No. 191.
Mr. Fish
to Mr. Scruggs.
Department
of State,
Washington, February 18,
1875.
No. 69.]
Sir: Your dispatch No. 79, of the 5th ultimo, has
been received. It relates to a claim of British subjects against Colombia,
in which, having been asked to act as arbiter, you consented, and request
the sanction of the Department to that consent. This is granted, but it
would have been preferable to have awaited the decision here before
accepting the trust.
The case, as stated by you, obviously involves important principles, and as
the result, whatever it may be, may in the future be made applicable to
similar claims of foreigners against this Government, it is hoped that you
will give the subject your best attention. Without wishing to bias your
judgment in advance, it may be remarked that the claim, in some of its
features, resembles that in the case of the Caroline against Brazil. This
claim, after having been urged for years, was at last paid. My predecessor,
however, having doubts as to the accountability of Brazil under the law of
nations, consulted the Attorney-General for the time being on this
point.
A copy of Mr. Akerman’s opinion, which may be found on page 164 of the
document in the case of the Caroline, is herewith transmitted for your
information.
I am, &c.,
[Page 424]
[Inclosure in No. 69.]
Mr. Akerman to Mr.
Fish.
Department of Justice,
Washington, December 29,
1871. (Received December 30.)
No. 74.]
Sir: On the 17tb of January, 1868, the
Secretary of State called on the Attorney-General for an opinion upon
the question whether the government of Brazil is justly responsible for
damages resulting from the alleged corruption of its municipal judge at
St. Catharine’s, in authenticating and ratifying the report of a board
of surveyors upon a damaged vessel.
The claim for damages is preferred by Mr. Welles, the agent at St.
Catharine’s of certain insurance companies in New York and Philadelphia
that were injured by the proceedings in which the alleged misconduct
occurred.
Even if the charge of corruption were established, (which does not appear
to be the fact,) I am of opinion that the Brazilian government would not
be responsible. The misconduct violated no treaty stipulations between
Brazil and the United States. It did not benefit the public treasury of
that country, but was in aid of a private interest. For aught that
appears, a civil proceeding in the courts of Brazil would produce
adequate redress.
For a thorough discussion of the subject of the liability of governments
for the faults of their officers, I refer you to the opinion of
Attorney-General Cushing, of May 25, 1855, (7 Opinions, 229.) In a case
similar in principle to the present, he considered that the Government
of the United States was not responsible to an injured foreigner. In all
fairness, we must adhere to the same rule when our owncitizens, are
injured by the officers of a foreign country.
Very respectfully,
Hon. Hamilton Fish,
Secretary of State.
