ACTS OF JUDICIAL OFFICERS

[§ 287 the idea that national responsibility for the acts of an agent is dependent upon the grade of the actor rather than upon the quality of the act. Moreover, the establishment of responsibility is not decisive of the procedure to be followed in securing redress for wrongs sustained. Thus, it may be that when arbitrators have referred to the absence of responsibility of a State for the misconduct of inferior courts, they have merely sought to convey the idea that whether or not a denial of justice is effected by the conduct of a judge, no duty is imposed upon the political department of the territorial sovereign to respond directly in damages to the alien litigant, or to his country acting in his behalf, until he has exhausted his judicial remedies by appealing to the court of last resort.

In a word, when an inferior court, like any other authority of a State, denies justice, national responsibility is established, but the reasonableness of interposition seems to depend upon the opportunity for redress obtainable by appeal to the court of last resort. The existence of an appellate tribunal empowered to correct the errors of an inferior court is prima facie evidence that redress is within the reach of him who invokes its aid.1

mission, Convention of July 4,1868, in case of Jennings, Laughland & Co., Moore, Arbitrations, III, 3135–3137; in Green Case, id., 3139; in Case of the "Ada' id., 3143; in Burns Case, id., 3140; in Blumhardt Case, id., 3146; in Smith Case, id., 3146. Also opinion of Ralston, Umpire in De Caro Case, ItalianVenezuelan Commission, 1903, Ralston's Report, 810, 819; Mr. Clay, Secy. of State, to Mr. Tacon, Feb. 5, 1828, MS. Notes to For. Leg. III, 423, Moore, Dig., VI, 652.

See interesting opinion of Frazer, Commissioner, in case of The Brig Napier, American-British Claims Commission, treaty of May 8, 1871, Moore, Arbitrations, III, 3134; also ground of disallowance of demurrer by the Commission in this and similar cases, id., 3157; also report of Hale, Agent of the United State, id., 3159.

In the course of the Russo-Japanese War the seizures of American-chartered vessels and American cargoes by Russian naval authorities, and the decisions of condemnation by the Vladivostok prize court following and interpreting a Russian Imperial order of Feb. 29, 1904, were believed by the United States to be "in disregard of the settled law of nations in respect to what constitutes contraband of war", Mr. Hay, Secy. of State, to Mr. McCormick, American Ambassador to Russia, Aug. 30, 1904, For. Rel. 1904, 760. The Russian Government informed the United States that appeals could be taken, and that a final decision belonged only to the supreme prize court constituted by the admiralty board. It was contended, therefore, that until the decisions were reviewed by the supreme court "reclamations regarding questions of fact are beyond the jurisdiction of the imperial ministry of foreign affairs." Id., 769. The Government of the United States thereupon rendered all possible assistance to claimants in taking their appeals. Id., 777. Considerable difficulties were, however, experienced in this regard, owing to the existence of a state of war, the remote theater of operations, the differences in procedure of Russian and American Courts, and the uncertainty of American claimants. Id., 1905, 743. Decisions were duly rendered by the Supreme Court. Id., 753.

See, also, The Brig Freemason v. United States, 45 Ct. Cl. 555, based upon

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$288. Acts of Other Civil Officers.

There is no peculiar rule of procedure to be followed in cases where the acts of civil officials other than those of the judicial department, such as, for example, customs officers, are the subject of complaint. Difficulty may arise in ascertaining whether the particular official, at the time of his misconduct, was acting within the scope of his employment,' or whether his acts constituted a denial of justice.2 It may be observed again that the inferiority of rank of the official is not decisive of the character of his conduct, or of the responsibility of the State for the consequences thereof.3 Even if, however, his act may be justly regarded as internationally illegal, the obligation of the territorial sovereign to make reparation through the diplomatic channel is, on principle, contingent upon its failure to afford the claimant an adequate means of redress through a remedy either against the offender, or against the State itself, when for any reason the prosecution of an action against the former would appear to be without value. When, therefore, the territorial sovereign meets this requirement, interposition is believed to lack justification until the exhaustion of the judicial remedy has proved unavailing.4

the treaty between the United States and France, of Sept. 30, 1800, as interpreted in the case of The Peggy, 1 Cranch, 103.

1 Thus in the (third) Bensley Case, Mexican Claims Commission, Act of Cong., March 3, 1849, Moore, Arbitrations, III, 3018, the act complained of was regarded as outside of the scope of the authority of the actor the Governor of San Luis Potosí; see, also, Joseph N. Wilson Case, before same commission, id., 3021.

2 See, for example, (second) Bensley Case, Mexican Claims Commission, Act of Cong., March 3, 1849, Moore, Arbitrations, III, 3017.

3 Arbitrators have oftentimes lost sight of this fact, even when they have correctly denied redress for the misconduct of petty officials in cases where local remedies have not been exhausted. See, for example, Leichardt Case, Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, III, 3133, 3134; (second) Bensley Case, Mexican Claims Commission, Act of Cong., March 3, 1849, id., 3017.

See Case of outrages on George Milliken and Simon Shine, American citizens in Guatemala who were subjected to outrage in that country in 1907, For. Rel. 1908, 410-417. In this case following interposition, indemnities were paid and a readiness evinced by the Government of Guatemala to remove from office a certain officer. The State Department did not ask for his removal but merely requested that he be reprimanded, trusting to the good offices of the Guatemalan Government to make appropriate disavowal of wrongful acts committed.

Mr. Fish, Secy. of State, to Mr. Ruger, Oct. 21, 1869, 82 MS. Dom. Let. 224, Moore, Dig., VI, 660; Same to Messrs. Geo. Friend, Jr. & Co., May 31, 1871, 89 MS. Dom. Let. 449, Moore, Dig., VI, 660; message of the President to the Senate, Feb. 8, 1889, concerning the case of the American ship Bridgewater, S. Ex. Doc. 103, 50 Cong., 2 Sess., Moore, Dig., VI, 668; Case of Dr. John Baldwin, Mexican-American Commission, Convention of April 11, 1839,

ACTS OF INDIVIDUALS

g

[§ 289

Claims Arising from Tortious Acts not Primarily Attributable to the State

§ 289. Acts of Individuals.

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The wrongful acts of individuals directed against aliens are not primarily attributable to the territorial sovereign, in the absence of proof of negligence or complicity on its part. No denial of justice is, therefore, apparent, until that sovereign fails in the performance of its duties of jurisdiction, either by thwarting the victim in his efforts to invoke judicial aid, or by neglecting to take appropriate steps to prosecute the actor when his conduct has been criminal. To obtain pecuniary redress the victim must exhaust Moore, Arbitrations, III, 3126; Wadsworth, Commissioner in Leichardt Case, Mexican-American Commission, Convention of July 4, 1868, id., 3133. But see contra, Mr. Bayard, Secy. of State, to Mr. Jackson, Minister to Mexico, No. 25, July 20, 1885, MS. Inst. Mexico, XXI, 337, Moore, Dig., VI, 679; also Mr. Frelinghuysen, Secy. of State, to Mr. Morgan, Minister to Mexico, May 19, 1884, concerning the case of the American schooner, E. D. Sidbury, No. 574, MS. Inst. Mexico, XXI, 82, Moore, Dig., VI, 679, in which case a Mexican collector of customs refused to obey a judicial order for the restoration of the vessel which had been seized by the customs authorities, until a final order was issued containing the intimation that non-compliance therewith would result in the use of force. See, also, John C. Jones Case, Mexican Claims Commission, Act of Cong., March 3, 1849, Moore, Arbitrations, III, 3018.

It is to be doubted whether the award of an indemnity in the Sheldon Lewis Case, American-British Claims Commission, treaty of March 8, 1871, by reason of the action of customs officials in New York in wrongly interpreting an order of the Secretary of the Treasury, was sound. Moore, Arbitrations, III, 3019-3021. The contention of the United States that local remedies should have been exhausted, was, it is believed, entitled to the approval of more than one Commissioner (Frazer).

In the Lalanne and Ledour Case, French-Venezuelan Commission, 1902, Ralston's Report, 501, in which damages were allowed because of the unjustified refusal of customs officials to clear a ship, there was no discussion of the question as to the duty of the claimant to exhaust his judicial remedies. In the Davy Case, British-Venezuelan Commission, 1903, Plumley, Umpire, declared that the claimant was not obliged to resort to the courts for his remedy and that "where, as in this case, there has been an agreed submission of the claims of British subjects to a mixed commission created to consider them the tribunal thus constituted has undoubtedly jurisdiction of the parties and of the subject matter." Ralston's Report, 410, 412.

1"The act of the subject can never be the act of the sovereign; unless the subject has been commissioned by the sovereign." The Ship Resolution, 2 Dall. 1.

2 Mr. Lincoln, Atty.-Gen., 1 Ops. Attys.-Gen., 106, Moore, Dig., VI, 787; Mr. Forsyth, Secy. of State, to Mr. Calderon de la Barca, Sept. 17, 1839, MS. Notes to Spain, VI, 39, Moore, Dig., VI, 787; Mr. Fish, Secy. of State, to Mr. Mariscal, Mexican Minister, Feb. 19, 1875, For. Rel. 1875, II, 973, Moore, Dig., VI, 788; Mr. Bayard, Secy. of State, to Mr. Rodriguez, March 15, 1887, 163 MS. Dom. Let. 306, Moore, Dig., VI, 790; Mr. Hay, Secy. of State, to Mr. Fowler, April 15, 1899, 236 MS. Dom. Let. 354, Moore, Dig., VI,

his judicial remedy by proceeding directly against the wrongdoer.1 It is the absence of national delinquency rather than a rule of procedure which precludes diplomatic interposition.

The wrongful act may, however, be of a kind such as to call for instant action by the State itself. Thus, for example, the murder of seven Mexican shepherds in Texas in 1873, required immediate and diligent effort on the part of the local authorities to discover and prosecute the perpetrators. It is believed that the Mexican Minister, Mr. Mariscal, was justified in asserting that a denial of justice was apparent in the attitude of the authorities of Texas in not trying to discover the murderers "by all the means used by public authorities in civilized countries (such as Texas doubtless is) for the discovery of the perpetrators of any crime which is not a mere injury or offense of a private character, as murder never has been." 2 He was also correct in declaring in substance that the obligation to take measures for the detection of the wrongdoers was not dependent upon the furnishing of information on oath as to the facts and as to the perpetrators.3

When American citizens have sustained criminal violence at the hands of individuals in foreign countries, the United States 792. See, also, Mr. Scruggs, Umpire, Cotesworth & Powell Case, Convention between Great Britain and Colombia, of Dec. 14, 1872, Moore, Arbitrations, 2053, 2082; Wipperman Case, American-Venezuelan Claims Commission, Convention of Dec. 5, 1885, id., 3039; Thornton, Umpire, in Dickens Case, Mexican-American Commission, Convention of July 4, 1868, id., 3037.

1 Mr. Sherman, Secy. of State, to Mr. Hoshi, Japanese Minister, March 31, 1897, For. Rel. 1897, 368, Moore, Dig., VI. 791, regarding failure of local authorities to prevent boycott against Japanese subjects in Montana. Compare position of the United States in demanding of China, in 1905, the suppression of a boycott of American goods in that country. The demand was based upon the contention that the boycott was in violation of treaty provisions, contrary to the law of China, and encouraged by persons of official rank. For. Rel. 1905, 204–234.

2

Communication to Mr. Fish, Secy. of State, April 17, 1875, For. Rel. 1875, II. 982, 983, Moore, Dig., VI, 787, 789.

3 Mr. Fish, Secretary of State, had admitted the duty of a State to prosecute such offenders according to the law by all the means in its power, but he insisted that no person could be arrested upon suspicion of having committed a crime except upon the affidavit of a credible witness, and he adverted to the fact that murder could, in the United States, only be prosecuted upon information under oath, and he stated that the Department was not aware that such information had been furnished. It is believed that these suggestions were inept. The public duty to prosecute embraced the duty to investigate and make reasonable efforts to detect the murderers. Fulfillment of the latter would doubtless have established the foundation for criminal prosecution by indictment. Failure, however, in this regard did not shift to the Mexican Government or to interested friends of the victims the burden of securing evidence sufficient to justify complaints on information under oath specifying the offenders. It is to be regretted, therefore, that the United States persisted in its refusal to grant redress. The correspondence with the Mexican Legation is contained in For. Rel. 1875, II, 954-985, and id., 1888, II, 1306-1308. An abstract is contained in Moore, Dig., VI, 787-790.

ACTS OF INDIVIDUALS

[§ 289 has declared it to be "the duty of the State diligently to prosecute and properly punish the offenders," maintaining that "for its refusal to do so it may be held answerable for pecuniary damages." This principle has been invoked in discussion where it has appeared, as in the case of Frank Lentz,2 an American citizen murdered in Kurdistan in 1894, and in that of Charles W. Renton,3 an American citizen whose wife and niece were abducted, his property destroyed or appropriated and himself murdered in Honduras, that there was gross negligence, if not complicity, on the part of local officials in permitting the escape from their custody of the guilty parties.

In some instances American citizens in foreign countries have suffered injury to their persons or property through the acts of bands of brigands, and frequently under circumstances indicating neglect on the part of the territorial sovereign to afford protection or to prosecute the wrongdoers. When the Department of State has believed the victims to be entitled to redress from the territorial sovereign, they have not been left to their own resources,

1 The language quoted is that of Mr. Hay, Secy. of State, in a communication to Mr. Combs, Minister to Guatemala and Honduras, Feb. 25, 1904, concerning the claim of Mrs. Charles W. Renton against Honduras, For. Rel. 1904, 352, 363, Moore, Dig., VI, 798.

2 Concerning the Lentz Case, see Report of Mr. Olney, Secy. of State, to the President, Dec. 19, 1895, For. Rel. 1895, II, 1257, 1316, 1332, id., 1899, 766-767, Moore, Dig., VI, 792-794.

3 In the Renton Case, the gross misconduct of the officials of Honduras was apparent also in other ways. A United States Naval board "found that Mrs. Renton's claim for $37,420 was a just one; that all the portable property on Renton's place at the time of his murder had since been either destroyed or appropriated by the company; that the Honduran authorities had taken no steps to prevent such destruction or appropriation, and that all legal steps taken by them in relation to the murder of Renton, the abduction of his wife and niece, the burning of his dwelling, and the robbery of his personal property were either half-hearted and farcical, or were smothered at the outset by bribery and corruption." Statement in Moore, Dig., VI, 796. Concerning the case see For. Rel. 1904, 352–369, Moore, Dig., VI, 794-799.

See Baron Komura, Japanese Minister of Foreign Affairs, to Mr. Griscom, American Minister, March 4, 1904, respecting the vigorous efforts taken at the suggestion of the United States to punish the natives of Botel Tobago, who, in 1903, had murdered shipwrecked seamen of the American ship Benjamin Sewell, For. Rel. 1904, 444, also Moore, Dig., VI. 799.

Concerning case of the murder of the American Vice-Consul Stuart, a British subject, at Batum, in 1906, see For. Rel. 1906, II, 1290-1295.

4 Attention is called to Case of Knapp and Reynolds (Turkey), 1883, For. Rel. 1883, 1884, 1885, 1889 and 1890, Moore, Dig., VI, 800-801; Case of L. M. Baldwin (Mexico), 1887, For. Rel. 1888, Moore, Dig., VI, 801-806; Marauders in Peru, 1899, Moore, Dig., VI, 806; Case of Ion Perdícaris (Morocco), 1904, For. Rel. 1904, Moore, Dig., VI, 807; Case of Rev. B. W. Labaree (Persia), 1904, For. Rel. 1904, 1905, 1906, 1907, 1908, in part in Moore, Dig., VI, 806-807.

In the Case of L. M. Baldwin (Mexico), 1887, amplest notice was given to both State and Federal authorities of the lawless proceedings of those who committed the crime. Their depredations had been long continued and the offenders were well known. No serious steps were taken to afford protection.