which frequently may be more difficult than those involved in the application of the proper principles of international law. These proceedings in connection with the preliminary investigation were analyzed with great care and in minute detail by the American Agent. It was contended that they were improperly conducted, and that evidence was not produced to justify the commitment of Salem for trial. It was further argued that, apart from questions pertaining to irregularities, the proceedings fell below international standards, in that the magistrate, by virtue of Egyptian law defining his functions, improp
erly combined in himself the functions of investigator, prosecutor and judge.
Without reference to details of various codes with their differences and similarities, it may be generally observed that these proceedings were in the nature of those employed in countries governed by the principles of the civil law. They might be characterized as a stage of prosecution, or in a sense as a stage of trial; or they might be compared to the proceedings before a common law grand jury or before a committing magistrate in a country governed by the principles of the common law.
It may be observed that a grand jury or a prosecutor in a jurisdiction where probable cause may not always be determined by a grand jury exercises functions which in a measure partake of the commingled functions complained of by the United States in the present case, even though they are not such in terms of legal definition. The contentions of the United States had particular reference to the seriousness of the offense with which Salem was charged. In a case of this character, it was argued, the different functions should not be combined.
Complaints growing out of the imprisonment of aliens have frequently come before international tribunals. In dealing with such cases tribunals have taken account of principles pertaining to the common law offense of malicious prosecution. In many countries, it is possible for a person, who has been maliciously and falsely accused upon a charge made by a private person, to institute an action against such private person for damages for false imprisonment. And actions will lie against prosecuting authorities, who have acted maliciously. In the present case, the question before the Tribunal is whether there is international liability on the part of the Government of Egypt for the conduct of the Egyptian magistrate who conducted the preliminary investigation in Salem's case.
The arrest of an alien and his acquittal after trial do not of themselves justify demands for indemnities in behalf of the alien. The same is true respecting the release
of an alien without subjecting him to trial. Before trial there must be proceedings to determine the propriety of commitment for trial. In view of the general principle of international law with respect to redress of grievances of aliens by resort to appropriate local remedies, it would seem to be difficult, generally speaking, to maintain an international reclamation in a case in which an alien is cleared after a proper trial.
International law requires that, in connection with the execution of criminal laws, an alien shall be accorded certain rights, such as are guaranteed under the laws of civilized countries generally both to aliens and nationals. Among other things, there must be some grounds for arrest and grounds for trial or, as is said in terms of domestic law, there must be probable cause. In the case of Trumbull v. Chile, Moore, International Arbitrations, Vol. 4, p. 3255, 3260, the following definition was given:
"Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the offense. See also William Collier v. Mexico, Moore, International Arbitrations, Vol. 4, p. 3244, 3246; Gilbert Bennett Borden v. Chile, Ibid., Vol. 4, p. 326.
Domestic courts have asserted the same general principles as those by which international tribunals have been guided. Foshay v. Ferguson (1846), 2 Denio's Reports (N.Y.) 617; Hicks v. Faulkner (1878), L.R. 8 Q.B.D. 167, 173; Mayer v. Peabody, 212 W.S. 78.
It is interesting to note the conclusions of a domestic court, sitting as a prize court. Such a tribunal is required to base its decision ultimately on international law, although it may be necessary incidentally to deal with important questions of domestic law. In the case of the American steamship Edna, the ship was released by an English court as not subject to condemnation and on appeal to the Judicial Committee of the Privy Council, the decree of the lower court was confirmed.
The trial judge who released the vessel evidently was not free from doubt with respect to the question of probable cause, but he did not hold that probable cause was wanting. He expressed himself in this seemingly conservative manner: "but on the whole considering the curious companies that were concerned in the matter and considering what the history of this vessel is, I am not prepared to say that there was no reasonable cause for seizing her". Lloyd's Reports of Prize Cases, IX, 51, 70.
Having in mind the general principles of international law governing international tribunals in dealing with complaints against authorities of a Government, administrative, legislative, or judicial, I am not prepared to say that this Tribunal should sustain the fundamental contentions of the United States with respect to the lack of probable cause for the commitment of Salem.
Of course, in analyzing proceedings of this kind, it is necessary to bear in mind that the question of probable cause for arrests or trials is not dependent on facts with respect to guilt; that there is a great distinction between evidence to establish guilt and evidence to establish a rational belief with respect to possible guilt. I am of the opinion that any doubt with respect to the proceedings under consideration should be resolved in favor of the Egyptian Government. But it is to me unthinkable that, unless evidence very different from that produced in the preliminary investigation had been submitted to a trial court, if a trial had been held, any judge or jury could have found Salem guilty of the charge of forgery. I make use of this speculation to distinguish a trial from a preliminary hearing to determine the question of probable
Although I concur in the view that the Tribunal should not make a pronouncement with respect to the lack of probable cause, I am not altogether in accord with the conclusions submitted in the majority opinion with respect to these protracted proceedings. Particular reference is made to the use of a handwriting expert, who was not
registered on the roll of experts. It is said that although not registered he was, however, an expert official of the Ministry of Justice. I do not think that, by the application of proper principles of evidence, the conclusion can be reached that, just because there is a mere mention in an elaborate document in the record of some man employed in the Ministry of Justice, with the same name as that of the expert, it may be assumed, without any identifying evidence, that this man was the expert who acted in the case of Salem.
I agree in a general way with the discussion in the majority opinion of the complaint with respect to the commingling of functions in a single official. It is said that the American Government relies upon principles of AngloSaxon law in the condemnation of these proceedings. However, it is proper to take account of the fact that the contentions were of a somewhat broader scope. The proceedings were analyzed in behalf of the United States in the light of comparisons of laws of many countries. In my opinion the arguments submitted could be established only by a process of reasoning of that kind. International responsibility for acts of officials committed in violation of domestic laws will be determined by considerations pertaining to the specific character of the acts; and the manner in which they infringe the local law will naturally be an important consideration. The propriety of any law or of any institution must, I assume, be determined in the light of comparisons with other laws and institutions, in order to reach a conclusion whether ordinary standards of civilization have been outraged.
While I am not disposed to disagree with the conclusions of my associates, it seems to me that, in the view which we all take, it is unnecessary for the Tribunal to deal with this particular point. For if the complaint that probable cause was wanting is not sustained, there seems to be no occasion to undertake to condemn the laws under which the magistrate acted. It may be assumed, I think, that, if the representatives of the United States had found