construed. The President of a country cannot legally grant or alter the terms of concessions to foreigners, if the constitutional law of the country requires the approval of Congress for such acts. Those dealing with agents of the state are ordinarily bound by their actual authority, and not, as in private law, by their ostensible authority. But in the Trumbull case, the apparent authority of a diplomatic officer to contract was held sufficient to bind his government, and in the Metzger case,2 Judge Day expressed the opinion that the "limitations upon official authority, undisclosed at the time to the other government," do not "prevent the enforcement of a diplomatic agreement."

Again, presumably on the theory of quasi-contract or unjust enrichment, the state is liable for the wrongful acts of its officers from which it derives a benefit. Thus the taking of private property for the public use or benefit has always been an accepted ground of international claim for compensation. Similarly, for wrongful seizures and for excess or unjust collections of customs duties or taxes by revenue officers the government is responsible.1

3

April 11, 1839, ibid. 3426; Smith (U. S.) v. Mexico, March 3, 1849, ibid. 3456; Sturm (U. S.) v. Mexico, July 4, 1868, ibid. 2756. This question was argued in the Hemming case before the British-American Claims Commission, Aug. 18, 1910, Great Britain contesting the general rule. No award has yet been made (1914).

1 On equitable considerations, in Trumbull (Chile) v. U. S., Aug. 7, 1892, an award was made on the ground that claimant in Chile had a right to assume that the U. S. minister in engaging his legal services was authorized so to do, and that he was not bound by the limitations of R. S., § 3732. Neither diplomatic officers nor consuls, in the absence of specific instructions, have authority to employ counsel in extradition or other government cases. Cons. Reg., §§ 517, 530.

2 Metzger (U.S.) v. Haiti, Oct. 18, 1899, For. Rel. 262.

3 Ashmore (U. S.) v. China, 1884, Moore's Arb. 1857; Baldwin (U. S.) v. Mexico, April 11, 1839, ibid. 3235; Metzger (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 578; De Garmendia (U. S.) v. Venezuela, Feb. 17, 1903, ibid. 10; Putegnat's Heirs (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3720. See also infra, p. 169. Even where the original taking of property is lawful, its unreasonable detention has been held to warrant an award. Baldwin, supra; Shaw (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3265; Bischoff (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 581.

4 Monnot (U.S.) v. Venezuela, Feb. 17, 1903, Ralston, 171; Smith (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3374; Lewis (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3019; Only Son (U. S.) v. Great Britain, Feb. 8, 1853, ibid. 3404; Mr. Davis to Mr. Foster, June 23, 1883, Wharton, I, 158.

§ 77. Tortious Acts.

It is when we come to deal with the international responsibility of the state for the torts of its administrative and executive officers that more serious difficulties are encountered. Some of the problems that at once present themselves are these: Did the officer act as an agent of the state, or in his personal capacity? Is the state, therefore, or he alone liable? Was he a superior officer whose acts within the scope of his authority directly bind the state, or an inferior or minor official against whom judicial remedies must be pursued and for those acts the state is not liable except in case of failure to afford judicial recourse to the person injured, or itself to punish the delinquent official? An examination of the cases shows the subject to be in the utmost confusion, and the distinctions just mentioned very vaguely drawn. Oppenheim and Hall remark that the wrongful acts of administrative officials (these officers being under the disciplinary control of the executive) are presumably acts sanctioned by the state, until such acts are disavowed, the authors punished, and pecuniary reparation made.1 Strictly construed, this would make of the state practically a guarantor of the efficiency and correct operation of its administrative agencies. As a matter of fact the state is not responsible either for all its administrative officers or for all their acts. It may be said, first of all, that for such of their acts as are personal and outside the scope of their functions, they alone are liable and the duty of the state is limited to affording the injured person judicial recourse against the officer according to local law. As will be seen, this rule has even been extended to the official acts of some minor officials. It must be added, however, that notwithstanding the fact that the local law of most countries grants a private right of action against wrongdoing minor officials, foreign governments, especially in dealing with the weaker countries of Latin-America, have not been willing to confine their injured subjects to the dubious and often futile legal remedy against the officer, but have had recourse to diplomatic

1 Oppenheim, I, 218; Hall, 214. Quoted with approval in Metzger (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 578, and Gage (U. S.) v. Venezuela (by Bainbridge, Amer. commissioner) ibid. 165. Maal (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 914 (government liable, "unless they reprimand, punish or discharge" the officer).

interposition when the wrongdoing official acted in his capacity as an agent of the government.

While it is generally admitted that the strict rules of agency do not apply to the relations between the government and its officers so as to make the former liable for all wrongful acts of the latter within the scope of their authority, still international commissions have not always been guided by the distinction, and awards have been made on proof of the mere fact that an officer of the government committed the injury in question. Where the act has been that of a higher official or supreme authority in a given jurisdiction, the presumption is that it was an act of the state and the government has ordinarily been held to incur a direct responsibility. An express or tacit ratification of the act clearly casts liability on the state. There have, however, been numerous cases of injuries by administrative officers, where no inquiry was directed toward establishing their superior or inferior official character or the possibility or fact of judicial recourse or punishment, government liability being predicated on the mere malfeasance or non-feasance of officers upon whom a distinct governmental duty was incumbent. Under this head, customs authorities

2

3

1 See dictum by Duffield, Umpire, in Christern (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 523.

2 Even the possibility of legal recourse against the officer would hardly free the state from liability. See Johnson (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1656 (in addition, a decree for redress had been left unexecuted). See also dictum in Oberlander and Messenger (U. S.) v. Mexico, March 2, 1897, For. Rel., 1897, 386 citing Calvo, III, 120, and Cinecue (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3127 (original in MS. Op. I, 14, 15, not quoted in Moore); Lalanne and Ledour (France) v. Venezuela, Feb. 19, 1902, Ralston, 501; Post-Glover Co. (U. S.) v. Nicaragua, March 22, 1900, For. Rel. 835 (governor of a province); Magee (Gt. Brit.) v. Guatemala, 1874 (flogging and unlawful imprisonment by order of Commandante), 65 St. Pap. 875. But see Bensley (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3018, where Government was held not liable for personal act of Governor of a constituent state of Mexico.

3 Eclipse (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3397; des Asphaltes (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 338; dr. int. pub. (Antoine's trans.), §§ 667, 668.

Comp. Gen. Fiore, Nouv.

4 Mr. Everett to Mr. Carvallo, Feb. 23, 1853, Moore's Dig. VI, 741. (It was sought to hold Chile liable for spoliations by "officers" of Chile.) Moses (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3127; Henriquez (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 896; Crossman (Gt. Brit.) v. Venezuela, Feb. 13, 1903, ibid. 298;

have frequently been held to be authorities whose unlawful acts involve a direct responsibility of the state.1

§ 78. Diplomatic, Naval and Military Officers.

Diplomatic officers are considered authorities of the state with respect to all acts within the apparent scope of their authority.2

The heads of the military arm of the government, the commander of vessels and of armed land forces are presumed to represent the state in their official acts, and to involve its responsibility for unlawful acts inflicting injury upon aliens.3

In the cases of commanders of vessels, even if the government disCulliton case in Colombia, 22 Op. Atty. Gen. 32, Feb. 7, 1898; Canada (U. S.) v. Brazil, March 14, 1870, Moore's Arb. 1733; see also supra, p. 185, note 1.

1 For wrongful collections of customs and confiscation of goods, see supra, note 4, p. 184. For unlawful seizures and detentions of vessels and unjustifiable refusal to clear vessels, see Labuan (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3791; William Lee (U. S.) v. Peru, Jan. 12, 1863, ibid. 3405; Sibley (U. S.) v. Mexico, April 11, 1839, ibid. 3045; Hammond (U. S.) v. Mexico, Apr. 11, 1839, ibid. 3241; Lalanne (France) v. Venezuela, Feb. 19, 1902, Ralston, 501; Ballistini, ibid. 503; Comp. Gen. des Asphaltes (Gt. Brit.) v. Venezuela, ibid. 336. See also revenue cases in Moore's Arb. 3361-3407. Where seizures have been based on alleged violations of local law, international commissions will, virtually as a court of appeal, reëxamine the legality and regularity of the seizure. Phare (France) v. Nicaragua, Oct. 15, 1879, La Fontaine, 225, Moore's Arb. 4870; Havana Packet (Netherlands) v. Dominican Rep., March 26, 1881, La Fontaine, 241, Moore's Arb. 5036; Butterfield (U. S.) v. Denmark, Dec. 6, 1888, Moore's Arb. 1204; Consonno (Italy) v. Persia, June 5, 1890, La Fontaine, 342. As to sanitary authorities, see Lavarello (Italy) v. Portugal, Sept. 1, 1891, La Fontaine, 411.

* In Trumbull (Chile) v. U. S., Aug. 7, 1892, Moore's Arb. 3569 the rule was extended to include acts within the minister's ostensible authority. It is probable that a lease signed by a diplomatic representative of a foreign government would bind his government.

A consul's authority to bind his government would be more strictly construed. Responsibility for unauthorized acts when acting in the interests of private persons, e. g., the settlement of estates, has been held to rest upon the consul and not upon the government. For wrongful official acts such as unlawful refusal to clear vessels, the government has been held responsible. (Comp. Gen. des Asphaltes, Gt. Brit. v. Venezuela, Ralston, 336.) The advice of a consul or of a minister as to what his government will consider contraband, as to what cargo is exempt, as to what class of trade is permissible, etc., does not bind his government. The Hope, 1 Dodson, 229; The Joseph, 8 Cranch, 451; The Benito Estenger, 176 U. S. 568, 574.

* Maninot (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong. 1st sess. 44, 70.

avows the act, indemnities have been awarded. Thus, in 1868 the cabinet at London disapproved the conduct of a captain of an English ship of war which without orders bombarded the city of Cape Haitien and blockaded the port. Great Britain indemnified the French and German merchants whose property and goods were thereby destroyed. Similarly, a violation of frontiers, collision of a private vessel with a national public vessel through the latter's fault, or the illegal capture of private vessels involves the responsibility of the state.1 Unlawful captures by privateers involve the responsibility of the state, but not the acts of a vessel which has revolted against the government.3

2

By article 3 of the Hague Convention of 1907 concerning the laws and customs of war on land, the state is made liable for all acts committed by persons forming part of its armed forces. In the case of pillage by uniformed soldiers, the state is ordinarily only responsible if they are under the command of officers.5

Police officials are not usually held to be "authorities" of the state. Nevertheless when the duty is incumbent upon them to prevent a violation of law, and they forsake their preventive function and actually

1 Bry, 5th ed. (1906), p. 461; Case of the Panther, 1906 (Brazil) v. Germany, Oppenheim, 219 (violation of Brazilian territory); The Schooner Henry (U. S.) v. Peru, March 17, 1841, Moore's Arb. 4601 (seizure of vessel); Confidence (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 3063 (collision); Lindisfarne (Gt. Brit.) v. U. S., Aug. 18, 1910, 7 A. J. I. L. 875. See also 14 Clunet (1887), 598, Bonfils, § 329, Calvo, § 1265, and Moore's Dig. VI, § 1008. Congress occasionally refers to the courts the complaints of aliens arising out of collisions between foreign ships and U. S. public vessels. S. 4273, 63rd Cong., 2nd sess. See also 23 Stat. L. 496 and supra, p. 166.

2 France v. New Grenada, Ecuador and Venezuela, 49 St. Pap. 1301; Great Britain v. Buenos Ayres, July 19, 1830, 18 St. Pap. 685, La Fontaine, 92; U. S. v. Venezuela, May 1, 1852, Malloy, Treaties, 1910, II, 1842.

Case of the Peruvian vessel Huascar, 68 St. Pap. 745. A decree rejecting responsibility for her acts had been issued by Peru, May 8, 1877. Even in the absence of a decree, her responsibility is doubtful.

4 Oppenheim, I, 218; Hall, 214; Adams (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3065. For appropriations of private property and unnecessary devastation, see cases in Ralston's International Arbitral Law, § 605 et seq., and infra, §§ 80, 104. Baasch and Römer (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 909. Speyers (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2868 (tariff promulgated by commanding general). A military occupant may establish a nationally valid tariff. McCalmont (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 2866.

Infra, p. 193.