File No. 174/4.
In adverting to the department’s note No. 390, of May 18 last, his
excellency points out his objections to accepting the principle
involved in the opinion, to which the department’s note has
reference, of the Judge-Advocate-General of the Army regarding the
case in question.
His excellency’s representations have been given careful
consideration, and I have the honor to inclose herewith, in reply, a
memorandum prepared by the legal officer of the department.
[Inclosure.]
memorandum by the solicitor.
The principle that a government is not responsible for acts of
private soldiers committed in their personal capacity is one
which is almost universally sustained by the judgments of
international claims commissions from a period even antedating
the civil war.
Judge Magoon, the law officer of the War Department, in his
report upon claims made against the United States by reason of
military operations, encampment of troops, conduct of soldiers,
etc., in Porto Rico, Cuba, and the Philippines, during our
recent war with Spain, says:
“Some of these claims are based on the unauthorized action of
individual soldiers; acting, not in the performance of orders,
but in violation of the military code, the instructions to the
armies of the United States in the field, the law and usages of
war, and international law. For injuries of this character no
legal responsibility would attach to the Government.
“The United States is not responsible for unlawful acts of
soldiers or employees, and the Secretary of War is not empowered
to allow a claim for personal property stolen or illegally
appropriated by a soldier. (J. A. G. Op., p. 260, sec. 16, id.,
p. 248; Moore’s International Arbitrations, p. 2975.)
“The remedy in such cases is by civil suit against the offender
and by prosecution under the criminal laws. (Moore’s
International Arbitrations, Digest, vol. 3, p. 343.)”
In numerous cases before the United States and Mexican Claims
Commission of 1871 Sir Edward Thornton, as umpire, held that
“the Government was not liable or the acts of individual
soldiers or of bodies of straggling or marauding soldiers not
under the command of an officer.”
In the case of John Denis v. Mexico, he
said:
“Neither is it shown that the loss which he (the claimant)
suffered was caused by anything more than a robbery committed by
lawless soldiers who were not under the control of any officer
or authority. Under such circumstances the Mexican Government
can not be held responsible for damages. (3 Moore’s
International Arbitrations, 2997.)”
The same rule was applied by him in four other cases before the
same commission.
In a later case, that of W. C. Tripler v.
The Mexican Government, the same umpire said:
“It is not clearly shown by whom the acts were committed, or that
they were done by order or in presence of an officer or
officers, and if the robbery and
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destruction were committed by soldiers
only, without the order or presence of an officer, the umpire
does not consider that the Mexican Government can be expected or
called upon to make compensation for such acts. It is one of the
unfortunate consequences of choosing to live in a country where
revolutions and disturbances are so frequent. (3 Moore,
International Arbitrations, 2997.)”
In the case of William Culberson v.
Mexico, which came before the same commission, Mr. Wadsworth,
the United States commissioner, in dismissing the claim,
referring to an item for the destruction of property by the
troops of General Corona, said:
“But why should I pick out this small item and trouble the umpire
with this case when his labors are most and must yet be more
enormous, and when I know he will dismiss it, because claimant
only proves that ‘Mexican soldiers’ or ‘government soldiers’
took his horses, without showing that an officer was with them.
The umpire requires the proof of the presence of an officer.
(Moore, Internatinal Arbitrations, vol. 3, p. 2997.)”
In Vidal’s case, which came before the United States and French
Claims Commission of 1880, claim was made for the loss of
certain growing vegetables. The evidence shows that the losses
sustained by claimant were due to unauthorized acts of pillage
by soldiers of the United States Army. On the part of the United
States, it was maintained that the Government was not liable
unless the authority for the taking was clearly proved. The
commission, in dismissing the claim, said:
“In this case we are not able to find the facts proved as claimed
by the memorialist. The claim does not arise from acts committed
by the civil or military authorities of the United States, and
the acts committed must be considered as mere acts of pillage.
(3 Moore, International Arbitrations, p. 2999.)”
In another case which came before the French-American Claims
Commission, that of Louis and Marie Castelain, growing out of an
assault upon claimants by United States soldiers, the
commission, in unanimously dismissing the case, said:
“This was a cruel and malicious attack upon the claimants,
probably by some soldiers, from motives of personal revenge.
“We do not find any act committed by the authorities creating a
responsibility on the part of the United States.
“We regret that we are not allowed to indulge in sentiments of
pity, or to extend charity to persons so cruelly injured. (3
Moore, International Arbitrations, p. 3000.)”
It is argued by the French embassy that if there be no
responsibility on the part of the Government for the
unauthorized acts of private soldiers, this principle would
involve the logical consequence that dispossessed parties would
be justified in forcibly resisting uniformed soldiers engaging
in such operations, and would put the burden upon the property
owners of ascertaining whether such acts were or were not
authorized before they could reach a conclusion as to whether
forcible resistance would be proper.
To this it may be answered that the United States, in common with
most other civilized governments, has adopted certain rules for
the government of its armies in the field, one of which
prohibits pillage under the severest penalties. There is every
presumption that commanders will enforce obedience to these
orders and punish all violations of them. At the same time it
must be admitted that these orders will sometimes be violated.
As Professor Lawrence observes in his Treatise on International
Law, page 361, the element of plunder “is never entirely absent,
and the most careful and humane of generals finds himself unable
to give absolute protection to the property and inhabitants of
an invaded country, especially when he is at the head of a large
army, in whose ranks there are sure to be found a considerable
number of bad characters.”
A noncombatant owner can always demand of the parties causing him
damage whether they act under the authority of a superior, in
which case there is generally exhibited the written authority of
the commander, and in any event the injured party has a right to
make immediate complaint to the commanding officer. The question
whether he shall himself seek his remedy with his own hands by
forcible resistance is not materially different from the
ordinary case where a private citizen decides for himself
forcibly to resist those who, as the ostensible servants of
government, he may think are acting against him without due
process of law. It is the risk which any individual incurs who
places himself in forcible opposition to others, who are
proceeding against him under color of law, and whose authority
he questions or denies.
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To admit the principle contended for by the French embassy would
make a government responsible for every wanton or unauthorized
act of every private soldier, regardless of every effort of the
most vigilant commander directed toward the restraint of his
men. It would make a government practically an insurer, as
against the act of any soldier, of all private property along a
line of march, except such as might be destroyed in the course
of military operations or regularly requisitioned by the
commander. Such a principle finds no support in the United
States, nor is it thought to be in accordance with the leading
decisions of arbitral tribunals, nor with the views of the best
writers on international law.
Department
of State,
Washington, September 26, 1901.
