3

4

soldiers the claimant must prove1 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 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

5

7

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.

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).

4 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.

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

6 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.

These principles of municipal law are observed in the international relations of states, so that as a general rule the state is not liable for the acts of its judicial authorities unless there has been some flagrant or notorious injustice or denial of justice sanctioned by the court of last resort.1 In a subsequent chapter (infra, § 127 et seq.) the whole question of denial of justice will be examined in detail. Our present inquiry will be confined to an examination of the cases in which liability has been sought to be fastened upon governments for the acts of their judicial authorities, not amounting technically to a denial of justice.

The Department of State has on a number of occasions expressed its adherence to the rule that a government is not responsible for the mistakes or errors of its courts.2 For excess of jurisdiction by the

1 There are exceptions to the rule, for unjust judgments have at times served as a ground of diplomatic interposition even where there was no technical denial of justice. This is approved by Triepel (p. 350, note 3) and Wheaton (Dana's ed., § 391), but is opposed by Phillimore, II, 4; Creasy, 337; and Liszt, 9th ed., 182, on the ground that the state has fulfilled its duty by referring the matter to independent courts. Anzilotti insists strongly on the distinction between unjust judgments reached without violation or misapplication of municipal or international law, and violations of law amounting to a denial of justice. Only in the second case does he find any international responsibility. 13 R. G. D. I. P. (1906), 21-25, 296-298. This just theoretical distinction is not usually observed in international practice; the line between an unjust judgment reached by proper observance of the forms of justice and a denial of justice is exceedingly vague, for responsibility is often asserted in either

case.

2 Mr. Marcy, Sec'y of State, to Chevalier Bertinatti, Dec. 1, 1856, Moore's Dig. VI, 748 (court exceeding jurisdiction). Mr. J. C. B. Davis to Mr. Chase, Jan. 10, 1870, ibid. 750; U. S. v. Dunnington, 146 U. S. 338, 351. Nor is the judge personally responsible for his errors to third parties. Mr. Davis to Mr. Chase, Jan. 10, 1870, Moore's Dig. VI, 750; Tchernoff, 288.

The rule has been supported by international tribunals. Barron, Forbes and Co. (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2525; Yuille, Shortridge & Co. (Gt. Brit.) v. Portugal, March 8, 1861, La Fontaine, 378; Alfaya (U. S.) v. Spain, Feb. 12, 1871, not in Moore.

By way of exception, Great Britain granted to an American citizen (Lillywhite) compensation for his erroneous conviction and imprisonment in New Zealand, to which even a British subject would not have been entitled. For. Rel. 1901, 231–236. Similarly, France paid a heavy indemnity to Great Britain for the erroneous conviction and detention of Mr. Shaw, a British subject, in Madagascar, 19 Hertslet's Com. Treaties, 201-203. See also Bark Jones (U. S.) v. Great Britain, Feb. 8, 1853, Moore's Arb. 3051, where an erroneous assessment of costs was considered a ground of government liability. In addition, the government declined to investigate, on remonstrance.

courts Secretary Marcy denied any international responsibility of the state, although he admitted a personal responsibility of the judges.1 Nevertheless Prof. de Martens in the Costa Rica Packet case,2 one of the most important of recent arbitrations, held the Dutch Government liable for the (as he found) wrongful exercise of jurisdiction by a Dutch court over a British captain on account of certain alleged offenses committed beyond the three-mile limit. Notwithstanding the fact that the court found it had no jurisdiction and acquitted the defendant, de Martens held the Netherlands government liable for having ordered the detention and for certain hardships connected therewith. Few arbitral awards have been more severely criticized than the decision. in the Costa Rica Packet case.3

While, on principle, the erroneous or merely unjust decision of a court involving no unlawfulness or irregularity in procedure should not involve the state in responsibility, the failure of the higher courts to disapprove violations of national or international law by minor officials or other authorities fixes an international responsibility upon the state,5 and a flagrant or notorious injustice is not easily distinguishable from a denial of justice. Similarly, the judgment of a court in violation of a treaty or of international law serves to render the state responsible.

6

1 Mr. Marcy to Chevalier Bertinatti, Dec. 1, 1856, Moore's Dig. VI, 748. Contra, Earl Granville to Mr. Morier, Sept. 30, 1881, 74 St. Pap. 1172.

2 Costa Rica Packet (Gt. Brit.) v. Netherlands, May 16, 1895, Moore's Arb. 4948-4954; 89 St. Pap. 1181 et seq., 1284.

Baty, International law, 197, 227-231. See also the following articles on the case: A. E. Blès in 28 R. D. I. (1896), 452–468; Jules Valery in 5 R. G. D. I. P. (1898), 57-66; Gustave Regelsperger in 4 R. G. D. I. P. (1897), 735–745; Tchernoff, op. cit., 290.

The earlier writers considered an unjust judgment a ground for reprisals, and equivalent to a denial of justice. See citations from Grotius, Bynkershoek and Vattel referred to by Wheaton, Dana's Wheaton, § 391. This view is approved by Wheaton and Triepel, supra, p. 350, note 3.

E. g., many decisions of prize courts supporting unlawful captures. Dana's Wheaton, §§ 392, 396. See Kane's notes on Convention with France of July 4, 1831, p. 31 and unlawful exactions of duties by Denmark at Kiel, confirmed by Danish courts, 20 St. Pap. 838, and Danish indemnities under treaty of March 28, 1830, Dana's Wheaton, § 397.

• Van Bokkelen (U. S.) v. Haiti, May 24, 1888, Moore's Arb. 1807, 1822; La Fontaine, 307; Yuille, Shortridge and Co. (Gt. Brit.) v. Portugal, March 8, 1861, 61 St. Pap. 841; La Fontaine, 377-385.

It is a fundamental principle that the acts of inferior judges or courts do not render the state internationally liable when the claimant has failed to exhaust his local means of redress by judicial appeal or otherwise, for only the highest court to which a case is appealable may be considered an authority involving the responsibility of the state.2

The regularity and legality of a court's practice and procedure are to be judged by the local law, which need not, however, manifest the liberal principles of Anglo-American law. For example, even in countries in which the inquisitorial system of criminal law prevails, a fair application of the law to aliens and citizens alike removes all ground of complaint on the part of foreign countries, even of those adopting the accusatory system. Provided the system of law conforms with a reasonable standard of civilized justice and provided that it is fairly administered, aliens have no cause for complaint in the absence of an actual denial of justice.3

The personal acts of judges either in their private capacity or so grossly violative of their judicial functions that they may be held personal acts, do not entail any liability of the government. For their private acts they are liable as other individuals. It is not always easy to distinguish personal acts from wrongful official acts. The

1 Supra, p. 191, note 1, and cases of Blumhardt, Burn, Smith and Jennings, there cited.

2 French indemnity of 1831, Moore's Arb. 4472-73; The Van Ness Convention with Spain, Feb. 17, 1834, ibid. 4544.

3 E. g., in Trumbull (Chile) v. U. S., Aug. 7, 1892, Moore's Arb. 3255–61, where claimant was ultimately acquitted of a charge of violating the neutrality laws, it was held that he was not entitled to an indemnity, for he had been "regularly indicted, tried, and acquitted in accordance with the ordinary proceedings of courts of justice, and that he had been subjected to no improper treatment." See also White (Gt. Brit.) v. Peru, award April 13, 1864, Moore's Arb. 4967, at 4968; Ullman, De la responsabilité de l'Etat en matière judiciaire, Paris, 1911 (extract from Lapradelle's and Politis' Recueil des arbitrages, v. II); Forte (Gt. Brit.) v. Brazil, award June 18, 1863, 53 St. Pap. 150, Moore's Arb. 4925; Mr. Webster, Sec. of State, to the President in Thrasher's case, 2 Wharton, 613, and other extracts in 2 Wharton, §§ 230 and 230a.

4 Thus the fraud and corruption of a municipal judge were held by Attorney General Akerman in the Caroline case against Brazil not to involve the liability of Brazil and the U. S. returned a portion of an indemnity already paid (18 Stat. L. 70); 13 Op. Atty. Gen. 553. See also Rebecca (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3008 (judge fled with money deposited in court).