International commissions have repeatedly held that in order to hold the government liable for the acts of an officer the claimant must resort to the courts of the country and show an unsuccessful appeal for redress against the officer.1

It has been held that the government must have had notice or been notified of the injury before it could be made responsible.2

A government may often release itself from liability by punishing the officer,3 for example, by fine, reprimand and dismissal from office, although, in flagrant cases, indemnities have been demanded and paid. The Court of Claims has held that a mere disavowal of the act is not sufficient internationally to relieve the government from liability. In dealings with countries of the Far East and with certain countries of Latin-America in which disorder is not an abnormal condition, a request for punishment of the officer is often combined with a demand for a suitable indemnity.

It has already been observed that the responsibility of the state for the acts of minor officials must ordinarily be predicated upon some independent delinquency of its own. Some of these circumstances upon which a complicity of the government is presumed and a resultant liability is founded are the following: a ratification or tacit adoption of the wrongful act; a negligent failure or refusal to prevent

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1 The rule applies to the acts of inferior judges as well as to other minor officials. Blumhardt (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3146; Wilkinson (U. S.) v. Mexico, ibid. 3145; Smith (U. S.) v. Mexico, ibid. 3146; Burn (U. S.) v. Mexico, ibid. 3140; Jennings et al. (U. S.) v. Mexico, ibid. 3135; Leichardt (U. S.) v. Mexico, ibid. 3133; Cramer (U. S.) v. Mexico, ibid. 3250; Bensley (U. S.) v. Mexico, March 3, 1849, ibid. 3016; Wilson (U. S.) v. Mexico, ibid. 3021; De Zeo (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 693; Croft (Gt. Brit.) v. Portugal, Award Feb. 7, 1856, Moore's Arb. 4979.

In flagrant cases, however, this appeal for judicial redress has not been required. Davy (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 410.

2 Horatio (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3024; Isaiah Stetson case (U. S.) v. Brazil, For. Rel. 1895, I, 52–59 (two soldiers convicted and sentenced to penitentiary for murder of U. S. citizens in street brawl).

Kellett (U. S.) v. Siam (award Sept. 20, 1897), Moore's Arb. 1862.

4 Wright Claim v. Guatemala, 1908, For. Rel., 1909, 354-355; Pierce (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3252; Maal (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 914; Panama police assaults of July 4, 1912.

Straughan v. U. S., 1 Ct. Cl. 324.

• Montano (Peru) v. U. S., Jan. 12, 1863, Moore's Arb. 1630 (approval by Sec'y of

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the wrong, there being opportunity therefor; 1 a refusal to investigate an assault or other injurious act, or negligence in investigating a case; 3 3 a failure to furnish access to the courts to the injured individual or by a pardon depriving an injured party of all redress against the guilty offenders; 5 or a failure to try to arrest and punish the offender even though no request for such punishment was made. As

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will be seen hereafter, these circumstances have also served to fasten liability on the state where the injury was committed by an individual. (Infra, § 87.)

When a citizen of the United States is injured abroad by a minor official of a foreign government, the Department of State usually calls upon the foreign government to manifest its disapproval of the conduct of its officer, by reprimanding, dismissing, or punishing the guilty official and in addition often demands the adoption of measures to prevent a recurrence of the offense, and in flagrant cases, a pecuniary indemnity. When the guilty officials are police officers,

State Marcy of the wrongful act of a marshal in negligently failing to execute a private judgment). Braden v. U. S., 16 Ct. Cl. 389 (ratification by Congress of unauthorized act); Miller (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2974 (appointing the wrongdoer to high office in the government-Dictum by Lieber); see also Bovallins and Hedlund (Sweden and Norway) v. Venezuela, March 10, 1903, Ralston, 952. 1 Jonan (U.S.) v. Mexico, July 4, 1868, Moore's Arb. 3251; Kellett (U. S.) v. Siam, supra, ibid. 1862, La Fontaine, 604; Schooner Hope (U. S.) v. Brazil, Jan. 24, 1849, Moore's Arb. 4615; Stubbs (U. S.) v. Venezuela, 1903 (U. S. brief, Morris' Report, 122); Panama police assaults, July 4, 1912, MS. Dept. of State; Garrison (U.S.) v. Mexico, July 4, 1868, Moore's Arb. 3129 (prevention of appeal by unlawful intrigues); Arménie claim (France) v. Turkey, 1894, 2 R. G. D. I. P. (1895), 623.

2 Bark Jones (U. S.) v. Great Britain, Feb. 8, 1853, Moore's Arb. 3050. See also Rule 3 of Nicaraguan Mixed Claims Commission, 1911.

3 Panama police assaults, July 4, 1912; De Brissot et al. (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2967 (laxness in investigating).

Calvo, § 1263. This is of course equivalent to a denial of justice. Cotesworth and Powell (Gt. Brit.) v. Colombia, Dec. 14, 1872, Moore's Arb. 2050, 2082, and case of Joy, a British subject in Colombia, decree of Dec. 7, 1868, cited at p. 2085.

• Wilson case (U. S.) v. Nicaragua, 1894, For. Rel., 1894, 470 et seq.; Zambrano case (Mexico) v. U. S., For. Rel. 1904, 473-482; De Brissot (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2967; Maal (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 914; Davy (Gt. Brit.) v. Venezuela, Feb. 13, 1903, ibid. 410; Dominique (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 185, 207.

"Bovallins (Sweden and Norway) v. Venezuela, March 10, 1903, Ralston, 952.

whose special duty it is to protect the person and property of individuals, a flagrant case arises which calls for prompt demands for redress and indemnity.1

§ 80. Soldiers.

Soldiers are an integral part of the military arm of the government. Soldiers may be considered authorities rendering the state liable for their acts when they are under the command of officers or are carrying out public duties of the state. On the other hand, practice has fairly well established the rule that the state is not responsible for the wrongful acts of unofficered soldiers, whether incident to a belligerent operation or merely wanton and unauthorized acts of robbery and pillage. The claimant's remedy is against the individual wrongdoer. To render the government liable for the unlawful acts of its

1 Assaults by police in Panama upon sailors of U. S. S. Columbia, 1906, and Buffalo, 1908, For. Rel. 1909, 474, 485, 491; also assaults of July 4, 1912 and April 2, 1915. Assault on H. B. Miller of U. S. S. Tacoma by police in Santiago, Cuba, 1909.

2 Plundering and pillaging incident to attack. Vesseron (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2975, and following cases before same commission; Dresch, ibid. 3669; Michel, ibid. 3670; Weil, ibid. 3672; Antrey, ibid. 3672; Denis, ibid. 2997; Friery, ibid. 4036; Cooper, ibid. 4039; Buentello, ibid. 3670; Schlinger, ibid. 3671; Tripler, ibid. 2997; Rule 3 of Nicaraguan Mixed Claims Com. 1911 (all cases of marauding, pillaging, or robbery incident to military operations, attacks on towns, etc.). Parker (U. S.) v. Mexico, Moore's Arb. 2996; Foster (U. S.) v. Spain, Feb. 12, 1871, ibid. 2998; Vidal (France) v. U. S., Jan. 15, 1880, ibid. 2999; Castelain (France) v. U. S., ibid. 3000; Hayes (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3688; Henriquez (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 911; Shrigley (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 3712; Bacigalupi (U. S.) v. Chile, May 24, 1897 (extending convention of Aug. 7, 1892), No. 42, Report of Commission, 1901; Magoon's Reports, 343; Edgerton (Gt. Brit.) v. Chile, Recl. pres. al Trib. Anglo-Chileno, I, 126 (All cases of wanton and unauthorized acts of pillage or violence). See also Crossman (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 299. Mr. Bayard to Mr. Buck, Oct. 27, 1885, For. Rel. 1885, 625; Magoon's Reports, 338, 342; Claim of Laurent and Lambert v. U. S., For. Rel. 1907, I, 392, especially Solicitor's memorandum, 396-398.

But see Eigendorff (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2975, and Pears' case (U. S.) v. Honduras, For. Rel. 1900, 674-702 (negligently shot by sentinel; indemnity of $10,000 paid). Young's case (U. S.) v. Peru, Moore's Dig. VI, 758-759; Campbell's case (U. S.) v. Haiti, Moore's Dig. VI, 764 (assault by soldiers; $10,000 indemnity paid). See also assaults by police officers, note preceding.

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soldiers the claimant must prove that they were under the command or orders or control or in the presence of superior officers,2 or that the officers negligently failed to take the necessary precautions to prevent the unlawful acts or to punish the known offenders. In France and Germany, it will be recalled, soldiers under command or in the accomplishment of public duties are held to be authorities of the state for whose acts the government is municipally responsible. When the injurious act may be construed as a military necessity 5 or as war damages (infra, § 98 et seq.) the government is relieved from liability. However, if private property unlawfully taken by soldiers without authority is applicable to the proper use of the army and actually appropriated to army use, the government has been held liable. Governments have occasionally paid damages for pillaging by government troops, and if indemnities are awarded

1 Weil, supra, Moore's Arb. 3671; Vidal, ibid. 2999, Hayden, ibid. 2995; Culberson, ibid. 2997 and other cases cited in last note.

2 Wilkins (U.S.) v. Mexico, March 3, 1849, Moore's Arb. 2993; Terry and Angus, ibid. 2995; Standish, Parsons and Conrow (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3004; Webster, ibid. 3004; Dunbar and Belknap, ibid. 2998; Newton and Lanfranco, ibid. 2997; Jeannaud (France) v. U. S., Jan. 15, 1880, ibid. 3000; Roberts (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 142; Ruden (U. S.) v. Peru, Jan. 12, 1863, Moore's Arb. 1653; Delgado's case v. Spain, Moore's Dig. VI, 761; Etzel's case v. China, For. Rel., 1904, 168-176, Moore's Dig. VI, 765.

3 Jeannaud, supra, Moore's Arb. 3000; Latorre (Gt. Brit.) v. Chile, 1891, Reclam. pres. al Trib. Anglo-Chileno, II, 88; De la Cruz (Mexico) v. U. S., July 4, 1868, MS. Op. II, 527 (not in Moore); Kunhardt (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 63, 69; Shrigley (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 3712. See Wadsworth, American commissioner, in Moore's Arb. 2437; Anciara (Mexico) v. U. S., ibid. 3007 (mustering out U. S. soldiers on Mexican territory held negligent).

Watkins and Donnelly (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 45; De la Cruz (Mexico) v. U. S., July 4, 1868, MS. Op. II, 527; Eigendorff (U. S.) v. Mexico, Moore's Arb. 2975, and Wadsworth's dictum, ibid. 2437; Anciara (Mexico) v. U. S., July 4, 1868, ibid. 3007; Maninot (France) v. Venezuela, Feb. 17, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 44, 70.

5 Webster (U. S.) v. Mexico, Moore's Arb. 3004; Jeannaud (France) v. U. S., Jan. 15, 1880, ibid. 3000.

❝ Lavell and other cases (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3688; Vidal (France) v. U. S., Jan. 15, 1880, ibid. 2999; Rule 4 of Nicaraguan Mixed Claims Com. 1911.

7 E. g., Chile in several cases before Anglo-Chilean tribunal of 1891, Strobel's report, item V, For. Rel. 1896, 35. This allowance was probably due to the wording of the protocol.

to other foreigners, the United States would probably demand equal treatment for its citizens.

Inasmuch as commanding officers are to a certain broad extent responsible for the conduct of soldiers under their command, it may happen that in certain cases of proved negligence or carelessness on the part of such officers in failing to prevent an act of depredation by troops, the government may be charged with liability. It is in this sense that we must understand the somewhat ambiguous instruction of Secretary Bayard in 1885, the concluding sentence of which reads: "But the mere fact that soldiers, duly enlisted and uniformed as such, committed acts 'without orders from their superiors in command' does not relieve their government from liability for such acts." 1

3. JUDICIAL AUTHORITIES

81. Position of Courts and Judges.

The highest courts are authorities whose wrongful acts involve the state in liability. In well-regulated states, the courts are more independent of executive control than any other authorities, not excepting the legislature. Their errors, therefore, in all systems of civilized justice give rise merely to such rights of appeal as are provided in local municipal law, but do not give rise, in civil cases, either to an action against the judge or against the state. It has been observed that certain foreign countries and recently two states in this country accord a right to claim indemnity from the state for an erroneous conviction in criminal cases. For flagrant acts of corruption or malfeasance in office a personal action against the judge is sometimes granted, although on principle a judge is responsible for official wrongs not to third persons but to the state alone. He may be indictable for malicious usurpation of power, but the state is not liable for such abuse of authority.

1 Mr. Bayard to Mr. Buck, Oct. 27, 1885, For. Rel. 1885, 625. See also Maninot (France) v. Venezuela, Feb. 17, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 44, 70.

* Hall, 215; Oppenheim, 216; Fabiani (France) v. Venezuela, Feb. 24, 1891, Moore's Arb. 4878, at 4906; Croft (Gt. Brit.) v. Portugal, award of Hamburg Senate, Feb. 7, 1856, 50 St. Pap. 1288, Moore's Arb. 4979; Tchernoff, op. cit., 268, 288.

* Supra, p. 129.