participate in such violation, their action seems to involve a direct responsibility of the state.1

$79. Minor Officials.

The presumption that the international responsibility of the state is engaged by the unlawful acts of its agents does not as a general rule extend to the tortious acts of minor officials, unless the government by some delinquent action of its own-either failure to afford redress in its courts to the injured individual or to punish the guilty officermay be considered as having adopted or sanctioned the wrongful act. This is especially true of such personal and malicious acts as are outside the scope of the officer's real or apparent authority. It has already been noted that the municipal law of different countries varies as to the responsibility for a wrongful act of an officer, some states, such as the United States and various countries of Latin-America denying all responsibility for torts of officers and remitting the injured individual solely to his action against the officer, and other states, such as France and Germany, assuming a large measure of responsibility for its officer's official acts but denying liability for his personal acts.2 That the rule of international law first above mentioned has suffered numerous exceptions, we have already had occasion to note; yet an examination of a great many cases confirms the view that as a general principle the state is not responsible for the wanton or unlawful acts of its minor officials, unless it has directly authorized, or after notice, failed to prevent, the act, or by failure to arrest, try or punish the guilty offender, or to allow free access to its courts to the injured parties, it may be charged with actual or tacit complicity in the injury. One important reason for this rule is that the wrongful act of the minor official is not presumed to be the act of the state until

1 Panama riot, July 4, 1912; A riot which occurred at Panama April 2, 1915, in which a policeman killed a U. S. soldier, will probably render the Panaman government liable; Claim of Shipley in Turkey, For. Rel. 1903, 733; Cesarino (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 770.

3

Supra, §§ 55, 60.

* Calvo, § 1263 et seq.; Bonfils, § 330; Fiore, op. cit., § 667; Moore's Dig. VI, §§ 9991000; Anzilotti, in 13 R. G. D. I. P. (1906), 288-292. The Salvadorean law of May 10, 1910 concerning claims against the government is based on these principles, as expounded by Fiore.

some state organ, either a higher court or superior administrative authority, by some independent action or omission, has tacitly ratified the act.

In contractual cases, it is usually a necessary condition of direct governmental liability, that the officer be employed by the government, and be not merely a municipal officer. Nor does the fact that the government issues licenses to particular persons, such as pilots, or grants certain monopolies of public service to individuals make the licensee or monopolist an agent of the state capable of engaging its direct responsibility.1

It seems clear that for personal acts of local or minor officials plainly outside of their authority and not incidental to their functions, the officer alone and not the government is responsible.2 Difficulty arises because the line between personal and official acts is often exceedingly vague. Even if the tort of the officer is within the scope of his functions, unless the government actually benefit by the tort, it has often been held that the only remedy is against the officer and not against the government,3 although, as has been observed, such a state of facts has frequently been held a ground of state liability, especially in LatinAmerica.

1 Horatio (U. S.) v. Venezuela, Dec. 5, 1885, 3023; Cushing in 7 Op. Atty. Gen. 237 (Montano case); Mark Gray (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 33.

2 See Mr. Bayard to Mr. West, June 1, 1885, For. Rel. 1885, 457 (wanton kiling of an arrested person by a sheriff after execution of the writ, due to personal malice. This ruling has, however, been called in question); Bensley (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3018 (forcible seizure of a boy). See extracts in Moore's Dig. VI, 742-743. Wilson (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3021 (cheat practiced by a municipal guard); Cahill (U. S.) v. Spain, Feb. 11, 1871, ibid. 3066 (ruin of business by alleged machinations of minor official-probably dictum). But where an assault is connected with an officer's official duty, the government has been held liable. Metzger (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 578 (incidental to taking property for public use). So where police officers commit a wanton assault, supra, note 1, p. 189, and "La Masica" case (Gt. Brit.) v. Honduras, Memoria de relaciones exteriores, 1911-12.

.

Atty. Gen. Griggs in 22 Op. Atty. Gen. 64, May 4, 1898 (illegal seizures of vessels); Akerman, Atty. Gen., in 13 Op. Atty. Gen. 553 (act of corruption of inferior judge in Brazil); Cushing in 7 Op. Atty. Gen. 237; Slocum (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3140; Forrest (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2947; Mr. Tripp to Mr. Mix, Oct. 11, 1893 and Mr. Uhl to Mr. Tripp, Nov. 17, 1893, For. Rel., 1894, 23-26 (blunder of local officers in Austria).

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

3

A government may often release itself from liability by punishing the officer, 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

6

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.

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.

'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

3

1

the wrong, there being opportunity therefor; a refusal to investigate an assault or other injurious act, or negligence in investigating a case; a failure to furnish access to the courts to the injured individual 4 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 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.

5 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.

6 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.

7 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.