ACTS OF JUDICIAL OFFICERS

[§ 287 on his behalf.1 From this practice it has been natural to infer that no denial of justice appears until the decision of the inferior court has been confirmed by the highest judicial authority.2 Such a conclusion is a reasonable inference from the situation arising in a broad class of cases where, notwithstanding the error of the court of first instance, no act on its part is to be regarded as internationally illegal. Its conduct does not necessarily present an illegal aspect, when, for example, acting in good faith and with impartiality, and without violating local rules of practice upon which the alien litigant relies for protection, the court, nevertheless, errs in its view of the local law, or in the application thereof to the facts of the particular case, and pronounces a decision adverse to the alien.

Nor can the territorial sovereign through the operation of whose judicial system such a result has occurred be justly regarded by the State of the alien as having wronged him.3 This is believed to be true not only because the courts may, in a domestic sense, be independent of the political department, or because of the existence of an appellate tribunal capable of rendering nugatory the errors of an inferior court, but chiefly for the reason that the decision of the court of first instance did not itself constitute a violation of international law.

Instances are plentiful, however, where the decision of the inferior court has possessed an internationally illegal character. Decisions are believed to be of such a kind when, for example, the terms of a treaty, concerning the interpretation of which there is no dispute, are flagrantly disregarded, or when the safeguards provided by the local law for the security of the accused (in a criminal case) are unheeded. In such cases a denial of

1 Mr. Clay, Secy. of State, to Mr. Tacon, Feb. 5, 1828, MS. Notes to For. Leg. III, 423, Moore, Dig., VI, 652; Mr. Marcy, Secy. of State, to Mr. Clay, Minister to Peru, No. 30, May 24, 1855, MS. Inst. Peru, XV, 159, Moore, Dig., VI, 659; Mr. Gresham, Secy. of State, to Mr. Ryan, Minister to Mexico, April 26, 1893, MS. Inst. Mexico, XXIII, 359, Moore, Dig., VI, 270. See, also, Seth Driggs Case, United States-Venezuelan Claims Commission, Convention of Dec. 5, 1885, Moore, Arbitrations, III, 3160.

2 Mr. Davis, Assist. Secy. of State, to Mr. Moseby, June 23, 1873, 99 MS. Dom. Let. 260, Moore, Dig., VI, 661; Same to Mr. Chase, consul at Tampico, Jan. 10, 1870, 57 MS. Inst. Consuls, 101, Moore, Dig., VI, 750; Mr. Mariscal, Mexican Minister of Foreign Affairs, to Mr. Morgan, Minister to Mexico, April 2, 1886, H. Ex. Doc. 328, 51 Cong., 1 Sess., Moore, Dig., VI, 668. See, also, Ralston, Arbitral Law, 49.

3 Mr. Forsyth, Secy. of State, to Mr. Welsh, March 14, 1835, 27 MS. Dom. Let. 261, Moore, Dig., VI, 261; Mr. Frelinghuysen, Secy. of State, to Baron Schaeffer, Austrian Minister, June 28, 1882, MS. Notes to Austria, VIII, 338, Moore, Dig., VI, 765.

Mr. Forsyth, Secy. of State, to Mr. Semple, Chargé d'Affaires to New

justice is apparent by reason both of the character of the act and of its commission by an authority of the State. It is true that such conduct on the part of that department of the Government entrusted with the special duty to administer justice may destroy all reason for hope on the part of the foreign State that its national may still obtain redress by exhausting his remedies through appeal to a higher agency of the same department. The internationally illegal acts of inferior courts have served more than once to produce such an effect and to inspire interposition.1 When, notwithstanding a denial of justice by a court of first instance, the State of the alien complainant has refrained from espousing his cause until he has exhausted his judicial remedies, the withholding of interposition has, therefore, betokened significant respect for the principle that the propriety of interposition depends upon something more than the bare fact of national delinquency, and that it lacks justification so long as the claimant may obtain redress through domestic judicial channels.2

Courts of arbitration have frequently expressed the opinion that the territorial sovereign is not responsible for the misconduct of an inferior judicial tribunal, when no attempt has been made by the aggrieved litigant to obtain justice from a higher court. Such a statement is misleading in so far as it conveys Granada, No. 7, Feb. 12, 1839, MS. Inst. Colombia, XV, 58, Moore, Dig., VI, 249. See, also, Parrott Case, Mexican Claims Commission, Act of Cong., March 3, 1849, Moore, Arbitrations, 3009, at 3011, where it was said: "The abuse of judicial functions and the perversions of the laws have been such . . in relation to proceedings in which the claimant was interested, as to have produced great wrong and a denial of justice"; opinion of Thornton, Umpire in the Bronner Case, Mexican-American Claims Commission, Convention of July 4, 1868, Moore, Arbitrations, 3134, in which it was said that "the decision appears to him [the Umpire], so unfair as to amount to a denial of justice"; also opinion of same umpire in the Jonan case, before same Commission. Also Ruden Case, Peruvian Claims Commission, Convention of Dec. 4, 1868, Moore, Arbitrations, II, 1653; Tagliaferro Case, Italian-Venezuelan Commission, 1903, Ralston's Report, 764. Compare Bertinatti, Umpire, in Medina Case, United States-Costa Rican Commission, Convention of July 2, 1860, Moore, Arbitrations, III, 2316, 2317.

1 Mr. Everett, Secy. of State, to Mr. Marsh, Minister to Turkey, concerning the Case of Rev. Jonas King, No. 24, Feb. 5, 1853, S. Ex. Doc. 9, 33 Cong., 2 Sess., 5, 8, 9, Moore, Dig., VI, 262; Report of Mr. Bayard, Secy. of State, to the President, Feb. 26, 1887, S. Ex. Doc. 109, 49 Cong., 2 Sess., Moore, Dig., VI, 666.

2 As has been seen, there is no duty on the part of a claimant to exhaust his judicial remedies when it would be useless to do so (Donoughho Case, Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, III, 3012, 3014), or when he is prevented from so doing by intrigue on the part of the government (Garrison Case, before same commission, Lieber, Umpire, id., 3129). See, also, Ballistini Case, French-Venezuelan Commission, 1902, Ralston's Report, 503-504; Gray, Admr. v. United States, 21 Ct. Cl. 340, 402, Moore, Dig., VII, 644.

See, for example, opinion of Thornton, Umpire, Mexican-American Com

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

(3)

§ 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.1

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

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.

(1)

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.

"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,